BRUCE H. COZZI, District Judge.
WHEREAS, this action was settled on a class basis by Stipulation of Settlement dated May 17, 1999 ("Stipulation") (attached hereto). The Settlement was approved pursuant to an Order and Final Judgment dated October 19, 1999. The class was defined as: all persons or entities who purchased shares of common stock of Westinghouse Electric Corporation ("Westinghouse" or the "Company"), the predecessor to CBS Corporation ("CBS"), during the period from March 28, 1989 through October 22, 1991, inclusive.
WHEREAS, paragraph 19(e)(vii) on pages 23-24 of the Stipulation provides: "If any amount remains in the Net Settlement Fund following payment of all Recognized Claims by all Authorized Claimants, the amount remaining in the Net Settlement Fund shall be contributed to a charity to be agreed upon by the parties and approved by the Court." Counsel for the parties have conferred and agree that at this time this matter should be closed for all purposes and all remaining funds should be donated in equal share to the following 501 (c)(3) charitable organizations: The Diane Abbey Center for Children and Families at New York Law School and the National Association of Broadcasters Educational Foundation,
WHEREAS, as hereinafter set forth and pursuant to the order of this Court, the settlement proceeds were distributed under the direction of plaintiffs' counsel and the final distribution shall be made and the file in this case should be closed,
WHEREAS, Gilardi & Co., ("Gilardi" or the "Claims Administrator"), was retained by plaintiffs' counsel to receive and process claims filed by class members. In an Order Re: Distribution of Class Funds, dated November 20, 2000, it was ordered that the administrative determinations of Gilardi accepting and rejecting the claims be approved. It was also ordered that the balance of the Settlement Fund, less various payments to counsel and Gilardi, be distributed to qualified claimants who were listed on a computer printout submitted to the Court,
WHEREAS, Plaintiffs' Counsel and Gilardi believe that they have used reasonable and diligent efforts to distribute the Settlement Fund, and are unable to locate the remaining claimants. It is not believed that further efforts will be effectual. As a result of the foregoing and in order to achieve finality of this settlement administration, Gilardi recommends the entry of an Order declaring that the claims associated with the outstanding checks that were uncashed or undeliverable, be deemed invalid,
WHEREAS, it is virtually inevitable that a certain number of class members will deposit their settlement checks and a certain number of checks will be returned as undeliverable. Any further efforts to administer the settlement would be both futile and cost ineffective,
WHEREAS, by the Order Re: Distribution of Class Funds dated November 20, 2000, the Court approved the administrative determinations of Gilardi accepting and rejecting claims. Pursuant to that Order, Gilardi distributed the Net Settlement Fund to Authorized Claimants on January 16, 2001. Gilardi issued 35,860 checks to Authorized Claimants in the aggregate amount of $44,517,952.39. As is their standard practice, Gilardi made reasonable attempts to locate the claimants whose checks remained uncashed or were returned as undelivered by the Post Office. A National Change of Address search ("NCOA") was performed for claimants whose checks were returned as undeliverable from the U.S. Postal Service. In addition, letters were sent to addresses of record and personal contract via telephone or email was done,
WHEREAS, after consultation with Plaintiffs' Counsel, Gilardi conducted a second distribution with the residual funds remaining after the first distribution. On November 26, 2003, Gilardi issued 2,781 checks in the aggregate amount of $450,980.53 for Authorized Claimants who cashed their January 16, 2001 distribution check and would receive at least $10.00 on the redistribution. On April 3, 2009, a third distribution occurred of 1,245 checks in the aggregate amount of $121,153.55 for Authorized Claimants who cashed their January 16, 2001 distribution check and would receive at least $10.00 on the redistribution. After making this distribution, Gilardi monitored the status of claimant checks. As is their standard practice, GCG made reasonable attempts to locate the claimants whose checks remained uncashed or were returned as undelivered by the Post Office. A NCOA search was performed for claimants whose checks were returned as undeliverable from the U.S. Postal Service,
WHEREAS, as of May 11, 2001, after anticipated costs associated with the filing of the 2011 tax return a total of $15,004.35 remains in the Settlement Fund. Currently, all outstanding uncashed checks are stale-dated. Plaintiffs' Counsel are not requesting any additional fees or expenses,
WHEREAS, Plaintiffs' Counsel and the Claims Administrator's request for an Order, (1) authorizing the final distribution of the residual balance of the Settlement Fund identified in the Affidavit of Bruce H. Cozzi of Gilardi; and (2) permitting the Claims Administrator to dispose of all claim forms submitted in connection with this litigation, and (3) that after making final distribution and administration of the settlement fund direct the Clerk of the Court to close the file in this case.
WHEREAS, the Court has determined that good cause exists to grant the request in its entirety, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
1. That our pursuant to the Order providing for administration of the settlement proceeds in this case, that the remaining balance of the Settlement Fund (plus accrued interest) shall be distributed by plaintiffs' counsel and defendant's counsel to agreed upon 501 (c) (3) tax exempt organizations;
2. The Claims Administrator may dispose of all claims forms submitted in connection with the litigation; and
3. That upon performing the matters herein to be performed, that the Clerk of the Court be directed to close the file in this case.
SO ORDERED.
The parties in the above-referenced class actions (the "Litigation"), by their respective attorneys, hereby enter into the following Stipulation of Settlement (the "Stipulation"), pursuant to the terms and conditions set forth below, subject to approval of the United States District Court for the Western District of Pennsylvania (the "Court"). This Stipulation states the terms and conditions upon which the parties have agreed to compromise and settle the Litigation (the "Settlement").
1. The plaintiffs in the Litigation are purchasers of shares of common stock of Westinghouse Electric Corporation ("Westinghouse"), the predecessor of CBS Corporation ("CBS"), beginning on March 28, 1989 and concluding on October 22, 1991 (the "Class Period"). The defendants in the Litigation are Westinghouse, Westinghouse Financial Services, Inc. ("WFSI"), Westinghouse Credit Corporation ("WCC"), Robert E. Faust, Warren H. Hollinshead, Paul E. Lego, William A. Powe, Robert F. Pugliese and Theodore Stem (the "Westinghouse Defendants"), Shearson Lehman Brothers, Inc. (the predecessor of Lehman Brothers, Inc.), Goldman, Sachs & Co., Lazard Freres & Co. (the predecessor of Lazard Freres & Co. LLC), Lehman Brothers International, Ltd., Goldman Sachs International, Ltd. (the predecessor of Goldman Sachs International) and Lazard Brothers & Co., Limited (the "Underwriter Defendants") and Price Waterhouse, predecessor to PricewaterhouseCoopers LLP ("Price Waterhouse") (collectively, the "Defendants").
2. Plaintiffs assert claims on their own behalf and on behalf of a class consisting of all persons who purchased shares of Westinghouse common stock during the Class Period, but excluding Defendants, officers of Westinghouse, members of Westinghouse's Board of Directors, and members of the immediate families and subsidiaries, affiliates or control persons of any of these persons and entities (the "Class"). Plaintiffs also assert claims against a class consisting of all underwriters of a May 1991 public offering of Westinghouse common stock ("the Underwriter Defendant Class"). Certain plaintiffs also assert certain of their claims on behalf of a subclass consisting of all persons who purchased Westinghouse common stock pursuant to a May 1991 Prospectus (the "Prospectus Subclass"). Certain plaintiffs also assert certain of their claims on behalf of a subclass consisting of all persons who purchased Westinghouse common stock through Westinghouse's Dividend Reinvestment Plan during the Class Period (the "DRP Subclass"). The term "Subclasses" in this Stipulation includes the Prospectus Subclass and the DRP Subclass.
3. Plaintiffs allege that Defendants violated the federal securities laws and Pennsylvania law by making materially false and misleading statements and omissions during the Class Period concerning the financial condition of Westinghouse, WFSI and WCC.
4. Defendants deny all allegations of wrongdoing, fault, liability or damage to plaintiffs and the Class and Subclasses and believe that they acted properly at all times and that the Litigation has no merit.
5. The parties desire to compromise and settle the Litigation upon the terms and conditions stated below.
6. The Litigation was commenced on or about February 28, 1991.
7. The plaintiffs in the Litigation are Margaret Alessi, Gloria Bertinato, Michael C. Christner, Anna Marie Eroshevich, Toby Feuer, Kanwal K. Gupta, Matthew Harlib, Stanley Hershfang, Arnold M. Jacob, Louise Jacob, David Jaroslawicz, David Kirschner, Nathan Kleinhandler, Gerry Krim, Peter Lagorio, Nelson Lovins, Donald McLennan, Dena F. Miller, Jacob Joseph Miller, Alexander Miller, Thomas Mitchell, Edward Murabito, Michael E. Nogay, Joseph Raschak, William L. Schwartz, Richard Schwartzchild, Michael Slavin, Michael Solomon, Selma Solomon, Spring Creek Cardio-Medical Associates. Inc. Profit Sharing Plan and Trust, Ruth Stepak, Jim Thompson, Patricia J. VanArtsdalen and Albert Zucker ("Plaintiffs").
8. On May 16, 1991, the Court consolidated what were then five class action and/or shareholder derivative action complaints as well as all related complaints filed in the future under the caption
9. On June 15, 1992, following the production of approximately 3.5 million pages of documents by Westinghouse, WFSI and WCC, Plaintiffs filed a Consolidated Amended Class Action Complaint. Plaintiffs alleged that Defendants made materially false and misleading statements and omissions that constituted violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Sections 10(b) and 20(a)") and Sections 11, 12(a)(2) [at the time, 12(2)] and 15 of the Securities Act of 1933 ("Sections 11, 12(a)(2) and 15"). Plaintiffs also alleged negligent misrepresentation under Pennsylvania law.
10. On July 27, 1993, the Court granted Defendants' motions to dismiss the Consolidated Amended Class Action Complaint. Plaintiffs' Section 10(b) and 20(a) claims were dismissed without prejudice and Plaintiffs' Section 11, 12(a)(2) and 15 and negligent misrepresentation claims were dismissed with prejudice.
11. On September 30, 1993, Plaintiffs filed a Second Consolidated Amended Class Action Complaint.
12. On January 20, 1995, the Court granted Defendants' motions to dismiss the Section 10(b) and 20(a) claims (the only claims that had not previously been dismissed with prejudice) in the Second Consolidated Amended Class Action Complaint. The Court dismissed portions of these claims with prejudice and portions of these claims without prejudice and granted Plaintiffs leave to amend the latter claims.
13. On February 21, 1995, Plaintiffs filed a notice of intention to stand on the Second Consolidated Amended Class Action Complaint.
14. On February 28, 1995, the Court dismissed with prejudice all claims in the Second Consolidated Amended Class Action Complaint that had not previously been dismissed with prejudice.
15. On March 7, 1995, Plaintiffs appealed certain of the Court's July 27, 1993, January 20, 1995 and February 28, 1995 rulings dismissing Plaintiffs' claims in the Consolidated Amended Class Action Complaint and the Second Consolidated Amended Class Action Complaint to the United States Court of Appeals for the Third Circuit (the "Court of Appeals").
16. On July 18, 1996, the Court of Appeals affirmed in part and reversed in part this Court's dismissals of Plaintiffs' claims in the Consolidated Amended Class Action Complaint and the Second Consolidated Amended Class Action Complaint.
17. On February 19, 1997 and May 27, 1997, two new complaints were filed against the Defendants in the Litigation:
18. On November 17 and 18, 1997, the Court granted Defendants' motions to dismiss the Schwartz and Miller cases with prejudice on the ground that both complaints were time-barred.
19. On December 17, 1997, the plaintiffs in the
20. On June 30, 1997, Plaintiffs filed a third Consolidated Amended Class Action Complaint asserting claims under Sections 10(b) and 20(a) and Sections 11, 12(a)(2) and 15.
21. On March 12, 1998, the Court granted in part and denied in part motions to dismiss portions of Plaintiffs' Third Consolidated Amended Class Action Complaint. All of Plaintiffs' Section 12(a)(2) claims were dismissed, with leave to amend those claims.
22. On March 27, 1998, Plaintiffs filed a Fourth Consolidated Amended Class Action Complaint.
23. On April 17, 1998, Defendants answered the Fourth Consolidated Amended Class Action Complaint, denying liability and asserting affirmative defenses, including, among others, contentions that Plaintiffs failed to state a claim upon which relief may be granted, failed to allege any false or misleading statement or omission, failed to allege a causation effect between the alleged false or misleading statements or omissions and any injury allegedly suffered by Plaintiffs, and failed to allege fraud with the particularity required by Federal Rule of Civil Procedure 9(b). A motion also was filed seeking the dismissal of the Section 12(a)(2) claims in the Fourth Consolidated Amended Class Action Class Action Complaint.
24. On December 31, 1998, after being informed by the parties that an agreement in principle had been reached to settle the Litigation, the Court denied the pending motion to dismiss Plaintiffs' Section 12(a)(2) claims in the Fourth Consolidated Amended Class Action Complaint.
25. Counsel for Plaintiffs and Defendants over a period of several years have engaged in extensive arrns'-length negotiations concerning settlement, including numerous face-to-face meetings and telephone conferences with each-other, certain of which included liability insurers for the Westinghouse Defendants and certain of which included the Court, during which the terms of a settlement were extensively discussed.
26. Counsel for Plaintiffs state that they have conducted an extensive investigation and have taken extensive discovery relating to Plaintiffs' claims in the Litigation and the facts and circumstances underlying Plaintiffs' claims. Counsel for Plaintiffs state that they have reviewed and analyzed millions of pages of documents produced by the defendants and by third parties, have consulted with accounting experts, have analyzed damages and have researched the applicable law with respect to the claims of Plaintiffs and the Class and Subclasses, and the potential defenses to those claims. Based upon their investigation and pretrial discovery summarized above, counsel for Plaintiffs have concluded that the terms and conditions of this Stipulation are fair, reasonable, adequate and in the best interests of Plaintiffs and the Class and Subclasses, and have agreed to settle the claims in the Litigation pursuant to the terms and provisions of this Stipulation, after considering the substantial benefits that Plaintiffs and the Class and Subclasses will receive from the Settlement, the risks of litigation and the desirability of permitting the Settlement to be consummated on the terms and conditions provided for by this Stipulation.
27. Defendants deny all allegations of wrongdoing, fault, liability or damage to Plaintiffs and the Class and Subclasses and believe that they acted properly at all times. Defendants believe the Litigation has no merit, but recognize the uncertainty and the risk of the outcome of any litigation, especially complex securities litigation, and the difficulties and substantial expense and length of time necessary to defend this already more than eight year old proceeding through the conclusion of discovery, Defendants' summary judgment motions, a possible trial, possible post-trial motions and possible appeals. Based upon their consideration of all of these factors, Defendants wish to settle the Litigation on the terms and conditions set forth in this Stipulation, and avoid the burden, inconvenience and expense inherent in further lengthy and time-consuming proceedings in the Litigation, and to put to rest finally and forever any and all claims that were or could have been asserted in this Litigation or arising out of the allegations set forth in the Litigation and any of Plaintiffs' complaints in the Litigation or that could have been asserted in any amendment to any of Plaintiffs' complaints in the Litigation, subject in each case, to the exclusion set forth in Paragraph 7 below, without in any way acknowledging any wrongdoing, fault, liability or damage to Plaintiffs or the Class or Subclasses.
NOW, THEREFORE, FOR THE REASONS STATED ABOVE AND OTHER REASONS, IT IS HEREBY STIPULATED AND AGREED by and among the parties to this Stipulation, through their respective attorneys, subject to approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties and the Class and Subclasses from the Settlement, and without any admission or concession by Plaintiffs of any lack of merit of the Litigation, and without any admission or concession by Defendants of any liability or wrongdoing or lack of merit in their defenses, that all Released Claims (as defined below) against the Released Parties (as defined below) shall be compromised, settled, released and dismissed with prejudice, upon and subject to the following terms and conditions:
1. In mil settlement of the Settled Claims (as defined below), Defendants and/or their insurers shall pay the sum of SIXTY-SEVEN MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($67,250,000) in cash (the "Settlement Amount") no later than 7 business days after the date of this Stipulation and 8 business days after Plaintiffs provide complete wire transfer instructions for the payment (the "Due Date") in accordance with an allocation among Defendants and/or their insurers stated in a confidential agreement filed with the Court ("Defendants' Confidential Agreement"). If the Settlement Amount is not paid in full in accordance with this Paragraph on or before the Due Date, then at Plaintiffs' election (a) this Stipulation and the Settlement shall be null and void, or (b) interest shall be owed by Defendants, in accordance with the allocation among Defendants and/or their insurers stated in Defendants' Confidential Agreement, on the amount of the Settlement Amount that is not paid in full on or before the Due Date at an interest rate equal to the 90 day U.S. Treasury Bill rate for the period after the Due Date that the Settlement Amount is not paid in full. Defendants shall pay the Settlement Amount to Abbey, Gardy & Squitieri, LLP, Specter Specter Evans & Manogue, P.C. and Stull, Stull & Brody, as escrow agents (the "Escrow Agents") for deposit into escrow accounts (the "Escrow Accounts"). The Settlement Amount and all interest that is earned by investina the Settlement Amount shall constitute the "Settlement Fund."
2. Once the Settlement Amount is paid, Defendants shall have no responsibility for maintaining or investing the Settlement Amount or the Settlement Fund, for the establishment or maintenance of the escrow accounts, for the payment of taxes due on the interest earned on the Settlement Amount or by the Settlement Fund, or for the distribution of the Settlement Fund or the administration of the Settlement. Defendants take no position with respect to the provisions in this Stipulation concerning those issues.
3. The Effective Date of the Settlement shall be three business days following the later of the following events: (i) the date upon which the time expires for filing or noticing any appeal of the Final Order and Judgment (as defined below) other than an appeal solely with respect to attorneys' fees and reimbursement of expenses awarded pursuant to the terms of this Stipulation and (ii) if there is an appeal or appeals, other than an appeal or appeals solely with respect to attorneys' fees and reimbursement of expenses, the completion, in a manner that affirms and leaves in place the Final Order and Judgment, of all proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for reconsideration or petitions for certiorari, all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following decisions on remand).
4. Upon the Effective Date, the following parties will be released (the "Released Parties") with respect to the Released Claims (as defined below): Defendants, the Underwriter Defendant Class, and their present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliates, employees, agents, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, underwriters and any other representatives of any of these persons or entities.
5. Upon the Effective Date, the following claims will be released (the "Released Claims") with respect to the Released Parties: (i) All claims and rights, whether known or unknown, belonging to any or all Plaintiffs and any or all members of the Class, the Prospectus Subclass and/or the DRP Subclass and their present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliates, employees, agents, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, underwriters and any other representatives of any of these persons and entities, who do not submit a timely request for exclusion, which have been or could have been asserted in the Litigation or in the future might be asserted in any court or proceeding, including without limitation any claims arising under federal, state, local, statutory or common law or any other law, rule or regulation, relating to alleged breach of any duty, negligence, fraud, violation of state or federal securities laws or any other alleged wrongdoing or misconduct, whether directly or in any other capacity, relating in any way to the purchase or any other acquisition during the Class Period of Westinghouse common stock, which have arisen, could have arisen, arise now or at some later time arise out of, or are related in any manner to the allegations, transactions, matters or occurrences, alleged misstatements or omissions, or any combination thereof, involved in, set forth in, referred to in or related to the Litigation; and (ii) all claims and rights against Plaintiffs and against Defendants, whether known or unknown, belonging to Defendants and their present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliates, employees, agents, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, investment bankers, underwriters and any other representatives of any of these persons and entities, who do not submit a timely request for exclusion, which have been or could have been asserted in the Litigation or in the future might be asserted in any court or proceeding, including without limitation any claims arising under federal, state, local, statutory or common law or any other law, rule or regulation, relating to alleged breach of any duty, negligence, fraud, violation of state or federal securities laws or any other alleged wrongdoing or misconduct, whether directly or in any other capacity, relating in any way to the purchase or any other acquisition during the Class Period of Westinghouse common stock, which have arisen, could have arisen, arise now or at some later time arise out of, or are related in any manner to the allegations, transactions, matters or occurrences, alleged misstatements or omissions, or any combination thereof, involved in, set forth in, referred to in or related to the Litigation.
6. The term "unknown" in the definition of the Released Claims includes claims that any or all Plaintiffs or members of the Class, the Prospectus Subclass and/or the DRP Subclass do not know or suspect to exist, which, if known by him, her or it, might affect his, her or its agreement to release the Released Parties and the Released Claims, or might affect his, her or its decision to object or not to object to the Settlement. Upon the Effective Date, any or all Plaintiffs and members of the Class, the Prospectus Subclass and/or the DRP Subclass who do not submit a timely request for exclusion shall be deemed to have, and by operation of the Final Order and Judgment in the Litigation shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of § 1542 of the California Civil Code, which provides as follows:
Upon the Effective Date, Plaintiffs and the Class and Subclasses also shall be deemed to have, and by operation of the Final Order and Judgment 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, which is similar, comparable or equivalent to § 1542 of the California Civil Code.
7. Notwithstanding anything to the contrary in this Stipulation, the Released Claims do not include any claims that have been or could have been asserted by any Westinghouse or CBS shareholder or shareholders acting derivatively on behalf of Westinghouse or CBS arising out of or directly or indirectly related to the subject matter of the Litigation. All such claims are addressed in the Derivative Action Stipulation of Settlement. Also notwithstanding anything to the contrary in this Stipulation, the Released Claims do not include any claims between (1) Westinghouse and (2) the Underwriter Defendants and the Underwriter Defendant Class.
8. The term "Settled Claims" in this Stipulation includes the Released Claims against the Released Parties.
9. The Settlement Fund shall remain in the Escrow Accounts, except as expressly provided for by the terms of this Stipulation. The Escrow Agents shall only withdraw funds from the Settlement Fund in accordance with the terms of this Stipulation or a further Order by the Court. The Escrow Agents or their designee(s) shall maintain accurate records of all withdrawals of funds from the Escrow Accounts.
10. The Escrow Agents shall invest the Settlement Fund in United States Treasury Bills with maturities of six months or less. Notwithstanding the prior sentence, the Escrow Agents may withhold from investment in United States Treasury Bills such amounts that the Escrow Agents in their discretion deem necessary to make any payments permitted by the terms of the Settlement. The Escrow Agents also may sell or present for redemption United States Treasury Bills in order to obtain funds that the Escrow Agents in their discretion deem necessary to make any payments permitted by the terms of this Stipulation.
11. The Escrow Agents shall take all necessary steps to enable the Escrow Accounts to be taxable as "Qualified Settlement Funds" within the meaning of regulations and pronouncements under the Internal Revenue Code. The Escrow Agents will be the Administrators of the Qualified Settlement Fund for purposes of the Escrow Accounts. The Escrow Agents or their designated representatives, on behalf of the Escrow Accounts or their representatives, shall file on a timely basis all required federal, state and local tax returns. The Escrow Agents shall cause the Escrow Accounts to pay (i) taxes on the income earned by the Settlement Fund in the Escrow Accounts, and (ii) expenses and costs incurred in connection with the taxation of the Settlement Fund in the Escrow Accounts (including, without limitation, expenses of tax attorneys and accountants) (collectively "Taxes") in a manner consistent with treatment of the Escrow Accounts as a Qualified Settlement Fund. Any taxes payable on income from the Escrow Accounts shall be paid from the Escrow Accounts.
12. The Settlement Fund shall indemnify and hold harmless the Escrow Agents, in their capacity as Escrow Agents with respect to the Settlement Fund, and all of their partners, employees and consultants, and the heirs, executors, estates, administrators, predecessors, successors, assigns, parents, subsidiaries, associates, affiliates and agents of any of these persons or entities, from any damages, judgments, liabilities, settlements, costs and expenses (including, without limitation, reasonable attorneys' fees, costs and expenses) resulting from any actual or threatened claim, counterclaim, cause of action, defense, offset or other allegation of or with respect to wrongdoing arising out of, relating to, or resulting from any act or omission in their capacity as Escrow Agents as it relates to the Settlement Fund, except for an act or omission by the Escrow Agents that constitutes an intentional tort, criminal conduct, or gross negligence and is performed or not performed pursuant to this Stipulation or other Order by the Court.
13. An escrow agreement or agreements will be entered into substantially in the form attached as Exhibit F to this Stipulation.
14. As soon as practicable after execution of this Stipulation, the parties jointly shall apply to the Court for approval of an Order Approving Notice and Scheduling Hearing in the form attached as Exhibit A to this Stipulation (the "Notice and Hearing Order"):
(a) Conditionally certifying the Litigation as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of the Class, the Prospectus Subclass and the DRP Subclass;
(b) Conditionally certifying Plaintiffs as representatives of the Class, conditionally certifying Plaintiffs Arnold M. Jacob, Louise Jacob, Nathan Kleinhandler, Nelson Lovins, Richard Schwartzchild, Jim Thompson and Patricia J. VanArtsdalen as representatives of the Prospectus Subclass, and conditionally certifying Plaintiffs Donald McClennan and Ruth Stepak as representatives of the DRP Subclass;
(c) Setting a date for a settlement hearing (the "Settlement Hearing"), to be scheduled based upon the Court's calendar on a date no sooner than 110 days after the Notice and Hearing Order is entered, for the following purposes: (i) to determine whether the Settlement should be approved as fair, reasonable, adequate and in the best interests of the Class and Subclasses, (ii) to determine whether a Final Order and Judgment should be entered dismissing the Litigation with prejudice substantially in the form attached as Exhibit B to this Stipulation (the "Final Order and Judgment"), and (iii) to rule upon any applications by Plaintiffs' counsel for an award of attorneys' fees and reimbursement of expenses;
(d) Providing that within five days after the entry by the Court of the Notice and Hearing Order Westinghouse shall provide to Plaintiffs' counsel existing paper, microfilm or microfiche records listing transfers of record of Westinghouse common stock during the Class Period that Westinghouse is able to locate in its files with reasonable effort;
(e) Providing that notice of the Settlement and the Settlement Hearing shall be given by Plaintiffs to members of the Class and Subclasses who can be identified through reasonable effort (i) by mailing by first class mail, within 35 days after the date of entry of the Notice and Hearing Order, a notice substantially in the form attached as Exhibit C to this Stipulation (the "Notice of Settlement") and a proof of claim form in substantially the form attached as Exhibit E to this Stipulation (the "Proof of Claim Form"), and (ii) by publishing, within 49 days after the date of entry of the Notice and Hearing Order, a summary form of notice once in the national edition of the
(f) Finding and concluding that the notice provided for in the preceding sub-paragraph is the best notice reasonably practicable under the circumstances and fully satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States and any other applicable law;
(g) Providing that the Settlement Hearing may be continued or adjourned by the Court without further notice to the Class or Subclasses;
(h) Providing that any member of the Class or Subclasses may submit a request to be excluded from the Class or Subclasses no later than 14 days prior to the Settlement Hearing, unless good cause is shown for an extension of this period. Notwithstanding the prior sentence, a member of the Class and one or both of the Subclasses may not submit (1) a request to be excluded from the Class but not from one or both of the Subclasses, (2) a request to be excluded from one or both of the Subclasses but not from the Class, or (3) a request to be excluded from one Subclass but not from the other Subclass. A request for exclusion from the Class or Subclasses must include the following information: (i) the person's name, address, telephone number, (ii) the number of shares of Westinghouse common stock held on March 28, 1989, (iii) the dates that shares of Westinghouse common stock were purchased and sold beginning on March 28, 1989 and concluding on October 22, 1991, and (iv) the number of shares of Westinghouse common stock purchased and sold in each such transaction. The request to be excluded must be mailed by first class mail (or delivered by hand, facsimile or overnight mail) to the address specified in the Notice of Settlement;
(i) Providing that any member of the Class or Subclasses who objects to the Settlement and/or to a request by Plaintiffs' counsel for attorneys' fees and reimbursement of expenses or who otherwise wishes to be heard concerning any matter before the Court may appear in person or by counsel at the Settlement Hearing and present evidence or argument. Any member of the Class or Subclasses who wishes to appear at the Settlement Hearing, however, will be heard if and only if, no later than 14 days prior to the Settlement Hearing, unless good cause is shown for an extension of this period, such person files with the Clerk of the Court (1) a written notice of the person's intent to appear, including (i) the person's name, address and telephone number, (ii) the number of shares of Westinghouse common stock held on March 28, 1989, (iii) the dates that shares of Westinghouse common stock were purchased and sold beginning on March 28, 1989 and concluding on October 22, 1991, (iv) the number of shares of Westinghouse common stock purchased and sold in each such transaction, and (v) a detailed statement of the basis for the person's objections to or comments upon the Settlement, a request by Plaintiffs' counsel for attorneys' fees and reimbursement of expenses, or any other matter before the Court, and (2) any supporting papers, including all documents and writings that the person desires the Court to consider. Copies of all papers filed with the Clerk of the Court must be mailed by first class mail (or delivered by hand, facsimile or overnight mail) to counsel for the parties at the same time that the papers are filed with the Clerk of the Court;
(j) Providing that any member of the Class and/or Subclasses who fails to object to the Settlement or to Plaintiffs' counsel's request for attorneys' fees in the manner stated above shall be deemed to have waived his, her or its right to object, and shall forever be barred from raising such objection in this or any other action or proceeding;
(k) Providing that any member of the Class or Subclasses who desires to share in the Settlement Fund must submit a request substantially in the form of the Proof of Claim Form, together with the documentation requested on the Proof of Claim Form, no later than 120 days after the date of mailing of the Notice of Settlement and the Proof of Claim Form, unless good cause is shown for an extension of this period;
(l) Pending the Settlement Hearing, staying all proceedings in the Litigation, other than proceedings necessary to carry out or enforce the terms and conditions of this Stipulation;
(m) Pending the Settlement Hearing, enjoining Plaintiffs and members of the Class from commencing or prosecuting, either directly or indirectly, any action asserting the Settled Claims;
(n) Ordering that Defendants and/or their insurers shall pay the Settlement Amount in accordance with the allocation among Defendants and/or their insurers stated in Defendants' Confidential Agreement and in accordance with the other the terms of this. Stipulation;
(o) Ordering that Plaintiffs shall hold the amount paid in the Escrow Accounts in accordance with the terms of this Stipulation; and
(p) Containing any additional provisions consistent with the terms of the Settlement to which the parties consent.
15. Prior to the Effective Date, Plaintiffs may expend from the Settlement Fund up to $150,000 to pay the reasonable costs and expenses associated with providing notice in connection with and administering the Settlement, including but not limited to the costs of identifying members of the Class and/or Subclasses, printing and mailing the Notice of Settlement and Proof of Claim Form, publication of the Summary Notice, reimbursements to nominee owners for forwarding the Notice of Settlement and Proof of Claim Form to beneficial owners, and the fees charged and other expenses incurred by the Claims Administrator (defined below). These amounts may be paid by the Escrow Agents without further order of the Court. All Taxes also shall be paid out of the Settlement Fund and shall not be considered to be an administrative expense for purposes of the $150,000 amount that this Paragraph authorizes Plaintiffs to expend from the Settlement Fund to pay costs of administration and notice prior to the Effective Date.
16. Plaintiffs' counsel may apply to the Court for distributions to them from the Settlement Fund for: (i) attorneys' fees in an amount up to 33 1/3% of the Settlement Fund, (n) reimbursement of expenses, including but not limited to the fees of any experts or consultants incurred in connection with the Litigation, and (iii) interest on attorneys' fees and reimbursement of expenses at the same rate and for the same period of time that interest is earned by the Settlement Fund. Plaintiffs' counsel reserve the right to submit additional applications, after the Effective Date, for attorneys' fees and reimbursement of expenses incurred in connection with administering and distributing the Settlement Fund to members of the Class and Subclasses. All attorneys' fees and reimbursement of expenses awarded by the Court shall be paid from the Settlement Fund.
17. The granting by the Court of any application or applications by Plaintiffs' counsel for attorneys' fees and reimbursement of expenses is not a condition of the Settlement. Any application or applications for attorneys' fees and reimbursement of expenses is or are to be considered by the Court separately from the Court's consideration of the question whether the Settlement is fair, reasonable, adequate and in the best interests of the Class and Subclasses. Any order or proceedings relating to any request for attorneys' fees and reimbursement of expenses, or any appeal from any order or proceedings relating to this subject, shall not affect or delay the Effective Date and the finality of the Final Order and Judgment approving the Settlement of the Litigation.
18. Following entry of the Final Order and Judgment, any attorneys' fees and reimbursement of expenses awarded by the Court may be paid to Plaintiffs' counsel by the Escrow Agents out of the Settlement Fund immediately. If, following payment an award of attorneys' fees and reimbursement of expenses, an appeal or appeals results in an order or decision that does not affirm and leave in place the Final Order and Judgment and/or other order awarding attorneys' fees and reimbursement of expenses, then, within five business days after receiving any such order or decision, Plaintiffs' counsel shall refund to the Escrow Agents for deposit into the Escrow Accounts, pending a further Order by the Court, the amount of attorneys' fees and reimbursement of expenses previously paid, either in full or in any lesser amount consistent with the order or decision not affirming and leaving in place the Final Order and Judgment and/or other order awarding attorneys' fees and reimbursement of expenses, plus interest at a rate equal to the 90 day U.S. Treasury Bill rate from the date of payment through the date of repayment. Each of Plaintiffs' counsel, as a condition of receiving any award of attorneys' fees and reimbursement of expenses, agrees, on behalf of himself, herself or itself and all partners, members or stockholders in his, her or its law firm, that (i) they and their law firms and all partners, members or stockholders of their law firms (a) shall be jointly and severally liable for any amount not repaid pursuant to this Paragraph and (b) shall be subject to the jurisdiction of the Court for the purpose of enforcing the obligations stated in this Paragraph, and (ii) that the Court may, upon notice, summarily issue orders, including but not limited to judgments and attachment orders, and may make appropriate findings with respect to any amount not repaid pursuant to this Paragraph.
19. The Settlement Fund shall be distributed as follows:
(a) All expenses provided for by this Stipulation, including the costs of disseminating notice of the Settlement, administering the Settlement, distributing the Settlement Fund and the payment of Taxes on interest earned by the Settlement Fund shall be paid by the Settlement Fund.
(b) Plaintiffs' counsel shall be paid the amount awarded by the Court in connection with Plaintiffs' request for attorneys' fees and reimbursement of expenses from the Settlement Fund.
(c) The balance of the Settlement Fund (the "Net Settlement Fund") shall be distributed to all members of the Class who submit valid, timely Proof of Claim Forms in accordance with this Stipulation or as otherwise directed by the Court. Anyone who submits s claim is a "Claimant." Each member of the Class who submits a valid, timely Proof of Claim Form that is accepted is an "Authorized Claimant."
(d) Each Authorized Claimant shall be allocated his, her or its pro rata share of the Net Settlement Fund based upon his, her or its Recognized Claim (defined below) as compared with the total of all Recognized Claims made by all Authorized Claimants, except as provided for below.
(e) Each Authorized Claimant's "Recognized Claim" shall be calculated as follows:
(i) With respect to claims in connection with shares of Westinghouse common stock that were purchased during the Class Period and sold during the Class Period, Recognized Claim means the total amount paid for the purchase (not including brokerage fees and commissions), minus the amount received upon the sale of these shares (not including brokerage fees and commissions). If the amount received exceeds the amount paid, the difference shall constitute a profit for the purpose of the calculations stated below.
(ii) With respect to claims in connection with shares of Westinghouse common stock that were purchased during the Class Period and held as of the close of trading on the last day of the Class Period, Recognized Claim means the amount paid for the purchase (not including brokerage fees and commissions), minus $16.00, the market price of Westinghouse common stock at the close of trading on the last day of the Class Period. If $16.00 exceeds the amount paid, the difference shall constitute a profit for the purpose of the calculations stated below.
(iii) Persons who held shares of Westinghouse common stock prior to the commencement of the Class Period and who sold those shares during the Class Period are entitled to no recovery with respect to those shares.
(iv) In performing the above calculations, the trade date rather than the settlement date will be used to determine dates of purchases and sales. For purposes of shares purchased pursuant to Westinghouse's Dividend Reinvestment Plan, the date and price of the purchases shall be the dates on which and the per share prices at which the dividends were reinvested.
(v) In the case of an Authorized Claimant who made multiple purchases and multiple sales of shares of Westinghouse common stock during the Class Period, the first such purchase shall be matched against the first such subsequent sale, and each such purchase thereafter, in chronological order, shall be matched against the first such subsequent unmatched sale, in chronological order. Profits on all such transactions during the Class Period will be netted against losses on all such transactions during the Class Period to determine the Recognized Claim.
(vi) The payment to any Authorized Claimant who would receive less than $5.00 based upon the calculations provided for above shall be reduced to zero, and the pro rata share of all other Authorized Claimants shall be increased on a pro rata basis.
(vii) No Authorized Claimant may receive more than the amount of the Authorized Claimant's Recognized Claim. If any amount remains in the Net Settlement Fund following payment of all Recognized Claims by all Authorized Claimants, the amount remaining in the Net Settlement Fund shall be contributed to a charity to be agreed upon by the parties and approved by the Court. Any amount remaining in the Net Settlement Fund shall not be returned to Defendants or their insurers.
20. As soon after the Effective Date as practicable, Plaintiffs' counsel shall seek an Order approving a distribution of the Net Settlement Fund (the "Distribution Order").
21. Plaintiffs' Co-Lead Counsel (the law firms Abbey, Gardy & Squitieri, LLP; Specter Specter Evans & Manogue, P.C.; and Stull, Stull & Brody) are responsible for disseminating notice of the Settlement, administering the Settlement and distributing the Settlement Fund. Plaintiffs' Co-Lead Counsel shall designate a claims administrator (the "Claims Administrator") to assist with (i) the printing, labeling and mailing of the Notice and the publication of the Summary Notice, (ii) the administration, processing and determination of claims, (iii) the distribution of the Net Settlement Fund, and (iv) all other appropriate tasks, as determined by Plaintiffs' Co-Lead Counsel. The Claims Administrator shall perform its functions under the supervision of Plaintiffs' Co-Lead Counsel. The reasonable expenses of notice and administration shall be paid out of the Settlement Fund pursuant to the terms of this Stipulation. Following the establishment of the Settlement Fund, Defendants shall have no responsibility, obligation, or liability of any kind to Plaintiffs or the Class with respect to the administration of the Settlement, the processing and determination of claims, and/or the distribution of the Settlement Fund.
22. Each member of the Class who desires to share in the Net Settlement Fund must submit a fully completed and signed Proof of Claim Form, together with the documentation required by the Proof of Claim Form, by the deadline date stated in the Notice of Settlement and on the Proof of Claim Form. Any alternative or additional documents or proof may be accepted and/or required by Plaintiffs' Co-Lead Counsel or the Claims Administrator.
23. For the purpose of determining whether a Proof of Claim Form has been timely submitted, the Proof of Claim Form shall be deemed to have been submitted on the earlier of (i) the date of actual receipt at the address stated on the Proof of Claim Form, or (ii) the date postmarked, if the Proof of Claim Form is delivered by first class mail and is addressed as stated on the Proof or Claim Form and received in an envelope containing a postmark.
24. Unless otherwise ordered by the Court, any member of the Class who fails to submit a Proof of Claim Form by the deadline date stated in the Notice of Settlement and on the Proof of Claim Form shall forever be barred from sharing in the Settlement Fund or receiving any payment pursuant to this Stipulation and the Settlement. Any such member of the Class, however, in all other respects shall be subject to and bound by all of the terms of this Stipulation and the Settlement, including the terms of the Final Order and Judgment and the releases provided for by this Stipulation and the Settlement and the Final Order and Judgment.
25. The Claims Administrator shall review each Proof of Claim Form that is submitted and shall determine in accordance with this Stipulation and under the supervision of Plaintiffs' Co-Lead Counsel, the extent, if any, to which the Claimant is an Authorized Claimant who has submitted a Recognized Claim.
26. Prior to rejection of a Proof of Claim Form by a Claimant on the ground that the Proof of Claim Form has not properly been completed, the Claims Administrator shall make a reasonable effort to communicate with the Claimant who submitted the Proof of Claim Form in order to remedy deficiencies in the Proof of Claim Form.
27. Any Claimant whose Proof of Claim Form is rejected in whole or in part shall be notified of the rejection in writing by the Claims Administrator by first class postage prepaid mail (the "Rejection Notice"). The Rejection Notice shall state the reasons for the rejection. The Claimant may obtain review by the Court of the rejection of the Proof of Claim Form if the Claimant, within 30 days after the date of mailing by the Claims Administrator of the Rejection Notice, submits to the Claims Administrator a notice stating the Claimant's grounds for contesting the rejection along with any supporting documentation, and requesting a review of the rejection by the Court (the "Request for Review Notice"). The Rejection Notice must advise the Claimant that review of the rejection may be obtained if the Claimant complies with the procedures stated in this Paragraph. For purposes of determining whether the Request for Review Notice has been timely submitted, the Request for Review Notice shall be deemed to have been submitted on the earlier of (i) the date of actual receipt at the address stated on the Rejection Notice by the Claims Administrator, or (ii) the date postmarked, if the Request for Review Notice is mailed first class postage prepaid and is addressed as stated on the Rejection Notice and received in an envelope containing a postmark.
28. If a Claimant submits a Request for Review Notice, Plaintiffs' Co-Lead Counsel shall attempt to resolve the dispute in a manner not requiring review by the Court. If the dispute cannot be resolved to the satisfaction of the Claimant, then Plaintiffs' Co-Lead Counsel shall present the claim for review by the Court. Plaintiffs' Co-Lead Counsel shall have the right but not the obligation to waive defects in any Proof of Claim Form that is submitted in the interests of achieving justice.
29. Payment pursuant to the terms of this Stipulation shall be deemed final and conclusive with respect to the amount due to any member of the Class pursuant to this Stipulation and the Settlement of the Litigation.
30. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claimant's claim.
31. The Net Settlement Amount 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 the rejection of disallowance of their claims, (ii) all objections with respect to all rejected or disallowed claims have been resolved by the Court, (iii) the time for appeals from decisions by the Court concerning rejected or disallowed claims has expired or if there is an appeal or appeals, the completion of all proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for reconsideration or petitions for certiorari, all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following decisions on remand), (iv) all issues concerning applications by Plaintiffs' counsel for attorneys' fees and reimbursement of expenses and administration costs have been resolved by the Court, (v) the time for appeals from decisions by the Court concerning attorneys' fees and reimbursement of expenses and administration costs has expired or if there is an appeal or appeals, the completion of all proceedings arising out of the appeal or appeals (including, but not limited to, the expiration of all deadlines for motions for reconsideration or petitions for certiorari, all proceedings ordered on remand, and all proceedings arising out of any subsequent appeal or appeals following decisions on remand), and (vi) all attorneys' fees and reimbursement of expenses and administration costs have been paid.
32. If the Court approves the Settlement, then at or following the Settlement Hearing the parties jointly will request that the Court enter a Final Order and Judgment in substantially the form attached as Exhibit B to this Stipulation:
(a) Certifying the Litigation as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of the Class, the Prospectus Subclass and the DRP Subclass;
(b) Certifying Plaintiffs as representatives of the Class, certifying Plaintiffs Arnold M. Jacob, Louise Jacob, Nathan Kleinhandler, Nelson Lovins, Richard Schwartzchild, Jim Thompson and Patricia J. VanArtsdalen as representatives of the Prospectus Subclass, and certifying Plaintiffs Donald McLennan and Ruth Stepak as representatives of the DRP Subclass;
(c) Finding and concluding that notice was given to members of the Class and Subclasses in compliance with the Court's Notice and Hearing Order;
(d) Finding and concluding, with respect to both the form of the notice given and the procedure used to give notice, that the notice given is the best notice reasonably practicable under the circumstances and fully satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States and any other applicable law;
(e) Finding and concluding that the Settlement is fair, reasonable, adequate and in the best interests of the Class and Subclasses, approving the Settlement, and directing consummation of the Settlement pursuant to its terms;
(f) Ordering the releases provided for in this Stipulation;
(g) Permanently enjoining Plaintiffs and members of the Class and Subclasses who do not request exclusion from the Class and Subclasses in accordance with the terms of this Stipulation from the institution, maintenance or prosecution, either directly or indirectly, of any other action in the Court or any other Court or proceeding asserting any of the Settled Claims;
(h) Dismissing the Litigation with prejudice and without costs except as provided for in this Stipulation and the Final Order and Judgment;
(i) Retaining jurisdiction to effectuate the terms of the Settlement;
(j) Awarding attorneys' fees and reimbursement of expenses to Plaintiffs' counsel or reserving jurisdiction to make such an award at a later date; and
(k) Containing additional provisions consistent with the terms of the Settlement to which the parties consent.
33. The obligations of the parties to consummate the Settlement contemplated by this Stipulation are conditioned upon the occurrence of each and every one of the following events:
(a) The funding by insurers on or before the Due Date of the portion of the Settlement the insurers have committed to fund;
(b) If the Settlement Amount is not paid in full on or before the Due Date, Plaintiffs' election not to declare the Settlement null and void pursuant to the terms of this Stipulation;
(c) The entry by the Court of the Notice and Hearing Order, substantially in the form attached as Exhibit A to this Stipulation;
(d) The receipt of requests to be excluded from the Class or Subclasses by members of the Class or Subclasses who in the aggregate purchased no more than the percentage stated in a confidential agreement filed with the Court (the "Exclusion Agreement"), of all shares of Westinghouse common stock purchased by all members of the Class and Subclasses (assuming no requests for exclusion) during the Class Period;
(e) The entry by the Court of the Final Order and Judgment, substantially in the form attached as Exhibit B to this Stipulation;
(f) The occurrence of the Effective Date; and
(g) The withdrawal of the appeals in the Schwartz and Miller cases.
34. If any of the conditions stated above does not occur for any reason, then this Stipulation no longer will bind Plaintiffs, members of the Class or Defendants, unless counsel for Plaintiffs and Defendants, in their sole and unfettered discretion, agree in writing to modify this Stipulation.
35. If the Settlement is not consummated,
(a) The parties will return to the position they occupied vis-a-vis each other and the Litigation on December 31, 1998 except as expressly stated in this Stipulation;
(b) The Escrow Agents shall return the Settlement Amount, together with all interest earned in the Settlement Fund, less amounts incurred or expended on Taxes and notice and administration costs pursuant to the terms of this Stipulation, to Defendants and/or their insurers in proportion to their respective contributions within 10 business days after receipt by the Escrow Agents of written notice that the Settlement will not be consummated due to the non-occurrence of any of the conditions stated under the heading "Conditions to the Settlement and Effect of Non-Occurrence of These Conditions."
(c) If a class has been certified by the Court for the purpose of the Settlement, then that certification will be null and void and Defendants shall have the right to object to class certification if Plaintiffs move for class certification at any future time; and
(d) This Stipulation and the Settlement shall be null and void and have no further force or effect, except as expressly stated in this Stipulation.
36. Defendants deny all allegations of wrongdoing, fault, liability or damage to Plaintiffs and the Class and Subclasses and believe that they acted properly at all times. Defendants believe the Litigation has no merit, but recognize the uncertainty and the risk of the outcome of any litigation, especially a complex securities litigation, and the difficulties and substantial expense and length of time necessary to defend this already more than eight year old Litigation through the conclusion of discovery, summary judgment motions, a possible trial, possible post-trial motions and possible appeals. Based upon their consideration of all of these factors, Defendants wish to settle the Litigation on the terms and conditions set forth in this Stipulation, and avoid the burden, inconvenience and expense inherent in further lengthy and time-consuming proceedings in the Litigation, and to put to rest finally and forever any and all of the Settled Claims, without in any way acknowledging any wrongdoing, fault, liability or damage to Plaintiffs or the Class or Subclasses.
37. This Stipulation and the Settlement provided for in this Stipulation, whether or not consummated, do not constitute and shall not be construed, argued or deemed in any way to constitute:
(a) An admission or a concession by Defendants or anyone else with respect to the Settled Claims or anything else, or be deemed evidence of any violation of any statute or law or of any wrongdoing, fault, liability or damages caused by Defendants, the Released Parties or anyone else with respect to the Settled Claims or anything else; or
(b) An admission or a concession by anyone that the consideration provided for in this Stipulation represents the consideration that could be or would be recovered after further pre-trial, trial, post-trial and/or appellate proceedings in the Litigation.
38. This Stipulation and the Settlement provided for in this Stipulation shall not be offered or received in evidence or otherwise be admissible for any purpose in any civil, criminal or administrative action, arbitration or other proceeding, other than proceedings necessary to approve or enforce this Stipulation.
39. All counsel who execute the Stipulation represent and warrant that they have authority to do so on behalf of their respective clients 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. Westinghouse represents that it has made a good faith search for records listing purchasers of record of Westinghouse common stock during the Class Period. Westinghouse also represents that Westinghouse believes that the records it has located listing transfers of record, and which Westinghouse will provide to Plaintiffs' counsel pursuant to this Stipulation, are complete.
41. This Stipulation (including the exhibits to this Stipulation, the Defendants' Confidential Agreement and the Exclusion Agreement) contains the entire agreement and understanding of the parties and may not be altered, modified or amended, or any of its provisions waived, except in a writing executed by counsel for all parties. No representations have been made to any party other than the representations contained in this Stipulation (including the exhibits to this Stipulation and the Defendants' Confidential Agreement).
42. The waiver by any 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.
43. This Stipulation may be executed in one or more counterparts, including facsimile counterparts, all of which shall be considered the same as if a single document shall have been executed, and shall become effective when all executed counterparts have been delivered to each of the other parties.
44. The Court shall retain jurisdiction with respect to the enforcement of the terms of this Settlement.
45. This Stipulation shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, affiliates, predecessors, successors and/or assigns.
46. Any and all agreements regarding confidential information shall remain in full force and effect. Within 30 days after the Effective Date, each party shall destroy all copies of material previously designated as confidential by other parties, except that confidential material that has become a part of the Court record in the Litigation need not be destroyed. Within 45 days after the Effective Date, each party shall certify compliance with this Paragraph.
47. Plaintiffs' counsel have seen the Defendants' Confidential Agreement and agree not to disclose the contents of the Defendants' Confidential Agreement under any circumstances without first obtaining the written consent of Defendants or the Court.
48. Except to the extent otherwise specified in this Stipulation, notices required by this Stipulation shall be delivered either by hand, facsimile or overnight mail to:
49. The section headings used throughout this Stipulation, including the exhibits to this Stipulation, are for convenience only, and they shall not affect the interpretation or construction of this Stipulation.
50. This Stipulation 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. 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 a particular party.
51. The date of the Stipulation is the latest date set forth below.
52. This Stipulation, except as otherwise explicitly stated, is not conditioned upon the giving or obtaining of any releases or agreements among Defendants, their insurers and/or any non-parties.
53. This Stipulation shall be construed and governed according to the substantive laws of the Commonwealth of Pennsylvania and without regard to its choice of law rules, except to the extent that federal law requires that federal law governs.
I, Bruce H. Cozzi, hereby declare and state as follows:
1. I am the Fund Controller of Gilardi & Co. LLC ("Gilardi"), located at 3301 Kerner Boulevard, San Rafael, California 94901, which was retained as the Claims Administrator in the above-captioned matter. I make this declaration to report on the current status of the Settlement Fund. I have personal knowledge of the facts set forth herein and, if called to testify to these facts, could and would do so competently.
2. In November, 2000, Gilardi received transfers of funds from the Settlement Escrow Accounts in the amount of $45,645,309.44 to be distributed to Authorized Claimants for their Recognized Claims.
3. On or about January 16, 2001, 35,860 checks were issued in the total amount of $44,517,952.39.
4. Gilardi performed its normal and customary follow-up with class members regarding their distribution checks and took special care with those class members who had not cashed their distribution checks. These efforts included, but were not limited to, letters being sent to addresses of records, address searches for mail returned as undeliverable, personal contact via telephone or email, and the re-issuance of checks where appropriate.
5. On or about November 26, 2003 a second distribution occurred of 2,781 checks in the total amount of $450,980.53 for Authorized Claimants who cashed their January 16, 2001 distribution check and would receive at least $10.00 on the redistribution.
6. On or about April 3, 2009 a final distribution occurred of 1,245 checks in the total amount of $121,153.55 for Authorized Claimants who cashed their January 16, 2001 distribution check and would receive at least $10.00 on the redistribution.
7. In total, 38,968 checks were cashed by Authorized Claimants for a total of $44,573,456.83.
8. In the Distribution Accounts that Gilardi maintained the Net Settlement Fund has earned $276,299.32 in interest to-date and has paid $1,072,071.61 in Court approved Notice, Administration/Distribution and Tax Compliance costs and $256,136.04 for Federal tax on the interest earned by the fund.
9. As of May 11, 2011 the current balance of the Net Settlement Fund is $17,504.35, as shown on the Funds Analysis attached as Exhibit A. The cost to file a final tax return for 2011 will be $2,500, leaving $15,004.35 available for charitable contribution.
I declare under penalty of perjury under the laws of the State of California and of the United States of America that the foregoing is true and correct to the best of my knowledge and belief and that this declaration was executed this 5th of May, 2011 at San Rafael, California.
