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Of Counsel:
PRICE OKAMOTO HIMENO & LUM
WARREN PRICE, III 1212
KENNETH T. OKAMOTO 2068
ROBERT A. MARKS 2163
728 Ocean View Center
707 Richards Street
Honolulu, HI 96813
Telephone: 808/538-1113
Attorneys for Plaintiffs
[Additional counsel appear on signature page.]
IN THE CIRCUIT COURT OF THE SECOND CIRCUIT
STATE OF HAWAII
ARCHIE D. SODEN, On Behalf of Himself Civil No. 00-1-0145(1)
and All Others Similarly Situated, (CONSOLIDATED CASES)
Plaintiffs, CLASS ACTION
vs. STIPULATION OF SETTLEMENT
CASTLE & COOKE, INC., et al.,
Defendants.
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This Stipulation of Settlement dated as of June 28, 2000 (the
"Stipulation"), is made and entered into by and among the following Settling
Parties (as defined further in Section IV hereof) to the Litigation: (i) the
Representative Plaintiffs (on behalf of themselves and each of the Settlement
Class Members), by and through their counsel of record in the Litigation; and
(ii) the Defendants, by and through their counsel of record in the Litigation.
The Stipulation is intended by the Settling Parties to fully, finally and
forever resolve, discharge and settle the Released Claims (as defined in Section
IV, PARA 1.9), upon and subject to the terms and conditions hereof.
I. THE LITIGATION
The following eight different lawsuits (individually the "Action(s)" and
collectively the "Litigation") were filed following the announcement of the
proposal by Flexi-Van Leasing, Inc. ("Flexi-Van") and/or affiliates to purchase
the outstanding shares that they do not currently own of Castle & Cooke, Inc.
("Castle & Cooke" or the "Company"):
Each action was brought on behalf of a purported class of the Company's
stockholders and was filed in the Circuit Court of the Second Circuit, State of
Hawaii (the "Court") or in the Superior Court for the State of California,
County of Los Angeles. The Actions filed in Hawaii have been consolidated under
the lead case, ARCHIE D. SODEN V. CASTLE & COOKE, INC., ET AL., Civil No.
00-1-0145(1), and also include CRANDON CAPITAL PARTNERS V. CASTLE & COOKE, INC.,
ET AL., Civil No. 00-1-0146(2); and RUTH WHITE V. CASTLE & COOKE, INC., ET AL.,
Civil No. 00-1-0208(3) (collectively, the "Hawaii Actions"). The Actions filed
in California have been consolidated under the lead case, FURTHERFIELD PARTNERS,
L.P. V. DAVID H. MURDOCK, ET AL., Case No. BC227387, and also include CHARLES
MILLER V. DAVID H. MURDOCK, ET AL., Case No. BC227390; GREAT NECK CAPITAL
PARTNERS V. CASTLE & COOKE, INC., ET AL., Case No. BC227403; JOSHUA
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KAPLAN V. CASTLE & COOKE, INC., ET AL., Case No. BC227470; and JERRY KRIM V.
CASTLE & COOKE, INC., ET AL., Case No. BC227484 (collectively, the "California
Actions").
II. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Litigation have merit. However, counsel for the Representative Plaintiffs
recognize and acknowledge the expense and length of continued proceedings
necessary to prosecute the Litigation against 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 a
complex action such as this Litigation, as well as 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
claims asserted in the Litigation. Counsel for the Representative Plaintiffs
believe that the settlement set forth in the Stipulation confers substantial
benefits upon the Settlement Class. 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 and the
Settlement Class.
III. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
The Defendants have denied and continue to deny each and all of the
claims and contentions alleged by the Representative Plaintiffs in the
Litigation. The Defendants expressly have denied and continue to deny all
charges of wrongdoing or liability against them as alleged in the Litigation.
The Defendants also have denied and continue to deny, INTER ALIA, the
allegations that the Representative Plaintiffs or the Settlement Class have
suffered damage or that the Representative Plaintiffs or the Settlement Class
were harmed by the conduct alleged in the Litigation.
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Nonetheless, the Defendants have concluded that 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 the Defendants and to the Defendants' business.
The Defendants also have taken into account the uncertainty and risks inherent
in any litigation, especially in complex cases like this 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.
IV. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
Representative Plaintiffs (for themselves and the Settlement Class Members) and
the Defendants, 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 with prejudice, as to all Settling 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 "Defendants" means any person or entity named as a
defendant in the Litigation, including the Company, Flexi-Van, David H. Murdock,
Wallace S. Miyahira, Patrick J. Birmingham, Lynne Scott Safrit, Lodwrick M.
Cook, Edward J. Hogan, Edward M. Carson, Dell Trailor and William D. Dallas.
Mr. Trailor is deceased and neither he nor his estate had any part in any
conduct referred to in the Actions, and it is acknowledged that he was named
through inadvertence. Mr. Dallas, who was incorrectly sued as William D. Davis,
and Mr.
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Trailor are treated as Defendants solely for purposes of the Stipulation, and
without prejudice to their right or that of their representatives to assert that
no complaint has properly named them. The Stipulation is also not intended to
waive any Defendant's right to contest personal jurisdiction with respect to any
of the Actions, or with respect to any litigation that may be filed against them
in the future.
1.2 "Effective Date" means the first date by which all of the
events and conditions specified in PARA 6.1 of the Stipulation have been met and
have occurred.
1.3 "Final" means: (i) the date of final affirmance on an
appeal of the Judgment, the expiration of the time for a petition for or a
denial of a writ of certiorari or mandate to review the Judgment and, if
certiorari is 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 or
mandate to review the Judgment; or (iii) if no appeal is filed, the expiration
date of the time for the filing or noticing of any appeal from the Court's
Judgment approving the Stipulation substantially in the form of Exhibit B
attached hereto.
1.4 "Judgment" means the judgment to be rendered by the Court,
substantially in the form attached hereto as Exhibit B.
1.5 "Person" means an individual, corporation, partnership,
limited partnership, association, joint stock company, estate, legal
representative, trust, unincorporated association, government or any political
subdivision or agency thereof, and any business or legal entity and their
spouses, heirs, predecessors, successors, representatives, or assignees.
1.6 "Representative Plaintiffs' Counsel" means all counsel who
have appeared on behalf of the Representative Plaintiffs in the Litigation.
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1.7 "Plaintiffs' Settlement Counsel" means Milberg Weiss
Bershad Hynes & Lerach LLP, William S. Lerach, Keith F. Park, 600 W. Broadway,
Suite 1800, San Diego, California, 92101-5050, telephone: 619/231-1058; Milberg
Weiss Bershad Hynes & Lerach LLP, Jeff S. Westerman, 355 South Grand Avenue,
Suite 4170, Los Angeles, California, 90071, telephone: 213/617-9007; and
Wechsler Harwood Halebian & Feffer LLP, Robert I. Harwood, 488 Madison Avenue,
8th Floor, New York, New York 10022, telephone: 212/935-7400.
1.8 "Related Parties" means any Defendant's past or present
directors, officers, employees, general or limited partners or partnerships,
members, principals, underwriters, controlling shareholders, attorneys,
accountants or auditors, insurers, financial advisors, banks or investment
bankers, consultants or appraisers (and any consultants or appraisers retained
by any of them), legal representatives, predecessors, successors, parents,
subsidiaries, related or affiliated entities (and the directors and officers of
such parents, subsidiaries or related or affiliated entities), divisions, joint
ventures, assigns, spouses, heirs, executors, administrators, any entity in
which any Defendant has a controlling interest, any member of any individual
Defendant's immediate family, or any trust of which any Defendant is the settlor
or which is for the benefit of any individual Defendant and/or any member(s) of
any Defendant's family.
1.9 "Released Claims" shall collectively mean all claims,
whether known or unknown (including any Unknown Claims), that have been, or
could be, asserted against the Defendants, or any Related Parties, whether under
state or federal law, and whether arising directly, derivatively, individually,
representatively or in any other capacity, related to or in connection with the
Transactions. Notwithstanding any provision of the Stipulation, Released
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Claims does not include and the Judgment shall not bar the statutory appraisal
rights permitted under applicable Hawaii law or any claims to enforce the terms
of the Stipulation.
1.10 "Released Persons" means each and all of the Defendants and
their Related Parties.
1.11 "Representative Plaintiffs" means all named plaintiffs in
the Litigation, including the named plaintiffs identified above and any
plaintiff added after the filing of the original complaints in the Litigation.
1.12 "Settlement Class" means Representative Plaintiffs and all
other Persons who owned the Company's common stock on March 29, 2000 or
thereafter (the "Class Period"), and their successors in interest and
transferees, direct or indirect, immediate or remote (excluding the Defendants
and any members of their family or persons or entities under their control and
those Persons who timely and validly request exclusion from the Settlement
Class), including all holders, purchasers and sellers of the Company's common
stock from March 29, 2000 through and including the closing of the Merger.
1.13 "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 PARA 1.12 of the Stipulation.
1.14 "Settling Parties" means, collectively, each of the
Defendants and the Representative Plaintiffs on behalf of themselves and the
Members of the Settlement Class.
1.15 The "Transactions" collectively means the subject matter of
the Litigation, including any acts, omissions, facts, matters, transactions,
occurrences, conduct, statements or representations relating to or arising out
of the subject matter of the Litigation or any allegations or assertions in any
papers filed in any of the Actions; the proposal by Flexi-Van and/or affiliates
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(the "Buyer) to purchase the outstanding common stock that they do not currently
own of the Company, including the proposal made by Flexi-Van to the Company's
Board of Directors on March 29, 2000 and any subsequent amendments or
modifications thereto (the "Proposal"); the negotiation and consideration of the
Proposal, including such activities performed by the Company's Board of
Directors and the Special Committee of non-management directors appointed
thereby (the "Special Committee"); the Agreement and Plan of Merger by and among
Flexi-Van, the Company and others (including any amendments thereto, the "Merger
Agreement") pursuant to which the Buyer commenced on May 31, 2000 a tender offer
(including any amendments thereto, the "Tender Offer") at a price of $18.50 per
share in cash for any and all shares of the Company's stock that the Buyer,
either directly or indirectly, did not already own, to be followed as soon as
practicable by a second-step merger (including any amendments thereto, the
"Merger") for the same consideration; the negotiation, consideration, execution,
implementation and consummation of the Merger Agreement, Tender Offer, or
Merger, or any other agreements or disclosures related thereto; and any other
public statements, announcements or activities and/or the fiduciary or
disclosure obligations of any of the Defendants or other Released Persons with
respect to any of the foregoing, including any valuation of the Company or its
assets.
1.16 "Unknown Claims" means any Released Claims which 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 which, if known by him, her or it, might have affected his, her or its
decision not to object to this settlement. With respect to any and all Released
Claims, the Settling Parties stipulate and agree that, upon the Effective Date,
the Representative Plaintiffs shall expressly and each of the Settlement Class
Members shall be
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deemed to have, and by operation of the Judgment shall have, waived and
relinquished, to the fullest extent permitted by law, the 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.
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 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 Section 1542 of the California Civil
Code. The Representative Plaintiffs and Settlement 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
Claims, but Representative Plaintiffs and each Settlement Class Member, 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
Claims, known or unknown, suspected or unsuspected, contingent or
non-contingent, whether or not concealed or hidden, which 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 which 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. The parties acknowledge that the foregoing waiver was
bargained for and is a key element of the settlement of which this release is a
part.
2. THE SETTLEMENT
2.1 The Hawaii and California Actions were filed following the
announcement of an initial proposal by Flexi-Van, directly or indirectly, to
purchase all shares of
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Company common stock not already owned by Flexi-Van or its affiliates at a price
of $17.00 per share.
2.2 On May 4, 2000, counsel for certain of the Representative
Plaintiffs along with their financial consultants, on behalf of the Settlement
Class, met with the attorneys and financial advisor (Bear Stearns & Co. Inc.) of
the Company's Special Committee, and made a presentation in support of their
view that the initial Tender Offer price of $17.00 per share proposed by
Flexi-Van was inadequate. Subsequent to this presentation, Flexi-Van and the
Special Committee negotiated an increase to $18.50 in the price to be offered by
the Buyer for the outstanding shares of the Company (including the Tender Offer
and Merger, the "Offer").
2.3 Following the commencement of the Tender Offer at $18.50
per share, negotiations between designated settlement counsel for certain of the
Representative Plaintiffs and representatives of the Defendants resulted in an
additional increase in the Offer price, to $19.25 per share.
2.4 The increases in the Offer price, initially from $17.00 per
share to $18.50 per share, and subsequently to $19.25 per share, constitute a
substantial benefit to all Settlement Class Members. All Defendants, including
Castle & Cooke and the Special Committee, acknowledge that counsel for the
Representative Plaintiffs played an important contributory role and were a
significant factor in the process which ultimately resulted in the agreement to
increase the Offer from $17.00 to $18.50 per share and, then, to $19.25 per
share, which is a cumulative benefit of approximately $28 million to the
Settlement Class.
2.5 Flexi-Van shall cause the Tender Offer price to be
increased to $19.25 per share, and Flexi-Van and Castle & Cooke shall amend the
Tender Offer and Merger Agreement, and any related documents, to require a
Merger price of $19.25 per share. Representative
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Plaintiffs and Representative Plaintiffs' Counsel acknowledge that Flexi-Van
will also cause an increase in the percentage of shares which must be tendered
to satisfy the "Minimum Condition" described in the Tender Offer documents to
75% of the shares not owned by Flexi-Van and its affiliates.
2.6 Representative Plaintiffs' Counsel will be provided an
opportunity to review and comment upon any part of further filings with the
Securities and Exchange Commission that discusses the resolution of the
Litigation. Notwithstanding the foregoing, the final decision regarding the
timing, form and content of any such filings may be made by the filing person in
its sole discretion.
2.7 Defendants have agreed, subject to the terms of PARA 5
hereof, to pay the sum of $5.0 million to Representative Plaintiffs' Counsel's
for their attorneys' fees, costs and expenses.
2.8 The Settling Parties agree, for purposes of this settlement
only, to the certification of the Settlement Class.
3. NOTICE ORDER AND SETTLEMENT HEARING
3.1 As soon as reasonably practicable after execution of the
Stipulation, the Settling Parties' counsel shall submit the Stipulation together
with its Exhibits to the Court and shall apply for entry of an order (the
"Notice Order"), substantially in the form of Exhibit A hereto, requesting,
INTER ALIA, certification of the Settlement Class, preliminary approval of the
settlement set forth in the Stipulation, and approval for the mailing and
publication of a settlement notice (the "Notice"), substantially in the form of
Exhibits A-1 and A-2 hereto, which shall include the general terms of the
settlement set forth in the Stipulation and the date of the Settlement Hearing
as defined below.
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3.2 Representative Plaintiffs shall assume the responsibility
of providing Notice to the Settlement Class in accordance with the Notice Order.
The Company will cause a shareholder list, in computer readable form if
reasonably available, to be provided to Plaintiffs' Settlement Counsel's
designee who will provide notice. Prior to the Settlement Hearing, Plaintiffs'
Settlement Counsel shall file with the Court an appropriate affidavit or
declaration with respect to preparing and mailing of the Notice to the
Settlement Class. Representative Plaintiffs and Defendants shall each bear
one-half of the out-of-pocket costs incurred in connection with giving notice to
the Settlement Class.
3.3 The Settling Parties' counsel shall 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.
3.4 The Notice shall also specifically include provisions that
class members who so desire may exercise the right to exclude themselves from
the Settlement Class, but only if they comply with the requirements for so doing
as set forth in the Notice, and shall provide that any objections to (i) the
settlement proposed by the Stipulation and (ii) entry of the Judgment approving
the settlement; 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, Persons making objections shall file and serve written
objections (which shall set forth each objection and the basis therefor) and
copies of any papers in support of their position as set forth in the Notice.
The Notice shall further provide that any Settlement Class Member who does not
properly 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.
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3.5 The Notice shall also state that pending final
determination of whether the settlement contained in the Stipulation should be
approved, neither the Representative Plaintiffs, nor any Settlement Class
Member, either directly, derivatively, individually, representatively, or in any
other capacity shall commence or prosecute any action or proceeding in any court
or tribunal asserting any of the Released Claims against the Released Persons.
4. RELEASES
4.1 Upon the Effective Date, as defined in PARA 1.2 hereof,
each of the Representative Plaintiffs shall have, and each of the Settlement
Class Members shall be deemed to have, and by operation of the Judgment shall
have, fully, finally, and forever released, relinquished and discharged all
Released Claims against the Released Persons.
4.2 Upon the Effective Date, as defined in PARA 1.2 hereof,
each of the Released Persons 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 Representative Plaintiffs, Settlement Class
Members and any of their present or former officers, directors, employees,
agents, attorneys, accountants, financial advisors, commercial bank lenders,
investment bankers, any consultant or appraiser retained by any of them,
insurers, representatives, affiliates, associates, parents, subsidiaries,
general and limited partners and partnerships, heirs, executors,
administrators, successors and assigns, from all claims, including Unknown
Claims, based upon or arising out of the institution, prosecution, assertion,
settlement or resolution of the Litigation or the Released Claims. This
release shall include any such claims that any of the Released Persons does
not know or suspect to exist in his, her or its favor at the time of giving
the release. With respect to such release, the Settling Parties stipulate
and agree that, upon the Effective Date, the Released Persons shall be deemed
to have, and by operation of the Judgment shall
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have, waived and relinquished, to the fullest extent permitted by law, the
provisions, rights, and benefits of Section 1542 of the California Civil Code
and the 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 Section 1542 of the California Civil Code. The form of this
release is intended to be the same as the release described in PARA 1.16 above.
However, this release shall not affect any claims to enforce the terms of the
Stipulation or of any orders or agreements for the protection of confidential
information obtained or produced in the course of the Litigation.
5. PLAINTIFFS' COUNSEL'S ATTORNEYS' FEES AND EXPENSES
5.1 Subject to final approval by the Court of the terms of the
Stipulation and entry of the Judgment, and subject to the other terms and
conditions set forth in the Stipulation, Defendants agree to pay the sum of
$5,000,000 to Representative Plaintiffs' Counsel for their attorneys' fees,
costs and expenses (the "Fees and Expenses").
5.2 Subject to and within twenty (20) calendar days of the
Court's entering the Judgment, or a judgment substantially in the form of
Exhibit B attached hereto, Defendants shall pay the amount of the Fees and
Expenses into an escrow fund (the "Escrow Fund") to be administered according to
the terms of the Stipulation by Milberg Weiss Bershad Hynes & Lerach LLP
("Escrow Holder"). No disbursements shall be made from the Escrow Fund except
upon the following terms and conditions: (a) In the event that and within ten
(10) calendar days after the Effective Date occurs, the full amount in the
Escrow Fund, including any accrued interest, shall be paid to Plaintiffs'
Settlement Counsel, which shall thereafter allocate such payment among
Representative Plaintiffs' Counsel in a manner which they believe fairly
reflects each such counsel's contribution to the prosecution and resolution of
the Litigation. (b) In the event that and within ten (10) calendar days after
the Stipulation is canceled, terminated or
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withdrawn pursuant to PARAS 6.2 and 6.3, the full amount in the Escrow Fund,
including any accrued interest, shall be paid to the Defendants. The Escrow
Holder shall provide the Defendants' counsel's designated representative notice
within 24 hours of any withdrawal that is made from the Escrow Fund prior to the
Effective Date. The Escrow Fund shall be maintained by the Escrow Holder in a
separate bank account solely for the purpose of implementing the terms of the
settlement. Prior to any disbursements pursuant to subparagraphs (a) and (b)
above, the amount in the Escrow Fund may be invested in short-term treasury
securities or bank certificates of deposit, and the Escrow Holder shall provide
regular monthly account statements to the designated representative of
Defendants' counsel.
5.3 Except as provided in PARA 3.2 and 5.1 of the
Stipulation, Defendants shall bear no fees, expenses, costs or damages
incurred by any of the Representative Plaintiffs, Settlement Class Members,
Representative Plaintiffs' Counsel or Plaintiffs' Settlement Counsel, or by
any attorney, expert, advisor, agent or representative of any of the
foregoing.
6. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR
TERMINATION
6.1 The Effective Date of the Settlement shall be conditioned
on the occurrence of all of the following events:
(a) The Court has entered the Notice Order, as required by
PARA 3 hereof;
(b) The Notice has been given pursuant to the Notice Order;
(c) The Court has entered the Judgment, or a judgment
substantially in the form of Exhibit B attached hereto;
(d) The amount of the Fees and Expenses have been paid into
escrow in accordance with PARA 5 hereof;
(e) The Judgment has become Final, as defined in PARA 1.3
hereof;
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(f) All of the California Actions are dismissed with prejudice;
and
(g) Defendants have not exercised their right to withdraw from
the settlement pursuant to PARA 6.3 hereof.
6.2 If (a) any of the terms of the Stipulation, including
any later amendment, is disapproved by the Court; (b) the Court fails to
enter the Judgment or such Judgment is reversed, vacated or substantially
modified upon appeal; or (c) any of the other conditions specified in PARA
6.1 are not met, then the Stipulation shall be canceled and terminated
subject to PARA 6.5 and any class certification herein shall become void and
have no further force and effect, unless Plaintiffs' Counsel and counsel for
Defendants mutually agree in writing to proceed with the Stipulation.
6.3 Defendants have the option to withdraw from the settlement
set forth in the Stipulation if the Tender Offer or Merger is not consummated
after being amended as provided in PARA 2.5 of the Stipulation. Simultaneously
herewith, Representative Plaintiffs' Counsel and the Defendants' counsel are
executing a "Supplemental Agreement" setting forth certain additional conditions
under which this Stipulation may be withdrawn by the Defendants if Settlement
Class Members owning in excess of a specified percentage of the Company's common
stock exclude themselves from the Settlement Class. In the event of any
withdrawal from the Stipulation pursuant to this paragraph, including any
withdrawal pursuant to the Supplemental Agreement, the Stipulation shall be
canceled and terminated subject to PARA 6.5 and any class certification herein
shall become void and have no further force and effect.
6.4 Plaintiffs' Settlement Counsel, either directly or through
the claims administrator retained by Plaintiffs' Settlement Counsel to
effectuate notice to the Settlement Class and process Requests for
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Exclusion, shall, immediately upon the receipt of any Request for Exclusion and
at least seven calendar days prior to the Settlement Hearing, send by facsimile
a copy of the Request for Exclusion to Defendants' counsel. Plaintiffs'
Settlement Counsel may attempt to cause retraction of any Requests for Exclusion
by members of the Class. If Defendants have exercised the option to withdraw
from the settlement and if Plaintiffs' Settlement Counsel succeed in causing the
retraction of sufficient Requests for Exclusion in accordance with PARA 6.3(a)
above, then Defendants' notice of withdrawal from the settlement pursuant to
PARA 6.3(a) automatically shall be deemed a nullity. To retract a prior Request
for Exclusion, a Class member must provide to Plaintiffs' Settlement Counsel, at
least five court days prior to the Settlement Hearing, or any adjournment
thereof, a written notice stating his, her or its desire to retract his, her or
its Request for Exclusion from the Class.
6.5 In the event that the Stipulation is canceled, terminated
or withdrawn pursuant to PARAS 6.2 or 6.3, the Settling Parties shall be
restored to their respective positions in the Litigation as of June 19, 2000.
In such event, the terms and provisions of the Stipulation shall have no further
force and effect with respect to the Settling Parties and shall not be used in
the 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.
7. MISCELLANEOUS PROVISIONS
7.1 The Settling Parties: (a) acknowledge that it is their
intent to consummate this agreement; and (b) agree to cooperate to the extent
reasonably necessary to effectuate and implement all terms and conditions of the
Stipulation and to exercise their best efforts to accomplish the foregoing terms
and conditions of the Stipulation.
7.2 The parties intend this settlement to be a final and
complete resolution of all disputes between them with respect to the Litigation.
The settlement compromises claims
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which are contested and shall not be deemed an admission by any Settling Party
as to the merits of any claim or defense. The Settling Parties agree that the
settlement was negotiated in good faith and reflects a settlement that was
reached voluntarily after consultation with competent legal counsel. The
Judgment shall contain a finding that at all times during the course of the
Litigation all parties and their counsel complied with Rule 11 of the Hawaii
Rules of Civil Procedure.
7.3 Neither the Stipulation nor the settlement, nor any act
performed or document executed pursuant to or in furtherance of the Stipulation
or the settlement: (a) is or may be deemed to be or may be used as an admission
of, or evidence of, the validity or lack thereof of any Released Claim, or of
any wrongdoing or liability of the Defendants; or (b) is or may be deemed to be
or may be used as an admission of, or evidence of, any fault or omission of any
of the Defendants in any civil, criminal or administrative proceeding in any
court, administrative agency or other tribunal, other than in such proceedings
as may be necessary to consummate or enforce this Stipulation or the settlement
provided herein, or the Judgment, except that Defendants may file the
Stipulation and/or the Judgment in any action that may be brought against them
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.
7.4 All of the Exhibits to the Stipulation are material and
integral parts hereof and are fully incorporated herein by this reference.
7.5 The Stipulation may be amended or modified only by a
written instrument signed by or on behalf of all Settling Parties or their
respective successors-in-interest.
18
<PAGE>
7.6 The Stipulation and the Exhibits attached hereto constitute
the entire agreement among the parties hereto and no representations, warranties
or inducements have been made to any party concerning the Stipulation or its
Exhibits other than the representations, warranties and covenants contained and
memorialized in such documents. Except as otherwise provided herein, each party
shall bear its own fees, expenses and costs. All protective orders entered in
the Litigation, and any agreements relating to the confidentiality of documents
and information to which the Settling Parties, their counsel, or any consultants
or appraisers retained by any of them are parties, remain in effect by their
terms, notwithstanding this Settlement Agreement or the dismissal of the
Actions.
7.7 Plaintiffs' Counsel, on behalf of the Settlement Class, are
expressly authorized by the Representative Plaintiffs to take all appropriate
actions required or permitted to be taken by the Settlement Class pursuant to
the Stipulation to effectuate its terms and also are expressly authorized to
enter into any modifications or amendments to the Stipulation on behalf of the
Settlement Class which they deem appropriate.
7.8 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 full authority to do so.
7.9 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.
7.10 The Stipulation shall be binding upon, and inure to the
benefit of, the Settling Parties and their representatives, agents, executors,
heirs, successors and assigns.
19
<PAGE>
7.11 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. It is understood,
however, that Flexi-Van and Messrs. Carson, Cook, and Dallas submit to the
Court's jurisdiction solely for purpose of implementing and enforcing such
settlement, and fully reserve the right to contest this Court's jurisdiction
over them with respect to any other proceedings.
7.12 Except as it might prejudice the right of Flexi-Van and
Messrs. Carson, Cook and Dallas to contest personal jurisdiction in the Hawaii
Actions, 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 Hawaii, 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 Hawaii without giving effect to
that State's choice of law principles.
7.13 It is expressly acknowledged that the Tender Offer and
Merger may be consummated prior to the Court approving the Stipulation or to the
Judgment becoming Final.
20
<PAGE>
7.14 Representative Plaintiffs' Counsel agree to dismiss the
California Actions with prejudice, and will apply to the California court to
obtain such dismissal within ten (10) calendar days after the Judgment described
in PARA 1.3 above becomes Final.
IN WITNESS WHEREOF, the parties hereto have caused the Stipulation to be
executed, by their duly authorized attorneys, dated as of June 28, 2000.
DATED: June 28, 2000 WILLIAM S. LERACH
JEFFREY WESTERMAN
KEITH F. PARK
DARREN J. ROBBINS
RANDALL J. BARON
RANDALL H. STEINMEYER
STEPHEN P. POLAPINK
MILBERG WEISS BERSHAD HYNES & LERACH LLP
By: /s/ William S. Lerach
----------------------------------
William S. Lerach
600 West Broadway, Suite 1800
San Diego, California 92101
Telephone: (619) 231-1058
DATED: June 28, 2000 JEFF S. WESTERMAN
MILBERG WEISS BERSHAD HYNES & LERACH LLP
By: /s/ Jeff S. Westerman
----------------------------------
Jeff S. Westerman
355 South Grand Avenue
Suite 4170
Los Angeles, CA 90071
Telephone: 213/617-9007
Designated Representative of the
Representative Plaintiffs' Counsel in the
Hawaii Actions
21
<PAGE>
DATED: June 28, 2000 LIONEL Z. GLANCY
MICHAEL GOLDBERG
LAW OFFICES OF LIONEL Z. GLANCY
By: /s/ Lionel Z. Glancy
----------------------------------
Lionel Z. Glancy
1801 Avenue of the Stars, Suite 311
Los Angeles, California 90067
Telephone: (310) 201-9150
Attorneys for Plaintiff Charles Miller,
and Liaison Counsel and Member of the
Executive Committee for Plaintiffs Charles
Miller, Furtherfield Partners, L.P., Great
Neck Capital Partners, Joshua Kaplan and
Jerry Krim
DATED: June 28, 2000 WARREN PRICE, III
KENNETH T. OKAMOTO
ROBERT A. MARKS
PRICE OKAMOTO HIMENO & LUM
By: /s/ Robert A. Marks
----------------------------------
Robert A. Marks
707 Richards Street, Suite 728
Honolulu, Hawaii 96813
Telephone: (808) 538-1113
Attorneys for Plaintiffs Archie D. Soden
and David Jaroslawicz
22
<PAGE>
DATED: June 28, 2000 MARK S. DAVIS
THOMAS R. GRANDE
DAVIS LEVIN LIVINGSTON & GRANDE
By: /s/ Thomas R. Grande
----------------------------------
Thomas R. Grande
10 Marin Street
Honolulu, Hawaii 96817-5112
Telephone: (808) 524-7500
Attorneys for Plaintiff Crandon Capital
Partners
DATED: June 28, 2000 WILLIAM C. McCORRISTON
McCORRISTON MIHO MILLER MUKAI
By: /s/ William C. McCorriston
----------------------------------
William C. McCorriston
500 Ala Moana Boulevard, 4th Floor
P.O. Box 2800
Honolulu, Hawaii 96803-2800
Telephone: (808) 529-7300
Attorneys for Plaintiff Ruth White
DATED: June 28, 2000 CHRISTOPHER G. CALDWELL
LISA GORDON
CALDWELL, LESLIE, NEWCOME & PETTIT
By: /s/ Christopher G. Caldwell
----------------------------------
Christopher G. Caldwell
1000 Wilshire Boulevard, Suite 600
Los Angeles, California 90017-5624
Telephone: (213) 629-9022
Attorneys for Plaintiff Furtherfield
Partners, L.P. and Member of the Executive
Committee for Plaintiffs Charles Miller,
Furtherfield Partners, L.P/, Great Neck
Capital Partners, Joshua Kaplan and Jerry
Krim
23
<PAGE>
DATED: June 28, 2000 BRIAN J. ROBBINS
CAULEY & GELLER, LLP
By: /s/ Brian J. Robbins
----------------------------------
Brian J. Robbins
225 Broadway, Suite 1900
San Diego, California 92101-5028
Telephone: (619) 702-7350
Attorneys for Plaintiff Great Neck Capital
Partners
DATED: June 28, 2000 FRANCIS M. GREGOREK
FRANCIS A. BOTTINI, JR.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By: /s/ Francis M. Gregorek
----------------------------------
Francis M. Gregorek
750 B Street, Suite 2770
San Diego, California 92101
Telephone: (619) 239-4599
Attorneys for Plaintiff Joshua Kaplan and
Member of the Executive Committee for
Plaintiffs Charles Miller, Furtherfield
Partners, L.P., Great Neck Capital
Partners, Joshua Kaplan and Jerry Krim
DATED: June 28, 2000 MICHAEL D. BRAUN
TIMOTHY J. BURKE
STULL, STULL & BRODY
By: /s/ Michael D. Braun
----------------------------------
Michael D. Braun
10940 Wilshire Boulevard, Suite 2300
Los Angeles, California 90024
Telephone: (310) 209-2468
Attorneys for Plaintiff Jerry Krim
24
<PAGE>
DATED: June 28, 2000 SETH ARONSON
MARC F. FEINSTEIN
O'MELVENY & MYERS LLP
By: /s/ Marc F. Feinstein
----------------------------------
Marc F. Feinstein
400 South Hope Street, 15th Floor
Los Angeles, California 90071-2899
Telephone: (213) 430-6000
DATED: June 28, 2000 JOHN R. LACY
BRUCE L. LAMON
GOODSILL ANDERSON QUINN & STIFEL
By: /s/ Bruce L. Lamon
----------------------------------
Bruce L. Lamon
1099 Alakea Street
Suite 1800, Alii Place
Honolulu, Hawaii 96813
Telephone: (808) 457-5600
Attorneys for Castle & Cooke, Inc.,
Patrick J. Birmingham and Wallace S.
Miyahira
DATED: June 28, 2000 DEAN J. KITCHENS
GIBSON, DUNN & CRUTCHER LLP
By: /s/ Dean J. Kitchens
----------------------------------
Dean J. Kitchens
333 South Grand Avenue
Los Angeles, California 90071-3197
Telephone: (213) 229-7000
25
<PAGE>
DATED: June 28, 2000 JAMES KAWASHIMA
JOHN T. KOMEIJI
WATANABE, ING & KAWASHIMA
By: /s/ John Komeiji
----------------------------------
John Komeiji
999 Bishop Street, 23rd Floor
Honolulu, Hawaii 96813
Telephone: (808) 544-8300
Attorneys for Edward M. Carson,
Lodwrick M. Cook, Edward J. Hogan
and William D. Dallas
DATED: June 28, 2000 DONALD A. DAUCHER
BELINDA K. OREM
PAUL HASTINGS JANOFSKY & WALKER LLP
By: /s/ Donald A. Daucher
----------------------------------
Donald A. Daucher
555 S. Flower Street, 23rd Floor
Los Angeles, California 90071
Telephone: (213) 683-6000
DATED: June 28, 2000 RICHARD R. CLIFTON
THEODORE D.C. YOUNG
CADES SCHUTTE FLEMING & WRIGHT
By: /s/ Richard R. Clifton
----------------------------------
Richard R. Clifton
1000 Bishop Street
Honolulu, Hawaii 96813-4216
Telephone (808) 521-9200
Attorneys for David H. Murdock, Lynne
Scott Safrit, Flexi-Van Leasing, Inc.
26
<PAGE>
IN THE CIRCUIT COURT OF THE SECOND CIRCUIT
STATE OF HAWAII
ARCHIE D. SODEN, On Behalf of Himself Civil No. 00-1-0145(1)
and All Others Similarly Situated, (CONSOLIDATED CASES)
Plaintiffs, CLASS ACTION
vs. ORDER PRELIMINARILY
APPROVING SETTLEMENT AND PROVIDING
CASTLE & COOKE, INC., et al., FOR NOTICE
Defendants.
EXHIBIT A
<PAGE>
WHEREAS, a consolidated class action is pending before the Court entitled
SODEN V. CASTLE & COOKE, INC., ET AL., Civil No. 00-1-0145(1);
WHEREAS, the parties having made application for an order approving the
settlement of this Litigation, in accordance with a Stipulation of Settlement
dated as of June 28, 2000 (the "Stipulation"), which, together with the Exhibits
annexed thereto, sets forth the terms and conditions for a proposed settlement
of the Litigation and for dismissal of the Litigation with prejudice upon the
terms and conditions set forth therein; and the Court having read and considered
the Stipulation and the Exhibits annexed thereto; and
WHEREAS, all defined terms contained herein shall have the same meanings
as set forth in the Stipulation.
NOW THEREFORE, IT IS HEREBY ORDERED:
1. The Court preliminarily certifies, for purposes of effectuating
this settlement only, a Settlement Class of Representative Plaintiffs and all
other Persons who owned the Company's common stock on March 29, 2000 or
thereafter (the "Class Period"), and their successors in interest and
transferees, direct or indirect, immediate or remote (excluding the Defendants
and any members of their family or persons or entities under their control and
those Persons who timely and validly request exclusion from the Settlement
Class), including all holders, purchasers and sellers of the Company's common
stock from March 29, 2000 through and including the closing of the Merger.
2. The Court does hereby preliminarily approve the Stipulation and
the settlement set forth therein, subject to further consideration at the
Settlement Hearing described below.
3. A hearing (the "Settlement Hearing") shall be held before this
Court on September 7, 2000, at 8:30 a.m., before the Honorable Artemio C.
Baxa, 2145 Main Street,
A-1
<PAGE>
Wailuku, Maui, Hawaii 96793, to determine whether the proposed settlement of the
Litigation on the terms and conditions provided for in the Stipulation is fair,
just, reasonable and adequate to the Settlement Class and should be approved by
the Court; and whether a Judgment as provided in PARA 1.4 of the Stipulation
should be entered herein. The Court may adjourn the Settlement Hearing without
further notice to Members of the Settlement Class.
4. The Court approves, as to form and content, the Notice of
Settlement of Class Action (the "Notice"), and Summary Notice for Publication
("Summary Notice") annexed as Exhibits A-1 and A-2 hereto and finds that the
mailing and distribution of the Notice and publishing of the Summary Notice
substantially in the manner and form set forth in this paragraph meet the
requirements of Hawaii law and due process, and is the best notice practicable
under the circumstances and shall constitute due and sufficient notice to all
Persons entitled thereto.
(a) Not later than July 17, 2000 (the "Notice Date"),
Representative Plaintiffs' Counsel shall cause a copy of the Notice
substantially in the form annexed as Exhibit A-1 to be mailed by first class
mail to all class members who can be identified with reasonable effort as
being members of the class;
(b) Not later than July 27, 2000, Representative Plaintiffs'
Counsel shall cause the Summary Notice to be published once in INVESTOR'S
BUSINESS DAILY; and
(c) At least seven days prior to the Settlement Hearing,
Representative Plaintiffs' Counsel shall serve on Defendants' counsel and file
with the Court proof, by affidavit or declaration, of such mailing and
publishing.
5. Nominees who held the common stock of Castle & Cooke, Inc. during
the Class Period for the beneficial ownership of another shall mail the Notice
to all such beneficial owners
A-2
<PAGE>
of such stock within 10 days after receipt thereof, or send a list of the names
and addresses of such beneficial owners to the Claims Administrator identified
in the Notice within 10 days of receipt thereof, in which event the Claims
Administrator shall promptly mail the Notice to such beneficial owners.
6. Any potential member of the Settlement Class may request to be
excluded from the Settlement Class. Such Request for Exclusion must be
postmarked on or before August 17, 2000, and otherwise comply with the
requirements set forth in the Notice. Plaintiffs' Counsel will serve all
Requests for Exclusion on Defendants' counsel immediately upon receipt of
such requests and at least seven calendar days prior to the Settlement
Hearing.
7. Any Member of the Settlement Class may enter an appearance in the
Litigation, at their own expense, individually or through counsel of their own
choice. If they do not enter an appearance, they will be represented by
Representative Plaintiffs' Counsel.
8. Unless and until the settlement is canceled and terminated
pursuant to PARAS 6.2 or 6.3 of the Stipulation, neither the Representative
Plaintiffs nor any Settlement Class Member, either directly, derivatively,
individually, representatively, or in any other capacity, shall commence or
prosecute against any of the Released Persons any action or proceeding in any
court or tribunal asserting any of the Released Claims.
9. Any Member of the Settlement Class may appear and show cause, if
he, she or it has any reason why the proposed settlement of the Litigation
should or should not be approved as fair, just, reasonable and adequate, or why
the Judgment should or should not be entered thereon provided, however, that no
Settlement Class Member shall be heard or entitled to contest the approval of
the terms and conditions of the proposed settlement, or, if approved, the
Judgment to be entered thereon approving the same unless that person has
delivered by hand or
A-3
<PAGE>
sent by first class mail written objections and copies of any papers and briefs,
such that they are received on or before August 17, 2000, by Milberg Weiss
Bershad Hynes & Lerach LLP, William S. Lerach, Keith F. Park, 600 West Broadway,
Suite 1800, San Diego, California 92101-5050; Milberg Weiss Bershad Hynes &
Lerach LLP, Jeff S. Westerman, 355 South Grand Avenue, Suite 4170, Los Angeles,
California, 90071; O'Melveny & Myers LLP, Seth Aronson, Marc F. Feinstein, 400
South Hope Street, Suite 1500, Los Angeles, California 90071-2899; Goodsill
Anderson Quinn & Stifel, John R. Lacy, Bruce L. Lamon, Suite 1800, Alii Place,
1099 Alakea Street, Honolulu, Hawaii, 96813; Gibson, Dunn & Crutcher LLP,
Dean J. Kitchens, 333 South Grand Avenue, Los Angeles, California 90071-3197;
Watanabe, Ing & Kawashima, James Kawashima, John T. Komeiji, First Hawaiian
Center, 999 Bishop Street, 23rd Floor, Honolulu, Hawaii 96813; Paul Hastings
Janofsky & Walker LLP, Donald A. Daucher, Belinda K. Orem, 555 South Flower
Street, 23rd Floor, Los Angeles, California 90071; Cades Schutte Fleming &
Wright, Richard R. Clifton, Theodore D.C. Young, 1000 Bishop Street, Honolulu,
Hawaii, 96813-4216, and filed said objections, papers and briefs with the Clerk
of the Court, 2145 Main Street, Wailuku, Maui, Hawaii 96793, on or before
August 21, 2000. Any Member of the Settlement Class who does not make his,
her or its objection in the manner provided shall be deemed to have waived such
objection and shall forever be foreclosed from making any objection to the
fairness or adequacy of the proposed settlement as incorporated in the
Stipulation unless otherwise ordered by the Court.
10. All papers including memoranda or briefs in support of the
settlement or attorneys' fees, costs or expenses shall be filed and served
September 1, 2000.
A-4
<PAGE>
11. Neither the Stipulation, nor any of its terms or provisions, nor
any of the negotiations or proceedings connected with it, shall be construed as
an admission or concession by Defendants of the truth of any of the allegations
in the Litigation, or of any liability, fault, or wrongdoing of any kind.
12. The Court reserves the right to adjourn the date of the Settlement
Hearing without further notice to the Members of the Settlement Class, and
retains jurisdiction to consider all further applications arising out of or
connected with the proposed settlement. The Court may approve the settlement,
with such modifications as may be agreed to by the Settling Parties, if
appropriate, without further notice to the Settlement Class.
DATED: Wailuku, Maui, Hawaii July 5, 2000
/s/ ARTEMIO C. BAXA (SEAL)
----------------------------------
HONORABLE ARTEMIO C. BAXA
JUDGE OF THE ABOVE-ENTITLED COURT
A-5
<PAGE>
Of Counsel:
PRICE OKAMOTO HIMENO & LUM
WARREN PRICE, III 1212
KENNETH T. OKAMOTO 2068
ROBERT A, MARKS 2163
728 Ocean View Center
707 Richards Street
Honolulu, HI 96813
Telephone: 808/538-1113
Attorneys for Plaintiffs
IN THE CIRCUIT COURT OF THE SECOND CIRCUIT
STATE OF HAWAII
ARCHIE D. SODEN, On Behalf of Himself Civil No, 00-1-0145(1)
and All Others Similarly Situated, (CONSOLIDATED CASES)
Plaintiffs, CLASS ACTION
vs. NOTICE OF SETTLEMENT OF CLASS
ACTION
CASTLE & COOKE, INC., et al.,
Defendants.
EXHIBIT A-1
<PAGE>
TO: ALL PERSONS WHO HELD CASTLE & COOKE, INC. ("CASTLE & COOKE") COMMON STOCK
ON MARCH 29, 2000 OR THEREAFTER
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY
BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION.
This Notice has been sent pursuant to an Order of the Circuit Court of
the Second Circuit, State of Hawaii, granting preliminary approval of the
Stipulation of Settlement (the "Stipulation"), dated as of _______, by and among
the Settling Parties (defined below). The purpose of this Notice is to inform
you of the proposed settlement of this class action litigation and of the
hearing to be held by the Court to consider the fairness, reasonableness, and
adequacy of the settlement. This Notice describes the rights you may have in
connection with the settlement and what steps you may take in relation to the
settlement and this class action litigation.
This Notice is not an expression of any opinion by the Court about the
merits of any of the claims or defenses asserted by any party in this action or
the fairness or adequacy of the proposed settlement.
I. THE LITIGATION
The following eight different lawsuits (individually the "Action(s)" and
collectively the "Litigation") were filed following the March 29, 2000
announcement of the proposal by Flexi-Van Leasing, Inc. ("Flexi-Van") and/or
affiliates to purchase the outstanding shares that they did not currently own of
Castle & Cooke, Inc. ("Castle & Cooke" or the "Company"):
Each action was brought on behalf of a purported class of the Company's
stockholders and was filed in the Circuit Court of the Second Circuit, State of
Hawaii, (the "Court") or in the Superior Court for the State of California,
County of Los Angeles. The Actions filed in Hawaii have been consolidated under
the lead case, ARCHIE D. SODEN V. CASTLE & COOKE, INC., ET AL., Civil No.
00-1-0145(1), and also include CRANDON CAPITAL PARTNERS V. CASTLE & COOKE, INC.,
ET AL.,
A-1-2
<PAGE>
Civil No. 00-1-0246(2); and RUTH WHITE V. CASTLE & COOKE, INC., ET AL., Civil
No. 00-1-0208(3) (collectively, the "Hawaii Actions"). The Actions filed in
California have been consolidated under the lead case, FURTHERFIELD PARTNERS,
L.P. V. DAVID H. MURDOCK, ET AL., Case No. BC227387, and also include CHARLES
MILLER V. DAVID H. MURDOCK, ET AL., Case No. BC227390; GREAT NECK CAPITAL
PARTNERS V. CASTLE & COOKE, INC., ET AL., Case No. BC227403; JOSHUA KAPLAN V.
CASTLE & COOKE, INC., ET AL., Case No. BC227470; and JERRY KRIM V. CASTLE &
COOKE, INC., ET AL., Case No. BC227484 (collectively, the "California Actions").
II. CLAIMS OF THE REPRESENTATIVE PLAINTIFFS AND BENEFITS OF SETTLEMENT
The Representative Plaintiffs believe that the claims asserted in the
Litigation have merit. However, counsel for the Representative Plaintiffs
recognize and acknowledge the expense and length of continued proceedings
necessary to prosecute the Litigation against 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 a
complex action such as this Litigation, as well as 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
claims asserted in the Litigation. Counsel for the Representative Plaintiffs
believe that the settlement set forth in the Stipulation confers substantial
benefits upon the Settlement Class. 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 and the
Settlement Class.
III. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
The Defendants have denied and continue to deny each and all of the
claims and contentions alleged by the Representative Plaintiffs in the
Litigation. The Defendants expressly
A-1-3
<PAGE>
have denied and continue to deny all charges of wrongdoing or liability against
them as alleged in the Litigation. The Defendants also have denied and continue
to deny, INTER ALIA, the allegations that the Representative Plaintiffs or the
Settlement Class have suffered damage or that the Representative Plaintiffs or
the Settlement Class were harmed by the conduct alleged in the Litigation.
Nonetheless, the Defendants have concluded that 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 the Stipulation, in order to limit further expense,
inconvenience and distraction to the Defendants and to the Defendants' business.
The Defendants also have taken into account the uncertainty and risks inherent
in any litigation, especially in complex cases like this 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 the Stipulation.
IV. NOTICE OF HEARING ON PROPOSED SETTLEMENT
A Settlement Hearing will be held on ___________, 2000, at ________.m.,
before the Honorable Artemio C. Baxa, 2145 Main Street, Wailuku, Maui, Hawaii
96793 (the "Settlement Hearing"). The purpose of the Settlement Hearing will be
to determine: (a) whether the settlement set forth in the Stipulation should be
approved as fair, just, reasonable and adequate; and (b) whether the Hawaii
Actions should be dismissed with prejudice. The Court may adjourn or continue
the Settlement Hearing by oral announcement at such hearing or at any
adjournment without further notice of any kind.
A-1-4
<PAGE>
V. DEFINITIONS USED IN THIS NOTICE
1. "Defendants" means any person or entity named as a defendant in
the Litigation, including the Company, Flexi-Van, David H. Murdock, Wallace S.
Miyahira, Patrick J. Birmingham, Lynne Scott Safrit, Lodwrick M. Cook, Edward J.
Hogan, Edward M. Carson, Dell Trailor and William D. Dallas. Mr. Trailor is
deceased and neither he nor his estate had any part in any conduct referred to
in the Actions, and it is acknowledged that he was named through inadvertence.
Mr. Dallas, who was incorrectly sued as William D. Davis, and Mr. Trailor are
treated as Defendants solely for purposes of the settlement, and without
prejudice to their right or that of their representatives to assert that no
complaint has properly named them. The settlement is also not intended to waive
any Defendant's right to contest personal jurisdiction with respect to any of
the Actions, or with respect to any litigation that may be filed against them in
the future.
2. "Person" means an individual, corporation, partnership, limited
partnership, association, joint stock company, estate, legal representative,
trust, unincorporated association, government or any political subdivision or
agency thereof, and any business or legal entity and their spouses, heirs,
predecessors, successors, representatives, or assignees.
3. "Representative Plaintiffs' Counsel" means all counsel who have
appeared on behalf of the Representative Plaintiffs in the Litigation.
4. "Plaintiffs' Settlement Counsel" means Milberg Weiss Bershad
Hynes & Lerach LLP, William S. Lerach, Keith F. Park, 600 W. Broadway, Suite
1800, San Diego, California, 92101-5050, telephone: 619/231-1058; Milberg Weiss
Bershad Hynes & Lerach LLP, Jeff S. Westerman, 355 South Grand Avenue, Suite
4170, Los Angeles, California, 90071, telephone:
A-1-5
<PAGE>
213/617-9007; and Wechsler Harwood Halebian & Feffer LLP, Robert I. Harwood, 488
Madison Avenue, 8th Floor, New York, New York 10022, telephone: 212/935-7400.
5. "Related Parties" means any Defendant's past or present directors,
officers, employees, general or limited partners or partnerships, members,
principals, underwriters, controlling shareholders, attorneys, accountants or
auditors, insurers, financial advisors, banks or investment bankers, consultants
or appraisers (and any consultants or appraisers retained by any of them), legal
representatives, predecessors, successors, parents, subsidiaries, related or
affiliated entities (and the directors and officers of such parents,
subsidiaries or related or affiliated entities), divisions, joint ventures,
assigns, spouses, heirs, executors, administrators, any entity in which any
Defendant has a controlling interest, any member of any individual Defendant's
immediate family, or any trust of which any Defendant is the settlor or which is
for the benefit of any individual Defendant and/or any member(s) of any
Defendant's family.
6. "Released Claims" shall collectively mean all claims, whether
known or unknown (including any Unknown Claims), that have been, or could be,
asserted against the Defendants, or any Related Parties, whether under state or
federal law, and whether arising directly, derivatively, individually,
representatively or in any other capacity, related to or in connection with the
Transactions. Released Claims does not include and the Judgment shall not bar
the statutory appraisal rights permitted under applicable Hawaii law or any
claims to enforce the terms of the Stipulation.
7. "Released Persons" means each and all of the Defendants and their
Related Parties.
A-1-6
<PAGE>
8. "Representative Plaintiffs" means all named plaintiffs in the
Litigation, including the named plaintiffs identified above and any plaintiff
added after the filing of the original complaints in the Litigation.
9. "Settlement Class" means Representative Plaintiffs and all other
Persons who owned the Company's common stock on March 29, 2000 or thereafter
(the "Class Period"), and their successors in interest and transferees, direct
or indirect, immediate or remote (excluding the Defendants and any members of
their family or persons or entities under their control and those Persons who
timely and validly request exclusion from the Settlement Class), including all
holders, purchasers and sellers of the Company's common stock from March 29,
2000 through and including the closing of the Merger.
10. "Settlement Class Member" or "Member of the Settlement Class"
means a Person who falls within the definition of the Settlement Class as set
forth above.
11. "Settling Parties" means, collectively, each of the Defendants and
the Representative Plaintiffs on behalf of themselves and the Members of the
Settlement Class.
12. The "Transactions" collectively means the subject matter of the
Litigation, including any acts, omissions, facts, matters, transactions,
occurrences, conduct, statements or representations relating to or arising out
of the subject matter of the Litigation or any allegations or assertions in any
papers filed in any of the Actions; the proposal by Flexi-Van and/or affiliates
(the "Buyer) to purchase the outstanding common stock that they do not currently
own of the Company, including the proposal made by Flexi-Van to the Company's
Board of Directors on March 29, 2000 and any subsequent amendments or
modifications thereto (the "Proposal"); the negotiation and consideration of the
Proposal, including such activities performed by the Company's Board of
Directors and the Special Committee of non-management directors
A-1-7
<PAGE>
appointed thereby (the "Special Committee"); the Agreement and Plan of Merger by
and among Flexi-Van, the Company and others (including any amendments thereto,
the "Merger Agreement") pursuant to which the Buyer commenced on May 31, 2000 a
tender offer (including any amendments thereto, the "Tender Offer") at a price
of $18.50 per share in cash for any and all shares of the Company's stock that
the Buyer, either directly or indirectly, did not already own, to be followed as
soon as practicable by a second-step merger (including any amendments thereto,
the "Merger") for the same consideration; the negotiation, consideration,
execution, implementation and consummation of the Merger Agreement, Tender
Offer, or Merger, or any other agreements or disclosures related thereto; and
any other public statements, announcements or activities and/or the fiduciary or
disclosure obligations of any of the Defendants or other Released Persons with
respect to any of the foregoing, including any valuation of the Company or its
assets.
13. "Unknown Claims" means any Released Claims which 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 which, if known by him, her or it, might have affected his, her or its
decision not to object to this settlement. With respect to any and all Released
Claims, the Settling Parties stipulate and agree that, upon the Effective Date,
the Representative Plaintiffs shall expressly and each of the Settlement Class
Members shall be deemed to have, and by operation of the Judgment shall have,
waived and relinquished, to the fullest extent permitted by law, the 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.
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<PAGE>
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 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 Section 1542 of the California Civil
Code. The Representative Plaintiffs and Settlement 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
Claims, but Representative Plaintiffs and each Settlement Class Member, 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
Claims, known or unknown, suspected or unsuspected, contingent or
non-contingent, whether or not concealed or hidden, which 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 which 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. The parties acknowledge that the foregoing waiver was
bargained for and is a key element of the settlement of which this release is a
part.
VI. THE SETTLEMENT
The Hawaii and California Actions were filed following the announcement
of an initial proposal by Flexi-Van, directly or indirectly, to purchase all
shares of Company common stock not already owned by Flexi-Van or its affiliates
at a price of $17.00 per share.
On May 4, 2000, counsel for certain of the Representative Plaintiffs
along with their financial consultants, on behalf of the Settlement Class, met
with the attorneys and financial advisor (Bear Stearns & Co. Inc.) of the
Company's Special Committee, and made a presentation
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<PAGE>
in support of their view that the initial Tender Offer price of $17.00 per share
proposed by Flexi-Van was inadequate. Subsequent to this presentation,
Flexi-Van and the Special Committee negotiated an increase to $18.50 in the
price to be offered by the Buyer for the outstanding shares of the Company
(including the Tender Offer and Merger, the "Offer").
Following the commencement of the Tender Offer at $18.50 per share,
negotiations between lead counsel for certain of the Representative Plaintiffs
and representatives of the Defendants resulted in an additional increase in the
Offer price, to $19.25 per share.
The increases in the Offer price, initially from $17.00 per share to
$18.50 per share, and subsequently to $19.25 per share, constitute a substantial
benefit to all Settlement Class Members. All Defendants, including Castle &
Cooke and the Special Committee, acknowledge that counsel for the Representative
Plaintiffs played an important contributory role and were a significant factor
in the process which ultimately resulted in the agreement to increase the Offer
from $17.00 to $18.50 per share and, then, to $19.25 per share.
Flexi-Van shall cause the Tender Offer price to be increased to $19.25
per share, and Flexi-Van and Castle & Cooke shall amend the Merger Agreement to
require a Merger price of $19.25 per share.
VII. EXCLUSION FROM SETTLEMENT CLASS
You may request to be excluded from the Settlement Class by mailing a
written request to:
CASTLE & COOKE SHAREHOLDER LITIGATION
c/o Gilardi & Co. LLC
P.0. Box 8040
San Rafael, CA 94912-8040
The exclusion request must state: (1) your name, address and telephone number;
(2) the number of shares of Castle & Cooke common stock you owned on March 29,
2000 and, for each
A-1-10
<PAGE>
purchase or sale of Castle & Cook common stock that you made at any time
thereafter, the date and number of shares involved and whether the transaction
was a purchase or sale; and (3) that you wish to be excluded from the Settlement
Class. TO BE VALID, YOUR REQUEST FOR EXCLUSION MUST INCLUDE ALL THE FOREGOING
INFORMATION AND MUST BE POSTMARKED ON OR BEFORE ____________, 2000.
VIII. DISMISSAL AND RELEASES
If the proposed settlement is approved, the Court will enter a Final
Judgment and Order of Dismissal with Prejudice (the "Judgment"). The Judgment
will dismiss the Released Claims with prejudice as to all Released Persons and
the Settlement Class Members will be barred from asserting any of the Released
Claims in the future, unless the settlement is canceled or terminated pursuant
to the terms of the Stipulation. Within ten calendar days after the Judgment
becomes Final, application will be made for the California Actions to be
dismissed with prejudice.
IX. ATTORNEYS' FEES AND EXPENSES
If the Settlement is approved and subject to the terms and conditions
stated in the Stipulation, Defendants have agreed to pay the sum of $5,000,000
to the Representative Plaintiffs' Counsel for all their fees, costs and
expenses. Settlement Class Members are not personally liable for any attorneys'
fees, costs or expenses.
The Representative Plaintiffs' Counsel have not received any payment for
their services in conducting this Litigation on behalf of the Representative
Plaintiffs and the Members of the Settlement Class, nor have the Representative
Plaintiffs' Counsel been reimbursed for their out-of-pocket expenses. The fee
and expense award will compensate counsel for their role in achieving an
increase of $2.25 per share in the Offer, or approximately $28 million to the
Settlement Class in the aggregate.
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<PAGE>
X. CONDITIONS FOR SETTLEMENT
The settlement is conditioned upon the occurrence of certain events.
Those events include, among other things: (1) entry of the Judgment by the
Court, as provided for in the Stipulation; and (2) expiration of the time to
appeal from the Judgment. If, for any reason, any one of the conditions
described in the Stipulation is not met, the Stipulation might be terminated
and, if terminated, will become null and void, and the parties to the
Stipulation will be restored to their respective positions prior to the
execution of the Stipulation.
XI. THE RIGHT TO BE HEARD AT THE HEARING
Any Settlement Class Member may, but is not required to, enter an
appearance in the litigation and be represented by counsel of his, her or its
choice and expense. Any Settlement Class Member who does not enter an
appearance will be represented by Representative Plaintiffs' Counsel. Any
Settlement Class Member who objects to any aspect of the settlement, may appear
and be heard at the Settlement Hearing. Any such Person must submit a written
notice of objection, mailed or hand delivered such that it is received on or
before__________, by each of the following:
CLERK OF THE COURT
2145 Main Street
Wailuku, Maui, Hawaii 96793
MILERG WEISS BERSHAD HYNES & LERACH LLP
WILLIAM S. LERACH
KEITH F. PARK
600 West Broadway, Suite 1800
San Diego, CA 92101
Attorneys for Plaintiffs
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<PAGE>
O'MELVENY & MYERS LLP
SETH ARONSON
MARC F. FEINSTEIN
400 South Hope Street
Suite 1500
Los Angeles, CA 90071-2899
GOODSILL ANDERSON QUINN & STIFEL
JOHN R. LACY
BRUCE L. LAMON
Suite 1800, Alii Place
1099 Alakea Street
Honolulu, HI 96813
Attorneys for Defendants Castle & Cooke, Inc.,
Patrick J. Birmingham and Wallace S. Miyahira
GIBSON, DUNN & CRUTCHER LLP
DEAN J. KITCHENS
333 South Grand Avenue
Los Angeles, CA 90071-3197
WATANABE, ING & KAWASHIMA
JAMES KAWASHIMA
JOHN T. KOMEIJI
First Hawaiian Center
999 Bishop Street, 23rd Floor
Honolulu, Hawaii 96813
Attorneys for Defendants Edward M. Carson,
Lodwrick M. Cook, Edward J. Hogan and
William D. Dallas
PAUL HASTINGS JANOFSKY & WALKER LLP
DONALD A. DAUCHER
BELINDA K. OREM
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
A-1-13
<PAGE>
CADES SCHUTTE FLEMING & WRIGHT
RICHARD R. CLIFTON
THEODORE D.C. YOUNG
1000 Bishop Street
Honolulu, HI 96813-4216
Attorneys for Defendants David H. Murdock,
Lynne Scott Safrit, Flexi-Van Leasing, Inc.
The notice of objection must demonstrate the objecting Person's membership in
the Settlement Class, and contain a statement of the reasons for objection.
Only Members of the Settlement Class who have submitted written notices of
objection in this manner will be entitled to be heard at the Settlement Hearing,
unless the Court orders otherwise.
XII. NOTICE TO PERSONS OR ENTITIES HOLDING RECORD OWNERSHIP ON BEHALF OF
OTHERS
Nominees who held the common stock of Castle & Cooke, Inc. during the
Class Period for the beneficial ownership of another shall mail the Notice to
all such beneficial owners of such stock within 10 days after receipt thereof,
or send a list of the names and addresses of such beneficial owners to the
Claims Administrator identified below within 10 days of receipt thereof, in
which event the Claims Administrator shall promptly mail the Notice to such
beneficial owners. Additional copies of this Notice for transmittal to
beneficial owners are available on request directed to CASTLE & COOKE
SHAREHOLDER LITIGATION, c/o Gilardi & Co. LLC, P.O. Box 8040, San Rafael,
California 94912-8040.
XIII. EXAMINATION OF PAPERS
This Notice is a summary and does not describe all of the details of the
Stipulation. For full details of the matters discussed in this Notice, you may
desire to review the stipulation filed with the Court, which may be inspected
during business hours, at the office of the Clerk of the Court, 2145 Main
Street, Wailuku, Maui, Hawaii 96793.
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<PAGE>
For further information regarding this settlement you may contact: Rick
Nelson, Milberg Weiss Bershad Hynes & Lerach LLP, 600 West Broadway, Suite 1800,
San Diego, California 92101, Telephone: 619/231-1058.
DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE.
DATED: Wailuku, Maui, Hawaii __________ BY ORDER OF THE CIRCUIT COURT OF THE
SECOND CIRCUIT, STATE OF HAWAII
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<PAGE>
Of Counsel:
PRICE OKAMOTO HIMENO & LUM
WARRENT PRICE, III 1212
KENNETH T. OKAMOTO 2068
ROBERT A. MARKS 2163
728 Ocean View Center
707 Richards Street
Honolulu, HI 96813
Telephone: 808/538-1113
Attorneys for Plaintiffs
IN THE CIRCUIT COURT OF THE SECOND CIRCUIT
STATE OF HAWAII
ARCHIE D. SODEN, On Behalf of Civil No. 00-1-0145(1)
Himself and All Others Similarly (CONSOLIDATED CASES)
Situated,
Plaintiffs, CLASS ACTION
vs. SUMMARY NOTICE FOR PUBLICATION
CASTLE & COOKE, INC., et al.,
Defendants.
EXHIBIT A-2
<PAGE>
TO: ALL PERSONS WHO OWNED CASTLE & COOKE, INC. ("CASTLE & COOKE") COMMON
STOCK ON MARCH 29, 2000 OR THEREAFTER
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Circuit Court of the
Second Circuit, State of Hawaii, that a hearing will be held at 2145 Main
Street, Wailuku, Maui, Hawaii 96793, on ___________, at ___:___ ___.m., before
the Honorable Artemio C. Baxa, for the purpose of determining: (1) whether the
proposed settlement of the claims in this class action litigation (the
"Litigation") should be approved by the Court as fair, just, reasonable and
adequate; and (2) whether, thereafter, this Litigation should be dismissed with
prejudice as set forth in the Stipulation of Settlement dated as of June __,
2000.
If you owned the common stock of Castle & Cooke at any time on or after
March 29, 2000, your rights are affected by the settlement of this Litigation.
If you have not received a detailed Notice of Settlement of Class Action, you
may obtain copies by writing to CASTLE & COOKE SHAREHOLDER LITIGATION, c/o
Gilardi & Co. LLC, P.O. Box 8040, San Rafael, CA 94912-8040.
Any objection to the settlement must be mailed or delivered such that, it
is received by each of the following no later than __________, 2000:
CLERK OF THE COURT
2145 Main Street
Wailuku, Maui, Hawaii 96793
MILBERG WEISS BERSHAD HYNES & LERACH LLP
WILLIAM S. LERACH
KEITH F. PARK
600 West Broadway, Suite 1800
San Diego, CA 92101
Attorneys for Plaintiffs
A-2-2
<PAGE>
O'MELVENY & MYERS LLP
SETH ARONSON
MARC F. FEINSTEIN
400 South Hope Street
Suite 1500
Los Angeles, CA 90071-2899
GOODSILL ANDERSON QUINN & STIFEL
JOHN R. LACY
BRUCE L. LAMON
Suite 1840, Alii Place
1099 Alakea Street
Honolulu, HI 96813
Attorneys for Defendants Castle & Cooke, Inc.,
Patrick Birmingham and Wallace S. Miyahira
GIBSON, DUNN & CRUTCHER LLP
DEAN J. KITCHENS
333 South Grand Avenue
Los Angeles, CA 90071-3197
WATANABE, ING & KAWASHIMA
JAMES KAWASHIMA
JOHN T. KOMEIJI
First Hawaiian Center
999 Bishop Street, 23rd Floor
Honolulu, Hawaii 96813
Attorneys for Defendants Edward M. Carson,
Lodwrick M. Cook, Edward J. Hogan and
William D. Dallas
PAUL HASTINGS JANOFSKY & WALKER LLP
DONALD A. DAUCHER
BELINDA K. OREM
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
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<PAGE>
CADES SCHUTTE FLEMING & WRIGHT
RICHARD R. CLIFTON
THEODORE D.C. YOUNG
1000 Bishop Street
Honolulu, HI 96813-4216
Attorneys for Defendants David H. Murdock,
Lynne Scott Safrit, Flexi-Van Leasing, Inc.
PLEASE DO NOT CONTACT THIS COURT OR THE CLERK'S
OFFICE REGARDING THIS NOTICE.
DATED: Wailuku, Maui, Hawaii __________ BY ORDER OF THE CIRCUIT COURT OF THE
SECOND CIRCUIT, STATE OF HAWAII
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<PAGE>
IN THE CIRCUIT COURT OF THE SECOND CIRCUIT
STATE OF HAWAII
ARCHIE D. SODEN, On Behalf of Civil No. 00-1-0145(1)
Himself and All Others Similarly (CONSOLIDATED CASES)
Situated,
Plaintiffs, CLASS ACTION
vs. [PROPOSED] FINAL JUDGMENT AND
ORDER OF DISMISSAL WITH PREJUDICE
CASTLE & COOKE, INC., et al.,
Defendants.
EXHIBIT B
<PAGE>
This matter came before the Court for hearing pursuant to the Order of
this Court, dated ____________, 2000, on the application of the Settling Parties
for approval of the settlement set forth in the Stipulation of Settlement dated
as of June __, 2000 (the "Stipulation"). Due and adequate notice having been
given to the Settlement Class as required in said Order, and the Court having
considered all papers filed and proceedings had herein and otherwise being fully
informed in the premises and good cause appearing therefore, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that:
1. This Judgment incorporates by reference the definitions in the
Stipulation, and all terms used herein shall have the same meanings set forth in
the Stipulation.
2. This Court has jurisdiction over the subject matter of the Hawaii
Actions and over all Members of the Settlement Class.
3. The Court hereby certifies, for purposes of effectuating this
settlement only, a Settlement Class of Representative Plaintiffs and all other
Persons who owned the Company's common stock on March 29, 2000 or thereafter
(the "Class Period"), and their successors in interest and transferees, direct
or indirect, immediate or remote (excluding the Defendants and any members of
their family or persons or entities under their control and those Persons who
timely and validly requested exclusion from the Settlement Class), including all
holders, purchasers and sellers of the Company's common stock from March 29,
2000 through and including the closing of the Merger.
4. With respect to the Settlement Class, this Court finds and
concludes that: (a) the members of the class are so numerous that joinder of
all class members in the litigation is impracticable; (b) there are questions of
law and fact common to the class which predominate over any individual
questions; (c) the claims of the Representative Plaintiffs are typical of the
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<PAGE>
claims of the class; (d) the Representative Plaintiffs and their counsel have
fairly and adequately represented and protected the interests of all of the
class members; and (e) a class action is superior to other methods for the fair
and efficient adjudication of the matter.
5. This Court hereby approves the settlement set forth in the
Stipulation and finds that said settlement is, in all respects, fair, just,
reasonable and adequate to the Members of the Settlement Class.
6. Except as to the individual claims of those persons who have
validly and timely requested exclusion from the Settlement Class (identified on
Exhibit 1 hereto), this Court hereby dismisses the Hawaii Actions against the
Defendants with prejudice and without fees, expenses and costs (except as
otherwise provided in the Stipulation).
7. The Court finds that the Stipulation and settlement are fair,
just, reasonable and adequate as to each of the Settling Parties, and that the
Stipulation and settlement are hereby finally approved in all respects, and the
Settling Parties are hereby directed to perform its terms, including without
limitation causing the dismissal of the California Actions with prejudice in
compliance with Section 6.1(f) of the Stipulation.
8. Upon the Effective Date hereof, each of the Representative
Plaintiffs shall have, and each of the Settlement Class Members shall be deemed
to have, and by operation of the Judgment shall have, fully, finally, and
forever released, relinquished and discharged all Released Claims against the
Released Persons.
9. All Settlement Class Members are hereby forever barred and
enjoined from prosecuting the Released Claims against the Released Persons.
10. Upon the Effective Date hereof, each of the Released Persons shall
be deemed to have, and by operation of this Judgment shall have, fully, finally,
and forever released,
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<PAGE>
relinquished and discharged each and all of the Representative Plaintiffs,
Settlement Class Members, and counsel to the Representative Plaintiffs, and any
other persons described in PARA 4.2 of the Stipulation, from all claims,
including Unknown Claims, based upon or arising out of the institution,
prosecution, assertion, settlement or resolution of the Litigation or the
Released Claims, and any other claims described in PARA 4.2 of the Stipulation.
11. The Notice of Settlement of Class Action given to the Settlement
Class was the best notice practicable under the circumstances, including the
individual notice to all Members of the Settlement Class who could be identified
through reasonable effort, said notice provided the best notice practicable
under the circumstances of those proceedings and of the matters set forth
therein, including the proposed settlement set forth in the Stipulation, to all
Persons entitled to such notice, and said notice fully satisfied the
requirements of Hawaii law and the requirements of due process.
12. Neither the Stipulation nor the settlement contained therein, nor
any act performed or document executed pursuant to or in furtherance of the
Stipulation or the settlement: (a) is or may be deemed to be or may be used as
an admission of, or evidence of, the validity or lack thereof of any Released
Claim, or of any wrongdoing or liability of the Defendants; or (b) is or may
deemed to be or may be used as an admission of, or evidence of, any fault or
omission of any of the Defendants in any civil, criminal or administrative
proceeding in any court, administrative agency or other tribunal, other than in
such proceedings as may be necessary to consummate or enforce the Stipulation or
the settlement provided therein, or this Judgment, except that Defendants may
file the Stipulation and/or this Judgment in any action that may be brought
against them in order to support a defense or counterclaim based on principles
of RES JUDICATA, collateral estoppel, release, good faith settlement, judgment
bar or
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<PAGE>
reduction or any theory of claim preclusion or issue preclusion or similar
defense or counterclaim.
13. In the course of these proceedings, all parties and their counsel
complied with Rule 11 of the Hawaii Rules of Civil Procedure.
14. Without affecting the finality of this Judgment in any way, this
Court hereby retains continuing jurisdiction over (a) implementation of this
settlement; and (b) all parties hereto for the purpose of construing, enforcing
and administering the Stipulation, except that the Court's jurisdiction over
Flexi-Van and Messrs. Carson, Cook, and Dallas shall be limited solely to
implementing and enforcing such settlement and does not include any other
proceedings.
15. In the event that the settlement does not become effective in
accordance with the terms of the Stipulation, then this Judgment shall be
rendered null and void to the extent provided by and in accordance with the
Stipulation and shall be vacated and, in such event, all orders entered and
releases delivered in connection herewith shall be null and void to the extent
provided by and in accordance with the Stipulation.
IT IS SO ORDERED.
DATED: Wailuku, Maui, Hawaii __________________
------------------------------------
HONORABLE ARTEMIO C. BAXA
JUDGE OF THE ABOVE-ENTITLED COURT
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