Anwar et al v. Fairfield Greenwich Limited et al
Filing
996
SETTLEMENT AGREEMENT. Document filed by Pasha S. Anwar. (Attachments: #1 Exhibit A, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit A-3, #5 Exhibit B)(Barrett, David)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
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PASHA ANWAR, et al.,
Plaintiffs,
..
v.
:: MASTER FILE NO. 09-CV-01l8 (VM)
FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.
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STIPULATION OF SETTLEMENT
This Stipulation of Settlement (the "Stipulation"), dated as of November 6, 2012, which
is entered into by and among the Representative Plaintiffs (as defined herein), on their own
behalf and on behalf of the Settlement Class (as defined herein), Fairfield Greenwich Limited
("FGL") and Fairfield Greenwich (Bermuda) Limited ("FGBL"), by and through their
undersigned attorneys, states all of the terms of the settlement and resolution of this matter by the
Settling Parties (as defined herein) and is intended by the Settling Parties to fully and finally
release, resolve, remise and discharge the Released Claims (as defined herein) against the
Released Parties (as defined herein), subject to the approval of the United States District Court
for the Southern District of New York (the "Court"). All undefined terms below with initial
capitalization shall have the meanings ascribed to them in Section AI. below.
WHEREAS:
The Action
A
On December 19, 2008, plaintiffs Pasha S. Anwar and Julia Anwar filed a
putative class action lawsuit on behalf of themselves and all others similarly situated in the
Supreme Court for the State of New York, entitled Anwar v. Fairfield Greenwich Group, et al.,
No. 60376912008 ("Anwar").
B.
On January 7,2009, Anwar was removed to the Court.
On and after January 8, 2009, putative class action lawsuits were filed by
plaintiffs on behalf of themselves and all others similarly situated in the Court, entitled Pacific
West Health Medical Center Inc. Employees Retirement Trust v. Fairfield Greenwich Group, et
al., No. 09 Civ. 00134; Inter-American Trust v. Fairfield Greenwich Group, et al., No. 09 Civ.
00301; Laor v. Fairfield Greenwich Group et al., No. 09 Civ. 2222; The Knight Services
Holdings Limited v. Fairfield Sentry Limited, et al., No. 09 Civ. 2269; and Zohar v. Fairfield
Greenwich Group, et al., No. 09 Civ. 4031 (collectively, and together with Anwar, the "Action").
C.
By Orders dated on and after January 14, 2009, the Court consolidated the Action
under the Docket No. 09-cv-0118 (VM).
D.
By Orders dated January 30,2009 and July 7,2009, the Court appointed Boies,
Schiller & Flexner LLP, Wolf Popper LLP, and Lovell Stewart Halebian Jacobson LLP
("Plaintiffs' Lead Counsel") as Interim Co-Lead Counsel to act on behalf of all Plaintiffs and
Lead Counsel for PSLRA Plaintiffs in the Action. In the Action, through the filing of the SCAC
on September 29, 2009, the Representative Plaintiffs asserted claims on behalf of a proposed
class of similarly situated investors in the Funds against the SCAC Defendants for violations of
federal securities law, specifically Sections 10(b) and 20 of the Securities Exchange Act of 1934,
and New York law, under various common-law theories. The SCAC also included over one
hundred other Named Plaintiffs.
E.
By orders of the Court dated July 29,2010 and August 18,2010, the Court
granted in part and denied in part the FG Defendants' motions to dismiss the SCAC. Thereafter,
extensive discovery ensued. The Settling Defendants and the Non-Dismissed Defendants
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produced, and Plaintiffs' Counsel reviewed, more than six million pages of documents; and
Plaintiffs' Lead Counsel reviewed and produced to defense counsel more than 75,000 pages of
documents on behalf of the Representative Plaintiffs and certain other Named Plaintiffs.
Plaintiffs' Lead Counsel have conducted approximately thirty depositions of the FG Defendants
and former and current employees of the Non-Dismissed Defendants in locations including New
York, Miami, Toronto, Amsterdam and Bermuda. Twenty individuals who are associated with
or who are the Representative Plaintiffs or other Named Plaintiffs were deposed in Arizona,
Cleveland, and New York, some of whom traveled from international residences including
Israel, Bahrain, and Belgium for their depositions. Discovery against the Non-Dismissed
Defendants is continuing.
F.
By orders dated on and after December 15, 2010, over forty other Persons joined
the Action as Named Plaintiffs and were deemed parties to the same extent as if they had been
named as plaintiffs in the SCAC.
G.
On March 1, 2011, the Representative Plaintiffs served a motion for class
certification requesting the Court to certify the Action as a class action and to appoint them as
class representatives (the "Motion for Class Certification").
Following discovery on class
certification issues, all defendants in the Action, including the FG Defendants, opposed the
Motion for Class Certification, which is currently pending before the Court.
H.
By Order of the Court filed on November 3,2011, the claims of ABN AMRO
Life S.A. in the Action were dismissed with prejudice.
I.
By Order of the Court filed on February 22, 2012, the claims of Jeffrey S.
Lieberman in the Action were dismissed with prejudice.
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Other Actions Against the FG Defendants
J.
On May 13, 2009, a shareholder derivative suit styled Morning Mist Holdings
Limited v. Fairfield Greenwich Group, et al., No. 60151112009 ("Morning Mist"), was filed in
the Supreme Court for the State of New York in the name and on behalf of Fairfield Sentry
Limited against, among others, certain FG Defendants, specifically, Fairfield Greenwich Group,
FGL, FGBL, Fairfield Greenwich Advisors LLC, Fairfield Risk Services Ltd., Walter M. Noel,
Jr., Jeffrey H. Tucker, Andres Piedrahita, and Amit Vijayvergiya (the "FG Derivative Action
Defendants") .
K.
On May 18, 2009, an adversary proceeding styled Picard v. Fairfield Sentry
Limited, et al., Adv. Pro. No. 09-01239 (the "Trustee Action") was filed by the BLMIS Trustee
in the United States Bankruptcy Court for the Southern District of New York against Fairfield
Sentry Limited, Greenwich Sentry, L.P., and Greenwich Sentry Partners, L.P. On July 20,2010,
the BLMIS Trustee amended the complaint in the Trustee Action to assert claims against, among
others, certain FG Defendants, specifically, FGL, FGBL, Fairfield Greenwich Advisors LLC,
Fairfield Heathcliff Capital LLC, Fairfield Greenwich (UK) Limited, Walter M. Noel, Jr., Jeffrey
H. Tucker, Andres Piedrahita, Mark McKeefry, Daniel E. Lipton, Amit Vijayvergiya, Richard
Landsberger, Philip Toub, Charles Murphy, Robert Blum, Andrew Smith, Harold Greisman,
Gregory Bowes, Corina Noel Piedrahita, Lourdes Barreneche, Cornelis Boe1e, Santiago Reyes,
and Jacqueline Harary.
L.
On May 29, 2009, an action styled Fairfield Sentry Limited v. Fairfield
Greenwich Group, et al., No. 60168712009 (the "Sentry Action"), was filed in the Supreme
Court for the State of New York by Fairfield Sentry Limited against, among others, certain FG
Defendants, specifically, Fairfield Greenwich Group, FGBL, Fairfield Greenwich Advisors LLC,
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FGL, Walter M. Noel, Jr., Jeffrey H. Tucker, Andres Piedrahita, Amit Vijayvergiya, Lourdes
Barreneche, Comelis Boe1e, Philip Toub, Richard Landsberger, Charles Murphy, Andrew Smith,
Daniel E. Lipton, Mark McKeefry, Harold Greisman, Santiago Reyes, Jacqueline Harary, Robert
Blum, Corina Noel Piedrahita, and Maria Teresa Pulido Mendoza (the "Sentry Action FG
Defendants") .
M.
On May 9, 2011, the Trustee entered into a settlement agreement with Fairfield
Sentry Limited, Fairfield Sigma Limited, and Fairfield Lambda Limited (the "Offshore Funds"),
pursuant to which the Liquidators for the Offshore Funds agreed to unconditionally and
irrevocably assign to the Trustee any and all claims asserted by, or on behalf of, the Offshore
Funds in the Sentry Action against the Sentry Action FG Defendants.
N.
On May 17,2011, the Trustee entered into settlement agreements with Greenwich
Sentry, L.P. and Greenwich Sentry Partners, L.P. (the "Onshore Funds"), pursuant to which the
Onshore Funds agreed to unconditionally and irrevocably assign to the BLMIS Trustee any and
all claims the Onshore Funds own or hold (whether or not such claims have been asserted by, or
on behalf of, the Funds) against FG Derivative Action Defendants and all other officers,
directors, employees, shareholders, partners, alleged partners, members, relatives, or affiliates of
the FG Derivative Action Defendants.
The Proposed Settlement of the Action Against the FG Defendants
O.
Beginning in 2010, and then more intensively between May 21,2012 and August
3,2012, while discovery was ongoing, the Settling Parties engaged in extensive, arm's-length
negotiations in an attempt to resolve the Action as against the FG Defendants.
P.
On August 3, 2012, the Settling Parties signed an agreement in principle to fully
and finally settle the Action as against the Settling Defendants in return for specified
5
consideration and to fully release all claims asserted against the FG Defendants and the Released
Parties, which is memorialized in this Stipulation.
Q.
In return for the consideration described herein, this Stipulation is intended to
fully and finally release, resolve, remise and discharge the Released Claims (as defined herein)
against the Released Parties (as defined herein) with prejudice.
R.
The Settling Parties' entry into this Stipulation is not, and shall not be construed
as or deemed to be evidence of, an admission as to the merit or lack of merit of any claims or
defenses asserted in the Action.
S.
In addition to the extensive and ongoing discovery described above, Plaintiffs'
Lead Counsel have conducted a further investigation since August 3, 2012 relating to the claims
and the underlying events alleged in the Action. Plaintiffs' Lead Counsel have also investigated
the financial status of each of the FG Defendants.
Plaintiffs' Lead Counsel have analyzed the
evidence and information adduced through discovery and investigation, and have researched the
applicable law with respect to the Representative Plaintiffs and the Settlement Class. In
negotiating and evaluating the terms of this Stipulation, Plaintiffs' Lead Counsel considered the
significant legal and factual defenses to the Representative Plaintiffs' Claims; the lengthy time
that completion of discovery, contested class certification, dispositive motion practice, trial and
likely appeals would entail; and the FG Defendants' available assets and their potential inability
to satisfy a judgment in the Action if the Representative Plaintiffs were to prevail at trial and on
appeal, as well as the potential difficulty in executing on any such judgment.
In addition,
Plaintiffs' Lead Counsel considered the effect that the Settlement would have in simplifying
litigation of the remaining claims against the Non-Dismissed Defendants, who are believed to
have substantial assets that may through settlement or judgment provide significant additional
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compensation to the class. Plaintiffs' Lead Counsel believe they have received sufficient
information to evaluate the merits of the proposed Settlement. Based upon their evaluation,
Plaintiffs' Lead Counsel and the Representative Plaintiffs unanimously have determined that the
Settlement set forth in this Stipulation is fair, reasonable and adequate and in the best interests of
all Settlement Class Members, and that it confers substantial benefits upon the Settlement Class
Members.
T.
The Released Parties deny any and all allegations of wrongdoing, fault, liability or
damage whatsoever; deny that they engaged in, committed or aided or abetted the commission of
any breach of duty, breach of contract, wrongdoing or violation of law; deny that they acted
improperly in any way; deny that they caused any damage whatsoever to the Representative
Plaintiffs or any of the other Settlement Class Members; believe that they acted properly at all
times; maintain that they complied with their fiduciary duties; and maintain that they have
complied with all laws at all times.
U.
The Settling Defendants enter into this Stipulation solely to eliminate the
uncertainties, burden and expense of further litigation.
Nothing in this Stipulation shall be
construed as any admission by any of the Released Parties of wrongdoing, fault, liability, or
damages whatsoever.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by
and among the Representative Plaintiffs, for themselves and on behalf of the Settlement Class,
and the Settling Defendants, by and through their respective undersigned counsel that, subject to
the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in
consideration of the benefits flowing to the Settling Parties from the Settlement set forth herein,
the Action and the Released Claims as against the Settling Defendants shall be finally and fully
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compromised, settled and released, the Action shall be dismissed with prejudice and the
Released Claims shall be finally and fully released as against the FG Defendants and the
Released Claims shall be finally and fully released as against the Released Parties, upon and
subject to the terms and conditions of this Stipulation, as follows.
A. Definitions
1.
In addition to the terms defined above, the following capitalized terms, used in
this Stipulation, shall have the meanings specified below:
a. "Administrative Costs" means all costs and expenses associated with
providing notice of the Settlement to the Settlement Class or otherwise administering or carrying
out the terms of the Settlement, excluding legal fees.
b.
"Augmented Settlement Amount" means the amount, not to exceed
$5,000,000 (five million dollars), equal to fifty percent (50%) of the Qualifying Cash Amount.
c. "Authorized Claimant" means any Settlement Class Member who is a
Claimant and whose claim for recovery has been allowed pursuant to the terms of this
Stipulation, the exhibits hereto, and any order of the Court.
d. "BLMIS" means Bernard L. MadoffInvestment
Securities LLC.
e. "BLMIS Trustee" means Irving H. Picard, Trustee for the SIPA
Liquidation ofBLMIS, his successors and any other individual or entity acting on behalf of the
BLMIS estate.
f.
"Beneficial Owner" means anyone of, and "Beneficial Owners" means all
of, those Persons who were beneficial owners of shares or limited partnership interests in the
Funds as of December 10, 2008 (whether as holders of record or traceable to a shareholder or
limited partner account of record). For the avoidance of doubt, only Beneficial Owners may file
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a Proof of Claim or request for exclusion with respect to each share or limited partnership
interest in the Funds. Where a fund, trust, or similar investment vehicle is an investor in one or
more of the Funds, the fund, trust, or similar investment vehicle is the Beneficial Owner for
purposes of this Stipulation, not the underlying investors in the fund or similar investment
vehicle. Where the record owner of shares or limited partnership interests is a nominee,
custodian, or other Person acting in a materially similar fashion on behalf of one or more
Beneficial Owners, that nominee, custodian or other Person is not a Beneficial Owner and may
not file a Proof of Claim or request for exclusion on behalf of any such Beneficial Owners.
g. "Claimant" means any Settlement Class Member who files a Proof of
Claim in such form and manner, and within such time, as the Court shall prescribe.
h.
"Claims" means any and all manner of claims, demands, rights, actions,
potential actions, causes of action, liabilities, duties, damages, losses, diminutions in value,
obligations, agreements, suits, fees, attorneys' fees, expert or consulting fees, debts, expenses,
costs, sanctions, judgments, decrees, matters, issues and controversies of any kind or nature
whatsoever, whether known or unknown, contingent or absolute, liquidated or not liquidated,
accrued or unaccrued, suspected or unsuspected, disclosed or undisclosed, apparent or not
apparent, foreseen or unforeseen, matured or not matured, which now exist, or heretofore or
previously existed, or may hereafter exist, (including, but not limited to, any claims arising under
federal, state or foreign law, common law, bankruptcy law, statute, rule, or regulation relating to
alleged fraud, breach of any duty, negligence, fraudulent conveyance, avoidance, violations of
the federal securities laws, or otherwise), whether individual, class, direct, derivative,
representative, on behalf of others, legal, equitable, regulatory, governmental or of any other type
or in any other capacity.
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1.
"Claims Administrator" means Rust Consulting, which shall administer
J.
"Escrow Agent" means Signature Bank, which shall be subject to the joint
the Settlement.
control of Boies Schiller & Flexner LLP and Simpson Thacher & Bartlett LLP, except after the
occurrence of the Effective Date (with respect to the Settlement Fund) and the Other Claims
Effective Date (with respect to the Escrow Fund) as provided in
,m 45 and 46, respectively.
k. "Escrow Amount" means the total sum of $30,000,000 (thirty million
dollars), up to fifty percent of which may be in the form of an appropriate security interest in one
or more assets, including without limitation real estate assets, subject to the approval of
Plaintiffs' Lead Counsel, which shall not be unreasonably withheld.
1. "Effective Date" means the first date by which all of the events and
conditions specified in ~ 44 of this Stipulation have been met and have occurred.
m. "FGLIFGBL Counsel" means Simpson Thacher & Bartlett LLP.
n. "FG Entity Defendants" means FGL, FGBL, Fairfield Greenwich Group,
Fairfield Greenwich Advisors LLC, Fairfield Risk Services Ltd., Fairfield Heathcliff Capital
LLC, and Fairfield Greenwich (UK) Limited.
o. "FG Defendants" means the FG Entity Defendants and the FG Individual
Defendants.
p. "FG Individual Defendants" means Walter M. Noel, Jr., Jeffrey H. Tucker,
Andres Piedrahita, Lourdes Barreneche, Robert Blum, Comelis Boele, Gregory Bowes, Vianney
d'Hendecourt, Yanko Della Schiava, Harold Greisman, Jacqueline Harary, David Horn, Richard
Landsberger, Daniel E. Lipton, Julia Luongo, Mark McKeefry, Charles Murphy, Corina Noel
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Piedrahita, Maria Teresa Pulido Mendoza, Santiago Reyes, Andrew Smith, Philip Toub, and
Amit Vijayvergiya.
q. "Final" when referring to the Final Judgment means exhaustion of all
possible appeals, meaning (i) if no appeal or request for review is filed, the day after the date of
expiration of any time for appeal or review of the Final Judgment, and (ii) if an appeal or request
for review is filed, the day after the date the appeal or request for review is dismissed, or the
Final Judgment is upheld on appeal or review in all material respects, and is not subject to further
review on appeal or by certiorari or otherwise; provided, however, that any dispute or appeals
relating solely to the amount, payment or allocation of attorneys' fees and expenses, the Plan of
Allocation, or the provisions of~~ 26-27 of this Stipulation shall have no effect on finality for
purposes of determining the date on which the Final Judgment or Alternative Judgment becomes
Final.
f.
"Final Judgment" means the final order and judgment to be entered by the
Court approving the Settlement, materially in the form attached hereto as Exhibit B, or an
alternative judgment finally approving the Settlement which is materially different from Exhibit
B and which does not result in any Settling Party terminating the Settlement and Stipulation
pursuant to ~ 43 of this Stipulation.
s. "Founding Shareholders" means Walter M. Noel, Jr., Jeffrey H. Tucker
and Andres Piedrahita.
t.
"Fund" means anyone of, and "Funds" means all of, Fairfield Sentry
Limited, Fairfield Sigma Limited, Fairfield Lambda Limited, Greenwich Sentry, L.P. and
Greenwich Sentry Partners, L.P.
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u. "Initial Settlement Amount" means the total cash sum of $50,250,000
(fifty million two hundred fifty thousand dollars).
v.
"Named Plaintiffs" means the Persons identified as plaintiffs in
paragraphs 1 through 116 of the SCAC, together with all other Persons who, by order of the
Court, were subsequently joined as plaintiffs in the Action and deemed plaintiffs to the SCAC to
the same extent as if they had been named as plaintiffs in the SCAC, except any plaintiffs whose
claims have been dismissed with prejudice.
w. "Net Loss" means the total cash investment made by a Beneficial Owner
in a Fund, directly or indirectly through one or more intermediaries, less the total amount of any
redemptions or withdrawals or recoveries by that Beneficial Owner from or with respect to the
same Fund.
x. "Non-Dismissed Defendants" means any Person who is not a Released
Party and is currently named or may be added in the future as a defendant in the Action or any
other legal action consolidated into the Action, now or in the future, and any persons acting on
their behalf, including, but not limited to, PricewaterhouseCoopers
PricewaterhouseCoopers
LLP, PricewaterhouseCoopers
International Ltd.,
Accountants Netherlands N.V, Citco
Fund Services (Europe) B.V, Citco (Canada) Inc., Citco Bank Nederland N.V Dublin Branch,
Citco Global Custody N.V, Citco Fund Services (Bermuda) Ltd., The Citco Group Limited, and
GlobeOp Financial Services LLC.
y. "Notice" means the "Notice of Proposed Partial Settlement of Class
Action and Settlement Fairness Hearing, and Motion for Attorneys' Fees and Reimbursement of
Expenses," which is to be sent to Settlement Class Members substantially in the form attached
hereto as Exhibit A-I.
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z. "Opt-Out" means anyone of, and "Opt-Outs" means all of, any Persons
who otherwise would be Settlement Class Members and have timely and validly requested
exclusion from the Settlement Class in accordance with the provisions of the Preliminary
Approval Order and the Notice given pursuant thereto.
aa. "Other Claims" means any and all Claims against anyone or more of the
Released Parties which are based upon, are by reason of, arise or arose out of, result from, are
related to, in connection with, or involve any direct or indirect investment in BLMIS and/or one
or more of the Funds or such Funds' investment in BLMIS, whether or not assigned once or
more than once (i) ever asserted in any action, arbitration or other proceeding brought in any
federal, state or foreign court, tribunal, forum or proceeding as of the Effective Date by, or that
was the subject of a tolling agreement prior to the Effective Date with, any Person, class, trustee,
liquidator, governmental or regulatory authority or complainant of any kind other than the
Named Plaintiffs, (ii) ever asserted in any action, arbitration or other proceeding that has been, or
in the future is brought in any federal, state or foreign court, tribunal, forum or proceeding by the
BLMIS Trustee, anyone or more of the Funds, or any trustee, liquidator or other individual or
entity acting on behalf of one or more of the Funds, and (iii) ever asserted in any action,
arbitration or other proceeding that has been, or in the future is brought in any federal, state or
foreign court, tribunal, forum or proceeding by any Opt-Out who brought a separate civil action
prior to August 3, 2012 in a United States District Court against one or more of the SCAC
Defendants and such separate civil action was not consolidated with the Action under Master
File No. 09-cv-0118(VM) (S.D.N.Y.) as of August 3, 2012.
bb. "Other Claims Effective Date" means the date of completion of the
following in each and every legal action commenced on or before June 15,2016 and asserting or
13
involving any of the Other Claims: entry of an order of final judgment and exhaustion of all
possible appeals, meaning (i) if no appeal is filed, ten (10) days after the date of expiration of any
time for appeal or review of the final judgment; and (ii) if an appeal is filed, ten (10) days after
the date the appeal or request for review is dismissed, or the final judgment is upheld on appeal
or review in all material respects, and is not subject to further review on appeal or by certiorari or
otherwise. In the event that the Other Claims Effective Date has not occurred as of June 15,
2016, counsel for the Settling Parties will negotiate in good faith to determine whether any part
of the Escrow Fund may be released to the Settlement Fund, notwithstanding the pendency of
Other Claims. The FG Defendants represent and warrant that they will act in good faith in
defending or seeking to resolve any Other Claim.
cc. "Person" means individual, corporation, fund, limited liability corporation,
professional corporation, limited liability partnership, partnership, limited partnership
association, joint stock company, estate, legal representative, trust, unincorporated association,
government or any political subdivision or agency thereof, and any business or legal entity and
their spouses, heirs, predecessors, successors, representatives, or assigns.
dd. "Plaintiffs' Counsel" means Plaintiffs' Lead Counsel and such other
plaintiffs' counsel who have filed actions consolidated into the SCAC.
ee. "Plaintiffs' Lead Counsel" means Boies, Schiller & Flexner LLP, Wolf
Popper LLP, and Lovell Stewart Halebian Jacobson LLP.
ff. "Plan of Allocation" means a plan or formula for allocating the Settlement
Fund and Escrow Fund to Authorized Claimants after payment of Administrative Expenses,
Taxes and Tax Expenses, and such attorneys' fees, costs and expenses as may be awarded by the
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Court. Any Plan of Allocation is not a condition to the effectiveness of this Stipulation, and the
Released Parties shall have no responsibility or liability with respect thereto.
gg. "Preliminary Approval Order" means the proposed order preliminarily
approving the Settlement and directing notice thereof to the Settlement Class substantially in the
form attached hereto as Exhibit A.
hh. "Proof of Claim" means the Proof of Claim to be submitted by Claimants,
substantially in the form attached as Exhibit A-3.
ii. "Qualified Expense" means any amount an FG Defendant is found liable
for (or agrees to pay pursuant to a settlement) on, arising out of, resulting from, relating to or in
connection with any Other Claim.
jj. "Qualifying Cash Amount" means the amount by which the cash
collectively agreed to be paid by FGL and FGBL pursuant to a Qualifying Settlement exceeds
$50,125,000 (fifty million one hundred twenty five thousand dollars).
kk. "Qualifying Settlement" means any settlement between or among FGL
and/or FGBL on the one hand, and the BLMIS Trustee on the other hand, pursuant to which FGL
and/or FGBL individually or collectively agree to pay the BLMIS Trustee a cash amount greater
than $50,125,000 (fifty million one hundred twenty five thousand dollars).
11. "Released Claims" means any and all Claims, including Unknown Claims,
that have been, could have been, or in the future can or might be asserted in any federal, state or
foreign court, tribunal, forum or proceeding by on or behalf of any of the Releasing Parties
against anyone or more of the Released Parties, whether any such Released Parties were named,
served with process, or appeared in the Action, which have arisen, could have arisen, arise now,
or hereafter arise out of or relate in any manner to the allegations, facts, events, matters, acts,
15
occurrences, statements, representations, misrepresentations, omissions, or any other matter,
thing or cause whatsoever, or any series thereof, embraced, involved, or set forth in, or referred
to or otherwise related in any way, directly or indirectly, to: (i) the Action, (ii) marketing and/or
selling of the Funds by one or more of the FG Defendants and/or the Released Parties, (iii)
disclosures or failures to disclose, by one or more of the FG Defendants and/or the Released
Parties, with respect to one or more of the Funds and/or the FG Defendants and/or BLMIS, (iv)
fiduciary obligations of one or more of the FG Defendants and/or the Released Parties related to
the marketing and/or selling of the Funds (v) due diligence of one or more of the FG Defendants
and/or the Released Parties related to the Funds and/or BLMIS, (vi) purchases of, sales of (or
decisions not to sell), or fees paid in relation to, direct or indirect investments in one or more of
the Funds, (vii) any direct or indirect investment in BLMIS, or (viii) any claims in connection
with, based upon, arising out of, or relating to the Settlement (but excluding any claims to
enforce the terms of the Settlement).
mm. "Released Parties" means (i) each of the FG Entity Defendants, their
respective past, present and future, direct or indirect, parent entities, associates, affiliates, and
subsidiaries, each and all of their respective past, present, and future directors, officers, partners,
alleged partners, stockholders, predecessors, successors and employees, and in their capacity as
such, each and all of their attorneys, advisors, consultants, trustees, insurers, co-insurers,
reinsurers, representatives, and assigns; (ii) each of the FG Individual Defendants and their
respective present, past and future spouses, parents, siblings, children, grandparents, and
grandchildren, the present, past and future spouses of their respective parents, siblings and
children, and the present, past and future parents and siblings of their respective spouses,
including step and adoptive relationships; (iii) any and all persons, firms, trusts, corporations,
16
and other entities in which any of the FG Defendants has a financial interest or was a founder,
settler or creator of the entity, and, in their capacity as such, any and all officers, directors,
employees, trustees, beneficiaries, settlers, creators, attorneys, consultants, agents, or
representatives of any such person, firm, trust, corporation or other entity; and (iv) in their
capacity as such, the legal representatives, heirs, executors, administrators, predecessors,
successors, predecessors-in-interest,
successors-in-interest,
and assigns of any of the foregoing.
For avoidance of doubt, "Released Parties" does not include the Funds, or auditors, custodians or
fund administrators, in their capacity as such, including without limitation
PricewaterhouseCoopers
International Limited, PricewaterhouseCoopers
LLP,
PricewaterhouseCoopers
Accountants Netherlands N.V, Citco Fund Services (Europe) B.V,
Citco (Canada) Inc., Citco Bank Nederland N.V Dublin Branch, Citco Global Custody N.V,
Citco Fund Services (Bermuda) Ltd., The Citco Group Limited, and GlobeOp Financial Services
LLC (the "Service Provider Defendants"), or any of the Service Provider Defendants' respective
directors, officers, agents, employees or partners in their capacity as such.
nn.
"Releasing Parties" means the Representative Plaintiffs, each and every
member of the Settlement Class and each of their respective predecessors, successors, assigns,
attorneys, heirs, representatives, administrators, executors, devisees, legatees, and estates.
00.
"Representative Plaintiffs" means the representative plaintiffs in the
Action, specifically, Pacific West Health Medical Center Employees Retirement Trust, Harel
Insurance Company Ltd., Martin and Shirley Bach Family Trust, Natalia Hatgis, Securities &
Investment Company Bahrain, Dawson Bypass Trust, and St. Stephen's School.
pp. "SCAC" means the Second Consolidated Amended Complaint filed by
the Representative Plaintiffs in the Action on September 29, 2009.
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qq. "SCAC Defendants" means the FG Defendants, Lion Fairfield Capital
Management Ltd., PricewaterhouseCoopers
LLP, PricewaterhouseCoopers
International Limited, PricewaterhouseCoopers
Accountants Netherlands N.V, Citco Fund Services (Europe)
B.V, Citco (Canada) Inc., Citco Bank Nederland N.V Dublin Branch, Citco Global Custody
N.V, Citco Fund Services (Bermuda) Ltd., The Citco Group Limited, Brian Francoeur, Ian
Pilgrim, and GlobeOp Financial Services LLC.
rr. "Settlement" means the settlement contemplated by this Stipulation.
ss. "Settlement Class" means all Persons who were Beneficial Owners of
shares or limited partnership interests in the Funds as of December 10, 2008 (whether as holders
of record or traceable to a shareholder or limited partner account of record) and who suffered a
Net Loss of principal invested in the Funds, excluding (i) Opt-Outs; (ii) any Persons who have
been dismissed from this Action with prejudice; (iii) Fairfield Sigma Limited; (iv) Fairfield
Lambda Limited; and (v) the FG Defendants and any entity in which the FG Defendants have a
controlling interest, and the officers, directors, affiliates, legal representatives, immediate family
members, heirs, successors, subsidiaries and/or assigns of any such individual or entity in their
capacity as such. For the avoidance of doubt, Fairfield Sigma Limited and Fairfield Lambda
Limited are excluded from the Settlement Class because shareholders of those funds are included
as Settlement Class Members to the extent they have suffered a Net Loss of principal in those
funds.
tt. "Settlement Class Member" means anyone of, and "Settlement Class
Members" means all of, the members of the Settlement Class.
uu. "Settlement Hearing" means the hearing at or after which the Court will
make a final decision pursuant to Rule 23 of the Federal Rules of Civil Procedure as to whether
18
the Settlement contained in the Stipulation is fair, reasonable and adequate, and therefore, should
receive final approval from the Court.
vv. "Settling Defendants" means FGL and FGBL.
ww. "Settling Party" means anyone of, and "Settling Parties" means all of,
the parties to the Stipulation, namely FGL, FGBL and the Representative Plaintiffs on behalf of
themselves and the Settlement Class.
xx. "Unknown Claims" shall mean all claims, demands, rights, liabilities, and
causes of action of every nature and description which any Settlement Class Member does not
know or suspect to exist in his, her or its favor at the time of the release of the Released Parties
which, if known by him, her or it, might have affected his, her or its settlement with and release
of the Released Parties, or might have affected his, her or its decision not to opt-out or object to
this Settlement. With respect to any and all Released Claims, the Settling Parties stipulate and
agree that, upon the Effective Date, the Representative Plaintiffs shall expressly waive, and each
of the Settlement Class Members shall be deemed to have waived, and by operation of the Final
Judgment shall have waived, the provisions, rights and benefits of California Civil Code § 1542,
which provides:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.
The Representative Plaintiffs shall expressly waive and each of the Settlement Class Members
shall be deemed to have, and by operation of the Final Judgment shall have, expressly waived
any and all provisions, rights and benefits conferred by any law of any state, territory, foreign
country or principle of common law, which is similar, comparable or equivalent to California
Civil Code § 1542. Settlement Class Members may hereafter discover facts in addition to or
19
different from those which he, she or it now knows or believes to be true with respect to the
subject matter of the Released Claims, but the Representative Plaintiffs shall expressly fully,
finally and forever settle and release, and each Settlement Class Member, upon the Effective
Date, shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally
and forever settled and released, any and all Released Claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist,
or heretofore have existed, upon any theory of law or equity now existing or coming into
existence in the future, including, but not limited to, conduct which is negligent, intentional, with
or without malice, or a breach of fiduciary duty, law or rule, without regard to the subsequent
discovery or existence of such different or additional facts. The Representative Plaintiffs
acknowledge, and the Settlement Class Members shall be deemed by operation of the Final
Judgment to have acknowledged, that the foregoing waiver was separately bargained for and a
key element of the Settlement of which this release is a part.
B. The Settlement Consideration
2.
In consideration for the promises and obligations contained herein and the full
and final release, settlement and discharge of all Released Claims against the Released Parties,
the Settling Parties have agreed to payments, contingent payments and waivers as set forth in
,m
3-7 of this Stipulation, subject to the conditions set forth in this Stipulation.
3.
The Settling Defendants shall payor cause to be paid the Initial Settlement
Amount of $50,250,000 (fifty million two hundred fifty thousand dollars) as follows in this ~ 3
and ~ 4 below. Subject to the terms of the Stipulation, within five (5) business days after the date
on which the Court grants preliminary approval of the Settlement, and provided that Plaintiffs'
Lead Counsel has timely provided complete wire transfer information and instructions, the
20
Settling Defendants shall cause $500,000 (five hundred thousand dollars) of the Initial
Settlement Amount to be deposited into an interest-bearing escrow account mutually agreed
upon by the Settling Parties (the "Account"), under the control of the Escrow Agent, which shall
be used by Plaintiffs' Lead Counselor its designees only to pay Administrative Costs.
4.
Subject to the terms of the Stipulation, and no later than thirty (30) business days
after the date on which the Court grants preliminary approval of the Settlement (the "Settlement
Funding Date"), the Settling Defendants shall cause the remaining $49,750,000 (forty nine
million seven hundred fifty thousand dollars) of the Initial Settlement Amount to be deposited
into the Account, under the control of the Escrow Agent. The Initial Settlement Amount, plus
any funds transferred to the Account pursuant to ~ 7 hereto, and interest earned thereon is
referred to as the "Settlement Fund."
5.
Subject to the terms of the Stipulation, and no later than fourteen (14) business
days prior to the scheduled date of the Settlement Hearing (the "Escrow Fund Funding Date"),
the Settling Defendants shall cause the $30,000,000 (thirty million dollar) Escrow Amount, less
any Qualified Expense reductions as specified in ~ 5(i) below, to be transferred into a separate
interest-bearing escrow account mutually agreed upon by the Settling Parties, under the control
of the Escrow Agent. The Escrow Amount less any Qualified Expense reductions, plus interest
earned thereon, is referred to as the "Escrow Fund".
1.
In the event that any of the FG Defendants incur a Qualified Expense
before the Escrow Funding Date, the Escrow Amount shall be reduced by seventy-five percent
(75%) of all Qualified Expenses incurred before the Escrow Fund Funding Date, up to the point
at which seventy-five (75%) of all such Qualified Expenses equals $30,000,000 (thirty million
21
dollars), at which point the Settling Defendants shall not be required to cause the transfer of any
amount into the Escrow Fund.
6.
Subject to the conditions set forth herein, the Settling Defendants agree to waive,
and by operation of the Final Judgment shall have waived, (i) indemnification claims they hold
against the Funds for the amounts paid under this Stipulation, and (ii) $20,000,000 (twenty
million dollars) of indemnification claims they hold against the Funds for legal fees and expenses
incurred by the Settling Defendants in defending the Action.
7.
In the event of a Qualifying Settlement, and only in the event of a Qualifying
Settlement, no later than thirty (30) business days after the date of the Qualifying Settlement, the
Settling Defendants shall cause the Augmented Settlement Amount up to $5,000,000 to be
deposited into the Account.
8.
Apart from the payments, contingent payments and waivers identified in ~~ 3-7
above and the break-up fee identified in ~ 47 below, the FG Defendants shall have no further
monetary obligation to Plaintiffs' Counsel, the Representative Plaintiffs or the Settlement Class
under this Settlement.
C. Representations and Warranties Regarding the Settlement Consideration
9.
The Settling Parties understand and acknowledge that payments to the
Settlement Fund and Escrow Fund by the Settling Defendants as set forth herein shall be treated
as a return of fees previously paid to FGL, FGBL or related entities for services provided.
10.
The Settling Defendants warrant that each of the FG Individual Defendants has
agreed to contribute amounts to the Settling Defendants to facilitate the payment of the Initial
Settlement Amount by the Settling Defendants and the Founding Shareholders also have agreed
to contribute amounts to the Settling Defendants to facilitate payment of the Escrow Amount. In
22
the event that an FG Individual Defendant does not in fact contribute to either of the Settling
Defendants to facilitate the payment of the Initial Settlement Amount (a "Non-Contributing
Individual Defendant"), the Settling Defendants shall notify Plaintiffs' Lead Counsel and the
Court in advance of the Settlement Hearing and the Non-Contributing Individual Defendant shall
remain a defendant in the Action and shall not obtain the dismissal or release provided for in
,m
24 and 26 of this Stipulation.
11.
The Settling Defendants warrant as to themselves that they are not insolvent nor
will the payments contemplated herein render them insolvent within the meaning and/or for the
purposes of the United States Bankruptcy Code, including §101 and §547 thereof. The Settling
Defendants also warrant that to the best of their knowledge the FG Individual Defendants are not
insolvent nor will the payments contemplated in ~ 10 hereof render any of them insolvent within
the meaning and/or for the purposes of the United States Bankruptcy Code, including §IOI and
§547 thereof.
In the event a third-party successfully claws back monies from the Settlement
Fund or Escrow Fund (the "Clawed Back Amount") on account of the insolvency of any FG
Defendant ("the Insolvent Defendant"), notwithstanding anything to the contrary in the
Stipulation or any other order in connection with the Settlement, the Settlement Class will have a
claim against the Insolvent Defendant in an amount not to exceed the amount of the Insolvent
Defendant's settlement contribution included in the Clawed Back Amount. The warranties and
representations made in this ~ 11 are made by the Settling Defendants individually, and not by
FGL/FGBL Counsel.
12.
Plaintiffs' Lead Counsel acknowledge that they received certain confidential
information regarding each of the FG Individual Defendants' finances prior to executing this
Stipulation. If, prior to the earlier of the Effective Date or July 1, 2013 it is determined that any
23
FG Individual Defendant's net worth was materially greater than disclosed to Plaintiffs' Lead
Counsel as of the applicable date of such representations, then the Representative Plaintiffs may,
at their sole and absolute discretion, revoke the releases provided for in
,m 24 and 26 of this
Stipulation (the "Net Worth Option") with respect to any such FG Individual Defendant (the
"Excluded Defendant").
In the event the Representative Plaintiffs elect to exercise the Net
Worth Option, Plaintiffs' Lead Counsel shall notify the Excluded Defendant, FGLIFGBL
Counsel and the Court, and the Initial Settlement Amount and Escrow Amount shall be reduced
by an amount equal to the settlement contribution made or to be made by the Excluded
Defendant pursuant to ~ 10 of this Stipulation, and if already paid in, such amounts shall be
promptly returned by the Escrow Agent (pursuant to written instructions from counsel pursuant
to this Stipulation) to FGL and/or FGBL, which shall in turn promptly return such amounts to the
Excluded Defendant.
D. Handling and Disbursement Of Funds By The Escrow Agent
13.
No monies will be disbursed from the Settlement Fund until after the Effective
Date except:
1.
11.
As provided in ~ 12 above, if applicable;
As provided in ~ 17 below;
111.
As provided in ~~ 41 and 51 below, if applicable; and
IV.
To pay Taxes and Tax Expenses (as defined in ~ 19 below) on the
income earned by the Settlement Fund. Taxes and Tax Expenses shall be paid out of the
Settlement Fund and shall be considered to be a cost of administration of the Settlement and shall
be timely paid by the Escrow Agent (pursuant to written instructions from counsel pursuant to
this Stipulation) without prior Order of the Court.
24
14.
No monies or security interests in assets will be disbursed from the Escrow Fund
until after the Other Claims Effective Date except:
1.
11.
As provided in ~ 12 above, if applicable;
As provided in ~ 18 below;
111.
As provided in ~~ 41 and 51 below, if applicable; and
IV.
To pay Taxes and Tax Expenses (as defined in ~ 19 below) on the
income earned by the Escrow Fund. Taxes and Tax Expenses shall be paid out of the Escrow
Fund and shall be considered to be a cost of administration of the Settlement and shall be timely
paid by the Escrow Agent (pursuant to written instructions from counsel pursuant to this
Stipulation) without prior Order of the Court.
15.
The Escrow Agent (pursuant to written instructions from counsel pursuant to this
Stipulation) shall invest any funds (other than security interests in assets) deposited into the
Settlement Fund and Escrow Fund in short term instruments backed by the full faith and credit of
the United States Government or fully insured by the United States Government or an agency
thereof, and shall reinvest the proceeds of these instruments as they mature in similar instruments
at their then-current market rates.
16.
The Escrow Agent shall not disburse the Settlement Fund or Escrow Fund
except as provided in this Stipulation, by an order of the Court, or with the written agreement of
counsel for all of the Settling Parties pursuant to this Stipulation.
17.
At any time after the Court grants preliminary approval of the Settlement, the
Escrow Agent may, without further approval from FGL, FGBL or the Court, disburse at the
direction of Plaintiffs' Lead Counsel up to $500,000 (five hundred thousand dollars) from the
Settlement Fund prior to the Effective Date to pay the Administrative Costs, including, without
25
limitation: escrow agent costs, the costs of publishing summary notice, and printing and mailing
the full Notice and Proof of Claim, as directed by the Court.
18.
In the event that any of the FG Defendants incur a Qualified Expense, the
Escrow Agent shall return from the Escrow Fund an amount equal to seventy-five percent (75%)
of such Qualified Expense to FGL or FGBL, and only FGL or FGBL, until the Escrow Fund is
exhausted, promptly upon the Escrow Agent's receipt of a certified letter or comparable notice
from FGLlFGBL Counsel stating that a Qualified Expense has been incurred and specifying the
amount of the Qualified Expense and the entity to be paid, in the same manner that an escrow
agent provides payment on a letter of credit once the agent has received the appropriate notice.
E. Taxes
19.
The Settling Parties agree to treat the Settlement Fund and the Escrow Fund as
being at all times a "qualified settlement fund" within the meaning of Treasury Regulation §
1.468B-I. In addition, Plaintiffs' Lead Counselor its designee shall timely make such elections
as necessary or advisable to carry out the provisions of this ~ 19, including the "relation-back
election" (as defined in Treasury Regulation § 1.468B-l) back to the earliest permitted date.
Such elections shall be made in compliance with the procedures and requirements contained in
such regulations. It shall be the responsibility of Plaintiffs' Lead Counselor its designee to
timely and properly prepare and deliver the necessary documentation for signature by all
necessary parties, and thereafter to cause the appropriate filing to occur.
1.
For purposes of § 468B of the Internal Revenue Code of 1986, as
amended, and Treasury Regulation § 1.468B-2(k)(3) promulgated thereunder, the
"administrator" shall be the Plaintiffs' Lead Counselor its designee. Plaintiffs' Lead Counselor
is designee shall timely and properly file all informational and other tax returns necessary or
26
advisable with respect to the Settlement Fund and Escrow Fund (including without limitation the
returns described in Treasury Regulation
§ 1.468B-2(k)).
Such returns (as well as the election
described in this ~ 19) shall be consistent with this ~ 19 and in all events shall reflect that all
Taxes (including any estimated Taxes, interest or penalties) on the income earned by the
Settlement Fund and Escrow Fund shall be paid out of the Settlement Fund and Escrow Fund as
provided in ~ 19(ii) hereof.
11.
All Taxes (including any estimated Taxes, interest or penalties) arising
with respect to the income earned by the Settlement Fund or the Escrow Fund, including any
Taxes or tax detriments that may be imposed upon the Settling Defendants or their counsel with
respect to any income earned by the Settlement Fund or Escrow Fund for any period during
which the Settlement Fund or Escrow Fund does not qualify as a "qualified settlement fund" for
federal or state income tax purposes ("Taxes"), and expenses and costs incurred in connection
with the operation and implementation of this ~ 19 (including, without limitation, expenses of tax
attorneys and/or accountants and mailing and distribution costs and expenses or penalties relating
to filing (or failing to file) the returns described in this ~ 19) ("Tax Expenses"), shall be paid out
of the Settlement Fund or Escrow Fund, as appropriate. The Settling Defendants and their
counsel shall have no liability or responsibility for the Taxes or the Tax Expenses. Taxes and
Tax Expenses shall be treated as, and considered to be, a cost of administration of the Settlement
and shall be timely paid out of the Settlement Fund and Escrow Fund without prior order from
the Court. The Escrow Agent (pursuant to written instructions from counsel pursuant to this
Stipulation) shall be obligated (notwithstanding anything herein to the contrary) to withhold from
distribution to Authorized Claimants any funds necessary to pay such amounts, including the
establishment of adequate reserves for any Taxes and Tax Expenses (as well as any amounts that
27
may be withheld under Treasury Regulation § I.468B-2(1)(2)). Neither the Settling Defendants
nor their counsel is responsible therefore nor shall they have any liability with respect thereto.
The Settling Parties agree to cooperate with each other, and their tax attorneys and accountants,
to the extent reasonably necessary to carry out the provisions of this ~ 19.
F. Preliminary Approval Order, Notice Order, and Settlement Hearing
20.
Promptly after the execution of this Stipulation, Plaintiffs' Lead Counsel shall
submit this Stipulation and its exhibits to the Court and shall apply for preliminary approval of
the Settlement set forth in this Stipulation, entry of a preliminary approval order, and approval
for the mailing and dissemination of notice, substantially in the form of Exhibits A, A-I, A-2,
and A-3. The mailed Notice (Exhibit A-I) shall include the general terms of the Settlement and
the provisions of the Plan of Allocation, and shall set forth the procedure by which recipients of
the Notice may object to the Settlement or the Plan of Allocation or request to be excluded from
the Settlement Class. The date and time of the Settlement Hearing shall be added to the Notice
before it is mailed or otherwise provided to Settlement Class Members.
21.
To assist in dissemination of notice, the Settling Defendants, at their own
expense, will cooperate in providing names and contact information of the Settlement Class
Members and their nominees or custodians in their possession and will use best reasonable
efforts to assist Plaintiffs' Lead Counsel in obtaining such information from other sources.
22.
At the time of the submission described in ~ 20 hereof, the Settling Parties,
through their counsel, shall jointly request that, after the Notice is provided, the Court hold the
Settlement Hearing and approve the Settlement as set forth herein as promptly after the
Settlement Hearing as possible, except to the extent a Settling Party has exercised the right to
terminate the Settlement pursuant to ~ 43 or ~ 47.
28
23.
The Court, in its discretion, may order that the notice of the Settlement be
combined with the required notice of any class certified by the Court with respect to claims
against other SCAC Defendants.
G. Releases
24.
Upon the Effective Date, as defined in ~ 1(1)hereof, the Releasing Parties, on
behalf of themselves, their successors and assigns, and any other Person claiming (now or in the
future) through or on behalf of them, regardless of whether any such Releasing Party ever seeks
or obtains by any means, including without limitation by submitting a Proof of Claim, any
disbursement from the Settlement Fund or Escrow Fund, shall be deemed to have, and by
operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and
discharged all Released Claims against the Released Parties and shall have covenanted not to sue
the Released Parties with respect to all such Released Claims, and shall be permanently barred
and enjoined from asserting, commencing, prosecuting, instituting, assisting, instigating, or in
any way participating in the commencement or prosecution of any action or other proceeding, in
any forum, asserting any Released Claim, either directly, representatively, derivatively, or in any
other capacity, against any of the Released Parties. Nothing contained herein shall, however, bar
the Releasing Parties from bringing any action or claim to enforce the terms of this Stipulation or
the Final Judgment.
25.
Upon the Effective Date, as defined in ~ 1(1)hereof, the Released Parties, on
behalf of themselves, their heirs, executors, predecessors, successors and assigns, shall be
deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever
released, relinquished, and discharged each and all of the Representative Plaintiffs, Settlement
Class Members and Plaintiffs' Counsel from all Claims which arise out of, concern or relate to
29
the institution, prosecution, settlement or dismissal of the Action (the "FG Defendant Released
Claims"), and shall be permanently enjoined from prosecuting the FG Defendant Released
Claims against the Representative Plaintiffs, Settlement Class Members and Plaintiffs' Counsel.
The FG Defendants hereby represent and warrant that they are not aware of any claims that they
have or may have against the Representative Plaintiffs, the Named Plaintiffs, Plaintiffs' Counsel
or a Settlement Class Member (or nominee) that are not released by virtue of this ~ 25. Nothing
contained herein shall, however, bar the FG Defendants from bringing any action or claim to
enforce the terms of this Stipulation or the Final Judgment.
26.
To the fullest extent permitted by law, all Persons, including without limitation
the Non-Dismissed Defendants, shall be permanently enjoined, barred and restrained from
bringing, commencing, prosecuting or asserting any claims, actions, or causes of action for
contribution, indemnity or otherwise against any of the Released Parties seeking as damages or
otherwise the recovery of all or any part of any liability, judgment or settlement which they pay
or are obligated to payor agree to pay to the Settlement Class or any Settlement Class Member
arising out of, relating to or concerning such Persons' participation in any acts, facts, statements
or omissions that were or could have been alleged in the Action, whether arising under state,
federal or foreign law as claims, cross-claims, counterclaims, third-party claims or otherwise, in
the Court or any other federal, state, or foreign court, or in any arbitration proceeding,
administrative agency proceeding, tribunal, or any other proceeding or forum. The proposed
Final Judgment will include a reciprocal order equal in scope to that contemplated in this ~ 26
enjoining the Released Parties from bringing claims against the Non-Dismissed Defendants.
27.
Any final verdict or judgment that may be obtained by one or more of the
Representative Plaintiffs or one or more of the other Settlement Class Members, whether
30
individually or on behalf of a class, against one or more Non-Dismissed Defendants or other
Person barred from seeking contribution pursuant to this Stipulation (a "Non-Dismissed
Defendant Judgment") shall be reduced, to the extent permitted by applicable law, by the greater
of (i) the amount that corresponds to the percentage of responsibility attributed to the Released
Parties under the Non-Dismissed Defendant Judgment; and (ii) the gross monetary consideration
provided to such Representative Plaintiff or other Settlement Class Member or Members
pursuant to this Stipulation.
H. Administration And Calculation Of Claims, Final Awards And Supervision And
Distribution Of the Settlement Fund
28.
Under the supervision of Plaintiffs' Lead Counsel, acting on behalf of the
Settlement Class, and subject to such supervision and direction of the Court as may be necessary
or as circumstances may require, the Claims Administrator shall administer and calculate the
claims submitted by Settlement Class Members and shall oversee distribution of the Net
Settlement Fund (as defined below), and if applicable the Net Escrow Fund (as defined below),
to Authorized Claimants.
29.
The Settlement Fund shall be applied as follows:
1.
11.
111.
To pay the Taxes and Tax Expenses described in ~ 19 above;
To pay Administrative Costs;
To pay the Settling Defendants pursuant to ~~ 12 and 41 hereof in the
event the Representative Plaintiffs exercise either the Net Worth Option or the Discovery Option.
IV.
To pay Plaintiffs' Counsel's attorneys fees and expenses and the
Representative Plaintiffs' actual out of pocket expenses relating to the representation of the
putative class (including lost wages) and, if appropriate, an incentive award as provided in ~ 34
and 35 hereof (the "Fee and Expense Award"), to the extent allowed by the Court; and
31
v.
To distribute the balance of the Settlement Fund, that is, the Settlement
Fund less the items set forth in ~ 29(i), (ii), (iii) and (iv) hereof (the "Net Settlement Fund"), to
the Authorized Claimants as allowed by this Stipulation, the Plan of Allocation, or the Court.
30.
The Escrow Fund shall be applied as follows:
1.
11.
To pay Taxes and Tax Expenses described in ~ 19 above;
To reimburse the Settling Defendants for Qualified Expenses as
provided in ~ 18 above;
111.
To pay the Settling Defendants pursuant to ~~ 12 and 41 hereof in the
event the Representative Plaintiffs exercise either the Net Worth Option or the Discovery Option.
IV.
To pay Plaintiffs' Counsel an additional Fee and Expense Award to
the extent allowed by the Court; and
v.
To distribute the balance of the Escrow Fund, that is, the Escrow Fund
less the items set forth in ~ 30(i), (ii), (iii) and (iv) hereof (the "Net Escrow Fund"), to the
Authorized Claimants as allowed by this Stipulation, the Plan of Allocation, or the Court.
31.
Upon and after the Effective Date with respect to the Net Settlement Fund, and
upon and after the Other Claims Effective Date with respect to the Net Escrow Fund, and in
accordance with the terms of the Plan of Allocation or such further approval and further order(s)
of the Court as may be necessary or as circumstances may require, the Net Settlement Fund and
Net Escrow Fund shall be distributed to Authorized Claimants subject to and in accordance with
the Plan of Allocation set forth in the Notice.
32.
This is not a claims-made settlement, and if all conditions of the Stipulation are
satisfied and the Final Judgment becomes Final, no portion of the Settlement Fund will be
returned to the Settling Defendants. Neither the Settling Defendants nor their counsel shall have
32
any responsibility for, interest in, or liability whatsoever with respect to the investment or
distribution of the Net Settlement Fund, the Net Escrow Fund, the Plan of Allocation, the
determination, administration, or calculation of claims, the payment or withholding of Taxes or
Tax Expenses, or any losses incurred in connection therewith. No Person shall have any claims
against Plaintiffs' Counsel, the Claims Administrator or any other agent designated by Plaintiffs'
Counsel based on distribution determinations or claim rejections made substantially in
accordance with this Stipulation and the Settlement contained herein, the Plan of Allocation, or
orders of the Court.
33.
It is understood and agreed by the Settling Parties that any proposed Plan of
Allocation of the Net Settlement Fund and Net Escrow Fund including, but not limited to, any
adjustments to an Authorized Claimant's claim set forth therein, is not a condition of this
Stipulation and is to be considered by the Court separately from the Court's consideration of the
fairness, reasonableness, and adequacy of the Settlement set forth in this Stipulation. Any order
or proceedings relating to the Plan of Allocation, or any appeal from any order relating thereto or
reversal or modification thereof, shall not operate to modify, terminate or cancel this Stipulation,
or affect or delay the finality of the Final Judgment, or any other orders entered pursuant to this
Stipulation.
I. Plaintiffs' Counsel's Attorneys' Fees And Reimbursement of Expenses
34.
Plaintiffs' Lead Counsel may submit an application or applications (the "Fee and
Expense Application") for distributions from the Settlement Fund to Plaintiffs' Lead Counsel
and other firms that have participated in the Action on behalf of the Settlement Class Members
for (i) an award of attorneys' fees; (ii) reimbursement of actual costs and expenses, including the
fees and expenses of experts and/or consultants, incurred in connection with prosecuting the
33
Action as against the FG Defendants; and (iii) reimbursement to the Representative Plaintiffs of
their actual out of pocket expenses (including lost wages) and, if appropriate, an incentive award.
35.
The attorneys' fees and expenses, including the fees and expenses of experts,
consultants and/or the Representative Plaintiffs, as awarded by the Court, shall be paid to
Plaintiffs' Lead Counsel (on behalf of all Plaintiffs' Counsel and the Representative Plaintiffs)
from the Settlement Fund, as ordered, on or after the Effective Date, together with interest
accrued on such amount from the date of such order to the date of payment at the same rate as
earned on the Settlement Fund.
36.
The procedure for, and allowance or disallowance by the Court of, any
application by Plaintiffs' Lead Counselor the Representative Plaintiffs for attorneys' fees and
expenses, including the fees and expenses of experts and/or consultants, are not a condition of
the Settlement set forth in this Stipulation and are to be considered by the Court separately from
the Court's consideration of the fairness, reasonableness, and adequacy of the Settlement set
forth in this Stipulation. Any order of or proceedings relating to the Fee and Expense
Application, or any appeal from any order relating thereto or reversal or modification thereof,
shall not operate to modify, terminate or cancel this Stipulation, or affect or delay the finality of
the Final Judgment or any other orders entered pursuant to this Stipulation.
37.
Any award of attorneys' fees and/or expenses shall be paid solely from the
Settlement Fund and shall reduce the settlement consideration paid to the Settlement Class
accordingly. The Released Parties shall have no responsibility for, and no liability whatsoever
with respect to, any payments to Plaintiffs' Lead Counselor any other plaintiffs' counselor the
Representative Plaintiffs and/or any other Person who receives payment from the Settlement
Fund.
34
J. Class Certification
38.
In the Final Judgment, the Settlement Class shall be certified for purposes of this
Settlement, but in the event that the Final Judgment does not become Final or the Settlement fails
to become effective for any reason, all Settling Parties reserve all their rights on all issues,
including whether a class should be certified in the Action. For settlement purposes only, in
connection with the Final Judgment, the Settling Defendants shall consent to (i) the appointment
of Representative Plaintiffs as the class representatives, (ii) the appointment of Plaintiffs' Lead
Counsel as class counsel, and (iii) the certification of the Settlement Class pursuant to Rules
23(a) and (b)(3) of the Federal Rules of Civil Procedure.
K. Continuing Discovery Obligations
39.
Except as provided in ~~ 40 and 41 below, the Settling Parties agree to stay the
litigation of claims and related discovery in the Action as against the FG Defendants pending the
occurrence of the Effective Date.
40.
Pending the occurrence of the Effective Date, the Settling Parties agree that the
FG Defendants shall have a continuing obligation to participate in discovery in the Action (other
than the discovery stayed pursuant ~ 39 above). In the event the Stipulation is terminated or the
Settlement fails to become effective for any reason, the FG Defendants shall not object to the use
or introduction of such discovery, or seek to retake such discovery, on the grounds that they did
not have the opportunity to participate. For the avoidance of doubt, Plaintiffs' Lead Counsel
shall have the right to question FG Defendants or persons affiliated with FG Defendants whose
depositions are noticed in the Action by Non-Dismissed Defendants.
41.
Upon the reasonable request of Plaintiffs' Lead Counsel, the Settling Defendants
will exercise reasonable best efforts to bring about the FG Individual Defendants' cooperation in
35
providing trial testimony (in person or by deposition) in the Action, whether or not the FG
Individual Defendant is within the subpoena power of the Court, provided that any such
deposition shall be taken only where such FG Individual Defendant resides. If an FG Individual
Defendant refuses to testify at the trial and declines to submit to a deposition despite a reasonable
request of Plaintiffs' Lead Counsel (a "Discovery Refusal"), then the Representative Plaintiffs
may, at their sole and absolute discretion, revoke the releases provided in ~~ 24 and 26 of this
Stipulation (the "Discovery Option") with respect to any such FG Individual Defendant (the
"Revoked Defendant") such that he or she shall remain a defendant in the Action, shall no longer
be deemed a third-party beneficiary of the Stipulation and shall not obtain the dismissal or
release provided for herein, or in the alternative, may request the Court to enforce the terms of
this paragraph. In the event the Representative Plaintiffs exercise the Discovery Option,
Plaintiffs' Lead Counsel shall notify the Revoked Defendant, FGLIFGBL Counsel and the Court,
and the Initial Settlement Amount and Escrow Amount shall be reduced by an amount equal to
the settlement contribution made or to be made by the Revoked Defendant pursuant to ~ 10 of
this Stipulation, and if already paid in, such amounts shall be promptly returned by the Escrow
Agent (pursuant to written instructions from counsel pursuant to this Stipulation) to FGL and/or
FGBL, which shall in turn promptly return such amounts to the Revoked Defendant. The Court
shall retain jurisdiction over the Settling Defendants for purposes of enforcing this paragraph.
42.
Except as provided in ~ 39, nothing in this Stipulation shall limit Plaintiffs'
rights under law to subpoena or otherwise seek discovery from any Person, including the FG
Individual Defendants.
36
L. Conditions Of Settlement, Effect of Disapproval, Cancellation or Termination
43.
The Representative Plaintiffs, on behalf of the Settlement Class, or the Settling
Defendants shall have the right to terminate the Settlement and Stipulation by providing written
notice of their election to do so ("Termination Notice") to all other Settling Parties within thirty
(30) days of: (i) entry of a Court order declining to enter the Preliminary Approval Order in any
material respect; (ii) entry of a Court order refusing to approve this Stipulation in any material
respect; (iii) entry of a Court order declining to enter the Final Judgment in any material respect;
or (iv) entry of an order by which the Final Judgment is modified or reversed in any material
respect by the Court, the Court of Appeals or the United States Supreme Court.
44.
The Effective Date of this Stipulation shall not occur unless and until each of the
following events occurs and shall be the date upon which the last (in time) of the following
events occurs:
1.
The Settling Parties have not exercised their respective rights to
terminate the Settlement as provided in ~~ 43 or 47 hereof, and the time to exercise those rights
has expired;
11.
The Court has entered the Preliminary Approval Order attached hereto
as Exhibit A or an order containing materially the same terms;
111.
The Court has approved the Settlement, following notice to the
Settlement Class and the Settlement Hearing, and has entered the Final Judgment; and
IV.
45.
The Final Judgment has become Final as defined in ~ Al(q).
Upon the occurrence of the Effective Date, any and all interest or right of the FG
Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished,
except as set forth in this Stipulation. At the occurrence of the Effective Date, Simpson Thacher
37
& Bartlett LLP shall no longer have joint control of the Escrow Agent with respect to the
Settlement Fund.
46.
Upon the occurrence of the Other Claims Effective Date, any and all interest or
right of the FG Defendants in or to the Escrow Fund, if any, shall be absolutely and forever
extinguished, provided the Escrow Agent has satisfied all Qualified Expenses submitted prior to
the Other Claims Effective Date as provided in ~ 18 hereof. At the occurrence of the Other
Claims Effective Date, and following the reimbursement of all Qualified Expenses as provided in
~ 18 hereof, Simpson Thacher & Bartlett LLP shall no longer have joint control of the Escrow
Agent with respect to the Escrow Fund.
47.
If the aggregate Net Loss of Opt-Outs exceeds the threshold specified in a
separate "Supplemental Agreement" between the Settling Parties, then the Settling Defendants
shall have, in their sole and absolute discretion, the option to terminate this Stipulation and to
render the Settlement null and void in accordance with the procedures set forth in the
Supplemental Agreement. In the event the Settling Defendants elect to terminate the Stipulation
under this ~ 47 where the Net Loss of Opt-Outs does not exceed a separate threshold specified in
the Supplemental Agreement, the Settling Defendants shall incur a break-up fee in the amount of
$1,000,000 (one million dollars) which shall not be returned to the Settling Defendants and shall
remain in the Settlement Fund (the "Break-Up Fee") subject to order of the Court. The
Supplemental Agreement will not be filed with any court unless and until a dispute among the
Settling Parties concerning its interpretation and application arises, or unless the Court requires,
and in either event any Settling Party may seek to have the Supplemental Agreement filed under
seal, which application shall not be opposed by any other Settling Party.
38
48.
If some or all of the conditions specified in ~ 44 above are not met, or in the
event that this Stipulation is not approved by the Court, or the Settlement set forth in this
Stipulation is terminated or fails to become effective in accordance with its terms, then this
Stipulation shall be canceled and terminated, unless all of the Settling Parties agree in writing to
proceed with this Stipulation. None of the Settling Parties, or any of them, shall have any
obligation whatsoever to proceed under any terms other than those provided for and agreed
herein. If any Settling Party engages in a material breach of the terms hereof, any other Settling
Party, provided that it is in substantial compliance with the terms of this Stipulation, may
terminate this Stipulation on notice to all the Settling Parties.
49.
In the event the Stipulation shall terminate, or be canceled, or shall not become
effective for any reason, the Settling Parties and the FG Defendants shall be restored to their
respective positions in the Action immediately prior to August 3,2012, and they shall proceed in
all respects as if the Stipulation had not been executed and the related orders had not been
entered, and in that event all of their respective claims and defenses as to any issue in the Action
shall be preserved without prejudice.
50.
In the event that the Stipulation is not approved by the Court or the Settlement
set forth in this Stipulation is terminated or fails to become effective in accordance with its
terms, the terms and provisions of this Stipulation, except as otherwise provided herein, shall
have no further force and effect with respect to the Settling Parties or FG Defendants and shall
not be used in this Action or in any other proceeding for any purpose, and any judgment or order
entered by the Court in accordance with the terms of this Stipulation shall be treated as vacated,
nunc pro tunc.
39
51.
In the event the Stipulation shall be terminated, or be canceled, or shall not
become effective for any reason, within seven (7) business days (except as otherwise provided in
the Supplemental Agreement) after the occurrence of such event, the Settlement Fund and the
Escrow Fund, less taxes, any Administrative Costs which have either been disbursed or are
determined to be chargeable, and any applicable Break-Up Fee, shall be refunded by the Escrow
Agent to the Settling Defendants (pursuant to written instructions from counsel pursuant to this
Stipulation) and any security interest(s) in assets pledged to the Escrow Fund shall be terminated.
At the request of counsel for the Settling Defendants, Plaintiffs' Lead Counselor its designee
shall apply for any tax refund owed on the Settlement Fund or the Escrow Fund and pay the
proceeds, after deduction of any fees or expenses incurred in connection with such application(s)
for refund, pursuant to written direction from the Settling Defendants.
52.
No order of the Court or modification or reversal on appeal of any order of the
Court concerning the Plan of Allocation, ~~ 26 and 27 hereof, or the amount of any attorneys'
fees, costs, expenses, and interest awarded by the Court to Plaintiffs' Counsel shall constitute
grounds for cancellation or termination of the Stipulation.
M. Miscellaneous Provisions
53.
The headings herein are used for the purpose of convenience only and are not
meant to have legal effect.
54.
Each of the attorneys executing this Stipulation, any of its exhibits, or any
related settlement documents on behalf of any Settling Party hereto hereby warrants and
represents that he or she has been duly empowered and authorized to do so by the Settling Parties
he or she represents. In addition, the Settling Defendants warrant and represent that they have
40
been duly empowered and authorized by each of the FG Defendants to agree to and execute this
Stipulation to the extent it applies to them.
55.
This Stipulation, together with the Supplemental Agreement, constitute the
entire agreement between the Settling Parties and supersede any prior agreements. No
representations, warranties or inducements have been made to or relied upon by any Settling
Party concerning this Stipulation, other than the representations, warranties and covenants
expressly set forth herein and in the Supplemental Agreement. Except as otherwise provided
herein, each Settling Party shall bear its own costs.
56.
This Stipulation shall be binding upon, and shall inure to the benefit of, the
Settling Parties and their respective agents, successors, executors, heirs, and assigns.
57.
This Stipulation may be executed in any number of counterparts by any of the
signatories hereto and the transmission of an original signature page electronically (including by
facsimile or portable document format) shall constitute valid execution of the Stipulation as if all
signatories hereto had executed the same document. Copies of this Stipulation executed in
counterpart shall constitute one agreement.
58.
This Stipulation, the Settlement, and any all disputes arising out of or relating in
any way to this Stipulation, whether in contract, tort or otherwise, shall be governed by and
construed in accordance with the laws of the State of New York without regard to conflict of
laws principles.
59.
The Court shall retain jurisdiction with respect to the implementation and
enforcement of the terms of this Stipulation, and all parties hereto submit to the jurisdiction of
the Court for purposes of implementing and enforcing the Settlement embodied in this
Stipulation.
41
60.
This Stipulation may not be modified or amended, nor may any of its provisions
be waived, except by a writing signed by all Settling Parties or their counselor their respective
successors in interest.
61.
The Settling Parties and their counsel represent that they will not encourage or
otherwise influence any Settlement Class Members to request exclusion from, or object to, the
Settlement.
62.
The Settling Parties covenant and agree that neither this Stipulation, nor the fact
nor any terms of the Settlement, nor any communication relating thereto, is evidence, or an
admission or concession by any Settling Party or their counsel, any Settlement Class Member, or
any of the FG Defendants or Released Parties, of any fault, liability or wrongdoing whatsoever,
as to any facts or claims alleged or asserted in the Action, or any other actions or proceedings, or
as to the validity or merit of any of the claims or defenses alleged or asserted in any such action
or proceeding. This Stipulation is not a finding or evidence of the validity or invalidity of any
claims or defenses in the Action, any wrongdoing by any Settling Party, Settlement Class
Member, or any of the FG Defendants or Released Parties, or any damages or injury to any
Settling Party, Settlement Class Member, or any of the FG Defendants or Released Parties.
Neither this Stipulation nor the Supplemental Agreement, nor any of the terms and provisions of
this Stipulation or Supplemental Agreement, nor any of the negotiations or proceedings in
connection therewith, nor any of the documents or statements referred to herein or therein, nor
the Settlement, nor the fact of the Settlement, nor the Settlement proceedings, nor any statement
in connection therewith, (a) shall (i) be argued to be, used or construed as, offered or received in
evidence as, or otherwise constitute an admission, concession, presumption, proof, evidence, or a
finding of any, liability, fault, wrongdoing, injury or damages, or of any wrongful conduct, acts
42
or omissions on the part of any of the FG Defendants or Released Parties, or of any infirmity of
any defense, or of any damages to the Representative Plaintiffs or any other Settlement Class
Member, or (ii) otherwise be used to create or give rise to any inference or presumption against
any of the Released Parties concerning any fact or any purported liability, fault, or wrongdoing
of the Released Parties or any injury or damages to any person or entity, or (b) shall otherwise be
admissible, referred to or used in any proceeding of any nature, for any purpose whatsoever;
provided, however, that the Stipulation or the Supplemental Agreement or the Final Judgment
may be introduced in any proceeding, whether in the Court or otherwise, as may be necessary to
argue and establish that the Stipulation or Supplemental Agreement or Final Judgment has res
judicata, collateral estoppel, or other issue or claim preclusion effect or to otherwise
consummate or enforce the Settlement or Final Judgment, or as otherwise required by law.
63.
The Stipulation shall not be construed more strictly against one Party than
another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel
for one of the Settling Parties, it being recognized that it is the result of arm's-length negotiations
between the Settling Parties, and all Settling Parties have contributed substantially and materially
to the preparation of this Stipulation.
64.
All agreements by, between or among the Settling Parties, their counsel and their
other advisors as to the confidentiality of information exchanged between or among them shall
remain in full force and effect, and shall survive the execution and any termination of this
Stipulation and the final consummation of the Settlement, if finally consummated, without regard
to any of the conditions of the Settlement.
65.
Representative Plaintiffs and Plaintiffs' Lead Counsel represent and warrant that
the Representative Plaintiffs are Settlement Class Members and none of the Representative
43
Plaintiffs' claims or causes of action against one or more FG Defendants in the Action, or
referred to in this Stipulation, or that could have been alleged against one or more FG
Defendants in the Action, have been assigned, encumbered or in any manner transferred in whole
or in part.
66.
The Settling Parties shall not assert or pursue any action, claim or rights that any
party violated any provision of Rule 11 of the Federal Rules of Civil Procedure in connection
with the Action, the Settlement or the Stipulation. The Settling Parties agree that the Action was
resolved in good faith following arm's-length bargaining.
67.
Any failure by any of the Settling Parties to insist upon the strict performance by
any other Settling Party of any of the provisions of the Stipulation shall not be deemed a waiver
of any of the provisions hereof, and such Settling Party, notwithstanding such failure, shall have
the right thereafter to insist upon the strict performance of any and all of the provisions of this
Stipulation to be performed by the other Settling Parties to this Stipulation.
68.
The waiver, express or implied, by any Settling Party of any breach or default by
any other Settling Party in the performance of such Settling Party of its obligations under the
Stipulation shall not be deemed or construed to be a waiver of any other breach, whether prior,
subsequent, or contemporaneous, under this Stipulation.
44
IN WITNESS
WHEREOF,
the Settling Parties have executed this Stipulation by
their undersigned counsel effective as of the date set forth below.
Dated: New York, New York
November 6, 2012
BOIES, SCHILLER & FLEXNER LLP
WOLF POPPER LLP
BY:~
By:/ii (.~
DavId A. Barrett
Howard L. Vickery, II
575 Lexington Avenue
New York, NY 10022
(212) 446-2300
obert C. Fmkel
James A. Harrod
845 Third Avenue
New York, NY 10022
(212) 759-4600
-- and--
LOVELL STEWART HALEBIAN JACOBSON
LLP
Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
401 East Las Olas Blvd., #1200
Ft. Lauderdale, Florida 33301
(954) 356-0011
By:
_
Christopher Lovell
Victor E. Stewart
61 Broadway, Suite 501
New York, NY 10006
(212) 608-1900
Interim Co-Lead Counsel for Plaintiffs in the Action and Counsel for PSLRA Plaintiffs in the
Action
SIMPSON THACHER & BARTLETT LLP
By:
_
Mark G. Cunha
Peter E. Kazanoff
425 Lexington Ave.
New York, NY 10017-3954
(212) 455-2000
Attorneys for Fairfield Greenwich Limited and Fairfield Greenwich (Bermuda) Ltd.
45
,
IN WITNESS WHEREOF,
,
the Settling Parties have executed this Stipulation by
their undersigned counsel effective as of the dateset forth below,
Dated: New York, New York
November 6,2012
BOIES~ SCHILLER & FLEXNER LLP
WOLF POPPER LLP
By:
By.,
-~
_
~_
Robert C. Finkel
James A. Harrod
845 Third A venue
New York, NY 10022
David A Barrett
Howard L. Vickery? II
575 Lexington Avenue
New York, NY 10022
(212) 446-2300
-- and
---
(212) 759-4600
WV1;/J?~.
AR.T HALEBIAN JACOBSON
>
::~~~
Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
401 East Las. Olas Blvd., #lZ00
Ft. Lauderdale, Florida 33301
(954) 356-0011
Christopher Lovell
Victor E. Stewart
61 Broadway, Suite 501
New York, NY 10006
(212) 608-1900
Interim Co-Lead Counsel for Plaintiff,'Jin the Action and Counsel for PSLRA Plaintiffs in the
Action
SI:MPSON THACHER & BARTLETT LLP
By: ~.,....,.-..••.•... __
....,.....,
........-
_
Mark G, Cunha
Peter E. Kazanoff
425 Lexington Ave.
New York,NY 10017-3954
(212) 455-2000
Attorneys/or Fairfield Greenwich Limited and Fairfield Greenwich (Bermuda) Ltd.
45
IN WITNESS WHEREOF, the Settling Parties have executed this Stipulation by
their undersigned counsel effective as of the date set forth below.
Dated: New York, New York
November 6, 2012
BOIES, SCHILLER & FLEXNER LLP
WOLF POPPER LLP
By:
By:
_
David A. Barrett
Howard L. Vickery, II
575 Lexington Avenue
New York, NY 10022
(212) 446-2300
_
Robert C. Finkel
James A. Harrod
845 Third Avenue
New York, NY 10022
(212) 759-4600
-- and --
LOVELL STEWART HALEBIAN JACOBSON
LLP
Stuart H. Singer
Carlos Sires
Sashi Bach Boruchow
401 East Las Olas Blvd., #1200
Ft. Lauderdale, Florida 33301
(954) 356-0011
By:
_
Christopher Lovell
Victor E. Stewart
61 Broadway, Suite 501
New York, NY 10006
(212) 608-1900
Interim Co-Lead Counsel for Plaintiffs in the Action and Counsel for PSLRA Plaintiffs in the
Action
. \),\}. .: c./L
SIMPSON THACHER & BARTLETT LLP
By.
.
\ . ,
\
Mark G. Cunha
Peter E. Kazanoff
425 Lexington Ave.
New York, NY 10017-3954
(212) 455-2000
Attorneysfor
.-.--/
""
Fairfield Greenwich Limited and Fairfield Greenwich (Bermuda) Ltd.
45
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