EXHIBIT 2(A)
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
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IN RE REALMARK PROPERTY
INVESTORS LIMITED PARTNERSHIP Index No. I 2000-3273
LITIGATION
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STIPULATION OF SETTLEMENT
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The parties to these actions (the "Litigation") have reached an
agreement to settle these cases.
IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned
parties, through their respective counsel and subject to all of the terms and
conditions set forth herein and the approval of the Court, that these actions,
as well as any and all of the claims and causes of action of any nature or
description which have or could have been asserted therein or which arise out of
or are in any way related to the acts, transactions or occurrences alleged in
the complaints be, and the same hereby are, compromised and settled on the terms
and conditions hereinafter set forth as of August 29, 2001:
I. The Hearing Order and Settlement Hearing
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1. Promptly after the execution of this Stipulation, the parties shall
jointly move the Court for the entry of an Order Preliminarily Approving
Settlement (the "Hearing Order"), substantially in the form attached hereto as
Exhibit A:
(i) scheduling a hearing (the "Hearing") to determine whether
this proposed settlement (the "Settlement") should be approved as fair,
reasonable and adequate to the members of the Class, and the amount of fees and
expenses to be awarded to plaintiffs' counsel;
(ii) conditionally certifying a Class for settlement purposes
only. The Class shall be defined as all persons or entities and their successors
and assigns who are or have been at any time limited partners in any of the
Partnerships1, up to and including those limited partners of record on the day
that the Notice of Pendency and Proposed Settlement of Class Action is mailed,
and excluding Defendants2, any entity in which the Defendants have a controlling
interests, members of the immediate family of any Defendants or their
affiliates;
(iii) approving as to form and content the Notice of Pendency
and Proposed Settlement of Class Action (the "Notice"), attached hereto as
Exhibit B;
(iv) directing the mailing of the Notice by first-class mail
to members of the Class;
(v) finding that the mailing of the Notice constitutes the
best notice practicable under the circumstances and is due and sufficient notice
of the matters set forth in the Notice to all members of the Class, and that the
Notice fully satisfies the requirements of due process and the New York law; and
(vi) empowering plaintiffs' counsel to supervise and
administer the identification and notice procedures of the Settlement.
2. The parties agree and propose to the Court pursuant to CPLR 903 that
the Class should not be limited to those Class members who do not request
exclusion therefrom, and accordingly, no such exclusion should be permitted. As
with classes certified pursuant to Fed. R.
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1 The "Partnerships" are Realmark Property Investors Limited
Partnership I ("Realmark I"), Realmark Property Investors Limited Partnership II
("Realmark II"), Realmark Property Investors Limited Partnership III ("Realmark
III"), Realmark Property Investors Limited Partnership IV ("Realmark IV"),
Realmark Property Investors Partnership V ("Realmark V"), Realmark Property
Investors Limited Partnership VI-A ("Realmark VI-A"), and Realmark Properties
Limited Partnership VI-B ("Realmark VI-B").
2 "Defendants" as used in this stipulation means Realmark Properties,
Inc., J.M. Jayson & Co., Inc., Joseph M. Jayson, Judith P. Jayson, Michael J.
Colmerauer, U.S. Capital Services Corp., and the Partnerships.
2
Civ. P. 23(b)(2), the defendants are agreeing, in essence, to injunctive relief
with respect to the Class as a whole, by their agreements to forego certain
payables (the "monetary benefits" described below) and to institute the
liquidation process (described below). Moreover, each limited partner is
entitled to the same pro rata distributive share(s) with respect to the
Partnership units that he or she owns pursuant to the Partnership Agreements.
All of the consideration for this Settlement is derived from the liquidation
being ordered hereunder and the proceeds of such liquidation flow to all limited
partners under the Partnership Agreements. Accordingly, it would be
inappropriate to allow limited partners to opt out because under the Partnership
Agreements they still would receive the fruits of the settlement, regardless of
whether they opt out.
3. All expenses of notice to and all other communications with the
putative class and all expenses of processing and implementing the settlement
shall be borne by the Partnerships and not Defendants.
4. No party or their counsel (including local counsel or co-counsel
listed on any pleading filed in these actions) will encourage, solicit, or
support any person or entity to pursue or commence any lawsuits against any of
the Defendants, nor will plaintiffs' counsel assist or represent any persons in
such lawsuits with respect to any matter or proceeding which directly or
indirectly relates to the Partnerships.
II. PRETRIAL PROCEEDINGS AND DISCOVERY IN THE LITIGATION
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5. Plaintiffs' counsel has conducted extensive research and
investigation during the prosecution of the Litigation. This discovery and
investigation has included, inter alia, (i) inspection of thousands of pages of
financial records and related documents produced by the Defendants pursuant to
settlement negotiations and voluntarily by cooperating class members; (ii) the
retention of and investigation by a forensic accountant, who analyzed the
documents produced by Defendants and others and, upon counsultation with
plaintiffs' counsel, prepared reports addressing the accounting liability
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and damages issues herein; (iii) review of hundreds of pages of the partnership
agreements for the Partnerships (the "Partnership Agreements") and of
representative prospectuses for the Partnerships, (iv) review of thousands of
pages of SEC public filings; (v) numerous interviews with the representative
plaintiffs, other Class members and potential witnesses; (vi) several meetings
with Defendants, their attorneys and their accountants addressing the
accounting, fee, expense reimbursement, property management and damages issues
herein; (vii) exhaustive pre-filing investigation of the claims set forth in the
original complaints, (viii) extensive research of the applicable law with
respect to the claims asserted in the complaints and the potential defenses
thereto, and (vii) service of written discovery.
III. DEFENDANTS' STATEMENT
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6. Defendants continue to deny liability and all allegations of
wrongdoing. Defendants have entered into this settlement to avoid the cost and
expense of further litigation. Neither this stipulation nor the settlement
between the parties constitutes an admission of wrongdoing or liability by
defendants. Neither this stipulation nor the settlement between the parties
shall be admissible in any proceeding, other than a proceeding to enforce or
implement this agreement.
IV. CLAIMS OF THE PLAINTIFFS AND BENEFITS OF SETTLEMENT
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7. The plaintiffs believe that the claims asserted in the Litigation
have merit and that the evidence developed to date in the Litigation supports
the claims asserted. However, plaintiffs recognize and acknowledge the expense
and length of continued proceedings necessary to prosecute the Litigation
against the settling Defendants through trial and through appeals. Plaintiffs
also have taken into account the uncertainty and risks inherent in any
litigation, especially in complex cases like this litigation, and they believe
that the Settlement confers substantial benefits upon the Partnerships, the
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Class and each of the Class members. Based on their evaluation, counsel for the
plaintiffs have determined that the settlement set forth in the Stipulation is
in the best interests of the plaintiffs, the Partnerships and the Class and each
of the Class Members.
V. CLASS CONSIDERATION FOR THE SETTLEMENT
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A. Monetary Benefits
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8. Realmark Property Investors Limited Partnership IV ("Realmark IV")
owes approximately $1,532,420 (the "Realmark IV payable"), as of March 31, 2001,
to its General Partners, JMJ and/or affiliates.3 The Plaintiffs have contested
the Realmark IV payable and the amount owing to the General Partners, JMJ,
and/or affiliates. The General Partners, JMJ, and/or affiliates agree to waive
and forgive any right or claim to an aggregate amount of $1 million of the
Realmark IV payable to them by Realmark IV, which shall be distributable to the
Realmark IV limited partners in accordance with the Realmark IV partnership
agreement. The balance of the Realmark IV payable shall be paid to the Realmark
IV General Partners, JMJ, or their affiliates out of Realmark IV's available
funds, if any, after distribution to the limited partners of the first $1
million of available funds.
9. Realmark Property Investors Limited Partnership VI-A ("Realmark
VI-A") owes approximately $481,598 (the "Realmark VI-A payable"), as of March
31, 2001, to its General Partners,4 JMJ, and/or affiliates. The plaintiffs have
contested the Realmark VI-A payable and the amount owing to the General
Partners, JMJ, and/or affiliates. The General Partners and JMJ agree to waive
and forgive indebtedness owing by Realmark VI-A as of March 31, 2001, including
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3 The general partners of Realmark IV are Realmark Properties IV
Associates, RPI Investors-IV, Inc., and Joseph M. Jayson ("Jayson"). J.M. Jayson
& Co., Inc. ("JMJ") is the affiliate of general partners that is owed money by
Realmark-IV.
4 The general partners of Realmark VI-A are Jayson, Realmark
Properties, Inc. ("RPI").
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any further accrued interest, which exceeds the amount of the Realmark VI-A
payable. In addition, the General Partners and JMJ agree that, after March 31,
2001, they shall charge no further interest to the partnership on the Realmark
VI-A payable. Realmark VI-A shall pay JMJ, General Partners, and/or their
affiliates the Realmark VI-A payable prior to the distribution of available
funds to the limited partners under the partnership agreement.
B. Partnership Property Liquidation Process
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10. Jayson and RPI5 (collectively, the "General Partners") will
continue to have the primary authority to dispose of the Partnerships'
properties, and shall pursue sale of the Partnerships' properties. During the
time that the General Partners have primary authority to dispose of the
Partnerships' properties, plaintiffs, plaintiffs' counsel and their designated
representatives (if any) shall designate one person (the "Plaintiff
Representative") who shall have the right to advise the General Partners
regarding the sale, marketing, and disposition of the properties, and the
General Partners shall make themselves reasonably available to the Plaintiff
Representative for such purpose and shall be obligated to consider in good faith
the input and advice being provided by the Plaintiff Representative. The General
Partners shall, upon request, provide the Plaintiff Representative with all
information concerning the marketing and sale of the properties. Plaintiffs'
representative shall be reimbursed for his reasonable expenses and shall be
compensated for his time on an hourly basis in accordance with a fee schedule to
be approved by the Court. Monthly invoices shall be submitted to the General
Partners who will pay the same within 14 days and will equitably divide the
costs among the various Partnerships.
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5 Jayson and RPI are the General Partners of each of the Partnerships.
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11. If either (i) the General Partners have not sold6 fifty percent
(50%) of the Partnerships' properties (by value7) within 180 days of the date of
the Hearing Order or (ii) the General Partners have not sold 100 percent of the
Realmark partnerships' properties within three hundred sixty (360) days of the
date of the Hearing Order, upon the first to occur of (i) and (ii) above,
primary authority to dispose of the partnership properties8 shall pass to the
"Sales Agent", who shall be an independent person unaffiliated with plaintiffs
or their counsel designated by plaintiffs' counsel and approved by the Court.
The Sales Agent must have significant and appropriate experience in transactions
involving the sale of residential and commercial real estate of the general type
owned by the Partnerships. Notwithstanding the foregoing, no power or authority
shall pass to the Sales Agent unless the Order and Final Judgment Approving
Settlement and Awarding Fees and Expenses has been executed and entered by the
Court.
12. In the event that primary authority to dispose of the Partnerships'
properties passes to the Sales Agent, then the Sales Agent's duties shall
include: (a) the hiring and monitoring on behalf of the Partnerships of
professional real estate consulting firms, brokers and other professionals, each
of which shall be independent and unaffiliated with the Sales Agent, plaintiffs,
and plaintiffs' counsel, to ensure that the properties are marketed and sold in
a manner that reasonably maximizes the value of the sales process for the
limited partners (provided however that if plaintiffs' counsel and counsel for
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6 A property will be considered "sold" if a contract of sale is signed,
even if subject to a future closing date or conditions.
7 For purposes of this determination only, the Partnership properties
shall be the properties owned as of the commencement of these lawsuits and the
value of the partnership properties shall be deemed to be the values listed on
the attached Exhibit C.
8 "Primary authority to dispose of the partnerships' properties" means
the authority to market and sell the partnership properties, to prepare the
properties for marketing and sale and to expend partnership funds to market,
sell or prepare the properties for marketing or sale, including without
limitation, the retention of independent marketing or sales professionals. At
any time when the Sales Agent has been granted primary authority to dispose of
the Partnerships' properties, he shall be granted access to the partnerships'
and the properties books and records, and to the properties, during regular
business hours, and the General Partners shall make reasonable efforts to
provide information and answer questions of the Sales Agent in a prompt manner.
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the Defendants agree to jointly recommend a broker or other professional, then
the Partnerships shall retain that broker or other professional), (b) the
negotiation of contracts and fee arrangements with outside parties (other than
with the Sales Agent himself) regarding the marketing and sales process with
such fees to be paid by the Partnerships, (c) receiving and negotiating offers
for the Partnerships, (d) supervision and coordination of the marketing process
to ensure that the properties are being marketed in a commercially reasonable
manner, (e) working with the appropriate General Partners regarding any efforts
that have already been undertaken to prepare and/or market the properties for
sale, (f) working with counsel for the parties hereto, (g) communicating offers
to the investors for their vote when required by the Partnership agreements
(such communications shall notify the investors that there may be potential tax
consequences of sale and advise them to consult their own tax advisors; however,
no further tax advice shall be given) and receiving and counting all ballots
from such investor vote, (h) working with counsel for the Partnerships regarding
the closing aspects or process for the sale of a given property, and (i) if
necessary, seeking guidance from the court regarding the resolution of any issue
that may arise in connection with these duties.
13. The Sales Agent shall have no other role or responsibility with
respect to the operation of the Partnerships or the administration of their
assets. All parties hereto agree that it would be preferable that the Sales
Agent and those assisting the Sales Agent would be paid on an hourly basis by
the Partnerships in accordance with the fee schedule to be provided by the Sales
Agent. Monthly invoices would be submitted to the General Partners who would pay
the same within 14 days and equitably divide the costs among the various
Partnerships. In any event, the terms on which the Sales Agent is retained shall
be submitted to the Court for approval. The Sales Agent will not serve as a
broker or listing agent for the Partnerships' properties.
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14. During the time that the Sales Agent has primary authority to
dispose of the Partnerships' properties, the General Partners shall also have
the right to advise Sales Agent regarding the sale, marketing, and disposition
of the properties, and the Sales Agent shall make himself reasonably available
to the General Partners for such purpose and shall be obligated to consider in
good faith the input and advice being provided by the General Partners.
15. If requested by the Sales Agent, the General Partners of the
Partnerships shall execute as General Partner whatever documents are necessary
in connection with the sale of any Partnership property, provided that the
limited partners have given any approval required under the applicable
Partnership agreement. The Defendants agree that they shall vote any units they
own as limited partners in the same proportion as the other limited partners who
do vote.
16. None of the Defendants nor any of their affiliates shall purchase
any of the Partnerships' properties. Neither the Defendants nor any affiliate of
the Defendants shall be a employee, officer, contractor, director, partner,
manager, member, lender, securities holder or investor in any entity that
purchases any of the Partnerships' properties and shall not receive any personal
benefits from such sale other than any fees and distributions such Defendant is
entitled to pursuant to the terms of the partnership agreements, and those such
payments shall be fully disclosed.
17. The Defendants agree that all voting rights belonging to the
limited partners will be fully honored and protected. Neither the General
Partners nor the Sales Agent may sell or otherwise dispose of at one time all or
substantially all of the assets of a partnership without the consent of a
majority in interest of the limited partners. The parties agree that a sale of
the majority of a partnership's properties constitutes a sale of "substantially
all" of the properties, and that a liquidating sale of a final property
remaining as a result of the sale of partnership properties is not a sale of
"substantially all" the properties.
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18. Final distributions of limited partnership assets shall be made
according to the terms of the Partnership Agreements, provided that, prior to
making any distributions of sales proceeds the Defendants shall provide a
schedule of proposed distributions to Plaintiffs' counsel at least 20 days prior
to making any such distributions. The General Partner shall file an affidavit
setting forth a final schedule of distributions with the Court within 30 days
after the final distributions for any or all of the Partnerships, and also
setting forth the time that the proposed schedule was provided to Plaintiffs'
counsel.
19. Except to the extent that specific duties and powers relating to
marketing and sale of the Partnerships' properties pass to the Sales Agent, the
General Partners shall retain the management and control, rights, powers, duties
and responsibilities heretofore exercised with respect to the Partnerships and
the Partnership properties, and shall be entitled to be paid for its services in
doing so, and be reimbursed for expenses incurred in doing so, consistent with
past practice.
VI. RELEASES AND FINAL JUDGMENT
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20. Upon approval of the proposed settlement by the Court as fair,
reasonable, and adequate to the Class, the Partnerships, plaintiffs and all
other members of the Class, on behalf of themselves, their respective heirs,
executors and administrators, successors and assigns and any person(s) they
represent (collectively, the "Releasors"), in any and every capacity whatsoever,
for good and sufficient consideration, the receipt of which is hereby
acknowledged, shall be deemed to have fully, finally and irrevocably remised,
released, relinquished and forever discharged each and every one of the
Defendants and their respective present and former agents, servants, investment
bankers, members, partners, employees, officers, directors, managing directors,
parents and subsidiaries, affiliates, stockholders, heirs, executors,
representatives, attorneys, accountants, auditors, successors, assigns, and any
person, firm, trust, corporation, officer, director or other individual or
entity in which any Defendant has a controlling interest or which is related to
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or affiliated with any of the Defendants (collectively, the "Released Parties")
from each and every class or individual claim, cause or causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, demands, variances,
trespasses, damages, judgments, extents, execution of claims, liens,
obligations, undertakings, liabilities, losses, costs or expenses of any and
every nature, whatsoever (including, without limitation, attorneys' fees and
court costs), whether at law or in equity, known or unknown ("unknown claims"),
foreseen or unforeseen, fixed or contingent, actual or constructive, which have
been or might have been or in the future can or might be asserted by the
Partnerships, plaintiffs or any member of the Class relating in any manner to
the Partnerships, including without limitation claims or causes of action
relating to the management or operation of the Partnerships, fees,
reimbursements or charges to the Partnerships, the purchase or ownership of
interests in the Partnerships, or any claims or causes of action based upon or
arising out of the allegations or matters in issue in the complaints, or which
prior to the approval of the Settlement are related directly or in any way
related to any acts, facts, transactions, occurrences, representations or
omissions set forth, alleged, or otherwise embraced in the complaints, including
any claims for violations of federal, state or other law, or of the common law,
which the Releasors, or any of them, had, now have or may hereafter have as a
Partnership, member of the Class or individual, against the Released Parties, or
any of them, excepting any claim to enforce the terms of this Stipulation.
Further, in the event that primary authority to dispose of the partnership
properties passes to the Sales Agent, the Releasors remise, release, relinquish,
and forever discharge the Released Parties from any claims or causes of action,
whether class or individual, at law or in equity, known or unknown ("unknown
claims"), foreseen or unforeseen, fixed or contingent, actual or constructive,
relating in any manner to the passing or transfer of such authority to the Sales
Agent, the Sales Agent's exercise of or failure to exercise such authority,
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actions taken by the Released Parties at the request or direction of the Sales
Agent or actions not taken by the Released Parties due to the transfer of
authority to the Sales Agent, or the relinquishment of such authority by any of
the Released Parties. The releases provided in this paragraph shall be
personally enforceably by each and every one of the Released Parties, each of
which shall be deemed a third-party beneficiary of such release.
21. "Unknown claims" means any and all claims which any Partnership,
plaintiff or Class member does not know or suspect to exist in his, her or its
favor at the time of the release of the Released Parties, which if known by him,
her or it might have affected his, her or its decision not to object to the
Stipulation.
22. Upon the approval by this Court of the Settlement, a Final Judgment
shall be entered in the Action, substantially in the form attached as Exhibit D:
(i) approving the Settlement; adjudging the terms thereof to
be fair, reasonable and adequate; directing consummation of its terms and
provisions; awarding plaintiffs' counsel such fees, expenses and disbursements
as the Court deems appropriate to be paid from the proceeds of the liquidation
of the Partnerships' properties; and retaining jurisdiction to effectuate the
foregoing;
(ii) dismissing the complaints in these actions on the merits
and with prejudice to the plaintiffs and the Class and permanently barring all
members of said Class except those persons who excluded themselves therefrom
from prosecuting against the Defendants any individual or class claims which are
or could have been asserted in said actions, including without limitation any
claims arising out of or in any way relating to any of the acts, facts,
transactions, occurrences, representations or omissions set forth in the
complaints; and
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(iii) containing such other and further provisions consistent
with the terms and provisions of this Stipulation as the Court may deem
advisable.
VII. MISCELLANEOUS
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23. The Partnerships will continue to be operated in the ordinary
course and consistent with past practice until the Partnership properties have
been sold and the proceeds applied and/or distributed. At that time, the
Partnerships shall be terminated in accordance with the applicable Partnership
Agreements. Until termination, payments, and reimbursements for services
rendered by the General Partners or their affiliates shall be in accordance with
past practice.
24. Notwithstanding any other provision in this Stipulation, the
parties recognize that it may be necessary for the general partners or their
affiliates to extend short-term loans to one or more of the Partnerships to
avoid default on mortgages which such Partnerships may have previously granted
to its lenders or to cover necessary operating expenses. Any new loan of this
type in excess of $5,000 shall be made only after ten days written notice to
plaintiffs' counsel. This paragraph refers to the actual loaning of funds to the
Partnerships and does not apply to reimbursements owing from the Partnerships.
25. The parties recognize that it may be difficult to retain on-site
property management and field personnel for the Partnerships' properties during
the liquidation period. The parties agree that the General Partners and their
affiliates are authorized, in their discretion, to raise salaries of such
personnel up to 10 percent in an effort to retain on-site property management
and field personnel.
26. The Defendants hereby acknowledge and agree that the settlement of
this case and the liquidation process established herein is attributable to this
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lawsuit and that Plaintiffs' counsel shall seek approval of the Court for a fee
and expense award to be paid from the Settlement Fund.
27. Plaintiffs' counsel intends to apply for an award of fees and
expenses in this action. The settlement has bestowed upon the class members two
significant benefits and generated two separate funds from which Plaintiffs'
counsel will seek an award of attorneys fees: the monetary benefit fund and the
liquidation benefit fund.9 Therefore, Plaintiffs' counsel intends to apply for
an award that would address both of these benefits. First, Plaintiffs counsel
will apply for a fee award no greater than 33% of the monetary benefit fund that
has been received by the Class members. Second, as to the liquidation benefit
fund, Plaintiffs' counsel will seek a fee award no greater than 15% of the
increase that the Class receives over and above the estimated current market
value of the Partnership units; provided, however, that the increase on which
the fee award is calculated shall in no event exceed 100% of the estimated
current market value of the Partnership units. The estimated current market
value will be deemed to be the most recent weighted average of the respective
Partnership units' trading prices on the secondary market as reported by the
Partnership Spectrum for the period of May through June 2001. The fees and
expenses allocable to the liquidation benefit fund shall be paid from the
proceeds of the sale of the Partnerships' properties and shall not be borne by
Defendants or their affiliates, directly or indirectly. Defendants will not
oppose an application for fees and expenses by plaintiffs' counsel made in
accordance with this paragraph.
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9 The "monetary benefit fund" means the amount of the Realmark IV
payable that is available for distribution to the Realmark IV limited partners
pursuant to paragraph 8 above, together with any indebtedness owing by Realmark
VI-A to the General Partners and/or JMJ which was waived by the General Partners
and/or JMJ and made available for distribution to the Realmark VI-A limited
partners pursuant to paragraph 9 above.
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28. The parties recognize that the partnership agreements provide that
Defendants' attorneys' fees and expenses in defending these actions are
reimbursed by the partnerships and that such fees and expenses have been or will
be reimbursed.
29. The parties agree to cooperate in seeking approval of this
stipulation and the terms of the settlement set forth above by the Court and the
members of the Class. In the event that any provision of this stipulation is not
approved by the Court, each party shall have the option to rescind this
agreement. If this stipulation is rescinded, it shall have no effect whatsoever
and this action shall be returned to its status immediately prior to the
execution of this stipulation, including without limitation its status as a
putative class action in which no class has been certified.
30. All documents exchanged between the parties in this action whether
in formal discovery or informally as part of settlement discussions, and all
information reflected therein, shall be maintained confidential and not
disclosed to any third persons. At the conclusion of this action, all such
documents and any copies, summaries, and notes from such documents, shall be
destroyed or returned to Defendants. If the documents are destroyed, plaintiffs'
counsel will provide a written certification confirming this. The parties to
this Stipulation and their counsel agree not to disclose or publicize any
information obtained, formally or informally, during the pendency of these
lawsuits or any information relating to the settlement of these lawsuits or the
terms of the settlement, other than through the notice procedure described
above. The parties agree that this paragraph may be specifically enforced by
injunction or otherwise, and that such agreement shall not preclude other
applicable remedies.
31. This stipulation and its exhibits constitute the sole and entire
agreement among the parties hereto with respect to the subject matter hereof and
no representations, warranties, inducements, promises, or agreements (oral or
otherwise) not embodied or incorporated herein, have been made concerning or in
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connection with this stipulation, or the exhibits hereto. Any and all prior
discussions, negotiations, agreements, commitments and understandings relating
thereto, are superseded hereby and merged herein. The provisions of this
stipulation (including any time periods specified herein) may be modified by
written agreement of all of the parties with the consent of the Court without
further notice to the Class, unless the Court requires such notice. The terms or
provisions of this stipulation may not be changed, waived, modified or varied in
any manner whatsoever unless in writing duly signed by all parties hereto. Any
failure by any party to this agreement to insist upon the strict performance by
any other party of any of the provisions of this stipulation shall not be deemed
a wavier of any of the provisions hereof, and such party, notwithstanding such
failure, shall have the right thereafter to insist upon the strict performance
of any and all the provisions of this agreement to be performed by such other
party.
32. This stipulation, including, but not limited to, the releases
contained herein, shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to its conflict of laws
principles. This stipulation and its exhibits shall be considered to have been
negotiated, executed and delivered, and to be wholly performed, in the State of
New York. The Court shall retain jurisdiction with respect to implementation and
enforcement of the terms of the stipulation, and all parties hereto submit to
the exclusive jurisdiction of the Court for purposes of implementing and
enforcing the settlement embodied in the stipulation.
33. This stipulation shall not be construed more strictly against one
party than another merely by virtue of the fact that it may have been prepared
by counsel for one of the parties, it being recognized that, because of the
arm's length negotiations between the parties hereto, all parties hereto have
contributed substantially and materially to the preparation of this stipulation.
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34. This stipulation may be executed in separate counterparts, each of
which when so executed shall constitute an original, but all of which together
shall constitute the same instrument.
Dated: August 29, 2001
HODGSON RUSS LLP
Attorneys for Defendants
By /s/ Robert J. Lane, Jr.
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Robert J. Lane, Jr.
One M & T Plaza, Suite 2000
Buffalo, New York 14203
(716) 856-4000
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
Attorneys for Plaintiff Ira Gaines
By /s/ Lawrence P. Kolker
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Lawrence P. Kolker
270 Madison Avenue
New York, New York 10016
(212) 545-4600
LAW OFFICES OF VINCENT T. GRESHAM
Attorneys for Plaintiff Sean O'Reilly
and Louise Homburger
By /s/ Robert R. Elarbee
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Robert R. Elarbee
565 Franklin Road
Atlanta, Georgia 30342
(404) 705-8681
So Ordered:
/s/ Joseph G. Makowski
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Joseph G. Makowski, J.S.C.
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