In Re: Fleming Companies Securities Litigation 03...
Transcript of In Re: Fleming Companies Securities Litigation 03...
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
IN RE FLEMING COMPANIESSECURITIES LITIGATION
This Document Relates To : All Actions
§ MDL NO. 1530
§§ Judge Ward
STIPULATION OF SETTLEMENT
This Stipulation of Settlement dated as of May 20, 2005 (the "Stipulation"), is made an d
entered into by and among the following Settling Parties (throughout this Stipulation all
capitalized terms used, but not immediately defined, are as defined in Part 11 .1) : (i) the
Representative Plaintiffs (on behalf of themselves, the Fleming Settlement Class and each o f
their respective putative Fleming Settlement Class Members), by and through their counsel of
record in the Actions; and (ii) Deloitte & Touche LLP, a Delaware limited liability partnership,
by and through its counsel. This Stipulation is intended by the Settling Parties to fully, finally
and forever resolve, discharge and settle the Actions and Released Claims with prejudice and
without costs, upon and subject to the terms and conditions hereof, subject to the approval of the
United States District Court for the Eastern District of Texas ("Settlement") .
1 . THE LITIGATION
Beginning in August 2002, a series of federal securities lawsuits was filed in Texas an d
Oklahoma, including eleven in the United States District Court for the Eastern District of Texas,
alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule IOb-5
promulgated thereunder, or Section 11 of the Securities Act of 1933, against The Fleming
Companies, Inc . ("Fleming") and its officers and directors. The Texas cases were consolidated
in December 2002 and Jackson Capital Management, LLC ("Jackson Capital") was appointed
lead plaintiff. On January 31, 2003, Jackson Capital filed a Consolidated Amended Class Action
Complaint . Two weeks later, on February 13, 2002, Jackson Capital filed a "Corrected"
Consolidated Amended Class Action Complaint. None of these complaints named Deloitte &
Touche as a defendant .
In February and April of 2003, the Massachusetts State Carpenters Pension Fund (the
"Pension Fund"), filed lawsuits in the Dallas and Texarkana Divisions of the United States
District Court for the Eastern District of Texas . The Pension Fund asserted claims against
Fleming, various of its officers and directors, Deloitte & Touche, and the underwriters o f
Fleming public offerings in March and June 2002, for violations of Sections 11 and 12 of the
Securities Act of 1933 . The Pension Fund's action, filed in Dallas, was the first time Deloitte &
Touche was named in the Fleming litigation . Jackson Capital subsequently filed a Second
Amended Consolidated Class Action Complaint in the consolidated Texas cases, which for the
first time asserted a claim against Deloitte & Touche .
In Orders dated June 25 and August 11, 2003, the Judicial Panel on Multidistrict
Litigation consolidated all Fleming related matters and designated the above-captioned action In
re Fleming Co. Sec . Liti ., Case No. MDL-1530 as the lead Case.
On or about June 27 and August 28, 2003, two non-class action lawsuits that were
virtually identical to (and incorporated most of the allegations of) the Second Amended
Consolidated Class Action Complaint filed by Jackson Capital were filed in the Northern District
of Texas and captioned Doucet et a1. v. Hansen et al ., N.D. Tex. 3 :03-1950 and Fetterman, et al.
v. Hansen, et al. , N.D . Tex. 3 :03-1435 . These matters were consolidated into In re Fleming Co .
Sec. Litig . , Case No. MDL-1530 on September 9 and December 15, 2003 .
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Jackson Capital further amended their Complaint and filed a Third Amended
Consolidated Class Action Complaint on September 12, 2003, a Fourth Consolidated Amended
Class Action Complaint on June 28, 2004 and a Fifth Amended Consolidated Class Action
Complaint on December 1 6, 2004 .
Deloitte & Touche has vigorously denied and continues to deny each and all of the claims
and contentions alleged in the Actions . Deloitte & Touche has expressly denied and continues to
deny all charges of wrongdoing or liability against it arising out of any of the conduct,
statements, acts or omissions alleged, or that could have been alleged, in the Actions . Deloitte &
Touche also has denied and continues to deny, inter alia, the allegations that the Representative
Plaintiffs or the putative Fleming Settlement Class Members have suffered damage or that the
Representative Plaintiffs or the putative Fleming Settlement Class Members were harmed by any
alleged acts or omissions of Deloitte & Touche alleged in the Actions . Nonetheless, Deloitte &
Touche has concluded that further conduct of the Actions would be protracted and expensive,
and that it is desirable that the Actions be fully and finally settled in the manner and upon the
terms and conditions set forth in this Stipulation .
The Representative Plaintiffs believe that the claims asserted in the Actions have merit .
However, Plaintiffs' Class Counsel recognize and acknowledge the expense and length of
continued proceedings necessary to prosecute the Actions against Deloitte & Touche through
trial and appeals . Plaintiffs' Class Counsel also have taken into account the uncertain outcom e
and the risk of any litigation, especially complex cases such as the Actions, as well as the
difficulties and delays inherent in such litigation . Plaintiffs' Class Counsel also are mindful of
the inherent problems of proof under, and possible defenses to, the violations asserted in the
Actions . Plaintiffs' Class Counsel believe that the Settlement set forth in this Stipulation confers
substantial benefits upon the Fleming Settlement Class Members . Plaintiffs' Class Counsel on
behalf of the Representative Plaintiffs have conducted extensive investigation relating to the
Representative Plaintiffs' claims and the underlying events and transactions alleged in the
Complaint and, in connection therewith, have engaged and consulted experts and have conducted
extensive discovery including, among other things, inspection, review and analysis of millions of
pages of documents produced by defendants and non-parties to this Action, and consultation with
experts on accounting and damages, which in the Representatives Plaintiffs' and Plaintiffs' Class
Counsel's judgment has provided an adequate and satisfactory basis for the evaluation of the
Settlement described herein . Based on their evaluation, Plaintiffs' Class Counsel have
determined that the Settlement set forth in this Stipulation is fair, reasonable and adequate and in
the best interests of the Representative Plaintiffs and the putative Fleming Settlement Class
Members .
On May 19 and 20, 2005, the Parties entered into an extensive good faith, arms lengt h
negotiation concerning the terms of the Settlement in a mediation before a highly experienced
mediator and on May 20, 2005, agreed to settle the Actions and the Released Claims subject to
execution of this Stipulation and approval by the Court .
II. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among th e
Representative Plaintiffs (on behalf of themselves, the Fleming Settlement Class and each of
their respective putative Fleming Settlement Class Members) and Deloitte & Touche, by and
through their respective counsel or attorneys of record, that, subject to the approval of the Court,
the Actions and the Released Claims as against the Deloitte & Touche Releasees shall be finally
and fully compromised, settled and released, and the Actions shall be dismissed with prejudice
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and without costs, as to the Deloitte & Touche Releasees, upon and subject to the terms and
conditions of this Stipulation, as follows .
1. Definitions
As used in this Stipulation the following terms have the meaning specified below . In the
event of any inconsistency between any definition set forth below and any definition set forth in
any other document related to the Settlement set forth in this Stipulation, the definition set forth
below shall control .
1 .1 "Actions" or "Fleming Action" means all actions that are part of Multi-Distric t
Litigation No. 1530 in the United States District Court for the Eastern District of Texas,
including : Anthony Colarich, et al . v. Fleming Co. Inc., et al ., W.D. Ok., C.A. No . 5 :03-177;
Terry Slater v. Fleming Co . Inc., et al . , W.D. Ok., C.A. No. 5 :03-178 ; Doucet, et al . v. Hansen, et
al ., N.D. Tx., 3:03-1950; Massachuse tts State C enters Pension Fund v . Fleming Co ., Inc., et
Al ., N.D. Tx., C.A. No. 3:03-460 ; Rick Fetterman, et al . v. Mark Hansen et al N.D. Tx., C.A.
No. 3 :03-1435 ; William Gaynor, Jr., et al . v. Fleming Co. Inc., et al . , E.D. Tx., C.A. No. 5:02-
178;
•, . . ...
Janis Dolan v. FlemingCo . Inc ., et al . , E.D. Tx., C.A. No. 5 :02-190 ; Stanley Sved V.
Fleming Co. Inc. et al ., E.D . Tx ., C.A. No . 5 :02-198 ; Denis Patterson v. Fleming Co . Inc ., et al . ,
E.D. Tx., C.A. No. 5 :02-205; Al fred S. Huk v . Fleming Co . Inc ., et al ., E .D. Tx., C.A. No. 5 :02-
208; Jerald Gordon v . Fleming Co ., Inc ., et al . E .D. Tx., C.A. No. 5 :02-212; Virginia Rudisill v.
Fleming Co ., Inc., et al . , E.D. Tx., C.A. No. 5 :02-218 ; William M.E__glinton v. FlemingCo., Inc . ,
et al ., E .D.Tx., C.A. No. 5:02-222; Jackson Capital . M t LLC v. Mark Hansen et al ., E.D. Tx .,
C.A. No. 5 :02-223 ; Sharee Stroud, etc . v. Mark S . Hansen, et al ., E.D. Tx ., C.A. No. 5:02-236;
Mare 0. Northu v. Fleming Co ., Inc ., et al ., E .D. Tx., C.A. No. 5 :02-237 ; D .X. Larocca, et
al . v. Fleming Co ., Inc., et al . , E.D. Tx ., C.A. No. 5:02-239; the Cross-Complaint and Original
Complaint of the Post-Confirmation Trust and Original Answer of Defendants the Fleming
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Companies, the Post-Confirmation Trust and Core-Mark ; and any other claims, cross-claims,
counterclaims, defenses, contentions or allegations, that have been or could have been asserted i n
any action listed above or in In re Fleming Co. See . Litig. , Case No. MDL-1530 .
1 .2 "Authorized Claimant" means a member of the Fleming Settlement Class who
submits a timely and valid Proof of Claim and Release to the Claims Administrator and within
such time , as the Court shall presc ribe . Only those members of the Settlement Class fi ling valid
and timely Proofs of Claim and Release shall be entitled to receive any distributions from the
Settlement Amount .
1 .3 "Claimant" means any potential Settlement Class Member who claims entitlemen t
to all or part of the Settlement Amount .
1 .4 "Claims Administrator" means Heffler Radetich & Saitta, LLP.
1 .5 "Core-Mark" means Core-Mark International, Inc ., and all of its past and present
parents, subsidiaries, divisions, predecessors, successors, assigns, affiliated entities, and any
entity in which any of them has a controlling interest .
1 .6 "Court" means the United States District Court for the Eastern District of Texas ,
Texarkana Division .
1 .7 "Debtors" means The Fleming Companies, Inc . ; Core-Mark International, Inc . ;
ABCO Food Group, Inc . ; ABCO Markets, Inc . ; ABCO Realty Corp .; ASI Office Automation,
Inc. ; C/M Products, Inc . ; Core-Mark Interrelated Companies, Inc . ; Core-Mark Mid-Continent,
Inc . ; Dunigan Fuels, Inc . ; Favor Concepts, Ltd . ; Fleming Foods Management Co., O.K., Fleming
Foods of Texas, L .P. ; Fleming International, Ltd . ; Fleming Supermarkets of Florida, Inc. ;
Fleming Transportation Service, Inc . ; Food 4 Less Beverage Company, Inc . ; Fuelserv, Inc. ;
General Acceptance Corporation ; Head Distributing Company; Marquise Ventures Company,
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Inc . ; Minter-Weisman Co .; Piggly Wiggly Company ; Progressive Realty, Inc . ; Rainbow Food
Group, Inc . ; Retail Investments, Inc . ; Retail Supermarkets, Inc . ; RFS Marketing Services, Inc . ;
and Richmar Foods, Inc . in their capacities as debtors and/or reorganized debtors, and any other
debtors not listed herein, and their respective predecessors, successors and assigns .
1 .8 "Defendants" means The Fleming Companies, Inc ., Core-Mark International Inc . ,
the Post-Confirmation Trust, Mark Hansen, Neal J. Rider, Mark D. Shapiro, Thomas Dahlen,
Carol B . Hallet, Alice M. Peterson, Herbert M . Baum, Kenneth M. Duberstein, Archie R. Dykes,
Robert S . Ramada, Carlos M . Hernandez, Scott Northcutt, Al Abbood, Charles Myers, Phillip
Murphy, Steven Davis, Jim Thatcher, James Green, Christopher Thorpe, John Kenneth Adams,
Rosario Coniglio, Steven Schmidt, Bruce Keith Jensen, John D . Robinson, Peter Frank, Michael
J . Cavallero, Dole Fresh Fruit Company, Deloitte & Touche LLP, Lehman Brothers Inc .,
Deutsche Bank Securities Inc., Wachovia Securities (including First Union Securities, Inc . and
Wachovia Corporation), and Morgan Stanley Incorporated.
1 .9 "Deloitte & Touche" means Deloitte & Touche LLP, a Delaware limited liability
partnership whose national office is in New York, New York .
1 .10 "Effective Date" means the first date by which all of the events and conditions
specified in paragraph 7 .1 of the Stipulation have occurred and have been met, respectively.
1 .11 "Escrow Agent" means Wachovia Bank .
1 .12 "Final" means, with respect to any order of court, including without limitation the
Final Order, that such order represents a final and binding determination of all issues within its
scope and is not subject to further review on appeal or otherwise . Without limitation, an order
becomes "Final" when : (a) where no appeal has been filed, the prescribed time for commencing
any appeal has expired; or (b) where an appeal has been filed, either (i) the appeal has bee n
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dismissed and the prescribed time, if any, for commencing any further appeal has expired, or (ii)
the order has been affirmed in its entirety and the prescribed time, if any, for commencing any
further appeal has expired . For purposes of this paragraph, an "appeal" includes appeals as of
right, discretionary appeals, interlocutory appeals, proceedings involving writs of certiorari or
mandamus, and any other proceedings of like kind . Any appeal pertaining solely to any Plan of
Allocation, or to any application for attorneys' fees and expenses including, but not limited to,
any allowance or disallowance of such fees and expenses in whole or in part pursuant to
paragraph 6 .1 below, shall not in any way delay or preclude the Final Order from becoming
Final .
1 .13 "Final Order" or "Judgment" means a Final Judgment and Order of Dismissal to
be rendered by the Court, substantially in the form attached hereto as Exhibit "B" .
1 .14 "Fleming" means The Fleming Companies, Inc ., Core-Mark, Debtors and all of
their respective past and present parent companies, subsidiaries, divisions, affiliated entities,
related Persons, predecessors, successors, trustees, agents, assigns, administrators, executors and
representatives and any entity in which any of them has a controlling interest .
1 .15 "Fleming Settlement Class", or "Settlement Class", which the Parties hereto agre e
may be conditionally certified for purposes of this Settlement only, means (i) all Persons who
purchased or otherwise acquired Securities of Fleming at any time in the period commencing
May 9, 2001 and ending February 25, 2003 inclusive, including, without limitation, all Persons
who purchased or otherwise acquired Securities in, pursuant to, or traceable to Fleming's March
2002 Offering and all Persons who purchased or otherwise acquired Securities in, pursuant to, or
traceable to Fleming's June 2002 Offering . Excluded from the Fleming Settlement Class are
those Persons who timely and validly request exclusion from the Settlement Class, to the extent
that they are able to do so under Rule 23 of the Federal Rules of Civil Procedure, pursuant to the
Mailed and Summary Notice (as defined in paragraph 3 .1, below). Also excluded from the
Fleming Settlement Class are the Defendants (as defined in Paragraph 1 .8 hereof), their
respective subsidiaries and affiliates, members of the immediate families of each of the
Defendants and the legal representatives, heirs, successors, affiliates or assigns of each of the
Defendants .
1 .16 "Fleming Settlement Class Member", "Settlement Class Member", or "Member
of the Fleming Settlement Class" means a Person who falls within the definition of the Fleming
Settlement Class .
1 .17 "Named Plaintiffs" means the Representative Plaintiffs and each of the named
plaintiffs in the Actions identified in paragraph 1 .1 .
1 .18 "Non-Settling Defendants" means each and all of the Defendants named in the
Actions, including all Defendants named in any complaint, claim, cross-claim, or counterclaim,
except Deloitte & Touche .
1 .19 "Person" means an individual, corporation, 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
any spouses, heirs, predecessors, successors, representatives, or assignees of any of the
foregoing.
1 .20 "Plaintiffs' Class Counsel" means, collectively, (i) Berger & Montague, P .C., (ii)
Susman Godfrey LLP, (iii) McKool Smith, P .C., (iv) Lerach Coughlin Stoia Geller Rudman &
Robbins LLP, and (v) Cauley, Bowman, Carney & Williams, PLLC .
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1 .21 "Plaintiffs' Settlement Counsel" means Berger & Montague, P .C. and/or Susman
Godfrey LLP,
1 .22 "Plan of Allocation" means any plan or formula of allocation of the Settlement
Amount, to be approved by the Court upon notice to the Class . Any Plan of Allocation is not
part of the Stipulation and the Deloitte & Touche Releasees shall have no responsibility or
liability with respect thereto .
1 .23 "Preliminary Approval Order" means the Preliminary Order in Connection with
Class Action Settlement Proceedings, substantially in the form attached hereto as Exhibit "A" .
1 .24 "Proof of Claim and Release" means the document to be sent to Fleming
Settlement Class Members, by which Fleming Settlement Class Members may make claims
against the Settlement Amount for damages allegedly incurred by reason of their investment(s) in
Fleming Securities .
1 .25 "Released Claims" collectively means and includes any and all claims or causes
of action, including, without limitation, "Unknown Claims" (as defined below), debts, suits,
rights of action, dues, sums of money, accounts, bonds, bills, covenants, contracts, controversies,
agreements, promises, judgments, variances, executions, obligations, demands, rights, liabilities,
damages, losses, fees, and costs of any kind, nature and/or description whatsoever, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not asserted, threatened, alleged or
litigated, at law, admiralty, equity or otherwise, including, without limitation, claims for
contribution or indemnification, or for costs, expenses (including, without limitation, amounts
paid in Settlement) and attorneys' fees (including, without limitation, costs, expenses and
attorneys' fees incurred in connection with this Stipulation and the Settlement of the Actions) ,
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claims for negligence, gross negligence, breach of duty of care and/or breach of duty of loyalty,
malpractice, misrepresentation, fraud, breach of fiduciary duty, or violations of any federal, state
or local statutes, common law, or any other laws, rules or regulations, that now exist or
heretofore existed, that have been or could have been asserted or alleged in the Actions, or any
other forum against the Deloitte & Touche Releasees or any of them whether directly, indirectly,
representatively, derivatively or in any other capacity, which arise out of, are based upon or relate
to, or are in connection with (i) the claims asserted in the Actions ; (ii) the purchase or other
acquisition of Securities or the sale or other disposition of Securities of Fleming at any time in
the period commencing May 9, 2001 and ending February 25, 2003 inclusive, including, withou t
limitation, the purchase or other acquisition of Securities in, pursuant to, or traceable to
Fleming's March 2002 Offering and the purchase or other acquisition of Securities in, pursuant
to, or traceable to Fleming's June 2002 Offering; (iii) any of the facts, circumstances, claims,
transactions, events, occurrences, acts, disclosures, statements, representations,
misrepresentations, omissions or failures to act, or matters of any kind or nature whatsoever,
related directly or indirectly to the subject matters referred to, set forth in, or the facts, causes of
action, counts, or claims for relief which were, might have been, or could have been, asserted,
alleged or litigated in the Actions ; (iv) this Settlement or the entry into it; and/or (v) any and all
services provided at any time by the Deloitte & Touche Releasees, or any of them, to or with
respect to Fleming, Debtors, or any related Person, including, without limitation, their respective
present or farmer affiliates, predecessors or successors, and their respective directors, officers,
employees, partners, principals, stockholders and owners, irrespective of whom such services
were claimed to have been performed for or on behalf of, to the extent such services relate to
Fleming.
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1 .26 "Released Entities" or "Deloitte & Touche Releasees" means Deloitte & Touche
USA LLP, Deloitte & Touche LLP, Deloitte Tax LLP, Deloitte Financial Advisory Services LLP,
Deloitte Consulting LLP (successor to Deloitte Consulting Holding LLC), Deloitte Consulting
(Nevada) LLC, Deloitte Consulting L .P., Deloitte Consulting (US) LLC and Deloitte Consulting
(Holding Sub) LLC, Deloitte Touche Tohmatsu, a Swiss Verein, and any and all Deloitte Touche
Tolunatsu associate and member firms and their respective past and present parent companies,
predecessors, subsidiaries, divisions, affiliates, associates (as defined in SEC Rule 12b- 2
promulgated pursuant to the Exchange Act), successors and assigns, joint ventures, their
respective present and former partners, principals, members, directors, officers, employees,
stockholders, owners, agents, subrogees, insurers, co-insurers, reinsurers, servants and attorneys,
and their respective representatives, heirs, executors, personal representatives, administrators,
transferees and assigns . Released Entities does not include the Non-Settling Defendants .
1 .27 "Representative Plaintiffs" means Jackson Capital Management, LLC ,
Massachusetts State Carpenters Pension Fund, Massachusetts State Guaranteed Annuity Fund,
Alaska Electrical Pension Fund, David Dickey, Joel Feliciano, and Terry Slater, individually and
collectively, on behalf of themselves, the Fleming Settlement Class and each of their respective
Fleming Settlement Class Members .
1 .28 "Securities" means any publicly traded securities (i) issued by Fleming, including
but not limited to stocks or bonds, or (ii) that trade in whole or in part based upon the price or
value of any securities issued by Fleming .
1 .29 "Settlement Amount" means the principal amount of Thirty-Five Million
($35,000,000 .00) Dollars, subject to any potential Reduction as set forth in paragraph 7 .5 herein.
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1 .30 "Settlement Class" means the Fleming Settlement Class . Excluded from the
Settlement Class are those Persons who timely and validly request exclusion from the Settlement
Class, to the extent that they are able to do so under Rule 23 of the Federal Rules of Civil
Procedure, pursuant to the Mailed and Summary Notice (as defined in paragraph 3 .1, below) .
Also excluded from the Settlement Class are the Defendants (as defined in Paragraph 1 .8 hereof),
their respective subsidiaries and affiliates, members of the immediate families of each of the
Defendants and the legal representatives, heirs, successors, affiliates or assigns of each of the
Defendants .
1 .31 "Settling Parties" or "Parties" means, collectively, Deloitte & Touche and the
Representative Plaintiffs (on behalf of themselves, the Fleming Settlement Class and each of
their respective Fleming Settlement Class Members) .
1 .32 "Unknown Claims" means any Released Claim that any Representative Plaintiff
or Settlement Class Member does not know or suspect to exist in his, her or its favor at the time
of the release of the Deloitte & Touche Releasees that if known by him, her or it, might have
affected his, her or its Settlement with and release of the Deloitte & Touche Releasees, or might
have affected his, her or its decision not to object to this Settlement or not to exclude himself,
herself or itself from the Settlement Class . 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 Order shall have waived, the provisions, rights and benefits
of California Civil Code § 1 542, which provides-
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICHTHE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVORAT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
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MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THEDEBTOR.
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 Order shall have waived, any and
all provisions, rights and benefits conferred by any law of any state or territory of the United
States, or principle of common law, that is similar, comparable or equivalent to California Civil
Code § 1542. The Representative Plaintiffs and Settlement Class Members may hereafter
discover facts in addition to or different from those that any of them now knows or believes to be
true with respect to the subject matter of the Released Claims, but each Representative Plaintiff
shall expressly have, and each Settlement Class Member shall be deemed to have and by
operation of the Final Order 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, based upon any
fact, 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 different or
additional facts . The Representative Plaintiffs acknowledge, and the Settlement Class Members
shall be deemed to have acknowledged, and by operation of the Final Order shall have
acknowledged, that the foregoing waiver was separately bargained for and a key element of the
Settlement of which this Release is a part .
2. The Settlement
(a) The Settlement Amoun t
2.1 The Settlement Amount will be paid to the Escrow Agent by Deloitte & Touche in
the form of a wire transfer into an interest bearing account maintained by the Escrow Agent
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within five (5) business days after preliminary approval of this Stipulation by the Court ;
provided, however, that Plaintiffs' Class Counsel has provided Deloitte & Touche with all
necessary information for Deloitte & Touche to authorize payment and complete the wire
transfer.
2.2 No amount may be disbursed from the Settlement Amount, except for amounts
required to be paid for Taxes and Tax Expenses as provided for in paragraph 2 .7(b) herein, for
amounts actually incurred in connection with providing the Mailed and Summary Notice as
provided in paragraph 3 .1 herein, or for amounts to be refunded as provided for in paragraph 7 .6
herein, unless and until the Effective Date .
2.3 Under no circumstances will Deloitte & Touche be required to pay more than th e
Settlement Amount pursuant to this Stipulation and the Settlement set forth herein ; however, any
interest on the Settlement Amount accrues to the benefit of the Settlement Class, provided the
order provided for in paragraph 3 .5 herein dismissing the Actions becomes Final as defined
herein .
(b) The Escrow Agen t
2.4 The parties shall enter into an Escrow Agreement with the Escrow Agent
substantially in the form attached hereto as Exhibit "C" . The Escrow Agent shall not disburse
the Settlement Amount except as provided in this Stipulation, by an order of the Court, or with
the prior written agreement of Deloitte & Touche and Plaintiffs' Class Counsel .
2 .5 Subject to further order and/or directions as may be made by the Court, the
Escrow Agent is authorized to execute such transactions on behalf of the Settlement Class
Members as are consistent with the terms of this Stipulation .
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2.6 All funds held by the Escrow Agent shall be deemed and considered to be in
custodia legis, and shall remain subject to the jurisdiction of the Court, until such time as such
funds shall be distributed pursuant to this Stipulation and/or order(s) of the Court .
(c) Taxes
2 .7 The Settling Parties and the Escrow Agent agree to treat the Settlement Amount as
being at all times a "qualified settlement fund" within the meaning of Treas . Reg. § 1 .468B-1 .
The Escrow Agent shall timely make such elections as necessary or advisable to carry out the
provisions of this paragraph 2 .7, including the "relation-back election" (as defined in Treas . Reg .
§1 .468B-1) 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
the Escrow Agent 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 .
(a) For the purpose of §468B of the Internal Revenue Code of 1986, a s
amended, and the regulations promulgated thereunder, the "administrator" shall be the Escrow
Agent. The Escrow Agent shall timely and properly file all informational and other tax returns
necessary or advisable with respect to the Settlement Amount (including, without limitation, the
returns described in Treas . Reg . §1 .468B-2(k)) . Such returns (as well as the election described in
this paragraph 2 .7) shall be consistent with this paragraph 2 .7 and in all events shall reflect that
all Taxes as defined in subsection (b) below (including any estimated Taxes, interest or penalties)
on the income earned by the Settlement Amount shall be paid out of the Settlement Amount as
provided in paragraph 2 .7(b) hereof.
(b) All (i) taxes (including any estimated taxes, interest or penalties) arising
with respect to the income earned by the Settlement Amount, including without limitation any
taxes or tax detriments that may be imposed upon Deloitte & Touche or its counsel with respec t
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to any income earned by the Settlement Amount for any period during which the Settlement
Amount does not qualify as a "qualified settlement fund" for federal or state income tax purposes
(collectively, "Taxes"), and (ii) expenses and costs incurred in connection with the operation and
implementation of this paragraph 2 .7, including without limitation expenses of tax attorneys
and/or accountants and mailing and distribution costs and expenses relating to filing (or failing to
file) the returns described in this paragraph 2 .7, (collectively, "Tax Expenses"), shall be paid out
of the Settlement Amount; in all events neither the Deloitte & Touche Releasees, or any of them,
nor their counsel shall have any liability or responsibility for the Taxes or the Tax Expenses .
Plaintiffs' Settlement Counsel shall indemnify and hold harmless the Deloitte & Touche
Releasees, and each of them, and their counsel for Taxes and Tax Expenses (including, without
limitation, Taxes payable by reason of any such indemnification) . Further, Taxes and Tax
Expenses shall be treated as, and considered to be, a cost of administration of the Settlement
Amount and shall timely be paid by the Escrow Agent out of the Settlement Amount without
prior order from the Court and the Escrow Agent 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 may be required to be withheld under Treas . Reg.
§ 1 .468B-2(1)(2)) ; neither the Deloitte & Touche Releasees, or any of them, nor their counsel is
responsible therefor, nor shall they have any liability therefor. The Settling Parties agree to
cooperate with the Escrow Agent, each other, and their tax attorneys and accountants to the
extent reasonably necessary to carry out the provisions of this paragraph 2 .7 .
3. Preliminary Approval, Notice, Settlement Hearing and Final Approva l
3.1 Promptly after execution of the Stipulation, the Settling Parties shall submit the
Stipulation together with its Exhibits to the Court and shall jointly apply for entry of th e
17
Preliminary Approval Order requesting, inter alia, the preliminary approval of the Settlement set
forth in the Stipulation, and final approval of forms of notice to be mailed to all Settlement Class
Members who can be identified with reasonable effort (the "Mailed Notice") and to be published
(the "Summary Notice"), respectively. The Mailed Notice shall include the general terms of the
Settlement set forth in the Stipulation and shall set forth the procedure by which Persons who
otherwise would be Members of the Settlement Class may request to be excluded from the
Settlement Class . The date and time of the Settlement Hearing shall be added to the Mailed
Notice before it is mailed to Settlement Class Members.
3.2 The Settling Parties shall request that, after the Mailed Notice and Summary
Notice have been mailed and published, respectively, in accordance with paragraph 3 .1, above,
the Court hold a hearing (the "Settlement Hearing") and finally approve the Settlement of the
Actions with respect to the Settling Parties .
3.3 The Settling Parties hereby stipulate to certification of the Settlement Class
pursuant to Rule 23 of the Federal Rules of Civil Procedure solely for purposes of this
Stipulation and the Settlement set forth herein .
(a) Preliminary Approval Orde r
3.4 The Preliminary Approval Order shall specifically include provisions that, among
other things, will :
(a) Preliminarily approve the Stipulation and the Settlement set forth herein as
being fair, adequate, and reasonable and in the best interests of the Settlement Class for purposes
of Rule 23 of the Federal Rules of Civil Procedure ;
(b) Conditionally certify the Settlement Class for the purpose of this
Settlement only ;
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(c) Find that Plaintiffs' Settlement Counsel had, and has, the authority t o
negotiate and propose a settlement to the Court and to enter into this Stipulation and Settlemen t
on behalf of the Settlement Class Members (including, without limitation, the Representativ e
Plaintiffs) and Plaintiffs' Class Counsel;
(d) Confirm that the parties designated to serve as Representative Plaintiffs in
the class actions are Jackson Capital Management, LLC, Massachusetts State Carpenters Pension
Fund, Massachusetts State Guaranteed Annuity Fund, Alaska Electrical Pension Fund, David
Dickey, Joel Feliciano, and Terry Slater ;
(e) Approve the form of Mailed Notice for mailing to potential Settlemen t
Class Members ;
(f) Approve a Summary Notice ;
(g) Approve the form of Proof of Claim and Release for mailing to potential
Settlement Class Members ;
(h) Direct Plaintiffs' Class Counsel to mail or cause to be mailed by Unite d
States first-class mail , postage prepaid, the Mailed Notice and the Proof of Claim and Release to
those potential Settlement Class Members who can be identified through reasonable effort, on or
before the date specified in the Preliminary Approval Order;
(i) Direct Plaintiffs' Class Counsel to cause the Summary Notice to b e
published in the national edition of The Wall Street Journal or shall cause a copy of the Summary
Notice to be published electronically on an equally suitable on-line site ;
(j) Provide that Settlement Class Members who wish to participate in th e
Settlement provided for in this Stipulation shall complete and submit a Proof of Claim an d
Release pursuant to the instructions contained therein ;
19
(k) Find that the form, substance, and requirements of the notice given
pursuant to paragraphs 3 .1, including individual notice to all potential Settlement Class Members
who can be identified upon reasonable effort, constitutes the best notice practicable under the
circumstances as well as valid, due, and sufficient notice to all persons entitled thereto, including
all Settlement Class Members, and complies fully with the requirements of Rule 23 of the
Federal Rules of Civil Procedure, the Constitution of the United States, the Private Securities
Litigation Reform Act of 1995, and other applicable law;
(1) Schedule a hearing or hearings (the "Settlement Hearing") to be held b y
the Court to consider and determine whether the proposed Settlement of the Actions as contained
in the Stipulation should be approved as fair, adequate, reasonable and in the best interests of the
Settlement Class, whether the Actions should be dismissed on the merits with prejudice and
without costs, and whether all Released Claims should be fully, finally, and forever released,
relinquished, and discharged;
(m) Provide that any potential Settlement Class Members who so desire may
exercise the right to exclude themselves from the Settlement Class but only if they comply with
the requirements for so doing as set forth in the Preliminary Approval Order, Mailed Notice and
the Summary Notice;
(n) Provide that, pending final determination of whether the Settlemen t
contained in this Stipulation should be approved, neither the Representative Plaintiffs nor any
Settlement Class Members, either directly, indirectly, in a representative or derivative capacity,
or in any other capacity, shall commence or prosecute any action or proceeding in the Court or in
any other court or tribunal asserting any of the Released Claims against any of the Deloitte &
Touche Releasees ;
20
(o) Provide that, not later than five (5) days prior to the Settlement Hearing ,
Plaintiffs' Class Counsel or their designee shall file with the Clerk of the Court, and serve on
Deloitte & Touche's Counsel , a sworn statement describing the mailing and publication of the
notices required herein;
(p) Provide that the Settlement Hearing may, from time to time and without
further notice to the Settlement Class Members, be continued or adjourned by order of the Court ;
(q) Provide that, if the Effective Date occurs, any Representative Plaintiff and
Settlement Class Member who does not submit a Proof of Claim and Release or does not timely
submit a valid Proof of Claim and Release within the time prescribed in the Preliminary
Approval Order or subsequent Court order and who does not timely and validly seek exclusion
from the Settlement Class in accordance with the Preliminary Approval Order and the Mailed
Notice and Summary Notice, on behalf of themselves, and their respective heirs, executors,
administrators, legal representatives, predecessors, successors, parent companies, subsidiaries,
affiliates, transferees and assigns, and any other Person claiming (now or in the future) through
or on behalf of them, shall be forever barred from participating in distributions from the
Settlement Amount pursuant to the Stipulation and the Settlement set forth herein, but otherwise
shall be conclusively deemed to have and by operation of the Final Order shall have (i) fully,
finally and forever released, relinquished, and discharged all Released Claims against the
Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished, and
discharged the Deloitte & Touche Releasees from all Released Claims arising out of or in
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
21
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any of
them in any action or proceeding of any nature ; whether or not such Representative Plaintiff
and/or such Settlement Class member ever seeks or obtains any distribution from the Settlement
Amount; whether or not such Representative Plaintiff and/or such Settlement Class Members has
executed and delivered a Proof of Claim and Release; whether or not such Representative
Plaintiff and/or such Settlement Class Member has participated in the Settlement Amount ;
whether or not such Representative Plaintiff and/or such Settlement Class Member has filed an
objection to the Settlement, to any rejection of his/her/its claim as provided in paragraphs 5 .8 and
5.9, to the proposed Plan of Allocation, or to any application by Plaintiffs' Class Counsel for an
award of attorneys' fees and expenses and costs ; and whether or not the claims of such
Representative Plaintiff and/or such Settlement Class Member has been approved or allowed or
such objection has been overruled by the Court ; and
(r) Provide that, if the Effective Date occurs, all Representative Plaintiffs an d
each Fleming Settlement Class Member, on behalf of themselves, and their respective heirs,
executors, administrators, legal representatives, predecessors, successors, parent companies,
subsidiaries, affiliates, transferees and assigns, and any other Person claiming (now or in the
future) through or on behalf of them, who is a Claimant but whose claims are not allowed o r
approved by the Court shall be forever barred from participating in distributions from the
Settlement Amount pursuant to the Stipulation and Settlement set forth herein, but otherwise
shall be conclusively deemed to have and by operation of the Final Order shall have (i) fully,
finally and forever released, relinquished, and discharged all Released Claims against the
Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished, and
discharged the Deloitte & Touche Releasees from all Released Claims arising out of or i n
22
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any of
them in any action or proceeding of any nature ; whether or not any such Claimant becomes an
Authorized Claimant; whether or not such Claimant has participated in the Settlement Amount;
and whether or not such Claimant has filed an objection to the Settlement, to any rejection of
his/her/its claim as provided in paragraphs 5 .8 and 5 .9 herein, to the proposed Plan of Allocation,
or any application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and
costs; and whether or not the claims of such Claimant have been approved or allowed or such
objection has been overruled by the Court ;
(s) Provide that, if the Effective Date occurs, any Claimants who become
Authorized Claimants, on behalf of themselves, and their respective heirs, executors ,
administrators, legal representatives, predecessors, successors, parent companies, subsidiaries,
affiliates, transferees and assigns, and any other Person claiming (now or in the future) through
or on behalf of them, shall be conclusively deemed to have and by operation of the Final Order
shall have (i) fully, finally and forever released, relinquished, and discharged all Released Claims
against the Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished,
and discharged the Deloitte & Touche Releasees from all Released Claims arising out of or in
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any o f
23
them in any action or proceeding of any nature; whether or not such Authorized Claimant
participated in the Settlement Amount ; whether or not such Authorized Claimant has filed an
objection to the Settlement, to any rejection of his/her/its claim to participate in the Settlemen t
Amount as provided in paragraphs 5 .8 and 5 .9 herein, to the proposed Plan of Allocation, or to
any application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses an d
costs; and whether or not the claims of such Authorized Claimant have been approved or allowe d
or such objection has been overruled by the Court ; and
(t) Provide that any objections to (i) the proposed Settlement contained in the
Stipulation; (ii) entry of a Final Order approving the Settlement; (iii) the proposed Plan of
Allocation; or (iv) any Fee and Expense Application, shall be heard, and any papers submitted in
support of said objections shall be received and considered by the Court at the Settlement
Hearing only if, on or before the date specified in the Preliminary Approval Order, Persons
making objections shall file and serve on Deloitte & Touche's Counsel and Plaintiffs' Class
Counsel (at the addresses provided in paragraph 8 .16) written notice of their intention to appear
(which shall set forth each objection and the basis therefore) and copies of any papers in suppor t
of their position as set forth in the Preliminary Approval Order .
(b) Terms of the Final Orde r
3.5 If the Settlement contemplated by this Stipulation is approved by the Court ,
counsel for the Parties shall request that the Court enter the Final Order. The Final Order shall
specifically include provisions that, among other things, will :
(a) Approve the Settlement and the Stipulation as fair, adequate, reasonabl e
and in the best interests of the Settlement Class for purposes of Rule 23 of the Federal Rules of
24
Civil Procedure, and direct the Parties to consummate the Settlement in accordance with the
terms and conditions of the Stipulation ;
(b) Certify the Settlement Class for purposes of this Settlement only;
(c) Order that, upon the Effective Date, any Representative Plaintiff and each
Fleming Settlement Class Member who has not timely and validly excluded themselves from the
Settlement Class in accordance with the Preliminary Approval Order and Mailed Notice and
Summary Notice, on behalf of themselves, and their respective heirs, executors, administrators,
legal representatives, predecessors, successors, parent companies, subsidiaries, affiliates,
transferees and assigns, and any other Person claiming (now or in the future) through or on
behalf of them ("Releasors"), shall be conclusively deemed to have and by operation of the Final
Order shall have (i) fully, finally and forever released, relinquished, and discharged all Released
Claims against the Deloitte & Touche Releasees, (ii) fully, finally, and forever released,
relinquished, and discharged the Deloitte & Touche Releasees from all Released Claims arising
out of or in connection with the institution, prosecution, or assertion of the Actions or the
Released Claims, (iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in
any action or proceeding of any nature with respect to the Released Claims, and (iv) shall forever
be enjoined and barred from asserting the Released Claims against the Deloitte & Touche
Releasees or any of them in any action or proceeding of any nature regardless of whether any
such Releasor ever seeks or obtains any distribution from the Settlement Amount ; whether or not
such Releasor has executed and delivered a Proof of Claim and Release ; whether or not the
claims of any such Releasor who becomes a Claimant have been allowed or approved in whole
or in part by the Court and whether or not such Claimant becomes an Authorized Claimant ;
whether or not such Releasor has participated in the Settlement Amount ; whether or not such
25
Releaser has filed an objection to the Settlement, to any rejection of his/her/its claim to
participate in the Settlement Amount as provided in the Stipulation, to the proposed Plan of
Allocation, or to any application by Plaintiffs' Class Counsel for an award of attorneys' fees and
expenses and costs ; and whether or not the claims of such Releasor have been approved o r
allowed or such objection has been overruled by the Court . Distributions to Authorized
Claimants shall be deemed final and conclusive against all Fleming Settlement Class Members .
All Fleming Settlement Class Members whose claims are not approved by the Court shall be
barred from participating in distributions from the Settlement Amount, but shall in all respects be
subject to and bound by the Stipulation and the Settlement and the Final Order, including,
without limitation, the releases provided for in the Stipulation and the Final Order .
(d) Order that all claims, however, denominated, which have been, or could
have been, or could be asserted against the Deloitte & Touche Releasees, or any of them, by any
Person, including without limitation, the Representative Plaintiffs and the Fleming Settlement
Class and each Fleming Settlement Class Member, who is, could be, or could have been name d
or added as a defendant in the Actions and, to the extent legally permissible, by or on behalf of
any other Person, which arise from, are based on, are in way related to, or are in connection with
the claims in or subject matter of the Actions and the Released Claims, whether arising under
federal, state or local law, including those based in tort, contract, or under any statute or body of
law, including, without limitation, claims for contribution, indemnification or reimbursement, are
extinguished, discharged, satisfied, dismissed with prejudice and without costs, barred and
otherwise unenforceable, and the future filing of any such claims is permanently enjoined . Such
order is not intended to, and will not, release or extinguish any claim, right or defense which the
Deloitte & Touche Releasees, or any of them, may have with respect to claims that may be
26
asserted by any Person who have timely and validly excluded themselves from the Settlement
Class in the Action ("Opt-out Claims") ; the Deloitte & Touche Releasees reserve their respective
rights, claims and defenses with respect to any Opt-out Claims ;
(e) Pursuant to the Private Securities Litigation Reform Act of 1995, 1 5
U.S .C. § 78u-4(f)(7)(A), and other statutory or common law rights, (i) order that the Deloitte &
Touche Releasees, and each of them, are finally discharged from all claims for contribution,
indemnity, or other federal or state law causes of action arising pursuant to statute, common law
or otherwise, brought by any Person that seek to recover damages from the Deloitte & Touche
Releasees arising out of the Actions, the Settlement, or this Stipulation, the Released Claims and
from all obligations to the Representative Plaintiffs, Fleming Settlement Class Members and the
Fleming Settlement Class arising out of the Actions, and (ii) bar all future claims for
contribution, indemnity or other federal or state law causes of action arising pursuant to statute,
common law or otherwise, that seek to recover damages arising out of the Actions, the
Settlement, the Released Claims or this Stipulation by any Person against any of the Deloitte &
Touche Releasees;
(f) Find that Plaintiffs' Class Counsel had, and has, the authority to negotiate
and propose a settlement to the Court and to enter into this Stipulation on behalf of the Members
of the Settlement Class (including, without limitation, the Representative Plaintiffs) an d
Plaintiffs' Counsel ;
(g) Confirm that the parties designated to serve as Representative Plaintiffs in
this Action are Jackson Capital Management, LLC, Massachusetts State Carpenters Pension
Fund, Massachusetts State Guaranteed Annuity Fund, Alaska Electrical Pension Fund, David
Dickey, Joel Feliciano, and Terry Slater;
27
(h) Provide that the Court shall retain jurisdiction with respect to
implementation and enforcement of the terms of the Settlement set forth in this Stipulation, and
all Parties submit to the jurisdiction of the Court for the purposes of implementing and enforcin g
the Settlement set forth in this Stipulation ;
(i) Provide that pursuant to Federal Rule of Civil Procedure 54, the Court has
expressly determined that there is no just reason for any further delay in approving the Final
Order and entering judgment dismissing the Deloitte & Touche Releasees with prejudice an d
without costs ;
(j) Find that, during the course of the Litigation, counsel for the Settlin g
Parties at all times complied with the requirements of Rule 11 of the Federal Rules of Civi l
Procedure; and
(k) Provide such other further provisions consistent with the terms and
provisions of the Stipulation to which the Parties agree .
4. Releases
4.1 Upon the Effective Date, as defined in paragraph 1 .10 hereof, any Representative
Plaintiff and each Fleming Settlement Class Member, who have not timely and validly excluded
themselves from the Settlement Class in accordance with the Preliminary Approval Order an d
Mailed Notice and Summary Notice, on behalf of themselves, and their respective heirs ,
executors, administrators, legal representatives, predecessors, successors, parent companies ,
subsidiaries, affiliates, transferees and assigns, and any other Person claiming (now or in th e
future) through or on behalf of them ("Releasors"), shall be conclusively deemed to have, and by
operation of the Final Order shall have (i) fully, finally and forever released, relinquished, an d
discharged all Released Claims, against the Deloitte & Touche Releasees, (ii) fully, finally, an d
forever released, relinquished, and discharged the Deloitte & Touche Releasees from all Release d
28
Claims arising out of or in connection with the institution, prosecution, or assertion of the
Actions or the Released Claims, (iii) covenanted not to sue any Deloitte & Touche Releasees in
any action or proceeding of any nature with respect to the Released Claims, and (iv) shall forever
be enjoined and barred from asserting the Released Claims against the Deloitte & Touche
Releasees or any of them in any action or proceeding of any nature, regardless of whether any
such Releasor ever seeks or obtains any distribution from the Settlement Amount ; whether or not
such Releasor has executed and delivered a Proof of Claim and Release ; whether or not any
claims of such Releasor who becomes a Claimant have been allowed or approved in whole or in
part by the Court and whether or not such Claimant becomes an Authorized Claimant ; whether or
not such Releasor has participated in the Settlement Amount ; whether or not such Releasor has
filed an objection to the Settlement, to any rejection of his/herlits claim to participate in the
Settlement Amount as provided in the Stipulation, to the proposed Plan of Allocation, or to any
application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs ;
and whether or not the claims of such Releasor have been approved or allowed or such objection
has been overruled by the Court .
4.2 In accordance with the Private Securities Litigation Reform Act of 1995, 1 5
U.S.C. § 78u-4(f)(7)(A), and other statutory or common law rights, the Deloitte & Touche
Releasees, and each of them, are hereby fully, finally and forever released and discharged from
all claims for contribution, indemnity, or other federal or state law causes of action arising
pursuant to statute, common law or otherwise, brought by any Person, that seek to recover
damages from the Deloitte & Touche Releasees arising out of the Actions, the Settlement or this
Stipulation, the Released Claims and from all obligations to the Representative Plaintiffs and
Fleming Settlement Class Members and the Fleming Settlement Class arising out of the Actions .
29
All future claims for contribution, indemnity or other federal or state law causes of action arising
pursuant to statute, common law or otherwise, that seek to recover damages arising out of the
Actions, the Settlement, the Released Claims or this Stipulation, by any Person against any of the
Deloitte & Touche Releasees or any of them are barred .
5. Administration and Calculation of Claims , Final Awards and Supervisionand Distribution of Settlement Amoun t
5 .1 Upon notice to the Settlement Class and appropriate orders of the Court, the
Claims Administrator, subject to such supervision and direction of the Court and/or Plaintiffs'
Class Counsel as may be necessary or as circumstances may require, shall administer and
calculate the claims to be submitted by Fleming Settlement Class Members and shall oversee
distribution of the Settlement Amount pursuant to the Plan of Allocation to Authorized
Claimants . Subject to the terms of this Stipulation and any order(s) of the Court, the Settlement
Amount shall be applied as follows :
(a) to pay all costs and expenses reasonably and actually incurred in
connection with locating Fleming Settlement Class Members and providing notice to them
pursuant to paragraph 3 .1, above, in connection with administering and distributing the
Settlement Amount to Authorized Claimants, and in connection with paying escrow fees and
costs, if any ;
(b) to pay all costs and expenses, if any, reasonably and actually incurred in
connection with Fleming Settlement Class Members' claims and assisting with the filing and
processing of such claims ;
(c) to pay the Taxes and Tax Expenses described in paragraph 2 .7, above ;
30
(d) to pay any fee and expense award that is allowed by the Court pursuant to
paragraphs 6.1, below, subject to and in accordance with the provisions of paragraphs 6 .1
through 6 .5, below; and
(e) to distribute the balance of the Settlement Amount after payment of items
(a) through (d), above to Authorized Claimants as allowed by the Stipulation, any Plan of
Allocation, or the Court .
5.2 Upon the Effective Date and thereafter, and in accordance with the terms of the
Stipulation, 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 Settlement Amount shall be distributed to
Authorized Claimants, subject to and in accordance with the following :
(a) Each Fleming Settlement Class Member who claims to be an Authorized
Claimant shall be required to timely submit to the Claims Administrator a completed valid Proof
of Claim and Release signed under penalty of perjury and supported by such documents as
specified in the Proof of Claim and Release .
(b) Except as otherwise ordered by the Court, all Fleming Settlement Clas s
Members who fail to submit a Proof of Claim and Release or fail timely to submit a valid Proof
of Claim and Release within such period as may be ordered by the Court, or otherwise allowed,
shall be forever barred from receiving any payments pursuant to the Settlement or thi s
Stipulation, but shall in all other respects be subject to and bound by the provisions of the
Stipulation, the releases contained herein, and the Final Order with respect to all Released
Claims, regardless of whether such Persons seek or obtain by any means, including without
limitation, by submitting a Proof of Claim and Release or any similar document, any distributio n
31
from the Settlement Amount, unless they timely and validly request to be excluded in accordance
with the instructions contained in the Mailed Notice (as defined in paragraph 3 .1 above).
(c) The Settlement Amount shall be distributed to Authorized Claimants in
accordance with a Plan of Allocation to be approved by the Court upon such notice to the
Settlement Class as may be required . Any such Plan of Allocation is not a part of this
Stipulation .
5.3 This is not a claims-made Settlement . Deloitte & Touche will not increase or
decrease the consideration paid pursuant to the Settlement by reason of the amount or value of
claims filed and will have no right to recover any of the amount paid in Settlement of these
Actions after the Effective Date, except as otherwise expressly provided herein . Deloitte &
Touche will have no involvement in reviewing or determining the value of any claim submitted
by any Claimant.
5 .4 Neither the Deloitte & Touche Releasees nor their counsel shall have any
responsibility for, interest in, or liability whatsoever to any Person, including, without limitation,
to any Settlement Class Members, the Settlement Class, Claimants, Authorized Claimants,
Representative Plaintiffs, Plaintiffs' Settlement Counsel, or Plaintiffs' Class Counsel with respect
to the Settlement Amount (except to the extent that Deloitte & Touche shall retain an interest in
the Settlement Amount as provided in paragraphs 6 .2 and 7 .6 of the Stipulation), any investment
or distribution of the Settlement Amount, the proposed or actual Plan of Allocation, the
determination, administration, or calculation of claims, final awards and supervision and
distribution of the Settlement Amount as set forth in Section 5 of the Stipulation, or any
application for attorneys' fees and reimbursement of expenses and costs, the payment or
withholding of Taxes, Tax Expenses, or any losses incurred in connection with any such matters ;
32
and any Person, including, without limitation, the Settlement Class Members, the Settlement
Class, Claimants, Authorized Claimants, Representative Plaintiffs, Plaintiffs' Settlement
Counsel, and Plaintiffs' Class Counsel shall have no claims against Deloitte & Touche, the other
Deloitte & Touche Releasees or Deloitte & Touche's Counsel in connection therewith . Deloitte
& Touche and the other Deloitte & Touche Releasees shall have no responsibility for and no
liability whatsoever with respect to the Settlement .
5.5 No Person shall have any claim against the Representative Plaintiffs, Plaintiffs'
Class Counsel, the Claims Administrator, based on distributions made in accordance with the
Settlement and this Stipulation, any Plan of Allocation, or further orders of the Court.
5 .6 It is understood and agreed by the Settling Parties that any Plan of Allocation o f
the Settlement Amount including, but not limited to, any adjustments to any Authorized
Claimant's claim, is not a part of the 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 the Stipulation, and any order or proceeding relating to the Plan of Allocation shall not
operate to terminate or cancel the Stipulation or affect the finality of the Court's Final Order
approving the Stipulation and the Settlement herein, or any other orders entered pursuant to the
Stipulation.
5 .7 Each Proof of Claim and Release shall be submitted to the Claims Administrato r
who shall determine, under the supervision of Plaintiffs' Class Counsel, in accordance with this
Stipulation and Order of the Court, the extent, if any, to which each claim shall be allowed,
subject to appeal to the Court. Prior to disbursement of the Settlement Amount, Deloitte &
Touche will receive a list of Proofs of Claim and Releases received by the Claims Administrator
indicating which Proofs of Claim and Releases have been allowed by the Claims Administrator .
33
5 .8 Proofs of Claim and Releases that do not meet the filing requirements may b e
rejected . Prior to rejection of a Proof of Claim and Release, the Claims Administrator shall
communicate with the Claimant in order to remedy curable deficiencies in the Proof of Claim
and Release submitted. The Claims Administrator, under the supervision of Plaintiffs' Class
Counsel, shall notify in a timely fashion and in writing, all Claimants whose Proofs of Claim and
Releases they propose to reject in whole or in part, setting forth the reasons thereof, and shall
indicate in such notice that the Claimant whose claims are to be rejected as the right to review by
the Court if the Claimant so desires and complies with the requirement of paragraph 5 .9 below.
5.9 If any Claimant whose claim has been rejected in whole or in part desires t o
contest such rejection, the Claimant must, within twenty (20) days after the date of mailing of the
notice required by paragraph 5 .8 above, serve upon the Claims Administrator a notice and
statement of reasons indicating the Claimant's ground for contesting the rejection along with any
supporting documentation, and requesting a review thereof by the Court . If a dispute concerning
a claim cannot be otherwise resolved, Plaintiffs' Class Counsel shall thereafter present the
request for review to the Court . Claimants involved in such a dispute whose rejection is
ultimately upheld by the Court shall be forever barred from participating in distributions from the
Settlement Amount pursuant to this Stipulation and the Settlement set forth herein, but shall in all
respects be subject to and bound by this Stipulation and the Settlement, including the releases
provided for in this Stipulation, the Proof of Claim and Release, and the Final Order and shall be
conclusively deemed to have and by operation of the Final Order shall have (i) fully, finally and
forever released, relinquished, and discharged all Released Claims against the Deloitte & Touche
Releasees, (ii) fully, finally, and forever released, relinquished, and discharged the Deloitte &
Touche Releasees from all claims, including without limitation, Released Claims arising out o f
34
or in connection with the institution, prosecution, or assertion of the Actions or the Released
Claims, (iii) covenanted not to sue any Deloitte & Touche Releasees in any action or proceeding
of any nature with respect to the Released Claims, and (iv) shall forever be enjoined and barred
from asserting the Released Claims against any Deloitte & Touche Releasees in any action or
proceeding of any nature ; whether or not such Claimants have filed an objection to the
Settlement, to any rejection of their claim as provided in paragraphs 5 .8 and 5.9 herein, to the
proposed Plan of Allocation, or to any application by Plaintiffs' Class Counsel for an award of
attorneys' fees and expenses and costs ; and whether or not the claims of such Claimants have
been approved or allowed or such objection has been overruled by the Court .
5 .10 Payment to Authorized Claimants pursuant to this Stipulation shall be deeme d
final and conclusive against all Fleming Settlement Class Members . All Fleming Settlement
Class Members whose claims are not approved by the Court shall be barred from participating in
distributions from the Settlement Amount, but shall in all respects be subject to and bound by
this Stipulation and the Settlement, including the releases provided for in this Stipulation, the
Proof of Claim and Release, and shall be conclusively deemed to have, and by operation of the
Final Order shall have (i) fully, finally and forever released, relinquished, and discharged all
Released Claims against the Deloitte and Touche Releasees ; (ii) fully, finally, and forever
released, relinquished, and discharged the Released Persons from all Released Claims arising out
of or in connection with the institution, prosecution, or assertion of the Actions or the Released
Claims, (iii) covenanted not to sue the Deloitte & Touche Releasees in any action or proceeding
of any nature with respect to the Released Claims, and (iv) shall forever be enjoined and barred
from asserting the Released Claims against the Deloitte & Touche Releasees or any of them in
any action or proceeding of any nature; whether or not such Fleming Settlement Class Members
35
have executed and delivered a Proof of Claim and Release ; whether or not such Fleming
Settlement Class Members participated in the Settlement Amount ; and whether or not such
Claimants have filed an objection to the Settlement, to any rejection of their claims as provided
in paragraphs 5 .8 and 5 .9 herein, to the proposed Plan of Allocation, or to any application by
Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs and whether or
not the claims of such Claimants have been approved or allowed or such objection has been
overruled by the Court.
5 .11 The Representative Plaintiffs, through Plaintiffs' Sett lement Counsel, hereby
agree not to opt-out or object to this Stipulation or entry of the Preliminary Approval Order or
Final Order.
6. Plaintiffs' Class Counsel's Fees and Reimbursement of Expenses
6.1 Plaintiffs' Class Counsel may, upon such notice to the Class as may be required ,
submit an application or applications (the "Fee and Expense Application'") for distributions to
them from the Settlement Amount as appropriate, for : (a) an award of attorneys' fees ; plus (b)
reimbursement of expenses incurred in connection with prosecuting the Actions ; plus (c) any
interest on such attorneys' fees and expenses (until paid) at the same rate and for the same
periods as earned by the Settlement Amount, as appropriate, as may be awarded by the Court ;
plus (d) any amounts payable to the Representative Plaintiffs pursuant to the provisions of the
PSLRA, as may be awarded by the Court .
6.2 Any fee and expense award as set forth in paragraph 6 .1 herein , to the extent
ordered by the Court, shall be paid to Plaintiffs' Class Counsel within ten (10) business days after
the Court has entered the Final Order. In the event that this Stipulation is terminated or canceled
as provided herein, including without limitation, in the event any order preliminarily approving
this Settlement, finally approving this Settlement, or awarding attorneys' fees or expenses an d
36
costs is reversed, modified or vacated following any appeal, or that the Effective Date does not
occur as provided herein, then Plaintiffs' Class Counsel shall promptly (no later than 10 business
days) remit to the Settlement escrow account (or, in the event that this Stipulation is terminated
or canceled as provided herein, to Deloitte & Touche) any amount of the fee and expense award
that has been paid to Plaintiffs' Class Counsel (even if some or all of such amounts have already
been disbursed to Plaintiffs' Class Counsel or otherwise), plus any interest actually paid or that
would have accrued from the date of payment to the date of repayment to the Settlement escrow
account (or, in the event that the Stipulation is terminated or canceled as provided herein, to
Deloitte & Touche) at the existing United States Treasury Bill Rate . If said amount is not
returned within such ten (10) day period, then interest shall accrue thereon at the rate of five (5)
percent per annum until the date that said amount is returned and upon application by Deloitte &
Touche, the Court shall order such return to Deloitte & Touche to be made within ten (10) days
of the date the order is entered and neither Plaintiffs' Class Counsel nor Plaintiffs' Settlement
Counsel shall oppose or object to the entry of such order.
6.3 The procedure for, and the allowance or disallowance by the Court of, the Fee an d
Expense Application are not part 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 or proceedings relating to
the Fee and Expense Application, or any appeal from any fee and expense award or any other
order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel
the Stipulation, or affect or delay the finality of the Final Order and the Settlement of the Actions
as set forth herein .
37
6.4 The Deloitte & Touche Releasees, or any of them, shall have no responsibility for ,
and no liability whatsoever with respect to, any paym ent(s) to Plaintiffs' Class Counsel pursuant
to paragraph 6 .1 above .
6 .5 The Deloitte & Touche Releasees, or any of them, shall have no responsibility for ,
and no liability whatsoever with respect to, the allocation of the fee and expense award among
Plaintiffs' Class Counsel, and/or any other Person who may assert some claim thereto, or any fe e
and expense award that the Court may make in the Actions .
7. Conditions of Settlement, Effect of Disapproval, Cancellation or Termination
7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of al l
of the following events :
(a) Deloitte & Toucbe shall have timely transferred or caused to be timel y
transferred the Settlement Amount to the Escrow Agent ;
(b) Deloitte & Touche does not have any right under paragraph 7 .4, below, to
terminate the Stipulation or, if Deloitte & Touche does have such right, it has given written
notice to Plaintiffs' Settlement Counsel that it will not exercise such right ;
(c) the Court has entered the Final Order ; and
(d) the Final Order has become Final, as defined in paragraph 1 .12, above.
7.2 Upon the occurrence of all of the events referenced in paragraph 7 .1, above, any
and all remaining interest or right of Deloitte & Touche in or to the Settlement Amount, if any ,
shall be absolutely and forever extinguished .
7 .3 If all of the conditions speci fied in paragraph 7 .1 are not met , then the Stipulation
shall be cancelled and terminated, subject to and in accordance with paragraphs 7 .6 and 7.7 ,
below, unless Plaintiffs' Class Counsel and counsel for Deloitte & Touche mutually agree in
writing to proceed with the Stipulation .
38
7.4 Deloitte & Touche shall have the option to terminate the Settlement in its entirety
in the event that Fleming Settlement Class Members choose to exclude themselves from the
Settlement Class, as set forth in a separate agreement (the "Supplemental Agreement") executed
between plaintiffs and Deloitte & Touche .
7.5 In the event that plaintiffs in the matters captioned Doucef et al . v. Hansen, et al
N.D. Tex ., 3 :03-1950 and Fetterman et al . v. Hansen et al ., N.D. Tex., 3 :03-1435, choose to
exclude themselves from this Stipulation and Settlement, the Settlement Amount shall be
reduced by an amount ("Reduction") to be agreed upon between Plaintiffs' Settlement Counsel
and Deloitte & Touche. If Plaintiffs' Settlement Counsel and Deloitte & Touche cannot agree on
the Reduction amount, then they will enter into mediation to be facilitated by Eric Green related
to the Reduction amount.
7.6 Unless otherwise ordered by the Court, in the event that the Stipulation shoul d
terminate, or be cancelled, or otherwise fail to become effective for any reason, or the Effective
Date does not occur as provided herein, including without limitation, in the event that the Final
Order is reversed, modified or vacated following any appeal taken therefrom, then within ten
(10) business days after written notification of such event is sent by counsel for Deloitte &
Touche or by Plaintiffs' Class Counsel to the Escrow Agent, the Settlement Amount, together
with all interest accrued thereon, except for amounts actually incurred in connection with
providing the Mailed Notice and Summary Notice, shall be remitted to Deloitte & Touche or as
directed by Deloitte & Touche counsel . If said amount is not returned within such ten (10) day
period, then interest shall accrue thereon at the rate of five (5) percent per annum until the date
that said amount is returned and upon application by Deloitte & Touche, the Court shall order
such return to Deloitte & Touche to be made within ten (10) days of the date the order is entere d
39
and neither Plaintiffs' Class Counsel nor Plaintiffs' Settlement Counsel shall oppose or object to
the entry of such order.
7.7 In the event that the Stipulation should terminate, or be cancelled, or otherwise
fail to become effective for any reason, or the Effective Date does not occur as provided herein,
including without limitation in the event that the Final Order is reversed or vacated following
any appeal taken therefrom, then (i) the Settling Parties shall be restored to their respective
positions in the Actions as of May 20, 2005, with all of their respective claims and defenses,
including without limitation all objections to jurisdiction by Deloitte & Touche preserved as they
existed on that date ; (ii) the terms and provisions of the Stipulation, with the exception of
paragraphs 1 .1 through 1 .32, 2 .2, 2 .3, 2 .6, 2 .7, 5 .4, 6,2, 6 .4, 6 .5, 7 .6 through 7 .8, 8 .2 through 8 .16
herein (which shall continue in full force and effect), shall be null and void and shall have no
further force or effect with respect to the Settling Parties, and neither the existence nor the terms
of this Stipulation (nor any negotiations preceding this Stipulation nor any acts performed
pursuant to, or in furtherance of, this Stipulation) shall be used in the Actions or in any other
action or proceeding for any purpose, (iii) any judgment or order entered by the Court in
accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc; and (iv)
the Settlement Class, if it has been certified, shall be decertified .
7.8 The Representative Plaintiffs and Plaintiffs' Class Counsel agree not t o
communicate with members of the news media (including without limitation employees of radio
and television stations, newspapers, magazines, wire services and trade publications), or
otherwise make any comment in a public forum (including without limitation academic or
professional seminars, classes or conferences, articles for professional or other publications, and
Internet discussion groups), whether orally or in writing, whether by press release, by electronic
40
mail or by other means, concerning the Actions, or to make any statement that might be
construed directly or indirectly or suggest that the Settlement or payment of the Settlement
Amount is an admission of any wrongdoing, including without limitation the claims against
Deloitte & Touche that were the subject of the Actions, and the Settlement of the Actions, except
(i) pursuant to court order or as authorized herein, (ii) to communicate with Settlement Class
Members, (iii) as otherwise needed to effectuate this Settlement, or (iv) as agreed to by the
Parties in writing. Nothing in this provision shall be construed to limit the right of Plaintiffs'
Class Counsel to (i) cite, quote or discuss in court papers filed in other litigation (or in court) the
decisions or orders of the Court in the Actions or the complaints filed in the Actions, (ii) respond
to inquiries about the status of the Actions by indicating that the matter has been settled,
information about the Settlement is available in the public record and, if asked, confirm the
amount of the Settlement, (iii) identify the Actions and cite to the opinions and orders of the
Court in firm resumes or other materials describing their respective law firms in the same
manner in which such information about other actions usually appears in such materials, or (iv)
in confidential settlement discussions with other parties in other litigation, to make reference to
information available in the public record in the Actions .
8 . Miscellaneous Provisions
8.1 The Settling Parties : (a) acknowledge that it is their intent to consummate this
agreement ; and (b) agree to cooperate to the extent reasonably necessary to effectuate and
implement all terms and conditions of the Stipulation and to exercise their best efforts to
accomplish the foregoing terms and conditions of the Stipulation .
8 .2 Deloitte & Touche's obligations and responsibilities arising from, concerning, or
in respect of the Settlement herein, including, but not limited to, those respecting the
establishment of the Fleming Settlement Amount, shall be those of Deloitte & Touch e
41
exclusively, without any right of recourse of any kind against any other Person, including,
without limitation, any other Deloitte & Touche Releasee and Representative Plaintiffs, on behalf
of themselves, the Fleming Settlement Class and all Fleming Settlement Class Members stipulate
and agree that they will not, under any circumstances, assert any claim concerning, or in any way
seek payment or performance of, any obligation contained or implied in the Settlement from any
Person (including, without limitation, any Deloitte & Touche Releasee) other than Deloitte &
Touche .
8 .3 The Parties intend this Settlement to be a final and complete resolution of al l
Released Claims between them with respect to the Actions . Deloitte & Touche does not admit
any liability to any Person, nor does Deloitte & Touche admit any wrongdoing or liability,
however described, including without limitation, any violations of federal or state securities
laws, fraud, malpractice, gross negligence or negligence and the Deloitte & Touche Releasees
expressly deny any such wrongdoing or liability. Nothing herein contained shall constitute an
adjudication or finding on the merits as to the claims of any party hereto, and shall not be
deemed to be, intended to be or construed as an admission of liability, in any way on the part of
any party hereto, or any evidence of the truth of any fact alleged or the validity of any claims that
have been or could be asserted in the Actions, all of whom expressly deny any liability for any
and all claims of any nature whatsoever ; nor shall anything herein contained constitute an
acknowledgment of fact, allegation or claim that has been or could have been made, nor shall
any third party derive any benefit whatsoever from the statements made within this Stipulation .
Nor shall this Stipulation be construed, offered or received in evidence in any action or
proceeding of any kind whether as an admission or concession of any liability or wrongdoing o r
42
otherwise by any party hereto except as may be necessary to consummate, defend or enforce this
Stipulation,
8 .4 Neither the Stipulation nor the Settlement, nor any act performed or document
executed pursuant to or in furtherance of the Stipulation or the Settlement : (a) is or may be
deemed to be or may be used as an admission of, or evidence of, the validity of any Released
Claim, or of any wrongdoing or liability of any Deloitte & Touche Releasee ; (b) is or may be
deemed to be or maybe used as an admission of, or evidence of, any fault or omission of any
Deloitte & Touche Releasee in any civil, criminal or administrative proceeding in any court,
administrative agency or other tribunal ; (c) shall constitute an adjudication or finding on the
merits as to the claims of any party hereto, and shall not be deemed to be, intended to be or
construed as an admission of liability, in any way on the part of any party hereto, or any evidence
of the truth of any fact alleged or the validity of any claims that have been or could be asserted in
the Actions, all of whom expressly deny any liability for any and all claims of any natur e
whatsoever; nor shall anything herein contained constitute an acknowledgment of fact, allegation
or claim that has been or could have been made, nor shall any third party derive any benefit
whatsoever from the statements made within this Stipulation ; or (d) shall be construed against
Deloitte & Touche or the Deloitte & Touche Releasees as an admission or concession that th e
consideration to be given hereunder represents the amount which could be or would have been
recovered after trial . Any Deloitte & Touche Releasee may file the Stipulation and/or the Final
Order in any action that may be brought against it in order to support a defense or counterclaim
based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment
bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or
counterclaim .
43
8.5 All agreements made and orders entered during the course of the Actions relating
to the confidentiality of information shall survive this Stipulation .
8.6 Neither the Stipulation nor the Settlement, nor any action taken by any Person or
any document executed pursuant to or in furtherance of the Stipulation or the Settlement
(including, without limitation, any action taken or any document executed in connection with
negotiating, consummating, or implementing the Stipulation or the Settlement), constitutes a
submission to the jurisdiction of any court . Neither the Stipulation nor the Settlement, nor any
such action taken or document executed, is or may be deemed to be or may be used as an
admission that, or evidence that, Deloitte & Touche or any Deloitte & Touche Releasee is subject
to such jurisdiction, and neither the Stipulation or the Settlement, nor any such action taken or
document executed, shall be used by any Person as evidence supporting the exercise of such
jurisdiction. Notwithstanding anything else contained in this Stipulation, the provisions of this
paragraph 8 .6 shall survive under all circumstances, whether the Settlement set forth in this
Stipulation succeeds or fails .
8 .7 All of the Exhibits to the Stipulation are material and integral parts hereof and are
fully incorporated herein by this reference .
8 .8 The Stipulation may be amended or modified only by a written instrument signed
by or on behalf of all Settling Parties or their respective successors-in-interest .
8 .9 The Stipulation and the Exhibits attached hereto, those that will later be attached
hereto, and the Supplemental Agreement, constitute the entire agreement between the Settling
Parties and no representations, warranties or inducements have been made to any party
concerning the Stipulation or its Exhibits or the Supplemental Agreement other than the
44
representations, warranties and covenants contained and memorialized in such documents .
Except as otherwise provided herein, each party shall bear its own costs .
8 .10 Plaintiffs' Class Counsel, on behalf of the Settlement Class, are expressly
authorized by the Representative Plaintiffs to take all appropriate action required or permitted t o
be taken by or on behalf of the Settlement Class pursuant to the Stipulation to effectuate its term s
and also are expressly authorized to enter into any modifications or amendments to th e
Stipulation on behalf of the Settlement Class that they deem appropriate .
8 .11 Each counsel or other Person executing the Stipulation or any of its Exhibits o n
behalf of any party hereto hereby warrants that such Person has the full authority to do so .
8.12 The Stipulation may be executed by facsimile and in one or more counterparts .
All executed counterparts and each of them shall be deemed to be one and the same instrument .
Counsel for the parties to the Stipulation shall exchange among themselves original signe d
counterparts and a complete set of executed counterparts shall be filed with the Court .
8.13 The Stipulation shall be binding upon, and inure to the benefit of, the successor s
and assigns of the parties hereto.
8.14 The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the Stipulation .
8 .15 The Stipulation and the Exhibits attached hereto, those that will later be attached
hereto, and the Supplemental Agreement shall be considered to have been negotiated, executed
and delivered, and to be wholly performed, in the State of Texas, and the rights and obligations
of the parties to the Stipulation shall be construed and enforced in accordance with, and governed
by, the internal, substantive laws of the State of Texas without giving effect to that State's choic e
of law principles .
45
8 .16 All notices, requests, claims, demands, and other communications under thi s
Stipulation shall be in writing, and shall be given or made (and shall be deemed to have been
duly given or made upon receipt) by delivery in person, by registered or certified mail (postage
prepaid, return receipt requested), by facsimile, or by Federal Express or similar overnight
courier to the respective parties at the following addresses (or at such address for a party as shall
be specified in a notice given in accordance with this paragraph) :
(i) If to Plaintiffs' Class Counsel :
BERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, PA 19103Attention: Sherrie R. Savett, Esq.Tel: (215) 875-3000Fax: (215) 875-570 1
and
SUsMAN GODFREY LLP1000 Louisiana, Suite 5100Houston, Texas 77002Attention : Kenneth S. Marks, Esq .Tel : (713) 651-9366
(ii) If to Deloitte & Touche :
Barbara A. Mentz, EsquireA ttorney for Deloitte & Touche LLP1633 Broadway (37th Floor)New York, NY 10019(212) 492-388 4Fax: (212) 492-420 1
and
46
Aim Gum? STRAuss ICAU: R & FELn LLPOne Commerce Square2005 Market StreetSuite 2200Philadelphia, PA 19103Attention : Edward F. Mannino, Esq.Tel : (215) 965-1340Fax: (215) 965-121 0
IN WITNESS WHEREOF, the parties hereto have caused the Stipulation to be executed ,
by their duly authorized attorneys, dated as of May 20,2 5 .
By :Kerrie R. Savett
Jerome M. MarcusGlen AbramsonCasey M. PrestonJon LambirasBERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, PA 19103(215) 875-3000
By:Kenneth S . MarksJohnny W. CarterSuS]VIAN GQDMY LLP1000 Louisiana, Suite 5100Houston, Texas 77002(713) 651-9366
CO LEAD COUNSEL FOR LEADPI NTIFF AND THE CLASS
OF COUNSEL :
Sam BaxterMcxo©L Suers, P.C.505 East Travis Street, Suite 105Marshall , Texas 7567 0(903) 927-211 1
47
AKIN GuMP STRAUSS HAUER & FELD LLPOne Commerce Squar e
2005 Market StreetSuite 2200Philadelphia, PA 19103Attention : Edward F. Mannino, Esq.Tel: (215) 965-1340Fax: (215) 965-121 0
IN WITNESS WHEREOF, the parties hereto have caused the Stipulation to be executed ,
by their duly authorized attorneys, dated as of May 20, 2005 .
By :Sherrie R . SavettJerome M. MarcusGlen. AbramsonCasey M. PrestonJon LambirasBERGER & MONTAGUE, P.C.
1622 Locust StreetPhiladelphia, PA 19103(215) 75-3000
By: Kenneth S . Marks
Johnny V. CarterSUSMAN GoDFREY LLP1000 Louisiana, Suite 5100Houston, Texas 77002(713) 651-9366
CO-LEAD COUNSEL FOR LEADPLAINTIFF AND THE CLASS
OF COUNSEL :
Sam BaxterMCKOOL SMITH, P.C .505 East Travis Street, Suite 105Marshall, Texas 75670(903) 927-211 1
47
1933 ACT COUNSEL:
William S. LerachDarren J . RobbinsSteven W. PepichBenny C. Goodman, IIIRyan LlorensLURACn, COUGHLIN, STOIA & ROBBINS LLP401 B. Street, Suite 1700San Diego, CA 92101(619) 231-1058(619) 231-7423 (Fax)
S. Gene CauleyCurtis L. BowmanJ. Allen CarneyMarcus N. BozemanTiffany WyattJames KaufmanCAULEY, BOWMAN, CARNEY & 1 VILLIAMS,PLLCP.O. Box 2543 8Little Rock, AR 72221-543 8(501) 3-00(501'312-8505 (F ,
By:Edward F. ManninoAttorney- in-ChargePennsylvania Bar No . 04504emannino@akingump .comAKIN GUMP STRAUSS HAUER & FELD UPOne Commerce Square2005 Market Street , Suite 2200Philadelphia, Pennsylvania 19103Phone : (215) 965-1200Fax: (215) 965-1210
Lisa S . GalleranoAKIN GUMP STRAUSS HAUER & FELD LLP1700 Pacific Avenue, Suite 4100Dallas, TX 75201Phone: (214) 969-2800Facsimile : (214) 969-4343
Attorneys for Deloitte & Touche LLP
48
CERTIFICATE OF SERVICE
I hereby certify that on the 2d day of August, 2005 a true and correct copy of theforegoing along with exhibits thereto was delivered to the following parties by First Class Mail :
Stephen Cass WeilandPA TON BOGGS LLP2001 Ross Avenue, Suite 3000Dallas, TX 75201-2774Attorneys for Defendant Neil,]: Rider
Edwin J . TomkoMCMANEMIN & SMITH, P .C .600 N . Pearl Street, Suite 1600Plaza of the Americas, L.B. 175Dallas, TX 7520 1Attorneys for Defendant Thomas G. Dahien
Terrence Har tMLTNSCH HARDT KOPF & HARR, P .C.4000 F ountain Plac e1445 Ross AvenueDallas, TX 75202-2790Attorneys for Defendant Mark Shapiro
Wayne Seca reSECORE & WALLER, LLPThree Forest Plaza12221 Merit Drive, Suite 1100Dallas, TX 7525 1Attorneys for Defendant Mark Hansen
Noel B . HensleyHAYNES & BOONE, LLP901 Main Street , Suite 3100Dallas, TX 75202
andMichael J . ChepigaPeter E. KazanoffSIMPSON THACHER & BARTLETT, LLP425 Lexington AvenueNew York , NY 10017-3954Attorneys for Defendants Lehman Brothers Inc .,Morgan Stanley & Co., Inc ., Wachovia CapitalMarkets LLC (Successor to First Union Securities,Inc) and Deutsche Bank Secu rities, Inc .
Kathy PatrickScott A . HumphriesGIBBS & BREWS, LLP1100 Louisiana, Ste . 5300Houston, TX 77002Attorneys for Defendants Fleming Companies, Inc.Post-Confirmation Trust and Core MarkInternational, Inc.
Jeffrey LevingerCARRINGTON, COLEMAN, SLOMAN &BLUMENTHAL, LLP200 Crescent Court, Suite 1500Dallas, TX 7520 1Attorneys for Defendants Herbert M. Baum,Kenneth M. Duberstein, Archie R. Dykes, Carol B.Hallett, Robert S. Hamada, Alice M. Peterson, andCarlos M. Hernandez
Glen L . Abramson
EXHIBIT A
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXA S
TEXARKANA DIVISION
IN RE FLEMING COMPANIES § MDL NO . 1530SECURITIES LITIGATION
This Document Relates To : All Actions § Judge Ward
PRELIMINARY ORDER IN CONNECTIONWITH CLASS ACTION SETTLEMENT PROCEEDING S
This matter is before the Court on Plaintiffs' motion for approval of a proposed clas s
action settlement. The Parties have entered into a Stipulation and Settlement dated as of May 20 ,
2005 (the "Stipulation") that, together with the exhibits accompanying (and made part of) th e
Stipulation, and a Supplemental Agreement, sets forth the terms and conditions for a settlement
and dismissal of the Actions and Released Claims with prejudice and without costs . Having read
and considered the Stipulation (the defined terms of which shall have the same meaning herein) ,
including the exhibits annexed thereto, and the Supplemental Agreement, and having heard th e
Parties and given due consideration, the Court ORDERS as follows :
1 . Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Cour t
conditionally certifies the following Settlement Class for purposes of this Settlement only :
All Persons who purchased or otherwise acquired Securities ofFleming at any time in the period commencing May 9, 2001 andending February 25, 2003 inclusive, including, without limitation,all Persons who purchased or otherwise acquired Securities in,pursuant to, or traceable to Fleming's March 2002 Offering and allPersons who purchased or otherwise acquired Securities in,pursuant to, or traceable to Fleming's June 2002 Offering .Excluded from the Fleming Settlement Class are those Personswho timely and validly request exclusion from the Settlement
Class, to the extent that they are able to do so under Rule 23 of theFederal Rules of Civil Procedure, pursuant to the Mailed andSummary Notice. Also excluded from the Fleming SettlementClass are the Defendants (as defined in Paragraph 1 .8 of theStipulation), their respective subsidiaries and affiliates, members ofthe immediate families of each of the Defendants and the legalrepresentatives, heirs, successors, affiliates or assigns each of theDefendants .
2. The Court fmds, for settlement purposes only, that the prerequisites to a class
action under Rule 23(a) of the Federal Rules of Civil Procedure have been satisfied in that : (a)
the number of Settlement Class Members is so numerous that joinder of all Settlement Clas s
Members is impracticable ; (b) there are questions of law and fact common to the Settlement
Class; (c) the claims of the proposed Representative Plaintiffs set forth in paragraph 3 herein ar e
typical of the claims of the Settlement Class they seek to represent ; (d) the propose d
Representative Plaintiffs set forth in paragraph 3 herein will fairly and adequately represent th e
interests of the Settlement Class ; (e) the questions of law and fact common to the Settlement
Class Members predominate over any questions affecting only individual Settlement Clas s
Members ; and (f) a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.
3 . For purposes of settlement only, the parties designated to serve as Representativ e
Plaintiffs in the class actions are Jackson Capital Management, LLC, Massachusetts Stat e
Carpenters Pension Fund, Massachusetts State Guaranteed Annuity Fund, Alaska Electrical
Pension Fund , David Dickey, Joel Feliciano , and Terry Slater.
4. This Court finds that Plaintiffs' Settlement Counsel had, and has, the authority to
negotiate and propose a settlement to this Court and to enter into the Stipulation and Settlemen t
on behalf of the Settlement Class Members (including without limitation the Representativ e
Plaintiffs) and Plaintiffs' Class Counsel .
2
5. Subject to final determination following a Settlement Hearing and after notice to
the Settlement Class, the Court preliminarily approves the Stipulation and the Settlement se t
forth therein as being fair, reasonable and adequate, and in the best interests of the Settlement
Class for purposes of Rule 23 of the Federal Rules of Civil Procedure .
6. The Settlement Hearing shall be held before this Court on , 2005 at
m. in Courtroom , of the United States District Court for the Eastern Distric t
of Texas, Texarkana Division for the following purposes :
a. to determine finally whether these Actions satisfy the applicabl e
prerequisites for class action treatment under Rule 23 of the Federal Rules of Civil Procedure ;
b. to determine whether the proposed Settlement of the Actions as set forth i n
the Stipulation is fair, adequate, reasonable and in the best interests of the Settlement Class an d
should be approved by the Court ;
c . to determine whether the Final Judgment and Order of Dismissal (the
"Final Order") should be entered in the Actions ;
d. to determine whether and in what amount Plaintiffs' Class Counsel' s
application for attorneys fees and reimbursement of expenses and costs incurred should b e
approved by the Court, provided that Plaintiffs' Class Counsel have submi tted their application
for such fees and expenses and costs to the Court five (5) days before the Settlement Hearing ;
e. to determine whether the Plan of Allocation proposed by Representativ e
Plaintiffs and Plaintiffs' Settlement Counsel should be approved by the Court ; and
f. to determine whether the Actions should be dismissed on its merits with
prejudice and without costs, and whether any Representative Plaintiffs and each Flemin g
Settlement Class Member, who has not timely and validly excluded themselves from the
3
Settlement Class in accordance with this Order and Mailed Notice and Summary Notice, o n
behalf of themselves and their respective heirs, executors, administrators, legal representatives ,
predecessors, successors, parent companies, subsidiaries, affiliates, transferees and assigns, an d
any other Person claiming (now or in the future) through or on behalf of them ("Releasors") ,
shall be conclusively deemed to have and by operation of the Final Order shall have (i) fully ,
finally and forever released, relinquished, and discharged all Released Claims against the
Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished, an d
discharged the Deloitte & Touche Releasees from all Released Claims arising out of or in
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any of
them in any action or proceeding of any nature regardless of whether any such Releasor eve r
seeks or obtains any distribution from the Settlement Amount; whether or not such Releasor ha s
executed and delivered a Proof of Claim and Release ; whether or not the claims of any such
Releasor who becomes a Claimant have been allowed or approved in whole or in part by th e
Court and whether or not such Claimant becomes an Authorized Claimant ; whether or not such
Releasor has participated in the Settlement Amount; whether or not such Releasor has filed an
objection to the Settlement, to any rejection of his, her, or its claim to participate in th e
Settlement Amount as provided in the Stipulation, to the proposed Plan of Allocation, or to any
application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs ;
and whether or not the claims of such Releasor have been approved or allowed or such objectio n
has been overruled by the Court .
4
7. The Court finds that the form, substance, and requirements of the Mailed Notic e
and Summary Notice including individual notice to all potential Settlement Class Members wh o
can be identified upon reasonable effort constitute the best notice practicable under th e
circumstances as well as valid, due, and sufficient notice to all Persons entitled thereto, includin g
all Settlement Class Members and the Settlement Class, and complies fully with the requirement s
of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, th e
Private Securities Litigation Reform Act of 1995, and other applicable law, and approves the
form, substance and requirements of the Mailed Notice for mailing to potential Settlement Clas s
Members and the Summary Notice .
8. The Court finds that the mailing, distribution, and publication of the Maile d
Notice and the Summary Notice in the manner and form set forth in paragraph 7 of this Orde r
constitute the best notice practicable under the circumstances as well as valid, due, and sufficient
notice to all Persons entitled thereto, including all Settlement Class Members and the Settlemen t
Class, and complies fully with the requirements of Rule 23 of the Federal Rules of Civil
Procedure, the Constitution of the United States, the Private Securities Litigation Reform Act of
1995, and other applicable law, and approves the form, substance and requirements of the Maile d
Notice for mailing to potential Settlement Class Members and the Summary Notice .
9. The Court approves the form, substance, and requirements of the Proof of Claim
and Release .
10. The Court approves the form, substance, and requirements of the Escro w
Agreement attached to the Stipulation as Exhibit "C" .
11 . Plaintiffs' Settlement Counsel are hereby authorized to retain Heffler, Radetich &
Saitta, LLP as Claims Administrator to supervise and administer the notice procedures as well as
the processing of claims as more fully set forth below :
a. Not later than ten (10) business days after this Order is entered (th e
"Notice Date"), Plaintiffs' Class Counsel shall mail or cause to be mailed a copy of the Maile d
Notice and the Proof of Claim and Release to be sent by United States first-class mail, postag e
prepaid, to all potential Settlement Class Members who can be identified through reasonabl e
effort by Plaintiffs' Class Counsel .
b. Not later than fourteen (14) days after the Notice Date, Plaintiffs' Clas s
Counsel shall cause the Summary Notice to be published in the national edition of The Wal l
Street Journal or shall cause a copy of the Summary Notice to be published electronically on an
equally suitable on-line site .
Not later than five (5) days prior to the Settlement Hearing, Plaintiffs '
Class Counsel or their designee shall file with the Clerk of the Court, and serve on Deloitte &
Touche's Counsel, a sworn statement describing the mailing and publication of the notice s
required herein .
12. Settlement Class Members who wish to participate in the Settlement provided for
in the Stipulation must complete and submit a Proof of Claim and Release in accordance with th e
instructions contained therein. Every Proof of Claim and Release must be submitted no later
than , 2005, unless the deadline is extended by the Court .
13. Settlement Class Members who wish to exclude themselves from the Settlemen t
Class must, by first-class mail, send a written request for exclusion from the Settlement Clas s
signed by the Settlement Class Member or his authorized designee, so that it is received on or
6
before , 2005, which is fifteen (15) days prior to the Settlement Hearing. Request s
for exclusion should be addressed to Berger & Montague, P.C., 1622 Locust Street, Philadelphia,
PA 19103 , Attention : Sherrie R. Save tt, Esq., and Susman Godfrey LLP, 1000 Louisiana Street,
Suite 5106 , Houston , TX 77002, Attention : Kenneth S . Marks, Esq. No person may exclude
himself or herself or itself from the Settlement Class after that date . In order to be valid, the
request must include: (a) the name of the case, In re Fleming Sec . Litig., MDL 1530 ; (b) the
Settlement Class Member's name, address, and telephone number; (c) the Settlement Clas s
Member's social security or taxpayer identification number ; (d) the number and value of Fleming
Securities purchased or otherwise acquired by the Settlement Class Member during the Class
Period, the price paid therefor, and the date of such purchase or other acquisition and the numbe r
and value of Fleming Securities still owned as of the close of trading on February 25, 2003 ; (e) a
statement that the Settlement Class Member requests to be excluded from the Settlement Class ;
and (f) the signature of the Settlement Class Member, or his, her or its authorized designee. If
the request for exclusion is sought on behalf of a third party (such as a trust or estate), evidenc e
of authorization to act as his, her or its authorized designee must be enclosed . If a Settlement
Class Member validly requests exclusion from the Settlement Class he, she or it (a) will b e
excluded from the Settlement Class, (b) will not share in the proceeds of the Settlement as se t
forth in the Stipulation, (c) will not be bound by any judgment or the Final Order entered in the ,
Actions, and (d) will not be precluded, by reason of the decision to request exclusion from th e
Settlement Class, from otherwise prosecuting an individual claim against Deloitte & Touche
based on the matters complained of in the Actions .
14. Pending final determination of whether the Settlement contained in the Stipulation
should be approved, no Representative Plaintiff or Settlement Class Member, either directly ,
7
indirectly, in a representative or derivative capacity, or in any other capacity, shall commence o r
prosecute any action or proceeding in the Court or in any other court or tribunal, asserting any o f
the Released Claims against any of the Deloitte & Touche Releasees .
15. Settlement Class Members may enter an appearance in the Actions through
counsel of their own choice, at their own expense. If they do not enter an appearance, they wil l
be represented by Plaintiffs' Class Counsel .
16. Any Settlement Class Member who has not timely requested exclusion as set fort h
in the Mailed Notice and Summary Notice may appear at the Settlement Hearing and, to th e
extent allowed by the Court, show cause (i) why the proposed Settlement contained in th e
Stipulation should not be approved as fair, adequate, reasonable, and in the best interests of th e
Settlement Class, (ii) why a judgment should not be entered approving the Settlement an d
dismissing the Actions with prejudice and without costs in accordance with the terms of th e
Stipulation, (iii) why attorneys' fees and expenses and costs should not be awarded to Plaintiffs '
Class Counsel in the amount requested, and/or (iv) why the proposed Plan of Allocation shoul d
not be approved, only if such Settlement Class Member has filed with the Court at least fiftee n
(15) days prior to the Settlement Hearing a written notice of intention to appear and object whic h
shall set forth each objection and the basis therefor (a "Notice of Intention to Appear and
Object"), copies of any papers in support of that Person's position, and proof that such Person i s
a Settlement Class Member and, contemporaneous with filing such documents relating to suc h
Notice of Intention to Appear and Object, has served such documents by hand delivery or first
class mail on :
Sherrie R. Savett, Esq .BERGER & MONTAGUE , P.C .1622 Locust StreetPhiladelphia , PA 19103
8
Kenneth S . MarksJohnny W. Carter
SUSMAN GODFREY LLP1000 Louisiana, Suite 5100
Houston, Texas 7700 2
as Plaintiffs' Settlement Counsel, and
Edward F . ManninoAKIN GUMP STRAUSS HAUER & FELD LLPOne Commerce Square
2005 Market Street, Suite 2200Philadelphia, Pennsylvania 19103
as Deloitte & Touche's Counsel .
17. Filing a Proof of Claim and Release does not preclude a Settlement Class Member
from filing a Notice of Intention to Appear and Object . However, if the Settlement is approved ,
the Releasors shall be conclusively deemed to have and by operation of the Final Order shal l
have (i) fully, finally and forever released, relinquished, and discharged all Released Claim s
against the Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished ,
and discharged the Deloitte & Touche Releasees from all Released Claims arising out of or in
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any of
them in any action or proceeding of any nature regardless of whether any such Releasor ever
seeks or obtains any distribution from the Settlement Amount; whether or not such Releasor ha s
executed and delivered a Proof of Claim and Release ; whether or not the claims of any such
Releasor who becomes a Claimant have been allowed or approved in whole or in part by th e
Court and whether or not such Claimant becomes an Authorized Claimant; whether or not such
9
Releasor has participated in the Settlement Amount ; whether or not such Releasor has filed a n
objection to the Settlement, to any rejection of his, her or its claim to participate in th e
Settlement Amount as provided in the Stipulation, to the proposed Plan of Allocation, or to any
application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs ;
and whether or not the claims of such Releasor has been approved or allowed or such objectio n
has been overruled by the Court . A Settlement Class Member who does not make an objection in
the time and manner provided shall be deemed to have waived such objection, shall be bound b y
the terms of the Stipulation and the Final Order approving the Stipulation including, withou t
limitation, the Releases provided for in the Final Order, the Plan of Allocation, and the award of
attorneys' fees and expenses and costs, and shall forever be foreclosed from making an y
objection to the fairness, adequacy, or reasonableness of the proposed Settlement as incorporated
in the Stipulation, or any objection to the Plan of Allocation, or to the award of attorneys' fee s
and expenses and costs to Plaintiffs' Class Counsel, unless otherwise ordered by the Court .
Distributions to Authorized Claimants shall be deemed final and conclusive against all Flemin g
Settlement Class Members . All Fleming Settlement Class Members whose claims are no t
approved by the Court shall be barred from participating in distributions from the Settlement
Amount, but shall in all respects be subject to and bound by the Stipulation and the Settlemen t
and the Final Order, including, without limitation, the releases provided for in the Stipulation an d
the Final Order.
18. If the Effective Date occurs, any Releasor who becomes a Claimant but whos e
claims are not allowed or approved by the Court shall be forever barred from part icipating in
distributions from the Settlement Amount pursuant to the Stipulation and Settlement set forth
therein, but otherwise shall be conclusively deemed to have and by operation of the Final Orde r
10
shall have (i) fully, finally and forever released, relinquished, and discharged all Released Claim s
against the Deloitte & Touche Releasees; (ii) fully, finally, and forever released , relinquished ,
and discharged the Deloitte & Touche Releasees from all Released Claims arising out of or in
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action or
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any of
them in any action or proceeding of any nature ; whether or not any such Claimant becomes an
Authorized Claimant; whether or not such Claimant has participated in the Settlement Amount ;
and whether or not such Claimant has filed an objection to the Settlement, to any rejection of
his/her/its claim to participate in the Settlement Amount, to the proposed Plan of Allocation, o r
any application by Plaintiffs' Class Counsel for an award of attorneys' fees and expenses an d
costs ; and whether or not the claims of such Claimant have been approved or allowed or such
objection has been overruled by the Court.
19. If the Effective Date occurs, any Claimants who become Authorized Claimants ,
on behalf of themselves, and their respective heirs, executors , administrators, legal
representatives, predecessors, successors, parent companies, subsidiaries, affiliates, transferee s
and assigns, and any other Person claiming (now or in the future) through or on behalf of them ,
shall be conclusively deemed to have and by operation of the Final Order shall have (i) fully ,
finally and forever released, relinquished, and discharged all Released Claims against the
Deloitte & Touche Releasees ; (ii) fully, finally, and forever released, relinquished, an d
discharged the Deloitte & Touche Releasees from all Released Claims arising out of or i n
connection with the institution, prosecution, or assertion of the Actions or the Released Claims ;
11
(iii) covenanted not to sue the Deloitte & Touche Releasees or any of them in any action o r
proceeding of any nature with respect to the Released Claims ; and (iv) shall forever be enjoined
and barred from asserting the Released Claims against the Deloitte & Touche Releasees or any o f
them in any action or proceeding of any nature ; whether or not such Authorized Claimant
participated in the Settlement Amount ; whether or not such Authorized Claimant has filed a n
objection to the Settlement, to any rejection of his/her/its claim to participate in the Settlement
Amount, to the proposed Plan of Allocation, or to any application by Plaintiffs' Class Counsel fo r
an award of attorneys' fees and expenses and costs ; and whether or not the claims of such
Authorized Claimant have been approved or allowed or such objection has been overruled by th e
Court .
20. Any Plan of Allocation of the Se tt lement Amount including , but not limited to ,
any adjustments to any Authorized Claimant' s claim, or application for Plaintiffs' Class
Counsel's fees and expenses are not a part of the Stipulation and Settlement or this Preliminar y
Order and will be considered by the Court separately from the Court 's consideration of the
fairness, reasonableness and adequacy of the Settlement set forth in the Stipulation, and an y
order or proceeding relating to the Plan of Allocation or Plaintiffs' Class Counsel's fees an d
expenses shall not operate to terminate or cancel the Stipulation or affect the finality of the
Court's Final Order approving the Stipulation and the Settlement herein, or any other order s
entered pursuant to the Stipulation . Any order or proceedings relating to the Plan of Allocation
or application for Plaintiffs' Class Counsel's fees and expenses, or any appeal therefrom or an y
other order relating thereto or reversal or modification thereof, shall not operate to terminate or
cancel the Stipulation, or affect or delay the finality of the Final Order and the Settlement of the
Actions .
12
21 . Neither the Deloitte & Touche Releasees nor their counsel shall have an y
responsibility for, interest in, or liability whatsoever to any Person, including, without limitation ,
to any Releasor, Settlement Class Members, the Settlement Class, Claimants, Authorize d
Claimants, Representative Plaintiffs, Plaintiffs' Settlement Counsel, or Plaintiffs' Class Counse l
with respect to the Settlement Amount (except to the extent that Deloitte & Touche shall retain
an interest in the Settlement Amount as provided in paragraphs 6 .2 and 7.6 of the Stipulation) ,
any investment or distribution of the Settlement Amount, the proposed or actual Plan o f
Allocation, the determination, administration, or calculation of claims, final awards an d
supervision and distribution of the Settlement Amount as set forth in Section 5 of the Stipulation ,
or any application for attorneys' fees and reimbursement of expenses and costs, the payment o r
withholding of Taxes, Tax Expense, or any losses incurred in connection with any such matters ;
and any Person, including, without limitation, the Releasors, Settlement Class Members, th e
Settlement Class, Claimants, Authorized Claimants, Representative Plaintiffs, Plaintiffs '
Settlement Counsel, and Plaintiffs' Class Counsel shall have no claims against Deloitte &
Touche, the other Deloitte & Touche Releasees or Deloitte & Touche's Counsel in connection
therewith. Deloitte & Touche and the other Deloitte & Touche Releasees shall have no
responsibility for and no liability whatsoever with respect to the Settlement .
22. In the event that the Stipulation should terminate, or be cancelled, or otherwise
fail to become effective for any reason, or the Effective Date does not occur as provided in the
Stipulation, including without limitation, in the event that the Final Order is reversed, modifie d
or vacated following any appeal taken therefrom, then within ten (10) business days after writte n
notification of such event is sent by counsel for Deloitte & Touche or by Plaintiffs' Class
Counsel to the Escrow Agent, the Settlement Amount, together with all interest accrued thereon ,
13
except for amounts actually incurred in connection with providing the Mailed Notice an d
Summary Notice, shall be remitted to Deloitte & Touche or as directed by Deloitte & Touche
counsel . If said amount is not returned within such ten (10) day period, then interest shall accrue
thereon at the rate of five (5) percent per annum until the date that said amount is returned and
upon application by Deloitte & Touche, the Court shall order such return to Deloitte & Touche to
be made within ten (10) days of the date the order is entered and neither Plaintiffs' Class Counse l
nor Plaintiffs' Settlement Counsel shall oppose or object to the entry of such order .
23. All papers in support of the Settlement shall be filed at least (5) days prior to the
Settlement Hearing.
24. The Settlement Hearing may, from time to time without fu rther notice to the
Settlement Class Members be rescheduled or adjourned by order of the Court .
SO ORDERED THIS day of , 2005 .
The Honorable T. John WardUnited States District Judge
14
EXHIBIT B
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISIO N
IN RE FLEMING COMPANIES § MDL NO . 1530SECURITIES LITIGATION
This Document Relates To : All Actions § Judge Ward
FINAL JUDGMENT AND ORDER OF DISMISSA L
On this day of , 2005, a hearing (the "Settlement
Hearing") having been held before this Court to determine : (a) whether these Actions satisfy the
applicable prerequisites for class action treatment under Rule 23(a) of the Federal Rules of Civi l
Procedure ; (b) whether the proposed Settlement of the Actions as set forth in the Stipulation an d
Agreement of Settlement dated May 20, 2005 (the "Stipulation") (the defined terms of whic h
shall have the same meaning herein), is fair, reasonable and adequate, and in the best interests of
the Settlement Class and should be approved by the Court ; (c) whether this Final Judgment an d
Order of Dismissal ("Final Order") should be entered in the Actions ; (d) whether and in what
amount Plaintiffs' Class Counsel's application for attorneys' fees and reimbursement of expense s
and costs incurred should be approved by the Court, (e) whether the Plan of Allocation proposed
by Representative Plaintiffs and Plaintiffs ' Settlement Counsel should be approved by the Court ;
(f) whether the Actions should be dismissed on their merits with prejudice and without costs, an d
(g) whether the Representative Plaintiffs and each Fleming Settlement Class Member, who ha s
not timely and validly excluded themselves from the Settlement Class in accordance with th e
Preliminary Approval Order and Mailed Notice and Summary Notice, on behalf of themselves
and their respective heirs, executors, administrators, legal representatives, predecessors ,
successors, parent companies, subsidiaries, affiliates, transferees and assigns and any other
Person claiming (now or in the future) through or on behalf of them ("Releasors"), shall b e
conclusively deemed to have and by operation of this Final Order shall have (i) fully, finally an d
forever released, relinquished, and discharged all Released Claims (as defined below) against th e
Deloitte & Touche Releasees , (ii) fully, finally, and forever released, relinquished, and discharged
the Deloitte & Touche Releasees from all Released Claims arising out of or in connection wit h
the institution , prosecution, or assertion of the Actions or the Released Claims, (iii) covenanted
not to sue the Deloitte & Touche Releasees or any of them in any action or proceeding of an y
nature with respect to the Released Claims, and (iv) shall forever be enjoined and barred fro m
asserting the Released Claims against the Deloitte & Touche Releasees or any of them in an y
action or proceeding of any nature regardless of whether any such Releasor ever seeks or obtain s
any distribution from the Settlement Amount; whether or not such Releasor has executed and
delivered a Proof of Claim and Release ; whether or not the claims of any such Releasor who
becomes a Claimant have been allowed or approved in whole or in part by the Court and whethe r
or not such Claimant becomes an Authorized Claimant ; whether or not such Releasor has
participated in the Settlement Amount; whether or not such Releasor has filed an objection to th e
Settlement, to any rejection of his/her/its claim to participate in the Settlement Amount as
provided in the Stipulation, to the proposed Plan of Allocation, or to any application b y
Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs ; and whether or
not the claims of such Releasor has been approved or allowed or such objection has bee n
overruled by the Court .
2
The Court, having read and considered all matters submitted to it at the Settlement
Hearing and otherwise, and the Parties having applied for approval of the Settlement as set forth
in the Stipulation, and due and adequate notice having been given to the Settlement Class, it i s
hereby ORDERED and ADJUDGED that :
This Court has jurisdiction over the subject matter of the Actions and over al l
Parties to the Actions, including all Sett lement Class Members .
2. This Court finds that Plaintiffs' Settlement Counsel had, and has, the authority t o
negotiate and propose a settlement to this Court and to enter into the Stipulation and Sett lement
on behalf of the Settlement Class Members (including without limitation the Representativ e
Plaintiffs) and Plaintiffs' Class Counsel .
3 . For purposes of settlement only, the parties designated to serve as Representativ e
Plaintiffs in the class actions are Jackson Capital Management, LLC, Massachusetts State
Carpenters Pension Fund, Massachusetts State Guaranteed Annuity Fund, Alaska Electrica l
Pension Fund , David Dickey, Joel Feliciano , and Terry Slater.
4. This Court approves the Settlement of the Actions on the terms and conditions
provided for in the Stipulation, finds that the Settlement and Stipulation are, in all respects, fair ,
adequate, and reasonable for purposes of Rule 23 of the Federal Rules of Civil Procedure, that it
confers substantial benefits upon the Settlement Class, and that it is in the best interests of th e
Settlement Class, and, therefore, directs that the Settlement be consummated in accordance with
the terms and conditions of the Stipulation .
The proposed Settlement Class is finally certified, pursuant to the Stipulation an d
under Rule 23 of the Federal Rules of Civil Procedure, for settlement purposes only, as follows :
All Persons who purchased or otherwise acquired Securities ofFleming at any time in the period commencing May 9, 2001 an d
3
ending February 25, 2003 inclusive, including, without limitation,all Persons who purchased or otherwise acquired Securities in,pursuant to, or traceable to Fleming's March 2002 Offering and allPersons who purchased or otherwise acquired Securities in,pursuant to, or traceable to Fleming's June 2002 Offering.Excluded from the Fleming Settlement Class are those Personswho timely and validly request exclusion from the SettlementClass, to the extent that they are able to do so under Rule 23 of theFederal Rules of Civil Procedure, pursuant to the Mailed andSummary Notice. Also excluded from the Fleming SettlementClass are the Defendants (as defined in Paragraph 1 .8 of theStipulation), their respective subsidiaries and affiliates, members ofthe immediate families of each of the Defendants and the legalrepresentatives, heirs, successors, affiliates or assigns of each ofthe Defendants .
Attached as Exhibit 1 to this Final Order is a schedule of all Persons who timely and validl y
excluded themselves from the Settlement Class .
6. The Court dismisses on the merits and without costs and with prejudice all claim s
and Counts asserted against Deloitte & Touche in the Fifth Amended Complaint including ,
without limitation, Counts II and V, and unequivocally and unconditionally releases , settles and
extinguishes (as set forth more fully in paragraph 10 below) each and every Released Claim as to
the Deloitte & Touche Releasees (as defined below) of each and every Representative Plaintiff
and Settlement Class Member and the other Releasors against each and all of the Deloitte &
Touche Releasees (as defined below) .
7. "Deloitte & Touche Releasees" means Deloitte & Touche USA LLP, Deloitte &
Touche LLP, Deloitte Tax LLP, Deloitte Financial Advisory Services LLP, Deloitte Consultin g
LLP (successor to Deloitte Consulting Holding LLC), Deloitte Consulting (Nevada) LLC ,
Deloitte Consulting L.P., Deloitte Consulting (US) LLC and Deloitte Consulting (Holding Sub)
LLC, Deloitte Touche Tohmatsu, a Swiss Verein, and any and all Deloitte Touche Tohmatsu
associate and member firms and their respective past and present parent companies ,
predecessors, subsidiaries, divisions, affiliates , associates (as defined in SEC Rule 12b- 2
4
promulgated pursuant to the Exchange Act), successors and assigns, joint ventures, their
respective present and former partners, principals, members, directors, officers, employees ,
stockholders, owners, agents, subrogees, insurers, co-insurers, reinsurers, servants and attorneys ,
and their respective representatives, heirs, executors, personal representatives, administrators ,
transferees and assigns .
8. "Released Claims" collectively means and includes any and all claims or cause s
of action, including, without limitation, "Unknown Claims" (as defined below), debts , suits,
rights of action, dues, sums of money, accounts, bonds, bills, covenants, contracts, controversies ,
agreements, promises, judgments, variances, executions, obligations, demands, rights, liabilities ,
damages, losses, fees, and costs of any kind, nature and/or description whatsoever, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, suspected o r
unsuspected, contingent or non-contingent, whether or not asserted, threatened, alleged or
litigated, at law, admiralty, equity or otherwise, including, without limitation, claims for
contribution or indemnification, or for costs, expenses (including, without limitation, amount s
paid in Settlement) and attorneys' fees (including, without limitation, costs, expenses an d
attorneys' fees incurred in connection with this Stipulation and the Settlement of the Actions) ,
claims for negligence , gross negligence , breach of duty of care and/or breach of duty of loyalty,
malpractice, misrepresentation, fraud, breach of fiduciary duty, or violations of any federal, stat e
or local statutes, common law, or any other laws, rules or regulations, that now exist o r
heretofore existed, that have been or could have been asserted or alleged in the Actions, or any
other forum against the Deloitte & Touche Releasees or any of them whether directly, indirectly ,
representatively, derivatively or in any other capacity, which arise out of, are based upon or relat e
to, or are in connection with ( i) the claims asserted in the Actions ; (ii) the purchase or other
5
acquisition of Securities or the sale or other disposition of Securities of Fleming at any time i n
the period commencing May 9, 2001 and ending February 25, 2003 inclusive, including, withou t
limitation, the purchase or other acquisition of Securities in, pursuant to, or traceable to
Fleming's March 2002 Offering and the purchase or other acquisition of Securities in, pursuan t
to, or traceable to Fleming 's June 2002 Offering; (iii) any of the facts, circumstances, claims ,
transactions, events, occurrences, acts, disclosures, statements, representations ,
misrepresentations, omissions or failures to act, or matters of any kind or nature whatsoever,
related directly or indirectly to the subject matters referred to, set forth in, or the facts, causes of
action, counts, or claims for relief which were or could have been, asserted, alleged or litigated i n
the Actions ; (iv) this Settlement or the entry into it; and/or (v) any and all services provided at
any time by the Deloitte & Touche Releasees, or any of them, to or with respect to Fleming ,
Debtors, or any related Person, including, without limitation, their respective present or forme r
affiliates, predecessors or successors, and their respective directors, officers, employees ,
partners, principals, stockholders and owners, irrespective of whom such services were claime d
to have been performed for or on behalf of, to the extent such services relate to Fleming .
9. "Unknown Claims" means any Released Claim that any Representative Plaintiff
or Settlement Class Member does not know or suspect to exist in his, her or its favor at the tim e
of the release of the Deloi tte & Touche Releasees that if known by him, her or it , might have
affected his, her or its Settlement with and release of the Deloitte & Touche Releasees, or might
have affected his, her or its decision not to object to this Settlement or not to exclude himself ,
herself or itself from the Settlement Class . With respect to any and all Released Claims, th e
Representative Plaintiffs shall expressly waive, and each of the Settlement Class Members shal l
be deemed to have waived and by operation of this Final Order shall have waived, any and al l
6
provisions, rights and benefits conferred by any law of any state or territory of the United States ,
or principle of common law, that is similar, comparable or equivalent to California Civil Cod e
§ 1542 which provides :
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMSWHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TOEXIST IN HIS FAVOR AT THE TIME OF EXECUTING THERELEASE, WHICH IF KNOWN BY HIM MUST HAVEMATERIALLY AFFECTED HIS SETTLEMENT WITH TH EDEBTOR.
The Representative Plaintiffs and Settlement Class Members may hereafter discover facts i n
addition to or different from those that any of them now knows or believes to be true with respect
to the subject matter of the Released Claims, but each Representative Plaintiff shall expressly
have, and each Settlement Class Member shall be deemed to have and by operation of this Fina l
Order 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, based upon any fact, theory o f
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 different or additional
facts . The Representative Plaintiffs acknowledge, and the Settlement Class Members shall b e
deemed to have acknowledged, and by operation of this Final Order shall have acknowledged,
that the foregoing waiver was separately bargained for and a key element of the Settlement of
which this Release is a part .
10. Upon the Effective Date, the Releasors shall be conclusively deemed to have an d
by operation of this Final Order shall have : (i) fully, finally and forever released , relinquished ,
and discharged all Released Claims against the Deloi tte & Touche Releasees ; (ii) fully, finally,
7
and forever released, relinquished, and discharged the Deloitte & Touche Releasees from al l
Released Claims arising out of or in connection with the institution, prosecution, or assertion o f
the Actions or the Released Claims; (iii) covenanted not to sue the Deloitte & Touche Releasee s
or any of them in any action or proceeding of any nature with respect to the Released Claims an d
(iv) shall forever be enjoined and barred from asserting the Released Claims against the Deloitt e
& Touche Releasees or any of them in any action or proceeding of any nature regardless o f
whether any such Releasor ever seeks or obtains any distribution from the Settlement Amount ;
whether or not such Releasor has executed and delivered a Proof of Claim and Release ; whether
or not any claims of such Releasor who becomes a Claimant have been allowed or approved i n
whole or in part by the Court and whether or not such Claimant becomes an Authorized
Claimant; whether or not such Releasor has participated in the Settlement Amount ; whether or
not such Releasor has filed an objection to the Settlement, to any rejection of his/her/its claim t o
participate in the Settlement Amount, to the proposed Plan of Allocation, or to any application b y
Plaintiffs' Class Counsel for an award of attorneys' fees and expenses and costs ; and whether or
not the claims of such Releasor have been approved or allowed or such objection has bee n
overruled by the Court .
11 . Distributions to Authorized Claimants shall be deemed final and conclusiv e
against all Fleming Settlement Class Members . All Fleming Settlement Class Members whos e
claims are not approved by the Court shall be barred from participating in distributions from the
Settlement Amount, but shall in all respects be subject to and bound by the Stipulation and th e
Settlement and this Final Order, including, without limitation, the releases provided for in
paragraph 10 of this Final Order.
12 . If any Claimant whose claim has been rejected in whole or in part desires t o
contest such rejection, the Claimant must, within twenty (20) days after the date of mailing of th e
notice required by paragraph 5 .8 of the Stipulation, serve upon the Claims Administrator a notic e
and statement of reasons indicating the Claimant's ground for contesting the rejection along wit h
any supporting documentation, and requesting a review thereof by the Court . If a dispute
concerning a claim cannot be otherwise resolved, Plaintiffs' Class Counsel shall thereafte r
present the request for review to the Court . Claimants involved in such a dispute whose rejection
is ultimately upheld by the Court shall be forever barred from receiving any payments pursuant
to the Stipulation and the Settlement, but shall in all respects be subject to and bound by th e
Stipulation and the Settlement, the Proof of Claim and this Final Order, including, without
limitation, the releases provided for in paragraph 10 of this Final Order .
13 . All claims, however denominated, which have been, or could have been, or coul d
be asserted against the Deloitte & Touche Releasees, or any of them, by any Person, including
without limitation, the Representative Plaintiffs and the Fleming Settlement Class and each
Fleming Settlement Class Member and the other Releasors, who is, could be, or could have bee n
named or added as a defendant in the Actions and, to the extent legally permissible, by or on
behalf of any other Person, which arise from, are based on, are in any way related to, or are in
connection with the claims in or subject matter of the Actions and the Released Claims, whether
arising under federal, state or local law, including those based in tort, contract, or under any
statute or body of law, including, without limitation, claims for contribution, indemnification or
reimbursement, are extinguished, discharged, satisfied, dismissed with prejudice and withou t
costs , permanently barred and otherwise unenforceable, and the future filing of any such claims
is permanently enjoined. Such order is not intended to, and will not, release or extinguish an y
9
claim, right or defense which the Deloitte & Touche Releasees, or any of them, may have with
respect to claims that may be asserted by any Person who has timely and validly exclude d
themselves from the Settlement Class in the Action ("Opt-out Claims") ; the Deloitte & Touche
Releasees reserve their respective rights, claims and defenses with respect to any Opt-ou t
Claims .
14. In accordance with Section 4(f)(7)(A) of the PSLRA, 15 U .S.C. § 78u-4(f)(7)(A),
and other statutory or common law rights, the Deloitte & Touche Releasees, and each of them ar e
by virtue of the Settlement hereby fully, finally and forever released and discharged from all
claims for contribution that have been or may hereafter be brought by any Person, whethe r
arising under state, federal or common law, based upon, arising out of, relating to, or i n
connection with the Released Claims . Accordingly, to the fullest extent provided by the PSLRA ,
or other statutory or common law rights, the Court hereby permanently enjoins and bars al l
claims for contribution against the Deloitte & Touche Releasees (the "Reform Act Bar Order").
15 . In the event Representative Plaintiffs, the Fleming Class, or any Fleming Clas s
Member sues(s) any Person for claims arising out of the acts and transactions alleged in th e
Actions ("New Defendant"), solely for the purposes of paragraphs 8, 17 and 18of this Fina l
Order each such New Defendant shall be deemed to be a Non-Settling Defendant . Additionally,
in the event any New Defendant, Non-Settling Defendant , or any other Person sued by a New
Defendant or a Non-Settling Defendant sues any of the Settling Defendants, for claims arising
out of the acts and transactions alleged in the Actions, solely for the purposes of paragraphs 8,
15, and 16 of this Final Order, each such additional New Defendant shall be deemed to be a Non-
Settling Defendant .
10
16 . The Deloitte & Touche Releasees are by virtue of the Settlement hereby fully ,
finally and forever released and discharged from any liability to Representative Plaintiffs, the
Se ttlement Class, and any Settlement Class Member under Chapter 33 of the Texas Civil Practice
& Remedies Code, or similar statute that may otherwise be applicable .
17. The Deloitte & Touche Releasees are by virtue of the Settlement hereby fully,
finally and forever released and discharged to the fullest extent allowed by law from and agains t
any and all claims , however styled, whether for indemnification , contribution, or otherwis e
arising out of or relating to the acts and transactions that are the subject of the Actions and th e
Released Claims, whether arising under federal, state, or common law (the "Complete Ba r
Order") .
18 . To the extent (but only to the extent) not otherwise covered by the Reform Ac t
Bar Order or the Complete Bar Order, Representative Plaintiffs, the Settlement Class, and al l
Settlement Class Members shall reduce or credit against any judgment or settlement (up to the
amount of such judgment or settlement) they may obtain from any Non-Settling Defendant a n
amount equal to the amount of any final, non-appealable judgment which any Non-Settling
Defendant may obtain against any of the Deloitte & Touche Releasees arising out of or relating
to the Released Claims of Representative Plaintiffs, the Settlement Class, or any Settlement
Class Member. Representative Plaintiffs, the Settlement Class, and all Settlement Class
Members shall not settle any claim against any Non-Settling Defendant without obtaining fro m
such Non-Settling Defendant the release of any claim such Non-Settling Defendant may have
against any of the Deloitte & Touche Releasees arising out of or relating to the Released Claims
asserted by Representative Plaintiffs, the Settlement Class, or any Settlement Class Member
11
against such Non-Settling Defendant provided that Deloitte & Touche , shall execute a release in
favor of such Non-Settling Defendant.
19. The form, substance, and requirements of the notice given to the Settlement Class
pursuant to the Preliminary Order, including the mailing, distribution, and publication of suc h
notice, was the best notice practicable under the circumstances as well as valid, due, an d
sufficient notice to all persons entitled thereto, including all Settlement Class Members, and
complies fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, th e
Constitution of the United States, the Private Securities Litigation Reform Act of 1995, and other
applicable law.
20. This Court awards Attorneys' Fees constituting percent of the Settlemen t
Amount to Plaintiffs' Class Counsel for services performed in the Actions, including interes t
earned thereon . The Court further awards expenses and costs in the aggregate amount of $
from the Settlement Amount . The Court finds such awards to be fair and reasonable.
21 . Within ten (10) business days following entry of this Final Order, the amoun t
specified in paragraph 20 should be paid out of the Settlement Amount to Plaintiffs' Settlemen t
Counsel for allocation among Plaintiffs' Class Counsel . In the event that the Stipulation is
terminated or canceled, otherwise fails to become effective for any reason, including, withou t
limitation, in the event this Final Order any order preliminarily approving this Settlement, finall y
approving this Settlement, or awarding attorneys' fees or expenses and costs is reversed ,
modified or vacated following any appeal or that the Effective Date does not occur as provide d
for in the Stipulation, then Plaintiffs' Class Counsel shall promptly (no later than 10 busines s
days) remit to the Settlement Amount (or, in the event that the Stipulation is terminated or
canceled as provided therein, to Deloitte & Touche) any amount of attorneys' fees and expenses
12
and costs that has been paid to Plaintiffs' Class Counsel (even if some or all of such amounts
have already been disbursed to Plaintiffs' Class Counsel or otherwise), plus any interest actuall y
paid or that would have accrued from the date of payment to the date of repayment to th e
Settlement Amount (or, in the event that the Stipulation is terminated or canceled as provide d
therein, to Deloitte & Touche) at the existing United States Treasury Bill Rate . If said amount is
not returned within such ten (10) day period, then interest shall accrue thereon at the rate of fiv e
(5) percent per annum until the date that said amount is returned and upon application b y
Deloitte & Touche, the Court shall order such return to Deloitte & Touche to be made within te n
(10) days of the date of the order is entered .
22 . This Court hereby approves the proposed Plan of Allocation, as set forth in
Representative Plaintiffs' and Plaintiffs' Class Counsel's submission for approval of the Plan o f
Allocation .
23 . Any proposed Plan of Allocation, including, but not limited to, any adjustments to
an Authorized Claimant's claim set forth therein, or any application for attorneys' fees and
reimbursement of expenses and costs, is not a part of the Stipulation and the Settlement set fort h
therein. Any order or proceedings related to the proposed Plan of Allocation, or any application
for attorneys' fees and reimbursement of expenses and costs, or any appeal from any orde r
relating thereto or reversal or modification thereof, shall not modify, terminate, or cancel the
Stipulation or the Settlement set forth therein, or affect or delay the finality of this Final Order.
24. Without affecting the finality of this Final Order in any way, this Court hereb y
retains continuing jurisdiction over : (a) implementation and enforcement of the terms of the
Settlement set forth in the Stipulation; (b) distribution of the Settlement Amount, including
interest earned thereon; (c) determination of any other applications for payments out of the
13
Settlement Amount ; and (d) all Parties hereto for the purpose of implementing and enforcing the
Settlement set forth in the Stipulation in this case until the Effective Date has occurred and each
and every act agreed to be performed by the Parties has been performed and for the purpose of
enforcing the obligations of each of the Parties embodied in the Stipulation, including for th e
purpose of enforcing any injunction against bringing a Released Claim against any of th e
Deloitte & Touche Releasees . The Court shall maintain continuing jurisdiction over all
Settlement Class Members for purposes of enforcing the terms of this Final Order.
25 . Neither the Deloitte & Touche Releasees nor their counsel shall have any
responsibility for, interest in, or liability whatsoever to any Person, including, without limitation ,
to any Settlement Class Members, the Settlement Class, Claimants, Authorized Claimants ,
Representative Plaintiffs, Plaintiffs' Settlement Counsel, or Plaintiffs' Class Counsel with respec t
to the Settlement Amount (except to the extent that Deloitte & Touche shall retain an interest i n
the Settlement Amount as provided in paragraphs 6.2 and 7 . 6 of the Stipulation), any investment
or distribution of the Settlement Amount, the proposed or actual Plan of Allocation, the
determination, administration, or calculation of claims, final awards and supervision and
distribution of the Settlement Amount as set forth in Section 5 of the Stipulation, or any
application for attorneys' fees and reimbursement of expenses and costs, the payment o r
withholding of Taxes and Tax Expenses, or any losses incurred in connection with any such
matters ; and any Person, including, without limitation, the Settlement Class Members, th e
Settlement Class, Claimants, Authorized Claimants, Representative Plaintiffs, Plaintiffs '
Settlement Counsel, and Plaintiffs' Class Counsel shall have no claims against Deloitte &
Touche, the other Deloitte & Touche Releasees or Deloitte & Touche's Counsel in connectio n
14
therewith. Deloitte & Touche and the other Deloitte & Touche Releasees shall have no
responsibility for and no liability whatsoever with respect to the Settlement .
26. No Person shall have any claim against the Representative Plaintiffs , Plaintiffs '
Class Counsel, or the Claims Administrator, based on distributions made substantially in
accordance with the Settlement and this Stipulation, any Plan of Allocation, or further orders o f
the Court .
27. This Final Order is binding on all Representative Plaintiffs and Settlement Clas s
Members, whether or not any of the Representative Plaintiffs or Settlement Class Member s
executes and delivers the Proof of Claim and Release ; whether or not any of the Representative
Plaintiffs or Settlement Class Members participates in the Settlement Amount ; whether or no t
any of the Representative Plaintiffs or Settlement Class Members have filed an objection to th e
Settlement, to any rejection of their claim to participate in the Settlement Amount as provided in
the Stipulation, to the proposed Plan of Allocation, or to any application by Plaintiffs' Clas s
Counsel for an award of attorneys' fees and expenses and costs ; and whether or not the claims o f
such Representative Plaintiffs, or such Fleming Settlement Class Member have been approved o r
allowed or such objection has been overruled by the Court .
28. Neither this Final Order, the Stipulation, nor the Settlement, nor any ac t
performed or document executed pursuant to or in furtherance of the Stipulation or th e
Settlement : (a) is or may be deemed to be or may be used as an admission of, or evidence of, the
validity of any Released Claim, or of any wrongdoing or liability of any Deloitte & Touch e
Releasee ; (b) is or may be deemed to be or may be used as an admission of, or evidence of, any
fault or omission of any Deloitte & Touche Releasee in any civil, criminal or administrativ e
proceeding in any court, administrative agency or other tribunal ; (c) shall constitute an
15
adjudication or finding on the merits as to the claims of any party hereto, and shall not b e
deemed to be, intended to be or construed as an admission of liability, in any way on the part of
any party hereto, or any evidence of the truth of any fact alleged or the validity of any claims tha t
have been or could be asserted in the Actions, all of whom expressly deny any liability for an y
and all claims of any nature whatsoever ; nor shall anything herein contained constitute an
acknowledgment of fact, allegation or claim that has been or could have been made, nor shal l
any third party derive any benefit whatsoever from the statements made within this Stipulation ;
or (d) shall be construed against Deloitte & Touche or the Deloitte & Touche Releasees as an
admission or concession that the consideration to be given hereunder represents the amoun t
which could be or would have been recovered after trial . Any Deloitte & Touche Releasee may
file the Stipulation and/or this Final Order in any action that may be brought against it in order t o
support a defense or counterclaim based on principles of res judicata, collateral estoppel, release,
good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issu e
preclusion or similar defense or counterclaim .
29. The Court finds that the Parties, Plaintiffs' Class Counsel and Deloitte & Touche' s
Counsel have complied in all respects with Federal Rule of Civil Procedure 11(b) in connectio n
with the filing of all complaints, responsive pleadings, and dispositive motions in this case .
30. The Parties shall bear their own costs and expenses, except as otherwise provide d
in the Stipulation or in this Final Order.
31 . Without further order of the Court, the Settling Parties may agree to reasonable
extensions of time to carry out any of the provisions of the Stipulation .
32. Pursuant to Federal Rule of Civil Procedure 54, the Court has expressly
determined that there is no just reason for any further delay in approving this Final Order and
16
entering judgment dismissing all counts and claims against the Deloitte & Touche Releasees with
prejudice and without costs .
33. Immediate entry of this Final Order by the Clerk of the Court is expressly directe d
pursuant to Rule 58 of the Federal Rules of Civil Procedure .
SO ORDERED THIS DAY OF , 2005 .
The Honorable T. John WardUnited States District Judge
17
EXHIBIT C
ESCROW AGREEMENT
This escrow agreement (the "Escrow Agreement") is entered into as of August
L 2005 by and between Jackson Capital Management, LLC, Massachuse tts State Carpenters
Pension Fund , Massachusetts State Guaranteed Annuity Fund , Alaska Electrical Pension
Fund , David Dickey, Joel Feliciano , and Terry Slater, individually and collectively (the
"Representative Plaintiffs"), on behalf of the Settlement Class in In re Fleming Sec. Litig. .
MDL 1530 (E.D. TX) (the "Actions"); Deloitte & Touche LLP ("Deloitte & Touche") ; and
Wachovia Bank, National Association, as escrow agent (the "Settlement Escrow Agent")
(collectively referred to hereinafter as the "parties hereto" ), by and through their respec tive
attorneys or agents .
WITNESSETH :
WHEREAS the Representative Plaintiffs, on behalf of the Settlement Class,
and Deloitte & Touche entered into a Stipulation and Agreement of Settlement (the
"Stipulation," the defined terms of which shall have the same meaning herein and which
definitions are attached hereto as Exhibit A and made part of this Escrow Agreement) dated
as of May 20, 2005, setting forth the terms and conditions of an agreement to settle and
resolve the Actions with finality; and
WHEREAS Deloitte & Touche has agreed to deposit certain funds in an
escrow account under the terms and conditions set forth in the Stipulation ; and
WHEREAS this Escrow Agreement sets forth the terms and conditions under
which the funds to be deposited by Deloitte & Touche will be held in the escrow account and
distributed therefrom in accordance with the terms of the Stipulation and this Escrow
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 . Appointment of Settlement Escrow Agent.
Deloitte & Touche and the Representative Plaintiffs (by and through Plaintiffs'
Settlement Counsel) hereby appoint the Settlement Escrow Agent to act as escrow agent on
the terms and conditions set forth in this Escrow Agreement , and the Settlement Escrow
Agent hereby accepts such appointment on such terms and conditions .
SECTION 2 . The Settlement Escrow Account.
Deloitte & Touche shall transfer to the Settlement Escrow Agent the sum o f
Thirty-Five Million Dollars ($35,000,000 .00) pursuant to paragraph 2.1 of the Stipulation.
The Settlement Escrow Agent shall deposit such sum into an escrow account established for
such purpose (the "Settlement Escrow Account") to be held and administered separate and
apart from all other accounts . The Settlement Escrow Account shall include all sums
transferred to the Settlement Escrow Agent pursuant to this Escrow Agreement, including the
proceeds of all investments and re-investments, and all interest and earnings thereon . The
obligation to make such transfer is subject to the Escrow Agent providing to counsel for
Deloitte & Touche, at least ten days before the transfer date, all information necessary for the
transfer, including, but not limited to, transfer instructions and the tax identification number
of the qualified settlement fund .
SECTION 3 . Investment of Escrow Funds .
(a) The Settlement Escrow Agent shall invest the funds in the Settlemen t
Escrow Account in instruments backed by the full faith and credit of the United States
government, or in a money market fund based on such instruments, and shall reinvest the
proceeds of these instruments as they mature in similar instruments at then current market
rates ("Authorized Investments"), as directed in writing by Plaintiffs' Settlement Counsel . A
balance of $100,000 or less may be held in the Settlement Escrow Account in an interest-
2
bearing bank account insured by the FDIC, which may be an account held at the Settlement
Escrow Agent . Absent any other written direction, the Settlement Escrow Agent is hereby
directed and instructed by Plaintiffs' Settlement Counsel to invest the funds held in the
Settlement Escrow Account in the Fidelity Government Fund, class 3 . With the execution of
this Escrow Agreement, the parties hereto acknowledge receipt of prospectuses and/or
disclosure materials associated with the investment selected by Plaintiffs' Settlement
Counsel .
(b) All interest on or other income realized by investment of the
Settlement Escrow Account, or any portion thereof, as permitted under subsection (a) of this
Section shall be accumulated and invested in accordance with subsection (a) of this Section
and added to the Settlement Escrow Account (less any amounts disbursed thereform pursuant
to the terms of the Stipulation ) and shall be distributed as set forth in Section 4 hereof. The
Settlement Escrow Agent shall not be liable for any losses resulting from any depreciation in
the market value of any such investments (unless the loss is attributable to a failure to adhere
to the investment limitations defined in subsection (a) of this Section 3) .
SECTION 4 . Release of Escrow Funds.
The Settlement Escrow Agent shall transfer the funds in the Settlement
Escrow Account as set forth below:
(a) To pay Taxes and Tax Expenses as they become due and payable in
accordance with Section 5 hereof;
(b) Upon re ceipt of joint notice from Plainti ffs' Settlement Counsel and
Deloitte & Touche's Counsel that the Court has entered a Final Order in the Actions, and that
the Court has entered an order in the Actions awarding attorneys' fees and expenses and costs
to Plaintiffs' Class Counsel, the Settlement Escrow Agent shall apply the funds in the
Settlement Escrow Account as follows :
(i) to pay Plaintiffs' Class Counsel's attorneys' fees to the exten t
allowed by the Court pursuant to paragraph 6 .1 of the Stipulation and only upon receipt of a
copy of the Court order allowing for such attorneys' fees; and
(ii) to pay Plaintiffs' Class Counsel's unreimbursed expenses and
costs incurred through the date of Plaintiffs' Class Counsel's application for reimbursement
of expenses and costs, if and to the extent allowed by the Court pursuant to paragraph 6.1 of
the Stipulation and only upon receipt of a copy of the Court order allowing for suc h
reimbursement.
(c) Upon receipt of joint notice from Plaintiffs' Settlement Counsel and
Deloitte & Touche's Counsel that the Effective Date of the Stipulation has occurred, the
Settlement Escrow Agent shall apply the funds in the Settlement Escrow Account as follows:
(i) to pay any unpaid Taxes or Tax Expenses, as provided in th e
Stipulation; and
(ii) to transfer the remainder of the funds in the Settlement Escro w
Account to the Claims Administrator.
(d) The Settlement Escrow Agent shall furnish to Plaintiffs' Settlement
Counsel and Deloitte & Touche's Counsel monthly statements showing deposits made in and
disbursements made from the Settlement Escrow Account, interest and earnings on the
Settlement Escrow Account, the net market value of all Authorized Investments in the Escrow
Account, and the Settlement Escrow Agent's charges (pursuant to Section 4(e) hereof) for
servicing the Settlement Escrow Account . Upon the Effective Date, the Settlement Escrow
Agent shall no longer provide to Deloitte & Touche's Counsel any such monthly or other
statements .
(e) The Settlement Escrow Agent shall be reimbursed for reasonable
expenses actually incurred in connection with its activities hereunder . Such expenses shall
4
constitute a direct charge against the Settlement Escrow Account . The Settlement Escrow
Agent shall not debit the Settlement Escrow Account for any such charge, however, until it
shall have presented its written statement (which shall be transmitted in the manner set forth
in Section 8 hereof) to and received joint approval thereof from Plaintiffs' Settlement Counsel
and Deloitte & Touche's Counsel, which approval shall not be unreasonably withheld . Such
approval shall be deemed given if the Settlement Escrow Agent has not received written
objections (which shall be transmitted in the manner set forth in Section 8 hereof) from either
Plaintiffs' Settlement Counsel or Deloitte & Touche's Counsel within 14 days after
presentment of its written statement . The expenses of the Settlement Escrow Agent charged
against the Settlement Escrow Account shall, to the extent possible, be paid out of interest
earned. In the event that Plaintiffs' Settlement Counsel or Deloitte & Touche's Counsel
object in writing to the payment of such expenses to the Settlement Escrow Agent, the
Settlement Escrow Agent shall not debit the Settlement Escrow Account for such expenses
other than (i) in accordance with a written agreement executed by each of the parties hereto
or (ii) pursuant to Court order.
(1) Within five (5) business days after receiving written notice from
Deloitte & Touche's Counsel or Plaintiffs' Settlement Counsel stating that the Stipulation has
been terminated, canceled or otherwise fails to become effective for any reason, as provided
therein, or that the Effective Date has not occurred as provided in the Stipulation, the
Settlement Escrow Agent shall in writing inform Deloitte & Touche of the amount and
maturity date of any Authorized Investments and shall comply with Deloitte & Touche's
instructions with respect to whether such Authorized Investments should be liquidated.
Within ten (10) business days after receiving written notice from Deloitte & Touche's
Counsel or Plaintiffs' Settlement Counsel stating that the Stipulation has been terminated,
canceled or otherwise fails to become effective for any reason, as provided therein, or that the
Effective Date has not occurred as provided in the Stipulation, the Settlement Escrow Agent
shall remit to Deloitte & Touche all funds in the Settlement Escrow Account, including,
without limitation, all interest and earnings thereon, less any Taxes due with respect to such
income in accordance with Section 5 hereof and any fees and expenses of the Settlement
Escrow Agent in accordance with this Section . The Settlement Escrow Agent shall remit to
Deloitte & Touche as they are received any additional funds that for any reason come into the
Settlement Escrow Account after the initial remittance .
SECTION 5 . Qualified Settlement Fund.
(a) The Parties to the Stipulation intend that the funds in the Settlemen t
Escrow Account be a "qualified settlement fund" for federal income tax purposes pursuant to
Treasury Regulation sec tion 1 .468B-1, and state income tax purposes, and to that end the
parties hereto shall not take a posi tion in any filing or before any tax authority that is
inconsistent with such treatment.
(b) The Settlement Escrow Agent and, as reasonably requested and
required by the Settlement Escrow Agent, Deloitte & Touche, shall jointly and timely make
such elections as are necessary to carry out the provisions of paragraph 2 .7 of the Stipulation,
including a "relation back election" as described in Treasury Regulation section 1 .468B-
1(j)(2) to the earliest permitted date so as to enable the Settlement Escrow Account to be
treated as a qualified settlement fund from the earliest date possible . Such election shall be
made in compliance with the procedures and requirements contained in such Regulation . It
shall be the responsibility of the Settlement Escrow Agent to timely and properly prepare and
deliver the necessary documentation with respect to the Sbttlement Escrow Account for
signature by all necessary parties and thereafter take all such actions as may be necessary or
appropriate to that end .
6
(c) For the purposes of section 468(B) of the Internal Revenue Code of
1986, 26 U.S .C. § 468B, as amended, and the regulations promulgated thereunder, the
"administrator" of the Settlement Escrow Account shall be the Settlement Escrow Agent.
The Settlement Escrow Agent, as administrator of the Settlement Escrow Account, shall
timely and properly file all informational and tax returns necessary or advisable for the
Settlement Escrow Account prior to and after the Effective Date, and shall pay from the
Settlement Escrow Account any Taxes or Tax Expenses owed with respect to the Settlement
Escrow Account. The parties hereto acknowledge and agree that the Settlement Escrow
Agent will fulfill its obligations in this Section 5 through the employment of qualified agents
or attorneys-in-fact, and the Settlement Escrow Agent shall not be liable for any loss or
expense arising out of, or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact, so long as the Settlement Escrow Agent acts in good faith and without
negligence or willful misconduct in connection with its selection of such agents or
attorneys-in-fact. The reasonable fees and expenses of any such agent or attorney-in-fact
shall be an expense of the Settlement Escrow Agent, payable in accordance with Section 4(e)
hereof.
(d) Deloitte & Touche shall have no liability or responsibility for the
payment of any Taxes or Tax Expenses (as defined in paragraph 2 .7 of the Stipulation) .
(e) The parties hereto agree to cooperate with the Settlement Escrow
Agent, one another, and their tax attorneys and accountants to the extent reasonably necessar y
to carry out the provisions of this subsection .
(f) For the purposes of this Section, references to the Settlement Escrow
Account shall include all funds in the Settlement Escrow Account and shall also include any
interest and earnings thereon.
7
SECTION 6. Termination of Escrow Agreement.
This Escrow Agreement (other than the Settlement Escrow Agent's obligations
in Section 4(f), the Settlement Escrow Agent's right to indemnification in Section 7(h), and
Deloitte & Touche's rights under Sections 8(i) and (j)) shall terminate when the Settlement
Escrow Agent has released all amounts from the Settlement Escrow Account pursuant to the
terms of this Escrow Agreement .
SECTION 7. Settlement Escrow Agent.
(a) The Settlement Escrow Agent shall have no duty or obligatio n
hereunder other than to take such specific actions as are required of it from time to time under
the provisions of this Escrow Agreement, and it shall incur no liability hereunder or in
connection herewith other than as a result of its own bad faith, negligence or willful
misconduct. The Settlement Escrow Agent shall not be bound in any way by any agreement
or contract between Deloitte & Touche and Plaintiffs' Settlement Counsel (whether or not the
Settlement Escrow Agent has knowledge thereof) other than this Escrow Agreement, and the
only duties and responsibilities of the Settlement Escrow Agent shall be to hold and invest the
funds received hereunder and to release such funds in accordance with the terms of this
Escrow Agreement and any order of the Court . All funds held by the Escrow Agent shall be
deemed and considered to be in custodia legis, and shall remain subject to the jurisdiction of
the Court, until such time as such funds shall be distributed pursuant to the Stipulation, this
Escrow Agreement and/or order(s) of the Court .
(b) The Settlement Escrow Agent shall not be responsible in any manner
for the validity or sufficiency of any property transferred hereunder, or for the value or
collectibility of any note, check or other instrument so transferred, or of any representations
made or obligations assumed by any party other than the Settlement Escrow Agent . Nothing
herein shall be deemed to obligate the Settlement Escrow Agent to deliver any cash,
instruments, documents or any other property referred to herein, unless the same shall have
been first received by the Settlement Escrow Agent pursuant to the terms of this Escrow
Agreement .
(c) The Settlement Escrow Agent shall not incur any liability in acting on
and relying upon any written notice, direction, request, waiver, consent, receipt or other paper
that the Settlement Escrow Agent reasonably and in good faith believes to have been signed
and presented by the proper party or parties, which, pursuant to the provisions of this Escrow
Agreement, the Settlement Escrow Agent is authorized to accept except as set forth herein .
(d) The parties hereto agree that, should any dispute arise between the m
with respect to the payment, ownership or right to possession of any amounts in the
Settlement Escrow Account, the Settlement Escrow Agent is authorized and directed to retain
in its possession, without liability to anyone except in the event of its bad faith, willful
misconduct or negligence, all or any part of the Settlement Escrow Account until such dispute
has been settled either by mutual agreement of the parties concerned or by a final order,
decree or judgment of the Court or other tribunal of competent jurisdiction in the United
States. Nothing in the foregoing shall be construed to require the Settlement Escrow Agent to
institute, defend or become a party to any proceeding in any such court or tribunal .
(e) The Settlement Escrow Agent may resign at any time by giving sixty
(60) days' written notice of resignation to the other parties hereto, but such resignation shall
not become effective until a successor Settlement Escrow Agent, selected by Deloitte &
Touche and agreeable to Plaintiffs' Settlement Counsel, shall have been appointed and shall
have accepted such appointment (and the terms of this Escrow Agreement) in writing. If an
instrument of acceptance by a successor Settlement Escrow Agent shall not have been
delivered to the Settlement Escrow Agent within forty-five (45) days after the giving of such
notice of resignation, the resigning Settlement Escrow Agent may petition the Court for th e
9
appointment of a successor Settlement Escrow Agent (with any reasonable costs incurred by
the Settlement Escrow Agent in connection with any such provision being assessed agains t
the Settlement Escrow Account) .
(f) Plaintiffs' Settlement Counsel and Deloitte & Touche's Counsel ma y
remove the Settlement Escrow Agent hereunder upon ten (10) days joint written notice to the
Settlement Escrow Agent, which notice shall also appoint a successor Settlement Escrow
Agent . Such successor Settlement Escrow Agent shall indicate its acceptance of such
appointment (and the terms of this Escrow Agreement) in writing and shall submit a copy of
such acceptance to each of the parties hereto .
(g) Upon the later of (i) the effective date of any resignation pursuant t o
Section 7(e) hereof or any removal pursuant to Section 7(f) hereof or (ii) the receipt by the
original Settlement Escrow Agent of the written acceptance of appointment by the successor
Settlement Escrow Agent, all investments and other amounts held by the Settlement Escrow
Agent in the Escrow Account pursuant to this Escrow Agreement shall promptly, but in any
event, within five (5) business days, be transferred to such successor, which shall thereafter
be the Settlement Escrow Agent . The Settlement Escrow Agent shall be entitled to its fees
and expenses in accordance with the terms hereof up to the time such resignation or removal
becomes effective in accordance with this Section.
(h) Plaintiffs' Settlement Counsel, jointly and severally, agree to
indemnify and hold the Settlement Escrow Agent harmless from and against all costs,
damages, judgments, attorneys' fees (whether such attorneys shall be regularly retained or
specially employed), expenses, obligations, and liabilities of every kind and nature which the
Settlement Escrow Agent may incur, sustain, or be required to pay in connection with or
arising out of this Agreement, except those arising from Settlement Escrow Agent's
negligence or willful misconduct, and to pay to the Settlement Escrow Agent on demand the
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amount of all such costs, damages, judgments, attorneys' fees, expenses, obligations, and
liabilities .
SECTION 8 . Miscellaneous .
(a) Notices . All notices, requests, claims, demands, and other
communications under this Escrow Agreement shall be in writing, and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery in person, by
registered or certified mail (postage prepaid, return receipt requested), by facsimile, or by
Federal Express or similar overnight courier to the respective parties hereto at the following
addresses (or at such address for a party as shall be specified in a notice given in accordance
with this Section) :
If to Plaintiffs' Settlement Counsel :
Berger & Montague, P.C.1622 Locust StreetPhiladelphia, PA 19103 .Attention: Sherrie R Savett, Esquire(215) 875-3000Fax: (215) 875-571 5
and
Susman Godfrey LLP1000 Louisiana, Suite 5100Houston , Texas 77002Attention: Kenneth S . Marks , Esquire(713) 651-9366
If to Deloitte & Touche:
Barbara A . Mentz, EsquireAttorney for Deloitte & Touche LLP1633 Broadway (376 Floor)New York, NY 10019(212) 492-388 4Fax: (212) 492-420 1
and
Akin Gump Strauss Hauer & Feld LLPOne Commerce Square
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2005 Market StreetSuite 2200Philadelphia , PA 19107Attention: Edward F. Mannino, Esquire(215) 965-1200Fax: (215) 965-121 0
If to the Escrow Agent :
Wachovia Bank, National Association401 South Tryon Street, 19t' FloorCharlotte, NC 28288-1165Attn: Howard Parker(704) 383 -0051
(b) Successors andAssigns. The provisions of this Escrow Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Nothing in this Escrow Agreement, expressed or implied,
shall give or be construed to give any person, firm or corporation, other than the parties
hereto and their successors and permitted assigns, any legal claim under any covenant,
condition or provision hereof, all the covenants, conditions and provisions contained in this
Escrow Agreement being for the sole benefit of the parties hereto and their successors and
permitted assigns . No party may assign any of its rights or obligations under this Escrow
Agreement without the written consent of all of the other parties hereto, which consent may
be withheld in the sole discretion of the party whose consent is sought provided, that any
reorganization, merger, consolidation, or sale of assets, by any party hereto shall not be
deemed to constitute an assignment of this Agreement . .
(c) Governing Law. This Escrow Agreement shall be construed and
enforced in accordance with, and governed by, the internal, substantive laws of the State o f
Texas without giving effect to that State's choice of law principles .
(d) Jurisdiction and Venue. The parties hereto irrevocably and
unconditionally submit to the jurisdiction of the United States District Court for the Easter n
District of Texas for purposes of any suit, action or proceeding to enforce any provision of, o r
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based on any right arising out of, this Escrow Agreement, and the parties hereto agree not to
commence any such suit, action or proceeding except in such Court . The parties hereto
hereby irrevocably and unconditionally waive any objection to the laying of venue of any
such suit, action or proceeding in the Court and hereby further irrevocably waive and agree
not to plead or claim in such Court that any such suit, action or proceeding has been brought
in an inconvenient forum .
(e) Definitions . Terms used herein that are defined in the Stipulation are,
unless otherwise defined herein, used in this Escrow Agreement as defined in the Stipulation
which definitions are attached hereto as Exhibit A. .
(f) Amendments. This Escrow Agreement may be amended only by
written instrument executed by all parties hereto. The waiver of any rights conferred
hereunder shall be effective only if made by written instrument executed by the waiving
party. The waiver by any party of any breach of this Escrow Agreement shall not be deemed
to be or construed as a waiver of any other breach, whether prior, subsequent or
contemporaneous, of this Escrow Agreement.
(g) Counterparts; Effectiveness. This Escrow Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Escrow Agreement shall
become effective when each party hereto shall have signed a counterpart hereof. Delivery by
facsimile of a signed agreement shall be deemed delivery for purposes of acknowledging
acceptance hereof; however, an original executed signature page must promptly thereafter be
appended to the Escrow Agreement, and an original executed agreement shall promptly
thereafter be delivered to each party hereto .
(h) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction and interpretation hereof.
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(i) Upon the Effective Date as provided for in the Stipulation, all rights o f
Deloitte & Touche hereunder and all responsibilities, if any, shall cease, and Plaintiffs'
Settlement Counsel agrees to reimburse and indemnify the Deloitte & Touche Releasees, and
to hold them harmless against, any suit, claim, or action arising out of or relating to
administration of the Settlement Amount, or for any Taxes or Tax Expenses (including,
without limitations, Taxes payable by reason of any such indemnification), after the Effective
Date.
(j) Neither the Deloitte & Touche Releasees nor their counsel shall have
any responsibility for, interest in, or liability whatsoever to any person, including, without
limitation, to any Settlement Class Members, the Settlement Class, Claimants, Authorized
Claimants, Representative Plaintiffs, Plaintiffs' Settlement Counsel, or Plaintiffs' Class
Counsel with respect to the Settlement Amount (except to the extent that Deloitte & Touche
shall retain an interest in the Settlement Amount as provided in paragraphs 6 .2 and 7 .6 of the
Stipulation), any investment or distribution of the Settlement Amount, the proposed or actual
Plan of Allocation, the determination, administration, or calculation of claims, final awards
and supervision and distribution of the Settlement Amount as set forth in Section 5 of the
Stipulation, or any application for attorneys' fees and reimbursement of expenses and costs,
the payment or withholding of Taxes, Tax Expenses or any losses incurred in connection with
any such matters; and any Person, including, but not limited to, the Settlement Class
Members, the Settlement Class, Claimants, Authorized Claimants, Representative Plaintiffs,
Plaintiffs' Settlement Counsel, and Plaintiffs' Class Counsel shall have no claims against
Deloitte & Touche, the other Deloitte & Touche Releasees or Deloitte & Touche's Counsel in
connection therewith. Deloitte & Touche and the other Deloitte & Touche Releasees shall
have no responsibility for and no liability whatsoever with respect to the Settlement .
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IN "WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year herein above written :
By :DATED: August L 2005 eyrie R. Savett
Jerome M . MarcusGlen AbramsonCasey M. PrestonJon LambirasBERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, PA 19103(215) 875-300 0
DATED: August __,2005 By:Kenneth S . MarksJohnny W. CarterSUSMAN GODFREY LLP1000 Louisiana, Suite 5100Houston, Texas 77002(713) 651-9366
CO-LEAD COUNSEL FOR LEADPLAINTIFF AND THE CLASS
OF COUNSEL:
Sam BaxterMcKOOL SMITE, P.C.505 East Travis Street, Suite 105Marshall, Texas 75670(903) 927-211 1
1933 ACT COUNSEL :
William S . LerachDarren J. RobbinsSteven W. PepichBenny C. Goodman, IIIRyan LlorensLERACH, COUGHLIN, STOIA &ROBBINS LLP401 B. Street, Suite 1700San Diego, CA 92101(619) 231-1058(619) 231-7423 (Fax)
15
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year herein above written :
By:DATED: August _, 2005 Sherrie It Savett
Jerome M. MarcusGlen AbramsonCasey M. PrestonJon LanmbirasBERGER & MONTAGUE, P.C.1622 Locust StreetPhiladelphia, PA 19103(215) 875-3000
AgoDATED : August : , 2005 By:Kenneth S . MarksJohnny W. CarterSUSMAN GODFREY LLP1000 Louisiana, Suite 5100Houston, Texas 77002(713) 651-9366
CO-LEAD COUNSEL FOR LEADPLAINTIFF AND THE CLASS
OF COUNSEL :
Sam BaxterMcKOOL SMITH, P.C.505 East Travis Street, Suite 105Marshall, Texas 75670(903) 927-211 1
1933 ACT COUNSEL:
William S . LerachDarren J. RobbinsSteven W. PepichBenny C . Goodman, IliRyan LlorensLERACH, COUGHLIN, STOIA &ROBBINS LLP401 B. Street, Suite 1700San Diego, CA 92101(619)231-1058(619) 231-7423 (Fax)
IC
S. Gene CauleyCurtis L . BowmanJ. Allen CarneyMarcus N . BozemanTiffany WyattJames KaufmanCAULEY, BOWMAN, CARNEY &WILLIAMS, PLLCP.O. Box 2543 8Little Rock, AR 72221-5438(501)'312-8500(501) 312-8505 (Fax)
DATED: August 2, 2005 By-Edward F. ManninoAttorney-in-ChargePennsylvania Bar No. 04504emannino akin um .comAKIN GTJMP STRAUSS HAUER &FELD LLPOne Commerce Square2005 Market Street, Suite 2200Philadelphia, PA 1910 3(215) 965-1200(215) 965-1210 (Fax)
Lisa S. GalleranoAKIN GUMP STRAUSS HAVER &FELD LLP1700 Pacific Avenue, Suite 4100Dallas, TX 7520 1(214) 969-2800(214) 969-4343 (Fax)
Attorneys for Deloitte & Touche LLP
WACHOVIA BANK, NationalAssociationSettlement Escrow Agent
DATED : August 2005By :
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S. Gene CauleyCtu is L . Bowman1 . Allen CarneyMarcus N . Bozeman'Ilffany WyattJames KAUft=CAUL- TX, BOWMAN, CARNEY &W1 UT LWS, PLLCP O. Box 25439Little Rock, .AR 7222I 5438(501) 312-8500(501) 312-8505 (Pax)
DATI D: August _, 2005 By:Edward F. ManninoAttorney-ire-ChargePennsylvania Bar No. 04504
o@a "p-My. orsAKIN GUMP STRAUSS HAUER &FELD LLPOne.Co xce Square2003 Market Sired Suite 2200Philadelphia, PA 19103(215)965-I200(21$) 965-1210 (Fe, )
Lisa S. GalloranoAKIN GUUACP STRAUSS . HAUERFELD LL1700 Pacfic Avenue, Suite 4100Dat1as~ TX 7520 1(214) 969-2800(2144) 969-4343 (Fax)
Attom ys for Deloitte & Touche LLP
WACHOVIA BANY., NationalAssociationSettlement Bs zowA.gent
DATED : August 2, 2005 -7By;Timothy G BubblerAssisUait Vice Presiden401 South Tryon St, -19t FloorCharlotte, NC 28288-1165
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