8 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PACHOLDER HIGH YIELD FUND, INC., ) COPERNICUS EURO CDO-I B.V., ) TOPSAIL CBO, LTD., TCW LINC III ) CBO, LTD., and TCW LEVERAGED ) INCOME TRUST IV, L.P., on behalf of ) themselves and a ll others similarly situated, ) V. Plaintiffs, RANKO CUCUZ, WILLIAM SHOVERS, ) D.N. VERMILYA, DAVID YING, ) ANTHONY GRILLO, PAUL LEVY, ) JEFFREY LIGHTCAP, CLEVELAND ) CHRISTOPHE, ANDREW HEYER, ) HORST KUKWA-LEMMERZ, ) WIENAND MEILICKE, JOHN ) RODEWIG, RAY WITT, and KPMG LLP, ) Civil Action No. 02-71778 CLASS ACTION L J U L 2 0 2005 CLERK'S OFFICE U. S. DISTRICT COURT EASTERN MICHIGAN Defendants. ORDER AND FINAL JUDGMENT On '1 LZ D, 2005, a hearing having been held before this Court to determine: (1 ) whether the terms and conditions of the Stipulation and Agreement of Settlement date d V(, (the "Stipulation") are fair, reasonable and adequate for the settlement of all claims asserted by the Class against Ranko Cucuz, William D. Shovers, D.N. Vermilya, David Ying, Anthony Grillo, Paul Levy, Jeffrey Lightcap, Cleveland Christophe, Andrew Heyer, John Rodewig and Ray Witt (collectively the "Individual Defendants") in the Second Amended Complaint (the "Complaint") now pending in this Court under the above caption, including the release of the Individual Defendants from all Settled Claims, should be approved ; (2) whether judgment should be entered dismissing the Complaint with prejudice as to the Individual
Defendants; and (3) whether and in what amount to award Plaintiffs' Lead Counsel fees and reimbursement of expenses. The Court having considered all matters submitted to it at the hearing and otherwise ; and it appearing that a notice of the hearing substantially in the form approved by the Court was mailed to all persons or entities reasonably identifiable, who purchased the Bonds at issue in this Action during the period from June 3, 1999 through September 5, 2001 (dates inclusive) (the "Class Period"), and who were damaged thereby, except those persons or entities excluded from the definition of the Class or who previously excluded themselves from the Class, and that a summary notice of the hearing substantially in the form approved by the Court was published on one occasion in the national edition of The Investor's Business Daily; and the Court having considered and determined the fairness and reasonableness of the award of attorneys' fees and expenses requested ; and all capitalized terms used herein having the meanings as set forth and defined in the Stipulation. NOW, THEREFORE, IT IS HEREBY ORDERED THAT : 1. The Court has jurisdiction over the subject matter of the Action, the plaintiffs, all Class Members, and the Individual Defendants. 2. The Class consists of two subclasses outlined in this Court's Order Granting Plaintiffs' Motion for Class Certification in Part, dated October 30, 2003. 3. Notice of the pendency of this Action as a class action and of the propose d Settlement was given to all Class Members who could be identified with reasonable effort. The form and method of notifying the Class of the pendency of the action as a class action and the terms and conditions of the proposed Settlement met the requirements of Rule 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) ofthe Securities Exchange Act of 1934, 15 U.S.C.
78u-4(a)(7) as amended by the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), due process, and any other applicable law, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto. 4. The Settlement with the Individual Defendants is approved as fair, reasonable and adequate, and the parties are directed to consummate the Settlement with the Individual Defendants in accordance with the terms and provisions of the Stipulation. 5. The Complaint, which the Court finds was filed on a good faith basis in accordance with the PSLRA and Rule I 1 of the Federal Rules of Civil Procedure based upon all publicly available information, is hereby dismissed with prejudice and without costs, except as provided in the Stipulation, as against the Individual Defendants. 6. Members of the Class who have not previously excluded themselves therefrom and the successors and assigns of any of them are hereby permanently barred and enjoined from instituting, commencing or prosecuting all claims, rights, demands, suits, matters, issues or causes of action, whether known or unknown, against the Individual Defendants, Gulf Insuranc e Company and Continental Casualty Company, Joseph Li ttlejohn & Levy Fund II, L.P., TSG Capital Fund 11, L.P. and CIBC WG Argosy Merchant Fund 2, L.L.C., their past, present or future subsidiaries, parents, successors, and predecessors, and any person, firm, trust corporation, officer, director or other individual or entity in which they have a controlling interest or which i s related to or affiliated with any of them, and the legal representatives, heirs, successors in interest or assigns of any such party (collectively the "Released Parties") whether under state or federal law, including the federal securities laws, and whether directly, indirectly, derivatively, representatively or in any other capacity, in connection with, based upon, arising out of, or
relating to any and all claims, rights, demands, suits, causes of actions or liabilities whatsoever, whether based on federal, state, local, statutory or common law or any other law, rule or regulation, including without limitation, both known claims and Unknown Claims (as defined below) (1) that have been asserted in the Securities Litigation by the Lead Plaintiffs and/or the Class Members or their attorneys or any of them against any of the Released Parties, or (ii) that could have been asserted in any forum by any of the Lead Plaintiffs and/or Class Members or their attorneys or any of them or the successors and assigns of any of them, whether directly, indirectly, representatively, derivatively or in any other capacity, against any of the Released Parties which arise out of or are based upon or relate in any way to the allegations, transactions, facts, matters or occurrences, representations or omissions involved, asserted, set forth, or referred to in the complaints filed in the Securities Litigation and/or which relate to the purchase or ownership of shares of common stock of Hayes and/or purchase or ownership of Hayes' Bonds during the Class Period (the "Settled Claims") (but excluding any claims to enforce the terms of the Settlement) against the Released Parties and all other persons purporting to act on their behalf. "Unknown Claims" means any and all Settled Claims which any Lead Plaintiff o r Class Member does not know or suspect to exist in his or her favor at the time of the release of the Released Parties which if known by them might have affected their settlement with the Individual Defendants. Solely with respect to any and all Settled Claims that were or that could have been asserted against the Released Parties, it is the intention of the parties hereto that, upon the Effective Date, Lead Plaintiffs and the Class Members will hereby expressly waive and relinquish, to the fullest extent permitted by law, the provisions, rights and benefits of Section
1542 of the California Civil Code, which provides : A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor" and any and all provisions, rights and benefits of any similar statute, law or principle or common law of the United States, any state thereof, or any other jurisdiction. The Settled Claims are hereby compromised, settled, released, discharged and dismissed as against the Released Parties with prejudice by virtue of the proceedings herein and this Order and Final Judgment. 7. In accordance with applicable federal and state law, including but not limited t o 15 U.S.C. 78u-4(f)(7), the Court hereby ( i) bars any action by any person, including, but not limited to, the Individual Defendants for contribution against any other settling Defendant arising out of the Securities Litigation, (ii) bars any action by any person for contribution against the Released Parties arising out of the Securities Litigation ; and (iii) except as provided in a separate settlement agreement between the Individual Defendants and Continental, bars any entity who is, may be, or claims to be an Insured under any of the Insurance Policies or who otherwise claims to have an interest in any of the Insurance Policies, including any interest alleged to arise by reason of a claim against an Individual Defendant, from seeking or obtaining coverage under the Insurance Policies for loss directly or indirectly arising out of or related to any of the Se ttled Claims. 8. Pursuant to this Order and Final Judgment, upon the Effective Date of the Settlement with the Individual Defendants : (a) the Lead Bondholder Plaintiffs and members of the Class on behalf of themselves, their heirs, executors, administrators, successors and assigns shall, with respect to each and every Settled Claim, release and forever discharge, and shall forever be enjoined from prosecuting, any Settled Claims against the Released Parties, and (b)
the Individual Defendants on behalf of themselves, their heirs executors, administrators, successors and assigns shall release and forever discharge, and shall forever be enjoined fro m prosecuting, all claims rights, demands, suits, matters, issues or causes of action, whether know n or unknown, against the Lead Bondholder Plaintiffs, Lead Counsel and/or the Class whethe r under state or federal law and whether directly, indirectly, derivatively, representatively or in any other capacity, in connection with, based upon, arising out of, or relating to any claims that have been or could have been raised by the Individual Defendants in the above captioned Actio n regarding Hayes or the acts, facts, or events alleged in the Action, or in connection with, based upon, arising out of, or relating to the Settlement (but excluding any claims to enforce the term s of the Settlement). 9. Neither this Order and Final Judgment, the Stipulation, nor any of its terms an d provisions, nor any of the negotiations or proceedings connected with it, nor any of th e documents or statement referred to therein shall be : a. Offered or received against the Individual Defendants as evidence of o r construed as or deemed to be evidence of any presumption, concession, or admission by the Individual Defendants with respect to the truth of any fact alleged by plaintiffs or the validity o f any claim that had been or could have been asserted in the Action or in any litigation, or th e deficiency of any defense that has been or could have been asserted in the Action or in an y litigation, or of any liability, negligence, fault, or wrongdoing of the Individual Defendants ; b. Offered or received against the Individual Defendants as evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect t o any statement or written document approved or made by the Individual Defendants, or against the plaintiffs and the Class as evidence of any infirmity in the claims of plaintiffs and the Class ;
c. Offered or received against the Individual Defendants or against th e plaintiffs or the Class as evidence of a presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the parties to the Stipulation, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; provided, however, the Released Parties may refer to the Stipulation to effectuat e the liability protection granted it thereunder ; d. Construed against the Released Parties or the plaintiffs and the Class as a n admission or concession that the consideration to be given hereunder represents the amoun t which could be or would have been recovered after trial ; or e. Construed as or received in evidence as an admission, concession o r presumption against the Lead Plaintiffs or the Class Members that any of their claims are withou t merit, or that any of the defenses asserted by the Individual Defendants have any merit, or tha t damages recoverable under the complaints filed in the Securities Litigation would not hav e exceeded the Settlement Amount. 10. The Court finds that all parties and their counsel have complied with eac h requirement of Rule 1 I of the Federal Rules of Civil Procedure as to all proceedings herein. 11. Plaintiffs ' Lead Counsel is hereby awarded $ O~ O~ Jam. D in fees, which the Court finds to be fair and reasonable, and $ q9 Z?9. 2 in reimbursement of expenses, which expenses shall be paid to Plaintiffs' Lead Counsel from th e Gross Settlement Fund with interest from the date such Gross Settlement Fund was funded to th e date of payment at the same net rate that the Gross Settlement Fund earns.
12. Exclusive jurisdiction is hereby retained over the parties and the Class Members fo r all matters relating to this Action, including the administration, interpretation, effectuation o r enforcement of the Stipulation and this Order and Final Judgment, and including any applicatio n for fees and expenses incurred in connection with administering and distributing the settlement proceeds to the members of the Class. 13. Without further order of the Court, the parties may agree to reasonable extension s of time to carry out any provisions of the Stipulation. 14. There is no just reason for delay in the entry of this Order and Final Judgment and immediate entry by the Clerk of Court is expressly directed pursuant to Rule 54(b) of the Federa l Rules of Civil Procedure. BY THE COURT : DATED : ILL 2 0 20 ~!L I --Z:~ HONORABL RTHUR J. TARNOW UNITED STATES DISTRICT JUDGE