Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 1 of 31

Transcription

1 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 1 of 31

2 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 2 of 31

3 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 3 of 31

4 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 4 of 31

5 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 5 of 31

6 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 6 of 31

7 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 7 of 31

8 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 8 of 31

9 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 9 of 31

10 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 10 of 31

11 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 11 of 31

12 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 12 of 31

13 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 13 of 31

14 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 14 of 31

15 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 15 of 31

16 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 16 of 31

17 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 17 of 31

18 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 18 of 31

19 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 19 of 31

20 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 20 of 31

21 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 21 of 31

22 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 22 of 31

23 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 23 of 31

24 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 24 of 31

25 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 25 of 31

26 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 26 of 31

27 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 27 of 31

28 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 28 of 31

29 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 29 of 31

30 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 30 of 31

31 Case 8:04-cv SCB-EAJ Document 166 Filed 11/15/2006 Page 31 of 31

32 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 1 of 10 Exhibit A

33 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 2 of 10 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No. 8:04-cv-2561-T-24 EAJ DAVIDCO INVESTORS, LLC, ) individually and on behalf of ) all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) ANCHOR GLASS CONTAINER ) CORPORATION (named herein as a ) nominal defendant only), DARRIN ) CAMPBELL, RICHARD M. DENEAU, ) PETER T. RENO, CERBERUS CAPITAL ) MANAGEMENT, L.P., CERBERUS ) INTERNATIONAL, LTD., CERBERUS ) INSTITUTIONAL PARTNERS, L.P., ) CERBERUS INSTITUTIONAL ) PARTNERS (AMERICA), L.P., and ) STEPHEN A. FEINBERG, ) ) Defendants. ) ) PRELIMINARY ORDER IN CONNECTION WITH SETTLEMENT PROCEEDINGS WHEREAS, Plaintiffs filed a class action before the Court entitled Davidco Investors, LLC v. Anchor Glass Container Corp., et al., Case No. 8:04-cv-2561-T-24 EAJ; and WHEREAS, the parties having made application, pursuant to Federal Rule of Civil Procedure 23(e), for an order preliminarily approving the settlement of this Litigation, in accordance with a Stipulation of Settlement dated as of, 2006 (the Stipulation), which, together with the Exhibits annexed thereto, sets forth the terms and conditions for a proposed settlement of the -2-

34 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 3 of 10 Litigation and for dismissal of the Litigation with prejudice upon the terms and conditions set forth therein; and the Court having read and considered the Stipulation and the Exhibits annexed thereto; and WHEREAS, all defined terms contained herein shall have the same meanings as set forth in the Stipulation; NOW, THEREFORE, IT IS HEREBY ORDERED that: 1. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby certifies, for purposes of effectuating this settlement, a Class consisting of all Persons who purchased the common stock of Anchor Glass Container Corporation ( Anchor Glass) between September 25, 2003 through and including November 4, 2004, inclusive, excluding the Defendants, any partners, officers, directors, or affiliates of any Defendant, members of the Defendants immediate families, any entity in which a Defendant has a controlling interest, and the legal representatives, heirs, successors, or assigns of any such excluded party. 2. With respect to the class, this Court finds and concludes that: (a) the members of the class are so numerous that joinder of all class members in the Litigation is impracticable; (b) there are questions of law and fact common to the class which predominate over any individual questions; (c) the claims of Lead Plaintiff Theodore Zeller and additional plaintiff Mary Wearstler (together Plaintiffs) are typical of the claims of the class; (d) Plaintiffs and Plaintiffs Lead Counsel have fairly and adequately represented and protected the interests of all of the class members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the members of the class in individually controlling the prosecution of the separate actions, (ii) the extent and nature of any litigation concerning the -3-

35 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 4 of 10 controversy already commenced by members of the class, (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum, and (iv) the difficulties likely to be encountered in the management of the class action. 3. The Court does hereby preliminarily approve the Stipulation and the settlement set forth therein, as within the range of possible approval, subject to further consideration and final approval at the Settlement Hearing described below. 4. The Court approves, as to form and content, the Notice of Pendency of Class Action, Hearing on Proposed Settlement and Attorneys Fee Petition and Right to Share in Settlement Fund (the "Notice"), the Proof of Claim and Release (the "Proof of Claim"), and the Summary Notice of Pendency of Class Action, Proposed Settlement and Settlement Hearing (the Publication Notice) annexed as Exhibits A-1, A-2 and A-3, respectively, and finds that the mailing and distribution of the Notice and publishing of the Publication Notice substantially in the manner and form set forth in 6-7 of this Order will meet the requirements of Federal Rule of Civil Procedure 23 and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto. 5. A hearing (the "Settlement Hearing") shall be held before this Court on, 2007, at :.m., at the United States District Court for the Middle District of Florida, Sam M. Gibbons United States Courthouse, 801 N. Florida Ave., Tampa, Florida 33602, in Courtroom, to determine whether the proposed settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, just, reasonable and adequate to the Settling Parties and the Class and should be approved by the Court; whether a Judgment as provided in 1.14 of the Stipulation should be entered herein; whether the proposed Plan of Allocation should be -4-

36 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 5 of 10 approved; and to determine the amount of fees and expenses that should be awarded to Plaintiffs Lead Counsel. The Court may adjourn the Settlement Hearing without further notice to Members of the Class. 6. The Court appoints Vianale & Vianale LLP to act as escrow agent for the Settlement Fund ( escrow agent), pursuant to the terms agreed to in the Stipulation. 7. The Court appoints Gilardi & Co. LLC, P.O. Box 5100, Larkspur, CA to act as claims administrator for the Settlement Fund ( Claims Administrator) and to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below: a. Not later than 30 days from the date of this Order (the Notice Date), Plaintiffs Lead Counsel shall cause a copy of the Notice and the Proof of Claim, substantially in the form annexed as Exhibits A-1 and A-2 hereto, to be mailed by first class mail to those Class Members who can be identified by lead plaintiff with reasonable effort from Anchor Glasss transfer records, which Defendants shall use all reasonable efforts to provide to Plaintiffs Lead Counsel; b. Within ten days after the Notice Date, Lead Counsel shall cause the Publication Notice to be published in substantially the form attached as Exhibit A-3 hereto, once in the national edition of Investors Business Daily; and one time over the internet via Business Wire or PRNewswire; and c. At least fourteen (14) days prior to the Settlement Hearing, Plaintiffs' Lead Counsel shall serve on Defendants counsel and file with the Court proof, by affidavit or declaration, of such mailing and publishing. 8. Brokers and other nominees who purchased common stock of Anchor Glass Container Corporation ( Anchor Glass) for the benefit of another ( the beneficial owners) between -5-

37 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 6 of 10 September 25, 2003 through and including November 4, 2004 (the Class Period), shall send the Notice and the Proof of Claim to the beneficial owners of such Anchor Glass stock within ten (10) days after receipt thereof, or send a list of the names and addresses of such beneficial owners to the Claims Administrator within ten (10) days of receipt thereof, in which event the Claims Administrator shall promptly mail the Notice and Proof of Claim to such beneficial owners. Any such nominee that elects to mail Proofs of Claim directly to the beneficial owners of Anchor Glass stock shall mail to the Claims Administrator a statement confirming that such a mailing was made and stating the number of Proofs of Claim mailed. If requested, Plaintiffs' Lead Counsel shall, through the Claims Administrator, reimburse banks, brokerage houses, or other nominees solely for their reasonable out-of-pocket expenses incurred in providing notice to beneficial owners who are Class Members out of the Settlement Fund, which expenses would not have been incurred except for the sending of such Notice, subject to further order of this Court with respect to any dispute concerning such compensation. 9. All members of the Class who do not submit a valid request for exclusion in accordance with 13 below, shall be bound by all determinations and judgments in the Litigation concerning the settlement, whether favorable or unfavorable to the Class. 10. Class Members who wish to participate in the Settlement shall complete and submit a Proof of Claim and Release form in accordance with the instructions contained therein. Unless the Court orders otherwise, all Proof of Claim and Release forms must be postmarked no later than one hundred and twenty (120) days from the Notice Date (or the first business day thereafter if the 120 th day falls on a weekend day or national holiday), or such other date thereafter as may be approved by the Court. Any Class Member who does not timely submit a Proof of Claim and Release Form (or -6-

38 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 7 of 10 request for exclusion) shall not only be barred from sharing in distribution of the proceeds of the Settlement Fund, but shall also be bound by all determinations and judgments in the Action concerning the Settlement, whether favorable or unfavorable to the Class, unless otherwise ordered by the Court. 11. Any member of the Class may enter an appearance in the Litigation, individually or through counsel of their own choice, at their own expense. If they do not enter an appearance, they will be represented by Plaintiffs Lead Counsel. 12. Pending final determination of whether the settlement should be approved, neither the Plaintiffs nor any Class Member, either directly, representatively, or in any other capacity, shall commence or prosecute against any of the Released Parties any action or proceeding in any court or tribunal asserting any of the Released Claims. 13. Any Person falling within the definition of the Class may, upon request, be excluded from the Class. Any such Person must submit to the Claims Administrator a request for exclusion ("Request for Exclusion"), postmarked no later than fourteen (14) days prior to the date of the Settlement Hearing. A Request for Exclusion must state: (a) the name, address, and telephone number of the Person requesting exclusion; (b) a list of the Person's purchases and sales of Anchor Glass common stock during the Class Period, including the dates, the number of shares, and the price paid or received per share for each such purchase or sale; and (c) that the Person wishes to be excluded from the Anchor Glass Securities Litigation Settlement Class. All Persons who submit valid and timely Requests for Exclusion in the manner set forth in this paragraph shall have no rights under the Stipulation, shall not share in the distribution of the Net Settlement Fund, and shall not be bound by the Stipulation or the Final Judgment. -7-

39 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 8 of Any member of the Class may appear at the Settlement Hearing and show cause (if he, she or it has any) (1) why the proposed settlement of the Litigation should or should not be approved as fair, just, reasonable and adequate; (2) why a judgment should or should not be entered thereon; (3) why the Plan of Allocation should or should not be approved; or (4) why attorneys' fees and expenses should or should not be awarded to Plaintiffs' Lead Counsel. However, no Class Member or any other Person shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, or, if approved, the Judgment to be entered thereon approving the same, or the order approving the Plan of Allocation, or the attorneys' fees and expenses to be awarded to Plaintiffs' Lead Counsel, unless that Person has: (a) mailed their written objections and copies of all papers and briefs in support of same, postmarked no later than fourteen (14) days prior to the date of the Settlement Hearing to the following: Julie Vianale, Esq., Vianale & Vianale LLP, 2499 Glades Road, Suite 112, Boca Raton, Florida 33431; Jack Reise, Esq., Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 120 East Palmetto Park Road, Suite 500, Boca Raton, Florida 33432; and Sheila Sadighi, Esq., Lowenstein Sandler PC, 65 Livingston Ave., Roseland, New Jersey ; and (b) filed said written objections, papers and briefs with the Clerk of the United States District Court for the Middle District of Florida, Tampa Division, Sam M. Gibbons United States Courthouse, 801 N. Florida Ave., Tampa, Florida 33602, no later than fourteen (14) days prior to the Settlement Hearing. Any member of the Class who does not present his, her or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed settlement as incorporated in the Stipulation, to the Judgment, to the Plan of Allocation, and/or to the award of attorneys' fees and reimbursement of expenses to counsel for the Plaintiffs, unless otherwise ordered by the Court. -8-

40 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 9 of The passage of title and ownership of the Settlement Fund to the Escrow Agent in accordance with the terms and obligations of the Stipulation is approved. No Person that is not a Class Member or Plaintiffs Lead Counsel shall have any right to any portion of, or interest in the distribution of, the Settlement Fund unless otherwise ordered by the Court or otherwise provided in the Stipulation. 16. 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 Stipulation and/or further order(s) of the Court. 17. All papers in support of the settlement, the Plan of Allocation, any application by counsel for the plaintiffs for attorneys' fees or reimbursement of expenses shall be filed and served seven (7) calendar days prior to the Settlement Hearing. 18. Neither the Defendants nor Defendants' Counsel shall have any responsibility for the Plan of Allocation, any application for attorneys' fees or reimbursement of expenses submitted by Plaintiffs' Counsel, and such matters will be considered separately from the fairness, reasonableness and adequacy of the settlement. 19. At or after the Settlement Hearing, the Court shall determine whether the Plan of Allocation proposed by Plaintiffs' Lead Counsel, and any application for attorneys' fees or reimbursement of expenses shall be approved. 20. All reasonable expenses incurred in identifying and notifying Class Members, as well as administering the Settlement Fund, shall be paid as set forth in the Stipulation. In the event the Settlement is not approved by the Court, or otherwise fails to become effective, neither the Plaintiffs -9-

41 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 10 of 10 nor any of Plaintiffs' Lead Counsel shall have any obligation to repay to Defendants or the Insurer any amounts beyond those set forth in the Stipulation. 21. Neither the Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as: (1) an admission or concession by Defendants of the truth of any of the allegations in the Litigation, or of any liability, fault, or wrongdoing of any kind; or (2) an admission or concession by Plaintiffs and/or the Class of any infirmity in the claims asserted in the Litigation. 22. The Court reserves the right to adjourn the date of the Settlement Hearing without further notice to the Members of the Class, and it retains jurisdiction to consider all further applications arising out of or connected with the proposed settlement. The Court may approve the settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Class. IT IS SO ORDERED DATED: HONORABLE SUSAN C. BUCKLEW -10-

42 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 1 of 29 Exhibit A-1

43 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 2 of 29 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No. 8:04-cv-2561-T-24 EAJ DAVIDCO INVESTORS, LLC, ) individually and on behalf of ) all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) ANCHOR GLASS CONTAINER ) CORPORATION (named herein as a ) nominal defendant only), DARRIN ) CAMPBELL, RICHARD M. DENEAU, ) PETER T. RENO, CERBERUS CAPITAL ) MANAGEMENT, L.P., CERBERUS ) INTERNATIONAL, LTD., CERBERUS ) INSTITUTIONAL PARTNERS, L.P., ) CERBERUS INSTITUTIONAL ) PARTNERS (AMERICA), L.P., and ) STEPHEN A. FEINBERG, ) ) Defendants. ) ) NOTICE OF PENDENCY OF CLASS ACTION, HEARING ON PROPOSED SETTLEMENT AND ATTORNEYS FEE PETITION AND RIGHT TO SHARE IN SETTLEMENT FUND TO: ALL PERSONS WHO PURCHASED THE COMMON STOCK OF ANCHOR GLASS CONTAINER CORPORATION ( ANCHOR GLASS) BETWEEN SEPTEMBER 25, 2003 AND NOVEMBER 4, 2004, INCLUSIVE (THE CLASS). PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY PROCEEDINGS IN THIS ACTION. IF YOU ARE A CLASS MEMBER, YOU ULTIMATELY MAY BE ENTITLED TO RECEIVE BENEFITS PURSUANT TO THE PROPOSED SETTLEMENT DESCRIBED HEREIN. -2-

44 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 3 of 29 CLAIMS DEADLINE: CLAIMANTS MUST SUBMIT PROOFS OF CLAIM AND RELEASES, ON THE FORM ACCOMPANYING THIS NOTICE, POSTMARKED ON OR BEFORE, 200. EXCLUSION DEADLINE: REQUESTS FOR EXCLUSION MUST BE SUBMITTED POSTMARKED ON OR BEFORE, 200. SECURITIES BROKERS AND OTHER NOMINEES: PLEASE SEE INSTRUCTIONS ON PAGE HEREIN. SUMMARY OF SETTLEMENT AND RELATED MATTERS I. Purpose of this Notice 1. This Notice is given pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the Court dated, The purpose of this Notice is to inform you that this Action, and the proposed Settlement, will affect all Class Members rights. This Notice describes rights you may have under the proposed Settlement and what steps you may take in relation to this Action. This Notice is not an expression of any opinion by the Court as to the merits of any claims or defenses asserted by any party in this Action, or the fairness or adequacy of the proposed Settlement. II. Statement of Plaintiff Recovery 2. Pursuant to the Settlement described herein, a Settlement Fund consisting of $5,500,000 in cash, plus accrued interest (the Settlement Fund), has been established. The Settlement Fund, including the interest thereon, represents an average recovery of approximately $0.32 per damaged share (before deduction of court-awarded attorneys fees and expenses) for the approximately 17,193,708 damaged shares of Anchor Glass common stock during the Class Period. To the extent that a given share may have been traded more than once during the Class Period, this average may vary depending on the number of times each share was traded. This is only an estimate. -3-

45 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 4 of 29 Your actual recovery per share may be more or less than this estimate depending on the number of claims submitted, when during the Class Period you purchased your Anchor Glass shares, the price paid for the shares, and whether those shares were held to the end of the Class Period, and, if sold during the Class Period, when and at what price the shares were sold. 3. Under the relevant securities laws, a claimants recoverable damages are limited to the losses attributable to the alleged fraud. Losses which resulted from factors other than the alleged fraud are not compensable from the Settlement Fund. For purposes of this Settlement, a Class Members distribution from the Net Settlement Fund will be governed by the proposed Plan of Allocation described below at 37-46, or such other Plan of Allocation as may be approved by the Court. III. Statement of Potential Outcome of Case 4. The parties disagreed on both liability and damages and do not agree on the average amount of damages per share that would be recoverable if Plaintiffs were to have prevailed on each claim alleged. The issues on which the parties disagree include: a. The amount by which Anchor Glass common stock was allegedly artificially inflated (if at all) during the Class Period; b. The appropriate economic model for determining the amount by which Anchor Glass common stock was allegedly artificially inflated (if at all) during the Class Period; c. The effect of various market forces influencing the trading price of Anchor Glass common stock at various times during the Class Period; d. The extent to which external factors, such as general market conditions, influenced the trading price of Anchor Glass common stock at various times during the Class Period; -4-

46 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 5 of 29 e. The extent to which the various matters that Plaintiffs alleged were materially false or misleading influenced (if at all) the trading price of Anchor Glass common stock at various times during the Class Period; f. The extent to which the various allegedly adverse material facts that Plaintiffs alleged were omitted influenced (if at all) the trading price of Anchor Glass common stock at various times during the Class Period; g. Whether the statements made or facts allegedly omitted were false, material or otherwise actionable under the federal securities laws; and h. Whether Defendants acted with the requisite state of mind during the Class Period. 5. Plaintiffs believe that the proposed settlement is a good recovery and is in the best interest of the Class. Because of the risks associated with continuing to litigate and proceeding to trial, there was a danger that Plaintiffs would not have prevailed on any of their claims, in which case the Class would receive nothing. For example, in addition to issues of liability, the amount of damages recoverable by the Class was and is challenged by Defendants. Recoverable damages in this case are limited to losses caused by conduct actionable under applicable law and, had the Litigation gone forward, Defendants intended to assert, among other things, that all or most of the losses of Class Members were caused by non-actionable market, industry or general economic factors. Defendants would also assert, for example, that throughout the Class Period the uncertainties and risks associated with Anchor Glasss business and financial condition were fully and adequately disclosed. -5-

47 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 6 of Plaintiffs Lead Counsel believe that if they had proceeded to trial, they may have prevailed on liability, however, the potential for a recovery at trial was tempered by their analysis of several risk factors which favored the settlement of this action. First, Plaintiffs may not have succeeded in establishing that losses resulted from fraud rather than from adverse market conditions. Second, there was uncertainty as to Plaintiffs ability to establish that defendants acted with scienter -- actual knowledge or severe recklessness under Bryant v. Avado Brands, Inc., 187 F. 3d 1271, 1286 (11th Cir. 1999). Scienter is an essential element for the claims of shareholders who purchased Anchor Glass stock on or after May 13, Third, plaintiffs may not have been able to prove at trial that all, or even most, of the damages sustained by the class are compensable under the securities laws. Finally, even if Plaintiffs succeeded at trial, there was the risk of reversal on appeal. 7. The Defendants deny that they are liable to the Plaintiffs or the Class and deny that Plaintiffs or the Class have suffered any damages. IV. Statement of Attorneys Fees and Costs Sought 8. Plaintiffs Lead Counsel intend to apply for attorneys fees of up to thirty percent (30%) of the Settlement Fund, or $1,650,000.00, plus interest thereon. In addition, Plaintiffs Lead Counsel intend to request reimbursement of expenses incurred in connection with the prosecution of this Action in the approximate amount of up to $100,000.00, plus interest thereon. The requested fees and expenses would amount to an average of $0.10 cents per share for the approximately 17,193,708 damaged shares of Anchor Glass common stock during the class period. To the extent that a given share may have been traded more than once during the Class Period, this average could vary depending on the number of times each share was traded. Plaintiffs Lead Counsel have expended considerable time and effort in the prosecution of this litigation on a contingent fee basis, -6-

48 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 7 of 29 and have advanced the expenses of the litigation, in the expectation that if they were successful in obtaining a recovery for the Class they would be paid from such recovery. The amount of the fees and costs to be paid Plaintiffs Lead Counsel will be determined by the Court. 9. This Notice is not an expression of any opinion by the Court about the merits of any of the claims or defenses asserted by any party in this Litigation or the fairness or adequacy of the proposed settlement. V. Further Information 10. For further information regarding this settlement you may contact Plaintiffs Lead Counsel: Julie Vianale, Esq., Vianale & Vianale LLP, 2499 Glades Road, Suite 112, Boca Raton, Florida 33431, Tel.: (561) ; and Jack Reise, Esq., Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 120 East Palmetto Park Road, Suite 500, Boca Raton, Florida 33432, Tel.: (561) Please do not call any representative of Anchor Glass or the Court. VI. Reasons for the Settlement 11. The principal reason for the Settlement is the benefit to be provided to the Class now. This benefit must be compared to the risk that no recovery might be achieved after a contested trial and likely appeals, possibly years into the future. SETTLEMENT FAIRNESS HEARING 12. A settlement hearing will be held before the Honorable Susan C. Bucklew, United States District Court for the Middle District of Florida, Sam M. Gibbons United States Courthouse, 801 N. Florida Ave., Tampa, Florida 33602, in Courtroom at :.m., on, 2007 (the Settlement Hearing). The purpose of the Settlement Hearing will be to determine: (1) whether the settlement consisting of $5,500, in cash plus accrued interest -7-

49 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 8 of 29 should be approved as fair, just, reasonable, and adequate to Class Members; (2) whether the proposed plan to distribute the settlement proceeds (the Plan of Allocation) is fair, just, reasonable, and adequate; (3) whether to enter a Bar Order and approve the Releases by and in favor of the Class Members, as described in the Stipulation; (4) whether the application by Plaintiffs Lead Counsel for an award of attorneys' fees and reimbursement of expenses should be approved; and (5) whether the Litigation should be dismissed with prejudice in accordance with the terms of the proposed Final Judgment. The Court may adjourn or continue the Settlement Hearing without further notice to the Class. 13. The Court, by Preliminary Order In Connection With Settlement Proceedings, dated, 2006, has certified a plaintiff class for purposes of this Settlement consisting of all persons who purchased the common stock of Anchor Glass Container Corporation between September 25, 2003 and November 4, 2004, inclusive (the Class). Excluded from the Class are the Defendants, any partners, officers, directors, or affiliates of any Defendant, members of the Defendants immediate families, any entity in which a Defendant has a controlling interest, and the legal representatives, heirs, successors, or assigns of any such excluded party. Also excluded from the Class are any putative Class Members who exclude themselves by filing a request for exclusion in accordance with the requirements set forth in this Notice. BACKGROUND OF THE LITIGATION A. The Commencement and Progress of the Action -8-

50 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 9 of Beginning on November 24, 2004, the first of four putative federal securities class 1 action complaints (the Complaints) was filed in the United States District Court for the Middle District of Florida on behalf of a class of persons who purchased the common stock of Anchor Glass Container Corporation ( Anchor Glass) and were injured thereby. The first filed case, Davidco Investors, LLC v. Anchor Glass Container Corporation, Case No. 04-CV-2561, alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ( the Exchange Act) on behalf of a putative class of Anchor Glass shareholders who purchased shares between September 25, 2003 to and including November 4, 2004, against defendants Anchor Glass, Richard Deneau ( Deneau) and Darrin Campbell ( Campbell). The subsequently filed case of Bellefeuille v. Anchor Glass Container Corporation, Case No. 04-CV-2678, also alleged claims under Sections 11 and 15 of Securities Act of 1933 ( the Securities Act) arising from Anchor Glasss September 2003 Initial Public Offering of common stock (the IPO). Bellefeuille included as named defendants all of the Anchor Glass board members who signed the registration statement and prospectus, and the underwriters and auditors involved in the IPO. The Davidco case was assigned to United States District Judge Susan C. Bucklew. 15. Following publication in accordance with the Private Securities Litigation Reform Act of 1995 ( PSLRA), Judge Bucklew heard motions for consolidation of the actions and for the appointment of lead plaintiff and approval of Plaintiffs Lead Counsel. The Court consolidated the four cases by Order dated February 14, By Order dated February 22, 2005, Judge Bucklew 1 The four actions were individually styled: Davidco Investors, LLC v. Anchor Glass Container Corporation, Case No. 04-CV-2561; Bellefeuille v. Anchor Glass Container Corporation, Case No. 04-CV-2678; Conte v. Anchor Glass Container Corporation, Case No. 04-CV-2741; Fener v. Anchor Glass Container Corporation, Case No. 05-CV-36. Hereinafter, the four actions shall be referred to as the Litigation. -9-

51 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 10 of 29 appointed as lead plaintiffs Theodore Zeller, Matthew Bellefeuille and Steamfitters Local 449 Pension and Retirement Security Fund ( original lead plaintiffs), and appointed the law firms of Vianale & Vianale LLP and Lerach Coughlin Stoia Geller Rudman & Robbins LLP to serve as colead counsel ( Lead Counsel). 16. The original lead plaintiffs filed their consolidated amended class action complaint ( amended complaint) on April 20, In addition to the defendants named in the Bellefeuille complaint, the amended complaint named as defendants Anchor Glass officer Peter Reno ( Reno) and alleged control persons Cerberus Capital Management, L.P., Cerberus International, Ltd., Cerberus Institutional Partners, L.P., Cerberus Institutional Partners (America), L.P., and Stephen A. Feinberg ( the Cerberus Defendants). All of the defendants moved to dismiss. While the motions were pending, Anchor Glass filed for Chapter 11 bankruptcy protection, effectively ending the case as to it. 17. The parties briefed and argued the motions to dismiss, and the motions were granted th th in part and denied in part on March 6, 2006 ( the March 6 Order). The March 6 Order sustained the Exchange Act claims as to defendants Reno, Deneau, Campbell, and the Cerberus Defendants only. The Court determined that none of the original lead plaintiffs had standing to assert Securities Act claims under Section 11 and Section 15, based on alleged inaccuracies in the Prospectus for the th IPO, and dismissed these claims as to all defendants without prejudice. The March 6 Order also eliminated Bellefeuille and Steamfitters Local 449 Pension and Retirement Security Fund as lead plaintiffs, based on the absence of loss causation, and named Theodore Zeller as the sole lead plaintiff. -10-

52 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 11 of After receiving leave of the Court, lead plaintiff Zeller filed his Second Amended Complaint (the Complaint) on May 16, The Complaint realleged the Section 10(b) and 20(a) claims that had been previously sustained by the Court and named Anchor Glass shareholder Mary Wearstler as an additional representative plaintiff for purposes of reasserting the dismissed Section 11 and 15 claims. The Second Amended Complaint named as defendants only those parties th who remained in the case after the March 6 Order, namely, Deneau, Reno, Campbell and the Cerberus Defendants. Defendants filed answers and a consolidated motion to dismiss on June 15, The Court denied the motions to dismiss in their entirety on July 26, Plaintiffs filed a motion for class certification on July 19, 2006 and served requests for the production of documents on the defendants and subpoenas on several non-parties, including Anchor Glass. While the motion for class certification was pending, the parties agreed to discuss a possible settlement of the case. Following extensive, arms-length negotiations, including a meeting in New York City among counsel for all of the parties on September 12, 2006, the Parties reached an agreement in principle to settle the Litigation for the sum of $5,500,000 cash. B. The Claims Asserted By Plaintiffs 20. In the Second Amended Complaint, Plaintiffs, on behalf of purchasers of the common stock of Anchor Glass during the period September 25, 2003 to and including November 4, 2004, inclusive (the Class Period), allege that Defendants violated the Securities Exchange Act of 1934 and the Securities Act of 1933 in connection with their public statements and filings regarding Anchor Glass. 21. The Complaint alleges that defendants violated the Securities Act by making inaccurate and misleading statements and omissions in the registration statement and prospectus that -11-

53 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 12 of 29 Anchor Glass filed in connection with the Companys September 25, 2003 IPO of common stock, and that the defendants violated the Exchange Act by making false and misleading statements and omissions in public statements and in filings Anchor Glass made with the Securities and Exchange Commission after the IPO became effective. With respect to both claims, the Complaint alleges that defendants failed to disclose a significant impairment to the plant, equipment and inventory at Anchor Glasss South Connellsville, Pennsylvania manufacturing plant ( the South Connellsville plant). The Complaint alleges that the defendants learned prior to the IPO that the South Connellsville plant had lost its contract to manufacture Rolling Rock beer bottles for Latrobe Brewing, and that this contract had historically accounted for at least half of the revenue produced by the South Connellsville plant. The Complaint further alleges that defendants knew that alternative profitable work for the South Connellsville plant was unavailable and that the loss of the contract required the defendants to reduce materially the book value of the South Connellsville assets. Before the start of trading on November 5, 2004, Anchor Glass announced, among other news, that it was closing the South Connellsville plant and writing off the plant, equipment and inventory at its South Connellsville facility. Anchor Glass stock price dropped 27%; the Complaint alleges that this stock price drop was attributable, in part, to Anchor Glasss delayed revelation of the impairment to its South Connellsville facility. C. Defendants Statements And Denials Of Wrongdoing And Liability 22. Defendants deny all of the Plaintiffs claims and allegations. Defendants expressly deny all charges of wrongdoing or liability against them arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Litigation. Defendants also deny, inter alia, the allegations that the Plaintiffs or the Class have suffered damage, that the price of -12-

54 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 13 of 29 Anchor Glass common stock was artificially inflated by reasons of alleged misrepresentations, nondisclosures or otherwise, and that Plaintiffs and the Class were harmed by the conduct alleged in the Complaint. 23. Nonetheless, Defendants have concluded that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in this Stipulation. Defendants also have taken into account the uncertainty and risks inherent in any litigation, especially in complex cases like this Litigation. Defendants have, therefore, determined that it is desirable and beneficial to them that the Litigation be settled in the manner and upon the terms and conditions set forth in the Stipulation. BACKGROUND TO THE SETTLEMENT 24. Defendants (as defined below) have denied all allegations of wrongdoing or liability in the Action and all other accusations of wrongdoing or violations of law. The Stipulation is not and shall not be construed or be deemed to be evidence of an admission or a concession on the part of any of the Defendants of any fault or liability or damages whatsoever, and Defendants do not concede any infirmity in the defenses which they would have asserted or intended to assert in the Action. 25. Prior to entering into the Stipulation, Plaintiffs Lead Counsel conducted a thorough investigation relating to the events and transactions underlying Plaintiffs claims. Plaintiffs Lead Counsels decision to enter into this Settlement was made with knowledge of the facts and circumstances underlying Plaintiffs claims and the strengths and weaknesses of those claims. In determining to settle the Action, they have evaluated the extensive pre-trial investigation undertaken -13-

55 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 14 of 29 in the Action and taken into account the substantial expense and length of time necessary to prosecute the Action through trial, post-trial motions, and likely appeals, taking into consideration the significant uncertainties in predicting the outcome of this complex litigation. Plaintiffs Lead Counsel believe that the Settlement described herein confers substantial benefits upon the Class. Based upon their consideration of all of these factors, Plaintiffs and their counsel have concluded that it is in the best interest of the Class to settle the Action on the terms described herein. 26. Defendants, while continuing to deny all allegations of wrongdoing or liability whatsoever, recognize that continued litigation would be protracted and expensive and, therefore, desired to settle and terminate all existing or potential claims against them, without in any way acknowledging any fault or liability. 27. The amount of damages, if any, that Plaintiffs could prove was also a matter of serious dispute, and the Settlements use of a Recognized Claim formula for distributing the Settlement proceeds should not be viewed as a finding, admission or concession that, if the case had proceeded to a trial, provable damages could be measured by the Recognized Claim formula. No determination has been made by the Court as to liability or the amount of damages, if any, suffered by the Class, or the proper measure of any such damages. The determination of damages, like the determination of liability, is a complicated and uncertain process, typically involving conflicting expert opinions. During the course of the Litigation, Defendants, in addition to denying any liability, disputed that Plaintiffs and the Class were damaged by any wrongful conduct on the part of Defendants. The Settlement herein provides an immediate and substantial cash benefit and avoids the risks that liability or damages might not have been provable at trial. -14-

56 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 15 of The Court has not determined the merits of the Plaintiffs claims or the defenses thereto. This Notice does not imply that there has been or would be any finding of violation of the law or that recovery could be had in any amount if the Action were not settled. TERMS OF THE SETTLEMENT 29. In full and complete settlement of the claims which have or could have been asserted in this Action, and subject to the terms and conditions of the Stipulation of Settlement, Defendants have paid into escrow on behalf of Plaintiffs and the Class, $5,500,000, of which $100,000 may be deposited by Plaintiffs Lead Counsel into a Class Notice and Administration Fund to be used to pay notice and administrative expenses. 30. Pursuant to the Stipulation of Settlement, and on the Effective Date, Plaintiffs and other members of the Class, on behalf of themselves, their heirs, executors, administrators, successors and assigns, and any persons they represent shall release and forever discharge, and shall forever be enjoined from prosecuting, the Released Parties (defined below) with respect to each and every Settled Claim (defined below). 31. Defendants include the following, each of whom will be released by the Class Members from all Settled Claims: Darrin Campbell, Richard M. Deneau, Peter T. Reno, Cerberus Capital Management, L.P., Cerberus International, Ltd., Cerberus Institutional Partners, L.P., Cerberus Institutional Partners (America), L.P., and Stephen A. Feinberg. In addition, the Settlement will release all Class Members Settled Claims against the Defendants past or present directors, officers, employees, partners, members, principals, agents, insurers, co-insurers, reinsurers, controlling shareholders, attorneys, accountants or auditors, banks or investment banks, underwriters, associates, personal or legal representatives, predecessors, successors, parents, subsidiaries, -15-

57 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 16 of 29 divisions, joint ventures, assigns, spouses, heirs, related or affiliated entities, any entity in which a Settling Party has a controlling interest, any members of their immediate families, or any trust of which any Settling Party is the settlor or which is for the benefit of any Settling Party and/or member(s) of his family (collectively, the Released Parties). 32. Settled and Released Claims means any and all claims (including but not limited to Unknown Claims as discussed in 33 below), demands, rights, causes of action or liabilities, of every nature and description whatsoever, whether based in law or equity, on federal, state, local, statutory or common law, or any other law, rule or regulation, including both known claims and Unknown Claims, that have been or could have been asserted in any forum by the Class Members, or any of them, or the successors or assigns of any of them, whether directly, indirectly, derivatively, representatively or in any other capacity against any of the Released Parties, which arise out of, or relate in any way, directly or indirectly, to (i) investments (including but not limited to purchases, other acquisitions, sales, other dispositions, and decisions to hold) in Anchor Glass common stock during the class period, where such claims could create or support a claim for contribution, indemnification, or any other form of direct or third-party liability against any Insured Person, as defined in 1.13 of the Stipulation, or any of the Defendants, (ii) any disclosures, alleged failures to disclose, omissions, prospectus, registration statement or other statements made by Anchor Glass, or any of the Defendants relating to Anchor Glass, and (iii) the allegations, transactions, facts, events, matters, occurrences, acts, representations or omissions involved, set forth, alleged, referred to, or that could have been asserted in the Litigation, including, without limitation, claims for negligence, gross negligence, breach of duty of care, breach of duty of loyalty, breach of duty of candor, fraud, negligent misrepresentation, and breach of fiduciary duty, and/or any claims under the -16-

58 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 17 of 29 federal securities laws arising out of, based upon or related in any way to the purchase, acquisition, sale or disposition of Anchor Glass stock by any class member during the class period. 33. In addition, Section 1542 of the Civil Code of the State of California provides that a general release does not extend to claims which a creditor does not know or suspect to exist in his, her, or its favor at the time of executing the release, which if known by him, her, or it must have materially affected his, her, or its settlement with the debtor ( Unknown Claims). To the extent that, notwithstanding the choice of law provisions in the Stipulation of Settlement, California or other law may be applicable, Settled Claims includes the acknowledgment that the provisions of Section 1542 and all similar federal or state laws, rights, rules, or legal principles of any other jurisdiction which may be applicable herein, are hereby knowingly and voluntarily waived and relinquished. This is an essential term of this Settlement. Despite the fact that Class Members may discover claims presently unknown or suspected or facts in addition to or different from those which they now know or believe to be true with respect to the matters released herein; nevertheless, it is the intention of the Settlement to finally and forever settle and release all such matters, and all claims relating thereto, which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action). 34. If the Settlement is approved by the Court, the Action will be dismissed on the merits and with prejudice as to all Class Members and all Class Members shall be forever barred from prosecuting a class action or any other action raising any Settled and Released Claims against any Released Party. -17-

59 Case 8:04-cv SCB-EAJ Document Filed 11/15/2006 Page 18 of The Stipulation provides that Defendants may withdraw from and terminate the Settlement in the event that in excess of a certain amount of claimants exclude themselves from the Class. 36. The Settlement will become effective at such time as an Order entered by the Court approving the Settlement shall become final and not subject to appeal (the Effective Date). PLAN OF ALLOCATION OF SETTLEMENT PROCEEDS AMONG CLASS MEMBERS 37. The Net Settlement Fund will be allocated among the Authorized Claimants in accordance with this Plan of Allocation. The amount so allocated to each Authorized Claimant constitutes and is referred to herein as the Authorized Claimants Payable Claim. The Plan of Allocation is based upon Plaintiffs Lead Counsels assessment of the merits and the relative strengths and weaknesses, including recoverable damages, of the claims of the members of the Class. In developing this Plan of Allocation, Plaintiffs Lead Counsel have considered, among other things, the following: a. Shareholders who purchased Anchor Glass stock on or before May 12, 2004 are eligible for damages based on alleged inaccuracies in the IPO Prospectus, while those who th purchased shares after that date are not. The Court held in the March 6 Order that certain sales of pre-ipo shares of Anchor Glass stock into the market on May 13, 2004 prevented purchasers on or after that date from asserting Section 11 claims based on the Prospectus. Purchasers on or after May 13, 2004 are eligible for damages under Section 10(b) only. Section 10(b) claims are more difficult to prove than those under Section