<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
------------------------
Date of Report (Date of Earliest Event Reported): November 18, 1994
------------------------
IDB COMMUNICATIONS GROUP, INC.
(Exact Name of Registration as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
<TABLE>
<S> <C>
0-14972 93-0933098
(Commission File No.) (I.R.S. Employer Identification No.)
</TABLE>
<TABLE>
<S> <C>
10525 WEST WASHINGTON BOULEVARD, CULVER CITY, CALIFORNIA 90232-1922
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
(213) 870-9000
(Registrant's Telephone Number, Including Area Code)
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<PAGE>
ITEM 5. OTHER EVENTS
As previously described in the Registrant's Quarterly Reports on Form 10-Q
for the quarters ended June 30, 1994 and September 30, 1994, between June 1,
1994 and June 6, 1994, 22 class action complaints were filed in the U.S.
District Court for the Central District of California, on behalf of persons who
purchased the Registrant's common stock and 5% Convertible Subordinated Notes
due 2003, against the Registrant and the current directors and certain officers
of the Registrant and other parties. In addition, a class action complaint
(HASSANI V. IDB COMMUNICATIONS GROUP, INC.) has been filed in California state
court against the Registrant, its current directors, certain of its executive
officers and Deloitte & Touche LLP alleging state law violations. The complaints
allege violations of federal and state securities laws for disseminating
allegedly false and misleading statements concerning the Registrant's earnings
and accounting practices. Stockholder derivative actions have also been filed in
federal court in California and the Delaware Chancery Court (STEELE V. SUDIKOFF,
ET AL). The District Court has ordered the 22 class action complaints and the
California derivative action consolidated as one action styled IN RE IDB
COMMUNICATIONS GROUP, INC. SECURITIES LITIGATION. A consolidated and amended
complaint was filed in the District Court on November 18, 1994.
On November 18, 1994, the Registrant, LDDS Communications, Inc. ("LDDS") and
representatives of the plaintiffs in the foregoing litigation entered into a
Stipulation of Settlement (the "Stipulation"). The Stipulation provides that all
claims that were or could have been asserted by the plaintiffs against the
Registrant or any of the other defendants in the consolidated action, or on
behalf of or by the Registrant against directors and officers of the Registrant
will, subject to the fulfillment of certain conditions precedent and the
approval of the court, be settled and released and the litigation dismissed in
its entirety with prejudice in exchange for payments totalling $75.0 million.
The conditions precedent to the settlement include completion of the merger of a
wholly owned subsidiary of LDDS with and into the Registrant, timely payment of
settlement funds to the escrow agents for the class action and derivative action
plaintiffs, and dismissal of the Delaware Chancery Court derivative action and
California state court class action. The Stipulation terminates automatically in
the event that any of the conditions precedent listed in the Stipulation do not
occur, unless counsel for the class action and derivative action plaintiffs and
counsel for the Registrant and LDDS mutually agree in writing to proceed with
the Stipulation. Consequently, there can be no assurance that the litigation
will be settled on the terms described herein or at all. The description
contained herein of the settlement does not purport to be complete and is
qualified in its entirety by the Stipulation filed as Exhibit 99.1 hereto.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
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<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
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<C> <S> <C>
99.1 Stipulation of Settlement of Class and Derivative Claims dated November 18, 1994 among IDB
Communications Group, Inc., LDDS Communications, Inc. and Milberg Weiss Bershad Hynes and
Lerach on behalf of the several plaintiffs.................................................
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Culver City, State of
California, on November 21, 1994.
IDB COMMUNICATIONS GROUP, INC.
By: /s/ RUDY WANN
-----------------------------------
Rudy Wann
VICE PRESIDENT, FINANCE AND
CHIEF FINANCIAL OFFICER
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WILLIAM S. LERACH (68581)
KEITH F. PARK (54275)
PATRICK J. COUGHLIN (111070)
JOY ANN BULL (138009)
MILBERG WEISS BERSHAD
HYNES & LERACH
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
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JOHN J. STOIA, JR. (141757)
222 Kearny Street, 10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
KIRK B. HULETT (110726)
LISA C. ATKINSON (163320)
BARRACK, RODOS & BACINE
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
MARC M. SELTZER (54534)
ARTHUR N. ABBEY CORINBLIT & SELTZER
ABBEY & ELLIS 3700 Wilshire Boulevard
212 East 39th Street Suite 820
New York, NY 10016 Los Angeles, CA 90010
Telephone: 212/889-3700 Telephone: 213/380-4200
Co-Lead Counsel for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
In re IDB COMMUNICATIONS GROUP, ) Master File No.
INC. SECURITIES LITIGATION ) CV-94-3618-RG(JGx)
___________________________________)
)
This Document Relates To: )
)
ALL ACTIONS. )
)
___________________________________)
STIPULATION OF SETTLEMENT OF CLASS AND DERIVATIVE CLAIMS
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This Stipulation of Settlement (the "Stipulation"), dated as of October 31,
1994, is made and entered into by and among the following parties (as defined
further in Section V hereof) to the above-entitled litigation: (i) the
Representative Class Plaintiffs (on behalf of themselves and each of the
Settlement Class Members) and the Representative Derivative Plaintiffs (on
behalf of themselves and derivatively on behalf of nominal defendant IDB), by
and through their counsel of record in the Litigation; (ii) all Defendants and
Related Parties who have signed the Stipulation, by and through their counsel of
record and (iii) LDDS (collectively the "Settling Parties"). The Stipulation is
intended by the Settling Parties to fully, finally and forever resolve,
discharge and settle the Released Class Claims and Released Derivative Claims
(as defined herein), upon and subject to the terms and conditions hereof.
I. THE LITIGATION
On or after June 1, 1994, the following actions were filed in the United
States District Court for the Central District of California (the "Court") as
class actions on behalf of persons who purchased IDB Securities during a defined
period of time:
1. KAMINSKY V. IDB COMMUNICATIONS GROUP, CV-94-3618;
2. MCCLUSKY V. SUDIKOFF, CV-94-3623;
3. ROMINE V. SUDIKOFF, CV-94-3626;
4. LOESBERG V. SUDIKOFF, CV-94-3627;
5. CASTALDO V. SUDIKOFF, CV-94-3635;
6. SPENCERS V. SUDIKOFF, CV-94-3636;
7. NEWMAN V. SUDIKOFF, CV-94-3637;
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8. HAMMERMAN V. SUDIKOFF, CV-94-3638;
9. HOCHEISER V. SUDIKOFF, CV-94-3639;
10. GLIWA V. SUDIKOFF, CV-94-3640;
11. EKSTEIN V. SUDIKOFF, CV-94-3641;
12. RONALD KASSOVER PENSION PLAN V. SUDIKOFF, CV-94-3642;
13. DAMLEY V. SUDIKOFF, CV-94-3643;
14. ISDANER V. SUDIKOFF, CV-94-3644;
15. STEPHEN M. HARNIK PROFIT SHARING PLAN V. IDB COMMUNICATIONS, CV-94-3673;
16. JEROME WEISS, AS BENEFICIARY OF THE IRA FOR THE BENEFIT OF JEROME WEISS, ET
AL. V. IDB, CV-94-3683;
17. KILMNICK V. SUDIKOFF, CV-94-3685;
18. LAFFERTY V. SUDIKOFF, CV-94-3723;
19. CHADRONET V. SUDIKOFF, CV-94-3724;
20. THORNTON V. SUDIKOFF, CV-94-3725;
21. PATEL V. SUDIKOFF, CV-94-3726;
22. AHMED V. SUDIKOFF, CV-94-3769;
On June 7, 1994, a verified stockholders' derivative complaint entitled
MULDOWNEY V. SUDIKOFF, Case No. CV-94-3831 was filed with the Court. The above
class and derivative actions were consolidated for all purposes by Stipulation
and Pretrial Order filed on July 14, 1994.
On July 1, 1994, a shareholders' derivative complaint entitled STEELE V.
SUDIKOFF, ET AL., Civil Action No. 13595 (the "STEELE Action"), was filed in
Delaware Chancery Court. The STEELE Action will be stayed pending final
approval of the Stipulation and Settlement herein, at which point it shall be
dismissed. For purposes of settlement, the claims set forth in that complaint
will be included in the settlement of this litigation.
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<PAGE>
On August 1, 1994, IDB and LDDS announced that they had entered into an
Agreement and Plan of Merger.
On September 20, 1994, a class action complaint entitled HASSANI V. IDB
COMMUNICATIONS GROUP, INC., Civil No. BC112906 (the "HASSANI Action") was filed
in Los Angeles County Superior Court. The HASSANI Action will also be stayed
pending final approval of the Stipulation and Settlement herein, at which point
it shall be dismissed. The claims and defendants set forth in that complaint
will be included in the settlement of this litigation and added to a
Consolidated Amended Class Action and Derivative Complaint (the "Complaint") to
be filed contemporaneously herewith.
The Complaint asserts claims for violations of Sections 10(b), 14(a) and
20(a) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9
promulgated thereunder, Sections 11, 12(2) and 15 of the Securities Act of 1933,
and California Corporations Code Sections 25400, 25401, 25402, 25500, 25501,
25502, 25504, and 25504.1 on behalf of the Settlement Class; and claims for
intentional and negligent breach of fiduciary duties, abuse of control, waste of
corporate assets, constructive fraud, unjust enrichment, gross mismanagement and
insider trading. The Class Action and Derivative Claims set forth in the
Complaint are referred to herein as the "Litigation."
II. PRETRIAL PROCEEDINGS AND DISCOVERY IN THE LITIGATION
A. DISCOVERY, INVESTIGATION AND RESEARCH CONDUCTED BY PLAINTIFFS
Counsel for the Representative Class Plaintiffs and Representative
Derivative Plaintiffs have conducted discovery and investigation during the
prosecution of the Litigation. This
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discovery and investigation has included, INTER ALIA, (i) inspection and
analysis of thousands of pages of documents produced by Defendants and others;
(ii) inspection and analysis of documents produced by third parties; (iii)
consultation with experts; (iv) review of IDB's public filings, annual reports
and other public statements; and (v) research of the applicable law with respect
to the claims asserted in the Complaint and the potential defenses thereto.
III. DEFENDANTS' STATEMENTS AND DENIALS OF WRONGDOING AND LIABILITY
Each of the Defendants has separately denied and continues to deny each and
all of the claims and contentions alleged by the Representative Class
Plaintiffs, on behalf of the Settlement Class, and by the Representative
Derivative Plaintiffs on behalf of nominal defendant IDB. Each of the
Defendants expressly has denied and continues to deny all charges of wrongdoing
or liability against him or it arising out of any of the conduct, statements,
acts or omissions alleged, or that could have been alleged, in the Litigation.
Each of the Defendants also has denied and continues to deny, INTER ALIA, the
allegations that the prices of IDB Securities were artificially inflated by
reason of alleged misrepresentations, non-disclosures or otherwise, or that the
Representative Plaintiffs, the Settlement Class, IDB Stockholders or IDB
suffered any injury for which they are legally entitled to relief. Each of the
Defendants also has denied and continues to deny, INTER ALIA, the allegations in
the Complaint or that IDB and IDB Stockholders suffered any injury for which
they are legally
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entitled to relief. Each of the Defendants further has asserted and continues
to assert that at all material times, he or it acted in good faith and in a
manner he or it reasonably believed to be in the best interests of IDB and IDB
Stockholders.
Nonetheless, each Defendant has concluded that the further conduct of the
Litigation would be protracted and expensive, and that it is desirable that the
Litigation be fully and finally settled in the manner and upon the terms and
conditions set forth in this Stipulation in order to limit further expense,
inconvenience and distraction, to dispose of burdensome and protracted
litigation, and to permit the operation of IDB's business without further
expensive litigation and the distraction and diversion of executive personnel
with respect to matters in issue in the Litigation.
The Defendants have, therefore, determined that it is desirable and
beneficial to them that the Litigation be settled in the manner and upon the
terms and conditions set forth in this stipulation. There has been no adverse
determination by any court against any of the Defendants on the merits of the
claims asserted by the Representative Plaintiffs.
IV. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Litigation have merit and that the evidence developed to date supports the
claims. However, counsel for the Representative Plaintiffs recognize and
acknowledge the expense and length of continued proceedings necessary to
prosecute the Litigation against
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the Defendants through trial and through appeals. Counsel for the
Representative Plaintiffs also have taken into account the uncertain outcome and
the risk of any litigation, especially in complex actions such as this
Litigation, and the difficulties and delays inherent in such litigation.
Counsel for the Representative Plaintiffs also are mindful of the inherent
problems of proof under and possible defenses to the federal securities law and
other violations asserted in the Complaint, including the defenses which could
have been asserted in the Litigation.
In light of the foregoing, counsel for the Representative Plaintiffs
believe that the settlement set forth in the Stipulation confers substantial
benefits upon the Settlement Class, each of the Settlement Class Members, IDB
and IDB Stockholders. Based on their evaluation, counsel for the Representative
Plaintiffs have determined that the settlement set forth in the Stipulation is
in the best interests of the Representative Plaintiffs, the Settlement Class,
each of the Settlement Class Members, IDB, and IDB Stockholders.
V. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the
Representative Plaintiffs (for themselves, the Settlement Class Members, IDB and
IDB Stockholders), and the other Settling Parties, by and through their
respective counsel or attorneys of record, that, subject to the approval of the
Court, the Litigation and the Released Claims shall be finally and fully
compromised, settled and released, and the Litigation shall be dismissed on the
merits and with prejudice, as to all Settling
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<PAGE>
Parties, Defendants and Related Parties, upon and subject to the terms and
conditions of the Stipulation, as follows:
1. DEFINITIONS
As used in the Stipulation the following terms have the meanings specified
below:
1.1 "IDB" means IDB Communications Group, Inc., a Delaware corporation,
(both as a Defendant and a Nominal Defendant as the context requires) and all of
its predecessors, successors, and all present and former parents, subsidiaries,
divisions and related or affiliated entities.
1.2 "IDB Stockholders" or "Stockholders" means all current owners of IDB
common stock.
1.3 "IDB Securities" means the common stock of IDB and the 5% convertible
subordinated notes of IDB due 2003.
1.4 "Authorized Claimant" means any Settlement Class Member whose claim
for recovery has been allowed pursuant to the terms of the Stipulation.
1.5 "Claimant" means any Settlement Class Member who files a Proof of
Claim in such form and manner, and within such time, as the Court shall
prescribe.
1.6 "Class Action Escrow Agent" means the law firm of Milberg Weiss
Bershad Hynes & Lerach or its successors.
1.7 "Class Action Settlement Fund" means the fund created pursuant to
Paragraph 2.1(b) of this Stipulation.
1.8 "Defendants" means IDB, Jeffrey P. Sudikoff, Edward R. Cheramy, Joseph
M. Cohen, James E. Kolsrud, Peter F. Hartz, Franklin E. Fried, Ernst Thompke,
William L. Snelling, David W. Anderson, John S. Reiland, Rudy Wann, Telecolumbus
U.S.A., Inc.,
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International Communications Holdings, Inc., PTI Harbor Bay, Inc., and Deloitte
& Touche.
1.9 "Derivative Action Escrow Agent" means the law firm of Milberg Weiss
Bershad Hynes & Lerach or its successors.
1.10 "Derivative Action Settlement Fund" means the fund created pursuant to
Paragraph 2.1(a) of this Stipulation.
1.11 "Effective Date" means the first date by which all of the events and
conditions specified in Paragraph 8.1 of the Stipulation have been met and have
occurred.
1.12 "Effective Time Of The Merger" means the time of filing of the
Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the applicable provisions of the Delaware Code, or at such later
time as may be specified in the Certificate of Merger, but in any event no later
than ninety (90) days after the Certificate of Merger is filed.
1.13 "Final" means: (i) the date of final affirmance on an appeal of the
Judgment, the expiration of the time for a petition for a writ of certiorari to
review the Judgment and, if certiorari be granted, the date of final affirmance
of the Judgment following review pursuant to that grant; or (ii) the date of
final dismissal of any appeal from the Judgment or the final dismissal of any
proceeding on certiorari to review the Judgment; or (iii) if no appeal is filed,
thirty (30) days after entry of the Judgment or, if the date for taking an
appeal or seeking review shall be extended beyond this time by order of the
Court, by operation of law or otherwise, or if such extension is requested, the
date of expiration of any extension if any appeal or review is not sought. Any
proceeding or order, or any appeal or petition for a writ of
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certiorari pertaining solely to any plan of allocation, the distribution of the
Class Action Settlement Fund, or any portion thereof, and/or application for
attorneys' fees, costs or expenses, shall not in any way delay or preclude the
Judgment from becoming final.
1.14 "IDB Defendants" means IDB, Jeffrey P. Sudikoff, Edward R. Cheramy,
Joseph M. Cohen, James E. Kolsrud, Peter F. Hartz, Franklin E. Fried, William L.
Snelling, David W. Anderson and Rudy Wann.
1.15 "Individual Defendants" means, as the context requires, the defendants
Jeffrey P. Sudikoff, Edward R. Cheramy, Joseph M. Cohen, James E. Kolsrud, Peter
F. Hartz, Franklin E. Fried, William L. Snelling, Ernst Thompke, John S.
Reiland, David W. Anderson and Rudy Wann.
1.16 "Judgment" means the judgment to be rendered by the Court,
substantially in the form attached hereto as Exhibit "B."
1.17 "LDDS" means LDDS Communications, Inc., a Georgia corporation, and all
of its predecessors, successors, and all present and former parents,
subsidiaries, divisions and related or affiliated entities.
1.18 "Merger" means the merger of 123 Corp., a wholly owned subsidiary of
LDDS ("123 Corp."), into IDB in a transaction that will result in the survival
of IDB as a wholly owned subsidiary of LDDS, pursuant to an Agreement and Plan
of Merger dated as of August 1, 1994, by and among LDDS, IDB, and 123 Corp.
1.19 "Person" means an individual, corporation, partnership, limited
partnership, association, joint stock company, estate, legal representative,
trust, unincorporated association, government
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or any political subdivision or agency thereof, and any business or legal entity
and their spouses, heirs, predecessors, successors, representatives or
assignees.
1.20 "Plaintiffs' Settlement Counsel" means the co-lead counsel for the
Representative Plaintiffs in the Litigation: Milberg Weiss Bershad Hynes &
Lerach, William S. Lerach, Keith F. Park, Patrick J. Coughlin, John J. Stoia,
Jr., Joy Ann Bull, 600 W. Broadway, Suite 1800, San Diego, California 92101-
5050, Telephone 619/231-1058; Corinblit & Seltzer, Marc M. Seltzer, 3700
Wilshire Boulevard, Suite 820, Los Angeles, California 90010, Telephone 213/380-
4200; Barrack Rodos & Bacine, Kirk B. Hulett, 600 West Broadway, Suite 1700, San
Diego, California 92101, Telephone 619/230-0800; Abbey & Ellis, Arthur Abbey,
212 East 39th Street, New York, New York 10016, Telephone 212/889-3700.
1.21 "Plan of Allocation" means a plan or formula for processing Settlement
Class Members' Proof of Claim and Release forms and for allocation of the Class
Action Settlement Fund which shall be described in the "Notice of Pendency and
Settlement of Class Action and Derivative Action" to be sent to Settlement Class
Members, in connection with the Settlement, whereby the Class Action Settlement
Fund shall be distributed to Authorized Claimants after payment of: (i) such
attorneys' fees, costs, expenses and interest as may be awarded by the Court;
(ii) expenses of notice and administration of the Settlement; and (iii) any
Taxes and Tax Expenses as described in Paragraph 2.6 below. Any Plan of
Allocation is not part of the Stipulation and is subject to the terms described
in Paragraph 6.4 below.
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1.22 "Related Parties" means each of a Person's past or present directors,
officers, employees, partners, principals, agents, underwriters (including, but
not limited to, Hambrecht & Quist, Inc., Smith Barney Shearson, Inc., Donaldson
Lufkin & Jenrette, Merrill Lynch, Pierce, Fenner & Smith, Inc., Sutro and Co.,
Inc., and UBS Limited) issuers, insurers, co-insurers, reinsurers, controlling
shareholders, any entity in which the Person has a controlling interest,
attorneys, accountants, auditors, banks or investment bankers, advisors,
personal or legal representatives, predecessors, successors, parents,
subsidiaries, divisions, joint ventures, assigns, spouses, heirs, associates,
related or affiliated entities, any members of their immediate families, or any
trust of which any such Person is the settlor or which is for the benefit of any
such Person and/or member(s) of his or her family.
1.23 (a) "Released Class Claims" shall mean and include any and all
claims, causes of action, or liabilities, including but not limited to claims
for negligence, gross-negligence, professional negligence, breach of duty of
care and/or breach of duty of loyalty, fraud, breach of fiduciary duty,
mismanagement, corporate waste, malpractice, breach of contract, negligent
misrepresentation, violations of any state or federal common law, statutes,
rules or regulations, including claims for aiding or abetting any of the
foregoing or conspiring to do the same, and any Unknown Claims as defined in
Paragraph 1.32 hereof by or on behalf of the Representative Class Plaintiffs (as
defined in Paragraph 1.25 hereof), the Settlement Class (as defined in
Paragraph 1.28 hereof), or any Member of the Settlement Class based on or
related to his, her or its purchase of
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IDB Securities during the Settlement Class Period or any loss by reason thereof
against any of the Released Persons arising out of, relating to or in connection
with:
(1) any of the facts, circumstances, allegations, claims, causes
of action, representations, statements, reports, disclosures, transactions,
events, occurrences, acts, omissions or failures to act, of whatever kind or
character whatsoever, irrespective of the state of mind of the actor performing
or omitting to perform the same that have been or could have been alleged or
described in any pleading, amended pleading, argument, complaint, amended
complaint, brief, motion, report or filing in the Litigation;
(2) any matter, cause or thing whatsoever, including but not
limited to any action, omission or failure to act of whatever kind or character,
irrespective of the state of mind of the actor performing or omitting to perform
the same, arising out of or relating to the adequacy, accuracy or completeness
of any disclosure or statement made in any filings, reports, prospectus(es),
press releases, statements, representations or announcements concerning IDB's
operations, subsidiaries, products, sales, financial condition, plans or
prospects (collectively referred to as "public statements") or in any filing
with the SEC or any other federal or state governmental agency or regulatory
body, or the preparation or dissemination of, or failure to disseminate, any
such public statements, at any time during the period of April 27, 1992 through
and including August 1, 1994, inclusive, pertaining in any respect to any of the
matters that have been or could have been alleged in any pleading, amended
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pleading, complaint, amended complaint, motion, or filing in the Litigation;
(3) any of the facts, circumstances, claims, causes of action,
representations, statements, reports, disclosures, transactions, events,
occurrences, acts or omissions of whatever kind or character whatsoever,
regardless of the state of mind of the actor performing or omitting to perform
the same that have been or that could have been alleged or made the subject of
any claim or action in federal or state court or otherwise under federal law or
the law of any state, common law or in equity in any pleading, amended pleading,
demand, complaint, amended complaint, motion or filing, relating in any way to
the rights of any of the Representative Class Plaintiffs or any Member of the
Settlement Class to challenge the fairness or adequacy of the consideration paid
to IDB Stockholders, or the accuracy of the disclosures made by the IDB
Defendants or LDDS in connection with the Merger.
(4) Notwithstanding anything otherwise encompassed by
Paragraph 1.23(a)(1)-(3), above, the releases given by the Representative Class
Plaintiffs and the Settlement Class shall not serve as a bar to any of the
Representative Class Plaintiffs or any Member of the Settlement Class receiving
additional Merger consideration as an IDB Stockholder should such additional
consideration be paid by LDDS to IDB Stockholders in connection with the Merger.
(b) "Released Derivative Claims" shall mean and include any and all
claims, causes of action, demands, rights, or liabilities, including but not
limited to, claims for negligence, gross negligence, professional negligence,
breach of duty of care and/or breach of duty of loyalty, fraud, breach of
fiduciary duty,
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malpractice, breach of contract, negligent misrepresentation, corporate waste,
mismanagement, violations of any state or federal common law, statutes, rules or
regulations, including claims for aiding and abetting any of the foregoing or
conspiring to do the same, including any Unknown Claims as defined in
Paragraph 1.32 herein, that have been or that could have been asserted in this
or any other forum by or on behalf of IDB, or by any of IDB Stockholders
derivatively on its behalf, against any of the Released Persons arising out of,
relating to or in connection with:
(1) any of the facts, circumstances, allegations, claims, causes
of action, representations, statements, reports, disclosures, transactions,
events, occurrences, acts, omissions or failures to act, of whatever kind or
character whatsoever, irrespective of the state of mind of the actor performing
or omitting to perform the same that have been or could have been alleged in any
pleading, amended pleading, complaint, amended complaint, brief, motion, report,
or filing in the Litigation, including but not limited to the rights of any of
the Representative Derivative Plaintiffs or any IDB Stockholder to challenge the
fairness and adequacy of the consideration paid to IDB Stockholders or the
accuracy of the disclosures made by the IDB Defendants or LDDS in connection
with the Merger.
(2) any claims for expenses, costs or fees incurred by IDB for
or on behalf of itself or any of the Released Persons in connection with the
investigation, defense, settlement and/or resolution of the Litigation,
including, but not limited to, attorneys' fees, costs and any settlement or
other expenses (collectively "Defense Expenses");
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(3) the defense, negotiation, settlement or resolution of this
Litigation.
(4) Notwithstanding anything otherwise encompassed by
Paragraph 1.23(b)(1)-(3), above, the releases given by the Representative
Derivative Plaintiffs and IDB Stockholders shall not serve as a bar to any of
the Representative Derivative Plaintiffs or any IDB Stockholder receiving
additional Merger consideration as an IDB Stockholder should such additional
consideration be paid by LDDS to IDB Stockholders in connection with the Merger.
(5) Notwithstanding anything in this Paragraph 1.23(b), or any
other provision of this Stipulation to the contrary, nothing in this Stipulation
shall constitute a release of any claim by LDDS or IDB against any Released
Persons, other than the Individual Defendants, including, but not limited to
claims for contribution and indemnity.
1.24 "Released Persons" means each and all of the Defendants, LDDS, and
each and all of the Related Parties in each such Related Parties' capacity as a
Related Party to a Defendant or LDDS.
1.25 "Representative Class Plaintiffs" means, as the context requires,
Class Plaintiffs Malcolm McClusky, Edward Kaminsky, Andrew Loesberg, Larry R.
Romine, Dominic A. Castaldo, Alvie Spencers, Deborah Newman, Theodore Hammerman,
Paul H. Hocheiser, Ted Gliwa, Helen Ekstein, Ronald Kassover Pension Plan, Abhay
Damley, AnnaLisa Damley, Scott R. Isdaner as Custodian for Remy Scott Isdaner,
Ross Harrison Isdaner, Danee Ashton Isdaner and Alexandra Shea Isdaner, Stephen
M. Harnick Profit Sharing Plan, The Pinnacle Fund, Melvin A. Kilmnick, Michael
Scott Kilmnick, Jerome Weiss as Beneficiary of the IRA for the Benefit of Jerome
Weiss,
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Joyce Weiss as Beneficiary of the IRA for the Benefit of Joyce Weiss, Michael
Thornton, Ginger Rubey-Thornton, Bryant Keith Lafferty, Kumar Patel, Thomas
Chadronet, Bashir Ahmed and Michael S. Hassani.
1.26 "Representative Derivative Plaintiffs" means, as the context requires,
Derivative Plaintiffs Robert S. Muldowney and George G. Steele.
1.27 "Representative Plaintiffs" means, collectively, the Representative
Class Plaintiffs and the Representative Derivative Plaintiffs.
1.28 "Settlement Class" means all Persons who purchased IDB Securities
during the Settlement Class Period. Excluded from the Settlement Class are the
Defendants herein, members of the immediate family of each of the Individual
Defendants, any entity in which any Defendant has a controlling interest, and
the legal representatives, heirs, successors-in-interest or assigns of any
excluded party and those persons who timely and validly request exclusion from
the Settlement Class pursuant to the "Notice of Pendency and Settlement of Class
and Derivative Action" to be sent to the Settlement Class.
1.29 "Settlement Class Period" means the period commencing on April 27,
1992 through and including August 1, 1994, inclusive.
1.30 "Settlement Class Member" or "Member of the Settlement Class" means a
Person who falls within the definition of the Settlement Class as set forth in
Paragraph 1.28 of the Stipulation.
1.31 "Settling Parties" means, collectively, each of the Defendants and
Related Parties who have signed the Stipulation, LDDS, and the Representative
Plaintiffs on behalf of themselves and
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the Members of the Settlement Class, and derivatively on behalf of IDB.
1.32 "Unknown Claims" means any Released Class Claims or Released
Derivative Claims that any Representative Plaintiff or Settlement Class Member
does not know or suspect to exist in his, her or its favor at the time of the
release of the Released Persons that, if known by him, her or it, might have
affected his, her or its settlement with and release of the Released Persons, or
might have affected his, her or its decision not to object to this Settlement.
With respect to any and all Released Class Claims, upon the Effective Date, the
Representative Plaintiffs and the Settlement Class Members shall be deemed to
have, and by operation of the Judgment shall have, expressly waived and
relinquished, to the fullest extent permitted by law, any and all applicable
provisions, rights, and benefits of Section 1542 of the California Civil Code,
which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
IDB, the Representative Plaintiffs and the Settlement Class Members, upon the
Effective Date, shall be deemed to have and by operation of the Judgment shall
have waived any and all applicable provisions, rights and benefits conferred by
any law of any state or territory of the United States, or principle of common
law that is similar, comparable or equivalent to Section 1542 of the California
Civil Code. IDB, the Representative Plaintiffs and Settlement
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Class Members may hereafter discover facts in addition to or different from
those which he, she or it now knows or believes to be true with respect to the
subject matter of the Released Class Claims and/or the Released Derivative
Claims, but each IDB, Representative Plaintiffs and Settlement Class Members
upon the Effective Date, shall be deemed to have, and by operation of the
Judgment shall have, fully, finally and forever settled and released any and all
Released Class Claims and Released Derivative Claims, known or unknown,
suspected or unsuspected, contingent or non-contingent, whether or not concealed
or hidden, that now exist or heretofore have existed upon any theory of law or
equity now existing or coming into existence in the future, including, but not
limited to, conduct that is negligent, intentional, with or without malice, or a
breach of any duty, law or rule, without regard to the subsequent discovery or
existence of such different or additional facts, provided, however, that nothing
in this Paragraph 1.32 shall constitute a release of any claim by LDDS or IDB
against any Released Persons, other than the Individual Defendants, including,
but not limited to claims for contribution and indemnity.
2. THE SETTLEMENT
2.1 In payment of the settlement set forth in this stipulation, the
principal amount of Seventy-Five Million Dollars ($75,000,000) plus accrued
interest as specified below, shall be delivered to the Class Action and
Derivative Action Escrow Agents, as detailed in Paragraph 2.1(a) and (b), at the
time of final approval by the District Court or on the Effective Time of the
Merger, whichever date is later.
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Interest will accrue on the $75 million at the rate of 6% per annum from
January 1, 1995 to the date on which the entire sum of $75 million plus accrued
interest is received by the Class Action and Derivative Action Escrow Agents.
If final approval has been entered by the district court and the Effective Time
of the Merger has passed, but the sum of $75 million plus interest owed has not
been received by the Class Action and Derivative Escrow Agents within 20 days
subsequent to the occurrence of these two conditions precedent, Plaintiffs'
Settlement Counsel shall have the right, exercisable in their sole discretion,
to terminate the Stipulation and the Settlement provided for herein or enforce
the Stipulation by motion to the Court.
(a) DERIVATIVE ACTION SETTLEMENT FUND. The sum of $2.0 million, less
any and all advance payments made in accordance with Paragraph 7.3, plus accrued
interest from January 1, 1995 will be delivered by LDDS to the Derivative Action
Escrow Agent and shall constitute the "Derivative Action Settlement Fund."
(b) CLASS ACTION SETTLEMENT FUND. The following funds will be
delivered to the Class Action Escrow Agent:
(1) The sum of $73.0 million, less any and all advance payments
made in accordance with Paragraphs 3.1 and/or 7.3, plus accrued interest from
January 1, 1995, will be delivered by IDB to the Class Action Escrow Agent;
(2) Upon the Effective Date, the total principal amount and
interest thereon in the Derivative Action Settlement Fund, net of awarded
attorneys' fees and
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expenses as provided for in Paragraph 7.2 of this Stipulation (the "Net
Derivative Fund"), shall be delivered by the Derivative Action Escrow Agent to
the Class Action Escrow Agent;
(3) The funds delivered to the Class Action Escrow Agent
pursuant to Paragraphs 2.1(b)(1) and 2.1(b)(2) above, together with interest
thereon, shall constitute the "Class Action Settlement Fund."
2.2 The Class Action and Derivative Action Escrow Agents shall invest the
Class Action and Derivative Action Settlement Funds deposited pursuant to
Paragraph 2.1 above in short-term instruments backed by the full faith and
credit of the United States Government or fully insured by the United States
Government or an agency thereof and shall reinvest the proceeds of these
instruments as they mature in similar instruments at their then current market
rates.
2.3 Before the Effective Date, the Class Action and Derivative Action
Escrow Agents shall not disburse any portion of the Class Action and Derivative
Action Settlement Funds except as provided in the Stipulation, or with the
written agreement of counsel for IDB and Plaintiffs' Settlement Counsel or
pursuant to an order of the Court.
2.4 Subject to such further orders and/or directions as may be made by the
Court, after the Effective Date, the Class Action and Derivative Action Escrow
Agents are authorized to execute such transactions on behalf of the Settlement
Class Members as are consistent with the terms of the Stipulation.
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2.5 All funds held by the Class Action and Derivative Action Escrow Agents
shall be deemed and considered to be in CUSTODIA LEGIS of the Court, and shall
remain subject to the jurisdiction of the Court, until such time as such funds
shall be distributed after the Effective Date and pursuant to the Stipulation.
2.6 (a) The Settling Parties and the Class Action and Derivative Action
Escrow Agents agree to treat the Class Action and Derivative Action Settlement
Funds as being at all times as one or more "qualified settlement funds" within
the meaning of Treas. Reg. Section 1.468B-l. In addition, the Class Action and
Derivative Action Escrow Agents and, as required, the Settling Parties shall
jointly and timely make such elections as necessary or advisable to carry out
the provisions of this Paragraph 2.6, including the "relation-back election" (as
defined in Treas. Reg. Section 1.468B-1) back to the earliest permitted date.
Such elections shall be made in compliance with the procedures and requirements
contained in such regulations. It shall be the responsibility of the Class
Action and Derivative Action Escrow Agents to timely and properly prepare, and
deliver the necessary documentation for signature by all necessary parties, and
thereunder to cause the appropriate filing to occur.
(b) For the purposes of Section 468B of the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder, the
"administrator" shall be the Class Action and Derivative Action Escrow
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Agents. The Class Action and Derivative Action Escrow Agents shall timely and
properly file all informational and other tax returns necessary or advisable
with respect to the Class Action and Derivative Action Settlement Funds
(including without limitation the returns described in Treas. Reg. Section
1.468B-2(k)). Such returns (as well as the election described in
Paragraph 2.6(a)) shall be consistent with this Paragraph 2.6 and in all events
shall reflect that all taxes (including any interest or penalties) on the income
earned by the Class Action and Derivative Action Settlement Funds shall be paid
out of the Class Action and Derivative Action Settlement Funds as provided in
Paragraph 2.6(c) hereof.
(c) All (i) taxes (including any interest or penalties) arising with
respect to the income earned by the Class Action and Derivative Action
Settlement Funds, including any taxes or tax detriments that may be imposed upon
LDDS and/or the Defendants with respect to any income earned by the Class Action
and Derivative Action Settlement Funds for any period during which the Class
Action and Derivative Action Settlement Funds do not qualify as a "qualified
settlement fund" for Federal or state income tax purposes ("Taxes"); and (ii)
expenses and costs incurred in connection with the operation and implementation
of this Paragraph 2.6 (including, without limitation, expenses of tax attorneys
and/or accountants and mailing and distribution costs and expenses relating to
filing (or failing to file) the returns described in this Paragraph 2.6) ("Tax
Expenses"), shall be paid out of the Class Action and Derivative Action
Settle-
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ment Funds; in all events LDDS and the Defendants shall have no liability or
responsibility for the Taxes or the Tax Expenses. The Class Action and
Derivative Action Escrow Agents shall indemnify and hold LDDS and the Defendants
harmless for Taxes and Tax Expenses (including, without limitation, taxes
payable by reason of any such indemnification). In the event that any income
earned by the Settlement Fund is under applicable Federal or state income tax
law (as reasonably determined by LDDS and/or the Defendants by the last date on
which Settlement Class Members are permitted to submit Proofs of Claim)
includible in the taxable income of LDDS or Defendants or any of them, the
amount of indemnification due hereunder shall be equal to the product of (i) the
amount of such income inclusion (increased by any additional amounts includible
in income as a result of this indemnification) and (ii) as to LDDS or each
Defendant deemed subject to taxation, the tax rate (before credits) applicable
on ordinary taxable income before net operating loss carryovers for LDDS or such
Defendant for the taxable year in which indemnification hereunder becomes due
and payable. Further, Taxes and Tax Expenses shall be treated as, and
considered to be, a cost of administration of the Settlement and shall be timely
paid by the Class Action and Derivative Action Escrow Agents out of the Class
Action and Derivative Action Settlement Funds without prior order from the Court
and the Class Action and Derivative Action Escrow Agents shall be obligated
(notwithstanding anything herein to the contrary) to withhold
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from distribution to class members any funds necessary to pay such amounts
including the establishment of adequate reserves for any such contingent Taxes
and Tax Expenses (as well as any amounts that may be required to be withheld
under Treas. Reg. Section l.468B-2(l)(2)); LDDS and the Defendants are not
responsible and shall have no liability therefor. The Settling Parties agree to
cooperate with the Class Action and Derivative Action Escrow Agents, each other,
and their tax attorneys and accountants to the extent reasonably necessary to
carry out the provisions of this Paragraph 2.6.
(d) For the purpose of this Paragraph 2.6, references to the Class
Action and Derivative Action Settlement Funds shall include the Class Action and
Derivative Action Settlement Funds and the Class and Derivative Notice and
Administration Fund and shall also include any earnings thereon.
2.7 In the event that the Stipulation is not approved, or is terminated or
cancelled, or the Effective Date fails to become effective for any reason, the
Class Action and Derivative Action Settlement Funds (including accrued interest)
less reasonable and appropriate out-of-pocket costs (E.G. not attorneys' fees)
actually incurred or due and owing in connection with the Settlement provided
for herein, shall be refunded as described in Paragraph 8.6 below.
2.8 IDB agrees, warrants and represents that it has concluded and is
satisfied that the consideration received for the settlement of the Released
Derivative Claims on the
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terms and conditions set forth in this Stipulation constitutes reasonably
equivalent value for the release of the Released Derivative Claims.
2.9 The Defendants who have signed the Stipulation hereby consent to the
conditional certification of the Settlement Class, as defined in Paragraph 1.28
of this Stipulation, solely for purposes of the Settlement set forth herein.
2.10 If (i) a case is commenced by or against a transferor of funds to the
Class Action Settlement Fund or the Derivative Action Settlement Fund under
Title 11 of the United States Code (Bankruptcy), or a trustee, receiver or
conservator is appointed under any similar law, and (ii) a court of competent
jurisdiction enters a final order determining that the transfer of the funds
under the Stipulation by such transferor or on behalf of a Defendant to be a
preference, void or voidable transfer, fraudulent conveyance or similar
transaction, and if such trustee, receiver or conservator recovers such funds
then, the release given and Judgment entered against Defendants pursuant to this
Stipulation, at the election of Plaintiffs' Settlement Counsel, shall be null
and void.
3. NOTICE AND ADMINISTRATION FUND
3.1 Prior to the transfer of the Class Action and Derivative Action
Settlement Funds to the Class Action and Derivative Action Escrow Agents, IDB
shall advance the reasonable costs actually incurred up to and not exceeding
$150,000 in providing notice of the Settlement to the Settlement Class and IDB
Stockholders. Such
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amounts actually paid shall be credited against the amount of the Class Action
Settlement Fund.
3.2 The Notice and Administration Fund may also be invested and earn
interest as provided for in Paragraph 2.2 of this Stipulation. Any unused
portion of the Notice Administration Fund shall be returned to the Class Action
Settlement Fund.
4. NOTICE ORDER AND SETTLEMENT HEARING
4.1 Promptly after execution of the Stipulation, but in no event later
than ten days after the Stipulation is signed (unless such time is extended by
the written agreement of Plaintiffs' Settlement Counsel and counsel for IDB),
the Settling Parties shall submit the Stipulation together with its Exhibits to
the Court and shall jointly apply for entry of an order (the "Notice Order"),
substantially in the form of Exhibit "A" hereto, requesting, INTER ALIA,
approval for the mailing to the Settlement Class and IDB Stockholders of
settlement notices that shall include the general terms of the Settlement set
forth in the Stipulation, the proposed Plan of Allocation, the general terms of
the Fee and Expense Applications (as set forth in Paragraph 7.1, below) and the
date of the Settlement Hearing.
4.2 The Settling Parties shall also request that after notice is given,
the Court hold a hearing (the "Settlement Hearing") and approve the Settlement
of the Litigation as set forth herein. At or after the Settlement Hearing,
Plaintiffs' Settlement Counsel also will request that the Court approve the
Proposed Plan of Allocation and the Fee and Expense Applications.
4.3 The Notice Order shall specifically include provisions that, among
other things, will:
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(a) Preliminarily approve the Stipulation and the Settlement set
forth herein as being fair, reasonable and adequate to the Settlement Class, and
to IDB and IDB Stockholders;
(b) Certify the Settlement Class subject to the terms and conditions
set forth herein;
(c) Approve the form of (1) Notice of Pendency and Settlement of Class
Action ("Class Notice") (substantially in the form of Exhibit "A-1" hereto) for
mailing to Members of the Settlement Class and (2) Notice of Pendency and
Settlement of Derivative Action ("Derivative Notice")(substantially in the form
of Exhibit "A-2" hereto) for mailing to IDB Stockholders;
(d) Approve the form of Proof of Claim and Release ("Proof of Claim
and Release") (substantially in the form of Exhibit "A-3" hereto) for mailing to
Members of the Settlement Class;
(e) Approve a summary notice of the proposed settlement for
publication (the "Summary Notice") (substantially in the form of Exhibit "A-4"
hereto);
(f) Direct Plaintiffs' Settlement Counsel to (1) mail or cause to be
mailed by first class mail the Class Notice and the Proof of Claim and Release
to those Persons in the Settlement Class who can be identified through
reasonable effort, on or before the date specified in the Notice Order, and (2)
mail or caused to be mailed by first class mail the Derivative Notice to those
IDB Stockholders who can be identified through reasonable effort, on or before
the date specified in the Notice Order;
(g) Request that nominees who purchased IDB Securities during the
Settlement Class Period, or held IDB Common Stock for
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IDB Stockholders, send the Class Notice and Proof of Claim and Release form or
the Derivative Notice, as the case may be, to all beneficial owners of such IDB
Securities within ten (10) days after receipt of the Class Notice or Derivative
Notice, send a list of the names and addresses of such beneficial owners to
Plaintiffs' Settlement Counsel within ten (10) days of receipt of the Class
Notice or Derivative Notice and advise such nominees that their costs of
providing the Class Notice and Proof of Claim and Release form or Derivative
Notice to such beneficial owners will be reimbursed from the Settlement Fund;
(h) Direct Plaintiffs' Settlement Counsel to cause the Summary Notice
to be published once in the national edition of THE WALL STREET JOURNAL on or
before the date specified in the Notice Order;
(i) Provide that Settlement Class Members who wish to participate in
the Settlement provided for in this Stipulation shall complete and file a Proof
of Claim and Release form pursuant to the instructions contained therein;
(j) Provide that Settlement Class Members who wish to exclude
themselves from the Settlement Class must do so in accordance with the
instructions set forth in the Class Notice;
(k) Find that the notice given pursuant to subparagraphs (b)-(j)
above, constitutes the best notice practicable under the circumstances,
including individual notice to all Persons in the Settlement Class and all IDB
Stockholders who can be identified upon reasonable effort, and constitutes
valid, due and sufficient notice to all Members of the Settlement Class and all
IDB Stockholders, complying fully with the requirements of Rules 23 and
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23.1 of the Federal Rules of Civil Procedure, the Constitution of the United
States, and any other applicable law;
(l) Schedule the Settlement Hearing to be held by the Court to
consider and determine whether the proposed Settlement of the Litigation as
contained in the Stipulation should be approved as fair, reasonable and adequate
to the Settlement Class, IDB and IDB Stockholders and whether the Judgment
approving the Settlement should be entered;
(m) Provide that at or after the Settlement Hearing, the Court shall
determine whether the proposed Plan of Allocation should be approved and enter
an order thereon;
(n) Provide that at or after the Settlement Hearing, the Court shall
determine whether and in what amount attorneys' fees and reimbursement of costs
and expenses should be awarded to Representative Plaintiffs' counsel and enter
an order thereon;
(o) Provide that pending final determination of whether the
Settlement contained in the Stipulation should be approved, neither the
Representative Plaintiffs, nor any Settlement Class Member nor any IDB
Stockholder, either directly, representatively or in any other capacity, shall
commence or prosecute any action or proceeding in any court or tribunal
asserting any of the Released Class Claims or Released Derivative Claims against
any of the Released Persons.
(p) Provide that any objections to: (i) the proposed Settlement
contained in the Stipulation; (ii) entry of the Judgment approving the
Settlement; (iii) the proposed Plan of Allocation or entry of any order
approving same; or (iv) Representative Plaintiffs' counsel's Fee and Expense
Application, or entry of an
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order approving same, shall be heard and any papers submitted in support of said
objections shall be considered by the Court at the Settlement Hearing only if,
on or before the date specified in the Notice Order, Class Notice, and
Derivative Notice, Settlement Class Members or IDB Stockholders making such
objections shall file and serve notice of their intention to appear and copies
of all papers in support of their position (which shall set forth each objection
and the basis therefor) as set forth in the Notice Order, Class Notice, and
Derivative Notice;
(q) Provide that, in accordance with Paragraph 5, upon the occurrence
of the Effective Date, all Settlement Class Members, whether or not they file a
Proof of Claim and Release, shall be barred from asserting any Released Class
Claims against any of the Released Persons and each and all Settlement Class
Member(s) shall conclusively be deemed to have released any and all such
Released Class Claims as against all of the Released Persons; and also provide
that, upon the occurrence of the Effective Date, all Representative Derivative
Plaintiffs, IDB and IDB Stockholders shall be barred from asserting any Released
Derivative Claims against any of the Released Persons and each and all
Representative Derivative Plaintiffs, IDB and IDB Stockholders shall
conclusively be deemed to have released any and all such Released Derivative
Claims as against all of the Released Persons;
(r) Provide that the Settlement Hearing may, from time to time and
without further notice to the Settlement Class or IDB Stockholders, be continued
or adjourned by order of the Court; and
(s) Provide that, whether or not the Effective Date occurs, any
Member of the Settlement Class who does not properly
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and timely request exclusion from the Settlement Class shall be bound by any and
all judgments or settlements entered or approved by the Court, whether favorable
or unfavorable to the Settlement Class.
5. RELEASES
5.1 Upon the Effective Date, as defined in Paragraph 1.11, the
Representative Class Plaintiffs and all members of the Settlement Class shall be
deemed to have, and by operation of judgment shall have, fully, finally and
forever released, relinquished and discharged all Released Class Claims against
the Released Persons, whether or not any such Representative Class Plaintiff or
Settlement Class Member executes and delivers the Proof of Claim and Release.
5.2 Upon the Effective Date, as defined in Paragraph 1.11, the
Representative Derivative Plaintiffs, IDB and all IDB Stockholders shall be
deemed to have, and by operation of the Judgment shall have, fully, finally, and
forever released, relinquished and discharged all Released Derivative Claims
against the Released Persons, provided, however, that nothing in this
Paragraph 5.2 shall constitute a release of any claim by LDDS or IDB against any
other Released Persons, other than the Individual Defendants, including, but not
limited to claims for contribution and indemnity.
5.3 A Representative Class Plaintiff or Settlement Class Member shall not
be deemed to be an Authorized Claimant, and shall not be entitled to receive any
portion of or distribution from the Settlement Fund unless he, she, or it has
executed and delivered a Proof of Claim and Release form, in the form attached
hereto as Exhibit A-3.
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5.4 Upon the Effective Date, as defined in Paragraph 1.11, each of the
Defendants and Related Parties who have signed the Stipulation shall be deemed
to have, and by operation of the Judgment shall have, fully, finally, and
forever released, relinquished and discharged each and all of the Settlement
Class Members, the Representative Plaintiffs and counsel to the Representative
Plaintiffs, each only in their capacity as such, from all claims arising out of,
relating to, or in connection with the institution, prosecution, assertion or
resolution of the Litigation or the Released Class Claims or Released Derivative
Claims.
6. ADMINISTRATION AND CALCULATION OF CLAIMS, FINAL AWARDS AND
SUPERVISION AND DISTRIBUTION OF THE CLASS ACTION SETTLEMENT FUND
6.1 Plaintiffs' Settlement Counsel, or their authorized agents (including
the Class Action Escrow Agent), acting on behalf of the Settlement Class, and
subject to the terms of the Stipulation and Plan of Allocation, and such
supervision and direction by the Court as may be necessary or required by the
circumstance, shall administer and calculate the claims submitted by Settlement
Class Members and, after the Effective Date, shall oversee distribution of the
Net Class Action Settlement Fund (defined below) to Authorized Claimants.
6.2 The Class Action Settlement Fund shall be applied as follows:
(a) To pay counsel to Representative Plaintiffs the attorneys' fees,
expenses and costs with interest thereon (the "Class Fee and Expense Award");
and
(b) To establish the Notice and Administration Fund as described in
Paragraph 3.1 above; and
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(c) To pay all Taxes and Tax Expenses described in Paragraph 2.6
above; and
(d) To distribute the balance of the Class Action Settlement Fund
(the "Net Class Action Settlement Fund") to Authorized Claimants as allowed by
the Stipulation, the Plan of Allocation or the Court.
6.3 After the occurrence of the Effective Date and in accordance with the
terms of the Stipulation, the Plan of Allocation, or such further approval and
further order(s) of the Court as may be necessary or as circumstances may
require, the Net Class Action Settlement Fund shall be distributed to Authorized
Claimants, subject to and in accordance with the following:
(a) Within one hundred twenty (120) days after the mailing of the
Class Notice or such other time as may be set by the Court, each Person claiming
to be an Authorized Claimant shall be required to submit to the claims
administrator a separate completed Proof of Claim and Releases as attached to
the Class Notice and substantially in the form of Exhibit "A-3" hereto, signed
under penalty of perjury and supported by such documents as specified in the
Proof of Claim and Releases and as are reasonably available to the Authorized
Claimant.
(b) Except as otherwise ordered by the Court, all Settlement Class
Members who fail to timely submit a Proof of Claim and Releases within such
period, or such other period as may be ordered by the Court, shall be forever
barred from receiving any payments pursuant to the Stipulation and the
Settlement set forth herein, but will in all events and other respects be
subject to and
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bound by the provisions of the Stipulation, the Settlement and releases
contained herein, and the Judgment.
(c) The Net Class Action Settlement Fund shall be distributed to the
Authorized Claimants in accordance with a Plan of Allocation to be described in
the Class Notice mailed to Settlement Class Members.
6.4 The Defendants, the Related Parties and LDDS shall have no
responsibility for, interest in, or liability whatsoever with respect to the
investment or distribution of the Net Class Action Settlement Fund, the Plan of
Allocation, the determination, administration, calculation or payment of claims,
the payment or withholding of taxes, or any losses incurred in connection
therewith.
6.5 No Person shall have any claim against Plaintiffs' Settlement Counsel
or any claims administrator or other agent designated by Plaintiffs' Settlement
Counsel or Defendants or LDDS or any of their counsel based on distributions
made substantially in accordance with the Stipulation and the Settlement
contained herein, the Plan of Allocation, or further orders of the Court.
6.6 It is understood and agreed by the Settling Parties that any proposed
Plan of Allocation of the Net Settlement Fund including, but not limited to, any
adjustments to an Authorized Claimant's Claim set forth therein, is not a part
of the Stipulation and is to be considered by the Court separately from the
Court's consideration of the fairness, reasonableness and adequacy of the
Settlement set forth in the Stipulation, and any order, appeal or proceedings
relating to the Plan of Allocation, the distribution or use of the Settlement
Fund, or the
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determination of an Authorized Claim shall not operate to terminate or cancel
the Stipulation or affect or delay the finality of the Court's Judgment
approving the Stipulation and the Settlement set forth herein, or any other
orders entered pursuant to the Stipulation.
7. REPRESENTATIVE PLAINTIFFS' COUNSEL'S ATTORNEYS' FEES AND
REIMBURSEMENT OF EXPENSES FROM THE CLASS ACTION AND DERIVATIVE
ACTION SETTLEMENT FUNDS
7.1 The Representative Plaintiffs or their counsel may submit an
application or applications (the "Class Fee and Expense Application") for
distributions to them from the Class Action Settlement Fund for: (i) attorneys'
fees of up to one-third of the Class Action Settlement Fund; plus (ii)
reimbursement of their expenses and costs including the fees of any experts or
consultants incurred in connection with prosecuting the Class Claims in the
Litigation, plus interest on such attorneys' fees, costs and expenses at the
same rate and for the same periods as earned by the Class Action Settlement
Fund, as may be awarded by the Court. Representative Plaintiffs' counsel
reserve the right to make additional applications, after the Effective Date, for
fees and expenses payable to the extent awarded by the Court from the Settlement
Fund.
7.2 In connection with the Derivative Claims, Representative Plaintiffs'
counsel may file an application for attorneys' fees, costs and expenses
("Derivative Fees and Expenses"), to be paid out of the Derivative Action
Settlement Fund, in an amount not to exceed $500,000, plus interest at the same
rate and for the same periods as earned by the Derivative Action Settlement
Fund.
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7.3 The attorneys' fees, expenses and costs, including the fees of experts
and consultants, as awarded by the Court (the "Class Fee and Expense Award"),
shall be paid to Plaintiffs' Settlement Counsel from the Class Action Settlement
Fund after the Effective Time of the Merger, but within three (3) business days
after the Court executes an order awarding such fees and expenses. In the event
that the Court executes an order awarding such fees and expenses before the
Effective Time of the Merger, the Class Fee and Expense Award shall be paid to
Plaintiffs' Settlement Counsel from the Class Action Settlement Fund within
three (3) business days after the Effective Time of the Merger. Plaintiffs'
Settlement Counsel shall thereafter allocate the Class Fee and Expense Award
amongst Representative Plaintiffs' Counsel in a manner in which they in good
faith believe reflects the contributions of such counsel to the prosecution and
settlement of the Litigation. Likewise, the Derivative Fees and Expenses shall
be paid from the Derivative Action Settlement Fund after the Effective Time of
the Merger, but within three (3) business days after the Court executes an order
awarding such fees and expenses. In the event that the Court executes an order
awarding such fees and expenses before the Effective Time of the Merger, the
Derivative Fee and Expense Award shall be paid to Plaintiffs' Settlement Counsel
from the Derivative Action Settlement Fund within three (3) business days after
the Effective Time of the Merger. In the event that the Effective Date does not
occur, or the Judgment or the order making the Class Fee and Expense Award or
Derivative Fees and Expenses is reversed or modified on appeal, and in the event
that the Class Fee and Expense Award or Derivative
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Fees and Expenses have been paid to any extent, then Representative Plaintiffs'
counsel shall within five (5) business days from receiving notice from counsel
for IDB and/or LDDS, or from a court of appropriate jurisdiction, refund to the
Class Action and Derivative Action Settlement Funds the fees, expenses and costs
previously paid to them from the Class Action and Derivative Action Settlement
Funds, in an amount consistent with such reversal or modification, with interest
thereon at the same average rate as earned on the balance of the Class Action
and Derivative Action Settlement Funds from the date on which any portion of the
Class Fee and Expense Award or the Derivative Fees and Expenses was first paid.
Each such Representative Plaintiffs' counsel's law firm, as a condition of
receiving such fees and expenses, on behalf of itself and each partner and/or
shareholder of it, agrees that the law firm and its partners and/or shareholders
are subject to the jurisdiction of the Court for the purpose of enforcing this
Paragraph 7.3 of the Stipulation. Without limitation, each such law firm and
its partners and/or shareholders agree that the Court may, upon application of
counsel for IDB and/or LDDS and on notice to Plaintiffs' Settlement Counsel,
summarily issue orders, including but not limited to, judgments and attachment
orders, and may make appropriate findings of or sanctions for contempt, against
them or any of them should such law firm fail timely to repay fees and expenses
pursuant to this Paragraph 7.3 of the Stipulation.
7.4 The procedure for and the allowance or disallowance by the Court of
the Class Fee and Expense Award or the Derivative Fees and Expenses are not part
of the Settlement set forth in the Stipulation, and are to be considered by the
Court separately from
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the Court's consideration of the fairness, reasonableness and adequacy of the
Settlement set forth in the Stipulation, and any order or proceedings relating
to the Class Fee and Expense Application or the Derivative Fees and Expenses, or
any appeal from any order relating thereto or reversal or modification thereof,
shall not operate to terminate or cancel the Stipulation, or affect or delay the
finality of the Judgment approving the Stipulation and the Settlement of the
Litigation set forth herein.
8. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR
TERMINATION
8.1 Subject to the provisions below, the Effective Date of the Stipulation
shall be the first day by which all of the following events shall have occurred:
(a) The contributions to the Class Action and Derivative Action
Settlement Funds as required by Paragraph 2.1 above shall have been timely made;
(b) the Effective Time of the Merger, as defined in Paragraph 1.12,
shall have occurred;
(c) The Court has entered the Notice Order, as required by
Paragraph 4, above;
(d) The Court has entered the Judgment, or a judgment substantially
in the form of Exhibit "B";
(e) The Judgment in the Litigation has become Final, as defined in
Paragraph 1.13 above; and
(f) Both the STEELE Action and the HASSANI Action have been dismissed.
8.2 Upon the occurrence of all of the events referenced in Paragraph 8.1
above, any and all interest or right of Defendants in or to
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the Class Action and Derivative Action Settlement Funds shall be absolutely and
forever extinguished.
8.3 If prior to the Settlement Hearing, Persons who otherwise would be
members of the Settlement Class have filed with the Court timely requests for
exclusion ("Requests for Exclusion") from the Settlement Class in accordance
with the provisions of the Notice Order and the Class Notice given pursuant
thereto, and such Persons in the aggregate have a Potential Claim Amount (as
that term is defined in the Supplemental Agreement) in an amount greater than
the sum specified in the separate Supplemental Agreement between the Parties,
IDB and LDDS shall have, in their sole and absolute discretion, the option to
terminate this Stipulation in accordance with the procedures set forth in the
Supplemental Agreement. The Supplemental Agreement will not be filed with the
Court unless and until a dispute among the Settling Parties concerning its
interpretation or application arises and in that event it shall be filed and
maintained with the Court under seal. Copies of all Requests for Exclusion
received, together with copies of all written revocations of Requests for
Exclusion shall be delivered to counsel for IDB and LDDS no later than five
court days before the Settlement Hearing(s).
8.4 Neither a modification nor reversal on appeal of (i) any amount of
attorneys' fees, costs, expenses and/or interest awarded by the Court to the
Representative Plaintiffs or their counsel from the Class Action and Derivative
Action Settlement Funds or (ii) the Plan of Allocation shall constitute grounds
for cancellation and termination of this Stipulation.
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8.5 If any of the conditions specified in Paragraph 8.1 are not met, then
the Stipulation shall be cancelled and terminated unless Plaintiffs' Settlement
Counsel and counsel for IDB and LDDS mutually agree in writing to proceed with
the Stipulation.
8.6 In the event the Stipulation shall terminate, or be cancelled, or
shall not become effective for any reason, within five (5) business days after
written notification of such event is sent by counsel for IDB and/or LDDS or
Plaintiffs' Settlement Counsel to the Class Action and Derivative Action Escrow
Agents, the Class Action and Derivative Action Settlement Funds (including
accrued interest), plus any amount then remaining in the Notice and
Administration Fund (including accrued interest), less expenses and any costs
which have either been disbursed from the Notice and Administration Fund
pursuant to Paragraph 3 hereto, or are determined to be chargeable to the Notice
and Administration Fund, shall be refunded by the Class Action and Derivative
Action Escrow Agents pursuant to written instructions from counsel for IDB and
LDDS. In such event IDB and/or LDDS shall be entitled to any tax refund owing
to the Class Action and Derivative Action Settlement Funds. At the request of
IDB and/or LDDS, the Class Action and Derivative Action Escrow Agents or their
designee shall apply for any such refund and pay the proceeds, after deduction
of any fees or expenses incurred in connection with such application(s) for
refund, to IDB and LDDS.
8.7 A condition precedent to this Settlement is the consummation of the
Merger. In the event that the Merger is cancelled or otherwise fails to occur
for any reason whatsoever, or the Stipulation is not approved by the Court, or
the Settlement set forth in the Stipulation is terminated or fails to become
effective
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in accordance with its terms, this Stipulation and all negotiations and
proceedings relating hereto shall be without prejudice as to the rights of any
and all parties or Related Parties hereto, who shall be restored to their
respective positions in the Litigation prior to the execution of the
Stipulation. In such event, the terms and provisions of the Stipulation, with
the exception of Paragraphs 2.2-2.7, 7.3, 8.5-8.8, 9.2, 9.3, 9.9-9.12 herein,
shall have no further force and effect with respect to the Representative
Plaintiffs, the Settlement Class, IDB, IDB Stockholders or the Released Persons
and shall not be used in this Litigation or in any other proceeding for any
purpose and any Judgment or Order entered by the Court in accordance with the
terms of the Stipulation shall be treated as vacated, NUNC PRO TUNC. No order
of the Court or modification or reversal on appeal of any order of the Court
concerning the amount of the Class Fee and Expense Award or Derivative Fees and
Expenses shall constitute grounds for cancellation or termination of the
Stipulation.
8.8 If the Effective Date does not occur, or if the Stipulation is
terminated pursuant to its terms, neither the Representative Plaintiffs nor any
of their counsel shall have any obligation to repay any amounts actually and
properly disbursed from the Notice and Administration Fund. In addition, any
expenses already incurred and properly chargeable to the Notice and
Administration Fund pursuant to Paragraph 3 hereof at the time of such
termination or cancellation but which have not been paid, shall be paid by the
Class Action and Derivative Action Escrow Agents in accordance with the terms of
the Stipulation prior to the balance being refunded in accordance with
Paragraph 8.6 above.
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9. MISCELLANEOUS PROVISIONS
9.1 The Settling Parties (a) acknowledge that it is their intent to
consummate this agreement; and (b) agree to cooperate to the extent necessary to
effectuate and implement all terms and conditions of the Stipulation and to
exercise their best efforts to accomplish the terms and conditions of the
Stipulation.
9.2 In the event this Stipulation shall be cancelled as set forth in
paragraph 8.6 hereof, the Settling Parties shall, within two weeks of such
cancellation, jointly request a status conference with the Court to be held on
the Court's first available date. At such status conference, the Settling
Parties shall ask the Court's assistance in scheduling continued proceedings in
the Litigation as between the Settling Parties. Pending such status conference
or the expiration of 60 days from the Settling Parties' joint request for a
status conference, whichever occurs first, none of the Settling Parties shall
file or serve any further motions or discovery requests on any of the other
Settling Parties in connection with this Litigation nor shall any response be
due by any Settling Party to any outstanding discovery by any other Settling
Party.
9.3 Neither the Stipulation, including Exhibits, nor the Settlement, nor
any act performed or document executed pursuant to or in furtherance of the
Stipulation or the Settlement: (i) is or may be deemed to be or may be used as
an admission of, or evidence of, the validity of any Released Claim, or of any
wrongdoing or liability of any Person; or (ii) is or may be deemed to be or may
be used as an admission of, or evidence of, any fault or omission of any Person
in any civil, criminal or administrative proceeding
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in any court, administrative agency or other tribunal, other than in such
proceedings as may be necessary to consummate or enforce the Stipulation, the
Settlement or the Judgment, except that LDDS or the Defendants or the Related
Parties may file the Stipulation and/or the Judgment and/or any other applicable
document in any action or proceeding that may be brought against any of them or
any of their Related Parties in order to support a defense or counterclaim based
on principles of RES JUDICATA, collateral estoppel, release, good faith
settlement, judgment bar or reduction or any other theory of claim preclusion or
issue preclusion or similar defense or counterclaim.
9.4 The Settling Parties and their counsel, and each of them, agree, to
the extent permitted by law, that all agreements made and orders entered during
the course of the Litigation relating to the confidentiality of information
shall survive this Stipulation.
9.5 All of the Exhibits to the Stipulation are material and integral parts
hereof and are fully incorporated herein by this reference.
9.6 The Stipulation may be amended or modified only by a written
instrument signed by or on behalf of all signatories hereto.
9.7 The Stipulation and its Exhibits constitute the entire agreement
between the Settlement Class Members, IDB Stockholders and Plaintiffs'
Settlement Counsel, on the one hand, and the Released Persons who have signed
the Stipulation on the other hand, and no representations, warranties or
inducements have been made concerning the Stipulation or its Exhibits as between
the Settlement Class Members, IDB Stockholders and Plaintiffs'
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Settlement Counsel, on the one hand, and the Released Persons who have signed
the Stipulation on the other hand, other than the representations, warranties
and covenants contained and memorialized in such documents.
9.8 Each counsel or other Person executing the Stipulation or any of its
Exhibits on behalf of any party hereto hereby warrants that such person has the
authority to do so.
9.9 The 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. A complete set of original executed counterparts shall be filed
with the Court.
9.10 The Stipulation shall be binding upon, and inure to the benefit of,
the successors and assigns of the Settling Parties and the other Related
Parties.
9.11 The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the Stipulation, and all parties hereto submit to
the jurisdiction of the Court for purposes of implementing and enforcing the
Settlement embodied in the Stipulation.
9.12 The Stipulation and the Exhibits hereto shall be considered to have
been negotiated, executed and delivered, and to be wholly performed, in the
State of California, and the rights and obligations of the parties to the
Stipulation shall be construed and enforced in accordance with, and governed by,
the internal, substantive laws of the State of California without giving effect
to that State's choice of law principles.
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9.13 The Milberg, Weiss Law Firm represents that it is authorized to sign
the Stipulation on behalf of all of Plaintiffs' Settlement Counsel and that all
of Plaintiffs' Settlement Counsel have consented to be bound by the terms of the
Stipulation.
IN WITNESS WHEREOF, the parties hereto have caused the Stipulation to be
executed by their duly authorized attorneys.
MILBERG WEISS BERSHAD
HYNES & LERACH
WILLIAM S. LERACH
KEITH F. PARK
PATRICK J. COUGHLIN
JOY ANN BULL
______________________________
PATRICK J. COUGHLIN
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
MILBERG WEISS BERSHAD
HYNES & LERACH
JOHN J. STOIA, JR.
222 Kearny Street
10th Floor
San Francisco, CA 94108
Telephone: 415/288-4545
BARRACK, RODOS & BACINE
KIRK B. HULETT
LISA C. ATKINSON
600 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: 619/230-0800
ABBEY & ELLIS
ARTHUR N. ABBEY
212 East 39th Street
New York, NY 10016
Telephone: 212/889-3700
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CORINBLIT & SELTZER
MARC M. SELTZER
3700 Wilshire Boulevard
Suite 820
Los Angeles, CA 90010
Telephone: 213/380-4200
Co-Lead Counsel for Plaintiffs
LIEFF, CABRASER & HEIMANN
JAMES M. FINBERG
WILLIAM M. AUDET
MELANIE M. PIECH
Embarcadero Center West
275 Battery Street
30th Floor
San Francisco, CA 94111
Telephone: 415/956-1000
GOODKIND LABATON RUDOFF
& SUCHAROW
LAWRENCE A. SUCHAROW
LYNDA J. GRANT
100 Park Avenue, 12th Floor
New York, NY 10017
Telephone: 212/907-0700
LAW OFFICES OF GERALD GARBER
GERALD GARBER, ESQ.
75 Meadow Woods Road
Great Neck, NY 11020
Telephone: 516/487-4628
Attorneys for Plaintiff Edward
Kaminsky
BERNSTEIN LITOWITZ BERGER &
GROSSMANN
JEFFREY A. KLAFTER
1285 Avenue of the Americas
33rd Floor
New York, NY 10019
Telephone: 212/554-1400
Attorneys for Plaintiff
Malcolm McClusky
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LAW OFFICES OF STEVEN E.
CAULEY
STEVEN E. CAULEY
400 W. Capitol, Suite 1731
Little Rock, AR 72201
Telephone: 501/375-1200
Attorney for Plaintiff Larry
R. Romine
PRONGAY & MIKOLAJCZYK
KEVIN M. PRONGAY
EUGENE MIKOLAJCZYK
881 Alma Real Drive
Suite 211
Pacific Palisades, CA 90272
Telephone: 310/573-3600
OSTRAGER, CHONG & FLAHERTY
GLENN F. OSTRAGER
300 Park Avenue, 25th Floor
New York, NY 10022
Telephone: 212/826-6565
BRAGAR & WEXLER
PAUL D. WEXLER
900 Third Avenue, 12th Floor
New York, NY 10022
Telephone: 212/308-5858
Attorneys for Plaintiff Andrew
Loesberg
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ
FRANCIS M. GREGOREK
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/338-4599
Attorneys for Plaintiff Alvie
Spencers
LAW OFFICES OF JOSEPH H.
WEISS
JOSEPH H. WEISS
319 Fifth Avenue
New York, NY 10016
Telephone: 212/532-4171
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LAW OFFICES OF JOSEPH H.
WEISS
KEVIN J. YOURMAN
1800 Avenue of the Stars
Suite 1000
Los Angeles, CA 90067
Telephone: 310/277-1574
Attorneys for Plaintiff
Deborah Newman
ZWERLING, SCHACHTER & ZWERLING
ROBERT S. SCHACHTER
767 Third Avenue
New York, NY 10017-2023
Telephone: 212/223-3900
Attorneys for Plaintiff
Theodore Hammerman
RICHARD S. SCHIFFRIN
SCHIFFRIN & CRAIG, LTD.
Three Bala Plaza East
Suite 500
Bala Cynwyd, PA 19004
Telephone: 215/667-7706
Attorneys for Plaintiff Paul
H. Hocheiser
KAUFMAN, MALCHMAN, KIRBY
& SQUIRE
JEFFREY H. SQUIRE
919 Third Avenue, 11th Floor
New York, NY 10022
Telephone: 212/371-6600
Attorneys for Plaintiff Ted
Gliwa
STULL, STULL & BRODY
JULES BRODY
6 East 45th Street
4th Floor
New York, NY 10017
Telephone: 212/687-7230
Attorneys for Plaintiff Helen
Ekstein
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SCHOENGOLD & SPORN, P.C.
SAMUEL SPORN
233 Broadway
New York, NY 10279
Telephone: 212/964-0046
Attorneys for Plaintiff Ronald
Kassover
LAW OFFICES OF KRISHNAN
CHITTUR
KRISHNAN CHITTUR
41 East 42nd Street
Suite 2310
New York, NY 10017
Telephone: 212/949-9696
Attorneys for Plaintiffs Abhay
Damley and Annalisa Damley
SAVETT FRUTKIN PODELL &
RYAN, P.C.
STUART H. SAVETT
320 Walnut Street, Suite 508
Philadelphia, PA 19106
Telephone: 215/923-5400
Attorneys for Plaintiff Scott
R. Isdaner
WOLF POPPER ROSS WOLF
& JONES
MICHAEL P. FUCHS
845 Third Avenue
New York, NY 10022
Telephone: 212/759-4600
COHEN, MILSTEIN, HAUSFELD
& TOLL
RICHARD BELL
1100 New York Avenue, N.W.
West Tower, Suite 500
Washington, DC 20005
Telephone: 202/408-4600
Attorneys for Plaintiffs
Stephen M. Harnik Profit
Sharing Plan
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LOWEY DANNENBERG BEMPORAD
& SELINGER, P.C.
STEPHEN LOWEY
DAVID C. HARRISON
747 Third Avenue
New York, NY 10017
Telephone: 212/759-1504
Attorneys for Plaintiff Joyce
Weiss
LAW OFFICE OF KLARI NEUWELT
KLARI NEUWELT
950 Third Avenue, 8th Floor
New York, NY 10022
Telephone: 212/593-8800
TENZER, GREENBLATT, FALLON
& KAPLAN
WILLIAM KLEIN, II
405 Lexington Avenue
New York, NY 10174
Telephone: 212/573-4300
Attorneys for Plaintiffs
Melvin A. Kilmnick and Michael
Scott Kilmnick
BERNSTEIN LIEBHARD & LIFSHITZ
MEL E. LIFSHITZ
274 Madison Avenue
New York, NY 10016
Telephone: 212/779-1414
Attorneys for Plaintiff Bryant
Keith Lafferty
POMERANTZ HAUDEK BLOCK &
GROSSMAN
STANELY M. GROSSMAN
100 Park Avenue, 26th Floor
New York, NY 10017-5516
Telephone: 212/661-1100
JAROSLAWICZ & JAROS
DAVID JAROSLAWICZ
150 William Street
19th Floor
New York, NY 10038
Telephone: 212/227-2780
Attorneys for Plaintiff Thomas
Chadronet
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BERGER & MONTAGUE, P.C.
SHERRIE R. SAVETT
STEPHEN D. RAMOS
1622 Locust Street
Philadelphia, PA 19103
Telephone: 215/875-3000
Attorneys for Plaintiffs
Michael Thornton and Ginger
Rubey-Thornton
RABIN & GARLAND
MARVIN L. FRANK
275 Madison Avenue
New York, NY 10016
Telephone: 212/682-1818
LAW OFFICES OF KENNETH A.
ELAN
KENNETH A. ELAN
291 Broadway, Suite 1501
New York, NY 10007
Telephone: 212/619-0261
Attorneys for Plaintiff Kumar
Patel
KAPLAN, KILSHEIMER & FOX
ROBERT N. KAPLAN
FREDERIC S. FOX
685 Third Avenue, 26th Floor
New York, NY 10017
Telephone: 212/687-1980
Attorneys for Plaintiff Bashir
Ahmed
LAW OFFICES OF ROBERT C.
SCHUBERT
ROBERT C. SCHUBERT
MARION S. ROBERTSON
JUDEN JUSTIN REED
One Embarcadero Center
Suite 370
San Francisco, CA 94111
Telephone: 415/788-4220
SHAPIRO, GRACE & HABER
EDWARD F. HABER
THOMAS G. SHAPIRO
75 State Street
Boston, MA 02109
Telephone: 617/439-3939
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ALFRED G. YATES, JR. AND
ASSOCIATES
ALFRED G. YATES, JR.
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Telephone: 412/391-5164
Attorneys for Plaintiff Robert
S. Muldowney, derivatively on
behalf of IDB Communications
Group, Inc.
ROSENTHAL, MONHAIT AND
GROSS, P.A.
NORMAN MONHAIT
First Federal Plaza
P. O. Box 1070
Wilmington, DE 19899
Telephone: 302/656-4433
ZLOTNICK & THOMAS
DAVID B. ZLONTNICK
1039 North Sixth Avenue
Tucson, AZ 85705
Telephone: 602/798-3255
ROBINSON BROG LEINWAND REICH
GENOVEST & GLUCK, P.C.
RICHARD W. COHEN
1345 Avenue of the Americas
New York, NY 10105
Telephone: 212/586-4050
Attorneys for Plaintiff George
G. Steele
GIRARDI & KEESE
THOMAS V. GIRARDI
JAMES B. KROPFF
1126 Wilshire Boulevard
Los Angeles, CA 90017
Telephone: 213/977-0211
ENGSTROM, LIPSCOMB & LACK
WALTER J. LACK
A Professional Corporation
3250 Wilshire Boulevard
Suite 2100
Los Angeles, CA 90010
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LAW OFFICES OF CURTIS V.
TRINKO
CURTIS V. TRINKO
310 Madison Avenue
14th Floor
New York, NY 10017
Telephone: 212/490-9550
Attorneys for Plaintiff
Michael S. Hassani
O'MELVENY & MYERS
WILLIAM W. VAUGHN
SETH ARONSON
MARY CATHERINE WIRTH
______________________________
SETH ARONSON
400 South Hope Street
Suite 1050
Los Angeles, CA 90071-2899
Telephone: 213/669-6000
Attorneys for Defendants IDB,
Jeffrey P. Sudikoff, Edward R.
Cheramy, Joseph M. Cohen,
James E. Kolsrud, Peter F.
Hartz, Franklin E. Fried,
William L. Snelling, David W.
Anderson, and Rudy Wann
BRYAN CAVE
THOMAS J. MCDERMOTT, JR.
______________________________
THOMAS J. MCDERMOTT JR.
777 S. Figueroa Street
Suite 2700
Los Angeles, CA 90017
Telephone: 213/243-4300
Attorneys for LDDS
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ORRICK, HERRINGTON &
SUTCLIFFE
TODD E. GORDINIER
PAYNE L. TEMPLETON
______________________________
TODD E. GORDINIER
777 S. Figueroa Street
Suite 3200
Los Angeles, CA 90017
Telephone: 213/629-2020
Attorneys for Hambrecht &
Quist, Inc., Smith Barney
Shearson, Inc., and Donaldson,
Lufkin & Jenrette, Merrill
Lynch, Pierce, Fenner & Smith
and Sutro and Co.
LOEB & LOEB
ROBERT A. MEYER
____________________________
ROBERT A. MEYER
1000 Wilshire Blvd.,
18th Floor
Los Angeles, CA 90017
Telephone: 213/688-3400
Attorneys for Deloitte &
Touche
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BROWN, PARKER & LEAHY
DALLAS PARKER
WILLIAM HELLER
____________________________
DALLAS PARKER
1200 Smith St., Suite 3600
Houston, TX 77002
TEL (713) 951-5800
Attorneys for Defendants
Telecolumbus U.S.A., Inc.,
Ernst Thompke, and John S.
Reiland
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