Exhibit 2.11
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B544959v1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
LEONARD ROSENBLUM, J/B INVESTMENT PARTNERS, SMALL and REBECCA BARMACK, PARTNERS,
BARBARA HALL, HENRY R. GRAHAM, ANNE R. GRAHAM, MARGO CORTELL, PATRICK M. RHODES,
BERNICE M. HUELS, GARRETT N. VOIGHT, CLAIRE E. FULCHER, MARCELLA LEVY, RICHARD
HODGSON, CITY PARTNERSHIPS, HELMAN PARSONS AND CLEVA PARSONS, on behalf of
themselves and all others similarly situated and derivatively on behalf of the
Nominal Defendants,
Plaintiffs,
v.
Case No. 98-8030
EQUIS FINANCIAL GROUP LIMITED PARTNERSHIP, a Massachusetts Limited Partnership,
EQUIS CORPORATION, a Massachusetts Corporation, GDE ACQUISITION LIMITED
PARTNERSHIP, a Massachusetts Limited Partnership, AFG LEASING INCORPORATED, a
Massachusetts Corporation, AFG LEASING IV INCORPORATED, a Massachusetts
Corporation, AFG LEASING VI INCORPORATED, a Massachusetts Corporation, AFG
AIRCRAFT MANAGEMENT CORPORATION, a Massachusetts Corporation, AFG ASIT
CORPORATION, a Massachusetts Corporation, AF/AIP PROGRAMS LIMITED PARTNERSHIP, a
Massachusetts Limited Partnership, GARY D. ENGLE and GEOFFREY A. MACDONALD,
Defendants,
AIRFUND I INTERNATIONAL LIMITED PARTNERSHIP, a Massachusetts Limited
Partnership, AIRFUND II INTERNATIONAL LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership, AMERICAN INCOME 4 LIMITED PARTNERSHIP, a Massachusetts
Limited partnership, AMERICAN INCOME 5 LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership, AMERICAN INCOME 6 LIMITED PARTNERSHIP, a Massachusetts
Limited partnership, AMERICAN INCOME 7 LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership, AMERICAN INCOME 8 LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership, AMERICAN INCOME PARTNERS III-A LIMITED PARTNERSHIP, a
Massachusetts Limited Partnership, AMERICAN INCOME PARTNERS III-B LIMITED
PARTNERSHIP, a Massachusetts Limited Partnership, AMERICAN INCOME PARTNERS III-C
LIMITED PARTNERSHIP, a Massachusetts Limited Partnership, AMERICAN INCOME
PARTNERS III-D LIMITED PARTNERSHIP, a Massachusetts Limited Partnership,
AMERICAN INCOME PARTNERS IV-A LIMITED PARTNERSHIP, a Massachusetts Limited
Partnership, AMERICAN INCOME PARTNERS IV-B LIMITED PARTNERSHIP, a Massachusetts
Limited Partnership, AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP, a
Massachusetts Limited Partnership, AMERICAN INCOME PARTNERS IV-D LIMITED
PARTNERSHIP, a Massachusetts Limited Partnership, AMERICAN INCOME PARTNERS V-A
LIMITED PARTNERSHIP, a Massachusetts Limited Partnership, AMERICAN INCOME
PARTNERS V-B LIMITED PARTNERSHIP, a Massachusetts Limited Partnership, AMERICAN
INCOME PARTNERS V-C LIMITED PARTNERSHIP, a Massachusetts Limited Partnership,
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP, a Massachusetts Limited
Partnership, AMERICAN INCOME FUND I-B, a Massachusetts Limited Partnership,
AMERICAN INCOME FUND I-C, a Massachusetts Limited Partnership, AMERICAN INCOME
FUND I-D, a Massachusetts Limited Partnership, AMERICAN INCOME FUND I-E, a
Massachusetts Limited Partnership, AFG INVESTMENT TRUST A, a Delaware business
trust, AFG INVESTMENT TRUST B, a Delaware business trust, AFG INVESTMENT TRUST
C, a Delaware business trust, and AFG INVESTMENT TRUST D, a Delaware business
trust,
Nominal Defendants.
ORDER PRELIMINARILY APPROVING SETTLEMENT,
CONDITIONALLY CERTIFYING SETTLEMENT CLASS AND PROVIDING
FOR NOTICE OF, AND HEARING ON, THE PROPOSED SETTLEMENT
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WHEREAS, the parties to the above-captioned action (the "Action"), having
made application, pursuant to Fed. R. Civ. P. 23(e), for an order approving the
settlement of this Action, in accordance with the Revised Stipulation of
Settlement dated January 29, 2002 (the "Revised Stipulation"), which, together
with the exhibits annexed thereto, sets forth the terms and conditions for a
proposed settlement of the Action with regard to the Operating Partnership
Sub-Class ("Settlement") and for dismissal of the Action in its entirety with
prejudice; and the Court, having read and considered the Revised Stipulation and
the exhibits annexed thereto;
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. For purposes of this Preliminary Order, the Court adopts and
incorporates by reference the definitions contained in the Revised Stipulation.
2. The Court does hereby preliminarily approve the Revised Stipulation
and the Settlement set forth therein as being within the range of reasonableness
and fair, just and adequate.
3. A hearing (the "Hearing") shall be held before this Court on Friday,
June 7, 2002, at 701 Clematis Street, West Palm Beach, Florida, 3:30 p.m., in
Courtroom 5, to determine whether the proposed Settlement of the Action on the
terms and conditions provided for in the Revised Stipulation, with respect to
the Operating Partnership Sub-Class, is fair, reasonable and adequate and should
be finally approved by the Court; whether a final judgment as provided in the
Revised Stipulation should be entered herein with respect to the claims brought
by the Operating Partnership Sub-Class; and whether Class Counsel's
application(s) for attorneys' fees, awards to the Class Plaintiffs and the
reimbursement of out-of-pocket expenses should be granted. The Court may
continue the Hearing without further notice to Class Members.
4. The Court approves, as to form and content, the Notice of Class
Action Determination, Proposed Settlement and Fairness Hearing (the "Notice"),
annexed to the Revised Stipulation as Exhibit "A", and finds that the mailing of
the Notice substantially in the manner and form set forth in paragraph 5 of this
Order meets the requirements of Rule 23 of the Federal Rules of Civil Procedure,
the Constitution of the United States and any other applicable law, is the best
notice practicable under the circumstances, and constitutes due and sufficient
notice to all persons entitled thereto.
5. (a) Upon entry of this Order, the Defendants shall cause a copy
of the Notice, substantially in the form annexed to the Revised Stipulation as
Exhibit "A", to be mailed to all Operating Partnership Sub-Class Members at
their last known address as appearing in the records maintained by the
Partnerships;
(b) At or prior to the Hearing, Defendants' counsel shall serve
and file with the Court proof, by affidavit or declaration, of such mailing to
the Operating Partnership Sub-Class; and
(c) All reasonable costs incurred in identifying and notifying
Operating Partnership Sub-Class Members shall be paid as set forth in the
Revised Stipulation. In the event that the Settlement is not approved by the
Court, or otherwise fails to become effective, Defendants shall not have any
recourse against the Plaintiffs, Class Counsel or the Claims Administrator for
such costs and expenses which have been incurred or advanced pursuant to the
Revised Stipulation or this Order.
6. Operating Partnership Sub-Class Members may enter an appearance in
the Action, at their own expense, individually or through counsel of their own
choice. If they do not enter an appearance, they will be represented by Class
Counsel.
7. Pending final determination of whether the Settlement should be
approved, neither the Class Plaintiffs nor any Operating Partnership Sub-Class
Member, either directly, derivatively, in a representative capacity or any other
capacity, shall commence or prosecute against any of the Defendants or the
Released Parties, any action or proceeding in any court or tribunal asserting
any of the Settled Claims.
8. Pending final determination of whether the Settlement should be
approved, the Class Plaintiffs and all other Operating Partnership Sub-Class
Members are barred and permanently enjoined from (i) transferring, selling,
assigning, giving, pledging, hypothesizing or otherwise disposing of any Units
of the Operating Partnerships to any person other than a family member or in
cases of divorce, incapacity or death of the Unitholder; or (ii) commencing a
tender offer for the Units. In addition, pending final determination of whether
the Settlement should be approved, the General Partners of the Operating
Partnerships are enjoined from (i) recording any transfers made in violation of
the Order and (ii) providing the list of investors in any Operating Partnership
to any person for the purpose of conducting a tender offer.
9. Any Member of the Operating Partnership Sub-Class may appear at the
Settlement Hearing and object to (a) the approval of the proposed Settlement of
the Action as fair, reasonable and adequate, (b) the entrance of a final
judgment, and/or (c) the application(s) for attorneys' fees and expenses;
provided, however, that no Operating Partnership Sub-Class Member or any other
person 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 thereto approving the same, or the attorneys' fees and expenses to Class
Counsel, unless on or before fourteen (14) days prior to the Hearing, that
person has served, by hand or by first-class mail, written objections and copies
of any papers and briefs desired to be considered by the Court, together with
proof of membership in the Operating Partnership Sub-Class, upon both
Plaintiffs' Lead Counsel: Andrew D. Friedman, Esq., Wechsler Harwood Halebian &
Feffer, LLP, 488 Madison Avenue, New York, N.Y. 10022; and Defendants' Counsel:
Deborah L. Thaxter, P.C., Nixon Peabody LLP, 101 Federal Street, Boston,
Massachusetts 02110, and filed said objections, papers and briefs with the Clerk
of the United States District Court for the Southern District of Florida. Any
Member of the Operating Partnership Sub-Class who does not make his or her
objection in the manner provided herein shall be deemed to have waived such
objection, including the right to appeal, and shall forever be foreclosed from
making any objection to the fairness or adequacy of the proposed Settlement as
incorporated in the Revised Stipulation and the award of attorneys' fees and
expenses to Class Counsel, unless otherwise ordered by the Court.
10. The Court reserves the right to continue the date of the Hearing
and any continuation thereof without further notice to the Members of the
Operating Partnership Sub-Class, and retains jurisdiction to consider all
further applications arising out of or connected with the proposed Settlement.
DONE AND SIGNED in Chambers at West Palm Beach, Florida, this 1st day of
March, 2002.
/s/ Daniel T.K. Hurley
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Daniel T.K. Hurley
United States District Judge
Copies To All Counsel Of Record