IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE UGLY DUCKLING CORPORATION )
SHAREHOLDERS DERIVATIVE AND ) Consolidated C.A. No. 18746-NC
CLASS LITIGATION )
ORDER AND FINAL JUDGMENT
The Stipulation and Agreement of Compromise, Settlement and Release, dated
January __, 2002 (the "Stipulation"), of the above-captioned, consolidated
action (the "Consolidated Action"), having been presented at the settlement
hearing on March __, 2002 pursuant to the Scheduling Order for Approval of
Settlement of Class and Derivative Action entered herein on January __, 2002
(the "Scheduling Order"), which Stipulation was joined and consented to by all
parties to the Consolidated Action and which (along with the defined terms
therein) is incorporated herein by reference; and the Court having determined
that notice of said hearing was given in accordance with the Scheduling Order
and to members of the Class as temporarily certified by the Court in the
Scheduling Order and that said notice was adequate and sufficient; and the
parties having appeared by their attorneys of record; and the attorneys for the
respective parties having been heard in support of the Stipulation and the
settlement of the Consolidated Action provided therein (the "Settlement"), and
an opportunity to be heard having been given to all other persons desiring to be
heard as provided in the notice; and the entire matter of the Settlement having
been considered by the Court;
IT IS HEREBY ORDERED this _______ day of March, 2002, as follows:
1. The Notice of Pendency of Class and Derivative Action, Temporary and
Proposed Class Action Determination, Proposed Settlement of Class and
Derivative Action, Settlement Hearing and Right to Appear (the "Notice")
has been given to the Class (as defined hereinafter), pursuant to and in
the manner directed by the Scheduling Order, proof of the mailing of the
Notice was filed with the Court by counsel for Ugly Duckling Corporation
("Ugly Duckling" or the "Company") or its successor and full opportunity to
be heard has been offered to all parties, the Class and persons in
interest. The form and manner of the Notice is hereby determined to have
been the best notice practicable under the circumstances and to have been
given in full compliance with each of the requirements of Delaware Court of
Chancery Rules 23 and 23.1, and it is further determined that all members
of the Class are bound by the Order and Final Judgment herein.
2. Pursuant to Court of Chancery Rules 23(a), 23(b)(l) and 23(b)(2):
a. The Court finds that (i) the Class, as defined below, is so numerous
that joinder of all members is impracticable; (ii) there are questions
of law and fact common to the Class; (iii) the claims of the
plaintiffs are typical of the claims of the Class; and (iv) the
plaintiffs have fairly and adequately protected the interests of the
Class with respect to the Consolidated Action and the claims asserted
therein;
b. The Court finds that plaintiffs and their counsel have adequately
represented the interests of the Class;
c. The Court finds that the requirements of Court of Chancery Rules
23(b)(l) and (2) have been satisfied;
d. The Consolidated Action is hereby certified as a class action on
behalf of all persons (other than defendants, members of the immediate
families of the individual defendants, any entity in which any of the
defendants has a direct or indirect controlling interest, and the
officers, directors, employees, affiliates, legal representatives,
heirs, predecessors, successors and assigns of any excluded person or
entity and all other released persons) who owned stock of the Ugly
Duckling Corporation ("Ugly Duckling" or the "Company") at any time
from November 16, 2001 until and including the closing of the
Transaction (as defined in the Stipulation), and their successors in
interest and transferees, immediate and remote (the "Class"); and
e. Paul Berger, Thomas Turberg, Joe Brecher, Darren Suprina, Bryan
Benton, and Don Hankey Living Trust (Don R. Hankey, Trustee) are
hereby certified as Class representatives. The law firms of Abraham &
Paskowitz and Wolf Popper LLP are hereby appointed as plaintiffs'
co-lead counsel for the derivative claims, and the law firms of
Milberg Weiss Bershad Hynes & Lerach LLP and Wolf Popper LLP are
hereby appointed as plaintiffs' co-lead counsel for the class claims
(collectively, "Plaintiffs' Co-Lead Counsel").
3. The Settlement, and all transactions preparatory or incident thereto, are
found to be fair, reasonable and adequate and in the best interests of the
Class, and it is hereby approved. The parties to the Stipulation are hereby
authorized and directed to comply with the terms of the Stipulation and to
consummate the Settlement in accordance with its terms and provisions; and
the Register in Chancery is directed to enter and docket this Order and
Final Judgment in the Consolidated Action.
4. This Order and Final Judgment shall not constitute any evidence or
admission by any party herein that any acts of wrongdoing have been
committed by any of the parties to the Consolidated Action and should not
be deemed to create any inference that there is any liability therefor.
5. All claims of the Class or on behalf of the Company, whether asserted
directly, derivatively, representatively or in any other capacity, against
any of the defendants and the Company, or any of their past, present or
future officers, directors, employees, agents, attorneys, financial or
investment advisors, commercial bank lenders, investment bankers, insurance
providers, consultants, accountants, representatives, affiliates,
associates, parents, subsidiaries, general and limited partners or
partnerships, families, heirs, executors, trustees, personal
representatives, estates or administrators, successors and assigns, whether
known or unknown, whether asserted or not asserted in the Consolidated
Action, and whether arising under federal, state or any other law
(including, without limitation, federal or any state's securities laws), in
connection with, that arise out of the subject matter of the Consolidated
Action or any of the transactions related thereto (including without
limitation, the transactions challenged in the derivative claims, the
Proposal, the Tender Offer, the Amended Tender Offer, the Merger and the
Transaction), the negotiation and consideration of any of the foregoing
transactions, all documents filed by the defendants with the Securities and
Exchange Commission and the fiduciary or disclosure obligations of any of
the defendants (or persons to be released) with respect to any of the
foregoing transactions, except claims relating to the right of any member
of the proposed Class or any of the defendants to enforce the terms of the
Settlement or any statutory appraisal rights arising out of the Merger
(collectively, the "Settled Claims"), shall be compromised, settled,
released and dismissed with prejudice. Dismissal of the Settled Claims with
prejudice and on the merits shall become effective immediately upon a
certificate of merger relating to the Transaction being filed with the
appropriate authority and without any further actions by the Court or the
parties.
6. The release contemplated by the Stipulation extends to claims that
plaintiffs, on behalf of the Class and the Company, do not know or suspect
to exist at the time of the release, which if known, might have affected
the decision to enter into this release. Each of the named plaintiffs, each
member of the Class and the Company shall be deemed to waive any and all
provisions, rights and benefits conferred by any law of the United States
or any state or territory of the United States, or principle of common law,
which governs or limits a person's release of unknown claims. The
plaintiffs, on behalf of the Class and the Company, shall be deemed to
relinquish, to the full extent permitted by law, the provisions, rights and
benefits of ss. 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.
In addition, each of the plaintiffs, again of behalf of the Class and the
Company, also shall be deemed to waive 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
California Civil Code ss. 1542. Plaintiffs, on behalf of the Class and the
Company, acknowledge that members of the Class may discover facts in addition to
or different from those that they now know or believe to be true with respect to
the subject matter of this release, but that it is their intention, on behalf of
the Class and the Company, to fully, finally and forever settle and release any
and all claims released hereby known or unknown, suspected or unsuspected, which
now exist, or heretofore existed, or may hereafter exist, and without regard to
the subsequent discovery or existence of such additional or different facts.
7. Plaintiffs' attorneys are hereby awarded fees and expenses in the amount of
$__________ in connection with the Consolidated Action, which fees and
expenses the Court finds to be fair and reasonable and which shall be paid
to plaintiffs' attorneys in accordance with the terms of the Stipulation.
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Chancellor