In re Herald, Primeo and Thema Funds Securities Litigation

Filing 231

FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT #234) - MOTION to Approve of Partial Settlement. Document filed by Neville Seymour Davis. (Attachments: #1 Exhibit A-1, #2 Exhibit A-2, #3 Exhibit A-3, #4 Exhibit A-4, #5 Exhibit B, #6 Exhibit C, #7 Exhibit D, #8 Exhibit E, #9 Exhibit F-1)(Chang, Albert) Modified on 6/29/2011 (lb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ECF Case
IN RE HERALD, PRIMEO, AND THEMA FUNDS
SECURITIES LITIGATION
This Document Relates to:

Case No. 09 Civ. 0289 (RMB)
Case No. 09 Civ. 2558 (RMB)

NEVILLE SEYMOUR DAVIS,
Plaintiff,
vs.

ALBERTO BENBASSAT, STÉPHANE BENBASSAT,
GENEVALOR, BENBASSAT & CIE, GERALD J.P. BRADY,
JOHN HOLLIWELL, SONJA KOHN, DANIEL MORRISSEY,
PETER SCHEITHAUER, DAVID T. SMITH, WERNER
TRIPOLT, BANK MEDICI AG, UNICREDIT SPA, HSBC
INSTITUTIONAL TRUST SERVICES (IRELAND) LTD., HSBC
SECURITIES SERVICES (IRELAND) LTD., HSBC BANK
USA, N.A., HSBC HOLDINGS PLC,
PRICEWATERHOUSECOOPERS INTERNATIONAL LTD.,
PRICEWATERHOUSECOOPERS (DUBLIN),
PRICEWATERHOUSECOOPERS LLP,
PRICEWATERHOUSECOOPERS BERMUDA, THEMA
ASSET MANAGEMENT LIMITED, THEMA INTERNATIONAL
FUND PLC, BA WORLDWIDE FUND MANAGEMENT
LIMITED, PETER MADOFF, ANDREW MADOFF, THE
ESTATE OF MARK MADOFF, WILLIAM FRY, JP MORGAN
CHASE & CO., and THE BANK OF NEW YORK MELLON,
Defendants.
PROOF OF CLAIM, RELEASE AND ASSIGNMENT
Deadline for submission: _________, 2011
TO: All persons and entities who were registered or beneficial owners of shares of Thema International Fund plc or its sub-fund
Thema Fund (collectively, the “Fund”) on December 10, 2008, and suffered damages thereby due to the conduct alleged in
the complaint in the Action (the “Settlement Class”).
I.

GENERAL INSTRUCTIONS

A. All capitalized terms used but not defined herein shall have the meaning ascribed to them in the Stipulation of Partial
Settlement dated [●][●], 2011, available online at www.themasettlement.com.
B. To recover as a member of the Settlement Class based on claims in Davis v. Benbassat et al., Case No. 09 Civ. 2558
(S.D.N.Y.) (the “Action”) you must review and complete this form Proof of Claim, Release and Assignment (“Proof of Claim”). If
you fail to submit a Proof of Claim by the deadline, your claim may be rejected and you may be precluded from receiving any
recovery from the Settlement Fund created in connection with the proposed Settlement of the Action.
C. Submission of a Proof of Claim does not assure that you will share in the proceeds of the Settlement.

*XXXX1FIRST*

1

YOU MUST COMPLETE AND SUBMIT A PROOF OF CLAIM VIA FIRST CLASS MAIL POSTMARKED ON OR BEFORE
________, 2011, ADDRESSED TO THE SETTLEMENT ADMINISTRATOR AS FOLLOWS:
Davis v. Benbassat et al. – Litigation Claim Forms
c/o Gilardi & Co. LLC
P.O. Box 8040
San Rafael, CA 94912-8040
Telephone: [phone]
D. If you are NOT a member of the Settlement Class, as defined in the Notice of Pendency and Proposed Settlement of
Class Action, Motion for Attorneys’ Fees and Expenses, and Hearing (the “Notice”), which you may have received in the mail or
viewed at www.themasettlement.com, DO NOT submit a Proof of Claim.
IF YOU ARE A SETTLEMENT CLASS MEMBER AND DO NOT FILE A PROOF OF CLAIM, YOU WILL NOT RECEIVE ANY
PAYMENT FROM THE NET SETTLEMENT FUND BUT YOU WILL NEVERTHELESS BE BOUND BY THE ORDER FINALLY
APPROVING THE SETTLEMENT AND THE JUDGMENT DISMISSING THIS ACTION AS AGAINST THE SETTLING
DEFENDANTS, AND ALL ORDERS, RELEASES, AND ASSIGNMENTS, THEREIN, UNLESS YOU PROPERLY EXCLUDE
YOURSELF FROM THE SETTLEMENT CLASS.
PROOFS OF CLAIM MUST BE FILED BY THE BENEFICIAL OWNER OF THE SHARES OF THE FUNDS UPON WHICH THE
CLAIM IS BASED, OR ON THEIR BEHALF BY THE LEGAL REPRESENTATIVE OF SUCH OWNER. REGISTERED
SHAREHOLDERS MAY NOT SUBMIT PROOFS OF CLAIM UNLESS THEY ARE BENEFICIAL OWNERS OR THE LEGAL
REPRESENTATIVES OF THE BENEFICIAL OWNERS. REGISTERED SHAREHOLDERS WHO ACTED ONLY IN A NOMINEE
OR SIMILAR CAPACITY MAY NOT SUBMIT PROOFS OF CLAIM BUT SHOULD TAKE CARE THAT THOSE FOR WHOM
THEY ACTED ARE AFFORDED AN OPPORTUNITY TO SUBMIT SUCH A CLAIM.
E. All joint purchasers must sign this Proof of Claim. Legal representatives such as executors, administrators, guardians,
conservators, trustees, and all other persons filing in a similar legal representative capacity, must complete and sign this form on
behalf of the persons represented by them and state the titles or capacities in which they are acting. By signing this form, any
legal representative so signing represents and warrants to the Settling Defendants that such representative has full authorit y to
so act and that the beneficial owners for whom they are acting have not also filed a Proof of Claim.
II. INSTRUCTIONS FOR SCHEDULES OF TRANSACTIONS
A. In the space provided below, supply all required details of your transaction(s) in the Fund. If you need more space,
attach separate sheets giving all of the required information in substantially the same form. Sign and print or type your name on
each additional sheet.
B. Please provide the requested information with respect to all of your holdings in the Fund from your first investment to
present date inclusive. Failure to report all such information may result in the rejection of your claim.
C. You will also need to submit supporting documentation concerning the number of shares you hold in the Fund and any
transactions related thereto. In most cases, information contained in monthly statements, and confirmations of subscriptions and
redemptions, will be sufficient. Failure to provide this documentation could delay verification of your claim or result in rejection of
your claim.
D. The requests are designed to provide the minimum amount of information necessary to process the claims. The
Settlement Administrator may request additional information as required to calculate your losses efficiently and reliably. In some
cases where the Settlement Administrator cannot perform the calculation accurately or at a reasonable cost to the Settlement
Class with the information provided, the Settlement Administrator may condition acceptance of the Proof of Claim upon the
production of additional information and/or the hiring of an accounting expert at the Claimant’s cost.
E. By Order of the Court dated [●][●], 2011, your identity and contact information submitted on this Proof of Claim will be
deemed “Confidential Protected Information” and will be kept strictly confidential and, absent further order of the Court based on
a showing of necessity, will be shared by the Settlement Administrator only with counsel to the Lead Plaintiff and counsel to the
Settling Defendants or filed under seal for purposes of enforcing the terms and requirements of this Settlement.

*XXXX1SECOND*

2

Official
Office
Use
Only

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Davis v. Benbassat et al. – Litigation Claim Forms
Master File No. __________________
PROOF OF CLAIM, RELEASE AND ASSIGNMENT
Please Type or Print in the Boxes Below
Do NOT use Red Ink, Pencil, or Staples

PART I: CLAIMANT IDENTIFICATION
Last Name

M.I.

Last Name (Co-Beneficial Owner)

Must be Postmarked
No Later Than
________ __, 2011

_____

First Name
First Name (Co-Beneficial Owner)

IRA
Joint Tenancy
Individual
Employee
Company Name (Beneficial Owner - If Claimant is not an Individual) or Custodian Name if an IRA

Other___________
(specify)

Trustee/Asset Manager/Nominee/Record Owner’s Name (if Different from Beneficial Owner Listed Above)
Account#/Fund# (Not Necessary for Individual Filers)

Taxpayer Identification Number

Social Security Number (if any)

or
Telephone Number (Work)
Country Code

Telephone Number (Home)

International Telephone Number

Email Address
MAILING INFORMATION
Address
Address
State

City

Zip Code
—

Foreign Province

FOR CLAIMS
PROCESSING OB
ONLY

Foreign Country Name/Abbreviation

Foreign Postal Code

ATP
KE

BE

FL

OP

DR

CB

ME

RE

EM

ND

SH

*XXXX1THIRD*

3

M M

D

D

Y

Y

Y

Y

FOR CLAIMS
PROCESSING
ONLY

PART II. SCHEDULE OF HOLDINGS IN THE FUND
USD CLASS SHARES ($)
If you purchased shares through more than one account with a registered shareholder, please complete a separate Schedule in
the same format as below for each account. If the transactions were denominated in Euros (EUR Class Shares) please proceed
to Part III.
A. SUBSCRIPTIONS: Please use the Schedule provided below to list in chronological order the date and amount of each
SUBSCRIPTION made into the Fund. In addition, please provide copies of supporting documentation evidencing these
transactions. Please list subscriptions of Thema (May 9, 1996 – December 10, 2008, inclusive).
SUBSCRIPTIONS
Date(s) of Subscription
(List Chronologically)
M

M

D

D

Y

Number of Shares Purchased

Aggregate Amount Invested
(Excluding Commissions, Taxes and Fees)
Proof
Please round off to the nearest whole dollar Enclosed?

Y

1.

$

2.

$

00

3.

$

00

4.

$

00

5.

$

Y
N
Y
N
Y
N
Y
N
Y
N

00

00

B. REDEMPTIONS, SALES OR TRANSFERS: Please use the Schedule provided below to list in chronological order the date
and amount of each REDEMPTION, SALE or TRANSFER made from the Fund. In addition, please provide copies of
supporting documentation evidencing these transactions. Please list redemptions, sales or transfers of Thema (May 9, 1996
– December 10, 2008, inclusive).
REDEMPTIONS, SALES OR TRANSFERS
Aggregate Amount Redeemed, Sold or
Transferred
Date(s) of Redemption, Sale
or Transfer
Number of Shares Redeemed, (Excluding Commissions, Taxes and Fees)
Proof
(List Chronologically)
Sold or Transferred
Please round off to the nearest whole dollar Enclosed?
M

M

D

D

Y

Y

1.

$

2.

$

00

3.

$

00

4.

$

00

5.

$

Y
N
Y
N
Y
N
Y
N
Y
N

00

00

C. ENDING BALANCE OF SHARES HELD: Number of shares held in the
Fund as of December 10, 2008.

D. ENDING BALANCE OF SHARES HELD: Number of shares held in the
Fund as of the Present date (if different).

Proof
Enclosed?
Y
N
Proof
Enclosed?
Y
N

If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page.
YOU MUST READ AND SIGN THE RELEASE AND ASSIGNMENT ON PAGE 8. FAILURE TO SIGN THE RELEASE AND ASSIGNMENT
MAY RESULT IN A DELAY IN PROCESSING OR THE REJECTION OF YOUR CLAIM.

*XXXX1FOURTH*

4

PART III. SCHEDULE OF HOLDINGS IN THE FUND
EUR CLASS SHARES (€)
If you purchased shares through more than one account with a registered shareholder, please complete a separate Schedule in
the same format as below for each account. If the transactions were denominated in United States Dollars (USD Class Shares)
please proceed to Part II.
A. SUBSCRIPTIONS: Please use the Schedule provided below to list in chronological order the date and amount of each
SUBSCRIPTION made into the Fund. In addition, please provide copies of supporting documentation evidencing these
transactions. Please list subscriptions of Thema (May 9, 1996 – December 10, 2008, inclusive).
SUBSCRIPTIONS
Date(s) of Subscription
(List Chronologically)
M

M

D

D

Y

Number of Shares Purchased

Aggregate Amount Invested
(Excluding Commissions, Taxes and Fees)
Proof
Please round off to the nearest whole dollar Enclosed?

Y

1.

€

2.

€

00

3.

€

00

4.

€

00

5.

€

Y
N
Y
N
Y
N
Y
N
Y
N

00

00

B. REDEMPTIONS, SALES OR TRANSFERS: Please use the Schedule provided below to list in chronological order the date
and amount of each REDEMPTION, SALE or TRANSFER made from the Fund. In addition, please provide copies of
supporting documentation evidencing these transactions. Please list redemptions, sales or transfers of Thema (May 9, 1996
– December 10, 2008, inclusive).
REDEMPTIONS, SALES OR TRANSFERS
Aggregate Amount Redeemed, Sold or
Transferred
Date(s) of Redemption, Sale
(Excluding Commissions, Taxes and Fees)
or Transfer
Number of Shares Redeemed,
Proof
(List Chronologically)
Sold or Transferred
Please round off to the nearest whole dollar Enclosed?
M

M

D

D

Y

Y

1.

€

2.

€

00

3.

€

00

4.

€

00

5.

€

Y
N
Y
N
Y
N
Y
N
Y
N

00

00

C. ENDING BALANCE OF SHARES HELD: Number of shares held in the
Fund as of December 10, 2008.

D. ENDING BALANCE OF SHARES HELD: Number of shares held in the
Fund as of the Present date (if different).

Proof
Enclosed?
Y
N
Proof
Enclosed?
Y
N

If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page.
YOU MUST READ AND SIGN THE RELEASE AND ASSIGNMENT ON PAGE 8. FAILURE TO SIGN THE RELEASE AND ASSIGNMENT
MAY RESULT IN A DELAY IN PROCESSING OR THE REJECTION OF YOUR CLAIM.

*XXXX1FIFTH*

5

PART IV.

DEFINITIONS AND RELEASE

1. I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully, finally and forever settle, discharge and
release in regards to the “Released Parties” all “Released Claims,” including “Unknown Claims,” as contained in the Stipulation
of Partial Settlement dated [●][●], 2011 and defined below.
2. I (We) hereby acknowledge that I (we) will not be entitled to receive recovery in any other action against any of the
Released Parties based on or arising out of the Released Claims.
3. This release shall be of no force or effect unless and until the Court gives final approval of the Settlement and the
Effective Date of such Settlement occurs.
4. “Released Parties” means HSBC Institutional Trust Services (Ireland) Ltd., HSBC Securities Services (Ireland) Ltd.,
HSBC Bank USA, N.A. and HSBC Holdings plc (collectively, the “Settling Defendants”), as well as their current and former
subsidiaries, parents, principals, direct or indirect affiliates, including without limitation HSBC Bank USA, N.A. and HSBC Bank
plc, general or limited partners or partnerships, successors and predecessors, heirs, assigns, officers, directors, agents,
employees, fiduciaries, and attorneys.
5. “Released Parties” shall not include the Non-Settling Defendants in the Action except for any acts or omissions within the
course of any former employment with a Settling Defendant. The Non-Settling Defendants currently named in the Amended
Complaints are Alberto Benbassat, Stéphane Benbassat, Genevalor Benbassat & Cie, Gerald J.P. Brady, John Holliwell, Sonja
Kohn, Daniel Morrissey, Peter Scheithauer, David T. Smith, Werner Tripolt, Bank Medici AG, Unicredit SPA,
PricewaterhouseCoopers International Ltd., PricewaterhouseCoopers (Dublin), PricewaterhouseCoopers LLP,
PricewaterhouseCoopers Bermuda, Thema Asset Management Limited, Thema International Fund plc, BA Worldwide Fund
Management Limited, Peter Madoff, Andrew Madoff, the Estate of Mark Madoff, William Fry, JP Morgan Chase & Co., and the
Bank of New York Mellon.
6. “Released Claims” means all claims, counterclaims, rights, causes of action, or liabilities of every nature and description,
whether known or Unknown (as defined herein), whether arising under federal, state, common or foreign law, that were or could
have been asserted in this Action or any other action in the United States or elsewhere in any jurisdiction throughout the world in
which the Released Parties are domiciled or otherwise subject to jurisdiction, by any Settlement Class Member, that arise out of,
are based upon, or related to the allegations, transactions, facts, matters, or occurrences set forth or referred to in any of the
complaints filed in the Action, or that would be barred by res judicata or collateral estoppel if the claims asserted in the Action
had been fully litigated on the merits to a final judgment in favor of the party against whom such claims were brought.
7. “Released Claims” does not include claims, rights or causes of action or liabilities whatsoever related to the enforcement
of the Settlement, including, without limitation, any of the terms of the Stipulation or orders or judgments issued by the courts in
connection with the Settlement or any claims asserted or that could be asserted against the Non-Settling Defendants.
8. “Unknown Claims” means any and all Released Claims which any of the Lead Plaintiff, Settlement Class Members or
Settling Defendants does not know or suspect to exist in his, her or its favor as of the Effective Date and which, if known by him,
her or it, might have affected his, her or its decision(s) with respect to the Settlement. With respect to any and all Released
Claims, including any Unknown Claims, the parties stipulate and agree that upon the Effective Date, the Lead Plaintiff and the
Settling Defendants shall expressly waive, and each Settlement Class Member shall be deemed to have waived, and by
operation of the Judgment shall have expressly waived, any and all provisions, rights and benefits conferred by any law of any
state of the United States, any principle of common law or any law of any foreign state, which is similar, comparable, or
equivalent to Cal. Civ. 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 Lead Plaintiff, Settlement Class Members, and current and former owners of shares in the Fund (on behalf of themselves
and the Fund) may hereafter discover facts in addition to or different from those any of them now knows or believes to be true
with respect to the subject matter of the Released Claims, but the Lead Plaintiff shall expressly have, and each Settlement Class
Member and current or former owner of shares in the Fund (on behalf of themselves and the Fund) shall be deemed to have and
by operation of 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, that 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 that is negligent, reckless, intentional, with or without malice, or a breach of any duty, law or rule, without
regard to the subsequent discovery or existence of such different or additional facts. Lead Plaintiff and Settling Defendants
acknowledge, and Class Members by operation of law shall be deemed to have acknowledged, that the inclusion of “Unknown
Claims” in the definition of Released Claims was separately bargained for and was a key element of the Settlement.

*XXXX1SIXTH*

6

PART V.

DEFINITIONS AND ASSIGNMENTS

A. Assignments to Settling Defendants of Certain Interests
1. I (We) hereby irrevocably assign and convey to the Settling Defendants all of my (our) interest in any recovery by
or benefit accruing to the Fund or any distribution or payment arising out of the same on account of current or future litigation by the
Fund against any of the Settling Defendants or any of their affiliates, including without limitation the Fund’s claims against HSBC
Institutional Trust Services (Ireland) Limited in Thema Int’l Fund plc v. HSBC Institutional Trust Services (Ireland) Ltd., Record Nos.
2008/10983P, 2009/565TP and 2009/566TP (H. Ct.), which is now pending in the Irish High Court – Commercial Division.
2. I (We) hereby further delegate to the Settling Defendants, to the full extent permitted by applicable law, the
power and right to act on my (our) behalf in effectuating this assignment and in all matters relating to any current or future
litigation by the Fund against any of the Settling Defendants.
B. Assignment by Claimants of Their Claims Against Non-Settling Defendants to the Lead Plaintiff
3. I (We) hereby irrevocably assign and convey to Lead Plaintiff Neville Seymour Davis the right to pursue and
litigate on my (our) behalf and for my (our) benefit, any and all claims I (we) possess against the Non-Settling Defendants and
their affiliates, parents, related companies, executives and directors, and any other person or entity arising out of, based upon, or
relating to the allegations, transactions, facts, matters or occurrences set forth or referred to in the Amended Complaint or the
Proposed Amended Complaint in any domestic or foreign forum.
4. I (We) hereby further delegate to Lead Plaintiff Neville Seymour Davis, to the fullest extent permitted by
applicable law, the power and right to act on my (our) behalf in effectuating this assignment and in all matters relating to any
current or future litigation by Lead Plaintiff relating to the assigned claims.
5. I (We) do hereby release the Lead Plaintiff and his agents from any and all claims, damages, demands,
liabilities, losses, costs, expenses and attorneys’ fees arising out of, based upon, or relating to their actions or conduct relating to
the assigned claims, excluding only claims for lack of loyalty or good faith.
PART VI.

REPRESENTATIONS AND SIGNATURE

6. I (We) hereby warrant and represent that I (we) submit this Proof of Claim under the terms of the Stipulation of
Partial Settlement described in the Notice of Pendency and Proposed Settlement of Class Action, Motion for Attorneys’ Fees and
Expenses, and Hearing.
7. I (We) am (are) a Settlement Class Member as defined in the Notice, that I am (we are) not one of the persons
or entities excluded from the Settlement Class, 1 that I am (we are) not acting on behalf of any such excluded person or
entity, that I (we) have not requested to be excluded from the Settlement Class, and that I (we) believe that I am (we are) eligible
to receive a distribution from the Net Settlement Fund under the terms and conditions of the Plan of Allocation as set forth in
the Notice.
8. I (We) hereby warrant and represent that I (we) submit to the jurisdiction of the United States District Court for
the Southern District of New York solely with respect to my (our) claim as a Settlement Class Member and for purposes of
enforcing the release and assignment set forth herein and any judgments and orders which may be entered in the Action. I (We)
further acknowledge that I (we) am (are) bound by and subject to the terms of any final Judgment that may be entered in the
Action.
9. I (We) hereby warrant and represent that I (we) have included information about all of my (our) holdings in the
Fund and all of my (our) transactions relating to those holdings in the Fund. I (We) further agree to furnish additional information
to the Settlement Administrator to support this claim if required to do so.

1. Excluded from the Settlement Class are all Defendants in the Action, and each of their officers and directors, as well as their families and
affiliates, as well as legal representatives, heirs, successors and assigns of any excluded person or entity; provided, however, that any affiliate
of the Settling Defendants acting as agent or nominee for a beneficial owner of shares of the Fund who is not a person or entity described
above shall be deemed to be a Settlement Class Member.

*XXXX1SEVENTH*

7

I (WE) DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT
ALL OF THE FOREGOING INFORMATION SUPPLIED ON THIS PROOF OF CLAIM, RELEASE AND ASSIGNMENT FORM
BY THE UNDERSIGNED IS TRUE AND CORRECT.
Executed this _______________ day of ____________________ in __________________________________________
(Month/Year)
(City/State/Country)

(Sign your name here)

(Sign your name here)

(Type or print your name here)

(Type or print your name here)

(Capacity of person(s) signing, e.g.,
Beneficial Owner, Executor or Administrator)

(Capacity of person(s) signing, e.g.,
Beneficial Owner, Executor or Administrator)

ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME.
THANK YOU FOR YOUR PATIENCE.
Reminder Checklist:
1. Please sign the above release and declaration.

5. If you desire an acknowledgment of receipt of your claim
form please send it Certified Mail, Return Receipt
2. Remember to attach supporting documentation, if available.
Requested.
3. Do not send original stock certificates.
6. If you move, please send the Settlement Administrator
4. Keep a copy of your claim form and all supporting
your new address.
documentation for your records.

*XXXX1EIGHTH*

8