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RELEASES
In re Mutual Funds Investment Litigation Alger Sub-Track Settlement
No. 1:04-MD-15863-JFM (D. Md.)
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I. RELEASES FOR SETTLEMENT WITH ALGER DEFENDANTS AND WILSHIRE ASSOCIATES INC.
Upon the Effective Date of this Settlement, the Plaintiffs and Class Members on behalf of themselves, their heirs, executors, administrators, successors, and assigns shall release and forever discharge each and every Settled Claim, and shall forever be enjoined from prosecuting any Settled Claim against any of the Released Persons.
As defined, and contained, in the Stipulation and Agreement of Settlement dated June 2, 2009 entered into between plaintiffs and Fred Alger Management, Inc., Fred Alger and Company, Incorporated, Alger Associates, Inc. and Alger Shareholder Services, Inc., and any and all of their present or former officers, directors and trustees, including without limitation, Fred M. Alger, III, Daniel C. Chung, Gregory S. Duch, and James P. Connelly, Jr. (the “Alger Defendants”) and Wilshire Associates Inc.:
* Settled Claims means any and all claims, debts, demands, rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or un-accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class, and/or individual in nature, including both known claims and Unknown Claims (as defined below), (i) that have been asserted in the Actions by Plaintiffs and/or the members of the Class or any of them against any of the Released Persons, or (ii) that could have been asserted in any forum by Plaintiffs and/or the members of the Class or any of them against any of the Released Parties which arise out of or are based upon the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth, or referred to in the Amended Complaint filed in the Investor Class Action and the Derivative Complaint filed in the Derivative Action. Settled Claims shall not include any claim against any of the Broker and Clearing Platform Defendants, the Market Timer and Late Trader Defendants or any of the other defendants in any of the other MDL Actions.
* Unknown Claims means any and all Settled Claims which Plaintiffs or any Class Member does not know or suspect to exist in his, her or its favor at the time of the release of the Released Persons, and any Released Settling Defendants’ Claims which, any Settling Defendant does not know or suspect to exist in his, her or its favor, which if known by him, her, it, or them might have affected his, her, its or their decisions with respect to the Settlement. With respect to any and all Settled Claims and Released Settling Defendants’ Claims, the Parties stipulate and agree that, upon the Effective Date, the Parties shall expressly waive, and each Class Member shall be deemed to have waived, and by operation of the Final Judgment and Order shall have expressly waived, any and all provisions, rights and benefits 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 does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
The Parties acknowledge, and each of the Class Members by operation of law shall be deemed to have acknowledged, that the inclusion of "Unknown Claims" in the definition of Settled Claims and Released Settling Defendants' Claims was separately bargained for and was a key element of the Settlement.
* Released Persons means the Settling Defendants and each of their respective current and former general partners, limited partners, directors, officer, employees, affiliates, attorneys, accountants, agents, insurers, co-insurers, and reinsurers, all in their capacities as such.
II. RELEASES FOR SETTLEMENT WITH BEAR STEARNS DEFENDANTS
Upon the Effective Date, all Releasing Plaintiffs Parties: (i) shall be conclusively deemed to have fully, finally and forever remised, released, relinquished, dismissed, discontinued, withdrawn, and discharged all Released Claims against any and all of the Bear Stearns Released Parties; (ii) shall be conclusively deemed to have covenanted not to sue or assert in any manner any claim, right, cause of action, count, or liability against any of the Bear Stearns Released Parties in any action alleging any claim, right, cause of action, count, or liability that is a Released Claim; (iii) shall be conclusively deemed to have covenanted not to assist, engage in, participate in, facilitate, provide information for, or be involved in any way in the commencement, prosecution, continuance, or pursuit by any third party of any legal, administrative, investigative, or any other action or proceeding of any nature or in asserting any claim, count, right, cause of action, or liability against any of the Bear Stearns Released Parties relating to any Released Claim, including, without limitation, any derivative action or suit, and (iv) shall forever be enjoined and barred from asserting, or assisting, participating in, providing information for, engaging in, facilitating the assertion of, or being involved in any way in the assertion of, any of the Released Claims against any Bear Stearns Released Party in any legal, administrative, investigative, or any other action or proceeding of any nature.
As defined, and contained, in the Alger/Bear Stearns Severed Agreement and Stipulation of Settlement dated January 15, 2010 entered into between plaintiffs and Bear, Stearns & Co. Inc., Bear, Stearns Securities Corp, and The Bear Stearns Companies Inc., currently known as J.P. Morgan Securities Inc., J.P. Morgan Clearing Corp. and The Bear Stearns Companies LLC, respectively (the “Bear Stearns Defendants”):
* Released Claims means any and all claims, rights, causes of action, counts, or liabilities against any or all of the Bear Stearns Released Parties, whether direct, derivative or brought in any other capacity, whether under federal or state law, whether known or unknown (including “Unknown Claims” as defined below), whether suspected or unsuspected, whether accrued or unaccrued, whether asserted or unasserted, concerning in any respect, directly or indirectly, market-timing, late-trading, or short-term or excessive trading in any of the Alger Mutual Funds during all or any part of the Class Period, including any claims that any or all of the Bear Stearns Released Parties allowed, assisted, cleared, brokered, financed, caused, acquiesced in, participated or engaged in, provided the means for, subjected investors to or otherwise facilitated or were responsible for market-timing, late-trading, or short-term or excessive trading and including, without limitation, all of the claims and causes of action that were brought and all of such claims and causes of action that could have been brought against any or all of the Bear Stearns Released Parties in the Class Action or the Fund Derivative Action, or in any other legal proceeding or forum.
* Unknown Claims means any and all Released Claims which any of the Class Plaintiffs or any of the other Class Members does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Parties’ Claims or Bear Stearns Cross-Claims which any of the Bear Stearns Defendants does not know or suspect to exist in its favor at the time of the release of such claims, which if known by him, her or it might have affected his, her or its decision(s) with respect to the Severed Settlement. With respect to any and all Released Claims, Released Parties’ Claims and Bear Stearns Cross-Claims, the Parties stipulate and agree that upon the Effective Date, Class Plaintiffs and the Bear Stearns Defendants shall expressly waive, and each Class Member and each of the other Bear Stearns Released Parties shall with respect to such claims be deemed to have waived, and by operation of the Judgment in the Class Action shall have expressly 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 Cal. Civ. Code § 1542, including that provision itself, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge, and the Class Members and the other Bear Stearns Released Parties by operation of law shall be deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Claims, Released Parties’ Claims and Bear Stearns Cross-Claims was a material and separately bargained for element of this Severed Settlement.
* Bear Stearns Released Parties means the Bear Stearns Defendants (i.e., Bear, Stearns & Co. Inc., Bear, Stearns Securities Corp., and The Bear Stearns Companies Inc., currently known as J.P. Morgan Securities Inc., J.P. Morgan Clearing Corp. and The Bear Stearns Companies LLC, respectively) and all of their respective Related Parties (i.e., (a) with respect to natural persons, all of their past or present agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers, executors and administrators; (b) with respect to legal entities other than natural persons, all of their past and present parents, employees, subsidiaries, affiliates, general partners, limited partners, officers, directors, trustees, members, employees, agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers, in any and all capacities; and (c) all of the predecessors, successors, heirs and assigns of the foregoing).
III. RELEASES FOR SETTLEMENT WITH CANARY DEFENDANTS
Upon the Effective Date, all Releasing Plaintiffs Parties, on behalf of themselves, their heirs, executors, administrators, successors and assigns: (i) shall be conclusively deemed to have fully, finally and forever released, relinquished, and discharged all Released Claims against the Canary Released Parties; (ii) shall be conclusively deemed to have covenanted not to sue the Canary Released Parties in any action alleging any claim that is a Released Claim; (iii) shall be conclusively deemed to have covenanted not to knowingly and voluntarily assist in any way any third party in commencing or prosecuting any suit against the Canary Released Parties relating to any Released Claim, including any derivative suit, and (iv) shall forever be enjoined and barred from asserting the Released Claims against any Canary Released Party in any action or proceeding of any nature.
As defined, and contained, in the Alger/Canary Severed Agreement and Stipulation of Settlement dated January 15, 2010 entered into between plaintiffs and Canary Capital Partners, LLC, Canary Capital Partners, Ltd., Canary Investment Management, LLC, and Edward Stern (the “Canary Defendants”):
* Released Claims means any and all claims against the Canary Released Parties, whether direct, derivative or brought in any other capacity, whether under federal or state law, whether known or unknown (including “Unknown Claims” as defined below), whether suspected or unsuspected, whether accrued or unaccrued, concerning in any respect, directly or indirectly, market-timing, late-trading, or short-term or excessive trading in any of the Alger Mutual Funds during the Class Period, including any claims that the Canary Released Parties allowed, assisted, cleared, brokered, financed, provided the means for, subjected investors to or otherwise facilitated market-timing, late-trading, or short-term or excessive trading and including, without limitation, all claims that were alleged in the Class Complaint and the Fund Derivative Complaint and all claims that could have been brought against the Canary Released Parties concerning in any respect, directly or indirectly, market-timing, late-trading, or short-term or excessive trading in any of the Alger Mutual Funds during the Class Period.
* Unknown Claims means any and all Released Claims which any Plaintiff or Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Parties’ Claims which any Canary Defendant does not know or suspect to exist in his or its favor at the time of the release of such claims, which if known by him, her or it might have affected his, her or its decision(s) with respect to the Severed Settlement. With respect to any and all Released Claims and Released Parties’ Claims, the Parties stipulate and agree that upon the Effective Date, Plaintiffs and the Canary Defendants shall expressly waive, and each Class Member and each of the other Canary Released Parties shall with respect to such claims be deemed to have waived, and by operation of the Order and Final Judgment in the Actions shall have expressly 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 Cal. Civ. Code § 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge, and the Class Members and the other Canary Released Parties by operation of law shall be deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Claims and Released Parties’ Claims was a material and separately bargained for element of this Severed Settlement.
* Canary Released Parties means the Canary Defendants (i.e., Canary Capital Partners, LLC; Canary Capital Partners, Ltd.; Canary Investment Management, LLC; and Edward Stern) and their respective Related Parties (i.e., (a) with respect to natural persons, their past or present agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers, executors and administrators; (b) with respect to legal entities other than natural persons, their past and present, parents, employees, subsidiaries, general partners, limited partners, officers, directors, trustees, members, employees, agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers; and (c) the predecessors, successors, heirs and assigns of the foregoing).
IV. RELEASES FOR SETTLEMENT WITH BANC OF AMERICA SECURITIES LLC
Upon the Effective Date, all Releasing Plaintiffs Parties, on behalf of themselves, their heirs, executors, administrators, successors and assigns: (i) shall be conclusively deemed to have fully, finally and forever released, relinquished, and discharged all Released Claims against the Bank of America Released Parties; (ii) shall be conclusively deemed to have covenanted not to sue the Bank of America Released Parties in any action alleging any claim that is a Released Claim; (iii) shall be conclusively deemed to have covenanted not to knowingly and voluntarily assist in any way any third party in commencing or prosecuting any suit against the Bank of America Released Parties relating to any Released Claim, including any derivative suit, and (iv) shall forever be enjoined and barred from asserting the Released Claims against any Bank of America Released Party in any action or proceeding of any nature.
As defined, and contained, in the Alger/BAS Severed Agreement and Stipulation of Settlement dated January 28, 2010 entered into between plaintiff and Banc of America Securities LLC (“BAS”):
* Released Claims means any and all claims, rights, causes of action or liabilities whatsoever against the Bank of America Released Parties, whether direct, derivative or brought in any other capacity, whether under federal, state, local, statutory or common law, whether known or unknown (including “Unknown Claims” as defined below), whether suspected or unsuspected, whether accrued or unaccrued, concerning in any respect, directly or indirectly, market-timing, late-trading, or short-term or excessive trading in any of the Alger Funds during the Class Period, including any claims that the Bank of America Released Parties allowed, assisted, cleared, brokered, financed, provided the means for, subjected investors to or otherwise facilitated market-timing, late-trading, or short-term or excessive trading and including, without limitation, all claims that were alleged in the Class Complaint and the Fund Derivative Complaint and all claims that could have been brought against the Bank of America Released Parties that concern, relate to or arise out of, in any respect, directly or indirectly, market-timing, late-trading, or short-term or excessive trading in any of the Alger Funds during the Class Period.
* Unknown Claims means any and all Released Claims which any Plaintiff or Class Member does not know or suspect to exist in his, her or its favor at the time of the release of the Bank of America Released Parties, and any Released Parties’ Claims or Bank of America Cross-Claims which any of BAS, Bank of America Corporation, and/or Bank of America, N.A does not know or suspect to exist in its favor, which if known by him, her or it might have affected his, her or its decision(s) with respect to the Severed Settlement. With respect to any and all Released Claims, Released Parties’ Claims and Bank of America Cross-Claims, the Parties stipulate and agree that upon the Effective Date, the Plaintiffs and BAS, Bank of America Corporation, and Bank of America, N.A shall expressly waive, and each Class Member and each of the Bank of America Released Parties shall with respect to such claims be deemed to have waived, and by operation of the Judgment in the Actions shall have expressly 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 Cal. Civ. Code § 1542, including that provision itself, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge, and the Class Members and the Bank of America Released Parties by operation of law shall be deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Claims, Released Parties’ Claims and Bank of America Cross-Claims was a material and separately bargained for element of this Severed Settlement.
* Bank of America Released Parties means the Bank of America Parties (i.e., BAS, Bank of America Corporation, and Bank of America, N.A.) and all of their respective Related Parties (i.e., (a) with respect to natural persons, their past or present agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers, executors and administrators; (b) with respect to legal entities other than natural persons, their past and present parents, subsidiaries, general partners, limited partners, officers, directors, trustees, members, employees, agents, servants, attorneys, accountants, insurers, co-insurers and re-insurers; and (c) the predecessors, successors, heirs and assigns of the foregoing).