In Re: Friedman's Inc. Securities Litigation 03-CV-3475...

Case 1:03-cv-03475-WSD Document 426 Filed 12/03/2007 of 35

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE FRIEDMAN'S, INC. SECURITIES Civil Action No:LITIGATION 1:03-CV-3475-WSD

STIPULATION AND AGREEMENT OF PARTIALSETTLEMENT WITH DEFENDANTS THOMAS WEISEL

PARTNERS, LLC, MCDONALD INVESTMENTS INC.,WEDBUSH MORGAN SECURITIES, INC., JMP SECURITIES,

AND MORGAN JOSEPH & CO. INC

This Stipulation and Agreement of Partial Settlement ("Stipulation") is

submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to

the approval of the Court, this Stipulation is entered into among Guerrilla Partners

LP, Ardsley Partners, LP, James E. Parker, Ashley Abernathy, Doug Havel and

James A. Hammann, ("Lead Plaintiffs") and Allan Bortel (collectively with Lead

Plaintiffs, "Plaintiffs") and Defendants Thomas Weisel Partners, LLC, McDonald

Investments Inc., Wedbush Morgan Securities, Inc., JMP Securities, and Morgan

Joseph & Co. Inc (collectively, the "Underwriter Defendants") (collectively with

Plaintiffs, the "Parties"), by and through their respective counsel.

WHEREAS:

A. Beginning on November 14, 2003, thirteen putative class actions


alleging violations of federal securities laws — Gaines v. Friedman 's, Inc., No. 403-

228 (S.D. Ga.); Miller v. Friedman's, Inc., No. 1:03cv3476 (N.D. Ga.); Guerrilla

Partners LP v. Friedman 's, Inc., No. 1:03cv3475 (N.D. Ga.); Simons v. Friedman 's,

Inc., No. 1:03cv3495 (N.D. Ga.); DiFilippo v. Friedman's, Inc., No. 1:03cv3511

(N.D. Ga.); Young v. Friedman 's, Inc., No. 1:03cv3524 (N.D. Ga.); Pfeiffer v.

Friedman's, Inc., No. 1:03cv3564 (N.D. Ga.); Pfister v. Friedman's, Inc., No,

1:03cv3760 (N.D. Ga.); Liu v. Friedman's, Inc., No. 1:03cv3776 (M.D. Ga.);

Gastaldo v. Friedman 's, Inc., No. 1:03cv3798 (N.D. Ga.); Snyder v. Friedman 's,

Inc., No. 1:03cv3958 (N.D. Ga.); Bortel v. Friedman 's, Inc., No. 1:04cv0051 (M.D.

Ga.) (adding various defendants and claims under Sections 11 and 12 of the

Securities Act of 1933); and Loftin v. Friedman's, Inc., No. 1:03cv9079 (S.D.N.Y.)

— were filed in this and other Courts and were subsequently consolidated under the

above caption, and are hereinafter referred to as the "Action";

B. Plaintiffs filed a Corrected Consolidated and Amended Class Action

Complaint on September 23, 2004 (the "Complaint"). Plaintiffs generally alleged

that Defendants (as defined below) engaged in conduct that violated the U.S.

securities laws during the Class Period (as defined below), in violation of Sections

10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act"), and Rule

10b-5 promulgated thereunder; and Sections 11, 12(a)(2) and 15 of the Securities

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•

Act of 1933 ("Securities Act");

C. The Complaint did not accuse the Underwriter Defendants of being

participants in any fraud but only named the Underwriter Defendants in claims

under Sections 11 and 12(a)(2) of the Securities Act. Plaintiffs did not assert that

the Underwriters violated Section 10(b) or 20(a) of the Securities Exchange Act of

1934 ("Exchange Act") and only those Class members who have standing to

maintain Section 11 and 12(a)(2) claims have asserted claims against the

Underwriter Defendants;

D. The Defendants, except Victor M. Suglia ("Suglia"), filed motions to

dismiss the Complaint between October 1 and October 27, 2004. On January 14,

2005, while the motions to dismiss were pending, Friedman's, Inc. ("Friedman's" or

the "Company") filed a petition for relief under Chapter 11 of the United States

Bankruptcy Code in the Bankruptcy Court for the Southern District of Georgia,

Savannah Division. The Action was stayed as against Friedman's by operation of

law;

E. By order dated September 7, 2005, the Court disposed of the motions to

dismiss. The Court denied in part and granted in part the motion to dismiss the

Section 10(b) claims against Defendant Ernst & Young LLP ("E&Y) (relating to

uncollectible accounts), dismissing specific allegations related to the 10(b) claims

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against E&Y. The Court denied the motion to dismiss the Section 10(b) claims

against Bradley J. Stinn ("Stinn"), and John Mauro ("Mauro"). The Court denied

the motion to dismiss the Section 11 allegations (and in the case of some defendants,

the 12(a)(2) allegations) against Defendants Sterling B. Brinkley ("Brinkley"), John

E. Cay, III ("Cay"), Robert W. Cruickshank ("Cruickshank"), David B. Parshall

("Parshall"), Mark C. Pickup ("Pickup") (since deceased and no longer a party to

this lawsuit), E&Y, and the Underwriter Defendants, except the Court granted the

motion as to defendant ABN ANTRO Rothschild LLC ("ABN AMRO"), which was

the lead underwriter of the February 6, 2002 Friedman's secondary offering. The

Court denied the motion to dismiss the claims under Section 15 of the Securities Act

against Defendants Stinn, Mauro, and Phillip Ean Cohen ("Cohen"). With respect

to Defendants Douglas Anderson ("Anderson"), Morgan Schiff & Co., MS Jewelers

Corp., and MS Jewelers LP, the Court granted their motions to dismiss in their

entirety;

F. On September 7, 2006, Plaintiffs, Suglia, Stinn, Mauro, Brinldey, Cay,

Cruickshank, Parshall and Anderson (the "Individual Settling Defendants") entered

into a Stipulation and Agreement of Settlement ("Individual Settling Defendants'

Stipulation"), resolving Plaintiffs' claims against the Individual Settling Defendants.

Plaintiffs and the Individual Settling Defendants filed a motion for preliminary

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approval of the Individual Settling Defendants' Stipulation on September 7, 2006;

G. Thereafter, Plaintiffs and E&Y, Cohen and the Underwriter Defendants

continued to litigate the Action. The Parties engaged in numerous arms' length

negotiations over the course of many months, including two formal mediations. The

Parties participated in the first mediation, presided over by Judge Layn Phillips, on

July 11, 2006. The Parties did not resolve Plaintiffs' claims that day, but continued

negotiations and entered into a tentative agreement to settle Plaintiffs' claims

against E&Y following the second mediation, before mediator Frank Jones, Esq., of

Jones, Cork & Miller, LLP, in New York on February 27, 2007;

H. Thereafter, Plaintiffs and the Underwriter Defendants engaged in merits

discovery, but also continued negotiations telephonically. In November 2007,

Plaintiffs and the Underwriter Defendants reached an agreement in principal.

I. The Underwriter Defendants deny any wrongdoing whatsoever and this

Stipulation shall in no event be construed or deemed to be evidence of any

wrongdoing whatsoever by the Underwriter Defendants or an admission or

concession on the part of the Underwriter Defendants with respect to any claim or of

any fault, liability, wrongdoing, or damage whatsoever, or any infirmity in the

defenses that the Underwriter Defendants have asserted. The Parties recognize that

the Action is being voluntarily settled after advice of counsel, and that the terms of

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the Settlement (as defined below) are fair, adequate and reasonable. The Parties

agree not to assert in any forum that the Action was brought by Plaintiffs or

defended by the Underwriter Defendants in bad faith or without a reasonable basis.

The Parties shall assert no claims of any violation of Rule 11 of the Federal Rules of

Civil Procedure relating to the prosecution, defense, or settlement of the Action and,

for purposes of the Court's mandatory Rule 11 finding, the Parties shall take, and act

consistently with, the position that no Rule 11 violation occurred. The Parties agree

that the amount paid and the other terms of the Settlement were negotiated at arm's-

length in good faith by the Parties, and reflect a settlement that was reached

voluntarily after consultation with experienced legal counsel. This Stipulation shall

not be construed or deemed to be a concession by any Plaintiff of any infirmity in

the claims asserted in the Action;

J. Plaintiffs' Co-Lead Counsel (as defined below) have conducted an

investigation and engaged in formal discovery relating to the claims and the

underlying events and transactions alleged in the Complaint. Plaintiffs, by their

counsel, have conducted discussions and arm's -length negotiations with counsel for

the Underwriter Defendants with respect to a compromise and settlement of the

Action with a view to settling the dispute and achieving the best relief possible,

consistent with the interests of the Class (as defined below); and

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K. Based upon their investigation, formal discovery and negotiations,

Plaintiffs' Co-Lead Counsel have concluded that the terms and conditions of this

Stipulation are fair, reasonable and adequate to Plaintiffs and the Class, and in their

best interests, and have agreed to settle the claims raised in the Action pursuant to

the terms and provisions of this Stipulation, after considering: (a) the substantial

benefits that Plaintiffs and the Class will receive from settling the Action; (b) the

attendant risks of litigation; and (c) the desirability of consummating the Settlement

as provided by this Stipulation.

NOW THEREFORE, without any admission or concession on the part of

Plaintiffs of any lack of merit of the Action whatsoever, and without any admission

or concession of any liability or wrongdoing or lack of merit in the defenses

whatsoever by the Underwriter Defendants, it is hereby STIPULATED AND

AGREED, by and among the Parties, through their respective attorneys, subject to

approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil

Procedure, and in consideration of the benefits flowing to the Parties from the

Settlement, that all Settled Claims (as defined below) as against the Released Parties

(as defined below) and all Settled Defendants' Claims (as defined below) shall be

compromised, settled, released and dismissed with prejudice, upon and subject to

the following terms and conditions:

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CERTAIN DEFINITIONS

1. In this Stipulation, for the purposes of this Settlement, the following

terms shall have the following meanings:

(a) "Authorized Claimant" means a Class Member who submits a

timely and valid Proof of Claim and Release form to the Claims Administrator.

(b) "Claims Administrator" means the firm The Garden City Group,

Inc., P.O. Box 9000, Merrick, NY 11566-9000, which shall administer the

Settlement.

(c) "Class" and "Class Members" mean all persons and entities who

purchased or otherwise acquired the common stock of Friedman's between January

26, 2000 and August 20, 2004, inclusive, and were damaged thereby. Excluded

from the Class are Friedman's, Settling Defendants (as defined below), Non-Settling

Defendant (as defined below), and Other Related Non-parties (as defined below);

members of the immediate family of each of the Settling Defendants, Non-Settling

Defendant, Friedman's, and Other Related Non-parties; any person, firm, trust,

corporation, officer, director or other individual or entity in which the Underwriter

Defendants, any Settling Defendant, Non-Settling Defendant, Other Related Non-

party, or Friedman's has a controlling interest or that is related to or affiliated with

the Underwriter Defendants, any of the Settling Defendants, Non-Settling

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Defendant, Other Related Non-parties, or Friedman's; and the legal representatives,

agents, affiliates, heirs, successors-in-interest or assigns of any such excluded party.

(d) "Class Period" means the period between January 26, 2000 and

August 20, 2004, inclusive.

(e) "Defendants" means E&Y, the Underwriter Defendants, Suglia,

Stinn, Mauro, BrinIdey, Cay, Cruickshank, Parshall, Anderson and Cohen.

(f) "Underwriter Defendants' Counsel" means Sullivan & Cromwell

LLP.

(g) "Effective Date of Settlement" or "Effective Date" means the

date upon which the Settlement contemplated by this Stipulation shall become

effective, as set forth in 1123 below.

(h) "Individual Settling Defendants" means Suglia, Stinn, Mauro,

•Brinkley, Cay, Cruickshank, Parshall, and Anderson.

(i) "Non-Settling Defendant" means Phillip Ean Cohen.

(j) "Notice" means the Notice of Pendency of Class Action and

Proposed Settlements with Certain Defendants, Motion for Attorneys' Fees and

Expenses and Settlement Fairness Hearing, which is to be sent to Class Members in

the form attached hereto as Exhibit 1 to Exhibit A.

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Case 1:03-cv-03475-VVSD Document 426 Filed 12/03/2007 of 35

(k) "Order and Final Judgment" means the order the Parties propose

to be entered approving the Settlement in the form attached hereto as Exhibit B.

(1) "Other Related Non-parties" means Crescent Jewelers, Inc.,

EZCorp Inc., Morgan Schiff & Co., Inc., MS Jewelers Corporation, and MS

Jewelers Limited Partnership.

(m) "Preliminary Order" means the Order Preliminarily Approving

Settlement and Providing for Notice in the form attached hereto as Exhibit A.

(n) "Plaintiffs' Co-Lead Counsel" means Chitwood Harley Hanies

LLP, Saxena White P.A., and Schiffrin Barroway Topaz & Kessler, LLP

(o) "Publication Notice" means the Summary Notice of Pendency of

Class Action, Proposed Settlements with Certain Defendants and Settlement

Hearing in the form attached as Exhibit 3 to Exhibit A.

(p) "Registration Statement" means the Shelf Registration Statement

filed by Friedman's with the SEC on or about December 28, 2001, as amended from

time to time, from which the common stock sold in the Company's February 6, 2002

and September 19, 2003 public offerings originate.

(q) "Released Parties" means the Underwriter Defendants and the

current and former general partners, limited partners, principals, directors, officers,

employees, agents, affiliates, attorneys, accountants, insurers, subsidiaries, parents,

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and the legal representatives, heirs, successors in interest or assigns of the

Underwriter Defendants. Released Parties shall be construed to include ABN

AMR() in its capacity as an underwriter of the Company's February 6, 2002

offering. Released Parties shall not be construed to include the Defendant Cohen.

(r) "Settled Claims" means all claims, obligations, costs, damages,

losses, and demands whatsoever, rights, liabilities, actions and causes of action of

any nature, known or unknown (including Unknown Claims, as defined below),

suspected or unsuspected, fixed or contingent, in tort or in contract, at law or in

equity, including, without limitation, any claims of fraud, bad faith, breach of

covenant of good faith and fair dealing, or failure to act that: (i) were asserted in the

Complaint, or (ii) could have been asserted in the Complaint, upon the allegations,

transactions, facts, matters, or occurrences, representations or omissions that could

have been included in the Complaint, and that relate to the purchase or acquisition

of Friedman's common stock during the Class Period. "Settled Claims" shall not

include any claim against Cohen. "Settled Claims" shall also not include claims, if

any, against the Released Parties arising under the Employment Retirement Income

Security Act of 1974, 29 U.S.C. § 1001 et seq., which are not otherwise common to

all Class Members.

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(s) "Settled Defendants' Claims"-means all claims (including both

known claims and Unknown Claims), that have been or could have been asserted in

-the Action or any forum by any of the Released Parties against any of the Plaintiffs,

Class Members or their attorneys, arising from or related in any way to the purchase

of Friedman's common stock during the Class Period or the prosecution of any

action or proceeding based on such claims (except for claims to enforce the

provisions of the settlement).

(t) "Settlement" means the partial settlement contemplated by the

Parties in this Stipulation.

(u) "Settling Defendants" means E&Y, Suglia, Stinn, Mauro,

Brinkley, Cay, Cruickshank, Parshall, Anderson and the Underwriter Defendants.

(v) "Unknown Claims" means any claims which any Party does not

know or suspect to exist in such Party's favor arising from or in any way related to

the purchase of Friedman's common stock during the Class Period. This does not

include any claim to enforce the provisions of the Settlement. With respect to any

and all Settled Claims and Settled Defendants' Claims, upon the Effective Date,

Plaintiffs and the Underwriter Defendants shall expressly waive, and Class

Members and Released Parties will be deemed to have waived by operation of the

Order and Final Judgment, the provisions, rights and benefits conferred by any law

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of any state or territory of the United States, or principle of common law, which is

similar, comparable or equivalent to California Civil Code § 1542, which provides:

A general release does not extend to claims which the creditor doesnot know or suspect to exist in his or her favor at the time ofexecuting the release, which if known by him or her must havematerially affected his or her settlement with the debtor.

Plaintiffs and the Underwriter Defendants acknowledge, and Class Members and

Released Parties by operation of law shall be deemed to have acknowledged, that

the inclusion of "Unknown Claims" in the definition of Settled Claims and Settled

Defendants' Claims was separately bargained for and was a key element of the

Settlement.

SCOPE AND EFFECT OF SETTLEMENT

2. The obligations incurred pursuant to this Stipulation shall be in full and

final disposition of the Action as between the Parties, any and all Settled Claims as

against all Released Parties, and any and all Settled Defendants' Claims.

3. Releases:

(a) Upon the Effective Date of this Settlement, Plaintiffs and Class

Members on behalf of themselves, their heirs, executors, administrators, successors

and assigns, shall, with respect to each and every Settled Claim, release and forever

discharge, and shall forever be enjoined from prosecuting, any Settled Claims

against any of the Released Parties.

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(b) Upon the Effective Date of this Settlement, the Underwriter

Defendants, on behalf of themselves and the Released Parties, shall release and

forever discharge each and every of the Settled Defendants' Claims, and shall

forever be enjoined from prosecuting the Settled Defendants' Claims.

THE SETTLEMENT CONSIDERATION

4. The Underwriter Defendants shall pay $2.5 million ("Cash Settlement

Amount") into an interest-bearing escrow account established by Plaintiffs' Co-

Lead Counsel, as Escrow Agents for the Gross Settlement Fund (i.e., the Cash

Settlement Amount and any interest earned thereon), in the name of the Friedman's

Underwriters Settlement Fund by the later of i) forty-five (45) days following the

execution of this Stipulation or ii) fifteen (15) days following the Court's entry of

the Preliminary Approval Order.

5. Escrow and Distribution:

(a) The Gross Settlement Fund, net of any Taxes (as defined below)

on the income thereof, shall be used to pay: (i) the Notice and Administration Costs

referred to in II 7 hereof; (ii) the attorneys' expense award referred to in '11 8 hereof;

and (iii) the remaining administration expenses referred to in 11 9 hereof. The •

balance of the Gross Settlement Fund after the above payments shall be the "Net

Settlement Fund", which shall be distributed to the Authorized Claimants as

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provided in in 10-12 hereof. The Gross Settlement Fund shall be held in escrow

hereunder prior to the Effective Date by Plaintiffs' Co-Lead Counsel as Escrow

Agents for the Gross Settlement Fund. All funds held by the Escrow Agents shall

be deemed to be in the custody of the Court and shall remain subject to the

jurisdiction of the Court until such time as the funds shall be distributed or returned

to the persons or entities paying the same pursuant to this Stipulation and/or further

order of the Court. The Escrow Agents shall invest any funds in excess of $100,000

in short-term United States Treasury Securities (or a mutual fund invested solely in

such instruments) and shall collect and reinvest all interest accrued thereon. Any

funds held in escrow in an amount of less than $100,000 may be held in an interest-

bearing bank account insured by the FDIC. The Parties agree that the Gross

Settlement Fund is intended to be a Qualified Settlement Fund within the meaning

of Treasury Regulation § 1.468B-I and that the Escrow Agents, as administrators of

the Gross Settlement Fund within the meaning of Treasury Regulation § 1.468B-

2(k)(3), shall be responsible for filing tax returns for the Gross Settlement Fund and

paying from the Gross Settlement Fund any Taxes (as defined below) owed with

respect to the Gross Settlement Fund. The Underwriter Defendants' Counsel agrees

to provide promptly to the Escrow Agents the statement described in Treasury

Regulation § 1.468B-3(e).

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(b) All (i) taxes on the income of the Gross Settlement Fund and (ii)

expenses and costs incurred in connection with the taxation of the Gross Settlement

Fund (including, without limitation, expenses of tax attorneys and accountants)

(collectively, "Taxes") shall be paid out of the Gross Settlement Fund and shall be

considered to be a cost of administration of the Settlement and shall be timely paid

by the Escrow Agents without prior order of the Court.

ADMINISTRATION

6. The Claims Administrator shall administer the Settlement subject to the

jurisdiction of the Court. The Underwriter Defendants shall have no responsibility

for the administration of the Settlement and shall have no liability to the Class in

connection with such administration. The Underwriter Defendants' Counsel shall

cooperate in the administration of the Settlement to the extent reasonably necessary

to effectuate its terms, but shall have no liability to the Class in connection with

such administration.

7. Plaintiffs' Co-Lead Counsel may pay from the Cash Settlement

Amount, with the approval of the Court, the reasonable costs and expenses

associated with identifying Class Members and effecting by mail Notice and

Publication Notice to the Class, and the administration of the Settlement, including

without limitation, the actual costs of publication, printing and mailing the Notice,

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reimbursements to nominee owners for forwarding notice to their beneficial owners,

and the administrative expenses incurred and fees charged by the Claims

Administrator in connection with providing notice and processing the submitted

claims. The Claims Administrator shall submit expenses associated with the

administration of the Settlement Fund to the Court in a timely manner so that

expenses in a particular calendar year can be deducted from interest income earned

in such calendar year.

ATTORNEYS' EXPENSES

8. Plaintiffs' Co-Lead Counsel will apply to the Court for an award from

the Gross Settlement Fund of attorneys' fees and expenses. To the extent the Court

permits, such amounts as are awarded by the Court, plus accrued interest in an

appropriate amount, shall be payable from the Gross Settlement Fund to Plaintiffs'

Co-Lead Counsel immediately upon award, notwithstanding the existence of any

timely filed objections thereto, or potential for appeal therefrom, or collateral attack

on the Settlement or any part thereof, subject to Plaintiffs' Co-Lead Counsel's

undertaking, in writing, to repay within 10 days the amount of attorneys' fees

received and attributable on a percentage basis to the $2.5 million paid by the

Underwriter Defendants, with interest, to the Gross Settlement Fund if and when, as

a result of any appeal and/or further proceedings on remand, or successful collateral

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attack, the Settlement, or the fee or expense award, is reduced or reversed. This

obligation on the part of Plaintiffs' Co-Lead Counsel may be summarily enforced

by Order of the Court.

ADMINISTRATION EXPENSES

9. Plaintiffs' Co-Lead Counsel will apply to the Court, on notice to the

Underwriter Defendants' Counsel, for an order (the "Class Distribution Order")

approving the Claims Administrator's administrative determinations concerning the

acceptance and rejection of the claims submitted herein and approving any fees and

expenses not previously applied for, including the fees and expenses of the Claims

Administrator, and, if the Effective Date has occurred, directing payment of the Net

Settlement Fund to Authorized Claimants.

DISTRIBUTION TO AUTHORIZED CLAIMANTS

10. The Claims Administrator shall determine each Authorized Claimant's

pro rata share of the Net Settlement Fund based upon each Authorized Claimant's

Recognized Claim (as defined in the Plan of Allocation described in the Notice

annexed hereto as Exhibit 1 to Exhibit A, or in such other Plan of Allocation as the

Court approves).

11. The Plan of Allocation proposed in the Notice is not a necessary term

of this Stipulation, and it is not a condition of this Stipulation that any particular

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Plan of Allocation be approved. Any Plan of Allocation presented to the Court for

approval shall provide for the calculation of Recognized Claims arising out of

purchases in the Offerings under the statutory scheme at §15 U.S.C. § 77(k)(e).

12. Each Authorized Claimant shall be allocated a pro rata share of the Net

Settlement Fund based on his, her or its Recognized Claim compared to the total

Recognized Claims of all accepted claimants. This is not a claims-made settlement.

The Underwriter Defendants shall not be entitled to get back any of the settlement

monies once the Settlement becomes final The Underwriter Defendants shall have

no involvement in reviewing claims and no responsibility or liability for any

allocation or disbursement of Settlement Fund proceeds.

ADMINISTRATION OF THE SETTLEMENT

13. Any member of the Class who does not submit a valid Proof of Claim

and Release form ("Proof of Claim") will not be entitled to receive any of the

proceeds from the Net Settlement Fund, but will otherwise be bound by all of the

terms of this Stipulation and the Settlement, including the terms of the judgment to

be entered in the Action and the releases provided for herein, and will be barred

from bringing any action against the Released Parties concerning the Settled

Claims.

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14. The Claims Administrator shall process the Proofs of Claim (see

attached Exhibit 2 to Exhibit A) and, after entry of the Class Distribution Order,

distribute the Net Settlement Fund to the Authorized Claimants. Except for their

obligation to cause payment of the Cash Settlement Amount as provided herein, the

Underwriter Defendants shall have no liability, obligation or responsibility for the

administration of the Settlement or disbursement of the Net Settlement Fund.

Plaintiffs' Co-Lead Counsel shall have the right, but not the obligation, to waive

what they deem to be formal or technical defects in any Proofs of Claim submitted

in the interests of achieving substantial justice.

15. For purposes of determining the extent, if any, to which a Class

Member shall be entitled to be treated as an Authorized Claimant and be able to

participate in the Net Settlement Fund, the following conditions shall apply:

(a) Each Class Member shall be required to submit a Proof of Claim,

substantially in the form attached as Exhibit 2 to Exhibit A, to the Claims

Administrator at the Post Office Box indicated in the Notice, postmarked not later

than 30 days after the date of the Settlement Fairness Hearing, unless such period is

extended by order of the Court. Any Class Member who fails to submit a Proof of

Claim by such date shall be forever barred from receiving any payment pursuant to

this Stipulation (unless, by order of the Court, a later submitted Proof of Claim by

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such Class Member is approved), but shall in all other respects be bound by all of

the terms of this Stipulation and the Settlement, including the terms of the judgment

to be entered in the Action and the releases provided for herein, and will be barred

from bringing any action against the Released Parties concerning the Settled Claims;

(b) The Proof of Claim submitted by each Class Member must

satisfy the following conditions: (i) it must be properly completed, signed and

submitted in a timely manner in accordance with the provisions of the preceding

subparagraph; (ii) for Class Members who purchased more than a number of shares

of Friedman's common stock during the Class Period, as stated in the Preliminary

Order, it must be accompanied by adequate supporting documentation for the

transactions reported therein, in the form of broker confirmation slips, broker

account statements, an authorized statement from the broker containing the

transactional information found in a broker confirmation slip, or such other

documentation as is deemed adequate by Plaintiffs' Co-Lead Counsel; (iii) if the

person executing the Proof of Claim is acting in a representative capacity, a

certification of his or her current authority to act on behalf of the Class Member

must be included in the Proof of Claim; and (iv) the Proof of Claim must be

complete and contain no material deletions or modifications of any of the printed

matter contained therein;

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(c) Each Proof of Claim shall be submitted to and reviewed by the

Claims Administrator, who shall determine in accordance with this Stipulation and

the approved Plan of Allocation the extent, if any, to which each claim shall be

allowed, subject to review by the Court pursuant to subparagraph (e) below;

(d) Proofs of Claim that do not meet the submission requirements

may be rejected. Prior to rejection of a Proof of Claim, the Claims Administrator

shall communicate with the claimant in order to remedy the curable deficiencies in

the Proofs of Claim submitted. The Claims Administrator shall notify, in a timely

fashion and in writing, all claimants whose Proofs of Claim they propose to reject in

whole or in part, setting forth the reasons therefore, and shall indicate in such notice

that the claimant whose claim is to be rejected has the right to a review by the Court

if the claimant so desires and complies with the requirements of subparagraph (e)

below;

(e) If any claimant whose claim has been rejected in whole or in part

desires to contest such rejection, the claimant must, within 20 days after the date of

mailing of the notice required in subparagraph (d) above, serve upon the Claims

Administrator a notice and statement of reasons indicating the claimant's grounds

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

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otherwise resolved, Plaintiffs' Co-Lead Counsel shall thereafter present the request

for review to the Court; and

(f) The administrative determinations of the Claims Administrator

accepting and rejecting claims shall be presented to the Court, on notice to the

Underwriter Defendants' Counsel, for approval by the Court in the Class

Distribution Order.

16. Each claimant shall be deemed to have submitted to the jurisdiction of

the Court with respect to the claimant's claim, and the claim will be subject to

investigation and discovery under the Federal Rules of Civil Procedure, provided

that such investigation and discovery shall be limited to that claimant's status as a

Class Member and the validity and amount of the claimant's claim. No discovery

shall be allowed on the merits of the Action or Settlement in connection with

processing of the Proofs of Claim.

17. Payment pursuant to this Stipulation shall be deemed final and

conclusive against all Class Members. All Class Members whose claims are not

approved by the Court shall be barred from participating in distributions from the

Net Settlement Fund, but otherwise shall be bound by all of the terms of this

Stipulation, including the terms of the judgment to be entered in the Action and the

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releases provided for herein, and will be barred from bringing any action against the

Released Parties concerning the Settled Claims.

18. All proceedings with respect to the administration, processing and

determination of claims described in .5 15 of this Stipulation and the determination

of all controversies relating thereto, including disputed questions of law and fact

-with respect to the validity of claims, shall be subject to the jurisdiction of the

Court.

19. The Net Settlement Fund shall be distributed to Authorized Claimants

by the Claims Administrator only after the Effective Date and after: (i) all claims

have been processed, and all claimants whose claims have been rejected or

disallowed, in whole or in part, have been notified and provided the opportunity to

be heard concerning such rejection or disallowance; (ii) all objections with respect

to all rejected or disallowed claims have been resolved by the Court, and all appeals

therefrom have been resolved or the time therefore has expired; (iii) all matters with

respect to attorneys' fees, costs, and disbursements have been resolved by the Court,

all appeals therefrom have been resolved or the time therefore has expired; and (iv)

all costs of administration have been paid.

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TERMS OF ORDER FOR NOTICE AND HEARING

20. Promptly after this Stipulation has been fully executed, Plaintiffs' Co-

Lead Counsel and the Underwriter Defendants' Counsel jointly shall apply to the

Court for entry of the Preliminary Order in the form annexed hereto as Exhibit A.

The Parties shall use their best efforts to obtain final approval of the Settlement.

TERMS OF ORDER AND FINAL JUDGMENT

21. If the Settlement contemplated by this Stipulation is approved by the

Court, counsel for the Parties shall request that the Court enter an Order and Final

Judgment substantially in the form annexed hereto as Exhibit B.

SUPPLEMENTAL AGREEMENT

22. Simultaneously herewith, Plaintiffs' Co-Lead Counsel and the

Underwriter Defendants' Counsel are executing a "Supplemental Agreement"

setting forth certain conditions under which this Settlement may be terminated by

the Underwriter Defendants if more than a certain percentage of the shares

purchased in the February 6, 2002 and September 19, 2003 offerings by potential

Class Members exclude themselves from the Class or if any of the Lead Plaintiffs

opt-out of the Class. The Supplemental Agreement shall be filed under seal prior to

the Settlement Fairness Hearing. In the event of a termination of this Settlement

pursuant to the Supplemental Agreement, this Stipulation shall become null and

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void and of no further force and effect and the provisions of 1125 shall apply.

Notwithstanding the foregoing, the Stipulation shall not become null and void as a

result of the election by the Underwriter Defendants to exercise their option to

withdraw from the Stipulation pursuant to the Supplemental Agreement until the

conditions set forth in the Supplemental Agreement have been satisfied.

EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION

23. The Effective Date of Settlement shall be the date when all the

following shall have occurred:

(a) Payment by the Underwriter Defendants of the Cash Settlement

Amount as provided for in if 4;

(b) entry by the Court of the Preliminary Order substantially in the

form annexed hereto as Exhibit A;

(c) approval by the Court of the Settlement, following notice to the

Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil

Procedure; and

(d) entry by the Court of an Order and Final Judgment, substantially

in the form as proposed by the Parties in Exhibit B hereto, and the expiration of any

time for appeal or review of such Order and Final Judgment, or, if any appeal is

filed and not dismissed, after such Order and Final Judgment is upheld on appeal in

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all material respects and is no longer subject to review upon appeal or review by

writ of certiorari, or, in the event that the Court enters an order and final judgment in

a form other than provided herein ("Alternative Judgment") and none of the Parties

who has the right to do so elects to terminate this Settlement, the date that such

Alternative Judgment becomes final and no longer subject to appeal or review.

24. The Underwriter Defendants' Counsel or Plaintiffs' Co-Lead Counsel

shall have the right to terminate the Settlement and this Stipulation by providing

written notice of their election to do so ("Termination Notice") to all other Parties

within 30 days of: (i) the Court's declining to enter the Preliminary Order in any

material respect; (ii) the Court's refusal to approve this Stipulation or any material

part of it; (iii) the Court's declining to enter the Order and Final Judgment in any

material respect; (iv) the date upon which the Order and Final Judgment is modified

or reversed in any material respect by the Eleventh Circuit Court of Appeals or the

United States Supreme Court, except with respect to any award of attorneys' fees

and costs to Plaintiffs' counsel; or (v) the date upon which an Alternative Judgment

is modified or reversed in any material respect by the Eleventh Circuit Court of

Appeals or the United States Supreme Court, except with respect to any award of

attorneys' fees and costs to Plaintiffs' counsel. Plaintiffs' Co-Lead Counsel shall

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also have the right to terminate this Settlement if the payment provided for in If 4 of

this Stipulation is not timely made.

25. Except as otherwise provided herein, in the event the Settlement is

terminated or fails to become effective for any reason, then the Parties shall be

deemed to have reverted to their respective status in the Action as of November 1,

2007 and, except as otherwise expressly provided, the Parties shall proceed in all

respects as if this Stipulation and any related orders had not been entered, and any

portion of the Cash Settlement Amount previously paid or caused to be paid by the

Underwriter Defendants, together with any interest earned thereon, less any Taxes

due with respect to such income, and less costs of administration and notice

incurred and paid or payable from the Cash Settlement Amount shall be returned to

the persons or entities paying the same. The return of such portion of the Cash

Settlement Amount shall be made within 10 business days of the failure of any of

the requirements to the Effective Date to have occurred.

NO ADMISSION OF WRONGDOING

26. This Stipulation, whether or not consummated, and any proceedings

taken pursuant to it:

(a) shall not be asserted, offered or received against the Underwriter

Defendants as evidence of or construed as or deemed to be evidence of (i) any

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wrongdoing whatsoever, or (ii) any presumption, concession, or admission by the

Underwriter Defendants with respect to the truth of any fact alleged by any of the

Plaintiffs or (iii) the validity of any claim that has been or could have been asserted

in the Action or in any litigation, or (iv) the deficiency of any defense that has been

or could have been asserted in the Action or in any litigation, or (v) any liability,

negligence, fault, or wrongdoing of the Underwriter Defendants, or (vi) any

presumption, concession or admission of any fault, misrepresentation or omission

with respect to any statement or written document approved or made by the

Underwriter Defendants;

(b) shall not be asserted, offered or received against the Underwriter

Defendants as evidence of a presumption, concession or admission with respect to

any liability, negligence, fault or wrongdoing, or in any way referred to for any

other reason as against the Underwriter Defendants, in any other civil, criminal or

administrative action or proceeding, other than such proceedings as may be

necessary to effectuate the provisions of this Stipulation; provided, however, that if

this Stipulation is approved by the Court, the Underwriter Defendants may refer to it

to effectuate the liability protection granted to them hereunder;

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(c) shall not be construed against the Underwriter Defendants as an

admission or concession that the consideration to be given hereunder represents the

amount which could be or would have been recovered after trial; and

(d) shall not be construed as or received in evidence as an admission,

concession or presumption against Plaintiffs, any of the Class Members, or

Plaintiffs' Co-Lead Counsel that any of their claims are without merit, or that any

defenses asserted by the Underwriter Defendants have any merit, or that damages

recoverable under the complaints would not have exceeded the Gross Settlement

Fund.

MISCELLANEOUS PROVISIONS

27. All of the exhibits attached hereto are hereby incorporated by reference

as though fully set forth herein.

28. The Underwriter Defendants warrant, as to the payments made by or on

behalf of them pursuant to 4 above, that they were not insolvent, nor did, nor will,

the payment required to be made by or on behalf of them render the Underwriter

Defendants insolvent within the meaning of and/or for the purposes of the United

States Bankruptcy Code, including §§ 101 and 547 thereof. This warranty is made

by the Underwriter Defendants and not by such Underwriter Defendants' Counsel.

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Case 1 :03-cv-03475-WSD Document 426 Filed 12/03/2007 of 35

29. If a case is commenced in respect to the Underwriter Defendants under

the United States Bankruptcy Code, or a trustee, receiver or conservator is

appointed under any similar law, and in the event of the entry of a final order of a

court of competent jurisdiction determining the transfer of money to the Gross

Settlement Fund or any portion thereof by or on behalf of the Underwriter

Defendants to be a preference, voidable transfer, fraudulent transfer or similar

transaction and any portion thereof is required to be returned, and such amount is

not promptly deposited to the Gross Settlement Fund by any of the Settling

Defendants, then, at the election of Plaintiffs' Co-Lead Counsel, the Parties shall

jointly move the Court to vacate and set aside the releases given and judgment

entered in favor of the Underwriter Defendants pursuant to this Stipulation, which

releases and judgment shall be null and void, and the Parties shall be restored to

their respective positions in the Action as of November 1, 2007 and any cash

amounts in the Gross Settlement Fund shall be returned as provided 25 above.

30. This Stipulation may not be modified or amended, nor may any of its

provisions be waived except by a writing signed by all the Parties or their

successors in interest.

31. The headings herein are used for the purpose of convenience only and

are not meant to have legal effect.

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32. The administration and consummation of the Settlement as embodied in

this Stipulation shall be under the authority of the Court, and the Court shall retain

jurisdiction for the purpose of entering orders providing for awards of attorneys'

fees and expenses to Plaintiffs' Co-Lead Counsel and enforcing the terms of this

Stipulation.

33. The waiver by one Party of any breach of this Stipulation by any other

Party shall not be deemed a waiver of any other prior or subsequent breach of this

Stipulation.

34. This Stipulation and its exhibits and the Supplemental Agreement

constitute the entire agreement among the Parties concerning the Settlement of the

Action, and no representations, warranties, or inducements have been made by any

Party hereto concerning this Stipulation and its exhibits and the Supplemental

Agreement other than those contained and memorialized in such documents.

35. This Stipulation may be executed in one or more counterparts. All

executed counterparts and each of them shall be deemed to be one and the same

instrument.

36. This Stipulation shall be binding upon, and inure to the benefit of, the

successors and assigns of the Parties.

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37. The construction, interpretation, operation, effect and validity of this

Stipulation, and all documents necessary to effectuate it, shall be governed by the

internal laws of the State of Georgia without regard to conflicts of laws, except to

the extent that federal law requires that federal law governs.

38. This Stipulation shall not be construed more strictly against one Party

than another merely by virtue of the fact that it, or any part of it, may have been

prepared by counsel for one of the Parties, it being recognized that it is the result of

arm's-length negotiations between the Parties, and all Parties have contributed

substantially and materially to the preparation of this Stipulation.

39. All counsel and any other person executing this Stipulation and any of

the exhibits hereto, or any related settlement documents, warrant and represent that

they have the full authority to do so and that they have the authority to take

appropriate action required or permitted to be taken pursuant to the Stipulation to

effectuate its terms.

40. Plaintiffs' Co-Lead Counsel and the Underwriter Defendants' Counsel

agree to cooperate fully with one another in seeking Court approval of the

Preliminary Order, the Stipulation and the Settlement, and to promptly agree upon

and execute all such other documentation as may be reasonably required to obtain

final approval by the Court of the Settlement.

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-

Dated: December 3, 2007 CHITWOOD HARLEY HARNES LLP

By: 64ed.. (44 WE.Martin II) . LchitwoodGregory E. KellerMeryl W. Edelstein

1230 Peachtree Street, NE2300 Promenade IIAtlanta, GA 30309Telephone: (404) 873-3900Facsimile: (404) 876-4476Plaintiffs' Co-Lead Counsel

Dated: December 3, 2007 SCHIFFRIN BARROWAY TOPAZ &ICESSLER, LLP

BY: I„A dr: ZivitzKay E. SicklesChristopher Nelson

280 King of Prussia RoadRadnor, PA 19087Telephone: (610) 667-7706Facsimile: (610) 667-7056Plaintiffs' Co-Lead Counsel

Dated: December 3, 2007 SAXENA WHITE PA.

BY: Veph P',/14/1,-( / /4-fMay S. SttxenaChristopher S. JonesJoseph E. White

2424 N. Federal Hwy., Suite 257Boca Raton, FL 33431Telephone: (561) 394-3399Facsimile: (561) 394-3382Plaintiffs' Co-Lead Counsel

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Dated: December 3, 2007 SUL(177,R :0,

By: Robert A. Sacks

1888 Century Park EastLos Angeles, CA 90067Telephone: (310) 712-6600

Jason de BrettevilleArnie D. RooneySULLIVAN & CROMW-ELL LLP1870 Embarcadero RoadPalo Alto, CA 94303Telephone: (650) 461-5600Facsimile: (650) 461-5700

Attorneys for Defendants Thomas WeiselPartners, LLC, McDonald InvestmentsInc., Wedbush Morgan Securities, Inc.,JMP Securities, and Morgan Joseph &Co. Inc

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In Re: Friedman's Inc. Securities Litigation 03-CV-3475...

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Transcript of In Re: Friedman's Inc. Securities Litigation 03-CV-3475...