[FORM OF FINAL DISMISSAL ORDER] UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Transcription

1 [FORM OF FINAL DISMISSAL ORDER] UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION In re: LJM2 Co-Investment, L.P., Chapter 11 Case No SAF Debtor. The Regents of the University of California, Plaintiff, v. Adversary No SAF LJM2 Co-Investment, L.P., Defendant. FINAL ORDER OF DISMISSAL AND ALLOWANCE OF CLAIM On, 2004, the Court conducted a final hearing under Rule 7023 of the Federal Rules of Bankruptcy Procedure, which incorporates by reference Rule 23 of the Federal Rules of Civil Procedure ( Bankruptcy Rules ) on certification of a class in this adversary proceeding, final allowance of a claim, and dismissal of this adversary proceeding on the terms set forth in this Final Order of Dismissal and Allowance of Claim ( Final Dismissal Order ). Plaintiff, The Regents of the University of California ( The Regents ), and Defendant, LJM2 Co-Investment, L.P. ("LJM2") through its successor the LJM2 Creditors Liquidation Trust ( LJM2 Trust ) appeared, and pursuant to Rule 7023 of the Bankruptcy Rules and the terms and conditions set forth herein, submitted this Final Dismissal Order to the Court for consideration and entry. The Court, after considering this Final Dismissal Order, the evidence, the record, the certificates of service on file with the Court, any objections to this Final Dismissal Order, and

2 being fully advised in the premises and after taking judicial notice, finds that the following Order should be approved and entered. IT IS STIPULATED BETWEEN THE REGENTS, LJM2 and the LJM2 TRUST, and is ORDERED and DETERMINED BY THE COURT as follows: 1. Any objections to this Final Dismissal Order are hereby denied. 2. The Court finds that notice of this Final Dismissal Order and this final hearing thereon and the manner of providing notice to the members of the Bankruptcy Class (as defined herein), including the opportunity for persons to request exclusion from the Bankruptcy Class, has been reasonable, appropriate and adequate under the circumstances, and complies in all respects with Bankruptcy Rule 7023, due process and applicable law. CERTIFICATION OF CLASS 3. The Court hereby certifies the members of the class ( Bankruptcy Class ) of plaintiffs in this adversary proceeding to consist of: (i) all persons (excluding defendants in the Newby Class Action and members of their immediate families, any officer, director or partner of any defendant in the Newby Class Action, any entity in which a defendant in the Newby Class Action has a controlling interest and the heirs of any such excluded party) who purchased the publicly traded equity and debt securities of Enron Corporation between October 19, 1998 and November 27, 2001 (the Class Period ), and (ii) all states or political subdivisions thereof or state pension plans that purchased from the Newby Class Action defendants Enron s 6.40% Notes due 7/15/06 or 6.95% Notes due 7/15/28, and that authorize the prosecution of their claim pursuant to the Texas Securities Act, excluding those persons that have validly and timely requested exclusion from the class as set forth on attached Exhibit 1 (herein the Bankruptcy Class Action Plaintiffs ). 4. Pursuant to Bankruptcy Rule 7023(c)(3), the Court further finds that proper notice under Bankruptcy Rule 7023(c)(2)(B) was directed to all possible members of the Bankruptcy Class, that the only members of the Bankruptcy Class that have properly requested exclusion from the class are set forth on attached Exhibit 1, and that the members of the Bankruptcy Class 2

3 bound by this Final Dismissal Order are defined above as the Bankruptcy Class Action Plaintiffs. 5. The Court finds that each of the prerequisites to certification of this class for the purpose of this adversary proceeding under Bankruptcy Rule 7023(a) have been satisfied, and that this adversary proceeding may be maintained as a class action under Bankruptcy Rule 7023(b)(3). The Court finds that the Bankruptcy Class is so numerous that joinder of all members is impracticable; that there are questions of law and fact common to all members of the Bankruptcy Class; that the claims of the representative parties are typical of the claims or defenses of the Bankruptcy Class; that the representative parties will fairly and adequately represent the interests of the Bankruptcy Class; that the questions of law and fact common to the members of the Bankruptcy Class predominate over any questions affecting only individual members; that a class action is superior to other available methods for the fair and efficient adjudication of the controversy; that the assets of the Defendant LJM2 Trust available to pay the claim of the Bankruptcy Class are a limited fund and this Court has exclusive jurisdiction over the assets of the LJM2 Trust; and that, absent certification of the Bankruptcy Class and the ability to achieve a dismissal of the disputed claim filed purportedly on behalf of the Newby Class Action claimants, LJM2 and the LJM2 Trust would refuse to consent to or allow the proof of claim filed by The Regents in any amount or for any purpose. The Court has also considered the interests of members of the Bankruptcy Class in individually controlling the prosecution of separate actions; the extent and nature of any litigation concerning the controversies already commenced by members of the Bankruptcy Class; the desirability of concentrating the litigation of the claims against LJM2 and the LJM2 Trust in this forum; and the lack of difficulties likely to be encountered in management of this class action. 3

4 6. The Court hereby certifies this adversary proceeding as a class action and finds that the Bankruptcy Class claims and issues are set forth in the original complaint filed by The Regents in this adversary proceeding. 7. The Court finds that The Regents is a proper representative of the Bankruptcy Class, that the claims of the Regents are typical of the claims of the Bankruptcy Class, and that the Regents, as a representative party, will fairly and adequately protect the interests of the Bankruptcy Class. 8. The Court ratifies the appointment of Lead Counsel for The Regents (currently Milberg Weiss Bershad Hynes & Lerach LLP) and Genovese Joblove & Battista, P.A. as Class Counsel for the Bankruptcy Class in this adversary proceeding, and finds that such Class Counsels will fairly and adequately represent the interests of the Bankruptcy Class, after considering such Class Counsels work in investigating and identifying potential claims, such Class Counsels experience in handling class actions, such Class Counsels knowledge of applicable law, and such Class Counsels resources available to represent the Bankruptcy Class. 9. The Court finds that The Regents have authority to enter into this Final Dismissal Order, and that The Regents and the Bankruptcy Class Action Plaintiffs are bound by the terms and conditions of this Final Dismissal Order. 10. The LJM2 Trust and LJM2 have stipulated to certification of the Bankruptcy Class in this Court in this adversary proceeding for the sole purpose of dismissal and allowance of the Amended Claim (as defined herein) under the terms and conditions of the Final Dismissal Order. THE BANKRUPTCY PROOF OF CLAIM 11. The Regents, as Lead Plaintiff and purportedly on behalf of the claimants in the Newby Class Action pending in the U.S. District Court for the Southern District of Texas, civil 4

5 action no. H (consolidated) (herein the Newby Class Action ), filed a proof of claim with the Clerk of this Court for an unliquidated amount (claims docket no. 24) relating to damages allegedly suffered by the claimants. Thereafter, by order of the Court and on behalf of the claimants, The Regents initiated this adversary proceeding and then filed an amended proof of claim with the Clerk of this Court in the sum of $220 million (claims docket no. 26) (the Amended Claim ). LJM2 and its successor the LJM2 Trust have challenged the right and authority to The Regents to file a proof of claim on behalf of the claimants in the Newby Class Action, and have denied any liability to The Regents and the claimants. CONFIRMATION OF PLAN 12. On August 18, 2003, the Court entered its Findings of Fact, Conclusions of Law and Order ( Confirmation Order ) which confirmed the First Amended Liquidating Plan of Reorganization, as modified ( LJM2 Plan ), filed by LJM2, as Debtor. The terms and conditions of the LJM2 Plan and the Confirmation Order govern the parties respective rights with respect to the Amended Claim. The Regents and Bankruptcy Class Action Plaintiffs acknowledge that the terms and conditions of the LJM2 Plan and Confirmation Order preclude any person from commencing an action against LJM2, other than in this Court. ALLOWANCE OF THE PROOF OF CLAIM AND DISMISSAL OF ADVERSARY PROCEEDING 13. The Amended Claim is hereby allowed as filed in the sum of $220 million and shall be treated as an Allowed Claim on behalf of the Bankruptcy Class Action Plaintiffs under Class 3 as defined in and pursuant to the LJM2 Plan for the purposes of distribution under 11 U.S.C. 502(c) from the LJM2 Trust and a beneficial ownership interest in the LJM2 Trust ( The Regents Allowed Claim ). 14. The Regents and the Bankruptcy Class Action Plaintiffs waive any right to seek reconsideration of The Regents Allowed Claim under 11 U.S.C. 502(j); provided, however, 5

6 that The Regents shall retain the right under 502(j) to seek reconsideration of The Regents Allowed Claim to increase the allowed amount of The Regents Allowed Claim up to the amount of $467.2 million in the event that any person other than Merrill Lynch Pierce Fenner & Smith (which holds an allowed subordinated claim in the amount of $1,827,000), Enron (which holds an unsecured allowed claim in the amount of $110 million) or The Regents is determined to have an allowed claim in Class 3 as defined under and pursuant to the LJM2 Plan. 15. The Regents Allowed Claim shall be held by the Lead Counsel for The Regents, currently the firm of Milberg Weiss Bershad Hynes & Lerach LLP, and all distributions from the LJM2 Trust on account of The Regents Allowed Claim shall be made to such Lead Counsel on behalf of The Regents and Bankruptcy Class Action Plaintiffs. No distributions shall be made relating to The Regents Allowed Claim until this order becomes a Final Order. For the purposes of this paragraph, the term Final Order as used herein means an Order of the Court, as to which the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall then be pending or, in the event that an appeal, writ of certiorari, reargument or rehearing thereof has been sought, such order of the Court shall have been affirmed by the highest court to which such order may be appealed, or certiorari has been denied, and the time to take any further appeal, petition for certiorari or move for reargument or rehearing shall have expired; provided however, notwithstanding the forgoing, an Order that is subject to appeal may be treated as a Final Order if no stay of the Order has been obtained and both The Regents and the LJM2 Trust consent to treating such Order as a Final Order. 16. Nothing contained in this Final Dismissal Order or any pleading or hearing related thereto, shall, or shall be deemed to, have any res judicata, collateral estoppel, or any preclusive or evidentiary effect whatsoever on, or impair, restrict or affect in any manner whatsoever, the 6

7 rights, claims, counterclaims, defenses, actions, causes of action, suits and liabilities, under the Bankruptcy Code (including Chapter 5) or any applicable law, of (i) The Regents or the Bankruptcy Class Action Plaintiffs as to any person other than LJM2 and the LJM2 Trust; (ii) LJM2 or the LJM2 Trust as to any person (including persons who have requested exclusion from the Bankruptcy Class), other than The Regents and the Bankruptcy Class Action Plaintiffs; or (iii) any limited partner of LJM Pursuant to Bankruptcy Rule 7023(e)(2), The Regents, LJM2 and the LJM2 Trust hereby state that any agreements made between the parties in connection with dismissal of this adversary proceeding are set forth in this Final Dismissal Order. 18. The Court finds that the dismissal of this adversary proceeding on the terms set forth in this Final Dismissal Order is fair, reasonable, and adequate. 19. This adversary proceeding shall be and is hereby dismissed with prejudice with each party bearing its own costs, and such dismissal shall be binding upon The Regents and all Bankruptcy Class Action Plaintiffs. 20. The dismissal of this adversary proceeding with prejudice shall not operate as a waiver of the rights and obligations of the respective parties under the LJM2 Plan. The Regents and the Bankruptcy Class Action Plaintiffs acknowledge that they are bound by the terms and provisions of the LJM2 Plan and Confirmation Order. 21. Each party shall bear its own costs, expenses and legal fees relating to all matters herein. No award of attorneys fees, expenses or costs for the Bankruptcy Class or Class Counsel shall be made against LJM2 or the LJM2 Trust. However, nothing contained herein shall prevent or prohibit Class Counsel from filing a fee application with the District Court in the Newby Class Action, seeking approval and payment of its fees and expenses from the funds distributed on account of The Regents Allowed Claim. 7

8 22. The Court shall retain jurisdiction to enforce the terms and conditions of this Final Dismissal Order. AGREED TO: AGREED TO: H. Christopher Mott, Esq. GORDON & MOTT P.C N. Mesa St. El Paso, Texas Telephone: (915) Fax: (915) Susan F. DiCicco KING & SPALDING LLP 1185 Avenue of the Americas New York, New York Telephone: (212) Fax: (212) CO-COUNSEL FOR THE LJM2 CREDITORS LIQUIDATION TRUST, successor to LJM2 CO- INVESTMENT, L.P. Craig P. Rieders, Esq. (CR 9012) GENOVESE JOBLOVE & BATTISTA, P.A 3600 Bank of America Tower 100 Southeast Second Street Miami, Florida Telephone: (305) Facsimile: (305) MILBERG WEISS BERSHAD HYNES & LERACH LLP 401 B Street, Suite 1700 San Diego, CA William S. Lerach, Esq. Keith F. Park, Esq. Helen J. Hodges, Esq. Telephone: (619) CO-COUNSEL FOR THE REGENTS OF THE UNIVERSITY OF CALIFORNIA SO ORDERED AND APPROVED this day of, 2004 STEVEN A. FELSENTHAL UNITED STATES BANKRUPTCY JUDGE 8