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Joseph J. DePalma (JD-7697) William W. Robertson (WR-2772) Susan D. Pontoriero (SP-0463) Jeffrey A. Cohen (JC-7975) Lite DePalma Greenberg & Rivas, LLC Owen McKeon Two Gateway Center, 12th Floor Robertson, Freilich, Bruno Newark, New Jersey 07102 & Cohen, L.L.C. Telephone: (973) 623-3000 1 Riverfront Plaza, 4th Floor Fax: (973) 623-0858 Newark, New Jersey 07102 Telephone: (973) 848-2100 Fax: (973) 848-2138
Liaison Counsel for Plaintiffs Counsel for Defendants
Other Counsel for Plaintiffs and Defendants Listed on Signature Pages
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______) (Document Electronically Filed)
STIPULATION OF SETTLEMENT
WHEREAS, four putative class actions alleging ERISA violations on behalf of
individuals who participated, or have (or had) an interest, in certain ERISA Plans were
filed in this Court against the Royal Dutch Petroleum Company, The “Shell” Transport
and Trading Company, p.l.c., Jeroen van der Veer, Philip Watts and Pervis Thomas, Jr.;
and
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WHEREAS, the Court consolidated the four putative class actions into this Action
and a Consolidated Complaint naming the Royal Dutch Petroleum Company, The “Shell”
Transport and Trading Company, p.l.c., Jeroen van der Veer, Philip Watts, Walter van de
Vijver, Judy Boynton and Pervis Thomas, Jr. was filed; and
WHEREAS, two putative class actions alleging virtually identical ERISA
violations as are alleged in this Action brought on behalf of individuals who participated,
or have (or had) an interest in, certain of the ERISA Plans that are the subject of this
Action were filed in the United States District Court for the Southern District of Texas
against certain of the Defendants in this case, as well as other individuals; and
WHEREAS, the two putative class actions filed in the United States District
Court for the Southern District of Texas have been consolidated into the Texas Action,
which action has been stayed pending resolution of this Action; and
WHEREAS, one of the Plaintiffs’ Co-Lead Counsel appointed by the Court in
this Action was appointed Plaintiffs’ Lead Counsel in the Texas Action; and
WHEREAS, ERISA Co-Lead Plaintiffs and Defendants have agreed to a
settlement of this Action; and
WHEREAS, Plaintiffs’ Lead Counsel in the Texas Action has agreed that this
Settlement Agreement will resolve all claims that are pending in the Texas Action.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and
among the undersigned, including, ERISA Co-Lead Plaintiffs (individually and in their
representative capacities) by and through their duly authorized representatives, and
Defendants, by and through their duly authorized representatives, that this Action and the
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matters raised by it hereby are settled and compromised as to Defendants and Releasees
and that this Action and the Texas Action will be dismissed with prejudice and that the
Released Claims will be released as to the Releasees based upon the terms and conditions
set forth in this Settlement Agreement and the Release set forth herein, subject to the
approval of the Court of this Settlement Agreement becoming Final.
I. DEFINITIONS
A. As used in this Settlement Agreement, the following terms have the
following meanings, unless a section or subsection of this Settlement Agreement
specifically provides otherwise:
1. “Action” means the consolidated putative ERISA class action
pending in this Court under the caption In re Royal Dutch/Shell Transport ERISA
Litigation, Civil Action No. 04-1398 (JWB), including, without limitation, all cases
consolidated with the foregoing as of the Final Settlement Date.
2. “Actions” means the Action and the Texas Action.
3. “Administrative Expenses” means all expenses other than Notice
Expenses associated with the administration of the settlement contemplated by this
Settlement Agreement, including, but not limited to, setting up and maintaining the toll-
free telephone number, calculating the amount of the Net Cash Settlement Amount to be
allocated to each eligible Class Member and distributing the Net Cash Settlement
Amount to or on behalf of Class Members; provided however, that Administrative
Expenses shall not include any amounts allowed as the Attorneys’ Fees and Expenses
Award.
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4. “Administrator” means the person or entity to be chosen pursuant
to Section V below, which person or entity shall be appointed by the Court in the
Preliminary Approval Order to implement the Notice, toll-free telephone number, and
administration and distribution of the Net Cash Settlement Amount in accordance with
the terms of this Settlement Agreement.
5. “Approval Date” means the date on which the Judgment and the
Order Approving Settlement are entered by the Court.
6. “Attorneys’ Fees and Expenses Application” means the application
for fees and expenses to be made by Plaintiffs’ Co-Lead Counsel pursuant to Section
IX.1 below.
7. “Attorneys’ Fees and Expenses Award” means the amount
awarded to Plaintiffs’ Co-Lead Counsel as provided for in Section XI below pursuant to
the Attorneys’ Fees and Expenses Application.
8. “Attorneys’ Fees and Expenses Award Payment” means the
Attorneys’ Fees and Expenses Award less the Reimbursement Amount.
9. Bar Order” means the portion of the order to be entered by the
Court as part of the Order Approving Settlement, the text of which shall be substantially
in the form found in paragraph 12 of Exhibit E.
10. “Boynton’s Counsel” means the law firm of Foley & Lardner,
LLP.
11. “Business Day” means a day other than a Saturday, Sunday or a
“legal holiday,” as that term is defined in Section XIII.T of this Settlement Agreement.
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12. “Cash Settlement Account” means an interest-bearing account
under the control of Plaintiffs’ Co-Lead Counsel, into which the Cash Settlement Amount
shall be paid, which account shall be maintained as a Qualified Settlement Fund.
13. “Cash Settlement Amount” means the amount of Ninety Million
Dollars ($90,000,000).
14. “Cash Settlement Payment” means the Cash Settlement Amount
less the Attorneys’ Fees and Expenses Award Payment.
15. “Claim” means any and all actions, causes of action, proceedings,
adjustments, executions, offsets, contracts, judgments, obligations, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, variances, covenants,
trespasses, damages, demands (whether written or oral), agreements, promises, liabilities,
controversies, costs, expenses, attorneys’ fees and losses whatsoever, whether in law, in
admiralty or in equity and whether based on any federal law, state law, foreign law,
common law doctrine, rule, regulation or otherwise, foreseen or unforeseen, matured or
un-matured, known or unknown, accrued or not accrued, existing now or to be created in
the future.
16. “Class” or “Class Members” means all individuals who were
participants or had an interest in one or more of the ERISA Plans during the Class Period;
provided that such individuals shall not be Class Members with respect to any purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities outside of and separate from their participation or
interest in the ERISA Plans.
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17. “Class Period” means period of time from December 3, 1999
through April 29, 2004, inclusive.
18. “Companies” means each and all of the Royal Dutch Petroleum
Company (a/k/a N.V. Koninklijke Nederlandsche Petroleum Maatschappij) and The
“Shell” Transport and Trading Company, p.l.c., and any and all of their respective
parents, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b),
divisions, business units, subsidiaries and entities in which either or both has a
Controlling Interest. As used in this Settlement Agreement, the term Companies
includes, without limitation, Shell Oil Company, Argus Realty Services Inc., CRI U.S.
LP, Equilon Enterprises LLC d/b/a Shell Oil Products US, Motiva Company, Pecten
Chemicals Inc., Pecten Middle East Services Company Limited, Pecten Overseas
Services Company, Pecten Producing Company, Pecten Realty Inc., Pecten Services
Company, Pennzoil-Quaker State Company d/b/a SOPUS Products, Shell Agricultural
Chemical Company, Shell Capital, Inc., Shell Chemical LP, Shell Chemical Risk
Management Company, Shell Energy Resources Company, Shell Energy Services
Company, L.L.C., Shell Expatriate Employment US Inc., Shell Exploration & Production
Company, Shell Global Solutions (US) Inc., Shell Information Technology International
Inc., Shell International Exploration and Production Inc., Shell Marine Products (US)
Company, Shell North America Gas & Power Services Company, Shell Offshore Inc.,
Shell Oil Products Company LLC, Shell Oil Products LAN LLC, Shell Pipeline
Company LP, Shell Solar Employment Services Inc., Shell Technology Ventures Inc.,
SWEPI LP, Shell WindEnergy Services Inc., Shell Wood River Refining Company, SIEP
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Overseas Services, Inc., SPLC Services Company LLC, Coral Energy Services LLC,
Coral Overseas Services Corporation, Shell Trading Gas and Power Company, Shell
Trading GP Overseas Services Company, Shell Trading North America Company, Shell
Trading (US) Company and Shell US Gas & Power, LLC, and their respective parents,
predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), divisions,
subsidiaries or entities in which any of them has a Controlling Interest.
19. “Confidentiality Agreement” means the Confidentiality Stipulation
and Order entered by the Court in this Action, including all addenda that have been or
will be executed thereto.
20. “Consolidated Complaint” means Plaintiffs’ Amended
Consolidated Class Action Complaint for Violation of ERISA filed in this Action on or
about July 30, 2004.
21. “Controlling Interest” means an interest by one or more of the
Companies or by a Releasee in an entity where such interest in the entity is sufficient to
allow the Company or Releasee (as the case may be) directly or indirectly to direct or
cause the direction of the management and policies of the entity, whether through the
ownership of voting shares, by contract, or otherwise.
22. “Corporate Defendants” means the Royal Dutch Petroleum
Company and The “Shell” Transport and Trading Company, p.l.c.
23. “Corporate Defendants’ Counsel” means the law firms of LeBoeuf,
Lamb, Greene & MacRae LLP, Debevoise & Plimpton LLP and Robertson, Freilich,
Bruno & Cohen, L.L.C.
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24. “Court” means the Court in which the Action is pending.
25. “Davis Polk Report” means the document titled Report of Davis
Polk & Wardwell to the Shell Group Audit Committee and the documents cited in such
Report.
26. “Defendants” means the Corporate Defendants and the Individual
Defendants.
27. “Defendants’ Counsel” means Defendants’ Lead Counsel, the
Corporate Defendants’ Counsel, Watt’s Counsel, Van de Vijver’s Counsel, Boynton’s
Counsel and Thomas’ Counsel.
28. “Defendants’ Lead Counsel” means the law firms of LeBoeuf,
Lamb, Greene & MacRae LLP and Debevoise & Plimpton LLP, who have been, and are,
coordinating the negotiations and implementation of the Settlement Agreement on behalf
of all Defendants.
29. “DOL Filing” means any written statement filed or submitted to
the United States Department of Labor regarding any of the ERISA Plans.
30. “Earnings Release” means any statement by the Companies
announcing to the public the financial or operational results of the Companies for any
specific time period.
31. “Employee Benefit Plan” means an employee benefit plan as
defined in Section 3(3) of ERISA.
32. “ERISA” means the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C. §§ 1001, et seq.
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33. “ERISA Co-Lead Plaintiffs” means Gordon Lancaster, John
Tristan, Jose Valadez, Oscar Pena, Hernaldo Rivera, John R. Rosenboom and Scott
Franklin, Jr., all of whom are Class Members in the Action.
34. “ERISA Plans” means each and every Employee Benefit Plan
sponsored by one or more of the Companies and established and maintained in the United
States which Employee Benefit Plan offered Royal Dutch Securities as an investment
option to plan participants, including, but not limited to, the Shell Pay Deferral
Investment Fund, the Shell Provident Fund, the Shell Trading Savings Plan, and any
predecessor or successor plans to any such Employee Benefit Plan.
35. “Execution Date” means the date by which this Settlement
Agreement has been executed by all Parties.
36. “Expense Reduction” means the portion of any Reduction Amount
attributable to Plaintiffs’ Co-Lead Counsel’s out-of-pocket expenses.
37. “Fairness Hearing” means the hearing at or after which the Court
will make a final decision pursuant to Fed. R. Civ. P. 23 as to whether this Settlement
Agreement is fair, reasonable and adequate and, therefore, approved by the Court.
38. “Fee Reduction” means the portion of any Reduction Amount
attributable to Plaintiffs’ Co-Lead Counsel’s fees.
39. “Final” means, when used in connection with any court order or
judgment, that the relevant order or judgment will be final and no longer subject to
appeal:
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a. if no appeal is taken therefrom, on the date on which the
time to appeal therefrom (including any potential extension of time) has expired; or
b. if any appeal is taken therefrom, on the date on which all
appeals therefrom, including petitions for rehearing or reargument, petitions for rehearing
en banc and petitions for certiorari or any other form of review, have been finally
disposed of, such that the time to appeal therefrom (including any potential extension of
time) has expired, in a manner resulting in an affirmance of the order or judgment.
40. “Final Settlement Date” means the date on which the Judgment
and the Order Approving Settlement become Final.
41. “Individual Defendants” means Philip Watts, Walter van de Vijver,
Judy Boynton and Pervis Thomas, Jr.
42. “Initial Notice Payment” means the amount of Fifty Thousand
Dollars ($50,000).
43. “Interest Rate” means interest calculated on a simple interest basis
based upon the Prime Rate and compounded monthly; provided further that for each
month during which interest is to be calculated, the rate shall be established based upon
the Prime Rate effective rate on the first (1st) Business Day of such month, as published
in The Wall Street Journal under the description of “Money Rates.”
44. “Investment Decision” means a decision regarding an investment
in Royal Dutch Securities including, without limitation, a decision to purchase, sell or
hold an interest in Royal Dutch Securities in connection with an ERISA Plan.
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45. “IRS Filing” means any written statement filed or submitted to the
Internal Revenue Service.
46. “Judgment” means the judgment entered by the Court pursuant to
the Order Approving Settlement, as contemplated in Section XI of this Settlement
Agreement.
47. “Net Cash Settlement Amount” means the balance remaining in
the Cash Settlement Account (including any interest that has accrued) after the payments
described in Section III.A.5 below are made from the Cash Settlement Account.
48. “Notice” means the notice, as approved by the Court, that will be
made available to Class Members informing them of the settlement, as described in
Section IV.A below.
49. “Notice Expenses” means all expenses associated with printing and
mailing the Notice to Class Members and publishing the Summary Notice.
50. “Order Approving Settlement” means the Court’s order approving
the settlement and this Settlement Agreement.
51. “Parties” means ERISA Co-Lead Plaintiffs and Defendants.
52. “Plaintiffs’ Co-Lead Counsel” means the law firms of Wechsler
Harwood LLP, Scott + Scott, LLC and Milberg Weiss Bershad & Schulman LLP.
53. “Plaintiffs’ Lead Counsel in the Texas Action” means the law firm
of Wechsler Harwood LLP.
54. “Plaintiffs’ Liaison Counsel” means the law firm of Lite DePalma
Greenberg & Rivas, LLC.
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55. “Plan of Allocation” means the terms and procedures for allocating
the Net Cash Settlement Amount among, and distributing the Net Cash Settlement
Amount to, Class Members, or such other Plan of Allocation as the Court shall approve.
56. “Preliminary Approval Date” means the date on which the
Preliminary Approval Order is entered by the Court.
57. “Preliminary Approval Hearing” means the hearing at or after
which the Court will preliminarily approve this Settlement Agreement.
58. “Preliminary Approval Order” means the order to be entered by the
Court concerning notice, administration and the Fairness Hearing, as contemplated in
Section X of this Settlement Agreement.
59. “Qualified Settlement Fund” means a fund within the meaning of
Treasury Regulations § 1.468B-1.
60. “Reduction Amount” means the amount by which the Attorneys’
Fees and Expenses Award may be reduced after entry of the Judgment and Order
Approving Settlement.
61. “Reimbursement Amount” means an amount attributable to
Plaintiffs’ Co-Lead Counsel’s and Plaintiffs’ Liaison Counsel’s out-of pocket expenses
up to and including One Million Dollars ($1,000,000).
62. “Release” means the releases and waivers set forth in Section VIII
of this Settlement Agreement.
63. “Released Claims” means each and every Claim or Unknown
Claim, whether arising under any federal law, state law, foreign law, common law
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doctrine, rule, regulation or otherwise, (i) that has been asserted in this Action by ERISA
Co-Lead Plaintiffs or any of them against any of the Releasees; (ii) that arises under
ERISA and could have been asserted in any forum by the Class Members or any of them
against any of the Releasees insofar as the Claim or Unknown Claim arises out of or is
based upon the allegations, transactions, facts, matters or occurrences, representation or
omissions involved, set forth or referred to in the Consolidated Complaint, and relates to
the purchase, sale, holding, exchange, acquisition, disposition, transfer or any other
Investment Decision regarding Royal Dutch Securities in any of the ERISA Plans during
the Class Period or (iii) that, subject to Section VIII.A.3 below, arises out of or relates in
any way to all acts, omissions, nondisclosures, facts, matters, transactions, occurrences or
oral or written statements or representations in connection with or directly or indirectly
relating to the institution, prosecution, defense or settlement of this Action or of the
Texas Action, or to this Settlement Agreement, or the implementation or administration
of it, including, but not limited to, any Claim for attorneys’ fees, costs or disbursements
in connection with the Actions except to the extent otherwise specified in this Settlement
Agreement. Without limiting the generality of the foregoing, and subject to the proviso
below, the term Released Claims includes, without limitation, any Claims or Unknown
Claims arising out of or relating to:
a. any and all of the acts, failures to act, omissions,
misrepresentations, facts, events, matters, transactions, statements, occurrences, or oral or
written statements or representations that have been, could have been or could be directly
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or indirectly alleged, embraced, complained of, asserted or described, against any
Releasee or otherwise, set forth or otherwise referred to in the Actions;
b. the contents of any SEC Filing, DOL Filing or IRS Filing
during the Class Period (i) relating to Royal Dutch Securities or one or more of the
Companies or (ii) relating to or made in connection with any of the ERISA Plans;
c. any forward-looking statement regarding the Companies
made by any of the Releasees during the Class Period;
d. the contents of any SEC Filing, DOL Filing, IRS Filing or
any publication, dissemination, adjustment, revision or restatement of financial or other
information of the Companies, including, without limitation, the recategorization of any
oil or gas reserves, relating to the Class Period;
e. any disclosure, representation or statement of any sort (oral
or written) made by any or all of the Releasees during the Class Period to any person or
entity, or to the public at large regarding, without limitation, the Companies’ business or
financial condition, their operational results and/or their financial or operational
prospects, including, without limitation, any press releases and/or press reports, earnings
calls, memoranda (whether internally or externally circulated), and presentations to
analysts, creditors, rating agencies, banks or other lenders, investment bankers, broker
dealers, investment advisors, investment companies, bond holders, employees of any of
the Companies, potential and actual vendors or customers, participants in one or more of
the ERISA Plans, potential investors and/or shareholders;
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f. any disclosure, representation, or statement of any sort (oral
or written) made by any of the Releasees during the Class Period to any person or entity
regarding one or more of the ERISA Plans;
g. any internal and/or external accounting memoranda, reports
or opinions prepared by the Companies or any of the Releasees during, or that relate in
any way to, the Class Period, including, without limitation, any such memoranda, reports
or opinions with respect to the Companies’ categorization of its oil and gas reserves, or
on which any Class Member allegedly relied during the Class Period in purchasing,
selling, exchanging, acquiring, disposing of, transferring, or making any other Investment
Decision regarding, Royal Dutch Securities in connection with one or more of the ERISA
Plans;
h. the Companies’ record keeping during, or that relates in
any way to the categorization of oil and gas reserves occurring in, the Class Period;
i. any financial statement, audited or unaudited, and any
report or opinion on any financial statement relating to the Companies that was prepared
or issued by one or more of the Companies or any of the Releasees during, or that relates
in any way to, the Class Period, or on which any Class Member allegedly or actually
relied during the Class Period in purchasing, selling, exchanging, acquiring, disposing of,
transferring, or making any other Investment Decision involving, Royal Dutch Securities
in connection with one or more of the ERISA Plans;
j. any statements or omissions by any of the Releasees as to
quarterly or annual results of the Companies during the Class Period, including, without
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limitation, statements or omissions in connection with Earnings Releases or during calls
and/or meetings with one or more analysts or investors, and statements or omissions
regarding the categorization of oil and gas reserves;
k. any internal accounting controls or internal audits of the
Companies during, or that relate in any way to, the Class Period, including, without
limitation, any internal audits relating to the categorization of oil and gas reserves;
l. any purchases, sales, exchanges, acquisitions, disposals,
retentions, transfers or other trading (including, without limitation, collar and hedge
transactions) or any other Investment Decision involving Royal Dutch Securities, any
profits made or losses avoided in connection with a transaction involving Royal Dutch
Securities during the Class Period by any or all of the Releasees, or any acts taken by
Releasees to finance or pay for any such transactions, including, but not limited to, any
personal profit, remuneration or advantage received by a Releasee in connection with a
transaction involving Royal Dutch Securities to which he, she or it was allegedly not
legally entitled;
m. any of the Companies’ accounting practices or procedures,
including any disclosure and disclosure obligations relating thereto, during the Class
Period, including, but not limited to, adoption, use and/or application of any accounting
principles or standards with respect to the Companies’ categorization of oil and gas
reserves;
n. any statements or omissions by any of the Releasees in
connection with the Companies’ acquisition during the Class Period of any entity,
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including, without limitation, any statements or omissions regarding the effect of any
such acquisition on, or relationship between, any such acquisition and one or more of the
ERISA Plans;
o. the integration of the Companies or any of their divisions,
business units or companies, and any of the entities that they acquired during the Class
Period;
p. any statements or omission by any of the Releasees in
connection with the Companies’ sale during the Class Period of any divisions, business
units, companies and/or assets, including, without limitation, the termination of any
ERISA Plans or the transfer of any ERISA Plan assets in connection with such a sale;
q. any and all Claims arising in connection with the purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan during the Class
Period relating in any way to any of the facts or allegations addressed or discussed or in
any way related to the investigation and findings as set out in the Davis Polk Report.
r. the integration or merger of any Employee Benefit Plan
with any of the ERISA Plans during the Class Period;
s. the relationship and any transactions, actual or
contemplated, between or among the Companies and any of their parents, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), divisions, business units,
subsidiaries and entities in which it has a Controlling Interest;
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t. any and all Claims arising under ERISA against any of the
individual Releasees that are based upon or arise out of the Releasee’s (i) status as a
director, officer or employee of, or investor in, the Companies or (ii) acts or omissions in
his or her capacity as a director, officer or employee of, or investor in, the Companies;
u. any and all transactions between the Companies and any of
the Releasees or any entity that is an affiliate (as defined in 17 C.F.R. Part 210.1-02.b) of
a Releasee or in which a Releasee has a Controlling Interest;
v. the suitability or prudence of any ERISA Plan’s investment
in Royal Dutch Securities during the Class Period;
w. any and all activities undertaken by any Releasee in a
fiduciary capacity or otherwise with respect to the ERISA Plans during the Class Period;
x. purchases, sales, exchanges, acquisitions, disposals,
transfers or any other Investment Decisions involving Royal Dutch Securities on behalf
of one of more of the ERISA Plans or on behalf of any participant in or beneficiary of, or
any person having an interest in, one or more of the ERISA Plans;
y. issuance of treasury shares of Royal Dutch Securities to the
ERISA Plans;
z. any and all Claims against any of the individual Releasees
that are based upon or arise out of the Releasee’s (i) alleged status during the Class
Period as a fiduciary or otherwise with respect to one or more of the ERISA Plans or
(ii) acts or omissions during the Class Period in his, her or its capacity as a fiduciary with
respect to one or more of the ERISA Plans;
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aa. any or all Claims based upon the design, structure and/or
terms of any of the ERISA Plans;
bb. any and all claims against any Releasee relating to the
administration of any of the ERISA Plans during the Class Period; and
cc. any and all other Claims or other matters relating in any
way to the Companies’ finances, disclosures, financial condition, accounting practices or
categorization or recategorization of oil and gas reserves, or Releasees’ disclosures to or
communications with other parties, including, without limitation, the public and all
lenders, creditors, shareholders or other persons engaged in financial transactions with
the Companies.
Provided that, notwithstanding anything in this Section I.A.63, the term “Released
Claims” does not mean, and does not include, any claim relating to the purchase, sale,
holding, exchange, acquisition, disposition, transfer or any other Investment Decision
regarding Royal Dutch Securities outside of any ERISA Plan. Nor does it include any
additional or independent claim that a Class Member or any ERISA Plan may have with
respect to his, her or its purchase, sale, holding, exchange, acquisition, disposal, transfer
or any other Investment Decision regarding Royal Dutch Securities in connection with
any ERISA Plan during the Class Period to the extent – and only to such extent – such
additional independent claim is based solely upon federal or state securities laws (and not
upon ERISA), whether such claim is considered to be made directly on behalf of the
Class Member or on behalf of the ERISA Plan in which the Class Member participated or
had an interest.
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64. “Releasee” means each and every one of, and “Releasees” means
all of, the following: the Companies and each of the ERISA Plans, and each of their
respective past and present directors, officers, employees, members, partners, principals,
agents, attorneys, advisors, trustees, administrators, fiduciaries (including, without
limitation, Fidelity Management Trust Company, National Financial Services LLC, and
any other individual or entity that was an independent fiduciary in connection with one or
more of the ERISA Plans during the Class Period), consultants, service providers,
representatives, insurance carriers, accountants and auditors, including, without
limitation, the Individual Defendants and each of their respective estates, heirs, executors,
agents, attorneys, accountants, trusts, trustees, administrators and assigns.
65. “Royal Dutch Securities” means any securities (i) issued by the
Royal Dutch Petroleum Company, including, but not limited to, stock, bonds, notes,
employee stock options, units in any investment option offered in one or more of the
ERISA Plan, commercial paper or other evidence of indebtedness, or derivative
instruments or (ii) that trade in whole or in part based on the price or value of any
security issued by the Royal Dutch Petroleum Company, including, but not limited to, put
and call options and any other derivative instruments (including, but not limited to,
collars, hedges and straddles).
66. “SEC Filing” means any written statement filed with or submitted
to the Securities and Exchange Commission.
67. “Securities Action” means the consolidated putative securities
class action pending in this Court under the caption In re Royal Dutch/Shell Transport
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Securities Litigation, Civil Action No. 04-374 (JWB), including, without limitation, all
cases consolidated with the foregoing as of the Final Settlement Date.
68. “Settled Parties’ Claims” means, subject to Section VIII.A.3
below, each and every Claim or Unknown Claim, whether arising under any federal law,
state law, foreign law, common law doctrine, rule, regulation or otherwise, that have
been or could have been asserted in the Action or any forum by any Party, or the
successors and assigns of any of them, against any of the ERISA Co-Lead Plaintiffs,
Class Members, Plaintiffs’ Co-Lead Counsel, Defendants or Defendants’ Counsel which
arise out of or relate in any way to the institution, prosecution, defense or settlement of
this Action or the Texas Action.
69. “Settlement Agreement” means this Stipulation of Settlement and
any accompanying Exhibits, including any subsequent amendments thereto and any
Exhibits to such amendments.
70. “Stipulation of Confidentiality” means the stipulation described in
Section VII.D below.
71. “Summary Notice” means the notice described in Section IV.B
below.
72. “Tax Expenses” means (i) all taxes on the income of the Cash
Settlement Amount and (ii) expenses and costs incurred in connection with the taxation
of the Cash Settlement Amount (including, without limitation, expenses of tax attorneys
and accountants).
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73. “Texas Action” means the consolidated putative ERISA class
action pending in the United States District Court for the Southern District of Texas,
Houston Division, under the caption Lancaster v. Royal Dutch Petroleum Company, et.
al, Case No. H-04-1066, including, without limitation, all cases consolidated with the
foregoing as of the Final Settlement Date.
74. “Thomas’ Counsel” means the law firm of Cleary Gottlieb Steen &
Hamilton LLP.
75. “Unknown Claim” means any Claim that any Class Member does
not know or suspect to exist in his or her favor at any time on or before the date that such
Class Member’s release becomes effective, and that, if known by him or her, might have
affected his or her settlement with any of the Releasees or might have affected his or her
decision not to object to this Settlement Agreement.
76. ““van de Vijver’s Counsel” means the law firm of Akin Gump
Strauss Hauer & Feld LLP.
77. “Watts’ Counsel” means the law firm of Crowell & Moring, LLP.
B. Capitalized terms used in this Settlement Agreement, but not defined in
this Section I, shall have the meaning ascribed to them in this Settlement Agreement.
II. BACKGROUND AND INTRODUCTION
A. Procedural History of this Action
1. In March and April 2004, four putative class actions were filed
against the Royal Dutch Petroleum Company, The “Shell” Transport and Trading
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Company, p.l.c., Jeroen van der Veer, Philip Watts and Pervis Thomas, Jr. alleging
violations with respect to certain ERISA Plans.
2. In a June 30, 2004 order, the Court consolidated the four putative
class actions into this Action, and appointed ERISA Co-Lead Plaintiffs, Plaintiffs’ Co-
Lead Counsel and Plaintiffs’ Liaison Counsel.
3. In its June 30, 2004 order, the Court also stated that Plaintiffs’ Co-
Lead Counsel “shall have sole authority over,” among other things, “the timing and
substance of any settlement negotiations with defendants.”
4. Consistent with the Court’s June 30 order, ERISA Co-Lead
Plaintiffs filed their Consolidated Complaint on July 30, 2004.
5. The Consolidated Complaint named as defendants the Royal Dutch
Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Jeroen van der
Veer, Philip Watts, Walter van de Vijver, Judy Boynton and Pervis Thomas, Jr. Van der
Veer was subsequently dismissed from the Action.
6. As discussed more fully below, after the Court denied Defendants’
request to stay discovery in this Action until such time as discovery proceeded in the
Securities Action, ERISA Co-Lead Plaintiffs served their first request for production of
documents. Defendants provided a written response to the request raising certain
objections and produced responsive, non-privileged documents with respect to which
Defendants had no objection.
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7. Defendants filed motions to dismiss the claims in this Action,
which ERISA Co-Lead Plaintiffs opposed. Reply memoranda were filed on February 8,
2005 and the motions were set to be heard.
8. In light of the settlement discussions taking place between ERISA
Co-Lead Plaintiffs and Defendants, the Court agreed to continue the hearing on the
pending motions to dismiss.
B. Procedural History of the Texas Action
1. In March 2004, one of the ERISA Co-Lead Plaintiffs in this Action
– Gordon Lancaster – filed a putative class action against the Royal Dutch Petroleum
Company, Jeroen van der Veer, Philip Watts and Pervis Thomas, Jr. in the United States
District Court for the Southern District of Texas. In an April 28, 2004 order, Lancaster’s
counsel – Wechsler Harwood LLP – was appointed Lead ERISA Counsel in the Texas
Action.
2. In May 2004, a second putative class action was filed in the United
States District Court for the Southern District of Texas against the Royal Dutch
Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Jeroen van der
Veer, Philip Watts, Pervis Thomas, Jr. and the trustees of certain of the ERISA Plans that
are the subject of this Action.
3. In a May 26, 2004 order, the second putative class action filed in
the United States District Court for the Southern District of Texas was transferred to the
Texas court in which the Texas Action was pending and the Texas court consolidated it
into the Texas Action.
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4. Pursuant to an August 19, 2004 order entered by the Texas Court
in the Texas Action, the Texas Action was stayed pending resolution of this Action.
C. Settlement Discussions
1. Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel had an
initial discussion regarding the possibility of settlement prior to the Defendants’ filing of
their motions to dismiss. Plaintiffs’ Co-Lead Counsel indicated their desire to conduct
discovery prior to engaging in settlement discussions. The Parties thus agreed to allow
the Action to proceed further prior to determining whether to engage in any such
discussions.
2. As discussed in Section II.D below, the Parties engaged in
extensive document discovery starting in October 2004. As discussed in Section II.A.7
above, motions to dismiss were fully briefed and presented to the Court as of February 8,
2005.
3. Soon after Defendants’ reply briefs regarding the motion to
dismiss were submitted, the Parties, through Plaintiffs’ Co-Lead Counsel and
Defendants’ Lead Counsel, discussed again whether there was any interest in engaging in
settlement discussions and determined that a meeting to discuss the possibility of
settlement was appropriate. That meeting took place on March 3, 2005.
4. The March 3, 2005 meeting was a contentious, arm’s-length
discussion regarding the possibility of settlement of the claims in this Action. Plaintiffs’
Co-Lead Counsel set out certain requirements that would have to be included in any
settlement agreement, including adoption of new procedures (consistent with ERISA) by
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the United States corporate entities that sponsor the ERISA Plans. Although the meeting
was fruitful in setting out the broad parameters of a potential settlement, there remained
numerous terms on which further negotiation was required, including the amount of
settlement relief. Both sides agreed it would be beneficial to continue the settlement
discussions.
5. A second meeting was held on April 6, 2005. At this meeting,
arm’s-length discussions between Plaintiffs’ Co-Lead Counsel and Defendants’ Lead
Counsel (who were accompanied by senior in-house legal counsel for the Companies)
continued, focusing particularly on the amount of settlement relief. After extensive
negotiation on the various issues and extensive analysis of the merits of the claims and
the quantum of damages, Plaintiffs’ Co-Lead Counsel agreed to accept settlement relief
in the amount of $90 million as part of a more comprehensive set of settlement terms.
ERISA Co-Lead Plaintiffs’ further required that Defendants pay expenses associated with
providing notice of the settlement to Class Members and that they reimburse Plaintiffs’
Co-Lead Counsel for up to $1 million of their out-of-pocket expenses, which amount will
be in addition to and in excess of the $90 million. While numerous issues remained to
be resolved following the April 6, 2005 meeting – including the completion of additional
discovery, the negotiation of all other terms of the settlement and of the implementing
documents, and the Corporate Defendants’ consideration of certain legal issues –
Defendants’ Lead Counsel and Plaintiffs Co-Lead Counsel agreed that if these issues
could be resolved, a settlement based upon such settlement relief would be likely
agreeable to both Defendants and ERISA Co-Lead Plaintiffs.
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6. Over the course of the next three and one-half months, Plaintiffs’
Co-Lead Counsel and Defendants’ Lead Counsel negotiated the remaining provisions of
the settlement, exchanged drafts of a settlement agreement and other implementing
documents, and conducted additional discovery. Those efforts resulted in the drafting
and execution of this Settlement Agreement.
D. Discovery
1. On April 8, 2004, one of the counsel that has been designated
Plaintiffs’ Co-Lead Counsel requested relevant ERISA Plan materials pursuant to ERISA
section 104(b)(4). Defendants’ Lead Counsel responded in May 2004, providing
(pursuant to a confidentiality letter agreement) responsive documents consistent with the
requirements of ERISA section 104(b)(4), including summary plan descriptions, manuals
and brochures.
2. At the initial case management conference held before Magistrate
Judge G. Donald Haneke on August 4, 2004, Plaintiffs’ Co-Lead Counsel indicated their
intention immediately to seek production of certain documents from Defendants,
including production of all documents provided by any Defendant to a governmental
entity in connection with an inquiry or investigation being conducted by any such entity
as a result of the circumstances and events that give rise to the claims in this Action.
3. Judge Haneke agreed to Defendants’ request to brief the Court on
whether all merits discovery other than that specifically related to the ERISA Plans
should be stayed until such time as discovery began in the Securities Action.
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4. After reviewing the letter submissions by the Parties on this issue,
Judge Haneke issued an August 30, 2004 order denying Defendants’ request to stay all
such discovery.
5. ERISA Co-Lead Plaintiffs served their first request for production
of documents and Defendants provided a written response to that request in October
2004. Defendants began producing responsive, non-privileged documents to ERISA Co-
Lead Plaintiffs pursuant to the Confidentiality Agreement soon thereafter. By the time
settlement discussion began in March 2005, Defendants had produced nearly 800 boxes
of documents (comprised of substantially in excess of 1,000,000 pages of documents,
largely in electronic format), which ERISA Co-Lead Plaintiffs have reviewed.
6. Subsequent to the April 6, 2005 settlement meeting, Plaintiffs’ Co-
Lead Counsel conducted additional discovery pursuant to the Confidentiality Agreement,
including requesting, receiving and reviewing additional documents, conducting
depositions or interviews of certain of the Defendants, and conducting depositions of
several of the trustees for the ERISA Plans. These depositions and interviews were
conducted in New York, New York, London, England and The Hague, The Netherlands.
E. Settlement Considerations
1. Based upon their discovery, investigation and evaluation of the
facts and law relating to the claims alleged in the Consolidated Complaint, ERISA Co-
Lead Plaintiffs and Plaintiffs’ Co-Lead Counsel have agreed to settle the Action and
release the Releasees pursuant to the terms of this Settlement Agreement after
considering, among other things: (i) the substantial benefits to Class Members under the
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terms of this Settlement Agreement; (ii) the attendant risks of litigation, especially in
complex actions such as this, as well as the difficulties and delays inherent in such
litigation; (iii) the desirability of consummating this Settlement Agreement promptly in
order to provide relief to Class Members – some of whom have already retired and thus
are dependent on proceeds from their ERISA Plans – as soon as possible; and (iv) ERISA
Co-Lead Plaintiffs’ and Plaintiffs’ Co-Lead Counsel’s belief that the settlement is fair,
reasonable and adequate, and in the best interests of Class Members.
2. Defendants expressly deny the wrongdoing alleged in the
Consolidated Complaint (as well as that alleged in any of the complaints in the putative
class actions that have been filed alleging claims under ERISA, including, without
limitation, those in the Texas Action) and do not concede any wrongdoing or liability in
connection with any facts or claims that have been or could have been alleged against
them in the Action, but nevertheless consider it desirable for the Action to be settled and
dismissed because the proposed settlement will, among other things: (i) bring to an end
the substantial expense, burdens and uncertainties associated with continued litigation of
the claims made in the Consolidated Complaint; (ii) finally put to rest those claims and
the underlying matters; and (iii) confer substantial benefits upon Class Members and
Defendants including, without limitation, the avoidance of further expense and disruption
due to the pendency and defense of the Action. Neither this Settlement Agreement, the
offer of this Settlement Agreement nor compliance with this Settlement Agreement shall
constitute or be construed to be an admission by Defendants or Releasees, or any of them
individually, of any wrongdoing or liability.
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3. Except as provided in Section VIII.A.3, this Settlement
Agreement shall not be admissible in any judicial, administrative or other proceeding or
cause of action as an admission of liability or for any purpose other than to enforce the
terms of this Settlement Agreement or any related insurance release.
III. TERMS AND CONDITIONS OF THE SETTLEMENT
A. Monetary Relief
1. Payment of Notice Expenses
a. Within two (2) Business Days following the Execution
Date, the Corporate Defendants shall advance or cause to be advanced to the
Administrator the Initial Notice Payment to be used by the Administrator exclusively for
Notice Expenses. Within thirty (30) Business Days of receipt of any invoice from the
Administrator for Notice Expenses in excess of the Initial Notice Payment, the Corporate
Defendants shall pay or cause to be paid such Notice Expenses; provided however, that
prior to undertaking any task pursuant to which Notice Expenses in excess of Three
Hundred Thousand Dollars ($300,000) will be incurred in any thirty (30) day period, the
Administrator shall advise Corporate Defendants (or their designees) of the amount of
Notice Expenses that will be incurred in connection with such task and shall seek the
approval of the Corporate Defendants’ (or their designees’) to undertake such task, which
approval shall not be unreasonably withheld.
2. Payments Following the Approval Date
a. Subject to the terms (including, without limitation, the
repayment provisions) set out in Section IX below, within thirty (30) Business Days
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following the later of the Approval Date or such other date on which the Court issues an
order setting out the Attorneys’ Fees and Expenses Award, the Corporate Defendants
shall pay or cause to be paid to Plaintiffs’ Co-Lead Counsel the Attorneys’ Fees and
Expenses Award and the Reimbursement Amount plus interest on the Attorneys’ Fees
and Expenses Award and the Reimbursement Amount calculated at the Interest Rate for
the period starting the day following the Approval Date until such date as the Attorneys’
Fees and Expenses Award and the Reimbursement Amount are paid to Plaintiffs’ Co-
Lead Counsel.
3. Payments Following the Final Settlement Date
a. Within thirty (30) Business Days following the Final
Settlement Date, the Defendants shall pay or cause to be paid into the Cash Settlement
Account the Cash Settlement Payment plus interest on the Cash Settlement Payment
calculated at the Interest Rate for the period starting the day following the Approval Date
until such date as the Cash Settlement Payment is paid into the Cash Settlement Account.
4. The Cash Settlement Account
a. The funds in the Cash Settlement Account shall not be
distributed except in accordance with this Settlement Agreement or by order of the Court.
b. All necessary steps to enable the Cash Settlement Account
to be a Qualified Settlement Fund shall be taken, including the timely filing by the
Plaintiffs’ Co-Lead Counsel and/or their agent of all elections and statements required
pursuant to Treas. Reg. §§ 1.468B-0 through 1.468B-5, or any other relevant statutes,
regulations or published rulings now or hereafter enacted or promulgated, for all taxable
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years in which the Cash Settlement Account is in existence, beginning with the date of its
establishment. Plaintiffs’ Co-Lead Counsel shall be the “administrator” of the Qualified
Settlement Fund for purposes of the taxation of the Cash Settlement Account under
Treas. Reg. §§ 1468B-0 through 1.468B-5. Plaintiffs’ Co-Lead Counsel and/or their
agent, on behalf of the Cash Settlement Account, shall file or cause to be filed on a timely
basis all required federal, state and local tax returns and shall pay taxes in a manner
consistent with treatment of the Cash Settlement Account as a Qualified Settlement Fund,
as provided in Treas. Reg. §§ 1.468B-0 through 1.468B-5. The Parties agree that the
Cash Settlement Account shall be treated as a Qualified Settlement Fund from the earliest
date possible and that they agree and elect to treat the Cash Settlement Account as a
Qualified Settlement Fund from the earliest date possible. Defendants agree to provide
promptly the statement described in Treasury Regulation § 1.468B-3(e). Except as
provided in this Settlement Agreement, in no event shall Defendants have any
responsibility whatsoever for filing other required statements, or tax returns, or for paying
the costs associated therewith, the payment of any taxes due, or the expenses of
administration of the Cash Settlement Account.
c. Upon request by Defendants’ Lead Counsel, Plaintiffs’ Co-
Lead Counsel shall promptly provide to Defendants’ Lead Counsel all information
requested in connection with any tax returns a Releasee must file or with any other report
or filing a Defendant or Releasee must make with respect to the Cash Settlement
Amount.
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5. The Net Cash Settlement Amount
a. Administrative Expenses and all Tax Expenses (if any)
shall be paid out of the Cash Settlement Payment.
b. The balance of the monies remaining in the Cash
Settlement Account after the expenses and payments described in Section II.A.5.a above
are paid shall constitute the Net Cash Settlement Amount and shall be distributed
pursuant to Section III.A.6 below.
6. Distribution of the Net Cash Settlement Amount
a. The Net Cash Settlement Amount shall be distributed
pursuant to the Plan of Allocation.
b. No person or entity shall have any claim against ERISA
Co-Lead Plaintiffs, Plaintiffs’ Co-Lead Counsel, Plaintiffs’ Liaison Counsel the
Administrator, Defendants, Defendants’ Counsel or any Releasee, or any agent of any of
the foregoing with respect to or arising out of any distributions or lack thereof made
under the Plan of Allocation, this Settlement Agreement or orders of the Court.
c. It is understood and agreed to by the Parties that,
notwithstanding any other provision of this Settlement Agreement, the proposed Plan of
Allocation is not a part of this Settlement Agreement, and no order or proceedings
relating to the Plan of Allocation shall operate to modify, terminate or cancel this
Settlement Agreement or affect the finality of the Judgment or any other orders entered
by the Court giving effect or pursuant to this Settlement Agreement.
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d. Releasees and/or their respective counsel, including, but
not limited to, Defendants’ Counsel, shall have no role in, responsibility for, or liability
with respect to the Plan of Allocation, the form, substance, method or manner of
allocation, administration, or distribution of the Net Cash Settlement Amount, any tax
liability that a Class Member may incur as a result of this Settlement Agreement, or as a
result of any action taken pursuant to this Settlement Agreement, the administration or
distribution of the Net Cash Settlement Amount, or (except as specifically set out in
Section II.A.4.b above) the maintenance of the Cash Settlement Account as a Qualified
Settlement Fund.
e. Unless otherwise ordered by the Court, Class Members
shall look solely to the Net Cash Settlement Amount for settlement and satisfaction of all
Released Claims. Except as expressly provided by this Settlement Agreement, under no
circumstances will any of the Parties or any Releasee be responsible for the payment of
any fees, costs, expenses or other funds associated with or arising out of the settlement
contemplated by this Settlement Agreement. Except as expressly provided by this
Settlement Agreement, the Plan of Allocation or order of the Court, no Class Member
shall have any interest in the Net Cash Settlement Amount or any portion of the Net Cash
Settlement Amount.
f. To the extent that any monies remain in the Cash
Settlement Account after the Administrator has caused distributions to be made to all
Class Members, such monies shall be disbursed at such time and in such manner as
directed and ordered by the Court.
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7. Plan of Allocation
a. ERISA Co-Lead Plaintiffs shall propose to the Court, and
seek the Court’s approval of, a Plan of Allocation pursuant to which the Net Cash
Settlement Amount shall be distributed to Class Members, which Plan of Allocation shall
be substantially in the form found in Exhibit H to this Settlement Agreement.
b. All initial determinations as to the extent to which each
Class Member will participate in the distribution of the Net Cash Settlement Amount
shall be made by Plaintiffs’ Co-Lead Counsel, their designees or agents, the
Administrator, or such other persons or entities as Plaintiffs’ Co-Lead Counsel may, in
their sole discretion, deem necessary or advisable to assist them in the administration of
this Settlement Agreement. The administration of the Cash Settlement Amount and the
Net Cash Settlement Amount, and decisions on all disputed questions of law and fact
with respect to distribution of the Net Cash Settlement Amount, shall remain under the
jurisdiction of the Court.
B. Other Relief
1. The Corporate Defendants additionally agree that that they will
cause the procedures set forth in Exhibit G to this Settlement Agreement to be
implemented by the Shell Oil Company Board of Directors.
IV. NOTICE TO THE CLASS
A. Mailing of the Notice
1. Subject to the requirements of the Preliminary Approval Order and
no later than thirty-five (35) days before the Fairness Hearing (unless the Court directs
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otherwise), the Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel shall cause to
be mailed, by first-class mail, postage prepaid, a copy of the Notice (i) to each person in
the Class who can be identified by reasonable effort and (ii) in cases of pending litigation
(other than the Securities Action), arbitration or other proceeding, or any other Claim,
against any Releasee involving any Released Claims, to all legal counsel known by
Plaintiffs’ Co-Lead Counsel or Defendants’ Lead Counsel to represent a Class Member;
provided that Defendants’ Lead Counsel shall notify Plaintiffs’ Co-Lead Counsel of all
such legal counsel of which it is aware upon the Execution Date. Defendants’ shall
cooperate in the administration of the Settlement Agreement to the extent reasonably
necessary to effectuate its terms, including the Corporate Defendants’ obligation to
provide or cause to be provided without charge all information from the ERISA Plans’
records concerning the identity of Class Members and their transactions during the Class
Period.
2. No later than thirty-five (35) days before the Fairness Hearing
(unless the Court directs otherwise), Plaintiffs’ Co-Lead Counsel and the Administrator
shall cause the Notice to be published on their respective websites, and the Corporate
Defendants’ shall cause the Notice to be published on their respective websites or on the
websites of one or more of their subsidiaries, as appropriate.
3. The Notice shall conform to all applicable requirements of the
Federal Rules of Civil Procedure, the United States Constitution (including the Due
Process Clause), the Rules of the Court and any other applicable law, and shall otherwise
be in the manner and form agreed upon by the Parties and approved by the Court.
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4. A copy of the Notice, substantially in the form found in Exhibit B
to this Settlement Agreement, shall be submitted to the Court for its approval at the time
the Parties submit this Settlement Agreement to the Court pursuant to Section X below.
B. Summary Notice
1. No later than thirty-five (35) days before the Fairness Hearing, the
Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel shall cause the Summary
Notice to be published on three consecutive days in all editions of The Wall Street
Journal and in the Houston Chronicle, the Financial Times, the Newark Star Ledger and
USA Today.
2. A copy of the Summary Notice, substantially in the form found in
Exhibit C to this Settlement Agreement, shall be submitted to the Court for its approval at
the time the Parties submit this Settlement Agreement to the Court pursuant to Section X
below.
V. RETENTION OF ADMINISTRATOR
A. Pursuant to the Preliminary Approval Order, Plaintiffs’ Co-Lead Counsel,
with the approval of Defendants’ Lead Counsel (which approval shall not be
unreasonably withheld), shall retain an Administrator to help implement the settlement
contemplated by this Settlement Agreement.
B. The Administrator may assist with various tasks, including, without
limitation: (i) mailing or arranging for the mailing of the Notice to Class Members;
(ii) arranging for publication of the Summary Notice; (iii) publication of the Notice on
the Administrator’s website; (iv) answering written inquiries from Class Members and/or
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forwarding such inquiries to Plaintiffs’ Co-Lead Counsel or their designee(s);
(v) providing additional copies of the Notice, upon request, to Class Members;
(vi) calculating and arranging for allocation of the Net Cash Settlement Amount to Class
Members consistent with the Plan of Allocation; and (vii) otherwise assisting Plaintiffs’
Co-Lead Counsel and Defendants’ Lead Counsel with administration and implementation
of this Settlement Agreement.
C. As ordered by the Court in the Preliminary Approval Order, the
Administrator shall establish and staff with representatives knowledgeable about this
Settlement Agreement and the Plan of Allocation a toll-free telephone number for
responding to inquiries from Class Members about this Settlement Agreement and any
issues relating to the Actions. Plaintiffs’ Co-Lead Counsel and Defendants’ Lead
Counsel shall agree to a protocol for operating the telephone number consistent with
industry standards, and Plaintiffs’ Co-Lead Counsel shall require the Administrator to
operate the toll-free telephone number consistent with such agreed-upon standard.
VI. RIGHT TO COMMUNICATION WITH CLASS MEMBERS
A. Plaintiffs’ Co-Lead Counsel and ERISA Co-Lead Plaintiffs acknowledge
and agree that the Companies have the right to communicate orally and in writing with,
and to respond to inquiries from, Class Members, including, without limitation:
1. communications between Class Members and representatives of
the Companies whose responsibilities include administering the ERISA Plans; and
2. communications as may be necessary to implement the terms of
this Settlement Agreement and to conduct the Companies’ normal business.
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B. Subject to Section XIII.B below, Plaintiffs’ Co-Lead Counsel, Plaintiffs’
Liaison Counsel, ERISA Co-Lead Plaintiffs, Defendants’ Counsel and Defendants agree
to cooperate in good faith to ensure that any comments about or descriptions of the
settlement contemplated by this Settlement Agreement are balanced, fair and accurate.
VII. OBJECTIONS TO SETTLEMENT
A. Any Class Member who wishes to object to the fairness, reasonableness or
adequacy of this Settlement Agreement, to the Plan of Allocation, to any term(s) of this
Settlement Agreement, or to the proposed Attorneys’ Fees and Expenses Award must
both serve on Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel (as identified in the
Notice) and file with the Court a statement of his or her objection(s); provided that any
such objection must be received by Plaintiffs’ Lead Counsel, Defendants’ Counsel and
the Court by no later than ten (10) days before the Fairness Hearing, or as the Court may
otherwise direct.
B. The Class Member’s statement of objection shall provide evidence of the
objector’s membership in the Class and shall state the specific reason(s), if any, for each
such objection made by the Class Member, including any legal support the Class Member
wishes to bring to the Court’s attention and any evidence the Class Member wishes to
introduce in support of such objection.
C. Any Class Member may file an objection on his or her own, or through an
attorney hired at his or her own expense. If a Class Member hires an attorney to
represent him or her in connection with filing an objection, the attorney must both serve
on Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel (as identified in the Notice) and
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file with the Court a notice of appearance; provided that any such notice of appearance
must be received by Plaintiffs’ Lead Counsel, Defendants’ Counsel and the Court by no
later than ten (10) days before the Fairness Hearing, or as the Court may otherwise direct.
D. Class Members and any attorneys hired at their expense may obtain access
to the discovery materials in this Action for the sole purpose of assessing this Settlement
Agreement, but must first agree in writing to be bound by the Stipulation of
Confidentiality. A copy of the Stipulation of Confidentiality proposed by the Parties
(attached as Exhibit D to this Settlement Agreement) will be submitted to the Court for
its approval at the time the Parties submit this Settlement Agreement to the Court
pursuant to Section X below.
1. The discovery materials in this Action shall be made available to a
Class Member (or his or her attorney (if any)) up to the date of the Fairness Hearing for
inspection by appointment during normal business hours at the office of Milberg Weiss
Bershad & Schulman LLP in New York, New York.
E. Plaintiffs’ Co-Lead Counsel shall inform Defendants’ Counsel promptly
of any request by Class Members or their attorneys for access to the discovery materials,
and identify for Defendants’ Counsel any such Class Member (as well as his or her
attorney (if any)) who requests access to the discovery materials and the date on which
such access is requested. Plaintiffs’ Co-Lead Counsel shall promptly provide
Defendants’ Counsel with a copy of the executed Stipulation of Confidentiality.
F. Any Class Member who files and serves a written objection pursuant to
this Section VII – and only such Class Members – may appear at the Fairness Hearing,
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either in person or through counsel hired at the Class Member’s expense, to object to the
fairness, reasonableness or adequacy of this Settlement Agreement, to the Plan of
Allocation or to any term(s) of this Settlement Agreement (including, without limitation,
the proposed Attorneys’ Fees and Expenses Award). Class Members or their attorneys
intending to make an appearance at the Fairness Hearing must both serve on Plaintiffs’
Co-Lead Counsel and Defendants’ Counsel (as identified in the Notice) and file with the
Court a notice of intention to appear; provided that any such notice of intention to appear
must be received by Plaintiffs’ Lead Counsel, Defendants’ Counsel and the Court by no
later than ten (10) days before the Fairness Hearing, or as the Court may otherwise direct.
G. Any Class Member who fails to comply with any of the provisions of this
Section VII shall waive and forfeit any and all rights he or she may otherwise have to
appear separately at the Fairness Hearing and/or to object to this Settlement Agreement,
and shall be bound by all the terms of this Settlement Agreement and by all proceedings,
orders and judgments in this Action.
VIII. RELEASES AND WAIVERS, AND ORDER OF DISMISSAL
A. Releases and Waivers
1. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section VIII.A.3 below, on and after the
Final Settlement Date, and after the Cash Settlement Payment has been made, any and all
Class Members (including those who are parties to any other litigation, arbitration or
other proceeding pending on the Final Settlement Date to the extent such litigation,
arbitration or other proceedings is based upon a Released Claim and is brought against
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any or all of the Releasees ), on behalf of themselves, their heirs, executors,
administrators, beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R.
Part 210.1-02.b), assigns, any person or entity claiming by or through any of the Class
Members and any person or entity representing any or all Class Members, for good and
sufficient consideration, the receipt and adequacy of which are hereby acknowledged,
shall be deemed to have, and by operation of law and of the Judgment shall have, fully,
finally, and forever released, relinquished, settled, and discharged all Released Claims
against each and every one of the Releasees, ERISA Co-Lead Plaintiffs, Plaintiffs’ Co-
Lead Counsel and Defendants’ Counsel, including such Released Claims as already have
been, could have been or could be asserted in any pending litigation, arbitration, or other
proceeding, whether formal or informal.
2. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section VIII.A.3 below, on and after the
Final Settlement Date, and after the Cash Settlement Payment has been made, all Parties,
on behalf of themselves, their heirs, executors, administrators, predecessors, successors,
affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or entity claiming
by or through any of the Parties and any person or entity representing any or all Parties,
for good and sufficient consideration, the receipt and adequacy of which are hereby
acknowledged, shall be deemed to have, and by operation of law and of the Judgment
shall have, fully, finally, and forever released, relinquished, settled, and discharged any
and all Settled Parties’ Claims.
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3. Notwithstanding Sections VIII.A.1 and VIII.A.2 above, nothing in
the Judgment shall bar any action or claim by the Parties to enforce the terms of this
Settlement Agreement or the Judgment.
4. Notwithstanding Section VIII.A.1 above, nothing in the Judgment
shall bar any additional or independent claim that a Class Member or any ERISA Plan
may have with respect to his, her or its purchase, sale, holding, exchange, acquisition,
disposal, transfer or any other Investment Decision involving Royal Dutch Securities in
connection with any ERISA Plan during the Class Period to the extent – and only to such
extent – such additional or independent claim is based solely upon federal or state
securities laws (and not upon ERISA), whether such claim is considered to be made
directly on behalf of the Class Member or on behalf of the ERISA Plan in which the
Class Member participated or had an interest; provided however, that under no
circumstances shall a Class Member or an ERISA Plan be allowed to obtain relief in
excess of any damage (if any) he, she or it suffered as a consequence of any purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan; provided further
that to the extent any damages award in a proceeding based upon federal or state
securities laws would result in such Class Member or ERISA Plan receiving relief in
excess of any damages suffered, the amount of damages awarded in the proceeding based
upon federal or state securities laws may be reduced by the amount that would be in
excess of the damages actually suffered by the Class Member or ERISA Plan.
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5. Subject to Section VIII.A.3 above, with respect to any and all
Released Claims, the Parties stipulate and agree that, by the terms of the Judgment, each
Class Member on behalf of himself or herself, his or her heirs, executors, administrators,
beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-
02.b), assigns, any person or entity claiming by or through any of the Class Members and
any person or entity representing any or all Class Members shall have and be deemed to
have waived and relinquished, to the fullest extent permitted by law, any and all
provisions, rights and benefits conferred by Section 1542 of the California Civil Code or
any federal, state, or foreign law, rule, regulation or common law doctrine that is similar,
comparable, equivalent, or identical to, or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, Class Members understand and agree that,
subject to Section VIII.A.3 above, the Release is intended to include all Released Claims
Class Members have or may have, including Released Claims that are Unknown Claims.
ERISA Co-Lead Plaintiffs hereby stipulate and agree on behalf of all Class Members that
they shall have and be deemed to have, on or after Final Settlement Date and after the
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Cash Settlement Payment has been made, fully, finally and forever settled and released
any and all Released Claims whether or not they are Unknown Claims.
6. With respect to any and all Settled Parties’ Claims, each Party on
behalf of himself, herself or itself, its heirs, executors, administrators, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or
entity claiming by or through any of the Parties and any person or entity representing any
or all Parties stipulates and agrees that, by the terms of the Judgment, each such
individual and entity shall have and be deemed to have waived and relinquished, to the
fullest extent permitted by law, any and all provisions, rights and benefits conferred by
Section 1542 of the California Civil Code or any federal, state, or foreign law, rule,
regulation or common law doctrine that is similar, comparable, equivalent, or identical to,
or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, each individual and entity providing a release
in Section VIII.A.2 above understands and agrees that the Release is intended to include
all Claims and/or Unknown Claims that he, she or it has or may have that relate in any
way to any or all acts directly or indirectly relating to the prosecution, defense or
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settlement of the Actions or to this Settlement Agreement, including such Claims that are
Unknown Claims. Each such individual and entity hereby stipulates and agrees that he,
she or it shall have and be deemed to have, on or after Final Settlement Date, and after
the Cash Settlement Payment has been made, fully, finally and forever settled and
released any and all Claims that relate in any way to any or all acts directly or indirectly
relating to the prosecution, defense or settlement of the Actions, or to this Settlement
Agreement whether or not they are Unknown Claims.
7. The releases and waivers contained in this Section VIII were
separately bargained for and are essential elements of this Settlement Agreement.
B. Order of Dismissal
1. The Parties will seek and obtain from the Court a Judgment and an
Order Approving Settlement as further described in Section XI below. The Judgment and
Order Approving Settlement shall, among other things, (i) approve this Settlement
Agreement as fair, reasonable and adequate, (ii) dismiss the Action with prejudice,
(iii) require Plaintiffs Co-Lead Counsel to obtain dismissal of the Texas Action, (iv) enter
the Bar Order and (v) incorporate the Release.
IX. ATTORNEYS’ FEES AND EXPENSES
A. Attorneys’ Fees and Expenses
1. Plaintiffs’ Co-Lead Counsel will make an Attorneys’ Fees and
Expenses Application at the time of the Fairness Hearing, which application shall seek an
award of attorneys’ fees not to exceed thirty-three and one-third percent (33 1/3 %) of the
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Cash Settlement Amount and seek reimbursement of expenses in an amount not to
exceed One Million Dollars ($1,000,000).
2. The Attorneys’ Fees and Expenses Award and Reimbursement
Amount shall be paid pursuant to Section II.A.2 above.
3. If this Settlement Agreement is properly and timely terminated in
accordance with the terms of this Settlement Agreement, then Plaintiffs Co-Lead Counsel
shall, within five (5) Business Days following such termination, return to the Corporate
Defendants the Attorneys’ Fees and Expenses Award and the Reimbursement Amount
with interest at the Interest Rate to be paid on both the Attorneys’ Fees and Expenses
Award and the Reimbursement Amount, such interest to be calculated beginning as of the
day the Attorneys’ Fees and Expenses Award and the Reimbursement Amount were paid
pursuant to Section II.A.2 above and ending as of the day the Attorneys’ Fees and
Expenses Award and the Reimbursement Amount are returned to the Corporate
Defendants pursuant to this Section IX.A.3.
4. If, after entry of the Judgment and Order Approving Settlement,
the Attorneys’ Fees and Expenses Award is reduced, then Plaintiffs’ Co-Lead Counsel
shall, within five (5) Business Days, pay the Reduction Amount as follows:
a. To the extent the Reduction Amount is attributable in
whole or part to attorneys’ fees, then Plaintiffs’ Co-Lead Counsel shall pay to the Cash
Settlement Account the Fee Reduction plus interest at the Interest Rate, such interest to
be calculated beginning as of the day the Attorneys’ Fees and Expenses Award was
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reduced and ending as of the day the Fee Reduction is paid into the Cash Settlement
Account pursuant to this Section IX.4.b;
b. To the extent the Reduction Amount is attributable in
whole or part to out-of-pocket expenses, then Plaintiffs’ Co-Lead Counsel shall pay the
Expense Reduction as follows:
(1) Plaintiffs’ Co-Lead Counsel shall pay to the Cash
Settlement Account that portion of the Expense Reduction attributable to expenses paid
as part of the Attorneys’ Fees and Expenses Award Payment plus interest on that portion
of the Expense Reduction at the Interest Rate, such interest to be calculated beginning as
of the day the Attorneys’ Fees and Expenses Award was reduced and ending as of the day
the Expenses Reduction is paid into the Cash Settlement Account pursuant to this Section
IX.A.4.b(1);
(2) If any amount of Expense Reduction remains after
Plaintiffs Co-Lead Counsel have paid the Expense Reduction as required by Section
IX.A.4.b(1) above, Plaintiffs’ Co-Lead Counsel shall pay to the Corporate Defendants the
balance of the Expense Reduction remaining after such payment plus interest on such
balance at the Interest Rate, such interest to be calculated beginning as of the day the
Attorneys’ Fees and Expenses Award was reduced and ending as of the day the balance
of any Expenses Reduction is paid to the Corporate Defendants pursuant to this Section
IX.A.4.b(2).
5. Plaintiffs’ Co-Lead Counsel’s obligation to return any of the
Attorneys’ Fees and Expenses Award and/or the Reimbursement Amount, as described in
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Sections IX.A.3 and IX.A.4 above, shall be evidenced by a promissory note, which shall
be executed on behalf of the following firms, and individually by the members of the
executive committees of such firms: Wechsler Harwood LLP, Scott + Scott, LLC and
Milberg Weiss Bershad & Schulman LLP. In addition, as a condition of receiving the
Attorneys’ Fees and Expenses Award, Wechsler Harwood LLP, Scott + Scott, LLC and
Milberg Weiss Bershad & Schulman LLP, on behalf of themselves and each of their
partners and/or shareholders, agree that the law firms and their partners and/or
shareholders are subject to the jurisdiction of the Court for the purpose of enforcing this
Section IX.A.5. Without limitation, Wechsler Harwood LLP, Scott + Scott, LLC and
Milberg Weiss Bershad & Schulman LLP, and each of their partners and/or shareholders
agree that the Court may, upon application of Defendants, on notice to Wechsler
Harwood LLP, Scott + Scott, LLC and Milberg Weiss Bershad & Schulman LLP,
summarily issue orders, including, but not limited to, judgments and attachment orders,
and may make appropriate findings of and/or sanctions for contempt, against them or any
of them (if applicable) should Wechsler Harwood LLP, Scott + Scott, LLC and Milberg
Weiss Bershad & Schulman LLP fail timely to repay any amounts pursuant to this
Section IX.A.5.
B. No Releasee shall be liable or obligated to pay any fees, expenses, costs or
disbursements to, or incur any expense on behalf of, any person or entity (including,
without limitation, ERISA Co-Lead Plaintiffs), directly or indirectly, in connection with
the Actions or this Settlement Agreement, except as expressly provided for in this
Settlement Agreement.
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X. PRELIMINARY APPROVAL HEARING AND PRELIMINARY APPROVAL ORDER
A. Within ten (10) days following the Execution Date, the Parties shall
submit this Settlement Agreement to the Court and apply for a Preliminary Approval
Order substantially in the form of Exhibit A to this Settlement Agreement.
XI. FINAL APPROVAL, AND JUDGMENT AND ORDER APPROVING SETTLEMENT
A. After the Fairness Hearing, and upon the Court’s approval of this
Settlement Agreement, the Parties shall seek and obtain from the Court a Judgment and
an Order Approving Settlement substantially in the form of Exhibits F and E,
respectively, to this Settlement Agreement.
XII. MODIFICATION OR TERMINATION OF THIS SETTLEMENT AGREEMENT
A. The terms and provisions of this Settlement Agreement may be amended,
modified or expanded by agreement of the Parties; provided however, that, after entry of
the Judgment and Order Approving Settlement, the Parties may by written agreement
effect any amendments, modifications or expansions of this Settlement Agreement and its
implementing documents (including all exhibits to this Settlement Agreement) without
notice to or approval by the Court only if such changes are not materially inconsistent
with the Court’s Judgment and Order Approving Settlement and do not materially limit
the rights of Class Members under this Settlement Agreement; provided further that a
decision by ERISA Co-Lead Plaintiffs to modify the Plan of Allocation shall not be
deemed to be a change that materially limits the rights of Class Members under this
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Settlement Agreement to the extent such modification involves an amount equal to or less
than ten percent (10%) of the Net Cash Settlement Amount.
B. Subject to Sections XII.C, XII.D and XII.E below, this Settlement
Agreement will terminate at the sole option and discretion of Defendants’ Lead Counsel
or Plaintiffs’ Co-Lead Counsel if (i) the Court, or any appellate court(s), rejects, modifies
or denies approval of any portion of this Settlement Agreement or the proposed
settlement that the terminating Party reasonably and in good faith determines is material,
including, without limitation, the terms of relief, the Bar Order, the findings of the Court,
the provisions relating to notice, the definition of the Class and/or the terms of the
Release, (ii) the Court, or any appellate court(s), does not enter or completely affirm, or
alters or expands, any portion of the Preliminary Approval Order, the Judgment or the
Order Approving Settlement, or any of the Court’s findings of fact or conclusions of law
as proposed by the Parties, including the Bar Order, that the terminating Party reasonably
and in good faith believes is material or (iii) the United States Department of Labor
(a) initiates any action or proceeding (whether formal or informal) against any Releasee
in connection with a Released Claim or (b) seeks to intervene in the Action ; provided
that any decision to terminate the Settlement Agreement pursuant to this Section XII.B
shall be subject to review by the Court as to whether the decision was reasonable and
made in good faith. The terminating Party must exercise the option to withdraw from and
terminate this Settlement Agreement, as provided in this Section XII.B, no later than ten
(10) days after receiving actual notice of the event prompting the termination.
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C. Notwithstanding the preceding Section XII.B, neither ERISA Co-Lead
Plaintiffs nor Plaintiffs’ Co-Lead Counsel may terminate this Settlement Agreement on
the basis of the Attorneys’ Fees and Expenses Award ordered, or as modified, by the
Court or any appellate court(s).
D. If an option to withdraw from and terminate this Settlement Agreement
arises pursuant to the terms set out above, (i) neither Defendants nor ERISA Co-Lead
Plaintiffs 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.
E. If this Settlement Agreement is terminated pursuant to the terms set out
above, then:
1. this Settlement Agreement shall be null and void and shall have no
force or effect, and no party to this Settlement Agreement shall be bound by any of its
terms, except for the terms set out in this Section XII.E;
2. this Settlement Agreement, all of its provisions, and all
negotiations, statements and proceedings relating to it shall be without prejudice to the
rights of Defendants, or ERISA Co-Lead Plaintiffs or any other Class Member, all of
whom shall be restored to their respective positions existing immediately before the
execution of this Settlement Agreement, except with respect to the payment of Notice
Expenses, which payment is described in Section III.A.1 above;
3. Releasees and their current and former predecessors, successors,
heirs, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), agents, attorneys,
representatives and assigns expressly and affirmatively reserve all defenses, arguments
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and motions as to all claims that have been or might later be asserted in the Actions,
including (without limitation) any argument that either of the Actions may not be
litigated as a class action;
4. ERISA Co-Lead Plaintiffs and their current and former
predecessors, successors, heirs, affiliates (as defined in 17 C.F.R. Part 210.1-02.b),
agents, attorneys, representatives and assigns expressly and affirmatively reserve all
motions as to, and arguments in support of, all claims that have been or might later be
asserted in the Actions, including (without limitation) any argument concerning class
certification;
5. neither this Settlement Agreement, nor the fact of its having been
made, shall be admissible or entered into evidence for any purpose whatsoever;
6. to the extent any monies are deposited in the Cash Settlement
Account, ERISA Co-Lead Plaintiffs shall promptly distribute (or cause to be distributed)
such monies (including any interest that has accrued thereon) to the Corporate
Defendants, and Plaintiffs’ Co-Lead Counsel shall return the Attorneys’ Fees and
Expenses Award and the Reimbursement Amount pursuant to Section IX.A.3.
7. ERISA Co-Lead Plaintiffs may retain all Confidential Information
(as that term is defined in the Confidentiality Agreement) that they obtained pursuant to
the Confidentiality Agreement, which Confidential Information shall remain subject to
the terms of the Confidentiality Agreement; and
8. nothing in this Settlement Agreement shall create any obligation
on the part of any Party to pay any other Party’s fees or expenses.
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XIII. GENERAL MATTERS AND RESERVATIONS
A. Except as provided in this Section XIII.A, or as may otherwise be required
by law, the Parties and their counsel agree to keep the contents of this Settlement
Agreement and all related negotiations confidential until the Execution Date and, with
respect to any initial press release announcing the settlement described in this Settlement
Agreement, to attempt in good faith to coordinate the timing of such press release(s);
provided however, that this Section XIII.A shall not prevent earlier disclosure of such
information by Defendants’ Counsel or Plaintiffs’ Co-Lead Counsel to any person or
entity (such as experts, courts, regulatory entities and/or Administrators) to whom the
Parties agree disclosure must be made to effectuate the terms and conditions of this
Settlement Agreement; provided further that Defendants shall be able to make, without
prior notification to, or review or approval by, Plaintiffs’ Co-Lead Counsel, any and all
disclosures regarding this Settlement Agreement that they believe may be required or
appropriate to the Securities and Exchange Commission, the United States Department of
Labor, the Department of the Treasury, the Department of Justice, the Internal Revenue
Service and/or any other regulatory body, the Companies’ insurers, independent auditors,
accountants, attorneys, financial institutions or lenders when disclosure to such
individuals or entities is required in the normal course of a Defendant’s business;
provided however, that any and all such disclosures shall be balanced, fair and accurate.
B. ERISA Co-Lead Plaintiffs and Plaintiffs’ Co-Lead Counsel agree that the
terms and provisions of the Confidentiality Agreement shall continue to be in effect.
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C. Each Defendant contributing to the Cash Settlement Amount warrants as
to himself, herself or itself that, as to any payments to be made by or on behalf of him,
her or it, as of the Execution Date, he, she or it was not insolvent nor will the payment
required to be made by or on behalf of him, her or it render such Defendant insolvent
within the meaning of and/or for the purposes of the United States Bankruptcy Code,
including sections 101 and 547 thereof. This warranty is made by each such Defendant
and not by such Defendant’s counsel.
D. If a case is commenced with respect to any Defendant contributing to the
Cash Settlement Amount (or any insurer contributing funds to the Cash Settlement
Amount on behalf of any Defendant) under Title 11 of the United States Code
(Bankruptcy), or a trustee, receiver or conservator is appointed under any similar law, and
in the event of the entry of a final order of a court of competent jurisdiction determining
the transfer of the Cash Settlement Amount, or any portion thereof, to or on behalf of
ERISA Co-Lead Plaintiffs or the Class by or on behalf of such Defendant 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 to the Cash
Settlement Account by others, then, at the election of Plaintiffs’ Co-Lead Counsel, the
Parties shall jointly move the Court to vacate and set aside the Judgment and the Order
Approving Settlement entered in connection with the Settlement Agreement, which
Judgment and Order Approving Settlement shall be null and void, and the Parties shall be
restored to their respective positions in the litigation as of the date a day prior to the
Execution Date, any cash amounts in the Cash Settlement Account shall be returned as
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provided in Section XII.E above, and the Attorneys’ Fees and Expenses Award and the
Reimbursement Amount shall be returned as provided in Section IX.A.3.
E. The Parties intend the Settlement to be a final and complete resolution of
all disputes asserted or which could be asserted by the Class Members against the
Releasees with respect to the Released Claims. Accordingly, ERISA Co-Lead Plaintiffs
and Defendants agree not to assert in any forum that the litigation was brought by
Plaintiffs or defended by Defendants in bad faith or without a reasonable basis. The
Parties hereto shall assert no claims of any violation of Rule 11 of the Federal Rules of
Civil Procedure relating to the prosecution, defense or settlement of the Action. The
Parties agree that the amount paid and the other terms of the Settlement were negotiated
at arm’s-length in good faith by the Parties, and reflect a settlement that was reached
voluntarily after consultation with experienced legal counsel.
F. Brad N. Friedman, Robert I. Harwood, David R. Scott and Joseph J.
DePalma represent that each is authorized to enter into this Settlement Agreement on
behalf of ERISA Co-Lead Plaintiffs, and, as authorized by the Court’s July 30, 2004
order, on behalf of Class Members, and any other attorneys, including, but not limited to,
Plaintiffs’ Co-Lead Counsel and Plaintiffs’ Liaison Counsel, who have represented or
who now represent ERISA Co-Lead Plaintiffs or Class Members in the Action with
respect to the claims in the Action and/or the Released Claims
G. Each of the ERISA Co-Lead Plaintiffs, through a duly authorized
representative, represents and certifies that he (i) has agreed to serve as a representative
of the Class proposed to be certified herein; (ii) is willing, able and ready to perform all
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of the duties and obligations as a representative of the Class, including, but not limited to,
being available for, and involved in, discovery and fact finding; (iii) has read the
pleadings in the Action, or has had the contents of such pleadings described to him; (iv)
has been kept apprised of the progress of the Action and the settlement negotiations
among the Parties, and has either read this Settlement Agreement, including the exhibits
attached to this Settlement Agreement, or has received a description of it from Plaintiffs’
Co-Lead Counsel, and has agreed to its terms; (v) has consulted with Plaintiffs’ Co-Lead
Counsel about the Action, this Settlement Agreement and the obligations of a
representative of the Class; (vi) has authorized Plaintiffs’ Co-Lead Counsel to execute
this Settlement Agreement on his behalf; and (vii) will serve as a representative of the
Class until the terms of this Settlement Agreement are effectuated, this Settlement
Agreement is terminated in accordance with its terms, or the Court at any time
determines that such Co-Lead Plaintiff cannot represent the Class.
H. Beat W. Hess and Curtis R. Frasier represent that they are authorized to
enter into this Settlement Agreement on behalf of The “Shell” Transport and Trading
Company, p.l.c. and any other attorneys who have represented or who now represent The
“Shell” Transport and Trading Company, p.l.c. in the Action or in any of the putative
class actions that have been consolidated into the Action.
I. Rob Routs and Michiel Brandjes represent that they are authorized to to
enter into this Settlement Agreement on behalf of the Royal Dutch Petroleum Company
and any other attorneys who have represented or who now represent the Royal Dutch
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Petroleum Company in the Action or in any of the putative class actions that have been
consolidated into the Action.
J. Lewis J. Liman represents that he is authorized to enter into this
Settlement Agreement on behalf of Pervis Thomas, Jr., and any other attorneys who have
represented or who now represent Mr. Thomas in the Action or in any of the putative
class actions that have been consolidated into the Action.
K. Bruce M. Bettigole represents that he is authorized to enter into this
Settlement Agreement on behalf of Philip Watts, and any other attorneys who have
represented or who now represent Mr. Watts in the Action or in any of the putative class
actions that have been consolidated into the Action.
L. Nancy J. Sennett represents that she is authorized to enter into this
Settlement Agreement on behalf of Judy Boynton, and any other attorneys who have
represented or who now represent Ms. Boynton in the Action or in any of the putative
class actions that have been consolidated into the Action.
M. Jonathan L. Sulds represents that he is authorized to enter into this
Settlement Agreement on behalf of Walter van de Vijver, and any other attorneys who
have represented or who now represent Mr. van de Vijver in the Action or in any of the
putative class actions that have been consolidated into the Action.
N. This Settlement Agreement sets forth the entire agreement among the
Parties with respect to its subject matter and may not be altered or modified except by a
written instrument executed by Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel.
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O. The Parties expressly acknowledge that there are no agreements,
arrangements or understandings other than those expressed or referred to in this
Settlement Agreement among or between them. In entering into this Settlement
Agreement, no Party has relied upon any representation or warranty not set forth
expressly herein.
P. This Settlement Agreement and any ancillary agreements shall be
governed by and interpreted according to the laws of the State of New Jersey, excluding
its conflict of laws provisions.
Q. Any action arising under or to enforce this Settlement Agreement shall be
commenced and maintained only in this Court.
R. Whenever this Settlement Agreement requires or contemplates that a Party
shall or may give notice to the other, notice shall be provided by facsimile and/or next-
day (excluding Saturday and Sunday) express delivery service as follows and shall be
deemed effective upon such facsimile transmission, or delivery, to the facsimile number
or address, as the case may be, below:
1. If to the Corporate Defendants, then to:
Ralph C. Ferrara, Esq. Ann M. Ashton, Esq. LeBoeuf, Lamb, Greene & MacRae LLP 1875 Connecticut Avenue, N.W. Suite 1200 Washington, D.C. 20009 Telephone: (202) 986-8000 Facsimile: (202) 986-8102
2. If to Philip Watts, then to:
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Bruce M. Bettigole, Esq. Crowell & Moring, LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: (202) 645-2500 Facsimile: (202) 628-5116
3. If to Judy Boynton, then to:
Nancy J. Sennett, Esq. Rebecca E. Wickhem, Esq. Foley & Lardner, LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Telephone: (414) 271-2400 Facsimile: (414) 297-4900
4. If to Walter van der Vijver, then to:
Jonathan L. Sulds, Esq. Akin Gump Strauss Hauer & Feld LLP 590 Madison Avenue New York, New York 10022-2524 Telephone: (212) 872-1000 Facsimile: (212) 872-1002
5. If to Pervis Thomas, Jr., then to:
Lewis J. Liman, Esq. Jason Gottlieb, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 Telephone: (212) 225-2000 Facsimile: (212) 225-3999
6. If to ERISA Co-Lead Plaintiffs, then to:
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Brad N. Friedman, Esq. Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza New York, New York 10019 Telephone: (212) 594-5300 Facsimile: (212) 868-1229
Robert I. Harwood, Esq. Wechsler Harwood LLP 488 Madison Avenue, 8th Floor New York, New York 10022 Telephone: (212) 935-7400 Facsimile: (212) 753-3630
David R. Scott, Esq. Scott + Scott, LLC 108 Norwich Avenue Colchester, Connecticut 06415 Telephone: (860) 537-5537 Facsimile: (806) 537-4432
S. All time periods set forth herein shall be computed in calendar days unless
otherwise expressly provided. In computing any period of time prescribed or allowed by
this Settlement Agreement or by order of court, the day of the act, event, or default from
which the designated period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, a Sunday or a legal
holiday, or, when the act to be done is the filing of a paper in Court, a day on which
weather or other conditions have made the office of the Clerk of the Court inaccessible,
in which event the period shall run until the end of the next day that is not one of the
aforementioned days. As used in this Section, “legal holiday” includes New Year’s Day,
the observance of the Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial
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Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,
Christmas Day and any other day appointed as a federal or New Jersey state holiday.
T. The Parties reserve the right, subject to the Court’s approval, to make any
reasonable extensions of time that might be necessary to carry out any of the provisions
of this Settlement Agreement.
U. All Parties agree that this Settlement Agreement was drafted by counsel
for the Parties at arm’s-length, and that no parol or other evidence may be offered to
explain, construe, contradict or clarify its terms, the intent of the Parties or their counsel,
or the circumstances under which this Settlement Agreement was made or executed. Nor
shall there be any presumption for or against any Party that drafted all or any portion of
this Settlement Agreement.
V. This Settlement Agreement, offer of this Settlement Agreement and
compliance with this Settlement Agreement shall not constitute or be construed as an
admission by any or all of the Releasees of any wrongdoing or liability. This Settlement
Agreement is to be construed solely as a reflection of the Parties’ desire to facilitate a
resolution of the Claims in the Consolidated Complaint and of the Released Claims. In
no event shall this Settlement Agreement, any of its provisions, or any negotiations,
statements or court proceedings relating to its provisions in any way be construed as,
offered as, received as, used as or deemed to be evidence of any kind in the Actions, any
other action, or any judicial, administrative, regulatory or other proceeding, except a
proceeding (i) to enforce this Settlement Agreement, (ii) to enforce any insurance
contract that may provide coverage or indemnity with respect to the claims made in this
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Action or (iii) involving a Companies’ indemnification of any Releasees in connection
with Released Claims. Without limiting the foregoing, neither this Settlement Agreement
nor any related negotiations, statements or court proceedings shall be construed as,
offered as, received as, used as or deemed to be evidence or an admission or concession
of any liability or wrongdoing whatsoever on the part of any person or entity, including,
but not limited to, Defendants, or as a waiver by Defendants of any applicable defense or
as a waiver by ERISA Co-Lead Plaintiffs or the Class of any claims, causes of action or
remedies.
W. No opinion or advice concerning the tax consequences of the proposed
settlement to individual Class Members is being given or will be given by Defendants’
Counsel and/or Plaintiffs’ Co-Lead Counsel; nor is any representation or warranty in this
regard made by virtue of this Settlement Agreement. The Notice will direct Class
Members to consult their own tax advisors regarding the tax consequences of the
proposed settlement and any tax reporting obligations they may have with respect thereto.
Each Class Member’s tax obligations, and the determination thereof, are the sole
responsibility of the Class Member, and it is understood that the tax consequences may
vary depending on the particular circumstances of each individual Class Member.
X. The Parties, their successors and assigns, and their attorneys undertake to
implement the terms of this Settlement Agreement in good faith and to use good faith in
resolving any disputes that may arise in the implementation of the terms of this
Settlement Agreement.
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Y. The Parties, their successors and assigns, and their attorneys agree to
cooperate fully with one another in seeking Court approval of this Settlement Agreement
and to use all reasonable efforts to effect the prompt consummation of this Settlement
Agreement and the proposed settlement.
Z. This Settlement Agreement may be signed in counterparts, each of which
shall constitute a duplicate original. Execution by facsimile shall be fully and legally
binding on a Party.
AA. All Releasees who are not Parties are intended third-party beneficiaries
who are entitled to enforce the terms of the Release set forth in Section VIII above.
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EXHIBIT A
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES AND PRELIMINARILY APPROVING PROPOSED SETTLEMENT
In March and April 2004, four putative class actions were filed against the Royal Dutch
Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Jeroen van der Veer,
Philip Watts and Pervis Thomas, Jr. alleging violations of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq.
On June 30, 2004, this Court consolidated the putative class actions into the above captioned case, In re Royal Dutch/Shell Transport ERISA Litigation, Civil Action Number 04-
1398 (the “Action”). On that same date, the Court appointed Gordon Lancaster, John Tristan,
Jose Valadez, Oscar Pena, Hernaldo Rivera, John R. Rosenboom and Scott Franklin, Jr. as Co-
Lead Plaintiffs, and the law firms of Wechsler Harwood LLP, Scott + Scott, LLC and Milberg
Weiss Bershad & Schulman LLP as Plaintiffs’ Co-Lead Counsel.1
On July 30, 2004, Co-Lead Plaintiffs in this Action filed their Consolidated Complaint
(the “Complaint”) naming as defendants the Royal Dutch Petroleum Company, The “Shell”
Transport and Trading Company, p.l.c., Jeroen van der Veer, Philip Watts, Walter van de Vijver,
1. Unless otherwise specifically defined herein, the capitalized terms in this Order have the same meaning as attributed to them in the Settlement Agreement.
Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 2 of 14
Judy Boynton and Pervis Thomas, Jr. (collectively the “Defendants”). The Complaint asserted
claims based on ERISA on behalf of a proposed class of all persons and entities who participated
or had an interest in one or more of the ERISA Plans. Van der Veer was subsequently dismissed
from the Action.
On November 5, 2004, Defendants filed motions to dismiss the claims in this Action. On
December 17, 2004, Co-Lead Plaintiffs filed an opposition to these motions. The moving
Defendants filed their reply memoranda on February 8, 2005.
Prior to agreeing to a settlement, Co-Lead Plaintiffs conducted substantial discovery,
including (i) reviewing summary plan descriptions, manuals and brochures relating to the ERISA
Plans, (ii) reviewing approximately 800 boxes of documents (comprised of substantially in
excess of 1,000,000 pages of documents) relating to the underlying claims and (iii) conducting
depositions or interviews of relevant individuals, including several of the trustees for the ERISA
Plans.
Following four months of arm’s-length and protracted negotiation, Co-Lead Plaintiffs
and Defendants entered into a Stipulation of Settlement on ____, 2005, the terms of which will
fully settle all claims that have been asserted or that could be asserted in this Action. Attached to
the Stipulation of Settlement as exhibits are the documents necessary to implement the
settlement. The Stipulation of Settlement and its exhibits are collectively referred to in this
Order as the “Settlement Agreement.” If approved, the Settlement Agreement would result in
dismissal of the Action with prejudice, as well as dismissal with prejudice of a parallel action
filed by one of the Co-Lead Plaintiffs in the United States District Court for the Southern District
of Texas.
2 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 3 of 14
On ______, 2005, the Court held a Preliminary Approval Hearing to determine whether,
among other things, preliminarily to certify a class for settlement purposes and to authorize the
issuance of notice to members of the settlement class.
Upon reviewing the Settlement Agreement, and all prior proceedings held in this case,
the application of Co-Lead Plaintiffs, and the matter having come before the Court for the
Preliminary Approval Hearing, it is hereby ORDERED, ADJUDGED AND DECREED as
follows:
1. Class Findings – For purposes of the settlement of the Action (and only for such
purposes, and without an adjudication of the merits), the Court preliminarily finds that the
requirements of the Federal Rules of Civil Procedure, the United States Constitution, the Rules
of the Court and any other applicable law have been met in that:
a. The Class, as defined in paragraph 2 below, is ascertainable from records kept by the Corporate Defendants (or their subsidiaries) and/or their agents, and other objective
criteria, and the Class Members are so numerous that their joinder before the Court would be
impracticable.
b. The commonality requirement of Fed. R. Civ. P. 23(a) is satisfied insofar
as Co-Lead Plaintiffs have alleged numerous questions of fact and law purportedly common to
the Class, including whether Defendants violated provisions of ERISA.
c. Based on Co-Lead Plaintiffs’ allegations that Defendants engaged in
uniform misconduct affecting members of the Class, the Court preliminarily finds that the claims
of Co-Lead Plaintiffs are typical of the claims of the Class, and that Co-Lead Plaintiffs and
Plaintiffs’ Co-Lead Counsel will fairly and adequately protect the interests of the Class, in that
(i) the interests of Co-Lead Plaintiffs and the nature of their alleged claims are consistent with
3 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 4 of 14
those of members of the Class, (ii) there appear to be no conflicts between or among Co-Lead
Plaintiffs and other Class Members, (iii) Co-Lead Plaintiffs have been and appear to be capable
of continuing to be active participants in both the prosecution and the settlement of this Action,
and (iv) Co-Lead Plaintiffs and Class Members are represented by qualified, reputable counsel
who are experienced in preparing and prosecuting large, complicated class actions, including
class actions based upon violations of ERISA.
d. The Court preliminarily finds that, for settlement purposes, (i) the
prosecution of separate actions by individual Class Members would create a risk of
(a) inconsistent or varying adjudications as to individual Class Members that would establish
incompatible standards for the parties opposing the Class or (b) adjudications as to individual
Class Members that would, as a practical matter, be dispositive of the interests of the other
members not parties to the adjudications, or substantially impair or impede those persons’ ability
to protect their interests and (ii) according to the Co-Lead Plaintiffs’ allegations, the parties
opposing the Class have acted or refused to act on grounds generally applicable to those classes,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the Class as a whole (if the Co-Lead Plaintiffs could prove their allegations).
In making these preliminary findings, the Court has considered, among other factors,
(i) the interest of members of the Class in individually controlling the prosecution or defense of
separate actions, (ii) the impracticability or inefficiency of prosecuting or defending separate
actions, (iii) the extent and nature of any litigation concerning these claims already commenced
and (iv) the desirability of concentrating the litigation of the claims in a particular forum.
2. Preliminary Class Certification for Settlement Purposes – Based on the findings set forth in paragraph 1 above, the Court preliminarily certifies the Class for settlement
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purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2). The Class consists of all persons
(“Class” or “Class Members”) who were participants or had an interest in one or more of the
ERISA Plans during the period from December 3, 1999 through April 29, 2004, inclusive (the
“Class Period”); provided that such individuals shall not be Class Members with respect to any
purchase, sale, exchange, acquisition, disposal, transfer or any other Investment Decision involving Royal Dutch Securities outside of and separate from their participation or interest in the ERISA Plans. The Court finds that, for the sole purpose of settlement, and without an adjudication of the merits, the Class is sufficiently well-defined and cohesive. The Class, as preliminarily certified pursuant to Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2), is a non-opt-out class.
3. Findings Regarding Proposed Settlement – The Court finds that (i) the
proposed Settlement Agreement resulted from extensive arm’s-length negotiations and was
concluded only after Plaintiffs’ Co-Lead Counsel conducted broad discovery and the parties had
consulted independent experts about the issues raised by the Complaint and (ii) the Settlement
Agreement is sufficiently fair, reasonable and adequate to warrant sending notice of the Action
and proposed Settlement Agreement to Class Members and holding a full hearing on the proposed settlement.
4. Fairness Hearing – The Court hereby schedules a hearing (the “Fairness
Hearing”) for August 22, 2005 at 10:00 a.m. EDT to consider, among other things:
a. whether this Action should be finally certified as a class action for
settlement purposes;
b. whether the proposed settlement of this Action should be approved as fair,
reasonable and adequate and the Action dismissed with prejudice pursuant to the terms of the
Settlement Agreement;
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c. whether the Notice, Summary Notice and notice methodology
implemented pursuant to the Settlement Agreement (i) constituted the best practicable notice,
(ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Class
Members of the pendency of the Action, of the effect of the Settlement Agreement (including the
Release) of their right to object to the proposed settlement and of their right to appear at the
Fairness Hearing, (iii) were reasonable and constituted due, adequate and sufficient notice to all
persons entitled to notice and (iv) met all applicable requirements of the Federal Rules of Civil
Procedure, the United States Constitution (including the Due Process Clause), the Rules of the
Court and any other applicable law;
d. whether Co-Lead Plaintiffs and Plaintiffs’ Co-Lead Counsel adequately
represented the Class for purposes of entering into and implementing the Settlement Agreement;
e. whether Class Members and their heirs, executors and administrators,
predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns should be bound by the Release set forth in the Settlement Agreement;
f. whether Class Members and their heirs, executors and administrators,
predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns should, subject to certain exclusions set out in the Settlement Agreement, be permanently barred and enjoined from filing, commencing, prosecuting, intervening in, participating in (as class
members or otherwise), or receiving any benefits or other relief from, any other lawsuit,
arbitration or other proceeding or order in any jurisdiction that is based upon, arises out of or
relates to any Released Claim;
g. whether any and all persons and entities should, subject to certain
exclusions set out in the Settlement Agreement, be permanently barred and enjoined from
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organizing any Class Members for the purposes of pursuing as a purported class action
(including seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action) any lawsuit that is based upon, arises out of or relates to any
Released Claim;
h. whether, subject to certain exclusions set out in the Settlement Agreement, a complete bar (the “Bar Order”) should be entered that (i) permanently bars, enjoins and restrains any and all persons and entities from commencing, prosecuting or asserting any claim against any Releasee arising under state law, federal law, foreign law or common law doctrine, however styled, whether for indemnification or contribution or otherwise denominated,
including, without limitation, claims for breach of contract and for misrepresentation, where the
claim is based upon, arises out of, or relates to any Released Claim, whether such claims are
legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued
or un-accrued, including, without limitation, any claim in which a person or entity seeks to
recover from any or all of the Releasees (a) any amounts such person or entity may become liable to pay to any of the Class Members and/or (b) any costs, expenses, or attorneys’ fees from defending any claim by any of the Class Members and (ii) permanently bars, enjoins and restrains all Releasees from commencing, prosecuting or asserting any claim against any person or entity (including any other Releasee) arising under state law, federal law, foreign law or common law doctrine, however styled, whether for indemnification or contribution, or otherwise denominated, including, without limitation, claims for breach of contract and for misrepresentation, where the claim is based upon, arises out of, or relates to any Released Claim, whether such claims are legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued or un-accrued, including, without limitation, any claim in which any
7 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 8 of 14
Releasee seeks to recover from any person or entity, including another Releasee, (a) any amounts
any such Releasee has or may become liable to pay to any of the Class Members and/or (b) any costs, expenses, or attorneys’ fees from defending any claim by any of the Class Members; and
i. whether the application for attorneys’ fees and expenses that will be filed by Plaintiffs’ Co-Lead Counsel should be approved.
5. Notice to Class Members – Notice of the settlement of this Action shall be provided to Class Members as follows:
a. No later than July 18, 2005, the Plaintiffs’ Lead Counsel and Defendants’
Lead Counsel shall cause the Notice in a form substantially as set out in as Exhibit B to the
Settlement Agreement and approved by the Court to be mailed, by first-class mail, postage prepaid, to (i) each person in the Class who can be identified by reasonable effort and (ii) in cases of pending litigation (other than in the case captioned In re Royal Dutch/Shell Transport
Securities Litigation, Civil Action No. 04-374 (JWB)), arbitration or other proceeding, or any other Claim, against any Releasee involving any Released Claims, to all legal counsel known by
Plaintiffs’ Co-Lead counsel or Defendants’ Lead Counsel to represent a Class Member.
b. No later than July 18, 2005, Plaintiffs’ Co-Lead Counsel, the
Administrator and the Corporate Defendants (or their relevant subsidiary(ies)) shall cause the
Notice to be published on their respective websites.
c. No later than July 18, 2005, the Plaintiffs’ Co-Lead Counsel and
Defendants’ Lead Counsel shall cause the Summary Notice in a form substantially as set out in as Exhibit C to the Settlement Agreement and approved by the Court to be published on at least one occasion in the newspapers identified in the Settlement Agreement.
8 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 9 of 14
At or before the Fairness Hearing, the Parties and/or the Administrator shall file with the
Court proof of (i) mailing of the Notice pursuant to paragraph 5.a above, (ii) publication of the
Notice on the websites identified in paragraph 5.b above and (iii) publication of the Summary
Notice pursuant to paragraph 5.c above.
6. Findings Concerning Notice – Having considered the forms and methods of providing notice to Class Members, the Court finds that notice given in the form and manner provided in paragraph 5 above (i) is the best practicable notice and (ii) is reasonably calculated, under the circumstances, to appraise Class Members of the pendency of this Action, of the effect of the Settlement Agreement (including the Release) and of their right to object to the proposed settlement. The Court further finds that the Notice and Summary Notice provided in the
Settlement Agreement are simply written and will be readily understandable by Class Members and that the Notice, Summary Notice and notice methodology are reasonable, constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law.
7. Retention of Administrator – The Court authorizes Plaintiffs’ Co-Lead Counsel to retain, with the approval of Defendants’ Lead Counsel (which approval shall not be unreasonably withheld), an Administrator to help implement the Settlement Agreement, and authorizes such Administrator to assist the Parties in (i) mailing or arranging for the mailing of the Notice to Class Members, (ii) arranging for publication of the Summary Notice,
(iii) arranging for publication of the Notice on the Administrator’s website; (iv) answering written inquiries from Class Members and/or forwarding such inquiries to Plaintiffs’ Co-Lead
9 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 10 of 14
Counsel or their designee; (v) providing additional copies of the Notice, upon request, to Class
Members; (vi) calculating and arranging for the allocation of the Net Cash Settlement Amount to
Class Members consistent with the Plan of Allocation; and (vii) otherwise assisting Plaintiffs’
Co-Lead Counsel and Defendants’ Lead Counsel with administration and implementation of the
Settlement Agreement. The Administrator shall also arrange for and staff a toll-free telephone bank consistent with the standard agreed upon by Plaintiffs’ Co-Lead Counsel and Defendants’
Lead Counsel.
8. Communications with Class Members – The Companies maintain the right to communicate orally and in writing with, and to respond to inquiries from, Class Members, including, without limitation: (i) communications between Class Members and representatives of the Companies whose responsibilities include administering the ERISA Plans; and
(ii) communications as may be necessary to implement the terms of this Settlement Agreement
and to conduct the Companies’ normal business.
9. Objections – Any Class Member who wishes to object to the fairness,
reasonableness or adequacy of the Settlement Agreement, to the Plan of Allocation or to any
term(s) of the Settlement Agreement (including, without limitation, the proposed Attorneys’ Fees
and Expenses Award) must both file with the Court and serve on the counsel identified in the
Notice a statement of his or her objection(s) and the specific reason(s), if any, for such objection(s), including any legal support the Class Member wishes to bring to the Court’s attention and any evidence the Class Member wishes to introduce in support of such objection(s).
A Class Member’s written objection must be received by the Court and the counsel identified in the Notice by no later than August 12, 2005. If a Class Member hires an attorney to represent him or her in connection with filing an objection, the attorney must both file with the Court and
10 Case 2:04-cv-01398-JWB-GDH Document 50-3 Filed 07/08/2005 Page 11 of 14
serve on Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel (as identified in the Notice) a
notice of appearance. Such notice of appearance must be received by the Court and the counsel
identified in the Notice by no later than August 12, 2005.
10. Appearance at Fairness Hearing – Any Class Member who files and serves a
timely, written objection in accordance with paragraph 9 above – and only such Class Members
– may also appear at the Fairness Hearing either in person or through counsel retained at the
Class Member’s expense. Class Members or their attorneys intending to appear at the Fairness
Hearing must both file with the Court and serve on the counsel identified in the Notice a notice
of intention to appear. Such notice of intention to appear must be received by the Court and the
counsel identified in the Notice by no later than August 12, 2005. Any Class Member who does
not timely file and serve a notice of intention to appear in accordance with this paragraph shall
not be permitted to appear at the Fairness Hearing, except for good cause shown.
11. Post-Office Box(es) – Plaintiffs’ Co-Lead Counsel or their designated agents are
directed to establish a post-office box or boxes to be used for receiving any communications
regarding the Settlement Agreement. No one other than the Court, the Clerk of the Court,
Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel, or their designated agents, shall
have access to the post-office box or boxes.
12. Access to Discovery Materials – Any Class Member who wishes to review the
discovery materials in this Action for the purpose of assessing the Settlement Agreement (and for that purpose only), may do so under the terms of the Settlement Agreement and upon execution of the Stipulation of Confidentiality in substantially the form that is attached as Exhibit D to the
Settlement Agreement. The terms of the Stipulation of Confidentiality are hereby incorporated into this Preliminary Approval Order and any breach of the Stipulation of Confidentiality shall
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constitute a violation of this Preliminary Approval Order and may, upon application to this Court by any aggrieved party, result in an order of contempt of Court and/or other sanctions.
13. Preliminary Injunction – All Class Members and their heirs, executors and administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns are preliminarily enjoined from filing, commencing, prosecuting, intervening in, participating in as class members or otherwise, or receiving any benefits or other relief from, any other lawsuit (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)), arbitration or administrative, regulatory or other proceeding or order in any jurisdiction, based on or relating in any way to the Released Claims.
All other persons or entities are preliminarily enjoined from filing, commencing or prosecuting any other lawsuit (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)) as a class action (including by seeking to amend a pending complaint to include class allegations or by seeking class certification in a pending action in any jurisdiction) on behalf of any Class Member(s) if such other lawsuit is based on or relates in any way to the Released Claims. The Court finds that issuance of this preliminary injunction is necessary and appropriate in aid of the Court’s jurisdiction over this Action.
14. Binding Effect – All Class Members and their heirs, executors and administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns will be bound by all proceedings, orders and judgments relating to the Settlement
Agreement, even if such Class Members have previously initiated or subsequently initiate litigation (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)), arbitration or other proceedings, or have any other
Claim against any or all of the Releasees relating to any of the Released Claims.
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15. Service of Papers – Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel shall
serve on each other and on all other parties who have filed notices of appearance, at or before the
Fairness Hearing, any further documents in support of the Settlement Agreement, including responses to any papers filed by Class Members and/or Class Members’ counsel. Plaintiffs’ Co-
Lead Counsel (and any other counsel for Co-Lead Plaintiffs or the Class) and Defendants’
Counsel shall promptly furnish to each other any and all objections, notices of appearance and
notices of intention to appear that may come into their possession, and if not on file with the
Court, shall file such papers with the Court on or before the date of the Fairness Hearing.
16. Termination of Settlement – This Order shall become null and void, and shall be
without prejudice to the rights of the parties, all of whom shall be restored to their respective
positions existing immediately before this Court entered this Order, if (i) the proposed settlement
is not finally approved by the Court, or does not become final, pursuant to the terms of the
Settlement Agreement or (ii) the proposed Settlement Agreement is terminated or does not
become effective in accordance with the terms of the Settlement Agreement for any other reason.
In such event, the proposed Settlement Agreement shall become null and void and be of no
further force or effect, and neither the Settlement Agreement nor any Court’s order regarding the
Settlement Agreement, including this Order, shall be used or referred to for any purpose
whatsoever.
17. Use of Order – This Order shall be of no force or effect if the Settlement
Agreement does not become final and shall not be construed or used as an admission, concession
or declaration by or against Defendants of any fault, wrongdoing, breach or liability. Nor shall
the Order be construed or used as an admission, concession or declaration by or against Co-Lead
Plaintiffs or any Class Member that their claims lack merit or that the relief requested in the
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Complaint is inappropriate, improper or unavailable, or as a waiver by any Party of any defenses or claims he, she or it may have.
18. Continuance of Hearing – The Court reserves the right to continue the Fairness
Hearing without further written notice.
SO ORDERED this ____ day of ______, 2005.
______JOHN W. BISSELL CHIEF JUDGE UNITED STATES DISTRICT COURT
14 Case 2:04-cv-01398-JWB-GDH Document 50-4 Filed 07/08/2005 Page 1 of 11
EXHIBIT B
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT, SETTLEMENT HEARING AND RIGHT TO APPEAR
TO: ALL INDIVIDUALS WHO, FROM DECEMBER 3, 1999 THROUGH APRIL 29, 2004 INCLUSIVE, PARTICIPATED OR HAD AN INTEREST IN THE SHELL PAY DEFERRAL INVESTMENT FUND, THE SHELL PROVIDENT FUND, THE SHELL TRADING SAVINGS PLAN, OR ANY PREDECESSOR OR SUCCESSOR PLAN OR FUND
PLEASE READ THIS NOTICE CAREFULLY. IT HAS BEEN SENT TO YOU TO ADVISE YOU ABOUT THE PROPOSED SETTLEMENT OF THIS ACTION AND YOUR RIGHTS WITH RESPECT TO THE SETTLEMENT.
THIS NOTICE IS NOT AN OPINION BY THE COURT AS TO THE MERITS OF ANY OF THE CLAIMS OR DEFENSES ASSERTED BY ANY PARTY IN THIS ACTION. THE STATEMENTS MADE IN THIS NOTICE ARE NOT FINDINGS OF THE COURT.
Case 2:04-cv-01398-JWB-GDH Document 50-4 Filed 07/08/2005 Page 2 of 11
WHAT THIS NOTICE CONTAINS Page No. 1. Why did you receive this notice? _
2. What is a class action? _
3. Who are the parties in this class action? _
4. Are you a member of the class? _
5. What is this lawsuit about? _
6. What does the proposed settlement provide? _
a. What is the Cash Settlement Account? _
b. What fees and expenses will be deducted from the Cash Settlement Amount? _
c. What will you receive under the proposed settlement? _
d. How will the settlement be distributed?
e. Will the settlement have tax consequences for you? _
f. What will be the legal effect of the settlement if it is approved by the Court?_
g. Can the parties change or terminate the settlement once it is approved? _
7. What are your options? _
a. If the settlement agreement is approved, what do you have to do to collect any money to which you are entitled pursuant to its terms? _
b. What if you want to object to the proposed settlement? _
c. Can you ask to be excluded from participating as a Class Member? _
8. Do you need to hire your own attorney? _
9. Will there be a hearing in court about this proposed settlement? _
10. Is there counsel representing the class? _
11. How will counsel for the class be paid? _
12. Where can you get additional information? _
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1. Why did you receive this notice?
You have received this notice because it appears that you participated or had an interest in the Shell Pay Deferral Investment Fund, the Shell Provident Fund, the Shell Trading Savings Plan, or a predecessor or successor plan or fund (collectively, the “Plans”) during the period of December 3, 1999 through April 29, 2004, inclusive (the “Class Period”). These Plans are employee benefit plans sponsored by Shell Oil Company or one of its United States-based affiliates. As someone who may have participated in or had an interest in one or more or these Plans during the Class Period, you may be a member of a group of individuals, called a “class” on whose behalf this lawsuit – which is known as a class action – has been brought.
A settlement has been reached in this class action. The Federal Rules of Civil Procedure and an order entered by the United States District Court for the District of New Jersey (the “Court”) require that this notice be sent to you to describe the proposed settlement and the process by which the Court will consider whether to approve the proposed settlement. If the settlement is approved by the Court, you may be eligible to receive monetary relief under the terms of the settlement.
2. What is a class action?
A class action is a lawsuit in which one or more persons sue on behalf of other persons who have similar claims. The people in the group on whose behalf the class action is brought are called Class Members. The settlement of a class action lawsuit determines the rights of the entire class. For this reason, the settlement of a class action must be approved by a judge.
3. Who are the parties in this class action?
In March and April 2004, four class actions were filed in the United States District Court for the District of New Jersey. The Court consolidated the four actions into this single class action (the “Action”) and appointed Gordon Lancaster, John Tristan, Jose Valadez, Oscar Pena, Hernaldo Rivera, John R. Rosenboom and Scott Franklin, Jr. as Co-Lead Plaintiffs. Co-Lead Plaintiffs filed a complaint in the Action naming as defendants the Royal Dutch Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Philip Watts, Walter van de Vijver, Judy Boynton and Pervis Thomas, Jr. (collectively, the Defendants”). Jeroen van der Veer was also named in the complaint, but was subsequently dismissed from the Action.
One of Co-Lead Plaintiffs in this case – Gordon Lancaster – also filed a class action in the United States District Court for the Southern District of Texas and a second class action filed in the Texas court was consolidated into Mr. Lancaster’s class action. Mr. Lancaster was appointed lead counsel in the Texas class action. Mr. Lancaster agreed to stay the Texas action pending the resolution of this Action.
This notice discusses a proposed settlement that has been reached by Co-Lead Plaintiffs and Defendants in this Action. If approved by the Court, the settlement will settle all claims that
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have been raised or that could have been raised in the Action, as well as the claims that have been raised or that could have been raised in the Texas class action. Both this Action and the Texas action will be dismissed with prejudice.
4. Are you a member of the class?
By order dated July 8, 2005, the Court preliminarily decided that the lawsuit may proceed as a class action for settlement purposes. The class consists of all individuals who were participants or had an interest in one or more of the Plans during the Class Period. Records for the Plans indicate that you may fall within this definition.
5. What is this lawsuit about?
Co-Lead Plaintiffs’ claims arise out of the January 9, 2004 announcement by the corporate defendants that certain of their oil and gas reserves would be recategorized. Co-Lead Plaintiffs allege that the stock of the Royal Dutch Petroleum Company – which was an investment option available to participants in the Plans – was inflated as a result of inappropriate reserve categorizations.
Co-Lead Plaintiffs allege that Defendants were fiduciaries of the Plans during the Class Period and thus owed certain fiduciary duties to the Plans pursuant to the provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Fiduciaries are persons or institutions who manage money or property for another and who must exercise a standard care imposed by law – in this case ERISA. ERISA is a federal statute that was enacted to protect employee benefit plans by establishing standards of conduct, responsibility and obligations for fiduciaries of employee benefit plans, and by providing for appropriate remedies and sanctions. Co-Lead Plaintiffs further allege that Defendants knew or should have known that Royal Dutch Petroleum Company stock was inflated and that Defendants breached their fiduciary duties to the Plans by failing either to inform participants that the stock value was inflated by certain incorrectly categorized reserves or to remove the stock as an investment option available to participants.
The Defendants deny the allegations made against them and have filed motions to dismiss the Action. Because the parties began settlement discussions, the Court agreed to postpone a decision on the motions to dismiss. The Court has not made any determination as to the merits of the claims made by Co-Lead Plaintiffs or the defenses raised by Defendants. If the settlement is approved, the Court will not make any such determination. This notice does not imply that there has been or would be any finding of violation of the law or that relief in any form or recovery in any amount would be awarded if the Action was not settled. Nor does it imply that Defendants’ defenses to the claims would have been successful. Both sides have agreed to the settlement to ensure a resolution and to provide benefits to class members.
6. What does the proposed settlement provide?
If the settlement is approved by the Court, Defendants will pay $90,000,000 (the “Cash Settlement Amount”) to an account created and maintained by Co-Lead Plaintiffs and their counsel (the “Cash Settlement Account”). The Cash Settlement Amount (less attorneys’ fees and certain expenses, as discussed in Section 6.b below) will be distributed to all eligible plan
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participants pursuant to a plan of allocation (the “Plan of Allocation”) prepared by Co-Lead Plaintiffs and approved by the Court. In addition, Defendants will pay up to $1,000,000 to cover Co-Lead Plaintiffs’ counsel’s out-of-pocket expenses and will pay the costs incurred in providing notice of the settlement to Class Members. If the settlement is approved, the corporate defendants will also require their subsidiary that appoints fiduciaries with respect to the Plans (Shell Oil Company) to adopt (or cause to be adopted) specific procedures regarding the monitoring and training of individuals appointed to be ERISA fiduciaries.
In addition, if the settlement is approved, Class Members will release all claims that have been raised or that could have been raised in the Action, as well as the claims that have been raised or that could have been raised in the Texas class action, with respect to all of the people and entities that are included in the release that is contained in the settlement agreement (see the more detailed discussion of the release set out in Section 6.f below, as well as the copy of the release that is attached as an Appendix to this notice). Both this Action and the Texas action will be dismissed with prejudice.
a. What is the Cash Settlement Account?
The Cash Settlement Account is an interest-bearing account that Co-Lead Plaintiffs and their counsel will create and maintain. The Cash Settlement Amount (described in Section 6 above) will be deposited into this account and will (after certain expenses are paid out of it, as described in Section 6.b below) be distributed to eligible participants in the Plans.
b. What fees and expenses will be deducted from the Cash Settlement Amount?
Co-Lead Plaintiffs’ legal fees will be deducted from the Cash Settlement Amount. Expenses incurred by Co-Lead Plaintiffs’ counsel will not be deducted from the Cash Settlement Amount, but expenses of up to $1,000,000 will be paid separately by the Defendants. (The amount of fees and expenses that Co-Lead Plaintiffs’ counsel will request is described in Section 11 below.) All expenses associated with administering the settlement (other than the cost of providing notice of the settlement to Class Members) will be deducted from the Cash Settlement Amount. The balance remaining in the Cash Settlement Account after these fees and expenses are deducted (the “Net Cash Settlement Amount”) will be distributed to eligible participants in the Plans.
c. What will you receive under the proposed settlement?
If the Court approves the settlement and Co-Lead Plaintiffs’ proposed Plan of Allocation (and that approval becomes final and no longer subject to appeal), the Net Cash Settlement Amount will be distributed pursuant to the Plan of Allocation, which is attached to this Notice as Appendix B. The terms of the Plan of Allocation as described in Appendix may be modified in connection with, among other things, a ruling by the Court or an objection filed by a Class Member.
Further details about the Plan of Allocation may be obtained by calling 1-800-____, writing to [Administrator’s name and address] or visiting [Administrator’s website].
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d. How will the settlement be distributed?
If the settlement is approved by the Court and you are a participant in one or more of the Plans and are eligible to receive relief in connection with this settlement (see Section 4 above), your share of the Net Cash Settlement Amount (as calculated pursuant to the Plan of Allocation) will be deposited into your Plan account.
e. Will the settlement have tax consequences for you?
Your receipt of funds under the settlement of this Action may have tax consequences for you. Those tax consequences may vary, depending on your individual circumstances. No party to this lawsuit or their counsel can advise you about any tax consequences that your receipt of settlement funds may have for you.
You may wish to consult your own tax advisor to determine if any potential federal, state, local, foreign or other tax consequences will arise related to your receipt of settlement funds from this lawsuit.
f. What will be the legal effect of the settlement if it is approved by the Court?
If the settlement is approved by the Court, the parties will seek the entry of a Judgment and an Order Approving Settlement, which, among other things, will:
(1) provide that the settlement is fair, reasonable and adequate;
(2) finally certify the class for settlement purposes;
(3) dismiss the Action with prejudice, meaning that no Class Member – including you – will be able to bring another lawsuit or proceeding against any of the people or entities released under the terms of the settlement agreement based upon the claims that have been raised or that could have been raised in the Action;
(4) incorporate as part of the Order Approving Settlement the release contained in the settlement agreement (the “Release”);
(5) direct the Co-Lead Plaintiffs to dismiss with prejudice the class action in Texas;
(6) permanently bar Class Members from filing or participating in any lawsuit or other legal action arising from or related to any and all claims that have been raised or that could have been raised;
(7) enter a bar order (the “Bar Order”) that will prevent:
(a) any person or entity from commencing, prosecuting or asserting any claim against any person or entity released under the terms of the settlement agreement (including any claim for indemnification or contribution) where the claim is based on a claim that is released under the settlement;
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(b) any person or entity released under the terms of the settlement agreement from commencing, prosecuting or asserting any claim against any person or entity (including any claim for indemnification or contribution) where the claim is based on a claim that is released under the settlement;
(8) award attorneys’ fees and expenses to Co-Lead Plaintiffs’ counsel; and
(9) retain jurisdiction over all matters relating to the administration, enforcement and interpretation of the settlement.
You may object to the Bar Order in writing and, provided you properly submit a notice of intention to appear, you may speak at the Fairness Hearing as to why you think the Bar Order should be not entered by the Court.
As noted, if the settlement is approved, the Court will incorporate the Release contained in the settlement agreement into its Order Approving the Settlement. The Release describes the claims that will be released by Class Members, as well as the identity of the people and entities who will be released. The full text of the Release (as well as the text of relevant definitions) is attached as Appendix A to this notice. YOU ARE ENCOURAGED TO CAREFULLY REVIEW THE TERMS OF THE RELEASE AND THE DEFINITIONS.
g. Can the parties change or terminate the settlement once it is approved?
Once the settlement is approved, the parties will be able to change the settlement without further Court approval only if (i) all parties agree in writing to do so, (ii) the change is not materially inconsistent with the Judgment and Order Approving the Settlement entered by the Court and (iii) the change does not materially limit the rights of Class Members under the settlement agreement.
Prior to final approval of the settlement, one or more of the parties can terminate the settlement agreement if, other than with respect to Co-Lead Plaintiffs’ application for attorney fees and expenses, (i) the Court (or any appellate court) rejects, modifies or denies approval of any portion of the proposed settlement that the party seeking to terminate the settlement agreement reasonably and in good faith determines is material or (ii) the Court (or any appellate court) does not enter or completely affirm, or alters or expands, any portion of any order or judgment requested by the parties and the party seeking to terminate the settlement reasonably and in good faith believes that the Court’s (or appellate court’s) action is material.
If the settlement is terminated, each party and each Class Member will be in the position he or she was in before the settlement agreement was entered into, and the settlement agreement will have no legal effect. If the settlement is terminated, you will not receive the benefits that are described in this notice.
7. What are your options?
If you are a member of the class (see Section 4 above) you may object to the proposed settlement (as described in Section 7.b below).
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a. If the settlement agreement is approved, what do you have to do to collect any money to which you are entitled pursuant to its terms?
You do NOT need to do anything to receive the benefits of the settlement agreement. If you are a Class Member and if the proposed settlement is approved by the Court (and that approval becomes final and not subject to appeal), you will receive the benefits of the settlement as described in this notice (see Section 6 above). The way in which the monetary relief from the settlement agreement will be calculated and distributed to eligible participants is discussed in Sections 6.c and 6.d below.
b. What if you want to object to the proposed settlement?
If you are a Class Member (see Section 4 above), you may object to the proposed settlement, any term of the settlement agreement, the Plan of Allocation or the application by Co-Lead Plaintiffs for fees and reimbursement of expenses. Your objection must be in writing and must provide evidence of the objector’s membership in the class. The written objection should additionally state the specific reason(s), if any, for your objection, including any legal support that you wish to bring to the Court’s attention and any evidence that you wish to introduce in support of your objection. Your written objection (and any support for it) must be received by the Court and the following counsel by August 12, 2005:
For Defendants:
Ralph C. Ferrara, Esq. Ann M. Ashton, Esq. LeBoeuf, Lamb, Greene & MacRae L.L.P. 1875 Connecticut Avenue, N.W. Suite 1200 Washington, D.C. 20009
For Co-Lead Plaintiffs and the Class:
Brad N. Friedman, Esq. Robert I. Harwood, Esq. David R. Scott, Esq. Milberg Weiss Bershad & Wechsler Harwood LLP Scott + Scott, LLC Schulman LLP 488 Madison Avenue 108 Norwich Avenue One Pennsylvania Plaza 8th Floor Colchester, Connecticut 06415 New York, New York 10019 New York, New York 10022
If you hire an attorney to represent you in connection with making an objection, your attorney must file with the Court and serve on the counsel identified above a notice of appearance. The notice of appearance must be received by the Court and the identified counsel by August 12, 2005. If you hire an attorney to represent you in connection with making an objection, you will be responsible for all fees and expenses that the attorney incurs on your behalf.
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If (and only if) you make a written objection to the settlement as set out above, you may choose to speak at the hearing (see Section 9 below), either in person or through an attorney hired at your own expense, to present your objection to the court. Your failure to attend the hearing will not prevent the Court from considering your objection. If you (or your attorney) intend to speak at the Fairness Hearing, you must file with the Court and serve on the counsel identified above a notice of intention to appear. The notice of intention to appear must be received by the Court and by the identified counsel by August 12, 2005.
If you wish to review the discovery materials in this Action for the purpose of assessing the Settlement Agreement (and for that purpose only), you may do so under the terms of the Settlement Agreement and a Stipulation of Confidentiality that has been entered by the Court. Upon your (or your attorney’s) execution of the Stipulation of Confidentiality, you (or your attorney) will be allowed access to the discovery materials by appointment during regular business hours at the office of Milberg Weiss Bershad & Shulman LLP, One Pennsylvania Plaza, New York, New York 10019.
c. Can you ask to be excluded from participating as a Class Member?
In some class action lawsuits class members have the right to exclude themselves from the class; other class actions lawsuits do not allow class members to exclude themselves. Because of the federal rules and applicable legislation under which this class would be certified if it was adjudicated, the Court has determined that it would not be appropriate for Class Members in this Action to be permitted to exclude themselves. If the Court approves the settlement, your only remedies will be those contained in the proposed settlement agreement. This means that if the settlement agreement is approved and you are Class Member, you will, if eligible, receive the relief (through the plan or plans in which you participate) as set out in the settlement agreement (described in Section 6 above) and you will be bound by the terms of the settlement agreement and any orders issued by the Court in connection with it (described in Section 6.f above).
8. Do you need to hire your own attorney?
You may hire your own attorney, but you are not required to do so. If you hire your own attorney, you will be responsible for paying any fees and expenses that your attorney incurs. If you do not hire your own attorney, you will be represented by the counsel that the Court has appointed to represent Class Members. As described in Section 11 below, if you chose to be represented by the counsel that the Court has appointed, you will not be responsible for paying any of the fees and expenses incurred by that counsel.
9. Will there be a hearing in Court about this proposed settlement?
On August 22, 2005 at 10:00 a.m., the Court will hold a hearing on the proposed settlement in Courtroom 3 in the United States Courthouse located at U.S. Post Office and Courthouse Building, Federal Square, Newark, New Jersey 07101. The Court may choose to change the date and/or time of the hearing without further notice of any kind. If you intend to attend the hearing, you should confirm the date and time with one of the counsel for Co-Lead Plaintiffs and the Class (as identified in Section 12 below).
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The purpose of the hearing will be to determine whether the proposed settlement is fair, reasonable and adequate. If the Court finds the settlement to be fair, reasonable and adequate, it will enter a Judgment and an Order Approving the Settlement. At the hearing, the Court will also consider whether to approve the proposed Plan of Allocation and the request by Co-Lead Plaintiffs’ counsel for attorney’s fees and reimbursement of expenses. In reaching a decision on these issues, the Court will consider any objections that have been made by Class Members.
You may choose to attend the hearing, either in person or through an attorney hired at your own expense, but you are not required to do so. If you have made a written objection, either you or your attorney may appear at the hearing to present your objection, but you are not required to do so. If you choose to attend the hearing and intend to make a presentation to the Court, you – or your attorney – must file a notice of your intention to appear. Your notice of intention to appear must be received by the Court and the attorneys identified in Section 7.b above by August 12, 2005
10. Is there counsel representing Class Members?
The Court has appointed counsel to represent Class Members. The counsel appointed by the Court are Milberg Weiss Bershad & Schulman LLP, Wechsler Harwood LLP and Scott + Scott, LLC. (collectively, “Plaintiffs’ Co-Lead Counsel”). You will not be charged any fees or expenses directly by these attorneys. If you want to be represented by our own counsel, you may hire an attorney at your own expense.
11. How will counsel for the class be paid?
Plaintiffs’ Co-Lead Counsel will file an application with the Court for attorneys’ fees and expenses incurred in connection with this Action. This application will be considered at the hearing described in Section 9 above. Plaintiffs’ Co-Lead Counsel have agreed that their application will not be for more than 33 1/3% of the Cash Settlement Amount in attorneys’ fees and $1,000,000 in expenses. The Court will decide the amount of fees and expenses to be awarded to Plaintiffs’ Co-Lead Counsel. As discussed in Section 6.b above, the amount of attorneys’ fees that the Court awards to Plaintiffs’ Co-Lead Counsel will be paid out of the Cash Settlement Amount. Defendants will pay up to $1,000,000 to Plaintiffs’ Co-Lead Counsel for Court-approved out-of-pocket expenses.
12. Where can you get additional information?
You may obtain a copy of the proposed settlement agreement and other information regarding the settlement by visiting www.______.com or by calling 1-800-____, Monday through Friday from 9:00 a.m. to 5:00 p.m. Eastern Daylight Time, or by sending an e-mail to ______.
If you wish to communicate with or obtain information directly from Plaintiffs’ Co-Lead Counsel, you may do so by contacting the attorneys listed below:
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Brad N. Friedman, Esq. Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza New York, New York 10019 Telephone: (212) 594-5300 E-mail: [email protected]
Robert I. Harwood, Esq. Wechsler Harwood LLP 488 Madison Avenue, 8th Floor New York, New York 10022 Telephone: (212) 935-7400 E-mail: [email protected]
David R. Scott, Esq. Scott + Scott, LLC 108 Norwich Avenue Colchester, Connecticut 06415 Telephone: (860) 537-5537 E-mail: [email protected]
You may also examine the proposed settlement agreement, the Court orders, and the other papers filed in the lawsuit at the Office of the Clerk, United States District Court for the District of New Jersey at Martin Luther King Building and U.S. Courthouse, 50 Walnut Street, Room 4015, Newark, New Jersey 07101 from 9:00 a.m. to 4:00 p.m. Eastern Standard Time.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE FOR INFORMATION
BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY July __, 2005
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APPENDIX A TO NOTICE
RELEASE
A. Definitions Relevant to Release and Waiver
1. “Claim” means any and all actions, causes of action, proceedings,
adjustments, executions, offsets, contracts, judgments, obligations, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, variances, covenants,
trespasses, damages, demands (whether written or oral), agreements, promises, liabilities,
controversies, costs, expenses, attorneys’ fees and losses whatsoever, whether in law, in
admiralty or in equity and whether based on any federal law, state law, foreign law,
common law doctrine, rule, regulation or otherwise, foreseen or unforeseen, matured or
un-matured, known or unknown, accrued or not accrued, existing now or to be created in
the future.
2. “Released Claims” means each and every Claim or Unknown
Claim, whether arising under any federal law, state law, foreign law, common law
doctrine, rule, regulation or otherwise , (i) that has been asserted in this Action by
ERISA Co-Lead Plaintiffs or any of them against any of the Releasees; (ii) that arises
under ERISA and could have been asserted in any forum by the Class Members or any of
them against any of the Releasees insofar as the Claim or Unknown Claim arises out of or
is based upon the allegations, transactions, facts, matters or occurrences, representation or
omissions involved, set forth or referred to in the Consolidated Complaint, and relates to
the purchase, sale, holding, exchange, acquisition, disposition, transfer or any other
Investment Decision regarding Royal Dutch Securities in any of the ERISA Plans during
the Class Period or (iii) that, subject to Section B.4 below, arises out of or relates in any
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way to all acts, omissions, nondisclosures, facts, matters, transactions, occurrences or oral
or written statements or representations in connection with or directly or indirectly
relating to the institution, prosecution, defense or settlement of this Action or of the
Texas Action, or to this Settlement Agreement, or the implementation or administration
of it, including, but not limited to, any Claim for attorneys’ fees, costs or disbursements
in connection with the Actions except to the extent otherwise specified in this Settlement
Agreement. Without limiting the generality of the foregoing, and subject to the proviso
below, the term Released Claims includes, without limitation, any Claims or Unknown
Claims arising out of or relating to:
a. any and all of the acts, failures to act, omissions,
misrepresentations, facts, events, matters, transactions, statements, occurrences, or oral or
written statements or representations that have been, could have been or could be directly
or indirectly alleged, embraced, complained of, asserted or described, against any
Releasee or otherwise, set forth or otherwise referred to in the Actions;
b. the contents of any SEC Filing, DOL Filing or IRS Filing
during the Class Period (i) relating to Royal Dutch Securities or one or more of the
Companies or (ii) relating to or made in connection with any of the ERISA Plans;
c. any forward-looking statement regarding the Companies
made by any of the Releasees during the Class Period;
d. the contents of any SEC Filing, DOL Filing, IRS Filing or
any publication, dissemination, adjustment, revision or restatement of financial or other
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information of the Companies, including, without limitation, the recategorization of any
oil or gas reserves, relating to the Class Period;
e. any disclosure, representation or statement of any sort (oral
or written) made by any or all of the Releasees during the Class Period to any person or
entity, or to the public at large regarding, without limitation, the Companies’ business or
financial condition, their operational results and/or their financial or operational
prospects, including, without limitation, any press releases and/or press reports, earnings
calls, memoranda (whether internally or externally circulated), and presentations to
analysts, creditors, rating agencies, banks or other lenders, investment bankers, broker
dealers, investment advisors, investment companies, bond holders, employees of any of
the Companies, potential and actual vendors or customers, participants in one or more of
the ERISA Plans, potential investors and/or shareholders;
f. any disclosure, representation, or statement of any sort (oral
or written) made by any of the Releasees during the Class Period to any person or entity
regarding one or more of the ERISA Plans;
g. any internal and/or external accounting memoranda, reports
or opinions prepared by the Companies or any of the Releasees during, or that relate in
any way to, the Class Period, including, without limitation, any such memoranda, reports
or opinions with respect to the Companies’ categorization of its oil and gas reserves, or
on which any Class Member allegedly relied during the Class Period in purchasing,
selling, exchanging, acquiring, disposing of, transferring, or making any other Investment
A-3
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Decision regarding, Royal Dutch Securities in connection with one or more of the ERISA
Plans;
h. the Companies’ record keeping during, or that relates in
any way to the categorization of oil and gas reserves occurring in, the Class Period;
i. any financial statement, audited or unaudited, and any
report or opinion on any financial statement relating to the Companies that was prepared
or issued by one or more of the Companies or any of the Releasees during, or that relates
in any way to, the Class Period, or on which any Class Member allegedly or actually
relied during the Class Period in purchasing, selling, exchanging, acquiring, disposing of,
transferring, or making any other Investment Decision involving, Royal Dutch Securities
in connection with one or more of the ERISA Plans;
j. any statements or omissions by any of the Releasees as to
quarterly or annual results of the Companies during the Class Period, including, without
limitation, statements or omissions in connection with Earnings Releases or during calls
and/or meetings with one or more analysts or investors, and statements or omissions
regarding the categorization of oil and gas reserves;
k. any internal accounting controls or internal audits of the
Companies during, or that relate in any way to, the Class Period, including, without
limitation, any internal audits relating to the categorization of oil and gas reserves;
l. any purchases, sales, exchanges, acquisitions, disposals,
retentions, transfers or other trading (including, without limitation, collar and hedge
transactions) or any other Investment Decision involving Royal Dutch Securities, any
A-4
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profits made or losses avoided in connection with a transaction involving Royal Dutch
Securities during the Class Period by any or all of the Releasees, or any acts taken by
Releasees to finance or pay for any such transactions, including, but not limited to, any
personal profit, remuneration or advantage received by a Releasee in connection with a
transaction involving Royal Dutch Securities to which he, she or it was allegedly not
legally entitled;
m. any of the Companies’ accounting practices or procedures,
including any disclosure and disclosure obligations relating thereto, during the Class
Period, including, but not limited to, adoption, use and/or application of any accounting
principles or standards with respect to the Companies’ categorization of oil and gas
reserves;
n. any statements or omissions by any of the Releasees in
connection with the Companies’ acquisition during the Class Period of any entity,
including, without limitation, any statements or omissions regarding the effect of any
such acquisition on, or relationship between, any such acquisition and one or more of the
ERISA Plans;
o. the integration of the Companies or any of their divisions,
business units or companies, and any of the entities that they acquired during the Class
Period;
p. any statements or omission by any of the Releasees in
connection with the Companies’ sale during the Class Period of any divisions, business
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units, companies and/or assets, including, without limitation, the termination of any
ERISA Plans or the transfer of any ERISA Plan assets in connection with such a sale;
q. any and all Claims arising in connection with the purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan during the Class
Period relating in any way to any of the facts or allegations addressed or discussed or in
any way related to the investigation and findings as set out in the Davis Polk Report.
r. the integration or merger of any Employee Benefit Plan
with any of the ERISA Plans during the Class Period;
s. the relationship and any transactions, actual or
contemplated, between or among the Companies and any of their parents, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), divisions, business units,
subsidiaries and entities in which it has a Controlling Interest;
t. any and all Claims arising under ERISA against any of the
individual Releasees that are based upon or arise out of the Releasee’s (i) status as a
director, officer or employee of, or investor in, the Companies or (ii) acts or omissions in
his or her capacity as a director, officer or employee of, or investor in, the Companies;
u. any and all transactions between the Companies and any of
the Releasees or any entity that is an affiliate (as defined in 17 C.F.R. Part 210.1-02.b) of
a Releasee or in which a Releasee has a Controlling Interest;
v. the suitability or prudence of any ERISA Plan’s investment
in Royal Dutch Securities during the Class Period;
A-6
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w. any and all activities undertaken by any Releasee in a
fiduciary capacity or otherwise with respect to the ERISA Plans during the Class Period;
x. purchases, sales, exchanges, acquisitions, disposals,
transfers or any other Investment Decisions involving Royal Dutch Securities on behalf
of one of more of the ERISA Plans or on behalf of any participant in or beneficiary of, or
any person having an interest in, one or more of the ERISA Plans;
y. issuance of treasury shares of Royal Dutch Securities to the
ERISA Plans;
z. any and all Claims against any of the individual Releasees
that are based upon or arise out of the Releasee’s (i) alleged status during the Class
Period as a fiduciary or otherwise with respect to one or more of the ERISA Plans or
(ii) acts or omissions during the Class Period in his, her or its capacity as a fiduciary with
respect to one or more of the ERISA Plans;
aa. any or all Claims based upon the design, structure and/or
terms of any of the ERISA Plans;
bb. any and all claims against any Releasee relating to the
administration of any of the ERISA Plans during the Class Period; and
cc. any and all other Claims or other matters relating in any
way to the Companies’ finances, disclosures, financial condition, accounting practices or
categorization or recategorization of oil and gas reserves, or Releasees’ disclosures to or
communications with other parties, including, without limitation, the public and all
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lenders, creditors, shareholders or other persons engaged in financial transactions with
the Companies.
Provided that, notwithstanding anything in this definition, the term “Released Claims”
does not mean, and does not include, any claim relating to the purchase, sale, holding,
exchange, acquisition, disposition, transfer or any other Investment Decision regarding
Royal Dutch Securities outside of any ERISA Plan. Nor does it include any additional or
independent claim that a Class Member or any ERISA Plan may have with respect to his,
her or its purchase, sale, holding, exchange, acquisition, disposal, transfer or any other
Investment Decision regarding Royal Dutch Securities in connection with any ERISA
Plan during the Class Period to the extent – and only to such extent – such additional
independent claim is based solely upon federal or state securities laws (and not upon
ERISA), whether such claim is considered to be made directly on behalf of the Class
Member or on behalf of the ERISA Plan in which the Class Member participated or had
an interest.
3. “Releasee” means each and every one of, and “Releasees” means
all of, the following: the Companies and each of the ERISA Plans, and each of their
respective past and present directors, officers, employees, members, partners, principals,
agents, attorneys, advisors, trustees, administrators, fiduciaries (including, without
limitation, Fidelity Management Trust Company, National Financial Services LLC, and
any other individual or entity that was an independent fiduciary in connection with one or
more of the ERISA Plans during the Class Period), consultants, service providers,
representatives, insurance carriers, accountants and auditors, including, without
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Case 2:04-cv-01398-JWB-GDH Document 50-5 Filed 07/08/2005 Page 9 of 13
limitation, the Individual Defendants and each of their respective estates, heirs, executors,
agents, attorneys, accountants, trusts, trustees, administrators and assigns.
4. “Unknown Claim” means any Claim that any Class Member does
not know or suspect to exist in his, her or its favor at any time on or before the date that
such Class Member’s release becomes effective, and that, if known by him, her or it,
might have affected his, her or its settlement with any of the Releasees or might have
affected his, her or its decision not to request exclusion from the Class or not to object to
this Settlement Agreement.
B. Releases and Waivers
1. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section B.4 below, on and after the Final
Settlement Date, and after the Cash Settlement Payment has been made, any and all Class
Members (including those who are parties to any other litigation, arbitration or other
proceedings pending on the Final Settlement Date to the extent such litigation, arbitration
or other proceedings are based upon a Released Claim and are brought against any or all
of the Releasees ), on behalf of themselves, their heirs, executors, administrators,
beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-
02.b), assigns, any person or entity claiming by or through any of the Class Members and
any person or entity representing any or all Class Members, for good and sufficient
consideration, the receipt and adequacy of which are hereby acknowledged, shall be
deemed to have, and by operation of law and of the Judgment shall have, fully, finally,
and forever released, relinquished, settled, and discharged all Released Claims against
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each and every one of the Releasees, ERISA Co-Lead Plaintiffs, Plaintiffs’ Co-Lead
Counsel and Defendants’ Counsel, including such Released Claims as already have been,
could have been or could be asserted in any pending litigation, arbitration, or other
proceeding, whether formal or informal.
2. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section B.3 below, on and after the Final
Settlement Date, and after the Cash Settlement Payment has been made, all Parties, on
behalf of themselves, their heirs, executors, administrators, predecessors, successors,
affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or entity claiming
by or through any of the Parties and any person or entity representing any or all Parties,
for good and sufficient consideration, the receipt and adequacy of which are hereby
acknowledged, shall be deemed to have, and by operation of law and of the Judgment
shall have, fully, finally, and forever released, relinquished, settled, and discharged any
and all Settled Parties’ Claims.
3. Notwithstanding Sections B.1 and B.2 above, nothing in the
Judgment shall bar any action or claim by the Parties to enforce the terms of this
Settlement Agreement or the Judgment.
4. Notwithstanding Section B.1 above, nothing in the Judgment shall
bar any additional or independent claim that a Class Member or any ERISA Plan may
have with respect to his, her or its purchase, sale, holding, exchange, acquisition,
disposal, transfer or any other Investment Decision involving Royal Dutch Securities in
connection with any ERISA Plan during the Class Period to the extent – and only to such
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extent – such additional or independent claim is based solely upon federal or state
securities laws (and not upon ERISA), whether such claim is considered to be made
directly on behalf of the Class Member or on behalf of the ERISA Plan in which the
Class Member participated or had an interest; provided however, that under no
circumstances shall a Class Member or an ERISA Plan be allowed to obtain relief in
excess of any damage (if any) he, she or it suffered as a consequence of any purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan; provided further
that to the extent any damages award in a proceeding based upon federal or state
securities laws would result in such Class Member or ERISA Plan receiving relief in
excess of any damages suffered, the amount of damages awarded in the proceeding based
upon federal or state securities laws may be reduced by the amount that would be in
excess of the damages actually suffered by the Class Member or ERISA Plan.
5. Subject to Section B.3 above, with respect to any and all Released
Claims, the Parties stipulate and agree that, by the terms of the Judgment, each Class
Member on behalf of himself or herself, his or her heirs, executors, administrators,
beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-
02.b), assigns, any person or entity claiming by or through any of the Class Members and
any person or entity representing any or all Class Members shall have and be deemed to
have waived and relinquished, to the fullest extent permitted by law, any and all
provisions, rights and benefits conferred by Section 1542 of the California Civil Code or
any federal, state, or foreign law, rule, regulation or common law doctrine that is similar,
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comparable, equivalent, or identical to, or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, Class Members understand and agree that,
subject to Section V.3 above, the Release is intended to include all Released Claims Class
Members have or may have, including Released Claims that are Unknown Claims.
ERISA Co-Lead Plaintiffs hereby stipulate and agree on behalf of all Class Members that
they shall have and be deemed to have, on or after Final Settlement Date and after the
Cash Settlement Payment has been made, fully, finally and forever settled and released
any and all Released Claims whether or not they are Unknown Claims.
6. With respect to any and all Settled Parties’ Claims, each Party on
behalf of himself, herself or itself, its heirs, executors, administrators, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or
entity claiming by or through any of the Parties and any person or entity representing any
or all Parties stipulates and agrees that, by the terms of the Judgment, each such
individual and entity shall have and be deemed to have waived and relinquished, to the
fullest extent permitted by law, any and all provisions, rights and benefits conferred by
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Section 1542 of the California Civil Code or any federal, state, or foreign law, rule,
regulation or common law doctrine that is similar, comparable, equivalent, or identical to,
or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, each individual and entity providing a release
in Section B.2 above understands and agrees that the Release is intended to include all
Claims and/or Unknown Claims that he, she or it has or may have that relate in any way
to any or all acts directly or indirectly relating to the prosecution, defense or settlement of
the Actions or to this Settlement Agreement, including such Claims that are Unknown
Claims. Each such individual and entity hereby stipulates and agrees that he, she or it
shall have and be deemed to have, on or after Final Settlement Date, and after the Cash
Settlement Payment has been made, fully, finally and forever settled and released any and
all Claims that relate in any way to any or all acts directly or indirectly relating to the
prosecution, defense or settlement of the Actions, or to this Settlement Agreement
whether or not they are Unknown Claims.
7. The releases and waivers contained in this Section B were
separately bargained for and are essential elements of this Settlement Agreement.
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Case 2:04-cv-01398-JWB-GDH Document 50-6 Filed 07/08/2005 Page 1 of 6 APPENDIX B TO NOTICE
PLAN OF ALLOCATION
Allocation Between the ERISA Plans1
To the extent administratively feasible:
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Provident Fund shall equal the total Losses of those Class
Members who were participants in the Shell Provident Fund at any time
during the Class Period expressed as a percentage of the aggregate Losses
of all Class Members;
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Pay Deferral Investment Fund shall equal the total Losses of
those Class Members who were participants in the Shell Pay Deferral
Investment Fund at any time during the Class Period expressed as a
percentage of the aggregate Losses of all Class Members; and
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Trading Savings Plan shall equal the total Losses of those Class
Members who were participants in the Shell Trading Savings Plan at any
time during the Class Period expressed as a percentage of the aggregate
Losses of all Class Members.
For the avoidance of doubt, in December 2004, the Shell Trading Savings Plan as
it related to employer contributions was merged into the Shell Provident Fund and the
Shell Trading Savings Plan as it related to employee contributions was merged into the
1. Unless otherwise specifically defined herein, the capitalized terms in this Plan of Allocation have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-6 Filed 07/08/2005 Page 2 of 6
Shell Pay Deferral Investment Fund. Accordingly, although the allocation in respect of
the Shell Trading Savings Plan shall be performed as described above, it is understood
that any amounts allocated to a participant in respect of his or her participation in the
Shell Trading Savings Plan shall be further allocated to his or her applicable surviving
account under the Shell Provident Fund or the Shell Pay Deferral Investment Fund.
Allocation within each ERISA Plan
To the extent administratively feasible and except as set forth below in respect of
the De Minimis Amount provisions, the Plan of Allocation shall allocate to the account of
each individual participant under the Shell Provident Fund, the Shell Pay Deferral
Investment Fund and the Shell Trading Savings Plan (as in effect prior to its merger into
the Shell Provident Fund and the Shell Pay Deferral Investment Fund in December 2004)
a percentage of the Net Cash Settlement Amount tentatively allocated to each such
ERISA Plan (less the aggregate of the De Minimis Amounts allocated to all participants
of such ERISA Plan as provided below) equal to the Loss of such participant expressed
as a percentage of the aggregate Losses of all Class Members under each such ERISA
Plan. As noted above, the Net Cash Settlement Amount tentatively allocated to each
participant under the Shell Trading Savings Plan in respect of employer contributions
shall be further allocated to the account of such participant under the Shell Provident
Fund and the Net Cash Settlement Amount tentatively allocated to the Shell Trading
Savings Plan in respect of employee contributions shall be further allocated to the
account of such participant under the Shell Pay Deferral Investment Fund.
B-2 Case 2:04-cv-01398-JWB-GDH Document 50-6 Filed 07/08/2005 Page 3 of 6
For the purposes of this Settlement Agreement, and so long as such amount is not
less than zero, the “Loss” for each participant under each ERISA Plan is expressed by the
formula: Loss = A + B - C - D, where, with respect to each such participant’s account:
A = the dollar value, if any, of the balance in the Royal Dutch
Stock Fund at the close of business on the later of (a) the first day of the
Class Period and (b) the first day the participant had an account balance
invested in the Royal Dutch Stock Fund under such ERISA Plan;
B = the dollar value, if any, of all of the purchases or exchanges
into the Royal Dutch Stock Fund under such ERISA Plan during the Class
Period, as of the time of such purchase(s) and exchange(s); provided
however, that the any dollar value included in “A” shall not be counted for
purposes of “B”;
C = the dollar value, if any, of all sales or exchanges out of the
Royal Dutch Stock Fund under such ERISA Plan during the Class Period,
as of the time of such sale(s) or exchange(s); and
D = the dollar value, if any, of the balance in the Royal Dutch
Stock Fund on the Measurement Date.
Allocation of De Minimis Amount
Each participant whose allocation of the Net Cash Settlement Amount under any
ERISA Plan is less than ten dollars ($10) (“De Minimis Amount”) shall receive an
allocation from the Net Cash Settlement Amount of ten dollars ($10).
Deposits into Trusts of Plans
B-3 Case 2:04-cv-01398-JWB-GDH Document 50-6 Filed 07/08/2005 Page 4 of 6
The Net Cash Settlement Amount (including any interest thereon) shall be
deposited into the applicable account of the Shell Group Trust holding the assets of the
Shell Provident Fund and the applicable account of the Shell Group Trust holding the
assets of the Shell Pay Deferral Investment Fund, in each case in accordance with the
allocation between the Shell Provident Fund and the Shell Pay Deferral Investment Fund
as set forth in this Settlement Agreement and the approved Plan of Allocation. The
Parties intend and agree that the deposits into the applicable accounts in the Shell Group
Trust shall constitute “restorative payments” within the meaning of Revenue Ruling
2002-45 (or any applicable preceding or succeeding guidance promulgated by the
Internal Revenue Service) for all purposes.
Allocations of Net Cash Settlement Amount to Class Members
Upon the deposit of the Net Cash Settlement Amount into the Shell Group Trust,
the trustees of the Shell Provident Fund and the Shell Pay Deferral Investment Fund shall
cause the proceeds to be allocated among the accounts of the Class Members in
accordance with the approved Plan of Allocation, the operative terms and conditions of
the Settlement Agreement, and the express terms and established administrative practices
and procedures of the applicable ERISA Plan. Each Class Member shall be 100% vested
in his or her allocation of the Net Cash Settlement Amount under the applicable ERISA
Plan. Except as otherwise specifically provided for in this Settlement Agreement, all
allocations of the Net Cash Settlement Amount under each of the Shell Provident Fund
and the Shell Pay Deferral Investment Fund shall in all material respects be subject to,
and governed by, the terms of the such ERISA Plan and all appropriate and customary
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administrative and compliance practices and procedures established in respect of such
ERISA Plan.
Allocations into Appropriate Type of Account
Each Class Member’s allocation of the Net Cash Settlement Amount under each
of the Shell Provident Fund and the Shell Pay Deferral Investment Fund shall be
deposited into his or her various accounts in proportion to the dollar value, if any, of the
balance in each such account invested in the Royal Dutch Stock Fund on the close of
business on the earlier of (i) the last day of the Class Period and (ii) the last day the Class
Member had an account balance invested in the Royal Dutch Stock Fund under such
ERISA Plan (the earlier of such dates, the “Allocation Date”) relative to the dollar value,
if any, of the balance in all such account invested in the Royal Dutch Stock Fund on the
Allocation Date.
Investment
All allocations of the Net Cash Settlement Amount to the accounts of the Shell
Provident Fund and the Shell Pay Deferral Investment Fund shall be invested initially in
the Royal Dutch Stock Fund offered under each ERISA Plan. As soon as
administratively practicable after allocation to Class Members’ accounts, the Net Cash
Settlement Amount as allocated shall be available for investment by the Class Member in
the other investment alternatives to the extent permitted by and in accordance with the
terms of the applicable ERSIA Plan and the established administrative practices and
procedures thereunder, except with respect to those Class Members described below.
Distributions to Class Members from the ERISA Plans
B-5 Case 2:04-cv-01398-JWB-GDH Document 50-6 Filed 07/08/2005 Page 6 of 6
All allocations attributable to Class Members (including any distributions to those
participants who have previously taken complete distributions from the Shell Provident
Fund, the Shell Pay Deferral Investment Fund and/or the Shell Trading Savings Plan, or
who have commenced distributions from the Shell Provident Fund and/or the Shell Pay
Deferral Investment Fund) shall be distributed to such Class Members in accordance with
the terms and conditions of the applicable ERISA Plan. Distributions made to those
participants who have previously taken complete distributions from the Shell Provident
Fund, the Shell Pay Deferral Investment Fund and/or the Shell Trading Savings Plan (or
who have commenced distributions from the Shell Provident Fund and/or the Shell Pay
Deferral Investment Fund) shall be treated as additional or residual payments, and shall
not be treated as separate distributions for purposes of Internal Revenue Code Section
411(a)(11) and ERISA Section 203(e), and, in any event, the execution and approval of
the Settlement Agreement, in conjunction with a Class Member’s previous election to
take a distribution from the applicable ERISA Plan, shall constitute valid and timely
written consent by the participant to a distribution of his or her respective allocation.
B-6 Case 2:04-cv-01398-JWB-GDH Document 50-7 Filed 07/08/2005 Page 1 of 5
EXHIBIT C
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
COURT ORDERED LEGAL NOTICE
IF YOU PARTICIPATED OR HAD AN INTEREST IN THE SHELL PAY DEFERRAL INVESTMENT FUND, THE SHELL PROVIDENT FUND, THE SHELL TRADING SAVINGS PLAN, OR ANY PREDECESSOR OR SUCCESSOR PLAN OR FUND, FROM DECEMBER 3, 1999 THROUGH APRIL 29, 2004, INCLUSIVE, YOU COULD BE ENTITLED TO PARTICIPATE IN A CLASS ACTION SETTLEMENT PURSUANT TO WHICH YOU WOULD RECEIVE MONETARY RELIEF.
A settlement has been reached in a class action lawsuit involving certain employee benefit plans sponsored by Shell Oil Company or one of its United States-based affiliates. The relevant employee benefit plans are the Shell Pay Deferral Investment Fund, the Shell Provident Fund, the Shell Trading Savings Plan and any predecessor or successor plan or fund (collectively, the “ERISA Plans”). The class action alleges fiduciary breaches by defendants regarding the ERISA Plans that arise out of the January 9, 2004 announcement by the Royal Dutch/Shell Group of Companies that certain of their oil and gas reserves would be recategorized.
If the settlement is approved, defendants will pay $90 million (the “Settlement Amount”) to resolve the claims that have been made or that could have been made in this class action lawsuit. In addition to the Settlement Amount, defendants will also pay up to $1,000,000 to the court-appointed class counsel for their out-of-pocket expenses and will pay the costs incurred in providing notice of the settlement to class members. The corporate defendants will also require Shell Oil Company to adopt (or cause to be adopted) specific procedures regarding the monitoring and training of individuals appointed to be ERISA fiduciaries.
If the settlement is approved, the balance remaining after certain expenses (including attorneys’ fees) have been deducted from the Settlement Amount will be paid to eligible individuals on whose behalf this class action lawsuit has been brought. That class is defined as those individuals who participated or had an interest in one or more of the ERISA Plans between December 3, 1999 and April 29, 2004, inclusive (the “Class Period”). If you are a member of Case 2:04-cv-01398-JWB-GDH Document 50-7 Filed 07/08/2005 Page 2 of 5
this class, you may – depending on the investment options you elected in the ERISA Plans – be entitled to receive monetary relief under the terms of the settlement if it is approved. If you are a class member and the settlement is approved, you will release all claims that have been raised or that could have been raised in this class action lawsuit, as well as very similar claims that have been made in a parallel action filed in federal court in Texas. This release will apply to all of the defendants in the case, as well as all of the individuals and entities who are included in the term “Releasees,” as that term is defined in the settlement agreement. If the settlement is approved, this action (and the Texas action) will be dismissed with prejudice.
WHO IS INCLUDED IN THE CLASS IN THIS ACTION?
You may be a class member and able to participate in the settlement if you participated or had an interest in one or more of the ERISA Plans. If you are not sure whether you are included in the settlement, you can get more information, including a detailed notice concerning the settlement at [Administrator’s website], or by calling 1-800-____ or writing to [Administrator’s address].
WHAT IS THE CLASS ACTION LAWSUIT ABOUT?
Plaintiffs who filed the complaint (and who have been designated lead plaintiffs by the Court) allege that defendants were fiduciaries of the ERISA Plans during the Class Period and thus that they owed certain fiduciary duties to the ERISA Plans pursuant to the provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Plaintiffs further allege that defendants knew or should have known that Royal Dutch Petroleum Company stock was inflated and that defendants breached their fiduciary duties to the ERISA Plans by failing either to inform plan participants that the stock value was inflated by certain incorrectly categorized reserves or to remove the stock as an investment option available to participants. Defendants deny the allegations made against them and have filed motions to dismiss the action.
The Court has not ruled and will not rule in favor of either side if this settlement is approved. Both sides have agreed to the settlement to ensure a resolution and to provide benefits to class members.
The Court-appointed lead plaintiffs are Gordon Lancaster, John Tristan, Jose Valadez, Oscar Pena, Hernaldo Rivera, John R. Rosenboom, Scott Franklin, Jr. Defendants are the Royal Dutch Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Jeroen van der Veer, Philip Watts, Walter van de Vijver, Judy Boynton and Pervis Thomas, Jr. Van der Veer was subsequently dismissed from the Action.
WHAT DOES THE SETTLEMENT PROVIDE?
The settlement will provide for creation of a settlement fund of $90 million. After certain expenses (including taxes, administrative costs and Court-approved attorneys’ fees) have been deducted from this Settlement Amount, the balance will be divided among all eligible class members. Class members will automatically receive any settlement relief for which they are eligible if the settlement is approved and need not take any action.
2 Case 2:04-cv-01398-JWB-GDH Document 50-7 Filed 07/08/2005 Page 3 of 5
A settlement agreement, available at the website below, contains the details about the proposed settlement, including the terms of the release that class members will be bound by if the settlement is approved.
For a complete description of the release, you should review the Notice or the Stipulation of Settlement available at [Administrator’s website], or, by calling 1-800-____ or writing to [Administrator’s address], request that a copy of the Notice be sent to you. A copy of the release (and relevant definitions) is included in an appendix to the Notice that is being mailed to the last- known address of class members.
All of the monies in the settlement fund will be paid out.
WHAT ATTORNEYS’ FEES AND EXPENSES ARE BEING SOUGHT?
Court-appointed counsel for the class intends to seek an award of attorneys’ fees of no more than 33 1/3% of the settlement amount. The award of attorneys’ fees and expenses to class counsel is subject to the Court’s approval. The entire amount of fees awarded to counsel will be deducted from the settlement amount. Defendants have agreed to pay up to $1,000,000 to cover class counsel’s out-of-pocket expenses and therefore such expenses will not be taken out of the settlement amount.
WHAT ARE THE LEGAL EFFECTS OF THE SETTLEMENT?
If the settlement is approved by the Court, the parties will seek the entry of a Judgment and an Order Approving Settlement, which, among other things, will:
(1) provide that the settlement is fair, reasonable and adequate;
(2) finally certify the class for settlement purposes;
(3) dismiss the action with prejudice, meaning that no class member will be able to bring another lawsuit or proceeding against any of the people or entities released under the terms of the settlement agreement based upon the claims that have been raised or that could have been raised in the action;
(4) incorporate as part of the Order Approving Settlement the release contained in the settlement agreement;
(5) direct the lead plaintiffs to dismiss with prejudice the parallel class action in Texas;
(6) permanently bar class members from filing or participating in any lawsuit or other legal action arising from or related to any and all claims that have been raised or that could have been raised;
(7) enter a bar order (the “Bar Order”) that will prevent
3 Case 2:04-cv-01398-JWB-GDH Document 50-7 Filed 07/08/2005 Page 4 of 5
(a) any person or entity from commencing, prosecuting or asserting any claim against any person or entity released under the terms of the settlement agreement (including any claim for indemnification or contribution) where the claim is based on a claim that is released under the settlement;
(b) any person or entity released under the terms of the settlement agreement from commencing, prosecuting or asserting any claim against any person or entity (including any claim for indemnification or contribution) where the claim is based on a claim that is released under the settlement;
(8) award attorneys’ fees and expenses to class counsel; and
(9) retain jurisdiction over all matters relating to the administration, enforcement and interpretation of the settlement.
You may object to the Bar Order in writing and, provided you properly submit a notice of intention to appear, you may speak at the Fairness Hearing as to why you think the Bar Order should be not entered by the Court.
HOW DO YOU RECEIVE A SETTLEMENT PAYMENT?
If the settlement is approved and you are an eligible class member, you do NOT need to do anything to receive a settlement payment. You (or your ERISA account) will receive any payment for which you qualify automatically if the settlement is approved.
WHAT ARE YOUR OTHER OPTIONS?
If you are a class member, you have the right to object to the proposed settlement, any term of the settlement agreement, the Plan of Allocation or the application by the plaintiffs for attorneys’ fees and reimbursement of expenses. Any objections must be filed with the Court and served on the counsel participating in the action by August 12, 2005. The notice explains how to object. Under the Federal Rules of Civil Procedure, you may not exclude yourself from this class action settlement.
The Court will hold a hearing in this case on August 22, 2005 at 10:00 a.m. EDT in Courtroom 3 in the United States Courthouse located at U.S. Post Office and Courthouse Building, Federal Square, Newark, New Jersey 07101 to consider whether to approve the settlement and Plan of Allocation in this case and whether to grant class counsel’s request for fees and reimbursement of expenses. You may appear at this hearing and ask to be heard by the Court, but you do not need to do so. If you (or an attorney hired at your expense) intends to appear at the hearing, you (or your attorney) must file a notice of intention to appear. For more information regarding what you need to do, call toll free 1-800-____, visit [Administrator’s website] or write to [Administrator’s address].
The Court may choose to change the date and/or time of the hearing without further notice of any kind. If you intend to attend the hearing, you should confirm the date and time with class counsel (identified below) prior to going to the Courthouse.
4 Case 2:04-cv-01398-JWB-GDH Document 50-7 Filed 07/08/2005 Page 5 of 5
You can get more information, including the detailed Notice concerning the settlement, at [Administrator’s website] or by calling 1-800-______or writing to [Administrator’s address].
Additional information regarding this action and this notice may also be obtained by contacting class counsel:
Brad N. Friedman, Esq. Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza New York, New York 10019 Telephone: (212) 594-5300 E-mail: [email protected]
Robert I. Harwood, Esq. Wechsler Harwood LLP 488 Madison Avenue, 8th Floor New York, New York 10022 Telephone: (212) 935-7400 E-mail: [email protected]
David R. Scott, Esq. Scott + Scott, LLC 108 Norwich Avenue Colchester, Connecticut 06415 Telephone: (860) 537-5537 E-mail: [email protected]
5 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 1 of 7
EXHIBIT D
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
STIPULATION OF CONFIDENTIALITY
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned,
as follows:
1. Pursuant to the Court’s ______, 2005 Findings And Order Preliminarily
Certifying A Class For Settlement Purposes And Preliminarily Approving Proposed Settlement
(the “Preliminary Approval Order”) incorporating the terms of this Stipulation of Confidentiality
(the “Stipulation”), Plaintiffs’ Co-Lead Counsel1 will provide the undersigned Class Members(s)
and/or his or her counsel with access to all discovery disclosed to Co-Lead Plaintiffs and
Plaintiffs’ Co-Lead Counsel in the Action.
2. All of the discovery provided to Co-Lead Plaintiffs and Plaintiffs’ Co-Lead
Counsel – including, without limitation, writings, drawings, graphs, charts, photographs,
transcripts, microfilm, microfiche, drafts, non-identical copies of documents and data compilations (including, without limitation, electronic or computerized data complications) from
which information can be obtained – and all other information provided under the terms of this
1. Unless otherwise specifically defined herein, the capitalized terms in this Order have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 2 of 7
Stipulation, without regard to whether the information is oral, written or electronic, and
regardless of the source of the document or information, shall be deemed “Confidential
Information.” All Confidential Information to which the undersigned Class Member(s) and/or
his or her counsel are given access is subject to this Stipulation, and such Confidential
Information shall not be used or disclosed to anyone except as provided herein.
3. Confidential Information shall be used solely for purposes of evaluating the fairness, reasonableness and adequacy of the proposed settlement in this Action and for no other purpose. In particular, and without limitation, Confidential Information shall not be used (i) in
the litigation of this Action if the Court should fail to approve the proposed settlement of this
Action for any reason, or if any appellate court should reverse an order of the Court approving the proposed settlement, or (ii) in any other litigation, arbitration, or other jurisdiction or administrative proceeding (including in the investigation or preparation of any such proceeding),
including, without limitation, the Securities Action. If an undersigned Class Member or his, her or its counsel cites or otherwise explicitly refers to Confidential Information in any objection or other filing that is made in this Action (including without limitation, quoting or paraphrasing
Confidential Information), the portion of the filing in which the Confidential Information is set out shall be filed under seal with the Court.
4. The undersigned Class Member(s) and/or his or her counsel, and any expert retained by the undersigned Class Member(s) or his or her counsel may inspect the Confidential
Information in the offices of Milberg Weiss Bershad & Shulman LLP, One Pennsylvania Plaza,
New York, New York 10019, by prior appointment and during regular business hours. No
Confidential Information shall be removed from the site at which the inspection takes place (the
“Document Depository”). Duplication of documents or materials containing Confidential
2 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 3 of 7
Information shall not be permitted. However, in the course of inspecting the Confidential
Information, the undersigned Class Member(s) and/or his or her counsel shall be permitted to
make a reasonable amount of handwritten notes (“Handwritten Notes”) reflecting his or her
review of Confidential Information. Any Handwritten Notes reflecting, incorporating or otherwise referring to the Confidential Information shall be treated as and be deemed to be
Confidential Information as well. The undersigned Class Member(s) and/or his or her counsel shall be able to remove Handwritten Notes from the Document Depository; provided, however, that Handwritten Notes may be used by the undersigned Class Member(s) and/or his or her counsel for the sole purpose described in paragraph 3 above and for no other purpose.
5. Except as provided in paragraph 4 above, the undersigned Class Member(s) and/or his or her counsel shall not make any notes, memorandum or memorialization relating to the content of Confidential Information, including recording any electronic notes on computer, electronic copying or scanning, dictation, or any other means. The undersigned Class Member(s) and/or his or her counsel shall not bring recording devices or computers of any sort, including, without limitation, handheld or laptop computers or voice recorders into the Document
Depository. The undersigned Class Member(s) and/or his or her counsel shall not bring any type of photographic, photocopying, camera phones or other electronic devices that allow for the electronic scanning or duplication of documents, including, without limitation, Dictaphones, portable photocopiers or cameras, into the Document Depository.
6. Access to Confidential Information shall be limited to:
a. the undersigned Class Member(s);
b. his or her undersigned counsel;
3 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 4 of 7
c. employees of undersigned counsel assigned to and necessary to assist such
counsel in evaluating the proposed settlement; and
d. experts, to the extent necessary to assist the undersigned Class Member(s)
and/or his or her counsel in evaluating the fairness, reasonableness and adequacy of the proposed
settlement.
7. Any person given access to Confidential Information shall be advised, before
being granted access, of the terms of this Stipulation and shall thereby become subject to such
terms, including, without limitation, the requirement that such Confidential Information may not
be disclosed to any person other than those described in paragraph 6 above. In addition, access
to Confidential Information shall not be provided to any person described in paragraph 6 until
and unless such person has executed the undertaking in the form attached to Exhibit A. The
executed undertaking shall be promptly provided to the Defendants’ Lead Counsel.
8. By providing access to Confidential Information, no party to this Action shall be
held to have waived any claim that such Confidential Information is privileged, confidential or
protected from discovery as attorney work product. The undersigned Class Member(s) and/or
his or her counsel agree that they, or any of them, shall not contend or otherwise take the position in this or in any other pending or future proceeding that any party has waived the attorney-client
privilege and/or the protection of the attorney work product doctrine, or any other privilege or
protective doctrine, with regard to Confidential Information.
9. The provisions of this Stipulation shall survive the termination of this Action. At
the earlier of (i) the Final Settlement Date or (ii) the termination of the Settlement Agreement in
this Action, all Handwritten Notes shall be destroyed. A written certification of destruction of
4 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 5 of 7
Handwritten Notes from any person who has been given access to Confidential Information
pursuant to paragraph 6 above shall be provided to the Defendants’ Lead Counsel.
10. The terms of this Stipulation shall be enforceable by any aggrieved party, including any Party, and any breach of such terms shall give rise to any and all applicable legal and equitable remedies for enforcement of the Stipulation and/or relief, including damages, for
its breach.
11. Pursuant to the Preliminary Approval Order incorporating this Stipulation, any
breach of the terms of this Stipulation shall constitute a violation of the Court’s Order and may
result in an order of contempt of court or other sanctions, upon application to the Court by any
Party to this Action.
12. The undersigned Class Member(s) and/or his or her counsel agree that (i) no
Confidential Information disclosed pursuant to this Stipulation may be used in the litigation of
this Action or any other proceeding, unless such Confidential Information is obtained
independently through discovery requests made by the undersigned Class Member(s) and/or his
or her counsel to any Defendant; (ii) discovery requests seeking Confidential Information shall not be served on any of Defendants’ Counsel or on any of Plaintiffs’ Co-Lead Counsel; and
(iii) the undersigned Class Member(s) and/or his or her counsel shall not make discovery
requests of any Defendant that make reference directly or indirectly to Confidential Information in any such request or in any proceeding. The undersigned Class Member(s) and/or his or her counsel agree further that his, her or its receipt of access to Confidential Information shall not be construed or used as an admission or concession by any Defendants of relevance, responsiveness, discoverability or any other matter.
5 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 6 of 7
13. The undersigned Class Member(s) and/or his or her counsel agree to notify
Defendants’ Lead Counsel (as identified in paragraph 14 below) immediately if any person granted access to Confidential Information under this Stipulation is served with or otherwise receives a subpoena, summons, court order, request or application requiring disclosure of
Confidential Information. In any such instance, the undersigned Class Member(s) and/or his or her counsel also agree (i) not to oppose any Defendant’s efforts to prevent the disclosure of
Confidential Information and (ii) not to surrender Confidential Information to any third party without the consent of all Defendants or except as ordered by a final order of a court having jurisdiction.
14. The notice required by paragraph 13 of this Stipulation must be provided by facsimile or overnight mail or other overnight delivery service to:
Ralph C. Ferrara, Esq. Ann M. Ashton, Esq. LeBoeuf, Lamb, Greene & MacRae LLP 1875 Connecticut Avenue, N.W. Suite 1200 Washington, D.C. 20009 Telephone: (202) 986-8000 Facsimile: (202) 986-8102
15. No waiver by any party hereto of any breach of any condition or provision of this
Stipulation shall be deemed a waiver of a similar or dissimilar provision or condition.
16. The undersigned Class Member(s) and/or the undersigned counsel (individually and on behalf of the Class Member(s)), consent to the jurisdiction of the United States District
Court for the District of New Jersey for purposes of interpretation and enforcement of this
Stipulation.
6 Case 2:04-cv-01398-JWB-GDH Document 50-8 Filed 07/08/2005 Page 7 of 7
17. This Stipulation shall be governed by and construed in accordance with the law of the State of New Jersey, excluding it conflict of laws provisions.
18. This Stipulation may be executed in any number of counterparts.
Executed this ______day of ______, 2005.
COUNSEL, INDIVIDUALLY AND ON BEHALF OF THE CLASS MEMBER(S):
______[Signature]
______[Print Name]
______[Print name of Class Member(s)]
______[Address and Telephone Number]
THE CLASS MEMBER (signature not required if Counsel has signed):
______[Signature]
______[Print Name]
______[Address and Telephone Number]
7 Case 2:04-cv-01398-JWB-GDH Document 50-9 Filed 07/08/2005 Page 1 of 1
Exhibit A to Stipulation of Confidentiality
UNDERTAKING
The undersigned hereby certifies that he/she understands that Confidential Information is being provided to him/her pursuant to the terms and restrictions of a Stipulation of Confidentiality (the “Stipulation”), the terms of which have been incorporated into a ______, 2005 Order (the “Order”) entered by the United States District Court for the District of New Jersey (the “Court”) in the class action captioned In re Royal Dutch/Shell Transport ERISA Litigation, Civil Action No. 04-1398 (the “Action”). The undersigned also certifies that he/she has been provided with a copy of the Stipulation, has read and understands the terms of it, and agrees to be bound by all terms of it.
The undersigned acknowledges that breach of the Stipulation shall be actionable by any party to the Action, and that such breach shall subject the undersigned to any and all applicable legal and equitable remedies for enforcement of the Stipulation and/or relief, including damages, for its breach. The undersigned also acknowledges that breach of the Stipulation will violate the Court’s Order and may subject the undersigned to an order of contempt of court or other sanctions, upon application to the Court by any Party to the Action. The undersigned hereby subjects himself/herself to the jurisdiction of the Court for purposes of enforcement of the Stipulation and/or the Order.
______Signature
______Printed Name
______, 2005 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 1 of 13
EXHIBIT E
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
ORDER APPROVING SETTLEMENT
WHEREAS, Co-Lead Plaintiffs and Defendants entered into a ______, 2005
Stipulation of Settlement; and
WHEREAS, the Court entered a ______, 2005 Order (the “Preliminary
Approval Order”) preliminarily certifying the putative class in this Action1 for settlement
purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2), ordering individual and publication
notice to Class Members, scheduling a Fairness Hearing for August 22, 2005 and providing
Class Members with an opportunity to object to the proposed settlement; and
WHEREAS, the Court held a Fairness Hearing on _____, 2005 to determine
whether to give final approval to the Settlement Agreement; and
WHEREAS, the Court is contemporaneously issuing a Judgment under Fed. R.
Civ. P. 58 that, among other things, finally certifies the settlement Class, approves the Settlement
Agreement and dismisses the Class Members’ claims with prejudice;
1. Unless otherwise specifically defined herein, the capitalized terms in this Order Approving Settlement have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 2 of 13
NOW THEREFORE, based on the submissions of the Parties, on the argument of counsel at the Fairness Hearing, and on this Court’s Findings of Fact and Conclusions of Law, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. Incorporation of Settlement Documents – This Order Approving Settlement
(the “Order”) incorporates and makes a part hereof:
a. the _____, 2005 Stipulation of Settlement filed with this Court on _____,
2005; and
b. Exhibits A through H to the Stipulation of Settlement.
The Stipulation of Settlement and all exhibits thereto shall be referred to collectively as the
“Settlement Agreement.”
2. Jurisdiction – The Court has personal jurisdiction over all Class Members (as defined below) and has subject matter jurisdiction over this Action, including, without limitation, jurisdiction to approve the Settlement Agreement and the Plan of Allocation, grant final certification of the Class for settlement purposes and dismiss the Action with prejudice.
3. Final Class Certification – The Class this Court preliminarily certified as a non- opt-out class is hereby finally certified for settlement purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2) as a non-opt-out class. The Class consists of all persons (“Class” or “Class
Members”) who were participants or had an interest in one or more of the ERISA Plans during the period from December 3, 1999 through April 29, 2004, inclusive (the “Class Period”); provided that such individuals shall not be Class Members with respect to any purchase, sale, exchange, acquisition, disposal, transfer or any other Investment Decision involving Royal Dutch
Securities outside of and separate from their participation or interest in the ERISA Plans.
2 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 3 of 13
4. Court Findings – The Court finds that (i) Co-Lead Plaintiffs are asserting, among
other things, claims on behalf of the ERISA Plans, (ii) the settlement of the Actions arises from a
genuine controversy between the Co-Lead Plaintiffs and the Defendants, is not the result of collusion and was not procured by fraud or misrepresentation, (iii) the Settlement Agreement was negotiated by counsel appointed by the Court in the Action and such counsel have acted in the best interest of Co-Lead Plaintiffs, Class Members and the ERISA Plans in negotiating the
Settlement Agreement vigorously and at arm’s-length, (iv) Plaintiffs’ Co-Lead Counsel have no relationship to, or interest in, any of Releasees that might affect their judgment as counsel for
Co-Lead Plaintiffs or Class Members, (v) the interests of Co-Lead Plaintiffs are identical to the interests of the ERISA Plans and Class Members, (vi) except as set out in paragraph 4(vii) below,
the ERISA Plans do not have any additional or independent claims that arise out of the Claims
made in the Actions above and beyond those asserted by Co-Lead Plaintiffs on behalf of Class
Members and the ERISA Plans’ participation in the settlement is not less favorable than that of
Co-Lead Plaintiffs and Class Members, (vii) as to any additional or independent claims that the
ERISA Plans may have based upon federal or state securities laws (but not upon ERISA), such
claims have been preserved and have not been released pursuant to the Settlement Agreement;
(viii) the settlement is not part of an agreement, arrangement or understanding designed to
benefit a party in interest, but rather is designed to benefit the ERISA Plans and Class Members
(who are all participants in the ERISA Plans), (ix) an independent fiduciary reviewed the
settlement and found that the settlement of this Action in accordance with the terms and
conditions in the Settlement Agreement is in the best interests of the ERISA Plans and the Class
Members and (x) accordingly, the negotiation and consummation of the Settlement Agreement
by Co-Lead Plaintiffs on behalf of the ERISA Plans and Class Members satisfy the conditions of
3 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 4 of 13
the class exemption published by the Department of Labor at 68 Fed. Reg. 75632 (Dec. 31,
2003), and, in any event, do not constitute “prohibited transactions” as defined by ERISA
§§ 406(a)-(b), 29 U.S.C. §§ 1106(a)-(b).
5. Adequacy of Representation – Named plaintiffs Gordon Lancaster, John
Tristan, Jose Valadaz, Oscar Pena, Hernaldo Rivera, John R. Rosenboom and Scott Franklin, Jr. and the law firms of Wechsler Harwood LLP, Scott + Scott, LLC and Milberg Weiss Bershad &
Schulman LLP were appointed Co-Lead Plaintiffs and Plaintiffs’ Co-Lead Counsel, respectively, by the Court in a June 30, 2004 order. Lite DePalma Greenberg & Rivas, LLC was appointed
Plaintiffs’ Liaison Counsel by the same order. Co-Lead Plaintiffs, Plaintiffs’ Co-Lead Counsel
and Plaintiffs’ Liaison Counsel have fully and adequately represented the Class for purposes of
entering into and implementing the settlement and have satisfied the requirements of Fed. R. Civ.
P. 23(a)(4).
6. Notice – The Court finds that the distribution of the Notice, the publication of the
Summary Notice and the notice methodology were all implemented in accordance with the terms
of the Settlement Agreement and this Court’s Preliminary Approval Order. The Court further
finds that the Notice and Summary Notice were simply written and readily understandable, and
that the Notice, Summary Notice and notice methodology: (i) constituted the best practicable
notice, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise
Class Members of the pendency of the Action, their right to review discovery produced to Co-
Lead Plaintiffs by Defendants, their right to object to the proposed settlement and their right to appear at the Fairness Hearing, (iii) were reasonable and constituted due, adequate and sufficient
notice to all persons entitled to notice, and (iv) met all applicable requirements of the Federal
4 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 5 of 13
Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the
Rules of the Court and any other applicable law.
7. Final Settlement Approval – The terms and provisions of the Settlement
Agreement have been entered into in good faith and are hereby fully and finally approved as fair, reasonable and adequate as to, and in the best interests of, each of the Parties and the Class
Members, and in full compliance with all applicable requirements of the Federal Rules of Civil
Procedure, the United States Constitution (including the Due Process Clause), the Rules of the
Court and any other applicable law. The Parties and their counsel are hereby directed to
implement and consummate the Settlement Agreement according to its terms and provisions.
8. Plan of Allocation – The Plan of Allocation is approved as a fair and reasonable method to allocate the relevant settlement proceeds among Class Members, and Plaintiffs’ Co-
Lead Counsel and the Administrator are directed to implement and administer the Plan of
Allocation in accordance with its terms and provisions.
9. Binding Effect – The terms of the Settlement Agreement and of this Order and the accompanying Judgment shall be forever binding on Co-Lead Plaintiffs and all Class
Members, as well as their heirs, executors, administrators, beneficiaries, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns as to all claims and
issues that have or could have been raised in these Actions.
10. Release – The Release as set forth in Section VIII of the Settlement Agreement
(and as set out in Appendix A to this Order) are expressly incorporated herein in all respects.
The Release shall be effective as of the Final Settlement Date.
11. Permanent Injunction – All Class Members (and their heirs, executors and administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and
5 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 6 of 13
assigns) are permanently enjoined from filing, commencing, prosecuting, intervening in,
participating in (as class members or otherwise), or receiving any benefits or other relief from,
any other lawsuit, arbitration or other proceeding or order in any jurisdiction that is based upon, arises out of or relates to any Released Claims. All persons or entities are permanently enjoined from organizing any Class Members for purposes of pursuing as a purported class action
(including by seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action) any lawsuit that is based upon, arises out of or relates to any Released Claims.
12. Bar Order
a. Any and all persons and entities are permanently barred, enjoined and
restrained from commencing, prosecuting or asserting any claim against any Releasee arising
under state, federal or common law, however styled, whether for indemnification or contribution
or otherwise denominated, including, without limitation, claims for breach of contract and for misrepresentation, where the claim is based upon, arises out of, or relates to any Released Claim, whether such claims are legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued or un-accrued, including, without limitation, any claim in which a person or entity seeks to recover from any or all of the Releasees (i) any amounts such person or entity
may become liable to pay to any of the Class Members and/or (ii) any costs, expenses, or
attorneys’ fees from defending any claim by any of the Class Members. All such claims are
hereby extinguished, discharged, satisfied and unenforceable, subject to a hearing to be held by
the Court, if necessary. The provisions of this paragraph 12.a are intended to preclude any
liability of any and all of the Releasees to any person or entity for indemnification, contribution,
or otherwise on any claim based upon, arising out of, or relating to any Released Claim; provided
6 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 7 of 13
that, with respect to any judgment against any person or entity on behalf of the Class or a Class
Member based upon, arising out of, or relating to any Released Claim, that person or entity shall be entitled to a credit of the greater of (i) an amount that corresponds to the percentage of responsibility of Releasees for the loss to the Class or a Class Member or (ii) the amount of the
Cash Settlement Amount. If any provision of this paragraph 12.a is subsequently held to be unenforceable, such provision shall be substituted with such other provision as may be necessary to afford all of the Releasees the fullest protection permitted by law from any claim that is based upon, arises out of, or relates to any Released Claim;
b. Each and every Releasee is permanently barred, enjoined and restrained from commencing, prosecuting or asserting any claim against any person or entity (including any other Releasee) arising under state, federal, or common law, however styled, whether for indemnification or contribution, or otherwise denominated, including, without limitation, claims for breach of contract and for misrepresentation, where the claim is based upon, arises out of, or relates to any Released Claim, whether such claims are legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued or un-accrued, including, without limitation, any claim in which any Releasee seeks to recover from any person or entity, including another Releasee, (i) any amounts any such Releasee has or may become liable to pay to any of the Class Members and/or (ii) any costs, expenses, or attorneys’ fees from defending any claim by any of the Class Members. All such claims are hereby extinguished, discharged, satisfied, and unenforceable.
c. If, notwithstanding the Bar Order, a person or entity obtains a judgment against any or all of the Releasees on any claim that is based upon, arises out of, or relates to any
Released Claim, or on any other claim, however denominated, to recover, directly or indirectly
7 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 8 of 13
from such Releasee, (i) any amounts that the person or entity obtains in the judgment against the
Releasee might become liable to pay to any of the Class Members or (ii) any costs, expenses, or
attorneys’ fees that such person or entity might incur in defending any claim against him, her or
it by any of the Class Members, the Class and the Class Members agree that they will reduce or
credit any judgment or settlement (up to the amount of such judgment or settlement) that they
might obtain against that person or entity by an amount equal to the amount of that person’s or
entity’s judgment against the Releasee, which amount shall be credited to the Releasee;
d. If a final judgment is entered in favor of a class certified in the Action
against any person or entity before the adjudication of such person’s or entity’s claims against any Releasee, any funds collected on account of such judgment shall not be distributed to the
class that has obtained the judgment, but shall be held in trust pending final adjudication of such
claim, and such funds shall be used as a credit against any judgment rendered in favor of the
person or entity against the Releasee as provided in paragraph 12.c above.
13. Exclusions to Bars – Notwithstanding Sections 10, 11 and 12 above, (i) nothing
in this Order shall bar a Class Member or an ERISA Plan from pursuing any additional or
independent claims that a Class Member or any ERISA Plan may have with respect to his, her or
its purchase, sale, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan during the Class Period to
the extent – and only to such extent – such additional or independent claims are based upon
federal or state securities laws (and not upon ERISA), whether such claims are considered to be
made directly on behalf of the Class Member or on behalf of the ERISA Plan in which the Class
Member participated or had an interest; provided however, that under no circumstances shall a
Class Member or an ERISA Plan be allowed to obtain relief in excess of any damage (if any) he,
8 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 9 of 13
she or it suffered as a consequence of any purchase, sale, exchange, acquisition, disposal,
transfer or any other Investment Decision involving Royal Dutch Securities in connection with
any ERISA Plan; provided further that to the extent any damages award in a proceeding based
upon federal or state securities laws would result in such Class Member or ERISA Plan receiving
relief in excess of any damages suffered, the amount of damages awarded in the proceeding
based upon federal or state securities laws may be reduced by the amount that would be in excess
of the damages actually suffered by the Class Member or ERISA Plan; (ii) nothing in this Order
shall bar a Defendant or one or more of the Companies from seeking to enforce any insurance
contract that may provide coverage or indemnity with respect to any Claim made in this Action
or with respect to the settlement of this Action; (iii) nothing in this Order shall bar either a
Company or a Releasee from enforcing the provisions of any severance or related compromise
agreement between a Company and any Releasee; and (iv) nothing in this Order shall in any way
affect the rights of indemnification as relates to a Releasee who is or was a director, officer or
employee of any of the Companies.
14. No Admissions – Neither this Order and the accompanying Judgment nor the
Settlement Agreement, nor any of the provisions of the Settlement Agreement or any
negotiations leading to its execution, nor any other documents referred to in this Order or the
accompanying Judgment, nor any action taken to carry out this Order and the Judgment is, may
be construed as, offered as, received as, used as or deemed to be evidence of any kind in this
Action, any other action, or any other judicial, administrative, regulatory or other proceeding, or may be construed as, offered as, received as, used as or deemed to be evidence or an admission or concession of any liability or wrongdoing whatsoever on the part of any person or entity, including but not limited to the Defendants, or as a waiver by the Defendants of any applicable
9 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 10 of 13
defense. Entering into or carrying out the Settlement Agreement, and any negotiations or
proceedings related to it, shall not in any event be construed as, offered as, received as, used as
or deemed evidence of, an admission or concession as to the Defendants’ denials or defenses and
shall not be offered or received in evidence in this Action, any other action, or any other judicial,
administrative, regulatory or other proceeding against any Party hereto for any purpose
whatsoever, except as evidence of the settlement or to enforce the provisions of this Order, the
accompanying Judgment and the Settlement Agreement; provided however, that this Order, the
accompanying Judgment and the Settlement Agreement may be filed in any action against or by
the Defendants or Releasees to support a defense of res judicata, collateral estoppel, release,
waiver, good-faith settlement, judgment bar or reduction, full faith and credit, or any other theory
of claim preclusion, issue preclusion or similar defense or counterclaim.
15. Enforcement of Settlement – Nothing in this Order or the accompanying
Judgment shall preclude any action to enforce the terms of the Settlement Agreement.
16. Attorney’s Fees and Expenses – Plaintiffs’ Co-Lead Counsel are hereby
awarded attorney’s fees of ______% of the Cash Settlement Amount, to be paid out
of the Cash Settlement Amount consistent with the terms of the Settlement Agreement, and
expenses in the amount of $______, to be paid by Corporate Defendants
consistent with the terms of the Settlement Agreement.
17. Administrator’s Fees and Expenses – The Court retains jurisdiction to consider
an application by the Administrator for an application of fees and reimbursement of expenses
relating to its implementation of the terms of the Settlement Agreement.
18. No Other Payments – The preceding paragraphs 16 and 17 of this Order cover,
without limitation, any and all claims for attorneys’ fees and expenses, costs or disbursements
10 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 11 of 13
incurred by Plaintiffs’ Co-Lead Counsel or any other counsel of record representing plaintiffs or
Class Members in this Action, or incurred by plaintiffs or the Class Members, or any of them, in connection with or related in any manner to this Action, the settlement of this Action, the administration of the Settlement Agreement, and/or the Released Claims except to the extent otherwise specified in this Order and the Settlement Agreement.
19. Modification of Settlement Agreement – The parties are hereby authorized, without further approval from the Court, to agree to and adopt such amendments, modifications and expansions of the Settlement Agreement, provided that such amendments, modifications and expansions of the Settlement Agreement are not materially inconsistent with this Order and the
Judgment and do not materially limit the rights of Class Members under the Settlement
Agreement.
20. Finding of Fact and Conclusions of Law – The parties are directed to jointly prepare proposed findings of fact and conclusions of law in support of the Court’s Judgment and this Order.
21. Retention of Jurisdiction – The Court has jurisdiction to enter this Order and the accompanying Judgment. Without in any way affecting the finality of this Order and the accompanying Judgment, this Court expressly retains jurisdiction as to all matters relating to the administration, consummation, enforcement and interpretation of the Settlement Agreement, and of this Order and the accompanying Judgment, and for any other necessary purposes, including, without limitation:
a. enforcing the terms and conditions of the Settlement Agreement and resolving any disputes, claims or causes of action that, in whole or in part, are related to or arise out of the Settlement Agreement, this Order or the Judgment (including, without limitation,
11 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 12 of 13
whether a person or entity is or is not a Class Member, and whether claims or causes of action
allegedly related to these Actions are or are not barred by the Judgment or Release);
b. entering such additional orders as may be necessary or appropriate to protect or effectuate this Order and the Judgment approving the Settlement Agreement, dismissing all claims with prejudice, and permanently enjoining Class Members from initiating or pursuing related proceedings, or to ensure the fair and orderly administration of this settlement; and
c. entering any other necessary or appropriate orders to protect and effectuate this Court’s retention of continuing jurisdiction; provided, however, that nothing in this paragraph 21 is intended to restrict the ability of the parties to exercise their rights under paragraph 19 of this Order.
22. Rule 11 Findings – The Courts finds that the Consolidated Complaint was filed as to the Defendants on a good faith basis, that the Complaint was filed in accordance with Rule
11 of the Federal Rules of Civil Procedure based upon all publicly available information. The
Court finds that all Parties and their counsel have complied with each requirement of Rule 11 of
the Federal Rules of Civil Procedure as to all proceedings herein.
23. Dismissal of Action – This Action, including all individual claims and Class
claims resolved by it, is hereby dismissed with prejudice against Co-Lead Plaintiffs and all other
Class Members, without fees or costs to any Party except as otherwise provided in this Order and
the Judgment. The Plaintiffs’ Co-Lead Counsel are hereby ordered to immediately undertake to
have the Texas Action dismissed with prejudice, without fees or costs to any Party except as
provided in the Settlement Agreement.
12 Case 2:04-cv-01398-JWB-GDH Document 50-10 Filed 07/08/2005 Page 13 of 13
24. Entry of Judgment – The Court will separately enter the accompanying
Judgment in accordance with Fed. R. Civ. P. 58.
SO ORDERED this ______day of 2005.
______JOHN W. BISSELL CHIEF JUDGE UNITED STATES DISTRICT COURT
13 Case 2:04-cv-01398-JWB-GDH Document 50-11 Filed 07/08/2005 Page 1 of 13
APPENDIX TO ORDER APPROVING SETTLEMENT
A. Definitions Relevant to Release and Waiver
1. “Claim” means any and all actions, causes of action, proceedings,
adjustments, executions, offsets, contracts, judgments, obligations, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, variances, covenants,
trespasses, damages, demands (whether written or oral), agreements, promises, liabilities,
controversies, costs, expenses, attorneys’ fees and losses whatsoever, whether in law, in
admiralty or in equity and whether based on any federal law, state law, foreign law,
common law doctrine, rule, regulation or otherwise, foreseen or unforeseen, matured or
un-matured, known or unknown, accrued or not accrued, existing now or to be created in
the future.
2. “Released Claims” means each and every Claim or Unknown
Claim, whether arising under any federal law, state law, foreign law, common law
doctrine, rule, regulation or otherwise , (i) that has been asserted in this Action by
ERISA Co-Lead Plaintiffs or any of them against any of the Releasees; (ii) that arises
under ERISA and could have been asserted in any forum by the Class Members or any of
them against any of the Releasees insofar as the Claim or Unknown Claim arises out of or
is based upon the allegations, transactions, facts, matters or occurrences, representation or
omissions involved, set forth or referred to in the Consolidated Complaint, and relates to
the purchase, sale, holding, exchange, acquisition, disposition, transfer or any other
Investment Decision regarding Royal Dutch Securities in any of the ERISA Plans during
the Class Period or (iii) that, subject to Section B.4 below, arises out of or relates in any
Case 2:04-cv-01398-JWB-GDH Document 50-11 Filed 07/08/2005 Page 2 of 13
way to all acts, omissions, nondisclosures, facts, matters, transactions, occurrences or oral
or written statements or representations in connection with or directly or indirectly
relating to the institution, prosecution, defense or settlement of this Action or of the
Texas Action, or to this Settlement Agreement, or the implementation or administration
of it, including, but not limited to, any Claim for attorneys’ fees, costs or disbursements
in connection with the Actions except to the extent otherwise specified in this Settlement
Agreement. Without limiting the generality of the foregoing, and subject to the proviso
below, the term Released Claims includes, without limitation, any Claims or Unknown
Claims arising out of or relating to:
a. any and all of the acts, failures to act, omissions,
misrepresentations, facts, events, matters, transactions, statements, occurrences, or oral or
written statements or representations that have been, could have been or could be directly
or indirectly alleged, embraced, complained of, asserted or described, against any
Releasee or otherwise, set forth or otherwise referred to in the Actions;
b. the contents of any SEC Filing, DOL Filing or IRS Filing
during the Class Period (i) relating to Royal Dutch Securities or one or more of the
Companies or (ii) relating to or made in connection with any of the ERISA Plans;
c. any forward-looking statement regarding the Companies
made by any of the Releasees during the Class Period;
d. the contents of any SEC Filing, DOL Filing, IRS Filing or
any publication, dissemination, adjustment, revision or restatement of financial or other
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information of the Companies, including, without limitation, the recategorization of any
oil or gas reserves, relating to the Class Period;
e. any disclosure, representation or statement of any sort (oral
or written) made by any or all of the Releasees during the Class Period to any person or
entity, or to the public at large regarding, without limitation, the Companies’ business or
financial condition, their operational results and/or their financial or operational
prospects, including, without limitation, any press releases and/or press reports, earnings
calls, memoranda (whether internally or externally circulated), and presentations to
analysts, creditors, rating agencies, banks or other lenders, investment bankers, broker
dealers, investment advisors, investment companies, bond holders, employees of any of
the Companies, potential and actual vendors or customers, participants in one or more of
the ERISA Plans, potential investors and/or shareholders;
f. any disclosure, representation, or statement of any sort (oral
or written) made by any of the Releasees during the Class Period to any person or entity
regarding one or more of the ERISA Plans;
g. any internal and/or external accounting memoranda, reports
or opinions prepared by the Companies or any of the Releasees during, or that relate in
any way to, the Class Period, including, without limitation, any such memoranda, reports
or opinions with respect to the Companies’ categorization of its oil and gas reserves, or
on which any Class Member allegedly relied during the Class Period in purchasing,
selling, exchanging, acquiring, disposing of, transferring, or making any other Investment
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Decision regarding, Royal Dutch Securities in connection with one or more of the ERISA
Plans;
h. the Companies’ record keeping during, or that relates in
any way to the categorization of oil and gas reserves occurring in, the Class Period;
i. any financial statement, audited or unaudited, and any
report or opinion on any financial statement relating to the Companies that was prepared
or issued by one or more of the Companies or any of the Releasees during, or that relates
in any way to, the Class Period, or on which any Class Member allegedly or actually
relied during the Class Period in purchasing, selling, exchanging, acquiring, disposing of,
transferring, or making any other Investment Decision involving, Royal Dutch Securities
in connection with one or more of the ERISA Plans;
j. any statements or omissions by any of the Releasees as to
quarterly or annual results of the Companies during the Class Period, including, without
limitation, statements or omissions in connection with Earnings Releases or during calls
and/or meetings with one or more analysts or investors, and statements or omissions
regarding the categorization of oil and gas reserves;
k. any internal accounting controls or internal audits of the
Companies during, or that relate in any way to, the Class Period, including, without
limitation, any internal audits relating to the categorization of oil and gas reserves;
l. any purchases, sales, exchanges, acquisitions, disposals,
retentions, transfers or other trading (including, without limitation, collar and hedge
transactions) or any other Investment Decision involving Royal Dutch Securities, any
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profits made or losses avoided in connection with a transaction involving Royal Dutch
Securities during the Class Period by any or all of the Releasees, or any acts taken by
Releasees to finance or pay for any such transactions, including, but not limited to, any
personal profit, remuneration or advantage received by a Releasee in connection with a
transaction involving Royal Dutch Securities to which he, she or it was allegedly not
legally entitled;
m. any of the Companies’ accounting practices or procedures,
including any disclosure and disclosure obligations relating thereto, during the Class
Period, including, but not limited to, adoption, use and/or application of any accounting
principles or standards with respect to the Companies’ categorization of oil and gas
reserves;
n. any statements or omissions by any of the Releasees in
connection with the Companies’ acquisition during the Class Period of any entity,
including, without limitation, any statements or omissions regarding the effect of any
such acquisition on, or relationship between, any such acquisition and one or more of the
ERISA Plans;
o. the integration of the Companies or any of their divisions,
business units or companies, and any of the entities that they acquired during the Class
Period;
p. any statements or omission by any of the Releasees in
connection with the Companies’ sale during the Class Period of any divisions, business
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units, companies and/or assets, including, without limitation, the termination of any
ERISA Plans or the transfer of any ERISA Plan assets in connection with such a sale;
q. any and all Claims arising in connection with the purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan during the Class
Period relating in any way to any of the facts or allegations addressed or discussed or in
any way related to the investigation and findings as set out in the Davis Polk Report.
r. the integration or merger of any Employee Benefit Plan
with any of the ERISA Plans during the Class Period;
s. the relationship and any transactions, actual or
contemplated, between or among the Companies and any of their parents, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), divisions, business units,
subsidiaries and entities in which it has a Controlling Interest;
t. any and all Claims arising under ERISA against any of the
individual Releasees that are based upon or arise out of the Releasee’s (i) status as a
director, officer or employee of, or investor in, the Companies or (ii) acts or omissions in
his or her capacity as a director, officer or employee of, or investor in, the Companies;
u. any and all transactions between the Companies and any of
the Releasees or any entity that is an affiliate (as defined in 17 C.F.R. Part 210.1-02.b) of
a Releasee or in which a Releasee has a Controlling Interest;
v. the suitability or prudence of any ERISA Plan’s investment
in Royal Dutch Securities during the Class Period;
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w. any and all activities undertaken by any Releasee in a
fiduciary capacity or otherwise with respect to the ERISA Plans during the Class Period;
x. purchases, sales, exchanges, acquisitions, disposals,
transfers or any other Investment Decisions involving Royal Dutch Securities on behalf
of one of more of the ERISA Plans or on behalf of any participant in or beneficiary of, or
any person having an interest in, one or more of the ERISA Plans;
y. issuance of treasury shares of Royal Dutch Securities to the
ERISA Plans;
z. any and all Claims against any of the individual Releasees
that are based upon or arise out of the Releasee’s (i) alleged status during the Class
Period as a fiduciary or otherwise with respect to one or more of the ERISA Plans or
(ii) acts or omissions during the Class Period in his, her or its capacity as a fiduciary with
respect to one or more of the ERISA Plans;
aa. any or all Claims based upon the design, structure and/or
terms of any of the ERISA Plans;
bb. any and all claims against any Releasee relating to the
administration of any of the ERISA Plans during the Class Period; and
cc. any and all other Claims or other matters relating in any
way to the Companies’ finances, disclosures, financial condition, accounting practices or
categorization or recategorization of oil and gas reserves, or Releasees’ disclosures to or
communications with other parties, including, without limitation, the public and all
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lenders, creditors, shareholders or other persons engaged in financial transactions with
the Companies.
Provided that, notwithstanding anything in this definition, the term “Released Claims”
does not mean, and does not include, any claim relating to the purchase, sale, holding,
exchange, acquisition, disposition, transfer or any other Investment Decision regarding
Royal Dutch Securities outside of any ERISA Plan. Nor does it include any additional or
independent claim that a Class Member or any ERISA Plan may have with respect to his,
her or its purchase, sale, holding, exchange, acquisition, disposal, transfer or any other
Investment Decision regarding Royal Dutch Securities in connection with any ERISA
Plan during the Class Period to the extent – and only to such extent – such additional
independent claim is based solely upon federal or state securities laws (and not upon
ERISA), whether such claim is considered to be made directly on behalf of the Class
Member or on behalf of the ERISA Plan in which the Class Member participated or had
an interest.
3. “Releasee” means each and every one of, and “Releasees” means
all of, the following: the Companies and each of the ERISA Plans, and each of their
respective past and present directors, officers, employees, members, partners, principals,
agents, attorneys, advisors, trustees, administrators, fiduciaries (including, without
limitation, Fidelity Management Trust Company, National Financial Services LLC, and
any other individual or entity that was an independent fiduciary in connection with one or
more of the ERISA Plans during the Class Period), consultants, service providers,
representatives, insurance carriers, accountants and auditors, including, without
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limitation, the Individual Defendants and each of their respective estates, heirs, executors,
agents, attorneys, accountants, trusts, trustees, administrators and assigns.
4. “Unknown Claim” means any Claim that any Class Member does
not know or suspect to exist in his, her or its favor at any time on or before the date that
such Class Member’s release becomes effective, and that, if known by him, her or it,
might have affected his, her or its settlement with any of the Releasees or might have
affected his, her or its decision not to request exclusion from the Class or not to object to
this Settlement Agreement.
B. Releases and Waivers
1. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section B.4 below, on and after the Final
Settlement Date, and after the Cash Settlement Payment has been made, any and all Class
Members (including those who are parties to any other litigation, arbitration or other
proceedings pending on the Final Settlement Date to the extent such litigation, arbitration
or other proceedings are based upon a Released Claim and are brought against any or all
of the Releasees ), on behalf of themselves, their heirs, executors, administrators,
beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-
02.b), assigns, any person or entity claiming by or through any of the Class Members and
any person or entity representing any or all Class Members, for good and sufficient
consideration, the receipt and adequacy of which are hereby acknowledged, shall be
deemed to have, and by operation of law and of the Judgment shall have, fully, finally,
and forever released, relinquished, settled, and discharged all Released Claims against
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each and every one of the Releasees, ERISA Co-Lead Plaintiffs, Plaintiffs’ Co-Lead
Counsel and Defendants’ Counsel, including such Released Claims as already have been,
could have been or could be asserted in any pending litigation, arbitration, or other
proceeding, whether formal or informal.
2. Pursuant to the Order Approving Settlement and the Judgment,
without further action by anyone, and subject to Section B.3 below, on and after the Final
Settlement Date, and after the Cash Settlement Payment has been made, all Parties, on
behalf of themselves, their heirs, executors, administrators, predecessors, successors,
affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or entity claiming
by or through any of the Parties and any person or entity representing any or all Parties,
for good and sufficient consideration, the receipt and adequacy of which are hereby
acknowledged, shall be deemed to have, and by operation of law and of the Judgment
shall have, fully, finally, and forever released, relinquished, settled, and discharged any
and all Settled Parties’ Claims.
3. Notwithstanding Sections B.1 and B.2 above, nothing in the
Judgment shall bar any action or claim by the Parties to enforce the terms of this
Settlement Agreement or the Judgment.
4. Notwithstanding Section B.1 above, nothing in the Judgment shall
bar any additional or independent claim that a Class Member or any ERISA Plan may
have with respect to his, her or its purchase, sale, holding, exchange, acquisition,
disposal, transfer or any other Investment Decision involving Royal Dutch Securities in
connection with any ERISA Plan during the Class Period to the extent – and only to such
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extent – such additional or independent claim is based solely upon federal or state
securities laws (and not upon ERISA), whether such claim is considered to be made
directly on behalf of the Class Member or on behalf of the ERISA Plan in which the
Class Member participated or had an interest; provided however, that under no
circumstances shall a Class Member or an ERISA Plan be allowed to obtain relief in
excess of any damage (if any) he, she or it suffered as a consequence of any purchase,
sale, holding, exchange, acquisition, disposal, transfer or any other Investment Decision
involving Royal Dutch Securities in connection with any ERISA Plan; provided further
that to the extent any damages award in a proceeding based upon federal or state
securities laws would result in such Class Member or ERISA Plan receiving relief in
excess of any damages suffered, the amount of damages awarded in the proceeding based
upon federal or state securities laws may be reduced by the amount that would be in
excess of the damages actually suffered by the Class Member or ERISA Plan.
5. Subject to Section B.3 above, with respect to any and all Released
Claims, the Parties stipulate and agree that, by the terms of the Judgment, each Class
Member on behalf of himself or herself, his or her heirs, executors, administrators,
beneficiaries, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-
02.b), assigns, any person or entity claiming by or through any of the Class Members and
any person or entity representing any or all Class Members shall have and be deemed to
have waived and relinquished, to the fullest extent permitted by law, any and all
provisions, rights and benefits conferred by Section 1542 of the California Civil Code or
any federal, state, or foreign law, rule, regulation or common law doctrine that is similar,
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comparable, equivalent, or identical to, or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, Class Members understand and agree that,
subject to Section V.3 above, the Release is intended to include all Released Claims Class
Members have or may have, including Released Claims that are Unknown Claims.
ERISA Co-Lead Plaintiffs hereby stipulate and agree on behalf of all Class Members that
they shall have and be deemed to have, on or after Final Settlement Date and after the
Cash Settlement Payment has been made, fully, finally and forever settled and released
any and all Released Claims whether or not they are Unknown Claims.
6. With respect to any and all Settled Parties’ Claims, each Party on
behalf of himself, herself or itself, its heirs, executors, administrators, predecessors,
successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b), assigns, any person or
entity claiming by or through any of the Parties and any person or entity representing any
or all Parties stipulates and agrees that, by the terms of the Judgment, each such
individual and entity shall have and be deemed to have waived and relinquished, to the
fullest extent permitted by law, any and all provisions, rights and benefits conferred by
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Section 1542 of the California Civil Code or any federal, state, or foreign law, rule,
regulation or common law doctrine that is similar, comparable, equivalent, or identical to,
or which has the effect 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.
Notwithstanding the provisions of Section 1542 and any similar provisions, rights and
benefits conferred by any law, rule, regulation or common law doctrine of California or
in any federal, state or foreign jurisdiction, each individual and entity providing a release
in Section B.2 above understands and agrees that the Release is intended to include all
Claims and/or Unknown Claims that he, she or it has or may have that relate in any way
to any or all acts directly or indirectly relating to the prosecution, defense or settlement of
the Actions or to this Settlement Agreement, including such Claims that are Unknown
Claims. Each such individual and entity hereby stipulates and agrees that he, she or it
shall have and be deemed to have, on or after Final Settlement Date, and after the Cash
Settlement Payment has been made, fully, finally and forever settled and released any and
all Claims that relate in any way to any or all acts directly or indirectly relating to the
prosecution, defense or settlement of the Actions, or to this Settlement Agreement
whether or not they are Unknown Claims.
7. The releases and waivers contained in this Section B were
separately bargained for and are essential elements of this Settlement Agreement.
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EXHIBIT F UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
JUDGMENT
1. Consistent with the terms of the Order Approving Settlement entered on _____,
2005 (the “Approval Order”), the settlement of this class action on the terms set forth in the
parties’ _____, 2005 Stipulation of Settlement and Exhibits A through H to the Stipulation of
Settlement (collectively the “Settlement Agreement”), is approved as fair, reasonable and
adequate and consistent with and in compliance with all applicable requirements of the Federal
Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the
Rules of this Court and any other applicable law, and is in the best interests of the Settling
Parties1 and the Class Members.
2. Pursuant to Federal Rules of Civil Procedure 23(b)(1) and/or 23(b)(2), the Court
finally certifies a class for settlement purposes that consists of all persons (the “Class” or “Class
Members”) who were participants or had an interest in one or more of the ERISA Plans during
the period from December 3, 1999 through April 29, 2004, inclusive (the “Class Period”);
provided that such individuals shall not be Class Members with respect to any purchase, sale,
1. Unless otherwise specifically defined herein, the capitalized terms in this Judgment have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-12 Filed 07/08/2005 Page 2 of 3
exchange, acquisition, disposal, transfer or any other Investment Decision involving Royal Dutch
Securities outside of and separate from their participation or interest in the ERISA Plans.
3. The Notice, the Summary Notice and the notice methodology, all implemented in accordance with the terms of the Settlement Agreement and this Court’s
Preliminary Approval Order: (i) constituted the best practicable notice, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action, their right to review discovery produced to Co-Lead Plaintiffs by Defendants, their right to object to the proposed settlement and their right to appear at the Fairness Hearing, (iii) were reasonable and constituted due, adequate and sufficient notice to all persons entitled to notice, and (iv) met all applicable requirements of the Federal Rules of Civil Procedure, the
United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law.
4. The claims in this Action are dismissed with prejudice according to the terms
(including the Release) set forth in the Settlement Agreement and in the Approval Order, without costs to any party except as provided therein.
5. Subject to the conditions and limitations set out in paragraph 13 of the Approval
Order, all Class Members (and their heirs, executors and administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns) are permanently enjoined from filing, commencing, prosecuting, intervening in, participating in (as class members or otherwise), or receiving any benefits or other relief from, any other lawsuit, arbitration or other proceeding or order in any jurisdiction that is based upon, arises out of or relates to any Released Claims and (ii) all persons or entities are permanently enjoined from organizing any Class Members for purposes of pursuing as a purported class action (including by
2 Case 2:04-cv-01398-JWB-GDH Document 50-12 Filed 07/08/2005 Page 3 of 3
seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action) any lawsuit that is based upon, arises out of or relates to any
Released Claims.
6. The Court retains continuing and exclusive jurisdiction over this Action for the reasons and purposes, and subject to the conditions, set forth in the Court’s Approval Order.
JUDGMENT is hereby entered in accordance with Federal Rule of Civil
Procedure 58 this ______day of ______, 2005.
______JOHN W. BISSELL CHIEF JUDGE UNITED STATES DISTRICT COURT
3 Case 2:04-cv-01398-JWB-GDH Document 50-13 Filed 07/08/2005 Page 1 of 3
EXHIBIT G
ERISA STRUCTURAL RELIEF
Corporate Defendants will use reasonable best efforts to cause the Shell Oil Company or will cause the “in-house” fiduciaries of the applicable ERISA Plan, as appropriate, to abide by the following guidelines:
A. Information Provided to ERISA Plan Participants
1. All of the ERISA Plans’ standard enrollment materials that are provided to ERISA Plan participants will continue to include a discussion of the benefits of diversification and general risks associated with under diversification (including the particular risks of investing in a single stock, such as an employer’s single stock fund).
2. ERISA Plan participants will continue to receive an annual message stressing the importance of asset allocation and diversification.
B. Training for Trustees of the ERISA Plans
1. To the extent trustees of the ERISA Plans are individuals and not corporate bodies or financial institutions, the Shell Oil Company Board of Directors will ensure that each trustee is provided with appropriate training on an annual basis respecting fiduciary duties including, but not limited to, training on:
a. Members of a plan committee are fiduciaries, and corporate officers are not absolved from fiduciary status
b. Persons who have the power to appoint, retain and remove plan fiduciaries are themselves plan fiduciaries.
c. A fiduciary that appoints another fiduciary has a duty to monitor the appointee’s performance, ensure that the appointee is performing its duties, and take appropriate action in response to any failures by the appointee to comply with ERISA.
d. A fiduciary is liable for a co-fiduciary’s breach of its duties if the fiduciary knowingly participates in, conceals or enables the co- fiduciary’s breach.
e. A plan fiduciary must not materially mislead plan participants, whether by action, inaction or silence, depending upon the circumstances. Case 2:04-cv-01398-JWB-GDH Document 50-13 Filed 07/08/2005 Page 2 of 3
f. Where a fiduciary is aware of material facts that would harm plan participants, the fiduciary may have a duty to disclose facts necessary to protect the participants.
g. ERISA forbids a fiduciary from following plan documents if doing so would be imprudent or would otherwise violate ERISA. This means that a plan fiduciary would be required to ignore the terms of a plan document requiring the plan to be primarily invested in employer stock if such investment would violate the fiduciary duty of prudence or loyalty to plan participants.
h. Where a plan provides that participants may direct the investment of their contributions to the plan, the plan’s fiduciary still has responsibility for ensuring that all of the plan’s investments are prudent. A plan fiduciary must exercise prudence in determining whether to retain a particular investment alternative under the plan, such as an employer stock fund.
C. Updates and Reports
1. The Shell Oil Company Board of Directors will cause to be provided to all trustees of the ERISA Plans periodic updates on material legal developments that clarify or otherwise impact the trustees’ duties.
2. The trustees of the ERISA Plans will report to the Shell Oil Company Board of Directors annually on their activities to ensure that, among other things, the ERISA Plans are being properly and efficiently administered in accordance with the terms and conditions established by the Shell Oil Company as sponsor of the ERISA Plans; including with respect to those procedures designed to effectively monitor fiduciaries, to provide materially relevant information to participants and to provide prudent investment options to participants. (The Shell Oil Company will also use the trustees’ reports to ensure that (a) the ERISA Plans provide an appropriate level of benefits in a cost effective manner to meet the needs and objectives of the Shell Oil Company in sponsoring such plans, such as providing competitive compensation and retaining employees; (b) the Shell Oil Company’s liabilities as plan sponsor are being satisfied; and (c) the liabilities associated with the ERISA Plans are properly reported in accordance with applicable securities law requirements.)
D. Outside Consultants
The fiduciaries of the ERISA Plans will continue to discuss and solicit input from outside consultants, as such fiduciaries deemed appropriate and/or as the circumstances may require, and will do appropriate due diligence respecting the retention of such consultants consistent with Case 2:04-cv-01398-JWB-GDH Document 50-13 Filed 07/08/2005 Page 3 of 3
Department of Labor and Securities and Exchange Commission guidelines.
E. General Guidelines:
1. Maintain effective and knowledgeable fiduciaries to manage and administer the ERISA Plans. Such fiduciaries will have the relevant skills and will be willing and able to devote the necessary time to their duties as fiduciaries of the ERISA Plans. Fiduciaries will be provided with fiduciary orientation (as described herein), meet as appropriate (provided that fiduciaries responsible for the investments of the ERISA Plans shall meet no less than once each quarter), prepare agendas in advance of meetings, and document decisions taken at meetings carefully in minutes and resolutions.
2. Maintain current written policies for the ERISA Plans – not just for investments, but also in respect of plan administration, communications, ethics and conflicts of interest.
3. Maintain committee charters and written delegations, and chart roles and responsibilities to ensure that an effective procedure of accountability is in place.
4. Maintain review, at reasonable intervals, of the performance of trustees of the ERISA Plans and other fiduciaries by the appointing fiduciaries in such manner as may reasonably be expected to ensure that their performance has been in compliance with the terms of the ERISA Plans and statutory standards, and satisfies the needs of the ERISA Plans. No single procedure will be applicable in all cases; the procedure adopted may vary in accordance with the nature of the ERISA Plans and other facts and circumstances relevant to the choice of the procedure.
5. Facilitate an effective flow of timely and relevant information among decision makers, third-party administrators, consultants, counsel, and advisors. Case 2:04-cv-01398-JWB-GDH Document 50-14 Filed 07/08/2005 Page 1 of 6 EXHIBIT H
PLAN OF ALLOCATION
Allocation Between the ERISA Plans1
To the extent administratively feasible:
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Provident Fund shall equal the total Losses of those Class
Members who were participants in the Shell Provident Fund at any time
during the Class Period expressed as a percentage of the aggregate Losses
of all Class Members;
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Pay Deferral Investment Fund shall equal the total Losses of
those Class Members who were participants in the Shell Pay Deferral
Investment Fund at any time during the Class Period expressed as a
percentage of the aggregate Losses of all Class Members; and
• the percentage of the Net Cash Settlement Amount tentatively allocated to
the Shell Trading Savings Plan shall equal the total Losses of those Class
Members who were participants in the Shell Trading Savings Plan at any
time during the Class Period expressed as a percentage of the aggregate
Losses of all Class Members.
For the avoidance of doubt, in December 2004, the Shell Trading Savings Plan as
it related to employer contributions was merged into the Shell Provident Fund and the
Shell Trading Savings Plan as it related to employee contributions was merged into the
1. Unless otherwise specifically defined herein, the capitalized terms in this Plan of Allocation have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-14 Filed 07/08/2005 Page 2 of 6
Shell Pay Deferral Investment Fund. Accordingly, although the allocation in respect of
the Shell Trading Savings Plan shall be performed as described above, it is understood
that any amounts allocated to a participant in respect of his or her participation in the
Shell Trading Savings Plan shall be further allocated to his or her applicable surviving
account under the Shell Provident Fund or the Shell Pay Deferral Investment Fund.
Allocation within each ERISA Plan
To the extent administratively feasible and except as set forth below in respect of
the De Minimis Amount provisions, the Plan of Allocation shall allocate to the account of
each individual participant under the Shell Provident Fund, the Shell Pay Deferral
Investment Fund and the Shell Trading Savings Plan (as in effect prior to its merger into
the Shell Provident Fund and the Shell Pay Deferral Investment Fund in December 2004)
a percentage of the Net Cash Settlement Amount tentatively allocated to each such
ERISA Plan (less the aggregate of the De Minimis Amounts allocated to all participants
of such ERISA Plan as provided below) equal to the Loss of such participant expressed
as a percentage of the aggregate Losses of all Class Members under each such ERISA
Plan. As noted above, the Net Cash Settlement Amount tentatively allocated to each
participant under the Shell Trading Savings Plan in respect of employer contributions
shall be further allocated to the account of such participant under the Shell Provident
Fund and the Net Cash Settlement Amount tentatively allocated to the Shell Trading
Savings Plan in respect of employee contributions shall be further allocated to the
account of such participant under the Shell Pay Deferral Investment Fund.
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For the purposes of this Settlement Agreement, and so long as such amount is not
less than zero, the “Loss” for each participant under each ERISA Plan is expressed by the
formula: Loss = A + B - C - D, where, with respect to each such participant’s account:
A = the dollar value, if any, of the balance in the Royal Dutch
Stock Fund at the close of business on the later of (a) the first day of the
Class Period and (b) the first day the participant had an account balance
invested in the Royal Dutch Stock Fund under such ERISA Plan;
B = the dollar value, if any, of all of the purchases or exchanges
into the Royal Dutch Stock Fund under such ERISA Plan during the Class
Period, as of the time of such purchase(s) and exchange(s); provided
however, that the any dollar value included in “A” shall not be counted for
purposes of “B”;
C = the dollar value, if any, of all sales or exchanges out of the
Royal Dutch Stock Fund under such ERISA Plan during the Class Period,
as of the time of such sale(s) or exchange(s); and
D = the dollar value, if any, of the balance in the Royal Dutch
Stock Fund on the Measurement Date.
Allocation of De Minimis Amount
Each participant whose allocation of the Net Cash Settlement Amount under any
ERISA Plan is less than ten dollars ($10) (“De Minimis Amount”) shall receive an
allocation from the Net Cash Settlement Amount of ten dollars ($10).
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Deposits into Trusts of Plans
The Net Cash Settlement Amount (including any interest thereon) shall be
deposited into the applicable account of the Shell Group Trust holding the assets of the
Shell Provident Fund and the applicable account of the Shell Group Trust holding the
assets of the Shell Pay Deferral Investment Fund, in each case in accordance with the
allocation between the Shell Provident Fund and the Shell Pay Deferral Investment Fund
as set forth in this Settlement Agreement and the approved Plan of Allocation. The
Parties intend and agree that the deposits into the applicable accounts in the Shell Group
Trust shall constitute “restorative payments” within the meaning of Revenue Ruling
2002-45 (or any applicable preceding or succeeding guidance promulgated by the
Internal Revenue Service) for all purposes.
Allocations of Net Cash Settlement Amount to Class Members
Upon the deposit of the Net Cash Settlement Amount into the Shell Group Trust,
the trustees of the Shell Provident Fund and the Shell Pay Deferral Investment Fund shall
cause the proceeds to be allocated among the accounts of the Class Members in
accordance with the approved Plan of Allocation, the operative terms and conditions of
the Settlement Agreement, and the express terms and established administrative practices
and procedures of the applicable ERISA Plan. Each Class Member shall be 100% vested
in his or her allocation of the Net Cash Settlement Amount under the applicable ERISA
Plan. Except as otherwise specifically provided for in this Settlement Agreement, all
allocations of the Net Cash Settlement Amount under each of the Shell Provident Fund
and the Shell Pay Deferral Investment Fund shall in all material respects be subject to,
and governed by, the terms of the such ERISA Plan and all appropriate and customary
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administrative and compliance practices and procedures established in respect of such
ERISA Plan.
Allocations into Appropriate Type of Account
Each Class Member’s allocation of the Net Cash Settlement Amount under each
of the Shell Provident Fund and the Shell Pay Deferral Investment Fund shall be
deposited into his or her various accounts in proportion to the dollar value, if any, of the
balance in each such account invested in the Royal Dutch Stock Fund on the close of
business on the earlier of (i) the last day of the Class Period and (ii) the last day the Class
Member had an account balance invested in the Royal Dutch Stock Fund under such
ERISA Plan (the earlier of such dates, the “Allocation Date”) relative to the dollar value,
if any, of the balance in all such account invested in the Royal Dutch Stock Fund on the
Allocation Date.
Investment
All allocations of the Net Cash Settlement Amount to the accounts of the Shell
Provident Fund and the Shell Pay Deferral Investment Fund shall be invested initially in
the Royal Dutch Stock Fund offered under each ERISA Plan. As soon as
administratively practicable after allocation to Class Members’ accounts, the Net Cash
Settlement Amount as allocated shall be available for investment by the Class Member in
the other investment alternatives to the extent permitted by and in accordance with the
terms of the applicable ERSIA Plan and the established administrative practices and
procedures thereunder, except with respect to those Class Members described below.
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Distributions to Class Members from the ERISA Plans
All allocations attributable to Class Members (including any distributions to those
participants who have previously taken complete distributions from the Shell Provident
Fund, the Shell Pay Deferral Investment Fund and/or the Shell Trading Savings Plan, or
who have commenced distributions from the Shell Provident Fund and/or the Shell Pay
Deferral Investment Fund) shall be distributed to such Class Members in accordance with
the terms and conditions of the applicable ERISA Plan. Distributions made to those
participants who have previously taken complete distributions from the Shell Provident
Fund, the Shell Pay Deferral Investment Fund and/or the Shell Trading Savings Plan (or
who have commenced distributions from the Shell Provident Fund and/or the Shell Pay
Deferral Investment Fund) shall be treated as additional or residual payments, and shall
not be treated as separate distributions for purposes of Internal Revenue Code Section
411(a)(11) and ERISA Section 203(e), and, in any event, the execution and approval of
the Settlement Agreement, in conjunction with a Class Member’s previous election to
take a distribution from the applicable ERISA Plan, shall constitute valid and timely
written consent by the participant to a distribution of his or her respective allocation.
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
______) In re: ) CIVIL ACTION NO. 04-1398 (JWB) ) (Consolidated Cases) IN RE ROYAL DUTCH/SHELL ) Judge John W. Bissell TRANSPORT ERISA ) LITIGATION ) ) ______)
FINDINGS AND ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES AND PRELIMINARILY APPROVING PROPOSED SETTLEMENT
In March and April 2004, four putative class actions were filed against the Royal Dutch
Petroleum Company, The “Shell” Transport and Trading Company, p.l.c., Jeroen van der Veer,
Philip Watts and Pervis Thomas, Jr. alleging violations of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq.
On June 30, 2004, this Court consolidated the putative class actions into the above captioned case, In re Royal Dutch/Shell Transport ERISA Litigation, Civil Action Number 04-
1398 (the “Action”). On that same date, the Court appointed Gordon Lancaster, John Tristan,
Jose Valadez, Oscar Pena, Hernaldo Rivera, John R. Rosenboom and Scott Franklin, Jr. as Co-
Lead Plaintiffs, and the law firms of Wechsler Harwood LLP, Scott + Scott, LLC and Milberg
Weiss Bershad & Schulman LLP as Plaintiffs’ Co-Lead Counsel.1
On July 30, 2004, Co-Lead Plaintiffs in this Action filed their Consolidated Complaint
(the “Complaint”) naming as defendants the Royal Dutch Petroleum Company, The “Shell”
Transport and Trading Company, p.l.c., Jeroen van der Veer, Philip Watts, Walter van de Vijver,
1. Unless otherwise specifically defined herein, the capitalized terms in this Order have the same meaning as attributed to them in the Settlement Agreement. Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 2 of 14
Judy Boynton and Pervis Thomas, Jr. (collectively the “Defendants”). The Complaint asserted
claims based on ERISA on behalf of a proposed class of all persons and entities who participated
or had an interest in one or more of the ERISA Plans. Van der Veer was subsequently dismissed
from the Action.
On November 5, 2004, Defendants filed motions to dismiss the claims in this Action. On
December 17, 2004, Co-Lead Plaintiffs filed an opposition to these motions. The moving
Defendants filed their reply memoranda on February 8, 2005.
Prior to agreeing to a settlement, Co-Lead Plaintiffs conducted substantial discovery,
including (i) reviewing summary plan descriptions, manuals and brochures relating to the ERISA
Plans, (ii) reviewing approximately 800 boxes of documents (comprised of substantially in
excess of 1,000,000 pages of documents) relating to the underlying claims and (iii) conducting
depositions or interviews of relevant individuals, including several of the trustees for the ERISA
Plans.
Following four months of arm’s-length and protracted negotiation, Co-Lead Plaintiffs
and Defendants entered into a Stipulation of Settlement on July 8, 2005, the terms of which will
fully settle all claims that have been asserted or that could be asserted in this Action. Attached to
the Stipulation of Settlement as exhibits are the documents necessary to implement the
settlement. The Stipulation of Settlement and its exhibits are collectively referred to in this
Order as the “Settlement Agreement.” If approved, the Settlement Agreement would result in
dismissal of the Action with prejudice, as well as dismissal with prejudice of a parallel action
filed by one of the Co-Lead Plaintiffs in the United States District Court for the Southern District
of Texas.
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On July 8, 2005, the Court held a Preliminary Approval Hearing to determine whether,
among other things, preliminarily to certify a class for settlement purposes and to authorize the
issuance of notice to members of the settlement class.
Upon reviewing the Settlement Agreement, and all prior proceedings held in this case,
the application of Co-Lead Plaintiffs, and the matter having come before the Court for the
Preliminary Approval Hearing, it is hereby ORDERED, ADJUDGED AND DECREED as
follows:
1. Class Findings – For purposes of the settlement of the Action (and only for such
purposes, and without an adjudication of the merits), the Court preliminarily finds that the
requirements of the Federal Rules of Civil Procedure, the United States Constitution, the Rules
of the Court and any other applicable law have been met in that:
a. The Class, as defined in paragraph 2 below, is ascertainable from records kept by the Corporate Defendants (or their subsidiaries) and/or their agents, and other objective
criteria, and the Class Members are so numerous that their joinder before the Court would be
impracticable.
b. The commonality requirement of Fed. R. Civ. P. 23(a) is satisfied insofar
as Co-Lead Plaintiffs have alleged numerous questions of fact and law purportedly common to
the Class, including whether Defendants violated provisions of ERISA.
c. Based on Co-Lead Plaintiffs’ allegations that Defendants engaged in
uniform misconduct affecting members of the Class, the Court preliminarily finds that the claims
of Co-Lead Plaintiffs are typical of the claims of the Class, and that Co-Lead Plaintiffs and
Plaintiffs’ Co-Lead Counsel will fairly and adequately protect the interests of the Class, in that
(i) the interests of Co-Lead Plaintiffs and the nature of their alleged claims are consistent with
3 Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 4 of 14
those of members of the Class, (ii) there appear to be no conflicts between or among Co-Lead
Plaintiffs and other Class Members, (iii) Co-Lead Plaintiffs have been and appear to be capable
of continuing to be active participants in both the prosecution and the settlement of this Action,
and (iv) Co-Lead Plaintiffs and Class Members are represented by qualified, reputable counsel
who are experienced in preparing and prosecuting large, complicated class actions, including
class actions based upon violations of ERISA.
d. The Court preliminarily finds that, for settlement purposes, (i) the
prosecution of separate actions by individual Class Members would create a risk of
(a) inconsistent or varying adjudications as to individual Class Members that would establish
incompatible standards for the parties opposing the Class or (b) adjudications as to individual
Class Members that would, as a practical matter, be dispositive of the interests of the other
members not parties to the adjudications, or substantially impair or impede those persons’ ability
to protect their interests and (ii) according to the Co-Lead Plaintiffs’ allegations, the parties
opposing the Class have acted or refused to act on grounds generally applicable to those classes,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the Class as a whole (if the Co-Lead Plaintiffs could prove their allegations).
In making these preliminary findings, the Court has considered, among other factors,
(i) the interest of members of the Class in individually controlling the prosecution or defense of
separate actions, (ii) the impracticability or inefficiency of prosecuting or defending separate
actions, (iii) the extent and nature of any litigation concerning these claims already commenced
and (iv) the desirability of concentrating the litigation of the claims in a particular forum.
2. Preliminary Class Certification for Settlement Purposes – Based on the findings set forth in paragraph 1 above, the Court preliminarily certifies the Class for settlement
4 Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 5 of 14
purposes under Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2). The Class consists of all persons
(“Class” or “Class Members”) who were participants or had an interest in one or more of the
ERISA Plans during the period from December 3, 1999 through April 29, 2004, inclusive (the
“Class Period”); provided that such individuals shall not be Class Members with respect to any
purchase, sale, exchange, acquisition, disposal, transfer or any other Investment Decision involving Royal Dutch Securities outside of and separate from their participation or interest in the ERISA Plans. The Court finds that, for the sole purpose of settlement, and without an adjudication of the merits, the Class is sufficiently well-defined and cohesive. The Class, as preliminarily certified pursuant to Fed. R. Civ. P. 23(b)(1) and/or 23(b)(2), is a non-opt-out class.
3. Findings Regarding Proposed Settlement – The Court finds that (i) the
proposed Settlement Agreement resulted from extensive arm’s-length negotiations and was
concluded only after Plaintiffs’ Co-Lead Counsel conducted broad discovery and the parties had
consulted independent experts about the issues raised by the Complaint and (ii) the Settlement
Agreement is sufficiently fair, reasonable and adequate to warrant sending notice of the Action
and proposed Settlement Agreement to Class Members and holding a full hearing on the proposed settlement.
4. Fairness Hearing – The Court hereby schedules a hearing (the “Fairness
Hearing”) for August 22, 2005 at 10:00 a.m. EDT to consider, among other things:
a. whether this Action should be finally certified as a class action for
settlement purposes;
b. whether the proposed settlement of this Action should be approved as fair,
reasonable and adequate and the Action dismissed with prejudice pursuant to the terms of the
Settlement Agreement;
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c. whether the Notice, Summary Notice and notice methodology
implemented pursuant to the Settlement Agreement (i) constituted the best practicable notice,
(ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Class
Members of the pendency of the Action, of the effect of the Settlement Agreement (including the
Release) of their right to object to the proposed settlement and of their right to appear at the
Fairness Hearing, (iii) were reasonable and constituted due, adequate and sufficient notice to all
persons entitled to notice and (iv) met all applicable requirements of the Federal Rules of Civil
Procedure, the United States Constitution (including the Due Process Clause), the Rules of the
Court and any other applicable law;
d. whether Co-Lead Plaintiffs and Plaintiffs’ Co-Lead Counsel adequately
represented the Class for purposes of entering into and implementing the Settlement Agreement;
e. whether Class Members and their heirs, executors and administrators,
predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns should be bound by the Release set forth in the Settlement Agreement;
f. whether Class Members and their heirs, executors and administrators,
predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and assigns should, subject to certain exclusions set out in the Settlement Agreement, be permanently barred and enjoined from filing, commencing, prosecuting, intervening in, participating in (as class
members or otherwise), or receiving any benefits or other relief from, any other lawsuit,
arbitration or other proceeding or order in any jurisdiction that is based upon, arises out of or
relates to any Released Claim;
g. whether any and all persons and entities should, subject to certain
exclusions set out in the Settlement Agreement, be permanently barred and enjoined from
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organizing any Class Members for the purposes of pursuing as a purported class action
(including seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action) any lawsuit that is based upon, arises out of or relates to any
Released Claim;
h. whether, subject to certain exclusions set out in the Settlement Agreement, a complete bar (the “Bar Order”) should be entered that (i) permanently bars, enjoins and restrains any and all persons and entities from commencing, prosecuting or asserting any claim against any Releasee arising under state law, federal law, foreign law or common law doctrine, however styled, whether for indemnification or contribution or otherwise denominated,
including, without limitation, claims for breach of contract and for misrepresentation, where the
claim is based upon, arises out of, or relates to any Released Claim, whether such claims are
legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued
or un-accrued, including, without limitation, any claim in which a person or entity seeks to
recover from any or all of the Releasees (a) any amounts such person or entity may become liable to pay to any of the Class Members and/or (b) any costs, expenses, or attorneys’ fees from defending any claim by any of the Class Members and (ii) permanently bars, enjoins and restrains all Releasees from commencing, prosecuting or asserting any claim against any person or entity (including any other Releasee) arising under state law, federal law, foreign law or common law doctrine, however styled, whether for indemnification or contribution, or otherwise denominated, including, without limitation, claims for breach of contract and for misrepresentation, where the claim is based upon, arises out of, or relates to any Released Claim, whether such claims are legal or equitable, known or unknown, foreseen or unforeseen, matured or un-matured, accrued or un-accrued, including, without limitation, any claim in which any
7 Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 8 of 14
Releasee seeks to recover from any person or entity, including another Releasee, (a) any amounts
any such Releasee has or may become liable to pay to any of the Class Members and/or (b) any costs, expenses, or attorneys’ fees from defending any claim by any of the Class Members; and
i. whether the application for attorneys’ fees and expenses that will be filed by Plaintiffs’ Co-Lead Counsel should be approved.
5. Notice to Class Members – Notice of the settlement of this Action shall be provided to Class Members as follows:
a. No later than July 18, 2005, the Plaintiffs’ Lead Counsel and Defendants’
Lead Counsel shall cause the Notice in a form substantially as set out in as Exhibit B to the
Settlement Agreement and approved by the Court to be mailed, by first-class mail, postage prepaid, to (i) each person in the Class who can be identified by reasonable effort and (ii) in cases of pending litigation (other than in the case captioned In re Royal Dutch/Shell Transport
Securities Litigation, Civil Action No. 04-374 (JWB)), arbitration or other proceeding, or any other Claim, against any Releasee involving any Released Claims, to all legal counsel known by
Plaintiffs’ Co-Lead counsel or Defendants’ Lead Counsel to represent a Class Member.
b. No later than July 18, 2005, Plaintiffs’ Co-Lead Counsel, the
Administrator and the Corporate Defendants (or their relevant subsidiary(ies)) shall cause the
Notice to be published on their respective websites.
c. No later than July 18, 2005, the Plaintiffs’ Co-Lead Counsel and
Defendants’ Lead Counsel shall cause the Summary Notice in a form substantially as set out in as Exhibit C to the Settlement Agreement and approved by the Court to be published on at least one occasion in the newspapers identified in the Settlement Agreement.
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At or before the Fairness Hearing, the Parties and/or the Administrator shall file with the
Court proof of (i) mailing of the Notice pursuant to paragraph 5.a above, (ii) publication of the
Notice on the websites identified in paragraph 5.b above and (iii) publication of the Summary
Notice pursuant to paragraph 5.c above.
6. Findings Concerning Notice – Having considered the forms and methods of providing notice to Class Members, the Court finds that notice given in the form and manner provided in paragraph 5 above (i) is the best practicable notice and (ii) is reasonably calculated, under the circumstances, to appraise Class Members of the pendency of this Action, of the effect of the Settlement Agreement (including the Release) and of their right to object to the proposed settlement. The Court further finds that the Notice and Summary Notice provided in the
Settlement Agreement are simply written and will be readily understandable by Class Members and that the Notice, Summary Notice and notice methodology are reasonable, constitute due, adequate and sufficient notice to all persons entitled to be provided with notice, and meet the requirements of the Federal Rules of Civil Procedure (including Fed. R. Civ. P. 23(c)(2) and (e)), the United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law.
7. Retention of Administrator – The Court authorizes Plaintiffs’ Co-Lead Counsel to retain, with the approval of Defendants’ Lead Counsel (which approval shall not be unreasonably withheld), an Administrator to help implement the Settlement Agreement, and authorizes such Administrator to assist the Parties in (i) mailing or arranging for the mailing of the Notice to Class Members, (ii) arranging for publication of the Summary Notice,
(iii) arranging for publication of the Notice on the Administrator’s website; (iv) answering written inquiries from Class Members and/or forwarding such inquiries to Plaintiffs’ Co-Lead
9 Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 10 of 14
Counsel or their designee; (v) providing additional copies of the Notice, upon request, to Class
Members; (vi) calculating and arranging for the allocation of the Net Cash Settlement Amount to
Class Members consistent with the Plan of Allocation; and (vii) otherwise assisting Plaintiffs’
Co-Lead Counsel and Defendants’ Lead Counsel with administration and implementation of the
Settlement Agreement. The Administrator shall also arrange for and staff a toll-free telephone bank consistent with the standard agreed upon by Plaintiffs’ Co-Lead Counsel and Defendants’
Lead Counsel.
8. Communications with Class Members – The Companies maintain the right to communicate orally and in writing with, and to respond to inquiries from, Class Members, including, without limitation: (i) communications between Class Members and representatives of the Companies whose responsibilities include administering the ERISA Plans; and
(ii) communications as may be necessary to implement the terms of this Settlement Agreement
and to conduct the Companies’ normal business.
9. Objections – Any Class Member who wishes to object to the fairness,
reasonableness or adequacy of the Settlement Agreement, to the Plan of Allocation or to any
term(s) of the Settlement Agreement (including, without limitation, the proposed Attorneys’ Fees
and Expenses Award) must both file with the Court and serve on the counsel identified in the
Notice a statement of his or her objection(s) and the specific reason(s), if any, for such objection(s), including any legal support the Class Member wishes to bring to the Court’s attention and any evidence the Class Member wishes to introduce in support of such objection(s).
A Class Member’s written objection must be received by the Court and the counsel identified in the Notice by no later than August 12, 2005. If a Class Member hires an attorney to represent him or her in connection with filing an objection, the attorney must both file with the Court and
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serve on Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel (as identified in the Notice) a
notice of appearance. Such notice of appearance must be received by the Court and the counsel
identified in the Notice by no later than August 12, 2005.
10. Appearance at Fairness Hearing – Any Class Member who files and serves a
timely, written objection in accordance with paragraph 9 above – and only such Class Members
– may also appear at the Fairness Hearing either in person or through counsel retained at the
Class Member’s expense. Class Members or their attorneys intending to appear at the Fairness
Hearing must both file with the Court and serve on the counsel identified in the Notice a notice
of intention to appear. Such notice of intention to appear must be received by the Court and the
counsel identified in the Notice by no later than August 12, 2005. Any Class Member who does
not timely file and serve a notice of intention to appear in accordance with this paragraph shall
not be permitted to appear at the Fairness Hearing, except for good cause shown.
11. Post-Office Box(es) – Plaintiffs’ Co-Lead Counsel or their designated agents are
directed to establish a post-office box or boxes to be used for receiving any communications
regarding the Settlement Agreement. No one other than the Court, the Clerk of the Court,
Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel, or their designated agents, shall
have access to the post-office box or boxes.
12. Access to Discovery Materials – Any Class Member who wishes to review the
discovery materials in this Action for the purpose of assessing the Settlement Agreement (and for that purpose only), may do so under the terms of the Settlement Agreement and upon execution of the Stipulation of Confidentiality in substantially the form that is attached as Exhibit D to the
Settlement Agreement. The terms of the Stipulation of Confidentiality are hereby incorporated into this Preliminary Approval Order and any breach of the Stipulation of Confidentiality shall
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constitute a violation of this Preliminary Approval Order and may, upon application to this Court
by any aggrieved party, result in an order of contempt of Court and/or other sanctions.
13. Preliminary Injunction – All Class Members and their heirs, executors and
administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and
assigns are preliminarily enjoined from filing, commencing, prosecuting, intervening in,
participating in as class members or otherwise, or receiving any benefits or other relief from, any
other lawsuit (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)), arbitration or administrative, regulatory or other
proceeding or order in any jurisdiction, based on or relating in any way to the Released Claims.
All other persons or entities are preliminarily enjoined from filing, commencing or prosecuting
any other lawsuit (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)) as a class action (including by seeking to amend a
pending complaint to include class allegations or by seeking class certification in a pending
action in any jurisdiction) on behalf of any Class Member(s) if such other lawsuit is based on or
relates in any way to the Released Claims. The Court finds that issuance of this preliminary
injunction is necessary and appropriate in aid of the Court’s jurisdiction over this Action.
14. Binding Effect – All Class Members and their heirs, executors and
administrators, predecessors, successors, affiliates (as defined in 17 C.F.R. Part 210.1-02.b) and
assigns will be bound by all proceedings, orders and judgments relating to the Settlement
Agreement, even if such Class Members have previously initiated or subsequently initiate
litigation (other than in the case captioned In re Royal Dutch/Shell Transport Securities
Litigation, Civil Action No. 04-374 (JWB)), arbitration or other proceedings, or have any other
Claim against any or all of the Releasees relating to any of the Released Claims.
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15. Service of Papers – Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel shall
serve on each other and on all other parties who have filed notices of appearance, at or before the
Fairness Hearing, any further documents in support of the Settlement Agreement, including responses to any papers filed by Class Members and/or Class Members’ counsel. Plaintiffs’ Co-
Lead Counsel (and any other counsel for Co-Lead Plaintiffs or the Class) and Defendants’
Counsel shall promptly furnish to each other any and all objections, notices of appearance and
notices of intention to appear that may come into their possession, and if not on file with the
Court, shall file such papers with the Court on or before the date of the Fairness Hearing.
16. Termination of Settlement – This Order shall become null and void, and shall be
without prejudice to the rights of the parties, all of whom shall be restored to their respective
positions existing immediately before this Court entered this Order, if (i) the proposed settlement
is not finally approved by the Court, or does not become final, pursuant to the terms of the
Settlement Agreement or (ii) the proposed Settlement Agreement is terminated or does not
become effective in accordance with the terms of the Settlement Agreement for any other reason.
In such event, the proposed Settlement Agreement shall become null and void and be of no
further force or effect, and neither the Settlement Agreement nor any Court’s order regarding the
Settlement Agreement, including this Order, shall be used or referred to for any purpose
whatsoever.
17. Use of Order – This Order shall be of no force or effect if the Settlement
Agreement does not become final and shall not be construed or used as an admission, concession
or declaration by or against Defendants of any fault, wrongdoing, breach or liability. Nor shall
the Order be construed or used as an admission, concession or declaration by or against Co-Lead
Plaintiffs or any Class Member that their claims lack merit or that the relief requested in the
13 Case 2:04-cv-01398-JWB-GDH Document 50-16 Filed 07/08/2005 Page 14 of 14
Complaint is inappropriate, improper or unavailable, or as a waiver by any Party of any defenses
or claims he, she or it may have.
18. Continuance of Hearing – The Court reserves the right to continue the Fairness
Hearing without further written notice.
SO ORDERED this ____ day of ______, 2005.
______JOHN W. BISSELL CHIEF JUDGE UNITED STATES DISTRICT COURT
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