1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION IN RE REGIONS MORGAN KEEGAN SECURITIES, DERIVATIVE AND ERISA LITIGATION This Document Relates to: In re Regions Morgan Keegan Open-End Mutual Fund Litigation, No. 2:07-cv-02784-SHM-dkv ) ) ) ) ) ) ) ) ) ) ) ) ) MDL Docket No. 2009 Judge Samuel H. Mays, Jr. Magistrate Judge Diane K. Vescovo DECLARATION OF GREGG M. FISHBEIN IN SUPPORT OF LEAD PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT AND CLASS CERTIFICATION 1. I am a partner with the law firm of Lockridge Grindal Nauen P.L.L.P., counsel of record for Plaintiffs. I make this declaration in support of Lead Plaintiffs’ Motion for Preliminary Approval of Proposed Class Settlement and Class Certification. I have personal knowledge of the matters stated herein, and, if called upon, I could and would competently testify thereto. 2. Attached are true and correct copies of the following exhibits: Exhibit 1: Stipulation and Agreement of Class Settlement with exhibits; Exhibit 2: Proposed Term Sheet for Settlement of RMK Open-End Funds Litigation; Exhibit 3: Renzo Comolli & Svetlana Strykh, Recent Trends in Securities Class Litigation: 2013 Full-Year Review (NERA January 21, 2014); Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 1 of 146 PageID 20969
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1
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
IN RE REGIONS MORGAN KEEGAN SECURITIES, DERIVATIVE AND ERISA
LITIGATION
This Document Relates to:
In re Regions Morgan Keegan Open-End Mutual Fund Litigation,
No. 2:07-cv-02784-SHM-dkv
)))))))))))))
MDL Docket No. 2009
Judge Samuel H. Mays, Jr.
Magistrate Judge Diane K. Vescovo
DECLARATION OF GREGG M. FISHBEIN IN SUPPORT OF LEAD
PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS SETTLEMENT AND CLASS CERTIFICATION
1. I am a partner with the law firm of Lockridge Grindal Nauen P.L.L.P.,
counsel of record for Plaintiffs. I make this declaration in support of Lead Plaintiffs’
Motion for Preliminary Approval of Proposed Class Settlement and Class Certification. I
have personal knowledge of the matters stated herein, and, if called upon, I could and
would competently testify thereto.
2. Attached are true and correct copies of the following exhibits:
Exhibit 1: Stipulation and Agreement of Class Settlement with exhibits; Exhibit 2: Proposed Term Sheet for Settlement of RMK Open-End Funds
Litigation; Exhibit 3: Renzo Comolli & Svetlana Strykh, Recent Trends in Securities Class
Litigation: 2013 Full-Year Review (NERA January 21, 2014);
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2
Exhibit 4: Laarni Bulan, Ellen M. Ryan & Lauren E. Simmons, Securities Class Action Settlements: 2013 Review and Analysis (Cornerstone Research 2013);
Exhibit 5: Lockridge Grindal Nauen P.L.L.P. firm resume; Exhibit 6: Apperson Crump PLC firm resume; Exhibit 7: Zimmerman Reed, P.L.L.P. firm resume; and Exhibit 8: Garden City Group firm resume
FURTHER YOUR DECLARANT SAITH NOT. Dated: January 22, 2015 s/ Gregg M. Fishbein
Gregg M. Fishbein
CERTIFICATE OF SERVICE
The undersigned hereby certifies that this 22nd day of January, 2015, a true and correct copy of the forgoing document was served by electronic means via e-mail transmission (including the Court’s ECF System) on the following: Shepherd D. Tate, Esq. Michael A. Brady, Esq. Bass, Berry, & Sims, PLC 100 Peabody Place, Suite 900 Memphis, TN 38103-3672 Michael L. Dagley, Esq. Britt K. Latham, Esq. W. Brantley Phillips, Jr., Esq. Bass, Berry, & Sims, PLC 150 Third Avenue South, Ste. 2800 Nashville, TN 37201
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 2 of 146 PageID 20970
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David B. Tulchin, Esq. David E. Swarts, Esq. Sullivan & Cromwell, LLP 125 Broad Street New York, NY 10004 S. Lawrence Polk, Esq. Sutherland Asbill & Brennan LLP 999 Peachtree Street, NE Atlanta, GA 30309-3996 Jeffrey Maletta, Esq. Nicole A. Baker, Esq. K & L Gates 1601 K Street NW Washington, DC 20006 Emily Nicklin, Esq. Timothy A. Duffy, Esq. Kristopher Ritter, Esq. Devon M. Largio, Esq. Kirkland & Ellis 200 East Randolph Dr., Ste. 5400 Chicago, IL 60601-6636 Leo Maurice Bearman, Jr., Esq. Eugene J. Podesta, Jr., Esq. Baker Donelson Bearman Caldwell & Berkowitz 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Peter S. Fruin, Esq. Scott S. Brown, Esq. Luther M. Dorr, Jr., Esq. Maibeth J. Porter, Esq. Maynard Cooper & Gale PC 2400 Regions Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203
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R. Hal Meeks, Jr., Esq. Amanda N. Wilson, Esq. James Bates Brannan Grover LLP 3339 Peachtree Street, NE Suite 1700 Atlanta, GA 30326 s/ Jerome A. Broadhurst Jerome A. Broadhurst
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EXHIBIT 1
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IN TIE UNITED STATES DISTRICT COITItTFOR TIDE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
IN RE REGIONS MORGAN KEEGAN
SECURITIES, DERNATIVE and ERISA LITI-
GATION
This Document Relates to:
In re Regzons Morgan Keegan Open-End MutualFund Litigation,
No. 2:07-cv-02784-SHM-dkv
MDL Docket No. 2009
Judge Samuel H. Mays, Jr.
Magistrate Judge Diane K. Vescovo
STIPULATION AND AGREEMENT OF CLASS SETTLEMENT
This stipulation and agreement of settlement (the "Class Settlement Agreement") is made
and entered into by and between, each by and through their respective counsel: (i) Lead Plaintiffs
Estate of Kathryn S. Cashdollar, Dajalis Ltd., Jeanette H. Landers, H. Austin Landers, and Frank
D. Tutor ("Lead Plaintiffs" or "Plaintiffs"); (ii) PricewaterhouseCoopers LLP ("PwC"); iii the~~)
Morgan Keegan Defendants (defined below); (iv) Defendant Regions Financial Corporation
("RFC"); (v) Defendant Regions Bank ("RB"); (vi) the Open-End Funds (defined below); (vii)
the Officer Defendants (defined below); and (viii) the Director Defendants (defined below)
(collectively (ii) through (viii), "Defendants"; and together with Lead Plaintiffs, the "Parties").
WHEREAS:
A. All capitalized words or terms herein shall have the meanings ascribed thereto
herein and in Paragraph 1 below.
B. Beginning in December 2007, shareholders filed several securities class action
complaints in the United States District Court for the Western District of Tennessee on behalf of
persons and entities who purchased or otherwise acquired shares of three "open-end" fixed-
income mutual funds that were offered by Defendant Morgan Keegan &Company, Inc.
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("Morgan Keegan"). The three Open-End Funds were the Regions Morgan Keegan Select Short
Term Bond Fund ("STF"), the Regions Morgan Keegan Select Intermediate Bond Fund ("IBF"),
and the Regions Morgan Keegan Select High Income Fund ("HIF"), each of which was a series
of Morgan Keegan Select Fund, Inc., a registered investment company (together with STF, IBF
and HIF, the "Open-End Funds" or "Funds"),I
C. In July 2008, Hyperion Brookfield Asset Management, Inc., a New York-based
investment adviser, assumed management of the Funds. New Directors for the Funds took office
at that time ("New Board").
D. On September 23, 2008, Judge Samuel H. Mays, Jr. issued an Order consolidating
the class actions on behalf of purchasers of shares in the Open-End Funds under the style In re
Regions MoNgan Keegan Open-End Mutual Fund Litigation, No. 07-cv-02784-SMH-dkv (W.D.
Tenn.) ("Class Action Lawsuit").
E. On September 30, 2009, after Notice concerning lead plaintiff proceedings
pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA") was reissued, Judge
Mays appointed Lead Plaintiffs and approved their selection of Lockridge Grindal Nauen
P.L.L.P, and Head Seifert &Vander Weide, P.A.2 as Lead Counsel and Apperson, Crump and
Maxwell as Liaison Counsel to represent the Class in the Class Action Lawsuit.
F, In the Class Action Lawsuit, Lead Plaintiffs filed a Consolidated Amended Class
Action Complaint on November 30, 2009, alleging violations of the Securities Act of 1933, the
1 Following shareholder approval of Hyperion Brookfield Asset Management as the Fund's
investment advisor in July 2008, the Funds were renamed Helios Select Short Term Bond Fund,
Helios Select Intermediate Bond Fund, and Helios Select High Income Fund; Morgan Keegan
Select Fund, Inc., was renamed Helios Select Fund, Inc.2 On October 7, 2011, Plaintiffs filed a Notice of Change of Affiliation of Counsel to note
that Head Seifert &Vander Weide, P.A. was dissolving and that Vernon J. Vander Weide had
joined Lockridge Grindal Nauen P.L.L.P.
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Securities Exchange -Act of 1934, and the Investment Company Act of 1940. By its Order dated
September 30, 2010, the Court denied Defendants' motions to dismiss Plaintiffs' 1933 Securities
Act claims and granted their motions to dismiss Plaintiffs' 1934 Exchange Act and Investment
Company Act claims. Lead Plaintiffs' and Defendants' motions for reconsideration were denied
on December 30, 2010. On June 8, 2012, Lead Plaintiffs moved for leave to file their proposed
Second Consolidated Amended Class Action Complaint ("SCAC"). On June 20, 2012, pursuant
to agreement with Defendants, the Court entered an Order granting an extension of time within
which to answer or otherwise respond to Lead Plaintiffs' motion for leave.
G. On November 30, 2010, the Funds filed a status report notifying the Court that
they had reached an agreement with Plaintiffs, reflected in a Memorandum of Understanding
("MOU" and as subsequently amended ("AMOU")). On December 6, 2010, the District Court
entered an order preliminarily approving the agreement outlined in the MOU. As part of the
Litigation, the Funds provided 510,000 pages of documents to Plaintiffs, including 236,000
pages of PwC documents and work papers that PwC had provided to the Funds.
H. On March 14, 2011, Plaintiffs and the Funds jointly moved for approval of the
Partial Settlement between the class and the Funds and approval of the AMOU. All Defendants
except the Funds opposed. The Court has not ruled on this joint motion by Plaintiffs and the
Funds.
I. In the summer of 2013, the Parties retained former United States District Court
Judge Layn R. Phillips, a respected and experienced mediator in complex class actions, to assist
them in exploring a potential negotiated resolution of the claims asserted in the Lawsuit. On July
18, 2013, Defendants provided Plaintiffs' Counsel with more than 6.7 million pages of
confidential documents and other confidential information in advance of the mediation. On
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December 17 and 18, 2013, the Parties met with Judge Phillips in Chicago, Illinois for two days
of intensive settlement negotiations. The mediation sessions were preceded by an exchange of
comprehensive mediation statements and supporting evidence, including information from expert
reports. While these discussions narrowed the Parties' differences and clarified the merits and
value of the Parties' claims and defenses, no agreement was reached.
J. On February 19, 2014, the Parties resumed settlement negotiations with Judge
Phillips in New York, New York. The Parties ultimately reached an agreement-in-principle and
signed a "Proposed Term Sheet for Settlement of RMK Open-End Funds Litigation" (the
"Settlement Term Sheet") consistent with the terms and conditions set forth herein.
K. On February 25, 2014, the Parties advised the Court that they were working on a
resolution and requested that the Court stay issuance of any ruling on the motion for approval of
the Partial Settlement and AMOU pending the consummation of this Class Settlement
Agreement. As part of the Settlement, Plaintiffs and the Funds are withdrawing their motion for
approval of the Partial Settlement and the AMOU.
L. Plaintiffs, through Lead Counsel, Liaison Counsel, and their additional counsel,
have conducted a thorough investigation relating to the claims, defenses, and underlying events
and transactions that are the subject of the Lawsuit. This process included reviewing and
analyzing: (i) over seven million pages of nonpublic e-mails, valuation-related materials and
other pertinent documents produced by the Funds, PwC ,and the Morgan Keegan Defendants; (ii)
over 200,000 pages of audit workpapers produced by PwC; (iii) publicly available orders, reports
and other information concerning the administrative enforcement proceedings brought by the
SEC, multiple State securities regulators, and the Financial Industry Regulatory Authority
("FINRA") against certain Defendants related to some of the conduct at issue in the Lawsuit; (iv)
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documents filed publicly by the Open-End Funds and certain Defendants with the SEC; (v) other
publicly available information and data concerning the Open-End Funds and the claims asserted
in the Complaint, including press releases, news articles, and other public statements issued by or
concerning the Defendants; (vi) research reports issued by financial analysts concerning the
Open-End Funds and securities held in the Open-End Funds' portfolios; (vii) prospectuses and
other offering documents related to the mortgage- and asset-backed securities in which the Funds
invested; (viii) pleadings filed in other pending lawsuits naming certain of the Defendants herein
as defendants or nominal defendants; and (ix) the applicable law governing the claims and
potential defenses. Plaintiffs' Counsel also reviewed the deposition transcripts of certain
employees of Defendants taken in the regulatory enforcement actions and FINRA arbitration
proceedings that were based on some of the allegations in the Lawsuit. Plaintiffs' Counsel also
consulted with a qualified expert on damages and causation issues as well as accounting and
auditing and investment company experts.
M. Defendants have denied and continue to deny any wrongdoing or any violation of
law, including any liability under the federal securities laws. Defendants have denied and
continue to deny each of the claims alleged by Plaintiffs on behalf of the Class, including all
claims asserted in the Complaint.
N. This Class Settlement Agreement, whether or not consummated, any proceedings
relating to any settlement, or any of the terms of any settlement, whether or not consummated,
shall in no event be construed as, or deemed to be evidence of, an admission or concession on the
part of the Parties with respect to any claim of any liability or damage whatsoever, or any
infirmity in any claim or defense that has been or could have been asserted. Defendants are
entering into this Settlement to eliminate the burden, expense, uncertainty, distraction, and risk of
479236.1 S
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further litigation.
O. Plaintiffs believe that the claims asserted in the Class Action Lawsuit have merit
and that the facts and evidence reviewed and analyzed to date support the claims asserted.
However, Plaintiffs and their counsel recognize and acknowledge the expense and length of
continued proceedings necessary to prosecute the Class Action Lawsuit against Defendants
through trial and appeals. Plaintiffs and their counsel also have -taken into account the uncertain
outcome and the risk of any litigation, especially in complex actions such as the Lawsuit, as well
as the difficulties and delays inherent in such litigation. Plaintiffs' Counsel also are mindful of
the possible defenses to the claims alleged in the Class Action Lawsuit. Based on their
investigation and evaluation, Plaintiffs and their counsel believe that the Class Settlement set
forth in this Class Settlement Agreement confers substantial monetary benefits upon the Class
and is in the best interests of Plaintiffs and the Class.
NOW, THEREFORE, without any concession by Plaintiffs that the Class Action
Lawsuit lacks merit, and without any concession by Defendants of any liability or wrongdoing or
lack of merit in their defenses, it is hereby STIPULATED ANl) AGREED, by and among the
Parties to this Class Settlement Agreement, through their respective attorneys, subject to the
approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in
consideration of the benefits flowing to the Parties hereto, all Released Claims and all Released
Defendants' Claims as against all Released Parties shall be compromised, settled, released and
dismissed with prejudice and without costs, upon and subject to the following terms and
conditions.
DEFINITIONS
1. As used in this Class Settlement Agreement, the following terms shall have the
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meanings set forth below:
(a) "Alternative Judgment" means a form of final judgment that may be
entered by the Court but in a form other than the form of Judgment provided for in this Class
Settlement Agreement and where none of the Parties hereto elects to terminate this Settlement by
reason of such varzance.
(b) "Authorized Claimant" means a Class Member who timely submits a valid
Proof of Claim and Release form to the Claims Administrator that is accepted for payment by the
Court.
(c) "Claims Administrator" means the firm to be retained by Plaintiffs'
Counsel, subject to Court approval, to provide all notices approved by the Court to Class
Members, process Proofs of Claim and administer the Settlement.
(d) "Class" or "Class Member" or "Settlement Class" or "Settlement Class
Member" means: all Persons (as defined below) who (1) purchased any class of redeemable
shares of STF, IBF or HIF at any time during the period from December 6, 2004 through
December 6, 2007, inclusive; or (2) held and/or redeemed on or after July 3, 2006 through the
end of the Settlement Class Period (as defined below) shares of STF, IBF or HIF and were
damaged thereby. Excluded from the Class Settlement, the Settlement Class and Settlement
Class Members and from any participation in any form in this Settlement ("Excluded Persons")
are:
(i) the Individual Defendants and the members of the immediate
families of the Individual Defendants;
(ii) Defendants, other than the Individual Defendants, and the
subsidiaries and affiliates of Defendants (including but not limited to RFC, Morgan Asset
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Management, Inc., RB, Morgan Keegan, Morgan Properties LLC, and MK Holding, Inc.);
(iii) any Person who is a director ox officer subject to § 16 of the
Securities Exchange Act of 1934, partner or controlling person of the Open-End Funds or any
other Defendant;
(iv) any entity in which any Defendant has a controlling interest;
(v) any member of the TAL Fiduciary Accounts (defined below);
(vi) any Person who has at any time filed a proceeding with FINRA
against one or more Released Defendant Parties concerning losses alleged to be attributable to
the purchase or holding of shares in one or more of the Open-End Funds during the Class Period,
and such proceeding was not subsequently withdrawn or dismissed pursuant to a specific
agreement to allow the Person to participate as a Class Member;
(vii) any Person who has at any time filed a state court action that has
not been removed to federal court, or has been removed and remanded, against one or more of
the Defendants concerning losses alleged to be attributable to the purchase or holding of shares
in one or more of the Open-End Funds during the Class Period, and whose claims in that action
have been dismissed with prejudice, released, or fully adjudicated absent a specific agreement
with such Defendants) to allow the Person to participate as a Class Member;
(viii) any Person who has at any time filed a federal action or state court
action that has been removed to federal court, against one or more of the Defendants concerning
losses alleged to be attributable to the purchase or holding of shares in one or more of the Open-
End Funds during the Class Period, and whose claims in that action have been dismissed with
prejudice, released, or fully adjudicated absent a specific agreement with such Defendants) to
allow the Person to participate as a Class Member;
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(ix) any Person who has at any time individually settled with one or
more of the Defendants claims concerning losses alleged to be attributable to the purchase or
holding of shares in one or more of the Open-End Funds during the Class Period, and whose
claims in that settlement have been dismissed with prejudice, released, or fully adjudicated
absent a specific agreement with such Defendants) to allow the Person to participate as a Class
Member;
(x) any Person who submits a valid and timely request for exclusion
from the Class in accordance with the requirements set forth in the Notice; and
(xi) the legal representatives, heirs, successors and assigns of any such
excluded Person or entity.
Provided, however, these exclusions do not extend to the Regions 401(k) Plan or
the Morgan Keegan 401(k) Plan, or any portion thereof, which plans have participants who may
have held shares in STF, IBF and/or HIF. Neither the Regions 401(k) Plan nor the Morgan
Keegan 401(k) Plan shall be construed, for purposes of this Settlement, as being either
"affiliates" of any Defendant or entities in which any Defendant has a controlling interest.
Moreover, notwithstanding anything in this Settlement or plan of allocation to the contrary,
nothing in this Settlement or plan of allocation shall be .construed in any way to limit the ability
of the Regions 401(k) Plan or the Morgan Keegan 401(k) Plan to fully participate in the
Settlement and in any recovery hereunder. These exclusions also do not extend to trusts or
accounts as to which the control or legal ownership by any Defendant (or by any subsidiary or
affiliate of any Defendant) is derived or arises from an appointment as trustee, custodian, agent,
or other fiduciary ("Fiduciary Accounts") unless (i) that Fiduciary Account is part of the TAL
Fiduciary Accounts or (ii) with respect to any such Fiduciary Account, any Person has filed (A) a
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proceeding (described in Paragraph 1(d)(vi)-(viii)) against one or more Released Defendant
Parties concerning the purchase or holding of shares in one or more of the Open-End Funds
during the Class Period and such proceeding was not subsequently dismissed to allow the Person
to specifically participate as a Class Member or (B) otherwise resolved said Person's claims as
contemplated in Paragraph 1(d)(ix). With respect to Open-End Fund shares for which the TAL
Orders authorize the Trustee ad Litem to prosecute the claims or causes of action pleaded in the
Complaint ("TAL Represented Open-End Fund Shares"), "Class" and "Class Member" also
excludes Persons who are, or were during the Class Period, trust and custodial account
beneficiaries, principals, settlors, co-trustees, and others owning beneficial or other interests in
the TAL Represented Open-End Fund Shares ("Such Persons"), but this exclusion- applies only
to any claims or causes of action of Such Persons that the Trustee ad Litem is authorized by the
TAI, Orders to prosecute. With respect to Open-End Fund Shares that are not TAL Represented
Open-End Fund Shares and in which Such Persons have a beneficial or other interest, the
foregoing partial exclusion of Such Persons does not apply.
(e) "Class Period" or "Settlement Class Period" means the period December
6, 2004 through May 29, 2009.
(~ "Class Settlement" means the resolution of the Class Action Lawsuit as
against Defendants in accordance with the terms and provisions of this Class Settlement
Agreement.
(g) "Class Settlement Agreement" means this Stipulation and Agreement of
Class Settlement.
(h) "Class Settlement Amount" means the total principal amount of One
Hundred Twenty-Five Million and no/100 Dollars ($125,000,000.00) in cash less, pursuant to a
~F79236.1 1 ~
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separate settlement agreement between Lead Plaintiffs, Derivative Plaintiffs and the Funds in the
Derivative Action Lawsuit, Fifteen Million and no/100 Dollars ($15,000,000.00) to be paid to the
Funds by certain Defendants other than the Funds to settle the claims asserted in the Derivative
Action Lawsuit on behalf of the Funds against such other Defendants ("Funds Settlement
Amount") for the net cash amount of One Hundred Ten Million and no/100 Dollars
($110,000,000.00).
(i) "Class Settlement Fund" means the Class Settlement Amount and any
earnings thereon.
(j) "Complaint" means the [Proposed] Second Consolidated Amended Class
Action Complaint filed on June 6, 2012 (ECF No. 395, filed as Exhibit A to ECF No. 394 in
Case No. 2:07-cv-02784-SHM-dkv).
(k) "Court" means the United States District Court for the Western District of
Tennessee, Western Division.
(1) "Defendants" means the Morgan Keegan Defendants, RFC, RB, the Open-
End Funds, the Officer Defendants, the Director Defendants, and PwC.
(m) "Defendants' Counsel" means the law firms of Bass Berry &Sims PLC;
Maynard, Cooper &Gale, P.C.; Sullivan &Cromwell LLP; K&L Gates LLP; Paul Hastings
successors, assigns, parents, subsidiaries, divisions, joint ventures, general or limited partners or
partnerships, affiliates, and limited liability companies; the spouses, members of the immediate
families, legal representatives of Lead Plaintiffs, and Plaintiffs' Counsel, who are individuals, as
well as any trust of which any Class Member, Lead Plaintiff, or Plaintiffs' Counsel is the settlor
or which is for the benefit of any of their immediate family members. Released Plaintiff Parties
does not include any Class Member or Person who timely and validly seeks exclusion from the
Class.
(vv) "RFC" means Regions Financial Corporation. Regions Financial
Corporation is the parent company of Regions Bank, Morgan Asset Management, Inc. (now
known as Regions Investment Management, Inc.), Morgan Properties LLC, as well as several
other entities, and is the former parent company of Morgan Keegan &Company, Inc. and MK
Holding, Inc.
(ww) "Settlement Amount" means the total principal amount of One Hundred
Twenty-Five Million and no/100 Dollars ($125,000,000.00) in cash paid to settle the Class
Action Lawsuit and the Derivative Action Lawsuit pursuant to this Class Settlement Agreement
and the separate Derivative Settlement Agreement, respectively, which is divided between the
Class Settlement Amount and the Funds Settlement Amount.
(xx) "Settlement Class" means the "Class."
(yy) "Settlement Hearing" means the hearing to be held by the Court to
determine whether the proposed Settlement is fair, reasonable, and adequate and should be
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approved.
(zz) "Summary Notice" means the Summary Notice of Pendency of Class
Action and Proposed Settlement and Motion for Attorneys' Fees and Expenses for publication,
which, subject to approval of the Court, shall be substantially in the form annexed as Exhibit A-3
to Exhibit A hereto.
(aaa) "TAL Orders" means the orders entered by the Probate Court of Jefferson
County, Alabama, on June 20, 2008, and June 30, 2008, for the appointment of C. Fred Daniels
as a temporary special fiduciary, or Trustee ad Litem, to take certain litigation actions in
substitution for Regions Bank in Regions Bank's capacity as trustee, directed trustee, custodian,
agent, or other fiduciary on behalf of certain Regions Bank trusts, custodial accounts, and other
fiduciary accounts that were open and existing on June 30, 2008, and which held or had held
shares of the Open-End Funds. "TAL Orders" also includes any subsequent orders by the
Probate Court of Jefferson County, Alabama, in the proceeding that resulted in Mr Daniels'
appointment as Trustee ad Litem.
(bbb) "TAL Fiduciary Accounts" means the trusts, custodial accounts, and other
fiduciary accounts, such as decedents' estates, guardianships, and conservatorships, as well as
ERISA-non-fiduciary accounts: (a) which were identified by Regions Bank to the TAL as open
at Regions Bank on June 30, 2008, and as satisfying the criteria in the TAL Orders for inclusion
within the scope of the TAL's appointment; and (b) which (i) purchased, held, and/or redeemed
shares of STF, IBF, or HIF during the Settlement Class Period and were damaged thereby; (ii)
did not elect out of the TAL's appointment pursuant to the TAL Orders; and (iii) are not
removed or excluded from the TAL's appointment by an order of the Probate Court that issued
the TAL Orders.
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(ccc) "Taxes" means all taxes on the income of the Class Settlement Fund and
expenses and costs incurred in connection with the taxation of the Class Settlement Fund
(including, without limitation, interest, penalties and the expenses of tax attorneys and
accountants).
(ddd) "Unknown Claims" means any and all Released Claims, which Plaintiffs
or any other Class Members do not know or suspect to exist in his, her or its favor at the time of
the release of the Released Defendant Parties, and any Released Defendants' Claims that
Defendants do not know or suspect to exist in his, her or its favor at the time of the release of the
Released Plaintiff Parties, which if known by him, her or it might have affected his, her or its
decisions) with respect to the Settlement. Unknown Claims include those claims in which some
or all of the facts comprising the claim may be unsuspected, or even undisclosed, concealed, or
hidden. With respect to any and all Released Claims and Released Defendants' Claims, the
Parties stipulate and agree that, upon the Effective Date, Plaintiffs and Defendants shall
expressly, and all other Class Members shall be deemed to have, and by operation of the
Judgment or Alternative Judgment shall have, expressly waived and relinquished 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 Cal. Civ. Code
§ 1542, which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
Plaintiffs, the other Class Members, or Defendants 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 and the Released Defendants' Claims, but Plaintiffs and
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Defendants shall expressly, fully, finally and forever settle and release, and all other Class
Members shall be deemed to have settled and released, and upon the Effective Date and by
operation of the Judgment or Alternative Judgment shall have settled and released, fully, finally,
and forever, any and all Released Claims and Released Defendants' 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,
heretofore have existed, or coming into existence in the future, including, but not limited to,
conduct which is negligent, reckless, intentional, with or without malice, or a breach of any duty,
law, rule or regulation, without regard to the subsequent discovery or existence of such different
or additional facts. Plaintiffs and Defendants acknowledge, and other Class Members by
operation of law shall be deemed to have acknowledged, that the inclusion of "Unknown Claims"
in the definition of Released Claims and Released Defendants' Claims was separately bargained
for and was a key element of the Settlement.
SCOPE AND EFFECT OF SETTLEMENT
2. The obligations incurred pursuant to this Class Settlement Agreement are subject
to approval by the Court and such approval becoming Final, and are in full and final disposition
of the claims in the Class Action Lawsuit with respect to the Released Parties and any and all
Released Claims and Released Defendants' Claims.
3. For purposes of this Class Settlement only:
(a) the Parties agree to: (i) certification of the Class Action Lawsuit as a class action,
pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), on behalf of the Settlement Class as defined in
Paragraph 1(d); (ii) the certification of Lead Plaintiffs as Class Representatives for the Class; and
(iii) the appointment of Lockridge Grindal Nauen P.L.L.P. as Lead Counsel for the Class and
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Apperson Crump PLC as Liaison Counsel for the Class.
(b) Defendants stipulate, solely for the purpose of and as a condition to this Class
Settlement, to the filing of the Proposed Second Amended Consolidated Complaint (2:07-cv-
02784-SHM-dkv ECF No. 395, filed as Exhibit A to ECF No. 394) pursuant to Lead Plaintiffs'
pending motion for leave (2:07-cv-02784-SHM-dkv ECF No. 392), subject to Defendants'
reservation of all their rights as to Lead Plaintiffs' motion for leave to file the Complaint, and as
to any claims and allegations asserted in the Complaint, if this Class Settlement is not approved.
4. By operation of the Judgment or Alternative Judgment, as of the Effective Date,
Plaintiffs and each and every other Class Member on behalf of themselves and each of their
respective heirs, executors, trustees, administrators, predecessors, successors, and assigns, shall
be deemed to have fully, finally, and forever waived, released, discharged, and dismissed each
and every one of the Released Claims against each and every one of the Released Defendant
Parties and shall forever be barred and enjoined from commencing, instituting, prosecuting, or
maintaining any of the Released Claims against any of the Released Defendant Parties.
5. By operation of the Judgment or Alternative Judgment, as of the Effective Date,
Defendants, on behalf of themselves and each of their respective heirs, executors, trustees,
administrators, predecessors, successors, and assigns shall be deemed to have fully, finally, and
forever waived, released, discharged, and dismissed each and every one of the Released
Defendants' Claims, as against each and every one of the Parties and shall forever be barred and
enjoined from commencing, instituting, prosecuting, or maintaining any of the Released
Defendants' Claims against any of the Parties.
THE CLASS SETTLEMENT CONSIDERATION
6. In full settlement of the claims asserted in the Lawsuit against Defendants and in
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consideration of the releases specified in Paragraphs 4-5 above, RFC, and PwC shall, as they
have separately agreed amongst each other, pay or cause to be paid the Class Settlement Amount
into the Escrow Account within twenty (20) business days after the Court enters the Preliminary
Approval Order and Lead Counsel has provided Defendants' Counsel (or their designee) with
complete and accurate wiring instructions, payment address, and a complete and accurate W-9
form for the Class Settlement Fund. Under no circumstances will the non-Fund Defendants be
required to pay or cause to be paid in cash to the Class more than the aggregate principal
amounts of the Class Settlement Amount and the Funds Settlement Amount pursuant to this
Class Settlement Agreement and the separate Derivative Settlement Agreement, the Class
Settlement set forth herein, and the Funds Settlement set forth in the separate Derivative
Settlement Agreement.
7. Defendants and Defendants' Counsel shall have no responsibility for, interest in,
or liability whatsoever with respect to: (i) any act, omission, or determination of Plaintiffs'
Counsel, the Escrow Agent or the Claims Administrator, or any of their respective designees or
agents, in connection with the administration of the Class Settlement or otherwise; (ii) the
management, investment, or distribution of the Class Settlement Fund; (iii) the Plan of
Allocation; (iv) the determination, administration, calculation, or payment of any claims asserted
against the Class Settlement Fund; (v) any losses suffered by, or fluctuations in value of, the
Class Settlement Fund; (vi) the payment of Notice and Administration Expenses, other than as
set forth in Paragraph 45 below; or (vii) the payment or withholding of any Taxes, expenses,
and/or costs incurred in connection with the taxation of the Class Settlement Fund or the filing of
any returns.
8. Contingent upon the Court including in the Preliminary Approval Order a
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requirement that the identified Defendant or Defendants provide the information set forth in
subsections (a)-(c) of this Paragraph, then within thirty (30) calendar days after that preliminary
approval of this Settlement by the Court:
(a) RFC and/or the Morgan Keegan Defendants shall provide or cause to be provided
to Lead Counsel and the Claims Adn:iinistrator, at no cost to the Class, Plaintiffs, Lead Counsel
or the Claims Administrator, the following information that is reasonably available regarding
those Excluded Persons reasonably capable of being identified: (i) a list of all Excluded Persons
(including all affiliates within the meaning of Paragraph 1(d) of such Persons) who purchased,
held and/or redeemed shares of one or more of the Funds during the Class Period; (ii) at Lead
Counsel's request, representative examples of redacted releases, notices of non-participation,
settlement agreements, or other evidence regarding the Excluded Persons identified in Paragraph
1(d)(v)-(ix); and (iii) other information as may be reasonably necessary to identify Excluded
Persons, provided that in the event that an Excluded Person seeks to assert a claim to the Net
Class Settlement Fund ox the Net Funds Settlement Fund, or otherwise objects to being excluded
therefrom, Defendants' Counsel shall cooperate with Lead Counsel and Funds' Counsel in
providing evidence, if available, that Lead Counsel and Funds' counsel may reasonably request
that supports the exclusion and enables them to respond thereto;
(b) the Open-End Funds shall provide or cause to be provided to Lead Counsel and
the Claims Administrator, at no cost to Plaintiffs, Plaintiffs' Counsel or the Claims
Administrator, lists of the names and addresses of Persons who held shares of the Open-End
Funds during the Class Period, the dates and amounts of all dividends paid by the Funds to such
Persons during the Class Period, the dates and amounts (dollar value and number of shares) of all
purchases or other acquisitions of the Funds' shares (including reinvested dividends) during the
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Class Period, and the dates and amounts of all redemptions of the Funds' shares during the Class
Period, to the extent available to them, such data to be provided in a form reasonably satisfactory
to the Claims Administrator; and
(c) RFC and/or the 1Vlorgan Keegan Defendants shall provide or cause to be provided
to Lead Counsel and the Claims Administrator, at no cost to Plaintiffs, Plaintiffs' Counsel, the
Class or the Claims Administrator, to the extent reasonably available to them:
(i) lists of the names and addresses of Persons who purchased and/or redeemed
shares of the Open-End Funds during the Class Period,
(ii) the number of each Person's shares and Fund in which such shares were held on
July 3, 2006,
(iii) the NAV of such shares on July 3, 2006,
(iv) the dates and amounts of all dividends paid by the Funds to such Persons during
the Class Period, the dates and amounts of all purchases or other acquisitions of the Funds'
shares (including reinvested dividends) during the Class Period,
(v) the dates and amounts (dollar value and number of shares) of all redemptions of
the Funds' shares during the Class Period, and
(vi) the amount of the distribution from the States' settlement fund and the SEC Fair
Fund received by each such Person with respect to his/her/its investments in the Funds. In lieu
of the foregoing information, Defendants shall provide Lead Counsel and the Claims
Administrator with access to all repositories of some or all of such information as may already
exist or from which some or all of such information can be readily calculated, in a form
satisfactory to Lead Counsel and the Claims Administrator.
(d) The information to be produced pursuant to this Paragraph 8 constitutes
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confidential and privacy protected business and personal information, and shall be treated as
confidential by the Claims Administrator, Lead Counsel, and Funds' Counsel. The Claims
Administrator, Lead Counsel and Funds' Counsel agree to use this information solely for the
purposes of providing notice, administering proofs of claim or requests for exclusion,
communicating with members of the Settlement Class, responding to Excluded Persons, or
otherwise administering the proposed settlement pursuant to the Class Settlement Agreement and
the Orders) of the Court, and further agree to not disclose this information to anyone (other than
the Class Member whose information is at issue) absent express authorization from the Court.
USE AND TAX TREATMENT OF SETTLEMENT FUND
9. The Class Settlement Fund shall be used: (i) to pay any Taxes and related interest
and penalties, if any; (ii) to pay Notice and Administration Expenses; (iii) to pay any attorneys'
fees and expenses awarded by the Court; (iv) to pay any costs and expenses allowed by the
PSLRA and awarded to Lead Plaintiffs by the Court; (v) to pay any other fees and expenses
awarded by the Court; and (vi) to pay the claims of Authorized Claimants.
10. The Net Class Settlement Fund shall be distributed to Authorized Claimants as
provided in Paragraphs 23-35 below: The Net Class Settlement Fund shall remain in the Escrow
Account prior to the Effective Date. All funds held in the Escrow Account shall be deemed to be
in the custody of the Court and shall remain subject to the jurisdiction of the Court until such
time as the funds shall be disbursed or returned, pursuant to Paragraph 45 of this Class
Settlement Agreement, and/or further order of the Court. The Escrow Agent shall invest funds in
the Escrow Account in instruments backed by the full faith and credit of, or insured by an
instrumentality of, the United States Government (or a mutual fund invested solely in such
instruments). Defendants and Defendants' Counsel shall have no responsibility for, interest in,
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or liability whatsoever with respect to investment decisions executed by the Escrow Agent.
11. After the Class Settlement Amount has been paid into the Escrow Account in
accordance with Paragraph 6 above, the Parties agree to treat the Escrow Account as a "qualified
settlement fund" within the meaning of Treas. Reg. § 1.468B-1. In addition, Lead Counsel shall
timely make, or cause to be made, such elections as necessary or advisable to carry out the
provisions of this paragraph, including the "relation-back election" (as defined in Treas. Reg.
§1.468B-1) to the earliest permitted date. Such election shall be made in compliance with the
procedures and requirements contained in such regulations. It shall be the responsibility of Lead
Counsel to timely and properly prepare and deliver, or cause to be prepared and delivered, the
necessary documentation for signature by all necessary parties, and thereafter take all such
actions as may be necessary or appropriate to cause the appropriate filing to occur.
(a) For the purposes of 26 U.S.C. § 468B(g) and Treas. Reg. §§ 1.468B-1
through 1.468B-5, the "administrator" responsible for the tax obligations of the QSF shall be
Lead Counsel or their successors, who shall timely and properly file, report to recipients and pay
or cause each of these to be performed, all informational and other tax returns and payments
required by state and federal law to the payments made by the fund, the earnings on the fund
deposited in the Escrow Account and in successor accounts (including without limitation the
returns described in Treas. Reg. § 1.468B-2(k)). Such returns, reports to recipients and tax
payments (as well as the election described above) shall be consistent with this subparagraph and
in all events shall reflect that all Taxes (including any estimated taxes, earnings, tax, interest, or
penalties) on the income earned on the funds deposited in the Escrow Account shall be paid aut
of such funds as provided in subparagraph (c) hereof.
(b) All Taxes shall be paid solely out of the Escrow Account. In all events,
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Defendants and Defendants' Counsel shall have no liability or responsibility whatsoever for the
Taxes or the filing of any tax returns or other documents with the Internal Revenue Service or
any state or local taxing authority. In the event any Taxes are owed by any of the Defendants on
any earnings on the funds on deposit in the Escrow Account, such amounts shall also be paid out
of the Escrow Account. Any taxes or tax expenses owed on any earnings on the Class
Settlement Amount prior to its transfer to the Escrow Account shall be the sole responsibility of
Defendants.
(c) Taxes shall be treated as allowed by law and shall be timely paid, or
caused to be paid, by Lead Counsel out of the Escrow Account without prior order from the
Court or approval by Defendants, and Lead Counsel shall be obligated (notwithstanding anything
herein to the contrary) to withhold from distribution to Authorized Claimants any funds
necessary to pay such amounts (as well as any amounts that may be required to be withheld
pursuant to the information reporting and withholding obligations of the QSF). The Parties agree
to cooperate with Lead Counsel, each other, and their tax attorneys and accountants to the extent
reasonably necessary to carry out the provisions of this paragraph.
12. This is not aclaims-made settlement. As of the Effective Date, Defendants and/or
such other persons or entities funding the Class Settlement on Defendants' behalf shall not have
any right to the return of the Class Settlement Fund or any portion thereof for any reason.
ATTOT~NEYS' FEES AND EXPENSES
13. Plaintiffs' Counsel will apply to the Court for an award from the Class Settlement
Fund of attorneys' fees and reimbursement of litigation expenses incurred in prosecuting the
Class Action Lawsuit, plus any earnings on such amounts at the same rate and for the same
periods as earned by the Class Settlement Fund ("Fee and Expense Application"). The award of
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attorneys' fees sought by Plaintiffs' Counsel shall not exceed 30 percent of the Class Settlement
Fund. Defendants shall take no position with respect to the Fee and Expense Application.
14. The amount of attorneys' fees and expenses awarded by the Court is within the
sole discretion of the Court. Any attorneys' fees and expenses awarded by the Court, plus
earnings thereon, shall be paid from the Class Settlement Fund to Lead Counsel immediately
after entry of the Order awarding such attorneys' fees and expenses, notwithstanding the
existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral
attack on the Class Settlement or any part thereof.
15. Any payment of attorneys' fees and litigation expenses pursuant to Paragraphs
13-14 above shall be subject to Lead Counsel's obligation to make refunds or repayments to the
Class Settlement Fund of any paid amounts plus accrued earnings at the same net rate as it is
earned by the Settlement Fund, if the Class Settlement is terminated or fails to become effective
fox any reason or if, as a result of any appeal or further proceedings on remand, or successful
collateral attack, the award of attorneys' fees and/or litigation expenses is reduced or reversed by
Final non-appealable court order. Lead Counsel shall make the appropriate refund or repayment
in full no later than twenty (20) business days after receiving notice from a court of appropriate
jurisdiction of the termination of the Class Settlement or notice of any reduction or reversal of
the award of attorneys' fees and/or litigation expenses by Final non-appealable court order.
16. With the sole exception of Defendants causing the payment of the Class
Settlement Amount into the Escrow Account as provided for in Paragraph 6, Defendants shall
have no responsibility for, and nn liability whatsoever with respect to, any payment to Plaintiffs'
Counsel in the Class Action Lawsuit that may occur at any time.
17. Defendants shall have no responsibility for, and no liability whatsoever with
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respect to, the allocation of any attorneys' fees or expenses among any Plaintiffs' Counsel in the
Class Action Lawsuit, or any other Person who may assert some claim thereto, or any fee or
expense awards the Court may make in that Lawsuit.
18. Defendants shall have no responsibility for, and no liability whatsoever with
respect to, any attorneys' fees, costs, or expenses incurred by or on behalf of the Class Members,
whether or not paid from the Escrow Account.
19. The procedure for and the allowance or disallowance by the Court of any Fee and
Expense Application are not part of the Class Settlement set forth in this Class Settlement
Agreement, and are separate from the Court's consideration of the fairness, reasonableness and
adequacy of the Class Settlement set forth in the Class Settlement Agreement, and any order or
proceeding relating to any Fee and Expense Application, including an award of attorneys' fees or
expenses in an amount less than the amount requested by Lead Counsel, or any appeal from any
order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel
the Class Settlement Agreement, or affect or delay the finality of the Judgment or Alternative
Judgment approving the Class Settlement Agreement and the Class Settlement set forth herein,
including, but not limited to, the release, discharge, and relinquishment of the Released Claims
against the Released Defendant Parties, or any other orders entered pursuant to this Class
Settlement Agreement. Plaintiffs and Plaintiffs' Counsel may not cancel or terminate the Class
Settlement Agreement or the Class Settlement in accordance with Paragraph 39 or otherwise
based on the Court's or any appellate court's ruling with respect to fees and expenses in the
Class Action Lawsuit.
CLASS ACTION FAIRNESS ACT NOTICE
20. No later than ten (10) calendar days after the Class Settlement Agreement is filed
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with the Court, Defendants, through the Claims Administrator, shall cause to be served, upon the
appropriate official(s), a notice of the proposed Class Settlement as required under 28 U.S.C. §
1715. Pursuant to 28 U.S.C. § 1715(d), the Judgment may be issued by the Court no earlier than
ninety (90) days after the appropriate official has been served with the notices) required by 28
U.S.C. §1715(b). The expenses required to satisfy the notice requirements of 28 U.S.C. § 1715
shall be paid by RFC and PwC.
ADMII`TISTRATION EXPENSES
21. Except as otherwise provided herein, the Class Settlement Fund shall be held in
the Escrow Account until the Effective Date.
22. Prior to the Effective Date and subject to the provisions of Paragraph 45, without
further approval from Defendants or further order of the Court, Lead Counsel may expend up to
Five Hundred Thousand Dollars ($500,000) from the Class Settlement Fund to pay Notice and
Administration Expenses actually incurred. Taxes and fees related to the Escrow Account and
investment of the Class Settlement Fund may be paid as incurred from the assets held in the
Escrow Account. After the Effective Date, without further approval of Defendants or further
order of the Court, Notice and Administration Expenses may be paid from the Class Settlement
Fund as incurred.
DISTRIBUTION TO AUTHORIZED CLAIMANTS
23. Lead Counsel will apply to the Court for a Distribution Order, on notice to
Defendants' Counsel, approving the Claims Administrator's administrative determinations
concerning the acceptance and rejection of the claims submitted herein, and, if the Effective Date
has occurred, directing the payment of the Net Class Settlement Fund to Authorized Claimants.
24. The Claims Administrator shall administer the Settlement under Lead Counsel's
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supervision and subject to the jurisdiction of the Court. Except as stated in Paragraphs 6 and 8
herein, Defendants and Defendants' Counsel shall have no responsibility for, interest in, or
liability whatsoever with respect to the administration of the Settlement or the actions or
decisions of the Claims Administrator, and shall have no liability to the Class in connection with
such administration.
25. The Claims Administrator shall determine each Authorized Claimant's pro rata
share of the Net Class Settlement Fund based upon each Authorized Claimant's Recognized Loss
Amount, as defined in the Plan of Allocation of Net Class Settlement Fund (the "Plan of
Allocation") included in the Notice, or in such other plan of allocation as the Court may approve.
26. Defendants will take no position with respect to the Plan of Allocation. The Plan
of Allocation is a matter separate and apart from the proposed Class Settlement between
Plaintiffs and Defendants, and any decision by the Court concerning the Plan of Allocation shall
not affect the validity or finality of the proposed Class Settlement. The Plan of Allocation is not
a necessary term of this Class Settlement Agreement and it is not a condition of this Class
Settlement Agreement that any particular plan of allocation be approved by the Court. Plaintiffs
and their counsel may not cancel or terminate the Class Settlement Agreement or the Class
Settlement in accordance with Paragraph 39 or otherwise based on the Court's or any appellate
court's ruling with respect to the Plan of Allocation or any plan of allocation in the Class Action
Lawsuit. Defendants and Defendants' Counsel shall have no responsibility or liability for
reviewing or challenging claims, the allocation of the Net Class Settlement Fund, or the
distribution of the Net Class Settlement Fund.
ADMINISTRATION OF THE CLASS SETTLEMENT
27. Any member of the Class who fails to timely submit a valid Proof of Claim
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(substantially in the form of Exhibit A-2 to Exhibit A hereto) will not be entitled to receive any
of the proceeds from the Net Class Settlement Fund, except as otherwise ordered by the Court,
but will otherwise be bound by all of the terms of this Class Settlement Agreement and the Class
Settlement, including the terms of the Judgment or Alternative Judgment to be entered in the
Class Action Lawsuit and the releases provided for herein, and will be barred from bringing any
action against the released Defendant Parties concerning the Released Claims.
28. Lead Counsel shall be responsible for supervising the administration of the Class
Settlement and disbursement of the Net Class Settlement Fund by the Claims Administrator.
Lead Counsel shall have the right, but not the obligation, to advise the Claims Administrator to
waive what Lead Counsel deems to be de minimis or formal or technical defects in any Proofs of
Claim submitted. Defendants and Defendants' Counsel shall have no liability, obligation or
responsibility for the administration of the Class Settlement, the allocation of the Net Class
Settlement Fund, or reviewing or challenging claims of Class Members. Lead Counsel shall be
solely responsible for designating the Claims Administrator, subject to approval by the Court.
29. For purposes of determining the extent, if any, to which a Class Member shall be
entitled to be treated as an Authorized Claimant, the following conditions shall apply:
(a) Each Class Member shall be required to submit a Proof of Claim,
substantially in the form annexed hereto as Exhibit A-2 to Exhibit A, supported by such
documents as are designated therein, including proof of the claimant's loss, or such other
documents or proof as the Claims Administrator or Lead Counsel, in their discretion, may deem
acceptable;
(b) All Proofs of Claim must be submitted by the date set by the Court in the
Preliminary Approval Order and specified in the Notice, unless such deadline is extended by
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Lead Counsel in their discretion and approved by the Court. Any Class Member who fails to
submit a Proof of Claim by such date shall be barred from receiving any distribution from the
Net Class Settlement Fund or payment pursuant to this Class Settlement Agreement (unless, by
Order of the Court, late-filed Proofs of Claim are accepted), but shall in all other respects be
bound by all of the terms of this Class Settlement Agreement and the Class Settlement, including
the terms of the Judgment or Alternative Judgment and the releases provided for herein, and will
be permanently barred and enjoined from bringing any action, claim or other proceeding of any
kind against any Released Party concerning any Released Claim or Released Defendants'
Claims. Provided that it is received before the motion for the Distribution Order is filed, a Proof
of Claim shall be deemed to be submitted when mailed, if received with a postmark on the
envelope and if mailed by first-class or overnight U.S. Mail or other such service and addressed
in accordance with the instructions thereon. In all other cases, the Proof of Claim shall be
deemed to have been submitted when actually received by the Claims Administrator;
(c) Each Proof of Claim shall be submitted to and reviewed by the Claims
Administrator, under the supervision of Lead Counsel, who shall determine in accordance with
this Class Settlement Agreement the extent, if any, to which each claim shall be allowed, subject
to review by the Court pursuant to subparagraph (e) below;
(d) Proofs of Claim that do not meet the submission requirements may be
rejected. Prior to rejecting a Proof of Claim in whole or in part, the Claims Administrator shall
communicate with the claimant in writing to give the claimant the chance to remedy any curable
deficiencies in the Proof of Claim submitted. The Claims Administrator, under supervision of
Lead Counsel, shall notify, in a timely fashion and in writing, all claimants whose claims the
Claims Administrator proposes to reject in whole or in part for curable deficiencies, setting forth
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the reasons therefor, and shall indicate in such notice that the claimant whose claim is to be
rejected has the right to a review by the Court if the claimant so desires and complies with the
requirements of subparagraph (e) below;
(e) If any claimant whose claim has been rejected in whole or in part desires
to contest such rejection, the claimant must, within twenty (20) calendar days after the date of
mailing of the notice required in subparagraph (d) above, serve upon the Claims Administrator a
notice and statement of reasons indicating the claimant's grounds for contesting the rejection
along with any supporting documentation, and requesting a review thereof by the Court. If a
dispute concerning a claim cannot be otherwise resolved, Lead Counsel shall thereafter present
the request for review to the Court; and
(~ The administrative determinations of the Claims Administrator accepting
and rejecting disputed claims shall be presented to the Court, on notice to Defendants' Counsel,
for approval by the Court in the Distribution Order.
30. Each claimant who submits a Proof of Claim shall be deemed to have submitted
to the jurisdiction of the Court with respect to the claimant's claim, and the claim will be subject
to investigation and discovery under the Federal Rules of Civil Procedure, provided that such
investigation and discovery shall be limited to the claimant's status as a Class Member and the
validity and amount of the claimant's claim. In connection with processing the Proofs of Claim,
no discovery shall be allowed on the merits of the Class Action Lawsuit or the Class Settlement.
31. Payment pursuant to the Distribution Order shall be deemed Final and conclusive
against all Class Members. All Class Members whose claims are not approved by the Court
shall be barred from participating in distributions from the Class Settlement Fund portion of the
Net Class Settlement Fund, but otherwise shall be bound by all of the terms of this Class
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Settlement Agreement and the Class Settlement, including the terms of the Judgment or
Alternative Judgment to be entered in the Lawsuit and the releases provided for herein, and will
be barred from bringing any action against the Released Defendant Parties concerning the
Released Claims.
32. All proceedings with respect to the administration, processing and determination
of claims described by Paragraphs 23-35 of this Class Settlement Agreement and the
determination of all controversies relating thereto, including disputed questions of law and fact
with respect to the validity of claims, shall be subject to the jurisdiction of the Court, but shall
not in any event delay or affect the finality of the Judgment or Alternative Judgment nor require
Defendants to participate in any such dispute, hearing, or controversy. Defendants will,
however, cooperate and participate as reasonably necessary to aid the Court in answering any
questions regarding such proceedings.
33. No Person shall have any claim of any kind against the Released Defendant
Parties or their counsel with respect to the matters set forth in Paragraphs 23-35 or any
subsections of those Paragraphs.
34. No Person shall have any claim against Plaintiffs or their counsel (including
Plaintiffs' Counsel), or the Claims Administrator, or other agent designated by Lead Counsel,
based on the distributions made substantially in accordance with this Class Settlement
Agreement and the Class Settlement contained herein, the Plan of Allocation, or further orders)
of the Court.
35. If there is any balance remaining in the Net Class Settlement Fund after at least
twelve (12) months from the date of distribution of the Net Class Settlement Fund (whether by
reason of tax refunds, uncashed checks or otherwise), Lead Counsel shall, if economically
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feasible, reallocate such balance in an equitable fashion among Authorized Claimants who have
cashed their checks. Any balance that still remains in the Net Class Settlement Fund, after
payment of Notice and Administration expenses, taxes, and attorneys' fees and expenses, if any,
shall be contributed to anon-sectarian charitable organization serving the public interest,
designated by Lead Plaintiffs and approved by the Court.
TER1dIS OF ~'HE PRELIMINARY APP120VAL ORDER
36. Concurrently with its application for preliminary Court approval of the Class
Settlement contemplated by this Class Settlement Agreement and promptly upon execution of
this Class Settlement Agreement, Lead Counsel shall apply to the Court for entry of the
Preliminary Approval Order, which shall be substantially in the form annexed hereto as Exhibit
A, which application shall not be opposed by Defendants or Defendants' Counsel. The
Preliminary Approval Order will, among other things, set the date and time for the Settlement
Hearing and prescribe the methods) for giving notice of the Class Settlement to the Class.
TEI2IVIS OI+' THE JUDGMENT
37. If the Class Settlement contemplated by this Class Settlement Agreement is
approved by the Court, Plaintiffs' Counsel and Defendants' Counsel shall request that the Court
enter a Judgment substantially in the form annexed hereto as Exhibit B:
(a) granting, as a condition of and solely for purposes of this Class Settlement,
Lead Plaintiffs' motion for leave to file Complaint (2:07-cv-02784-SHM-dkv ECF No. 395)
pursuant to Lead Plaintiffs' pending motion (2:07-cv-02784-SHM-dkv ECF No. 392), subject to
Defendants' reservation of rights as set forth in Paragraph 3 supra; and deeming the pending
Joint Motion for Preliminary Approval of Partial Settlement between the Class and the Funds
and AMOU (2:07-cv-02784-SHM-dkv ECF No. 309) withdrawn;
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(b) granting final approval of the Class Settlement as being fair, reasonable,
and adequate, within the meaning of Rule 23 of the Federal Rules of Civil Procedure, and
directing consummation of the Class Settlement pursuant to the terms of the Class Settlement
Agreement;
(c) directing that the Class Action Lawsuit be dismissed with prejudice and
that the Parties are to bear their own costs, except as otherwise provided in this Class Settlement
Agreement; and releasing the Released Claims;
(d) permanently barring and enjoining the institution and/or prosecution, by
Plaintiffs and the Class Members, of any other action against the Released Defendant Parties in
any court or other tribunal, forum, or proceeding asserting any Released Claims;
(e) permanently barring and enjoining the institution and/or prosecution, by
any Party of any other action against any other Party in any court or other tribunal, forum, or
proceeding asserting any claims released herein;
(~ reserving jurisdiction over the Class Action Lawsuit and the QSF created
as a result of this Settlement, including all future proceedings concerning the administration,
consummation, and enforcement of this Class Settlement Agreement;
(g) finding that all the filings made by each Party along with maintenance,
prosecution, defense and settlement of the Class Action Lawsuit were done on a good faith basis
in accordance with the PSLRA and Rule 11 of the Federal Rules of Civil Procedure;
(h) finding, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
that there is no just reason for delaying and directing entry of a final judgment; and
(i) containing such other and further provisions consistent with the terms of
this Class Settlement Agreement to which the Parties expressly consent in writing.
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EFFECTIVE DATE OF CLASS SETTLEMENT, WAIVER OR TERMINATION
38. The Effective Date of this Class Settlement shall be the date when all of the
following shall have occurred:
(a) entry of the Preliminary Approval Order, which shall be in all material
respects substantially in the form set forth in Exhibit A annexed hereto;
(b) payment of the Class Settlement Amount into the Escrow Account;
(c) The Parties have not exercised any option to terminate the Class
Settlement Agreement pursuant to Paragraphs 39 or 40;
(d) approval by the Court of the Class Settlement, following notice to the
Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and
(e} a Judgment, which shall be in all material respects substantially in the
form set forth in Exhibit B annexed hereto, has been entered, or be deemed under the Federal
Rules of Civil Procedure to have been entered, by the Court and has become Final; or in the
event that an Alternative Judgment has been entered and none of the Parties elects to terminate
the Settlement by reason of such variance, that judgment has become Final.
39. Defendants and Plaintiffs each shall have the right to terminate the Class
Settlement and this Class Settlement Agreement by providing written notice of their election to
do so ("Termination Notice"), through counsel, to all other Parties hereto within fourteen (14)
calendar days of: (a) the Court's refusal to enter the Preliminary Approval Order in any material
respect; (b) the Court's refusal to approve this Class Settlement Agreement or any material part
of it; (c) the Court's refusal to enter the Judgment in any material respect or an Alternative
Judgment; (d) the date upon which the Judgment or Alternative Judgment is modified or reversed
in any material respect by Final order of the United States Court of Appeals for the Sixth Circuit
479236.1 3 9
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or, if certiorari is granted, the Supreme Court of the United States; or regardless of notice, (e) if,
for any reason, the Derivative Settlement is terminated or otherwise fails to become effective as
set forth in the Derivative Settlement Agreement.
40. RFC and PwC shall also have the right to terminate the Settlement on behalf of all
Defendants in the event the Termination Threshold (defined below) has been reached.
(a) Simultaneously herewith, counsel for the Parties are executing a
confidential Supplemental Agreement Regarding Requests for Exclusion ("Supplemental
Agreement"). The Supplemental Agreement sets forth certain conditions under which RFC and
PwC shall each have the option to terminate the Settlement on behalf of all Defendants and
render this Class Settlement Agreement null and void in the event that requests for exclusion
from the Class exceed certain agreed-upon criteria ("Termination Threshold"). The Parties agree
to maintain the confidentiality of the Termination Threshold in the Supplemental Agreement,
which shall not be filed with the Court unless a dispute arises as to its terms, or as otherwise
ordered by the Court, nor shall the Supplemental Agreement otherwise be disclosed to anyone
other than the named Parties and their counsel unless ordered by the Court. If submission of the
Supplemental Agreement is required for resolution of a dispute or is otherwise ordered by the
Court, the Parties will undertake to have the Termination Threshold submitted to the Court in
camera or under seal. The Claims Administrator shall keep the Parties apprised of all the
requests for exclusion received on a regular basis and shall provide counsel for Defendants
within five (5) business days of receiving any such exclusion or revocation as set forth in the
Supplemental Agreement with a list of all Persons who have requested exclusion from the Class
or have submitted a revocation of a request for exclusion, together with (to the extent disclosed
in the request for exclusion or revocation of request for exclusion) the number of shares of each
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of the Open-End Funds purchased, held and/or redeemed by each such Person during the Class
Period. Defendants may also request from time to time copies of any or all requests for
exclusion received, together with all written revocations of requests for exclusion, which shall be
delivered to Defendants' Counsel promptly upon request. Separate lists of all Persons who have
validly or invalidly requested exclusion from the Class shall be provided to Defendants and the
Court at least ten (10) calendar days before the Settlement Hearing.
(b) In the event of a termination of this Settlement pursuant to the
Supplemental Agreement, this Class Settlement Agreement shall become null and void and of no
further force and effect, with the exception of the provisions of Paragraphs 44 and 45 which shall
continue to apply.
(c) The Requests for Exclusion, Persons submitting such Requests for
Exclusion, and/or the Termination Threshold pursuant to this Paragraph 40 shall not include
those Persons excluded from the Settlement pursuant to Paragraph 1(d).
41. In addition to all of the rights and remedies that the Plaintiffs have under the
terms of this Class Settlement Agreement, Plaintiffs shall also have the right to terminate the
Class Settlement in the event that Defendants do not pay, or cause to be paid, the Class
Settlement Amount as provided in Paragraph 6 above. In the event of such failure to pay,
Plaintiffs can elect to terminate by providing written notice to all other Parties to this Class
Settlement Agreement. The termination is not effective unless and until RFC and PwC fail to
pay the Class Settlement Amount within fourteen (14) calendar days of such written notice.
42. If, before the Class Settlement becomes Final, a trustee, receiver, conservator, or
other fiduciary is appointed under Title 11 of the United States Code (Bankruptcy), or any
similar law, and in the event of the entry of a Final order of a court of competent jurisdiction
479236.1 41
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determining the transfer of money or any portion thereof to the Class Settlement Fund by or on
behalf of PwC or RFC to be a preference, voidable transfer, fraudulent transfer, or similar
transaction and any portion thereof is required to be returned, and such amount is not promptly
deposited into the Class Settlement Fund by others, then, at the election of Plaintiffs, the Parties
shall jointly move the Court to vacate and set aside the release given and the Judgment or
Alternative Judgment entered, and Defendants, Plaintiffs and the members of the Class shall be
restored to their litigation positions immediately prior to the execution of the Settlement Term
Sheet on February 19, 2014.
43. If an option to withdraw from and terminate this Class Settlement Agreement and
Settlement arises under any of Paragraphs 39-42 above: (i) neither Defendants nor Plaintiffs (as
the case may be) will be required for any reason or under any circumstance to exercise that
option; and (ii) any exercise of that option shall be made in good faith, but in the sole and
unfettered discretion of Defendants or Plaintiffs, as applicable.
44. In the event the Class Settlement is terminated or fails to become effective for any
reason, then: the Class Settlement shall be without prejudice, and none of its terms, including,
but not limited to, the certification of the Class and selection of Class Representative and Class
Counsel, shall be effective or enforceable except as specifically provided herein; the Parties to
this Class Settlement Agreement shall be deemed to have reverted to their respective litigation
positions in the Class Action Lawsuit immediately prior to their execution of the Class
Settlement Term Sheet on February 19, 2014; and the Parties in the Class Action Lawsuit shall
proceed in all respects as if this Class Settlement Agreement and any related orders had not been
entered. In such event, the Settlement Term Sheet, this Class Settlement Agreement or any
aspect of the discussions or negotiations leading to this Class Settlement Agreement, shall not be
479236.1 42
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admissible in this Class Action Lawsuit and shall not be used by Plaintiffs against or to the
prejudice of Defendants or by Defendants against or to the prejudice of Plaintiffs in any court
filings, depositions, at trial or otherwise.
45. In the event the Class Settlement is terminated or fails to become effective for any
reason, any portion of the Class Settlement Amount previously paid on behalf of or by
Defendants, together with any earnings thereon, less any Taxes paid or due, less Notice and
Administration Expenses actually incurred and paid or payable from the Class Settlement
Amount, shall be returned to the entities that made the payments) within ten (10) business days
after written notification of such event. In such event, at the request of Defendants' Counsel, the
Escrow Agent or its designee shall apply for any tax refund owed on the amounts in the Escrow
Account and pay the proceeds, after any deduction of any fees or expenses incurred in
connection with such application(s), for refund to the applicable funder or as otherwise directed.
NO ADMISSION OF WRONGDOING
46. Except as set forth in Paragraphs 47-48 below, this Class Settlement Agreement,
whether or not consummated, and any discussions, negotiations, proceedings or agreements
relating to the Class Settlement Agreement, the Class Settlement, and any matters arising in
connection with settlement discussions or negotiations, proceedings, or agreements, shall not be
offered or received against or to the prejudice of the Parties for any purpose, and in particular:
(a) do not constitute, and shall not be offered or received against or to the
prejudice of Defendants as evidence of, or construed as, or deemed to be evidence of any
presumption, concession or admission by Defendants with respect to the truth of any allegation
by Plaintiffs and the Class or the validity of any claim that has been or could have been asserted
in the Class Action Lawsuit or in any litigation, including but not limited to the Released Claims,
479236.1 43
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or of any liability, damages, negligence, fault or wrongdoing of Defendants;
(b) do not constitute, and shall not be offered or received against or to the
prejudice of Defendants as evidence of a presumption, concession, or admission of any fault,
misrepresentation, or omission with respect to any statement or written document approved or
made by Defendants, or against or to the prejudice of Plaintiffs or any other members of the
Class as evidence of any infirmity in the claims of Plaintiffs or the other members of the Class;
(c) do not constitute, and shall not be offered or received against or to the
prejudice of Defendants or against or to the prejudice of Plaintiffs or any other members of the
Class, as evidence of a presumption, concession or admission with respect to any liability,
damages, negligence, fault, infirmity, or wrongdoing, or in any way referred to for any other
reason against or to the prejudice of any of the Parties to this Class Settlement Agreement, in any
other civil, criminal, or administrative action or proceeding, or arbitration, other than such
proceedings as may be necessary to effectuate the provisions of this Class Settlement
Agreement;
(d) do not constitute, and shall not be construed against Defendants, Plaintiffs,
or any other members of the Class, as an admission or concession that the consideration to be
given hereunder represents the amount which could be or would have been recovered after trial;
(e) do not constitute, and shall not be construed as or received in evidence as,
an admission, concession, or presumption against Plaintiffs or any other members of the Class
that any of their claims are without merit or that damages recoverable under the Complaint
would not have exceeded the Class Settlement Amount.
47. Defendants may file this Class Settlement Agreement and/or the Judgment or
Alternative Judgment in any action that may be brought against them in order to support a
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defense or counterclaim based on principles of res judicata, collateral estoppel, release, good-
faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion
or similar defense or counterclaim, or to effectuate the liability protection granted them under
any applicable insurance policies.
48. The Parties may file this Class Settlement Agreement and/or the Judgment or
Alternative Judgment in any action that may be brought to enforce the terms of this Class
Settlement Agreement and/or the Judgment or Alternative Judgment. All Parties submit to the
exclusive jurisdiction of the Court for purposes of implementing and enforcing the Class
Settlement.
MISCELLANEOUS PI20VISIONS
49. All of the exhibits to the Class Settlement Agreement, except any plan of
allocation, to the extent incorporated in those exhibits, are material and integral parts hereof and
are fully incorporated herein by this reference.
50. RFC and PwC warrant that, as to the payments made on behalf of Defendants
pursuant hereto, at the time of such payment, RFC and PwC will not be insolvent, nor will the
payment render either of them insolvent, within the meaning of and/or for the purposes of the
United States Bankruptcy Code, including Sections 101 and 547 thereof.
51. The Parties to this Class Settlement Agreement intend the Class Settlement of the
Class Action Lawsuit to be the full, final and complete resolution of the Released Claims and
Released Defendants' Claims. Accordingly, the Parties agree not to assert in any forum that the
Class Action Lawsuit was brought, prosecuted or defended in bad faith or without a reasonable
basis. The Parties and their counsel agree that each has complied fully with Rule 11 of the
Federal Rules of Civil Procedure in connection with the maintenance, prosecution, defense and
479236.1 45
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settlement of the Lawsuit and shall not make any applications for sanctions, pursuant to Rule 11
or other court rule or statute, with respect to any claim or defense in this Class Action Lawsuit.
The Parties agree that the amount paid and the other terms of the Class Settlement were
negotiated at arm's length in good faith by the Parties and their respective counsel, and reflect a
settlement that was reached voluntarily based upon adequate information and after consultation
with experienced legal counsel.
52. The Parties and their respective counsel agree that they will refrain from
disparaging each other in any publicly disseminated statements concerning the Class Action
Lawsuit. The Parties and their respective counsel also agree to keep the information disclosed to
them during the acts contemplated by the Class Settlement and this Class Settlement Agreement
(including confidential information exchanged in connection with the mediations referenced in
Paragraphs I and J above) confidential unless required to publicly disclose such information by
applicable law, except that this agreement excludes information that the Parties or their counsel
obtain through means independent of acts contemplated by the Class Settlement or this Class
Settlement Agreement.
53. This Class Settlement Agreement may not be modified or amended, nor may any
of its provisions be waived, except by a writing signed by all Parties hereto or their successors.
54. The headings herein are used for the purpose of convenience only and are not
meant to have legal effect.
55. The administration and consummation of the Class Settlement as embodied in this
Class Settlement Agreement shall be under the authority of the Court, and the Court shall retain
jurisdiction for the purpose of entering orders providing for awards of attorneys' fees and any
expenses, and implementing and enforcing the terms of this Class Settlement Agreement.
479236,1 46
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56. The waiver by one Party of any breach of this Class Settlement Agreement by any
other Party shall not be deemed a waiver of any other prior or subsequent breach of this Class
Settlement Agreement.
57. Except as provided in this Paragraph 57, Paragraph 40, and in Paragraph 6 with
respect to the Defendants' agreement amongst themselves regarding allocation of responsibility
for payment of the Class Settlement Amount, this Class Settlement Agreement, its exhibits and
the Supplemental Agreement constitute the entire agreement among the Parties hereto concerning
the Class Settlement of the Class Action Lawsuit as against Defendants and each other, and no
representations, warranties, or inducements have been made by any Party concerning this Class
Settlement Agreement and its exhibits other than those contained and memorialized in such
documents. It is understood by the Parties that, except for the matters expressly represented
herein, the facts or law with respect to which this Class Settlement Agreement is entered into
may turn out to be other than or different from the facts now known to each party or believed by
such party to be true; each Party therefore expressly assumes the risk of the facts or law turning
out to be so different, and agrees that this Class Settlement Agreement shall be in all respects
effective and not subject to termination by reason of any such different facts or law. The Parties
agree that provisions of the separate Derivative Settlement Agreement that relate or are relevant
to the Class Settlement Agreement are to be read consistently with each other and are not within
the exclusionary scope of this Paragraph 57.
58. Nothing in the Class Settlement Agreement, or the negotiations relating thereto, is
intended to or shall be deemed to constitute a waiver of any applicable privilege or immunity,
including, without limitation, attorney-client privilege, joint defense privilege, or work product
protection.
479236.1 4 7
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59. This Class Settlement Agreement 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.
Signatures sent by facsimile or by e-mail on a "pdf' document shall be deemed originals.
60. This Class Settlement Agreement shall be binding when signed, but the Class
Settlement shall be effective only on the condition that the Effective Date occurs.
61, This Class Settlement Agreement shall be binding upon, and inure to the benefit
of, the successors and assigns of the Parties hereto.
62. Nothing in this Class Settlement Agreement removes the parties' obligations
under any Confidentiality Agreement, including the July 17, 2013 letter agreement, entered into
by the parties prior to mediation in this Class Action Lawsuit, and all such obligations shall
continue to be observed in accordance with that agreement.
63. The construction, interpretation, operation, effect and validity of this Class
Settlement Agreement, and all documents necessary to effectuate it, shall be governed by the
laws of the State of Tennessee without regard to conflicts of laws, except to the extent that
federal law requires that federal law govern.
64. This Class Settlement Agreement shall not be construed more strictly against one
Party than another merely by virtue of the fact that it, or any part of it, may have been prepared
by counsel for one of the Parties, it being recognized that it is the result of arm's length
negotiations among the Parties, and all Parties have contributed substantially and materially to
the preparation of this Class Settlement Agreement.
65. All counsel and any other person executing this Class Settlement Agreement and
any of the exhibits hereto, or any related Settlement documents, warrant and represent that they
have the full authority to do so in the capacities stated therein, and that they have the authority to
479236.1 48
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take appropriate action in such capacities required to be taken pursuant to the Class Settlement
Agreement to effectuate its terms. Plaintiffs and Plaintiffs' Counsel represent and warrant that
none of Plaintiffs' claims or causes of action referred to herein or that could have been alleged in
the Class Action Lawsuit have been assigned, encumbered or in any manner transferred in whole
or in part.
66. The Parties and their counsel agree to cooperate fully with one another in
promptly applying for preliminary approval by the Court of the Class Settlement and for the
scheduling of a hearing for consideration of final approval of the Class Settlement and Plaintiffs'
Counsel's application for an award of attorneys' fees and expenses, and to promptly agree upon
and execute all such other documentation as reasonably may be required to obtain final approval
by the Court of the Class Settlement.
67. Except as otherwise provided herein, each Party shall bear its own costs.
IN WITNESS WHEREOF, the Parties hereto have caused this Class Settlement
Agreement to be executed, by their duly authorized attorneys, as of January 19, 2015.
LOCKRIDGE GRINI)AL NAUEN P.L.L.~'.
s/ Rzcha~d A. Lock~idgeRichard A. LockridgeVernon J. Vander WeideGregg M. Fishbein100 Washington Avenue SouthSuite 2200Minneapolis, MN 55401Tel: (612) 339-6900Fax: (612) 339-0981gm~ [email protected]
Lead Coas~zsel for Plaisatiffs
APPERSON GRUMP PLCs/Jerome A. BroadhurstJerome A. Broadhurst, TN BPR 12529Charles D. Reaves, TN BPR 22550
479236.1 49
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6070 Poplar Avenue, Sixth FloorMemphis, TN 38119-3954Te1:901-260-5133Fax :901-435-5133j broadhurst@appersoncrump. com
Liaisoyt Cor~fasel for d'laintiffs
ZIMMERMAN REED, LLPs/ Callolyn G. AndeNsonCarolyn G. AndersonPatricia A. Bloodgood1100 IDS Center80 South 8th StreetMinneapolis, MN 55402Telephone: 612-3 41-0400Fax: 612-341-0844Carolyn.Anderson@zimmreed. com
Additiofaal Cotsrzsel fog d'laint ffs
PAUL HASTINGS LLPs/Kevin C. LoweKevin C. Logue75 East 55th StreetNew York, NY 10022Tel: (212) 318-6000Fax: (212) [email protected]
Coc~lasel for ~efe~ada~rts Helios Select ~reszd, Iric.,Helios Select Nigh I~:corrie l%cctzd, ~~elios SelectIrtterrstediate Fa~rtd, end Helios Select Sltort Terrs~Fasiid (formerly l~~orga~i Keegaji Select Fend, Iric.,Regiojts 1V1'orgart Keegan Select Nigh Ir~corrie~F cctid, I~egiofts Morgan Keegan SelectIfzterfnediate Fd~nd, acid I~tegiojts 14~1orgarz KeeganSelect Short Terra Bored F~aftd, respectively)
MAYNARD COOPER &GALE PCs/Peter S. FNuinPeter S. FruinScott S. Brown2400 Regions Harbert Plaza1901 Sixth Avenue North
479236.1 5 ~
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Birmingham, AL 35203Tel: (205) 254-1000Fax: (205) 254-1999pfruin@maynardcopper. com
SULLIVAN & CROMWEI,L LLP
David B. Tulchin125 Broad StreetNew York, NY 10004Tel: (212) 558-4000Fax: (212) [email protected]
Coc~rasel for Defendants l egions FinancialCorporatio~i, Regions Batik and Morgaya AssetMayaagefneyzt, Iric.
BASS BERRY & SIMS PLCs/Britt K. LathamBritt K. LathamW. Brantley Phillips, Jr.Joseph B. Crace, Jr.blatham@bas sberry. com150 Third Avenue South, Suite 2800Nashville, TN 37201Tel.: 615-742-6200Fax: [email protected]
BASS BERRY & SIMS PLC
Shepherd D. TateMichael A. Brady1.00 Peabody Place, Suite 900Memphis, TN 38103-3672Tel: (901) 543-5900Fax: (901) [email protected]
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 56 of 146 PageID 21024
s/ Timothy A. DuffyTimothy A. DuffyEmily Nicklin300 North LaSalleChicago, IL 60654Tel: (312) 862-2000Fax: (312) [email protected]
~3AK~R DONELSON B~ARIVIAN CALDWELL8~ B~RKOWITZ
Leo M. Bearman165 Madison Avenue, Suite 2000Memphis, TN 38103Tel: (901) 526-2000Fax: (901) 577-2303lbearman@bakerdonel son. com
Corc~asel for ~efefzdafzt Pricew~terhoa~seCoopersLLP
K & L GATES I,LPs/.Ie~f~'ev B. MalettaJeffrey B. MalettaNicholas G. TerrisNicole A. Baker1601 K Street NWWashington, DC 20006Tel: (202) 778-9000Fax: (202) 778-9100j effrey.maletta@klgates. com
Cou~zsel for .Tack IZ. Blair, Albert C. Jo/inson,Jatraes Stilltsiart R.1V~cFadden, t~illiarst JefferiesMllitit~ ~Y. ~llytlZlCZZ PLZt132ll11~ 1V~ary S. Stone, aszdArchie W. Wallis, I~~
JAMES BATES I3RANNAN & GROOVER LLPs/ R. Hal Meeks Jr.R. Hal Meeks, Jr.3399 Peachtree Rd. NESuite 1700Atlanta, GA 30326Tel: (404) 997-6020Fax: (404) 997-6021hmeeks@j amesbatesllp.com
479236.1 52
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 57 of 146 PageID 21025
Coac~tsel for Cawter E. ~nthotzy
SUTHERLAND ASBII,L & Bi2ENNAN LLPs/ S. LawNence PolkS. Lawrence Polk999 Peachtree Street, NEAtlanta, GA 30309-3996Tel: (404) 853-8225Fax: (404) [email protected]
Coasnsel forAlleft B.1VV~orgasa, Jr., J. ICesa~ietlaAldef•mttasz, Brtasi B. Sacllzva~a, Josep{i C. Weller,J~rsfaes C. I~eCsoe, Jr., J. Thor~tpsoja Weller,1Vlic/ielle F. ~3~ood, af~d David ~I. 7'anrie/sill
479236.1 53
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i. i
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 59 of 146 PageID 21027
IN TIDE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
IN RE REGIONS IVIORGAN KEEGAN
SECURITIES, DERIVATIVE AND ERISA
LITIGATION
This Document Relates to:
In ~e Regions Mogan Keegan Open-End
Mutual Fund Litigation,
No. 2:07-cv-02784-SHM-dkv
MDL Docket No. 2009
Judge Samuel H. Mays, Jr.
Magistrate Judge Diane K. Vescovo
ORDER P12ELIMINARILY APP120VING CLASS SETTLEMENT
AND PROVIDING FOR NOTICE
WHEREAS, a consolidated class action entitled In Ne Regions Morgan Keegan Open-End
Mutual Fund Litzgatzon, No. 2:07-cv-02784 is pending in this Court (the "Class Action
Lawsuit")1;
WHEREAS, the Court has received the motion for preliminary approval of the
Stipulation and Agreement of Class Settlement ("Class Settlement Agreement") and the Court
has reviewed the Class Settlement Agreement, together with attached Exhibits, which has been
entered into by counsel for Plaintiffs and counsel for Defendants;
WHEREAS, Plaintiffs having made a motion for preliminary approval of the settlement
of the Class Action Lawsuit pursuant to Federal Rule of Civil Procedure 23(e) ("Federal Rule
23"), and for entry of an order preliminarily approving the settlement of the Class Action
Lawsuit, in accordance with the Class Settlement Agreement, which, together with the Exhibits
1 For purposes of this Order, the Court adopts all defined terms as set forth in the
Stipulation and Agreement of Class Settlement, with Exhibits thereto, dated January 19, 2015
(the "Class Settlement Agreement"), and the capitalized terms used herein shall have the same
meaning as in the Class Settlement Agreement.
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 60 of 146 PageID 21028
annexed thereto, sets forth the terms and conditions for a proposed settlement of the Class Action
Lawsuit and for dismissal of the Class Action Lawsuit with prejudice upon the terms and
conditions set forth therein (the "Class Settlement"); and
WHEREAS, a preliminary fairness hearing was held on , 2015, during which
the parties presented oral arguments addressing the proposed class settlement.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Court preliminarily approves the Class Settlement Agreement and the Class
Settlement set forth therein, subject to further consideration at the Class Settlement Hearing
described below.
2. The Court finds that: (a) the Class Settlement resulted from arm's length
negotiations; and (b) the Class Settlement is sufficiently fair, reasonable, and adequate to the
Class Members to warrant providing notice of the Class Settlement to Class Members and
holding a Class Settlement Hearing.
3. A hearing (the "Class Settlement Hearing") shall be held before this Court on
2015 at A.M., at the Clifford Davis /Odell Horton Federal Building, 167 N.
Main Street, 11th Floor, Courtroom #2, Memphis, TN 38103, to determine: whether the
proposed settlement of the Class Action Lawsuit on the terms and conditions provided for in the
Class Settlement Agreement is fair, reasonable, and adequate to the Class and should be
approved by the Court; whether to finally certify a settlement class; whether the Final Judgment
and Order of Dismissal, attached as Exhibit B to the Class Settlement Agreement, should be
entered; whether the proposed plan of allocation for the proceeds of the Class Settlement ("Plan
of Allocation"), attached as part of Exhibit A-1 to the Class Settlement Agreement, should be
2
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approved; and the annount of attorneys' fees and expenses that should be awarded to Lead
Counsel.
4. Pursuant to Federal Rule 23, the Court preliminarily certifies, solely for the
purposes of effectuating this Class Settlement, the following Class:
All Persons who (1) purchased any class of redeemable shares of
the Regions Morgan Keegan Select Short Term Bond Fund
("STF"), the Regions Morgan Keegan Select Intermediate Bond
Fund ("IBF"), or the Regions Morgan Keegan Select High Income
Fund ("HIF"), at any time during the period from December 6,
2004 through December 6, 2007, inclusive; or (2) held and/or
redeemed on or after July 3, 2006 through the end of the
Settlement Class Period shares of STF, IBF or HIF and were
damaged thereby.
Excluded from the Class and as Class Members are:
(i) the Individual Defendants and the members of the immediate families of the
Defendants;
(ii) Defendants, other than the Individual Defendants, and the subsidiaries and
affiliates of Defendants (including but are not limited to RFC, Morgan Asset Management, Inc.,
RB, Morgan Keegan, Morgan Properties LLC, and MK Holding, Inc.);
(iii) any Person who is a director or officer subject to § 16 of the Securities Exchange
Act of 1934, partner or controlling person of the Open-End Funds or any other Defendant;
(iv) any entity in which any Defendant has a controlling interest;
(v) any member of the TAL Subclass;
(vi) any Person who has at any time filed a proceeding with FINRA against one or
more Released Defendant Parties concerning losses alleged to be attributable to the purchase or
holding of shares in one or more of the Open-End Funds during the Class Period, and such
proceeding was not subsequently withdrawn or dismissed pursuant to a specific agreement to
allow the Person to participate as a Class Member;
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(vii) any Person who has at any time filed a state court action that has not been
removed to federal court, or has been removed and remanded, against one or more of the
Defendants concerning losses alleged to be attributable to the purchase or holding of shares in one
or more of the Open-End Funds during the Class Period, and whose claims in that action have
been dismissed with prejudice, released, or fully adjudicated absent a specific agreement with
such Defendants) to allow the Person to participate as a Class Member;
(viii) any Person who has at any time filed a federal action or state court action that has
been removed to federal court, against one or more of the Defendants concerning losses alleged to
be attributable to the purchase or holding of shares in ane or more of the Open-End Funds during
the Class Period, and whose claims in that action have been dismissed with prejudice, released, or
fully adjudicated absent a specific agreement with such Defendants) to allow the Person to
participate as a Class Member;
(ix) any Person who has at any time individually settled with one or more of the
Defendants claims concerning losses alleged to be attributable to the purchase or holding of
shares in one or more of the Open-End Funds during the Class Period, and whose claims in that
settlement have been dismissed with prejudice, released, or fully adjudicated absent a specific
agreement with such Defendants) to allow the Person to participate as a Class Member;
(x) any Person who submits a valid and timely request for exclusion from the Class in
accordance with the requirements set forth in the Notice; and
(xi) the legal representatives, heirs, successors and assigns of any such excluded
Person or entity.
Provided however, these exclusions do not extend to the Regions 401(k) Plan or the Morgan
Keegan 401(k) Plan, or any portion thereof, which plans have participants who may have held
0
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shares in STF, IBF and/or HIF. Neither the Regions 401(k) Plan nor the Morgan Keegan 401(k)
Plan shall be construed, for purposes of this Class Settlement, as being either "affiliates" of any
Defendant or entities in which any Defendant has a controlling interest. Moreover,
notwithstanding anything in this Class Settlement or Plan of Allocation to the contrary, nothing in
this Class Settlement or plan of allocation shall be construed in any way to limit the ability of the
Regions 401(k) Plan or the Morgan Keegan 401(k) Plan to fully participate in the Class
Settlement and in any recovery hereunder. These exclusions also do not extend to trusts or
accounts as to which the control or legal ownership by any Defendant (or by any subsidiary or
affiliate of any Defendant) is derived or arises from an appointment as trustee, custodian, agent, or
other fiduciary ("Fiduciary Accounts") unless (i) that Fiduciary Account is part of the TAL
Subclass or (ii) with respect to any such Fiduciary Account, any Person has filed (A) a proceeding
(described in clauses (vi)-(viii) above) against one or more Released Defendant Parties
concerning the purchase or holding of shares in one or more of the Open-End Funds during the
Class Period and such proceeding was not subsequently dismissed to allow the Person to
specifically participate as a Class Member or (B) otherwise resolved said Person's claims as
contemplated in clause (ix) above. With respect to Open-End Fund shares for which the TAL
Orders authorize the TAL to prosecute the claims or causes of action pleaded in the Complaint
("TAL Represented Open-End Fund Shares"), "Class" and "Class Member" also excludes
Persons who are, or were during the Class Period, trust and custodial account beneficiaries,
principals, settlors, co-trustees, and others owning beneficial or other interests in the TAL
Represented Open-End Fund Shares ("Such Persons"), but this exclusion applies only to any
claims or causes of action of Such Persons that the Trustee ad Litefn is authorized by the TAL
Orders to prosecute. With respect to Open-End Fund Shares that are not TAL Represented Open-
5
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End Fund Shares and in which Such Persons have a beneficial or other interest, the foregoing
partial exclusion of Such Persons does not apply,
5. The Court preliminarily finds that certification of the Class meets the
requirements of Federal Rule 23 as follows:
a. The number of Class Members is so numerous that joinder of all Class
Members is impracticable, thus satisfying Federal Rule 23(a)(1).
b. There are questions of law and fact common to the Class, thus satisfying
Federal Rule 23(a)(2).
c. The claims of Lead Plaintiffs, as Court appointed class representatives, are
typical of the Class they represent, thus satisfying Federal Rule 23(a)(3).
d. The proposed class representatives and their counsel have and will fairly
and adequately protect the interests of the Class, thus satisfying Federal Rule 23(a)(4).
e. The questions of law and fact common to the Class predominate over any
questions affecting only individual members, thus satisfying Federal Rule 23(b)(3).
£ A class action is superior to other available methods for the fair and
efficient adjudication of the controversy, thus satisfying Federal Rule 23(b)(3).
6. Class Members are hereby provided an opportunity to be excluded from the Class.
Such requests for exclusion shall, as set forth below, be received no later than ,
2015. The Parties have entered into a confidential supplemental agreement, which has been
incorporated by reference into the Class Settlement Agreement, that provides that RFC and PwC
shall each have the option to terminate the Class Settlement on behalf of all Defendants and
render the Class Settlement Agreement null and void in the event that requests for exclusion
from the Class exceed certain agreed-upon criteria.
D
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7. The Court approves, as to form and content, the Notice of Pendency and Proposed
Settlement of Class and Derivative Actions and Motion for Attorneys' Fees and Expenses (the
"Notice"), the Proof of Claim and Release Form ("Proof of Claim"), and Summary Notice of
Pendency and Proposed Settlement of Class and Derivative Actions and Motion for Attorneys'
Fees and Expenses ("Summary Notice"), in substantially the forms annexed as Exhibits 1-3
hereto respectively, and finds that the mailing and distribution of the Notice and'Proof of Claim
and publishing of the Summary Notice, as set forth- herein, meet the requirements of Federal
Rule 23, due process, Section 27 of the Securities Act of 1933, 15 U.S.C. §77z-1(a)(7), as
amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), Section 21D
of the Securities Exchange Act of 1934, 15 U.S.C. § 78u 4(a)(7), as amended by the PSLRA, and
constitute the best notice practicable under the circumstances and shall constitute due and
sufficient notice to all persons and entities entitled thereto.
8. The Court hereby appoints The Garden City Group, Inc. ("Claims Administrator")
to supervise and administer the notice procedure as well as the processing of the claims, as more
fully set forth below and as set forth in the Class Settlement Agreement:
a. Pursuant to the Class Settlement Agreement, not later than ,
2015 (the "Notice Date"), the Claims Administrator shall cause a copy of the Notice and
Proof of Claim, substantially in the forms annexed hereto, to be mailed by first class mail,
postage prepaid, to all Class Members who can be identified with reasonable effort.
Within thirty (30) calendar days after the entry of this Order, Morgan Keegan &
Company, Inc. and the Open-End Funds, to the extent they have not already done so,
shall provide or cause to be provided to Lead Counsel and the Claims Administrator, at
no cost to the Class, the information that they have agreed to provide pursuant to
7
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Paragraphs 8(a)-(c) of the Class Settlement Agreement including information regarding
the Excluded Persons, information regarding those Persons who purchased and/or held
shares of the Open-End Funds during the Class Period and information regarding the
amount of the distributions from the States' settlement fund and the SEC Fair Fund.
b. The Claims Administrator shall use reasonable efforts to give notice to
nominee purchasers such as brokerage firms and other persons or entities who purchased
or otherwise acquired the shares of the Open-End Funds during the Class Period as record
owners but not as beneficial owners. Such nominee purchasers are directed, within seven
(7) calendar days of their receipt of the Notice, to either (i) provide the Claims
Administrator with lists of the names and last known addresses of the beneficial owners,
and the Claims Administrator is ordered to send the Notice and Proof of Claim promptly
to such identified beneficial owners by first-class mail, or(ii) request additional copies of
the Notice and Proof of Claim, and within seven (7) calendar days of receipt of such
copies send them by first-class mail directly to the beneficial owners. Nominee
purchasers who elect to send the Notice and Proof of Claim to their beneficial owners
shall also send a statement to the Claims Administrator confirming that the mailing was
made as directed. Additional copies of the Notice shall be made available to any record
holder requesting such for the purpose of distribution to beneficial owners, and such
record holders shall be reimbursed from the Settlement Fund, after receipt by the Claims
Administrator of proper documentation, for their reasonable expenses actually incurred in
sending the Notices and Proofs of Claim to beneficial owners.
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 67 of 146 PageID 21035
c. Not later than , 2415, the Claims Administrator shall cause
the Summary Notice to be published once in Investor's Business Daily, and on a different
day to be transmitted over PRNewswire.
d. Not later than ~, 2015, the Claims Administrator shall cause the
Class Settlement Agreement and its Exhibits and a copy of the Notice to be posted on the
settlement website, which shall be created and maintained by the Claims Administrator or
Lead Counsel.
e. Lead Counsel shall, by , 2015, file with the Court and
serve on Defendants' counsel proof of such mailing, publishing, and posting as set forth
above.
f. At least by , 2015, the Defendants shall cause to be served
on Lead Counsel and filed with the Court proof, by affidavit or declaration from the
Claims Administrator, of the date and service upon the appropriate officials) of the
notices) set forth in 28 U.S.C. § 1715(b). This Court will not issue any final approval of
the Class Settlement or enter the Judgment as provided in the Class Settlement
Agreement until such proof has been filed with the Court, and in no event earlier than
ninety (90) days after the date on which the appropriate official was served with the 28
U.S.C. § 1715(b) notice. Other than the notices) under 28 U.S.C. § 1715(b) and the
provision of names and addresses, pursuant to paragraph 8 of the Class Settlement
Agreement, Defendants are not obligated to bear any cost associated with mailing and
publishing any notice as set forth above.
9. The information to be produced pursuant to paragraph $ of the Class Settlement
Agreement constitutes confidential and privacy protected business and personal information, and
D
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shall be treated as confidential by the Claims Administrator, Lead Counsel, anal Funds'
Counsel. As the Parties agreed to in the Class Settlement Agreement, the Claims Administrator,
Lead Counsel, and Funds' Counsel shall use this information solely for the purposes of providing
notice, administering Proofs of Claim or requests for exclusion, communicating with members of
the Settlement Class, responding to Excluded Persons, or otherwise administering the proposed
settlement pursuant to the Class Settlement Agreement and the Orders) of the Court, and shall
not disclose this information to anyone (other than the Class Member whose information is at
issue) absent express authorization from the Court.
10. All Class ...Members (other than those persons or entities who shall timely and
validly request exclusion from the Class) shall be bound by all determinations and judgments in
the Class Action Lawsuit concerning the Class Settlement, whether favorable or unfavorable to
the Class.
11. A Class Member wishing to make an exclusion request shall mail a written
request to the address designated in the Notice for such exclusions, such that it is received no
later than , 2015. Such request for exclusion must state the name, address, and
telephone number of the person or entity seeking exclusion, that the person requests exclusion
from the Class in "In re Regions Morgan Keegan Open-End Mutual Fund Litigation, Case No.
2:07-cv-02784-SHM-dkv," and must be signed and dated by such person. Such persons
requesting exclusion are also directed to state: the date of each purchase or acquisition of Open-
End Fund shares during the period from December 6, 2004 through May 29, 2009, inclusive; the
number of shares purchased or acquired in each transaction; and the dates) of each sale or
redemption of said shares. The request for exclusion shall not be effective unless it provides all
of the required information and is made within the time stated above, or the exclusion is
~1]
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 69 of 146 PageID 21037
otherwise accepted by the Court or allowed by Lead Counsel and counsel for the Morgan
Keegan Defendants, RFC and I'wC.
12. Class Members who timely and validly request exclusion from the Class as set
forth above shall not be eligible to receive any payment out of the Net Class Settlement Fund as
described in the Class Settlement Agreement, unless otherwise ordered by the Court.
13. In order to be eligible to receive a distribution from the Net Class Settlement
Fund, in the event the Class Settlement is effected in accordance with the terms and conditions
set forth in the Class Settlement Agreement, each Class Member shall take the following actions
and be subject to the following conditions:
a. A properly executed Proof of Claim, substantially in the form annexed
hereto as Exhibit 2, must be submitted to the Claims Administrator, at the address
indicated in the Notice, postmarked no later than ~, 2015. Such deadline may
be further extended by Court order or by Lead Counsel in their discretion. Each Proof of
Claim shall be deemed to have been submitted when mailed (if received with a postmark
and if mailed by first-class or overnight mail, postage prepaid) provided such Proof of
Claim is actually received prior to the motion for an order of the Court approving
distribution of the Net Class Settlement Fund. Any Proof of Claim submitted in any
other manner shall be deemed to have been submitted when it was actually received at
the address designated in the Notice. Any Class Member who does not timely submit a
Proof of Claim within the time provided for shall be barred from sharing in the
distribution of the Net Class Settlement Fund, unless otherwise ordered by the Court, but
shall remain bound by all determinations and judgments in this Class Action Lawsuit
concerning the Class Settlement.
11
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b. The Proof of Claim submitted by each Class Member must satisfy the
following conditions, unless otherwise ordered by the Court or specified in the
instructions in the Proof of Claim: (i) it must be properly completed, signed and
submitted in a timely manner in accordance with the provisions of the preceding
subparagraph; (ii) if the person executing the Proof of Claim is acting in a representative
capacity, a certification of his or her current authority to act on behalf of the Class
Member must be included in the Proof of Claim; and (iii) the Proof of Claim must be
complete and contain no material deletions or modifications of any of the printed matter
contained therein and must be signed under penalty of perjury.
c. As part of the Proof of Claim, each Class Member shall submit to the
jurisdiction of the Court with respect to the claim submitted.
14. Any Member of the Class may enter an appearance in the Class Action Lawsuit,
at his, her or its own expense, by appearing individually or through counsel of his, her or its own
choice. If a Class Member does not enter an appearance, Lead Counsel will represent them.
15. Any Member of the Class may appear at the Class Settlement Hearing (other than
those Persons or entities who timely and validly request exclusion from the Class) and show
cause as to why: the proposed settlement of the Class Action Lawsuit should or should not be
approved as fair, reasonable and adequate; why a judgment should or should not be entered
thereon; why the Plan of Allocation should or should not be approved; or why attorneys' fees
and expenses should or should not be awarded to Lead Counsel; provided, however, that no
Class Member or any other person shall be heard or entitled to contest the approval of the terms
and conditions of the proposed Class Settlement, or the judgment to be entered thereon
approving the same, or the Plan of Allocation, or the attorneys' fees and expenses to be awarded
12
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to Lead Counsel, unless that person or entity has filed with the Clerk of the United States District
Court for the Western District of Tennessee a written objection, papers, and briefs that comply
with the requirements set forth in the Notice and has delivered by hand or sent by mail to the
parties named below the written objection, papers, and briefs filed with the Court such that the
papers are received by the Court and said parties on or before , 2015:
COURT:
Clerk of the CourtUnited States District Court for the Western District of
TennesseeClifford Davis/Odell Horton Federal Building
167 N. Main Street, Room 242Memphis, Tennessee 38103
LEAD COUNSEL:
Richard A. Lockridge, Esq.Vernon J. Vander Weide, Esq.Gregg M. Fishbein, Esq.LOCKRIDGE GRINDAL NAUEN P.L.L.P.
Minneapolis, MN 55401
ATTORNEYS FOR REGIONS FINANCIAL CORPORATION, REGIOl\TS BANK
& MORGAN ASSET MANAGEMENT, INC.:
Peter S. Fruin, Esq.MAYNARD, COOPER &GALE, P.C.
1901 6th Avenue North, Suite 2400
Birmingham, Alabama 3 5203
ATTORNEYS FOR THE MORGAN KEEGAN DEFENDANTS:
Britt K. Latham, Esq. BASS BERRY & SIMS PLC
150 Third Avenue South, Suite 2800
Nashville, Tennessee 37201
ATTORNEYS FOR CARTER E. ANTHONY:
R. Hal Meeks, Jr.JAMES, BATES, BRANNAN & GROOVER LLP
3399 Peachtree Rd. NE, Suite 1700
13
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Atlanta, Georgia 30326
ATTORNEYS I+OR JACK R. BI.AIR, ALBERT' C. JOHNSON, JAIi~IES
STILLMAN R. MCFADDEN, WILLIAM JEFFERIES MANN, W. RANDALL
I'IT'~1VIAN, MARY S. STONE, AND ARCHIE W. WILLIS, III:
Jeffrey B. MalettaK & L GATES LLP1601 K Street NWWashington, DC 200006
ATTORNEYS FOR ALLEN B. MORGAN, JR., J. KENNETgI ALDERMAN,
BRIAN B. SUL,LIVAN, JOSEPH C. WELLER, JAMES C. KELSOE, JR, J.
THOMPSON WELLER, MICHELLE F. WOOD, AND DAVID TANNEHILL:
S. Lawrence Polk, Esq.SUTHERLAND ASBILL & BRENNAN, LLP
999 Peachtree Street, N.E. Atlanta, Georgia 30309
ATTORNEYS FOR PRICEWATER~IOUSECOOPERS LLP:
Timothy A. Duffy, Esq.KIRKLAND & ELLIS LLP
300 North LaSalleChicago, IL 60654
ATTORNEYS FOB THE OPEN-END FUNDS:
Kevin C. Logue, Esq. PAUL HASTINGS LLP
75 East 55th StreetNew York, New York 10022
Any Member of the Class who does not make an objection in the manner provided herein
and in the Notice 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 Class Settlement as set
forth in the Class Settlement Agreement, to the Plan of Allocation, or to the award of attorneys'
fees and expenses to Lead Counsel, unless otherwise ordered by the Court.
16. Attendance at the Class Settlement Hearing by Class Members is not necessary;
however, persons wishing to be heard orally in opposition to the approval of the Class
14
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Settlement, the Plan of Allocation, and/or the application for an award of attorneys' fees and
other expenses to Lead Counsel are required to state in their written objection filed with the
Court that they intend to appear at the Class Settlement Hearing, as set forth in the Notice.
Persons who intend to object to the Class Settlement, the Plan of Allocation, and/or the
application for an award of attorneys' fees and expenses to Lead Counsel and desire to present
evidence at the Class Settlement Hearing must include in their written objections filed with the
Court the identity of any witnesses they may call to testify and exhibits they intend to introduce
into evidence at the Class Settlement Hearing, and they must comply with the requirements in
the Notice. Class Members who approve of the Class Settlement do not need to appear at the
hearing or take any other action to indicate their approval.
17. The passage of title and ownership of the Class Settlement Amount to the Escrow
Agent in accordance with the terms and obligations of the Class Settlement Agreement is
approved. No person shall have any right to any portion of, or to any distribution of, the Class
Settlement Fund unless otherwise ordered by the Court or otherwise provided in the Class
Settlement Agreement.
18. All funds held by the Escrow Agent shall be deemed and considered to be in
custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such
time as such funds shall be distributed pursuant to the Class Settlement Agreement and/or further
orders) of the Court.
19. The administration of the proposed Class Settlement and the determination of all
disputed questions of law and fact with respect to the validity of any claim or right of any person
or entity to participate in the distribution of the Net Class Settlement Fund shall be under the
authority of this Court.
15
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20. All papers in support of the Class Settlement, the Plan of Allocation, and the
application for attorneys' fees or expenses, shall be filed and served not later than ,
2015. Any reply papers in further support of the Class Settlement, the Plan of Allocation and the
application for attorneys' fees or expenses, shall be filed and served no later than ,
2015.
21. Neither the Defendants nor the Released Defendant Parties shall have any
responsibility for or liability with respect to reviewing or challenging claims, the Plan of
Allocation or the allocation or distribution of the Net Class Settlement Fund, or any application
for attorneys' fees or reimbursement of expenses submitted by Lead Counsel, and such matters
will be considered separately from the fairness, reasonableness and adequacy of the Class
Settlement and will not affect any ruling on the approval of the Class Settlement or the
effectiveness or finality of the Class Settlement.
22. At or after the Class Settlement Hearing, the Court shall determine whether the
Plan of Allocation proposed in the Class Settlement and any application for attorneys' fees or
reimbursement of expenses by Lead Counsel shall be approved.
23. In the event the Class Settlement is terminated or fails to become effective for any
reason, any portion of the Class Settlement Amount previously paid on behalf of or by
Defendants, together with any earnings thereon, less any Taxes paid or due, less Notice and
Administration Expenses actually incurred and paid or payable from the Settlement Amount
shall be returned to the entities that made the payments) within ten (10) business days after
written notification of such event. In such event, at the request of Defendants' Counsel, the
Escrow Agent or its designee shall apply for any tax refund owed on the amounts in the Escrow
16
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Account and pay the proceeds, after any deduction of any fees or expenses incurred in
connection with such application(s), for refund to the applicable funder or as otherwise directed.
24. This Preliminary Approval Order, the Class Settlement Agreement and its terms,
the negotiations leading up to the Class Settlement Agreement, the fact of the Class Settlement,
and the proceedings taken pursuant to the Class Settlement, shall not: (1) be construed as an
admission of liability or an admission of any claim or defense on the part of any party, in any
respect; (2) form the basis for any claim of estoppel by any third party against any of the
Released Defendant Parties; or (3) be admissible in any action, suit, proceeding, or investigation
as evidence, or as an admission, of any wrongdoing or liability whatsoever by any of the
Released Defendant Parties or as evidence of the truth of any of the claims or allegations
contained in any complaint filed in the Class Action Lawsuit or deemed to be evidence of or an
admission or concession that Plaintiffs or any Class Members have suffered any damages, harm,
or loss. Neither the Preliminary Approval Order, any Final Judgment or Final Alternative
Judgment, or the Class Settlement Agreement, nor any of their terms and provisions, nor any of
the negotiations or proceedings connected with them, nor any action taken to carry out this
Preliminary Approval Order, any Final Judgment or Final Alternative Judgment, or the Class
Settlement Agreement by any of the Parties shall be offered into evidence, or received in
evidence in any pending or future civil, criminal or administrative action, arbitration, or
proceeding, except: in a proceeding to enforce this Preliminary Approval Order, any Final
Judgment or Final Alternative Judgment, or the Class Settlement Agreement, or to enforce any
insurance rights; to defend against the assertion of Released Claims (including to support a
defense or counterclaim based on principles of res judicata, collateral estoppel, release, good
faith settlement, judgment bar or reduction); or by Lead Counsel to demonstrate its adequacy to
17
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 76 of 146 PageID 21044
serve as class counsel pursuant to Federal Rule 23(g) (or its state law analogs); subject to the
prohibited purposes identified in Paragraph 46 (a)-(e) of the Class Settlement Agreement and in
Paragraph 24(1)-(3) above, or as otherwise required by law.
25. Pending final determination by the Court as to whether the Class Settlement, as
set forth in the Class Settlement Agreement, is fair, reasonable and adequate and should be
finally approved and whether the Judgment dismissing the Class Action Lawsuit with prejudice
should be approved, no Class Member shall commence or prosecute against any of the
Defendants or the Released Defendant Parties any of the Released Claims in this Class Action
Lawsuit, or in any other proceeding or forum. This injunction is necessary to protect and
effectuate the Class Settlement and to enter judgment when appropriate, and is ordered in aid of
the Court's jurisdiction and to protect its judgments.
26. Pending the Class Settlement Hearing, the Court hereby stays all proceedings in
the Class Action Lawsuit, other than the proceedings necessary to carry out or enforce the terms
and conditions of the Class Settlement Agreement.
27. In the event that the Class Settlement does not become effective in accordance
with the terms of the Class Settlement Agreement or the Effective Date does not occur, or in the
event that the Class Settlement Fund, or any portion thereof, is returned to the Defendants, then
this Order shall be rendered null and void and shall be vacated and, in such event, all orders
entered and releases delivered in connection herewith shall be null and void.
28. The Court reserves the right to adjourn the date of the Class Settlement Hearing
without further notice to the Members of the Class, and retains jurisdiction to consider all further
applications arising out of or connected with the proposed Class Settlement. The Court may
18
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approve the Class Settlement and/or the Plan of Allocation, with such modifications as may be
agreed to by the Parties, if appropriate, without further notice to the Class.
It is so ORDERED this day of , 2015.
SAMUEL H. MAYS, JR.UNITED STATES DISTRICT JUDGE
~!:
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 78 of 146 PageID 21046
i,,:
.:
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 79 of 146 PageID 21047
IN THE ~TIeTITED STATES DISTRICT COiJI2T
FOR TIDE WESTERl~ DISTRICT ()F TEI~TNESSEE
WESTERN DIVISION
IN RE REGIONS MORGAN KEEGAN ) MDL Docket No. 2009
SECURITIES, DERIVATIVE and ERISA LITI-
GATION ~
This Document Relates to: ~ NOTICE OF PENDENCY AND~ PROPOSED SETTLEMENT OF
In re Regions Mogan Keegan Open-End ~ CLASS AND DERIVATIVE
Mutual Fund Litigation, ~ ACTIONS AND MOTION FOlt
No. 2:07-cv-02784-SHM-dkv ~ ATTORNEYS' FEES AND
and~ EXPENSES
Landers, et al. v. MoNgan Asset Management, ~Inc., et al., ~
No.2:08-cv-02260-SHM-dkv ~
(1) If you purchased during the period Deceiziber 6, 20 4 through December 6, 2007 or
held and/or redeemed during the period July 3, 200b th~oug~; May 29, 2009 ("Hold-
ers/Sellers doss Period") shares in the Regions Margin KeegaY~ Select S~~ort Ter~~ B~~id
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 112 of 146 PageID 21080
plementation and administration of the Settlement.
L. SPECIAL NOTICE TO SECURITIES BROKERS AND OTHER NOMINEES
If you held shares of STF, IBF, or HIF for the beneficial interest of a person or organiza-
tion other than yourself, the Court has directed that, WITHIN SEVEN (7) DAYS OF YOUR
.RECEIPT OF THIS NOTICE, you either: (a) provide to the Claims Administrator the name and
last known address of each person or organization for whom or which you held shares of the
Funds during such time period; or (b) request additional copies of this Notice and the Proof of
Claim, which will be provided to you free of charge, and within seven (7) days thereafter mail
the Notice and Proof of Claim directly to the beneficial owners of those shares of the Funds.
If you choose to follow alternative procedure (b), the Court has directed that, upon such
mailing, you are to send a statement to the Claims Administrator confirming that the mailing was
made as directed. You are entitled to reimbursement from the Settlement Amount of your rea-
sonable expenses actually incurred in connection with the foregoing, including reimbursement of
postage and the cost of ascertaining the names and addresses of beneficial owners. Those ex-
penses will be paid upon request and submission of appropriate supporting documentation. All
communications concerning the foregoing should be addressed to the Claims Administrator:
In re Regions Mogan Keegan Open-End Mutual Fund Litigation
Claims Administratorc/o GCG
PO Box 9939Dublin, Ohio 43017-5939
Phone: 1-888-895-9227questions@rmkopenendfundsettlement. com
www.rmkopenendfundsettlement.com,
DO NOT CONTACT THE COURT 1E22EGARDING THIS NOTICE
If you have any questions about the Settlement, you may contact the following Plaintiffs'
Lead Counsel:
Richard A. LockridgeVernon J. Vander WeideGregg M. FishbeinLOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401Telephone: 1-800-0Fax: (612) 339-0981ralo ckridge@locklaw. com
34
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 113 of 146 PageID 21081
Dated:
vj vanderweide@locklaw. com
gmfi shbein@locklaw. com
2015
35
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 114 of 146 PageID 21082
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 115 of 146 PageID 21083
In re Regions Morgan Keegan Open-End Mutual Fund Litigation
c/o GCG
PO Box 9939
Dublin, Ohio 43017-5939
INSTRUCTIONS FUI2 PR~+DF OF C'L~IN[ ~ttiD REI.,EASE t~C
1ItM
-
---
Plea
se carefully review the accompanying Notice pr
ior to completing this Proof of Claim and the information in Section B below. In Section B, your Re
cogn
ized
Claim has
been
calculated for th
e sh
ares
you lieid in the Funds during the Ho
lder
s/Se
ller
s Loss Period (July 3, 2006 through May 29, 2009) in your Morgan Keegan and Company, In
c. ("MK") or
Morgan Asset Management, In
c. ("MAM") account. This ca
lcul
atio
n is based on information provided by MK or MAM. You will be required to con
firm
thi
s calculation provided for
your holdings in the
Funds or, if you disagree, provide your holdings at the close of trading on July 3, 2006, a?i purchases/acquisitions (including reinvested dividends) during the
Holders/Sellers Loss Period, al
l interest and dividends rec
eive
d du
ring
that Period, and all redemptions during that Period (including any sha
res you held on May 29, 20
09).
In order to participate in the Class Settlement, al
l Potential Claimants must com
plet
e this Proof of Claim and Rel
ease
Form ("Proof of Claim") per the following instructions
and sign and mail it to the Administrator at the address above, postmarked no later than o, 2015.
If you are
required to submit documentation to support your cl
aim and you have
difficulty in locating doc
umen
tati
on, or
you are
not sure what doc
umen
ts mig
ht be considered as
adequate proof
to su
ppor
t your cl
aim,
purchases/acquisitions,
dividends/interest received,
and sales/redemptions, you may review the
information
on the
website
www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com or contact the
Administrator at 1-888-895-9227.
If you are an Excluded Person (se
e accompanying Notice for definition of "Excluded Person'), do not submit a Proof of Claim regardless of whether or not amounts are shown for
Recognized Los
s Amounts) or Recognized Claim in Section B below.
REQUIREMENTS FOR FILING A PROOF OF CLAIM
Your cla
im wil
l be con
side
red for payment only upon compliance with all of the fo
llow
ing conditions to th
e extent that they are
applicable to you:
1. You must accurately co
mple
te all
portions of th
is Proof of Claim. If you a ;ree with the calculation of your Recognized Loss Amounts) and Recognized Claim in Section B,
CHECK THE ~°YES" BOX and proceed to item 3.
If you do not agree with the calculation of the Reco;nized Loss Amounts) or Recognized Claim in Se
ctio
n B, you must carefully complete each applicable section of
Section C. Do not omi
t any req
uest
ed information regarding your positions, purchases/acquisitions, div
iden
ds/i
nter
est payments received, and sales/redemptions/transfers of the
Fund
s. This information is ne
cess
ary to determine your sha
re of the Class Settlement if you do not anree with the calculation of the Recognized Loss Amounts) or
Recognized Claim in Section B. I
f you cannot
list all transactions in the
spaces provided in the Proof of Claim, or if you believe that you must or sh
ould
supply additional
information with respect to any tra
nsac
tion
, attach additional sh
eets
to this Proof of Claim, supplying th
e required inf
orma
tion
. Your name and Taxpayer Identification Number
(Social Security number or Employer Identification Number) must be properly identified on each additional sheet of paper. DO NOT INCLUDE INFORMATION FOR ANY
FUND WITHOUT A FUND NUMBER SPECIFICALLY LISTED 1N SECTION C BELOW; TRANSACTIONS FOR INELIGIBLE FUNDS WILL NOT BE PROCESSED.
2. If you do not agree with the calculation of the Recognized Loss Amounts) or Recognized Claim in Se
ctio
n B, you must attach to this Proof of Claim legible copies of
annual, quarterly, or monthly account statements from MK (or MAM), or br
oker
confli-mation s
lips for purchases and/or
redemptions, or
other proof satisfactory to the
Administrator confirming the
particulars of each po
siti
on, purchase/acquisition, dividends/interest received, and/or rede
mpti
on/t
rans
fer of Fund sha
res du
ring
the Set
tiem
e~rt
Class
Period. Please make sure that all supporting documentation states your account name.
3. You must com
plet
e Section D and sibn th
is Proof of Claim.
1~OTE: If Fund sha
res were owned jo
intly, all jo
int owners must sign th
e Proof of Claim. Executors, administrators, guardians, conservators, trustees, and attorneys
-in-fact may
comp
lete
and sign th
e Proof of Claim on behalf of Po
tential Claimants represented by them, but they must ide
ntif
y such Potential Claimants and provide proof of th
eir authority
(for example, currently ef
fect
ive letters testamentary, letters of administration, ce
rtification o; trust, power of attorney) to
com
plet
e and execute the
Proof of Claim on the
ir behalf
and to bind them in accordance with the te
rms thereof. Where a Potential Claimant has more tha
n one legal representative, the Proof of Claim must be executed by all
such
representatives. If you are filing on behalf of a deceased claimant, you must provide a copy of th
e death certificate and a will or probate documents or proof of joint ownership.
4.
Separate Pro
ofs of Claim should be submitted for each type of account in which Fund shares were held (e.g., a cla
im from joint owners sho
uld not include th
e separate tra
nsac
tion
s
of just one of th
e joint owners; an individual should not combine transactions in a Roth or IRA. account with transactions in a non-RoYh/IRA account).
5. See section K. of th
e Notice (attached or available for download on the
websites ww
w.rm
kope
nend
fund
sett
leme
nt.c
om or www.morgankeeganlawsuit.com) fo
r more information
on how your claim wi11 be calculated. NOTE: I2 is not necessary to hue an attorney to represent you in order to file a claim or in order to participate in the
Class Set
tlem
ent Fund;
however, you are
free to do so at your expense if you so choose.
QUESTIONS? CALL Z-&8&-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 1 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 116 of 146 PageID 21084
6.
Ii~ you held Fund shares Uri IVlay 29, 2049; ye
ti are a Set~leiiient Cia'ss'ivZei~ der (unle'ss yriu are'an Exclui~ed Person' or uoluntarily exctucle yourself fx
oan the Settle~a~ent Cla
ss) anc~
must completz th
is Pro
af of Claim to sh
are in the Class Settlenient~ You wil
l also be
ei~t
itl~
d to sha
re` in the Funds` Distributzon; you will no
t ne
ed to complete thi
s Proof of Claim
to sha
re in the Funds' Distribution; which will be paid to you without any action on your part.
'Regions Morgan Keegan Open-End Funds
Settlement
For official use only
SECTION A: CONTACT INFORMATION
Last Name (C
laimant)
Last Name (B
eneficial Owner If D
ifferent from Claimant)
Regions Morgan Keegan Open-End Mutual Fund
Litigation Settlement Fund
In re Regions Morgan Keegan Open-End Mutual Fund
Litigation, File No. 2:
07-cv-02784
Landers, et al
. v. Morgan Asset Management, In
c., et al.,
File No. 2:
08-cv-02260
Proof of Claim and Rel
ease
Form
Please pri
nt or type
Firs
t Name (C
laimant}
1Vlust be postanarked no later than
~, 2015
Firs
t I~tame (
Beneficial Owner)
Last
Name (Co-Beneficial Owner)
First Name (Co-
Beneficial Owner)
Company/Other En
tity
(If Claimant is Nat an Individual)
Contact Person fox such Company or Other En
tity
Record Owner's Name (I
f Different From Claimant or Ben
efic
ial Owner Listed Above, e.
g., B
rokerage Firm, Bank, Tr
ustee; Nominee, et
c.)
Acco
unt Number (I
f Claimant Is Not an Individual)
Address Line 1
Address Line 2 (1f Ap
plic
able
)
City
Foreign Province
❑ Check Here to Use Alternate Add
ress
for Distribution OPTIONAL
Distribution Address Line 1
Distribution Add
ress
Line 2 (If Ap
plic
able
)
Trust/Other Date (I
f Applicable)
State
Zip Code
Foreign Zip Code
Foreign Country
QLTE
S'TI
ONS?
CALL 1-888-895-9227 OR VISIT www
.rmk
open
endf
unds
ettl
emen
t.co
m or www.morgankeeganlawsuit.com
PAGE 2 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 117 of 146 PageID 21085
Distribution Address City
Disixibution Address Foreign Province
Telephone Number (Day)
Claimant's or Beneficial Owner's Employer Identification Number
or
Email Address
State
Foreign Zip Code
Telephone Number (N
iglii)
Social Security N~arnber
Zip Code
Foreign Country
Legal representatives of Po
tential Claimants must attach power of attorney or other instrument showinb authority to act as such. See Instructions Item # 3 above.
TYPE OF CLAIMANT (check only one box):
❑ Individual
❑Joint Owners
❑Estate
❑Trust
❑Corporation
❑Partnership
❑Limited liability company ~ Private Pension Fund
❑Legal Representative
❑ IRA, Ro
th, Keogh, or other type of in
dividual retirement plan (s
tate type of pl
an, mailing address, and name of cu
rrent custodian)
❑ Other (s
pecify, describe on separate sheet)
SECTION B: CALCULATED RECOGNIZED LOSS AMOUNTS) AND RECOGNIZED CLAIM FOR CLAIMANTS WITH PURCHASES FROM MK DIRECTLY OR
THROUGH MAM
Please carefully review the information below.
Regions Morgan Keegan Open-End Funds Settlement Fund Calculation of Reco;nized Loss Amount and Recognized Claim: The Regions Morgan Keegan Open-End Funds
Settlement Fund Recognized Loss Amount is, for each Fund, the amount invested at the beginning of th
e Holders/Sellers Loss Period {July 3, 2006), plus all purchases/acquisitions
(including reinvested dividends) made during the Holders/Sellers Loss Period, le
ss all interest or dividends received during the Holders/Sellers Loss Period (July 3, 2006 through May
29, 2009}, le
ss all redemptions during the Settlement Class Period (including the amount received for any Fund shares owned at the end of tr
ading on May 29, 2009); the Recognised
Claim is the sum of al
l Recognized Loss An~ount(s) le
ss distributions received from the States' Fund and the SEC Fair Fund. The Class Distribution (
individual Claimants' respective
shares of the Net Class Settlement Fund) received by a Claimant who is also a F~uids Shareholder will be reduced by their Funds Distribution.
If you DO NOT AGREE with one or more of the Recognized Loss Amount or Recognized Claim Calculations below or "UNKNOWN" appears in those boxes, check "NO"; you
must then complete Section C below.
If you AGREE with the Recognized Loss Amount and Recognized Claim Calculations as stated, check "YES" and GO DIRECTLY TO SECTION D, as you will not be required to
submit documentation for your claim.
If you have questions as you are completing the Proof of Claim, please call t
he Administrator for assistance at 1-888-895-9227.
REGIONS MORGAN KEEGAN OPEN-END FUNDS SETTLEMENT Fi7ND —RECOGNIZED LOSS AMOUNTS) AND RECOGNIZED CLAIM CALCULATIONS
ESTABLISHED PER MK's RECORDS
Based on the net asset value of Fund shares held as of th
e close of tr
ading on July 3, 2006, purchases/acquisitions (
including reinvested dividends) during the Holders/Sellers Loss
Period (July 3, 2006 through May 29, 2009); dividends/interest received and sales/redemptions during the Holders/Sellers Loss Period; the amount received fox any shares head as of
the close of tr
ading on May 29, 2009; and amounts received in the States Fund and SEC Fair Fund distributions:
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 3 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 118 of 146 PageID 21086
If you invested in the RMK SELECT SHORT-TERM BOND FUND, this is your RECOGNIZED LOSS AMOUNT;
Invested ?s.mount
Less Recovered
Compensable
Plus Index
Reco n
ixed Loss
~Do you agree with your
Recognized Loss Amount
Amount
Loss Calculation
Adjustment
Amount
Calculation? (check one)
$$
$$
$❑YES
❑ NO
If you invested in the RMK SELECT INTERMEDIATE BOND FUND, this is your RECOGNIZED LOSS AMOUNT:
Invested Amount
Less Recovered
Compensable
Plus Index
Recognized Loss
bDo you agree with your
Recognised Loss Amount
Amount
Loss Calculation
Adjustment
Amount
Calculation? (check one)
$$
$$
$❑YES
~ NO
If you invested in the RMK SELECT HIGH INCOME FUND, this is your RECOGNIZED LOSS AMOUNT:
Invested Amount
Less Recovered
Compensable
Plus Index
Reco n
ixed Loss
gDo you agree with your
Recognized Loss Amount
Amount
Loss Calculation
Adjustment
Amount
Calculation? {check one)
$$
$$
$❑YES
❑ NO
Based on the RECOGNIZED LOSS AMOUNT for each of your investments in one or more of the RMK Select Funds, as
calculated above, th
is is your RECOGNIZED
CLAIM:
Total of Recognized Loss
Less States' Fund
Less SEC Fair Fund
COGNIZED CLAIM
Do you agree with your Recognized
Amounts)
Distribution Amount
Distribution Amount
Claim Calculation? (check one)
$$
$$
DYES
❑ NO
PLEASE NOTE: IF
YOU ARE A FUNDS SHAREHOLDER, YOUR CLASS DISTRIBUTION WILL BE REDUCED BY YOUR FUNDS
DISTRIBUTION FOR ALL THREE FUNDS, WHICH THE FUNDS ESTIMATE WILL SE: $
IF YOU AGREE WITH THESE CALCULATED AMOUNTS, CHECK THE "YES" BOX AND PROCEED TO SECTION D BELOW. IF
YOU
DO NOT AGREE, PROCEED TO SECTION C.
SEC'~ION C: SPECIAL INSTRUCTIONS FOR CLAIMANTS WHO DO NOT AGREE WITH TI3E RECOGNIZED LOSS AMOUNTS) OI2 RECOGNIZED CLAIM
CALCUATIONS IN SECTION B OR IF THE RECOGNIZED LOSS AMOUNTS) CALCULATION IN SECTION S ABOVE READS ̀~UNIiNOWN."
For eac~i Fund, separately list your opening position on July 2, 2007, purchases/acquisitions (
including reinvested dividends) during the Settlement Class Period (July 2, 2007 through
May 29, 2009), dividends/interest received during the Settlement Class Period, and sates/redemptions of th
e Funds during the Settlement Class Period. You may make copies of th
is
schedule or attach additional li
sts of tr
ansactions in the same format as the schedules below if more space is needed. Be sure to include your name and Social Security number or
employer identification number on all separate sheets. For purposes of th
is schedule, you must
list all transactions in addition to dividends/interest received.
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 4 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 119 of 146 PageID 21087
The date of acquisition and -sale is the "trade" or "contract" date and not the "settlement" or "payment" date. The acquisition price is the price paid without regard to commissions or
other expenses. The sale/redemption price is the amount received without regard to commissions or other expenses.
Use the Fund numbers below t
o identify your transactions in the schedules that follow by Fund number. These Fund numbers inay
also appear on your statements.
For your
convenience, th
e short-form names of each Fund are included in parentheses after the full name of each Fund. Only Funds listed below are eligible. The Fund numbers are provided
for your use in completing the transaction and dividend interest schedules.
FUND NAMES
FUND NUMBERS
Regions Morgan Keegan Select Intermediate Bond Fund ("
Intermediate Bond Fund")
1
Regions Morgan Keegan Select High Income Fund ("
Select High Income Fund")
2
Regions Morgan Keegan Select Short Term Bond Fund ("Short Term Bond Fund")
3
OPENING P05ITIONS
Enter the number of Fund shares held at the opening of tr
ading on July 3, 2006, fo
r each of ti
ne Funds listed below; if greater than zero (0), please provide docwmentation. Use your
statement for June 30, 2006 for your July 3, 2006 position. YOU MUST INCLUDE A COPY OF YOUR MONTHLY, QUARTERLY, OR ANNUAL STATEMENT THAT SHOWS
YOUR FUND HOLDINGS ON JUNE 30, 20
06.
#FUND
NUMBER OF SHARES HELD ON JULY 3, 2006
PROOF ENCLOSED?
1Regions Morgan Keegan Select Intermediate Bond Fund ("
Intermediate Bond Fund")
o Y o N
2Regions Morgan Keegan Select High Income Fund ("
Select High Income Fund")
o Y o N
3Regions Morgan Keegan Select Short Term Bond Fund ("
Short Tenor Bond Fund")
o Y o N
PURCHASES/ACQUISITIONS
List the Fund number, dates) of acquisirion, aid number of shares acquired (including reinvested dividends) during the Holders/Sellers Loss Period
(July 3, 2006 through May 29, 2009. You should provide annual or quarterly statements, brokerage statements, or confirmation slips to document all
acquisitions; if you cannot locate such documentation, provide the documentation upon which you rely in providing this information. If you cannot
locate any such documentation, you may st
ill l
ist t
he transaction information, but you will be contacted by mail to request additional information.
~'' NONE, CHECK HERE
❑
FUND NUMBER *
DATES) OF ACQUISITION
LIST CHRONOLOGICALLY
MM
DD
XYYY
NUMBER OF SHARES ACQUIRED
(INCLUDE REINVESTED DIVIDENDS)
~PROOF ENCLOSED.
/;
/oY oN
QUESTIONS? CALL Z-888-895-9227 OR VISIT www.rmlcopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 5 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 120 of 146 PageID 21088
/:
/—~--~
,--------- --
--- -----
o Y o N
/ /
—
oY oN
*See the chart on page 5 of th
is Proof of Ciaim for a list of Fund numbers that correspond to the eligible Fund names during the Settlement Class Period.
DIVIDENDS/INTEREST PAYMENTS RECEIVED
List the Fund number, dates of di
vidend/interest payments, and amounts received during the Holders/Sellers Loss Period (July 3, 2006 through May
29, 2009}. You should provide annual or
quarterly statements, brokerage statements, or IRS Forms 1099-DIV
or 1099-INT to document
all
payments received
If you can
not lo
cate
such documentation, provide the documentation upon which you rely in providing this information. If you
cannot loc
ate any such documentation, you may s
till
list the
transaction information, but
you w
ill be contacted by mail to request additional
information.
IF NONE, CHECK HERE
~
FU1~TD NUMBER x
DATES) OF DIVIDEND/INTEREST PAYMENT
LIST CHRONOLOGICALLY
MM
DD
YYYY
AMOUNT RECEIVED
PROOF ENCLOSED?
/ /
_.0
o Y N
$
__~
~oY oN
$
~
~ /
oY oN
j$
;
/ /
oY oN
$
* See the chart on page 5 of th
is Proof of Claim for a li
st of Fund numbers Tha
t correspond to the eligible Fund names during the Settlement Class Period.
SALES/REDEMPTIONS
List the Fund number, date(s), and namber of shares redeemed during the
Holders/Sellers Loss Period (July 3, 2006 through May 29, 2004),
including any shares held on May 29,
2009 tha
t were redeemed threafter. You should provide annual or quarterly statemen
ts, brokerage statements,
or confirmation
slips to document
all re
demp
tion
s; if you cannot locate such documentation, provide the documentation upon which you rely in
providing this information. If you can
not locate any such documentation, you may sti
ll list the transaction information, but you will be contacted by
mail to re u
est additional inf
orma
tion
.
FUND NUMBER x
DATES) OF SALE/REDEMPTION
LIST CHRONOLOGICALLY
MM
DID
YYYY
NUMBER OF SHARES SOLD/REDEEMED
PROOF ENCLOSED?
~ ~
oy oN
~_ ' ~ ~
_._.__I— __ ~
____
._.._.L
../
/~ Y ~ N
i
~--T-
~--;- -
k I
~
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit_com
PAGE 6 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 121 of 146 PageID 21089
o Y o
i-.
_,_
— --
~~
_~
~~
~=~---,--,
o Y o N
~ ~
~
* See the chart on page 5 of th
is Proof of Claim for a li
st of Fund numbers tha
t correspond to the eligible Fund names during the Settlement Class Period.
SECTION D: SUBSTITUTE FORM ~'-9
Employer Identification Number (f
or estates t
rusts corporations, etc.)
Social Security Number (f
or individuals)
Check appropriate box for federal tax classification (
required): D IndividuaUSole proprietor
❑ C Corporation
❑ Pa
rfie
rshi
p D Exempt payee
❑ Trust/Estate ❑Limited
Liability Company ❑Other
Enter the tax classification C = C corporation, S = S corporation, P =partnership
Enter U.S. Taxpayer Identification Number (TIN) on the appropriate line, if a
pplicable. For individuals, t
his is your Social Security number (SSN). If you are not an individual or you
are an individual who is an employer or who is engaged in a U.S. trade or business as a sole proprietor, you must enter an Employer
Identification Number (EII~.
If you are a
disregarded en
tity
claiming treaty ben
efit
s as a hybrid entity, e
nter your EIN. If you are anon-
United States citizen and have no SSN or EIN, pl
ease check "Not Applicable" below and
review the instrucrions that
follow.
O Not Applicable
If you are a U.S. citizen or other U.S. person, you are subject to the Substitute Form W-9 certifications, which are set forth in Verifications 9, 10, and 11 below. Please see the
definition of "U.S. person" at irs.~ov/dub/irs=pdf/fw9.pdf.
In the event you are not a U.S. citizen or other U.S. person, please cross out Verbcations 9, 10 and 11 and complete an appropriate Form W-8. The various options for Form W-8
are available for download at irs.gov/nub/irs-pdf/fw8ben.pdf (most common), ir
s.~ov/pub/irs-pdf/fw8eci.pdf, irs.gov/pub/irs-pdf/fw8exp.pdf, or irs.sov/uub/irs-ndf/fw8imv.ndf.
If you are not a U.S. citizen or other U.S. person, you must submit a completed Form W-8 alon; wi
th this Proof of Claim or your claim will be deemed deficient, which may result in
rejection of your claim.
SECTION E: SUBMISSION TO JURISDICTION OF COURT ANI) ACKNOWLEDGEMENTS, VERIFICATION ANI) RELEASE
I (We) submit this Proof of Chun and Release Form under the terms of th
e Stipulation and Agreement of Settlement described in the Notice. I (We) also submit to the ju
risdiction of
the United States District Court for the Western District of Tennessee, Western Division, with respect to my (our) cl
aim as a Settlement Class Member and for purposes of en
forcing
the release set forth herein. I (We) further acknowledge th
at I (we) wi
ll be bound by and subject to the terms of th
e Final Judgment and Order of Dismissal that may be entered in the
Lawsuits. I (We) ag
ree to furnish additional information to the Claims Administrator to support this claim if requested to do so. I (We) have not submitted any other claim in this
Settlement covering the same purchases, acquisitions and sales/redemptions of sh
ares ~n the Funds during the Settlement Class Period and know of no other Person having dane so on
my (o
ur) b
ehalf.
The undersigned represents and certifies UNDER PENALTY OF PERT[JRY that:
1. I (We) he
reby warrant and represent that I (we) am (are) not (a) excluded from the Settlement Class as defined herein, in the accompanying Notice, and in the Settlement
Agreement; or (b) the Administrator, an employees) of th
e Administrator, or a persons) assisting the Administrator in its role as the Administrator.
2. If signing this Proof of Claim on behalf of a corporation, partnership, or other business entity, I (we) have the legal authority to act on its behalf and execute this Proof of
Claim and have represented my (our) au
thority to sign below and/or am (are) pr
oviding documentation of such authority if I am (we are) acting on behalf of a trust, estate, o
r
under terms of an assignment of in
terest from the original shareholder.
3. I (We) understand that the Administrator may require add
itio
nal information from me (us) in order to
validate or pay my (our) claim, and I (we) agree to provide any
information requested by the Administrator for those purposes. If n
ecessary, I
(we) au
thorize the Administrator to obtain and review any and ail
tradang records relevant to my
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 7 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 122 of 146 PageID 21090
(our) t
ransactions in the Funds from any brokerage firm or oilier entity that has possession of such records and further consent to
tfie release of such recoriis by such brokerage
firm or other entity to the Administrator.
~. I (We) hereby ac~Cnowledge full and complete satisfaction of, and do hereby fully, finally and forever settle, release and discharge from the Released Claims each and all of the
Released Defendant Parties as those terms and terms related thereto are defined in the Settlement Agreements and e~ibits thereto.
5.
This release shall be of no force or effect unless and until the Court approves the Settlement Agreement and the Effective Date (as defined in the Settlement Agreement) has
occurred.
6. I (We) hereby warrant and represent that I (we) have not assigned or transferred or purported to assign or transfer, voluntarily or involuntarily, any claim or o#her matter
released pursuant to this release or any other part or portion thereof or
any interest therein.
7. I (We) agree that under no circumstances shall Defendants or their counsel, Lead or Derivative Plaintiffs or th
eir counsel, th
e Funds or their counsel, th
e Administrator or it
s agents
incur any liability to me (us) or to any other person if it
mates a distribution in accordance with the list of al
l Authorized Claimants and their Recognized Claims as approved by
the Court and that I
am (we are) e
njoined from taking any action in contravention of this provision.
8. If I am (we are) a custodian, t
rustee, o
r professional investing on behalf of and representing more than one Potential Claimant in a pooled investment fund or entity, I (we) also
attest that any distribution received will be allocated for the benefit of cu
rrent or former pooled investors and not for the benefit of management.
9. The number shown on this form is my (our) correct Taxpayer Identification Number (e
ither Social Security number or Employer Identification Number).
10.
I (We) certify that I am (we are) U
nited States citizens}, resident(s), or
entity(ies).
11.
I (We) certify that I am (we are) n
ot subject to backup withholding under the provisions of Section 3406(a)(1)(C) of th
e Internal Revenue Code.
NOTE: If you have been
notified by the Internal Revenue Service that you are subject to backup withholding, please strike out the lanua;e that you are not subject to
backup withholding in the certification in item # 11 above.
I (We) de
clare under penalty of perjury under the laws of th
e United States of America that all of th
e foregoing information supplied on the Proof of Claim by the undersigned is true
ar~d correct and that the documents submitted herewith are true and genuine. The Internal Revenue Service does not require your consent to any provision other than the
certification required to avoid backup withholding listed in item # 11 of the Verification section above.
Signature of Claimant
Date
Print name here
Signature of Jo
int Claimant (if any)
Date
Print name here
If the Claimant is other than an individual (e.g., trust, estate, company, or other business entity) or if t
he Claimant is not the person completing this form (e.g., attorney-in-
fact, t
hird-party claim
-filing service, nominee), the following must also be provided:
ignature o person signang an e a o
a~nant
ate
rmt name ere
Capacity/title of person signing (Executor, P
resident, CEO, Tr
ustee, etc.)
PROOFS OF CLAIM MUST BE POSTMARKED BY o, 2015.
ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME. THANK YOU FOR XOUR PATIENCE.
ANY PERSON WHO KNOWINGLY SUBMITS A FALSE PROOF OF CLAIM IS SUBJECT TO PENALTIES FOR PERJURY AND OTHER VIOLATIONS OF FEDERAL LAW.
Submission of th
is Proof of Claim does not ensure that you will share in the distribution of th
e Settlement.
REMINDER CHECKLIST
1. PLEASE COMPLETE SECTIONS B AND D OR B, C, AND D AND SIGN THE PROOF OF CLAIM. If this claim is being made on behalf of joint owners, ALL OWNERS
MUST SIGN.
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rmkopenendfundsettlement.com or www.morgankeeganlawsuit.com
PAGE 8 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 123 of 146 PageID 21091
2.
If re
quired, REMEMBER TO ATTACH SUPPORTING DOCUMENTATION. Do not use a highlighter on this form or any supporting docurr►ents. Supporting documentation
includes trade confirmations, official monthly, quarterly or annual brokerage account statements.
3. DO NOT SEND ORIGINAL DOCUMENTS; SEND ONLY COPIES.
4. Keep a copy of your Proof of Claim and supporting documentation for your records; supporting documentation cannot be returned to you once the documenfis are submitted.
5. The Claims Administrator will acknowledge receipt of your Proof of Claim by mail within 60 days. Your claim i
s not deemed by the Claims Administrator to be submitted
unless you receive an acknowledgment postcard. If you do not receive an aclrnowledgment postcard within 60 days, please call the Claims Administrator at 1-888-895-9227.
Also, you can submit your claim using a service that provides you with proof of mailing, such as registered or certified mail, return receipt requested; express mail that does not
waive signature; or courier service.
6. If you move or change your name after submitting this Proof of Claim, pl
ease not
ify the ad
mini
stra
tor;
failure to have a correct address on fi
le with the administrator may result in
forfeiture of any payment from the net distribution fund that is returned to ti
ie administrator as undeliverable by the United States Postal Service.
QUESTIONS? CALL 1-888-895-9227 OR VISIT www.rznkopenendfundsettlement.com or www.morgankeeganiawsuit.com
PAGE 9 OF 9
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 124 of 146 PageID 21092
i :~~
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 125 of 146 PageID 21093
IloT THE UNI'~ED STATES DISTRICT COURT
FOR SHE WESTERN DISTRICT OF TENNESSEE
WES~'EIZN DIVISION
IN RE REGIONS MORGAN KEEGANSECURITIES, DERIVATIVE and ERISA
LITIGATION
This Document Relates to:
In re Regions Morgan Keegan Open-EndMutual Fund Litigation,
No. 2:07-cv-02784-SHM-dkv
and
Landers, et al. v. MoNgan Asset Management,Inc., et al.,
No. 2:08-cv-02260-SHM-dkv
MDL Docket No. 2009
SUMMARY NOTICE OF PENDENCYAND PROPOSED
SETTLEMENT OF CLASS ANDDERIVATIVE ACTIONS AND MOTION
FOR ATTORNEYS' FEES ANDEXPENSES
SUMMARY NOTICE OF SETTLEMENT OF CLASS AND DERIVATIVE ACTIONS
TO: (1) ~'ersons w~io pa~rc~~ased during the period December 6, 2004 t~irai€gh December 6,
2007 or held and/or redee~~ed daring the ~eri~d July 3, 2006 throug~~ May 29, 20Q9
shares in the Regions Morgan Keegan Select Short Terin Band I nd ("S'TF")
(MS~'BX, RSTC~ MSBIX), the Regions Morgan Keegan Select Intermediate Bond
Fund ("IBF") (MI~BX, RIBCX, RIBI~, ai~d/o~° the Regions Morgan Keegan Select
High Income FF`~nd ("HIF"') (NII~IIX, RHICX, RHII~ (ccsitectively "the Funds") and
wlio are riot excluded by the terms of the settle~Y€ent ("Settlement Class").1
(2) Pe~•sans ~v~~a ̀ vere sl~~reliolciers of oi~e or nxore of the Fui~c~s on May 29, 2009
`v~~e~~ tl~e Funds' shareholders approved tl~e forY~ial Iiqui atioai of the Funt~s aiici who
ire riot exc3uded by t ie terms of the settlement ("Futzds Sharei~oiders").
YOIJ ARE HEREBY NOTIFIED, pursuant to Rules 23 and 23.1 of the Federal Rules of Civil
Procedure and an order of the Court, that a proposed settlement has been entered into between
Plaintiffs and Defendants in the above-captioned Class Action Lawsuit and Derivative Action
Lawsuit ("Settlement"). This proposed settlement includes (1) a Settlement Class in the above-
captioned Class Action Lawsuit between Lead Plaintiffs the Estate of Kathryn S. Cashdollar,
Dajalis Ltd., Jeanette H. and H. Austin Landers, and Frank D. Tutor ("Lead Plaintiffs"), on behalf
of themselves and a Settlement Class that has been preliminarily certified for purposes of settlement
only, and Defendants Morgan Keegan &Company, Inc., Morgan Asset Management, Inc., MK
Holding, Inc., Regions Financial Corporation, Regions Bank; Morgan Keegan Select Fund, Inc. and
All capitalized terms used in this Summary Notice are defined in the Stipulation and Agreement
of Class Settlement (the "Class Settlement Agreement"), dated as of January 19, 2015, or in the
Stipulation and Agreement of Derivative Action Settlement ("Derivative SEttlement Agreement"), dated
as of January 19, 2015.
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 126 of 146 PageID 21094
its portfolios or "series": STF (n1k1a Helios Select Short-Term Fund), IBF (n/k/a Helios Select
Intermediate Bond Fund), and HIF (n/k/a Helios Select High Income Fund) ("Funds"); Allen B.
Morgan, Jr., J. Kenneth Alderman, Jack R. Blair, Albert C. Johnson, William Jeffries Mann, James
Stillman IZ. 1VIcFadden, W. Randall Pittman, Mary S. Stone, Archie W. Willis, III, Carter E.
Anthony, Brian B. Sullivan, Joseph C. Weller, J. Thompson Weller, G. Douglas Edwards, Charles
D. Maxwell, David M. George, Michele F. Wood, James C. Kelsoe, Jr., David H. Tannehill, and
Thomas R. Gamble; and PricewaterhouseCoopers LLP ("Defendants"), and (2) a settlement in the
Derivative Action Lawsuit between and among Derivative Plaintiffs H. Austin and Jeanette H.
Landers, James H. Frazier, James P. and Peggy C. Whitaker, and the Estates of Charles M. and
Diana W. Crump on behalf of the Funds; the Funds, as nominal defendants; and Defendants, except
Messrs. Mann, Anthony, Edwards, George, and Gamble. The Settlement provides for the payment
by certain Defendants in the amount of $125 million in cash ("Settlement Amount"). Pursuant to
an agreement between Lead and Derivative Plaintiffs and the Funds, it is proposed that $110 million
of the Settlement Amount be allocated to the Class ("Class Settlement Amount") and $15 million to
the Funds ("Funds Settlement Amount"); the Funds Settlement Amount is to be further allocated
among the Funds in accordance with their respective losses and distributed to the Funds
Shareholders ("Funds' Distribution"). A full description of the Class and Derivative Settlements can
be found in the Notice of Pendency and Proposed Settlement of Class and Derivative Actions and
Motion for Attorneys' Fees and Expenses (the "Notice").
A hearing will be held before the Honorable Samuel H. Mays, Jr. of the United States District Court
for the Western District of Tennessee, Western Division, in the Clifford Davis/Odell Horton Federal
Building, 167 North Main Street, 1 lth Floor Courtroom #2, Memphis, Tennessee 38103 at i•
.m., on , 2015 to, among other things: determine whether the proposed
Settlement should be' approved by the Court as fair, reasonable, and adequate; determine whether
the proposed Plan of Allocation of the Net Class Settlement Fund should be approved as fair and
reasonable; determine whether the Funds' Distribution should be approved as fair and reasonable;
and consider the application of Lead Counsel and Derivative Plaintiffs' counsel for an award of
attorneys' fees and payment of litigation expenses. The Court may change the date of the hearing
without providing another notice.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO RECEIVE MONEY
FROM THE NET CLASS SETTLEMENT FUND. If you have not yet received the full printed
Notice and a Proof of Claim and Release Form ("Proof of Claim"), you may obtain copies of these
documents by contacting the Claims Administrator:
In ~e Regions Morgan Keegan Open-End Mutual Fund Litigation
Claims Administratorc/o GCG
PO Box 9939Dublin, Ohio 43017-5939Phone: 1-888-895-9227
www.rmkopenendfundsettlement.com oN www.morgankeeganlawsuit.com.
DO NOT CONTACT THE COURT REGARDING THIS NOTICE
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 127 of 146 PageID 21095
Inquiries, other than requests for information about the status of a claim, may also be made
to Lead Counsel.LOCKRIDGE GRINDAL NAUEN P.L.L.P.
Richard A. LockridgeVernon J. Vander Weide
Gregg M. Fishbein100 Washington Avenue South, Suite 2200
If you are a Class Member, in order to be eligible to share in the distribution of the Net Class
Settlement Fund, you must submit a Proof of Claim to the Claims Administrator postsrtarked or
otherwise receaved tao later tlaafP _, 241 S. To exclude yourself from the Class, you
must submit a written request for exclusion in accordance with the instructions set forth in the
Notice such that it is received rzo later tlta~z , 2015. If you are a Class Member
and do not exclude yourself from the Class, you will be bound by the Final Order and Judgment of
the Court, and will lose the ability to pursue, or to continue to pursue, or to participate in any way
in, any legal action against Released Defendants concerning the Released Claims, as those terms
and terms related thereto are defined in the Class Settlement Agreement. Any objections to the
proposed Settlement, Class Plan of Allocation, determination of the Class and Derivative Settlement
Amounts, allocation of the Funds Settlement Amount among the Funds, the Funds' Distribution,
and/or application for attorneys' fees and payment of expenses ~azust be filed with the Court and
served an counsel for the Parties in accordance with the instructions set forth in the Notice, such
that they are received no later than , 2015.
If you are a Class Member and do not timely submit a valid Proof of Claim, you will not be
eligible to share in the Net Class Settlement Fund, but you nevertheless will be bound by the Final
Order and Judgment in the Class Action.
If you are a Funds Shareholder in one or more of the Funds, you need do nothing to receive
your share of the Settlement allocated to the Net Funds Settlement Fund.
DATED: , 2015 BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 128 of 146 PageID 21096
1. ♦. >~. ~~ ;: `~`
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 129 of 146 PageID 21097
IlV THE UNITED STATES DISTRICT COURT
F0~2 THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
II~T RlE REGIONS MORGAN KEEGAN
SECURITIES, DERIVATIVE AND ERISA
LITIGATION
This Document Relates to:
In ~e Regions MoNgan Keegan Open-End
Mutual Fund Litigation,
No. 2:07-cv-02784-SHM-dkv
MILL Docket No. 2009
Judge Samuel H. Mays, Jr.
Magistrate Judge Diane K. Vescovo
FINAL .TUDGMENT AND ORDER OF DISMISSAL
This Court having considered: the Stipulation and Agreement of Class Settlement dated
January 19, 2015, including all Exhibits thereto (the "Class Settlement Agreement"), between
and among (i) the Estate of Kathryn S. Cashdollar, Dajalis Ltd., Jeanette H. Landers, H. Austin
Landers, and Frank D. Tutor (collectively, "Lead Plaintiffs" or "Plaintiffs"); (ii)
PricewaterhouseCoopers LLP ("PwC"); (iii) Morgan Keegan &Company, Inc., Morgan Asset
Management, Inc., and MK Holding, Inc.; (iv) Regions Financial Corporation ("RFC"); (v)
Regions Bank ("RB"); (vi) Regions Morgan Keegan Select Short Term Bond Fund ("STF"),
Regions Morgan Keegan Select Intermediate Bond Fund ("IBF"), and Regions Morgan Keegan
Select High Income Fund ("HIF"), each of which was a series of Morgan Keegan Select Fund,
Inc., a registered investment company (together with STF, IBF, and HIF, the "Open-End Funds"
or "Funds");1(vii) Carter E. Anthony, Brian B. Sullivan, Joseph G Weller, J. Thompson Weller,
1 Following shareholder approval of Hyperion Brookfield Asset Management as the Fund's
investment advisor in July 2008, the Funds were renamed Helios Select Short Term Bond Fund,
aa~4i~.i 1
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 130 of 146 PageID 21098
G. Douglas Edwards, Charles D, Maxwell, David M. George, Michelle F. Wood, James C.
Kelsoe, Jr., David H. Tannehill, and Thomas R. Gamble; and (viii) Allen B. Morgan, Jr., J.
Kenneth Alderman, Jack R. Blair, Albert C. Johnson, William Jefferies Mann, James Stillman
I2.. McFadden, W. Randall Pittman, Mary S. Stone, and Archie W. Willis III (collectively, (ii)
through (viii), "Defendants" and together with Lead Plaintiffs, the "Parties") and having held a
hearing on , 2015; and having considered all of the submissions and arguments with
respect thereto, and otherwise being fully informed, and good cause appearing therefore,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:
Introc~uctary Fi~din~s
1. This Final Judgment and Order of Dismissal ("Judgment") incorporates herein
and makes a part hereof, the Class Settlement Agreement, including the Exhibits thereto. Unless
otherwise defined herein, all capitalized terms used herein shall have the same meanings as set
forth in the Class Settlement Agreement.
2. This Court has jurisdiction over the subject matter of the Class Action Lawsuit
and over all parties to the Class Action Lawsuit, including all Class Members who did not timely
file a valid request for exclusion from the Class by the , 2015 deadline pursuant to
the Court's Order Preliminarily Approving Class Settlement and Providing for Notice entered
201 S (ECF No. ~ (the "Class Preliminary Approval Order").
Af~rta~~.ce of Class Certificatiai;
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure ("Federal Rule 23"),
the Court certifies this Class Action Lawsuit as a class action for settlement purposes and
Helios Select Intermediate Bond Fund, and Helios Select High Income Fund; Morgan Keegan
Select Fund, Inc., was renamed Helios Select Fund, Inc.
487417.1 2
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 131 of 146 PageID 21099
confirms certification of the following settlement Class, as ordered by the Court in the
Preliminary Approval Order:
All Persons who (1) purchased any class of redeemable
shares of the Regions Morgan Keegan Select Short Term
Bond Fund ("STF"), the Regions Morgan Keegan Select
Intermediate Bond Fund ("IBF"), ox the Regions Morgan
Keegan Select High Income fund ("HIF"), at any time
during the period from December 6, 2004 through
December 6, 2007, inclusive; or (2) held and/or redeemed
on or after July 3, 2006 through the end of the Settlement
Class Period shares of STF, IBF, or HIF and were
damaged thereby.
Excluded from the Class and as Class Members are:
(i) the Individual Defendants and the members of the immediate families of the
Defendants;
(ii) Defendants, other than the Individual Defendants, and the subsidiaries and
affiliates of Defendants (including but not limited to RFC, Morgan Asset Management, Inc., RB,
Morgan Keegan, Morgan Properties LLC, and MK Holding, Inc.);
(iii) any Person who is a director or officer subject to § 16 of the Securities Exchange
Act of 1934, partner, or controlling person of the Open-End Funds or any other Defendant;
(iv) any entity in which any Defendant has a controlling interest;
(v) any member of the TAL Subclass;
(vi) any Person who has at any time filed a proceeding with FINRA against one or
more Released Defendant Parties concerning losses alleged to be attributable to the purchase or
holding of shares in one or more of the Open-End Funds during the Class Period, and such
proceeding was not subsequently withdrawn or dismissed pursuant to a specific agreement to
allow the Person to participate as a Class Member;
aa~4i~.i 3
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 132 of 146 PageID 21100
(vii) any Person who has at any time filed a state court action that has not been.
removed to federal court, or has been removed and remanded, against one or more of the
Defendants concerning losses alleged to be attributable to the purchase or holding of shares in one
or more of the Open-End Funds during the Class Period, and whose claims in that action have
been dismissed with prejudice, released, or fully adjudicated absent a specific agreement with
such Defendants) to allow the Person to participate as a Class Member;
(viii) any Person who has at any time filed a federal. action or state court action that has
been removed to federal court, against one or more of the Defendants concerning losses alleged to
be attributable to the purchase or holding of shares in one or more of the Open-End Funds during
the Class Period, and whose claims in that action have been dismissed with prejudice, released, or
fully adjudicated absent a specific agreement with such Defendants) to allow the Person to
participate as a Class Member;
(ix) any Person who has at any time individually settled with one or more of the
Defendants claims concerning losses alleged to be attributable to the purchase or holding of
shares in one or more of the Open-End Funds during the Class Period, and whose claims in that
settlement have been dismissed with prejudice, released, or fully adjudicated absent a specific
agreement with such Defendants) to allow the Person to participate as a Class Member;
(x) any Person who submits a valid and timely request for exclusion from the Class in
accordance with the requirements set forth in the Notice; and
(xi) the legal representatives, heirs, successors and assigns of any such excluded
Person or entity.
Provided however, these exclusions do not extend to the Regions 401(k) Plan or the
Morgan Keegan 401(k) Plan, or any portion thereof, which plans have participants who may have
487417.1 4
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 133 of 146 PageID 21101
held shares in STF, IBF, and/or HIF. Neither the Regions 401(k) Plan nor the Morgan Keegan
401(k) Plan shall be construed, for purposes of this Class Settlement, as being either "affiliates"
of any Defendant or entities in which any Defendant has a controlling interest. Moreover,
notwithstanding anything in this Class Settlement or Plan of Allocation (as defined in Paragraph
25 of the Class Settlement Agreement) to the contrary, nothing in this Class Settlement or plan of
allocation shall be construed in any way to limit the ability of the Regions 401(k) Plan or the
Morgan Keegan 401(k) Plan to fully participate in the Class Settlement and in any recovery
hereunder. These exclusions also do not extend to trusts or accounts as to which the control or
legal ownership by any Defendant (or by any subsidiary or affiliate of any Defendant) is derived
or arises from an appointment as trustee, custodian, agent, or other fiduciary ("Fiduciary
Accounts") unless (i) that Fiduciary Account is part of the TAL Subclass or (ii) with respect to
any such Fiduciary Account, any Person has filed (A) a proceeding (described in clauses (vi)-
(viii) above) against one or more Released Defendant Parties concerning the purchase or holding
of shares in one or more of the Open-End Funds during the Class Period and such proceeding was
not subsequently dismissed to allow the Person to specifically participate as a Class Member or
(B) otherwise resolved said Person's claims as contemplated in clause (ix) above. With respect to
Open-End Fund shares for which the TAL Orders authorize the TAL to prosecute the claims or
causes of action pleaded in the Complaint ("TAL Represented Open-End Fund Shares"), "Class"
and "Class Member" also excludes Persons who are, or were during the Class Period, trust and
custodial account beneficiaries, principals, settlors, co-trustees, and others owning beneficial or
other interests in the TAL Represented Open-End Fund Shares ("Such Persons"), but this
exclusion applies only to any claims or causes of action of Such Persons that the TAL is
authorized by the TAL Orders to prosecute. With respect to Open-End Fund Shares that are not
487417.1 5
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 134 of 146 PageID 21102
TAL Represented Open-End Fund Shares and in which Such Persons have a beneficial or other
interest, the foregoing partial exclusion of Such Persons does not apply.
4. The Court confirms and incorporates its finding in the Class Preliminary
Approval Order that the prerequisites for class certification under Rules 23(a) and 23(b)(3) of the
Federal Rules of Civil Procedure have been satisfied in that:
a. The number of Class Members is so numerous that joinder of all Class
Members is impracticable, thus satisfying Federal Rule 23(a)(1).
b. There are questions of law and fact common to the Class, thus satisfying
Federal Rule 23(a)(2). Among the questions of law and fact common to the Class are:
whether the Securities Act of 1933 and the Securities Exchange Act of 1934 and Rule
lOb-5 promulgated thereunder were violated by Defendants' acts as alleged; whether
statements made by Defendants to the investing public in the Funds' Registration
Statements and Prospectuses misrepresented or omitted material facts; whether
statements made by Defendants in the Funds' public filings misrepresented or omitted
material facts; and whether the Members of the Class have sustained damages and, if so,
what is the proper measure thereof.
c. The claims of Lead Plaintiffs, as Court appointed class representatives, are
typical of the Class they represent, thus satisfying Federal Rule 23(a)(3).
d. Lead Plaintiffs the Estate of Kathryn S. Cashdollar, Dajalis Ltd., Jeanette
H. Landers, H. Austin Landers, and Frank D. Tutor will fairly and adequately protect the
interests of the Class, thus satisfying Federal Rule 23(a)(4). Accordingly, Lead Plaintiffs
are appointed as Class Representatives for the Class.
487417.1 6
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 135 of 146 PageID 21103
e. The questions of law and fact common to the Class predominate over any
questions affecting only individual members, thus satisfying Federal Rule 23(b)(3).
f. A class action is superior to other available methods for the fair and
efficient adjudication of the controversy, thus satisfying Federal Rule 23(b)(3).
In making all of the foregoing findings, the Court has exercised its discretion in certifying the
Class.Class Notice Fia~din~s acid Opt-guts
5. The record shows that Notice has been given to the Class in the manner approved
by the Court in its Class Preliminary Approval Order (ECF No. ~. The Court finds that such
Notice: (i) constitutes reasonable notice and the best notice practicable, under the circumstances;
(ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise all
Class Members who could reasonably be identified of the pendency of the Class Action Lawsuit,
the terms of the Settlement, and the Class Members' right to object to or exclude themselves
from the Class and to appear at the settlement fairness hearing held on , 2015
(the "Class Settlement Hearing"); (iii) constitutes due, adequate, and sufficient notice to all
persons or entities entitled to receive notice; and (iv) meets the requirements of due process,
Federal Rule 23, Section 27 of the Securities Act of 1933, 15 U.S.C. §77z-1(a)(7), as amended by
the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), and Section 21D(a)(7) of
the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7), as amended by the PSLRA, and
any other applicable law.
6. The appropriate officials have been served with the notice set forth in 15 U.S.C. §
1715(b) and were served at least ninety (90) days prior to the entry of this Order.
7. No individuals or entities, other than those listed on Exhibit A hereto, have
timely and validly excluded themselves from the Class. This Judgment shall have no force or
487417.1 7
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 136 of 146 PageID 21104
effect on the persons or entities listed on Exhibit A hereto.
Approval of t3~e Class Settleme~gt
8. In light of the benefits to the Class, the complexity, expense, and possible
duration of further litigation against the Defendants, the risks of establishing liability and
damages, and the costs of continued litigation, the Court hereby fully and finally approves the
Class Settlement, pursuant to Federal Rule 23, as set forth in the Class Settlement Agreement in
all respects, and finds that the Class Settlement is, in all respects, fair, reasonable, and adequate,
and in the best interests of Plaintiffs, the Class, and each of the Class Members. This Court
further finds the Class Settlement set forth in the Class Settlement Agreement is the result of
arm's length negotiations between experienced counsel representing the interests of the Class
and Defendants. The Court has considered any submitted objections to the Class Settlement and
hereby overrules them.
9. The Parties are hereby directed to implement and consummate the Class
Settlement according to the terms and provisions of the Class Settlement Agreement. In addition,
the Parties are authorized to agree to and adopt such amendments and modifications to the Class
Settlement Agreement, or any Exhibits attached thereto, to effectuate the Class Settlement if they
(i) are consistent in all material respects with this Judgment, and (ii) do not limit the rights of the
Class in connection with the Class Settlement. Without further order of the Court, the Parties
may agree to reasonable extensions of time to carry out any of the provisions of the Class
Settlement Agreement.
Dis~~issal of Clainxs ai d Release
10. Except as to any individual claim of those Persons who have been excluded from
the Class (identified in Exhibit A attached hereto), the Class Action Lawsuit and all claims
487417.1 g
Case 2:07-cv-02784-SHM-dkv Document 415-1 Filed 01/22/15 Page 137 of 146 PageID 21105
asserted therein are dismissed with prejudice as to the Plaintiffs and the other Members of the
Class, and as to each and all of the Defendants. The Parties are to bear their own costs, except as
otherwise provided in the Class Settlement Agreement.
11. The Court finds, after review of the record of this Class Action Lawsuit, including
the Second Consolidated Amended Class Action Complaint and the dispositive motions, that
during the course of the Class Action Lawsuit, the Parties and their respective counsel at all
times complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure, and
particularly with Rule 11(b) of the Federal Rules of Civil Procedure.
12. Upon the Effective Date of the Class Settlement (as defined in Paragraph 38 of
the Class Settlement Agreement), the Settlement Class (as defined in Paragraph 1(d) of the Class
Settlement Agreement, other than those Persons or entities listed on Exhibit A who have timely
and validly requested exclusion from the Class), shall be deemed to have, and by operation of the
Judgment shall have, fully, finally, and forever released, relinquished, and discharged all
Released Claims (as defined in Paragraph 1(qq) of the Class Settlement Agreement) to the full
extent set forth in the Class Settlement Agreement, including Unknown Claims (as defined in
Paragraph 1(ddd) of the Class Settlement Agreement), as against the Released Defendant Parties
(as defined in Paragraph 1(rr) of the Class Settlement Agreement).
13. Upon the Effective Date of the Class Settlement (as defined in Paragraph 38 of
the Settlement Agreement), Defendants, on behalf of themselves, and their heirs, executors,
trustees, administrators, predecessors, successors, and assigns, shall be deemed to have, and by
operation of this Judgment shall have, fully, finally, and forever released, relinquished, and
discharged the Released Plaintiff Parties (as defined in Paragraph 1(uu) of the Class Settlement
Agreement) from all claims related to the commencement, continuation, or prosecution of
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Released Defendants' Claims (as defined in Paragraph 1(ss) of the Class Settlement Agreement),
as set forth in the Class Settlement Agreement.
14. Upon the Effective Date of the Class Settlement (as defined in Paragraph 38 of
the Class Settlement Agreement), all Class Members, either directly, representatively, or in any
other capacity (other than those Persons ox entities listed on Exhibit A who have timely and
validly requested exclusion from the Class), are hereby permanently enjoined from commencing,
continuing, or prosecuting against any or all Released Defendant Parties (as defined in Paragraph
1(rr) of the Class Settlement Agreement) any action or proceeding in any court or tribunal
asserting any of the Released Claims (as defined in Paragraph 1(qq) of the Class Settlement
Agreement). Upon the Effective Date, and without any further action, the Lead Plaintiffs further
shall not knowingly and voluntarily assist in any way any third party in commencing or
prosecuting any suit against the Released Defendant Parties relating to any Released Claim,
including any derivative suit not otherwise released.
15. Each Class Member (other than those Persons or entities listed on Exhibit A who
have timely and validly requested exclusion from the Class), whether or not such Class Member
executes and delivers a Proof of Claim form, is bound by this Judgment, including, without
limitation, the release of claims as set forth in the Class Settlement Agreement and this
Judgment.
16. Any plan for allocating the Net Class Settlement Fund (as defined in Paragraph
1(ee) of the Class Settlement Agreement) to eligible Class Members submitted by Class Counsel
or any order regarding the Fee and Expense Application (as defined in Paragraph 13 of the Class
Settlement Agreement), or any appeal modification or change thereof, shall in no way disturb or
affect this Judgment or any releases contained therein, and shall be considered separate from this
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Judgment.
17. This Judgment, the Class Settlement Agreement and its terms, the negotiations
leading up to the Class Settlement Agreement, the fact of the Class Settlement, and the
proceedings taken pursuant to the Class Settlement, shall not: (1) be construed as an admission of
liability or an admission of any claim or defense on the part of any party, in any respect; (2) form
the basis for any claim of estoppel by any third party against any of the Released Defendant
Parties; or (3) be admissible in any action, suit, proceeding, or investigation as evidence, or as an
admission, of any wrongdoing or liability whatsoever by any of the Released Defendant Parties
or as evidence of the truth of any of the claims or allegations contained in any complaint filed in
the Class Action Lawsuit or deemed to be evidence of or an admission or concession that Lead
Plaintiffs or any Class Members have suffered any damages, harm, or loss. Neither this
Judgment, the Class Preliminary Approval Order, the Class Settlement Agreement, nor any of
their terms and provisions, nor any of the negotiations or proceedings connected with them, nor
any action taken to carry out this Judgment, the Class Preliminary Approval Order, or the Class
Settlement Agreement by any of the Parties shall be offered into evidence, or received in
evidence in any pending or future civil, criminal, or administrative action, arbitration, or
proceeding, except: in a proceeding to enforce this Judgment, the Class Preliminary Approval
Order, the Class Settlement Agreement, or to enforce any insurance rights; to defend against the
assertion of Released Claims (including to support a defense or counterclaim based on. principles
of res judicata, collateral estoppel, release, good faith settlement, judgment bar, or reduction); by
Lead Counsel to demonstrate its adequacy to serve as class counsel pursuant to Federal Rule
23(g) (or its state law analogs); subject to the prohibited purposes identified in Paragraph 46 (a)-
(e) of the Class Settlement Agreement and in Paragraph 17(1)-(3) above; or as otherwise
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required by law.
Coi~tiizs~~ J~arisdictio~~
18. Without affecting the finality of this Judgment, the Court retains continuing and
exclusive jurisdiction over all matters relating to administration, consummation, enforcement,
and interpretation of the Class Settlement Agreement, the Class Settlement, and of this
Judgment, to protect and effectuate this Judgment, and for any other necessary purpose.
Defendants, Class Representatives, and Class Members are hereby deemed to have irrevocably
submitted to the exclusive jurisdiction of this Court for the purpose of any suit, action,
proceeding, or dispute arising out of or relating to the Class Settlement or the Class Settlement
Agreement, including the Exhibits thereto, and only for such purposes. Without limiting the
generality of the foregoing, and without affecting the finality of this Judgment, the Court retains
exclusive jurisdiction over any such suit, action, or proceeding. Solely for purposes of such suit,
action or proceeding, to the fullest extent they may effectively do so under applicable law,
Defendants, Class Representatives, and Class Members are hereby deemed to have irrevocably
waived and agreed not to assert, by way of motion, as a defense or otherwise, any claim or
objection that they are not subject to the jurisdiction of this Court, or that this Court is, in any
way, an improper venue or an inconvenient forum.
19. With respect to any future hearing or determination of any investment or
distribution of the Net Class Settlement Fund to Class Members, the Plan of Allocation, the
determination, administration, or calculation of claims by claimants and attorneys' fees of Class
Counsel, or the payment or withholding of taxes of the Settlement Fund, Defendants have no
responsibility for, interest in, or liability in connection with such matters and do not have to
appear or participate in any hearing or determination for such separate matters.
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20. In the event that the Settlement does not become effective in accordance with the
terms of the Class Settlement Agreement or the Effective Date does not occur, or in the event
that the Class Settlement Fund, or any portion thereof, is returned to the Defendants, then this
Judgment shall be rendered null and void to the extent provided by and in accordance with the
Class Settlement Agreement 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 Class Settlement Agreement.
21. This Judgment is a final, appealable judgment and there is no just reason for
the delay in the entry of this Judgment and it is to be entered forthwith by the Clerk in
accordance with Rule 58 of the Federal Rules of Civil Procedure.
It is so ORDERED this day of , 2015.
SAMUEL H. MAYS, JR.UNITED STATES DISTRICT JUDGE
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EXHIBIT A
List of Persons and Entitles Excluded from the Class in
In ~e Regions Morgan Keegan Open-End Fund Litigation,
No. 2:07-cv-02784-SHM-dkv
The following persons and entities, and only the following persons and entities, have
properly excluded themselves from the Class:
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EXHIBIT 2
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PROPOSED TERM SHEET FOR SETTLEMENT OF RMK OPEN-END FUNDSLITIGATION
Settling Defendants to pay cash of $125,000,000. Payment to be deposited in aninterest-bearing independent escrow account within 10 days after preliminary approvalby the Court.
2. Class approval: Lead and Derivative Plaintiffs and Funds shall move for preliminaryapproval within 60 days from the date hereof.
A percentage of Defendants' payment shall be allocated to the funds in settlement of theLandes derivative action subject to the approval of the Funds' board of directors. Theparties shall advise the Court that the pending motion For preliminary approval of thePartial Settlement between the class and the Funds and AMOU shall be withdrawn andshall be superseded by this settlement.
4. The Class representatives, Funds, and other Defendants shall execute mutual releasesand dismissals.
The following persons/entities shall be excluded from participating in this settlement,including the portion thereof allocated to the class and the portion thereof allocated tothe Funds:
a. Any and all entities related to the RMK organization—i.e., RFC and its direct andindirect subsidiaries.
b. Individuals named as defendants or related thereto; any entity in which anyexcluded party has a controlling interest; or any legal representatives, heirs,successors and assigns of any of the foregoing persons.
With respect to S.a. and S.b., Defendants shall provide a list of said persons andentities.
6. Additionally, RMK shall provide the releases, agreements or other bases for excludingfrom the settlement, including the portion thereof allocated to the class and to thederivative action, the following:
a. Individuals or entities identified by Defendants as having opted out of the class andderivative actions to pursue their claims in an individual court action, having filedan FINRA arbitration (that has not been dismissed on the express condition ofallowing the party to participate in the class), or having otherwise released theirclaims against the Funds and the other Defendants, including those identified onRMK Submission Ex. Y.
b. Individuals or entities represented by the Trustee ad Liten~ in a separate settlementwith soiree or all of the Defendants.
7. It is understood that the final settlement agreement will contain other standard terms ofsettlement. It is agreed that this Term Sheet sets forth certain material terms of thissettlement, and additional terms may be added.
8. Any disputes relating to this agreement will be submitted to Judge Layn Phillips formediation.
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FOR PLAINTIFFS
f~' -̀~~ v-.,
,~ ^.
FOR THE Ft7NDS: J~~t ~'.
FOR DE NDANTS REG ONS et al.:
FOR PwC:
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