stuart j. baskin, admitted pro hac vice shearman...
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2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 1 of 111 Page ID
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STUART J. BASKIN, admitted pro hac vice sbaskin() shearrnan.com
SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179
PATRICK D. ROBBINS, SBN 152288 probbins()shearrnan.corn
EMILY V.GRIFFEN, SBN 209162 egriffen()shearman.corn
SHARMAN & STERLING LLP 4 Embarcadero Center, Suite 3800 San Francisco, CA 94111-5994 Telephone: (415) 616-1100 Facsimile: (415) 616-1199
KAY E. KOCHENDERFER, SBN 125847 kkochenderfer()gibsondunn. corn
GARETH T. ES, SBN 138992
Avansgibsondunn. corn SON, DUNN & CRUTCHER LLP
333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 Attorneys for Defendants Toyota Motor Corporation, Toyota Motor North America, Inc., Toyota Motor Sales, U.S.A. 2 Inc., Katsuaki Watanabe, Fujio Cho, Yoshirni Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter, and Robert C. Daly
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
IN RE TOYOTA MOTOR CASE NO. 10-CV-922 DSF (AJWx) CORPORATION SECURITIES LITIGATION CLASS ACTION
STIPULATION OF SETTLEMENT
Gibson, Dunn & Crutcher LLP
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This Stipulation of Settlement dated as of November 9, 2012 (the
"Stipulation") is made and entered into by and among (i) Lead Plaintiff Maryland
State Retirement and Pension System ("Lead Plaintiff") (on behalf of itself and
each of the Class Members), by and through its counsel of record; and
(ii) Defendants Toyota Motor Corporation, Toyota Motor North America, Inc.,
Toyota Motor Sales, U.S.A., Inc. (collectively, "Toyota"), Katsuaki Watanabe,
Fujio Cho, Yoshimi Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter,
and Robert C. Daly (collectively, "Defendants"), by and through their counsel of
record. This Stipulation is intended to fully, finally, and forever resolve,
discharge, and settle the Released Claims (as defined herein), subject to the
approval of the Court and the terms and conditions set forth in this Stipulation.
I. THE LITIGATION
On and after February 8, 2010, the following seven putative class action cases
were filed in the United States District Court for the Central District of California: (1)
Harry Stackhouse v. Toyota Motor Corporation, et al., 10-CV-922 DSF (AJWx); (2)
Tom Mustric v. Toyota Motor Corporation, et al., 10-CV-1429 DSF (AJWx); (3)
Kathryn A. Squires v. Toyota Motor Corporation, et al., 10-CV-l452 DSF (AJWx); (4)
Robert M Moss v. Toyota Motor Corporation, et al., 10-CV-1911 DSF (AJWx); (5)
Phillip Ge/en berg v. Toyota Motor Corporation, et al., 10-CV-2196 DSF (AJWx); (6)
Patricia Sampoli v. Toyota Motor Corporation, et al., 10-CV-2253 DSF (AJWx); and
(7) Hare! Pia Mutual Fund v. Toyota Motor Corporation, et al., 10-CV-2578 DSF
(AJWx)'. On June 7, 2010, the Court ordered these cases consolidated (Did. # 128)
and on August 2, 2010, the Court appointed Maryland State Retirement and Pension
System ("Maryland SRPS") as Lead Plaintiff, the law firm of Bernstein Litowitz
1 On July 20, 2010, Plaintiff Harel Pia Mutual Fund filed a Notice of Voluntary Dismissal in Case No. 10-CV-2578 DSF (AJWx) (Dkt. # 24).
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Gibson, Dunn & Crutcher LLP
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1 Berger & Grossmann LLP as Lead Plaintiff's Counsel for the putative class, and the
2 law firm of Fairbank & Vincent as Liaison Counsel for the putative class (Dkt. # 152).
3
On October 4, 2010, Lead Plaintiff Maryland SRPS filed a Consolidated Class
4 Action Complaint (the "Complaint") (Dkt. # 174) alleging claims under Sections 10(b)
5 and 20(a) of the Securities Exchange Act of 19' :)4, on behalf of a Class of purchasers of
6 Toyota Motor Corporation American Depositary Shares between May 10, 2005 and
7 February 2, 2010, inclusive (and also on behalf of purchasers of Toyota Motor
8 Corporation common stock in domestic transactions during the same period), based on
9 allegations that Defendants concealed unintended acceleration problems affecting
10 Toyota vehicles. Lead Plaintiff also alleged a claim on behalf of purchasers of Toyota
11 Motor Corporation common stock between May 10, 2005 and February 2, 2010,
12 inclusive, under Article 21-2 of Japan's Financial Instruments and Exchange Act based
13 on allegations that Defendants concealed unintended acceleration problems affecting
14 Toyota vehicles. On January 20, 2011, Defendants filed a Motion to Dismiss the
15 Complaint (Dkt. #180). On July 7, 2011, the Court issued an order (Dkt. # 213)
16 granting in part and denying in part Defendants' Motion to Dismiss. Among other
17 things, the Court dismissed the claim on behalf of purchasers of Toyota Motor
18 Corporation common stock under Article 21-2 of Japan's Financial Instruments and
19 Exchange Act. Lead Plaintiff did not amend the Complaint after the Court issued its
20 order partially granting Defendants' Motion to Dismiss. On September 9, 2011,
21 Defendants filed their Answer to the Complaint (Dkt. # 229). On December 9, 2011,
22 Defendants filed a Motion for Partial Judgment on the Pleadings (Dkt. # 243) and on
23 February 21, 2012, the Court denied that Motion (Dkt. # 253).
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On February 17, 2012, Lead Plaintiff filed a Motion for Class Certification (Dkt.
25 # 250) seeking certification of a class of persons and entities that purchased or
26 otherwise acquired the American Depositary Shares ("ADS's") of Toyota Motor
27 Corporation and seeking appointment of Maryland SRPS as class representative and
28 Bernstein Litowitz Berger & Grossmann LLP as class counsel. On May 8, 2012,
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Defendants filed their Opposition (Dkt. # 265)2 to the Motion for Class Certification
and a Motion to Exclude the Expert Report of Lead Plaintiff's expert Chad Coffman
(Dkt. # 267). On August 2, 2012, Lead Plaintiff filed its Reply in support of its Motion
for Class Certification (Dkt. # 280), its Opposition to the Motion to Exclude the
Expert Report of Chad Coffman (Dkt. # 281), and on August 9, 2012, Lead Plaintiff
filed a Motion to Exclude the Expert Report of Defendants' expert Professor Paul A.
Gompers (Dkt. # 283). On August 30, 2012, Defendants filed their Reply in support of
their Motion to Exclude the Expert Report of Chad Coffman (Dkt. # 289) and on
September 6, 2012, Defendants filed their Opposition to Lead Plaintiffs Motion to
Exclude the Expert Report of Professor Goinpers (Dkt. # 292). On September 27,
2012, Lead Plaintiff filed its Reply in Support of its Motion to Exclude the Expert
Report of Professor Gompers (Dkt. # 297).
On October 5, 2012, Lead Plaintiff and Defendants (collectively, the "Parties")
filed a Joint Stipulation (Dkt. # 299) to continue the hearing on the Motion for Class
Certification and the Motions to Exclude the Expert Reports of Lead Plaintiffs Expert
Chad Coffman and Defendants' Expert Professor Gompers to December 3, 2012, and
staying discovery pending further order of the Court, on the grounds that the Parties
were engaged in settlement discussions that the Parties believed would lead to a
settlement, subject to board approvals. On October 10, 2012, the Court entered an
Order (Dkt. # 300) approving the Stipulation that continued the hearings to December
3, 2012 and stayed discovery pending further order of the Court.
II. DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
Defendants have denied and continue to deny each and all of the claims and
contentions alleged by the Lead Plaintiff in the Litigation. Defendants expressly have
2 On June 7, 2012, Defendants filed an Amended Opposition to Lead Plaintiffs Motion for Class Certification (Dkt. # 269).
On August 9, 2012 Lead Plaintiff filed an Amended Reply (Dkt. # 287) in support of its Motion for Class Certification.
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1 denied and continue to deny all charges of wrongdoing or liability against them arising
2 out of any of the conduct, statements, acts or omissions alleged, or that could have
3 been alleged, in the Litigation. Defendants also have denied and continue to deny,
4 among other things, the allegations that the Lead Plaintiff or the Class Members have
5 suffered damage, that the prices of Toyota's securities (including but not limited to
6 Toyota Motor Corporation's ADS's) were artificially inflated by reasons of alleged
7 misrepresentations, non-disclosures or otherwise, that the Lead Plaintiff or the Class
8 Members can prove that any alleged statements caused their alleged losses, or that the
9 Lead Plaintiff or the Class Members were otherwise harmed by the conduct alleged in
10 the Litigation. Defendants believe that the evidence developed to date supports their
11 position that they acted properly at all times and that the Litigation is without merit.
12
Nonetheless, Defendants have concluded that further conduct of the Litigation
13 could be protracted and expensive, and that it is desirable that the Litigation be fully
14 and finally settled in the manner and upon the terms and conditions set forth in this
15 Stipulation. Defendants also have taken into account the uncertainty and risks inherent
16 in any litigation, especially in complex cases like the Litigation. Defendants have,
17 therefore, determined that it is desirable and beneficial to them that the Litigation be
18 settled in the manner and upon the terms and conditions set forth in this Stipulation.
19 III. CLAIMS OF THE LEAD PLAINTIFF AND BENEFITS OF
20
SETTLEMENT
21
Lead Plaintiff believes that the claims asserted in the Litigation have merit and
22 that the evidence developed to date supports the claims. Lead Plaintiff and its counsel
23 recognize and acknowledge, however, the expense and length of continued
24 proceedings necessary to prosecute the Litigation against the Defendants through trial
25 and through appeals. Lead Plaintiff and its counsel also have taken into account the
26 uncertain outcome and the risk of any litigation, especially in complex actions such as
27 the Litigation, as well as the difficulties and delays inherent in such litigation. Lead
28 Plaintiff and its counsel also are mindful of the inherent problems of proof under and
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1 possible defenses to the securities law violations asserted in the Litigation. Based on
2 their evaluation, Lead Plaintiff and its counsel believe that the settlement set forth in
3 this Stipulation confers substantial benefits upon the Class and that it is in the best
4 interests of the Class.
5 I IV. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
6
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and
among Lead Plaintiff (for itself and the Class Members) and the Defendants, by and
8 through their respective counsel or attorneys of record, that, subject to the approval of
9 the Court, the Litigation and the Released Claims shall be finally and fully
10 compromised, settled and released, and the Released Claims in the Litigation shall be
11 dismissed with prejudice, as to all Settling Parties, upon and subject to the terms and
12 conditions of the Stipulation, as follows:
13
1. Definitions
14
As used in the Stipulation the following terms have the meanings specified
15 I below:
16
1.1. "Authorized Claimant" means any Class Member whose claim for
17 I recovery has been allowed pursuant to the terms of the Stipulation.
18
1.2. "Claimant" means any Class Member who files a Proof of Claim in such
19 form and manner, and within such time, as the Court shall prescribe.
20
1.3. "Claims Administrator" means the claims administration firm selected by
21 Lead Plaintiff subject to Court approval.
22
1.4. "Class" means all Persons (other than those Persons who timely and
23 validly request exclusion from the Class) who purchased or otherwise acquired the
24 American Depositary Shares of Toyota Motor Corporation during the period from May
25 10, 2005, through and including February 2, 2010, excluding the Defendants and their
26 Related Persons.
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1.5. "Class Member" or "Member of the Class" means a Person who falls
28 within the definition of the Class as set forth in ¶ 1.4 above.
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1.6. "Class Period" means May 10, 2005, through and including February 2,
2 1 2010.
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1.7. "Defendants" means Toyota Motor Corporation, Toyota Motor North
4 America, Inc., Toyota Motor Sales, U.S.A., Inc., Katsuaki Watanabe, Fujio Cho,
5 Yoshimi Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter, and Robert C.
6 Daly.
7
1.8. "Effective Date," or the date upon which this settlement becomes
8 "effective," means the date by which all of the events and conditions specified in ¶ 7.1
9 of the Stipulation have been met and have occurred.
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1.9. "Escrow Account" means an account maintained at Valley National Bank
11 to hold the Settlement Fund, which account, subject to the Court's supervisory
12 authority, shall be under the exclusive control of Lead Counsel.
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1.10. "Escrow Agent" means Valley National Bank.
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1.11. "Final" means when the last of the following with respect to the Judgment
15 approving the Stipulation, substantially in the form and content of Exhibit B attached
16 hereto, shall occur: (i) the expiration of the time to file a motion to alter or amend the
17 Judgment under Federal Rule of Civil Procedure 5 9(e) without any such motion having
18 been filed or, if such a motion is filed, the Judgment is not altered or amended; (ii) the
19 time in which to appeal the Judgment has passed without any appeal having been
20 taken; and (iii) if an appeal is taken, immediately after (a) the date of final dismissal of
21 any appeal or the final dismissal of any proceeding on certiorari, or (b) the date of
22 affirmance of the Judgment on appeal and the expiration of time for any further
23 judicial review whether by appeal, reconsideration or a petition for writ of certiorari
24 and, if certiorari is granted, the date of final affirmance of the Judgment following
25 review pursuant to that grant. For purposes of this paragraph, an "appeal" shall
26 include any petition for a writ of certiorari or other writ that may be filed in connection
27 with approval or disapproval of this settlement, but shall not include any appeal
28 pertaining solely to any application for attorney fees, costs or expenses, the Plan of
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1 Allocation of the Settlement Fund, or the procedures for determining Authorized
2 Claimants' recognized claims and any such appeal shall not in any way delay or affect
3 the time set forth above for the Judgment to become Final, or otherwise preclude the
4 Judgment from becoming Final.
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1.12. "Immediate Family" means an individual's spouse, parents, siblings,
6 children, grandparents, and grandchildren; the spouses of his or her parents, siblings
7 and children; and the parents and siblings of his or her spouse; and includes step and
8 adoptive relationships.
9
1.13. "Individual Defendants" means Katsuaki Watanabe, Fujio Cho, Yoshimi
10 Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter, and Robert C. Daly.
11
1.14. "Judgment" means the Final Judgment and Order of Dismissal with
12 Prejudice to be rendered by the Court, substantially in the form and content attached
13 hereto as Exhibit B.
14
1.15. "Lead Counsel" means the law firm of Bernstein Litowitz Berger &
15 I Grossmann LLP.
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1.16. "Lead Plaintiff' means Maryland State Retirement and Pension System.
17
1.17. "Liaison Counsel" means the law firm of Fairbank & Vincent.
18
1.18. "Litigation" means all actions in the consolidated action In Re Toyota
19 Motor Corporation Securities Litigation, Case No. 10-CV-922 DSF (AJWx), including
20 Harry Stackhouse v. Toyota Motor Corporation, et al., 10-CV-922 DSF (AJWx), Tom
21 Mustric v. Toyota Motor Corporation, et al., 10-CV-1429 DSF (AJWx), Kathryn A.
22 Squires v. Toyota Motor Corporation, et al., 10-CV-1452 DSF (AJWx), Robert M
23 Moss v. Toyota Motor Corporation, et al., 10-CV-1911 DSF (AJWx), Phillip
24 Gelenberg v. Toyota Motor Corporation, et al., 10-CV-2196 DSF (AJWx), Patricia
25 Sampoli v. Toyota Motor Corporation, et al., 10-CV-2253 DSF (AJWx), and Hard
26 Pia Mutual Fund v. Toyota Motor Corporation, et al., 10-CV-2578 DSF (AJWx).
27
1.19. "Net Settlement Fund" means the Settlement Fund less (i) any Court-
28 awarded attorney's fees, costs and expenses; (ii) notice and administration or escrow
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1 costs; (iii) Taxes and Tax Expenses; and (iv) any other Court-approved deductions.
2
1.20. "Notice Order" or "Preliminary Approval Order" means the preliminary
3: order as approved by the Court for mailing and publication of notice to Class
4 I Members.
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1.21. "Person" means an individual, corporation, limited liability corporation,
6 professional corporation, joint venture, limited liability partnership, partnership,
7 limited partnership, association, joint stock company, estate, legal representative, trust,
8 unincorporated association, government or any political subdivision or agency thereof,
9 and any business or legal entity.
10
1.22. "Plaintiffs" means the Lead Plaintiff and each of the plaintiffs that filed a
11 complaint and/or appeared in the Litigation.
12
1.23. "Plaintiffs' Counsel" means Lead Counsel, Liaison Counsel and other
13 counsel who represent a Plaintiff in the Litigation.
14
1.24. "Plan of Allocation" means a plan or formula of allocation of the
15 Settlement Fund whereby the Settlement Fund shall be distributed to Authorized
16 Claimants after payment of expenses of notice and administration or escrow of the
17 settlement, Taxes and Tax Expenses, and such attorney fees, costs, expenses and
18 interest as may be awarded by the Court. Any Plan of Allocation is not part of the
19 Stipulation and neither Defendants nor their Related Persons shall have any
20 responsibility or liability with respect thereto.
21
1.25. "Related Persons" means each of a Defendant's past or present directors,
22 officers, managers, employees, partners, members, principals, agents, underwriters,
23 insurers and co-insurers and their reinsurers, controlling shareholders, attorneys,
24 accountants or auditors, personal or legal representatives, predecessors, successors
25 (including by way of merger, consolidation, or other acquisition of controlling
26 interest), parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs,
27 executors, estates, administrators, related or affiliated entities, any entity in which a
28 Defendant has a controlling interest, any members of any Individual Defendant's
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1 Immediate Family, or any trust of which any Individual Defendant is the settlor or
2 which is for the benefit of any Individual Defendant's Immediate Family, in their
3 respective capacities as such.
4
1.26. "Released Claims" means any and all claims (including "Unknown
5 Claims" as defined below), debts, demands, controversies, obligations, losses, rights,
6 liabilities and/or causes of action of any kind or nature whatsoever—including, but not
7 limited to, any claims for damages (whether compensatory, special, incidental,
8 consequential, punitive, exemplary or otherwise) injunctive relief, declaratory relief,
9 rescission or rescissionary damages, interest, attorneys' fees, expert or consulting fees,
10 costs, expenses, or any other form of legal or equitable relief whatsoever—whether
11 based on federal, state, local, foreign, statutory or common law or regulation, class or
12 individual in nature, known or unknown, fixed or contingent, suspected or
13 unsuspected, concealed or hidden, accrued or un-accrued, liquidated or un-liquidated,
14 at law or in equity, matured or un-matured, that either were asserted or could have
15 been asserted, that relate to the purchase or acquisition of the American Depositary
16 Shares of Toyota Motor Corporation by the respective Class Member during the Class
17 Period and (i) have been asserted in this Litigation by the Class Members or any of
18 them against any of the Released Persons (as defined below), or (ii) could have been
19 asserted in the Litigation or any other forum by the Class Members or any of them
20 against any of the Released Persons, which arise out of or are based upon or related in
21 any way to the allegations, transactions, facts, matters or occurrences, representations
22 or omissions involved, set forth, or referred to in the Litigation, including, but not
23 limited to, statements or alleged omissions relating to unintended acceleration in
24 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles), recalls of Toyota
25 vehicles (including Toyota, Lexus and Scion brand vehicles), the quality of Toyota
26 vehicles (including Toyota, Lexus and Scion brand vehicles) and/or Toyota's financial
27 results. For clarification, Released Claims do not include claims that relate to the
28 purchase or acquisition of Toyota common stock (except to the extent that Toyota
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1 American Depositary Shares represent underlying Toyota common stock, in which
2 case claims relating to the purchase of Toyota American Depositary Shares during the
3 Class Period are included in the Released Claims), or claims based upon, relating to or
4 arising out of the interpretation or enforcement of the terms of the Settlement.
5
1.27. "Released Persons" means each and all of the Defendants and their
6 1 Related Persons.
7
1.28. "Settlement Amount" means Twenty-Five Million Five Hundred
8 Thousand Dollars ($25,500,000) in cash to be paid by wire transfer to an interest
9 bearing account maintained by the Escrow Agent pursuant to ¶ 2.1 of this Stipulation.
10
1.29. "Settlement Fund" means the Settlement Amount plus all accrued interest
11 and any other accretions thereto and which may be reduced by payments or deductions
12 as provided herein or by Court order.
13
1.30. "Settling Parties" means, collectively, the Defendants and Lead Plaintiff
14 I on behalf of itself and on behalf of the Class and all Members of the Class.
15
1.31. "Supplemental Agreement" means the agreement described in ¶ 7.3
16 I hereof.
17
1.32. "Taxes" means federal and/or state income taxes, including estimated
18 federal and/or state income taxes, interest and/or penalties.
19
1.33. "Tax Expenses" means expenses and costs incurred in connection with the
20 operation and implementation of ¶ 2.7, below, including, without limitation, expenses
21 of tax attorneys and/or accountants and mailing and distribution costs and expenses
22 relating to filing (or failing to file) the returns described in ¶ 2.7, below.
23
1.34. "Toyota" means Defendants Toyota Motor Corporation, Toyota Motor
24 North America, Inc., and Toyota Motor Sales, U.S.A., Inc.
25
1.35. "Unknown Claims" means any Released Claims that any Lead Plaintiff or
26 any Class Member does not know or does not suspect to exist in his, her, or its favor at
27 the time of the release of the Released Persons, which, if known by him, her, or it,
28 might have affected his, her, or its settlement with and release of the Released Persons,
11€
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1 or might have affected his, her, or its decision(s) with respect to the settlement. With
2 respect to any and all Released Claims, the Settling Parties stipulate and agree that,
3 upon the Effective Date, Lead Plaintiff shall expressly waive and relinquish, and each
4 of the Class Members shall be deemed to have, and by operation of the Judgment shall
5 have, expressly waived and relinquished the provisions, rights, and benefits conferred
6 by California Civil Code § 1542, which provides:
7
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
8
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
9
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
10
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
11
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
12
WITH THE DEBTOR.
13 Lead Plaintiff shall expressly waive and relinquish, and each of the Class Members
14 shall be deemed to have, and by operation of the Judgment shall have, expressly
15 waived and relinquished, any and all provisions, rights, and benefits conferred by any
16 law of any law of any state or territory of the United States, or any foreign state or
17 territory, or any principle of common law, which is similar, comparable or equivalent
18 to California Civil Code § 1542. Lead Plaintiff and Class Members may hereafter
19 discover facts in addition to or different from those that any of them now knows or
20 believes to be true related to the subject matter of the Released Claims, but Lead
21 Plaintiff upon the Effective Date shall expressly, fully, finally and forever settle and
22 release and each Class Member, upon the Effective Date, shall be deemed to have, and
23 by operation of Judgment shall have, fully, finally, and forever settled and released any
24 and all Released Claims against all Released Persons, known or unknown, suspected or
25 unsuspected, contingent or non-contingent, whether or not concealed or hidden, which
26 now exist, or heretofore have existed, upon any theory of law or equity now existing or
27 coming into existence in the future, including, but not limited to, conduct that is
28 negligent, intentional, with or without malice, or a breach of any duty, law, regulation
11
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1 or rule, without regard to the subsequent discovery or existence of such different or
2 additional facts. Lead Plaintiff acknowledges, and the Class Members shall be deemed
3 by operation of the Judgment to have acknowledged, that the foregoing waiver of
4 "Unknown Claims" (and inclusion of "Unknown Claims" in the definition of
5 "Released Claims") was separately bargained for and is a key element of the settlement
6 of which this release is a part.
7
2. The Settlement
8
a. The Settlement Fund
9
2.1 Within ten (10) business days of the Court's issuance of an order
10 preliminarily approving the settlement, Toyota shall cause the principal amount of
11 $25,500,000 to be transferred into the Escrow Account, with the following exception:
12 If the Court issues an order preliminarily approving the settlement between December
13
11, 2012, and December 26, 2012, inclusive, Toyota shall have until January 11, 2013,
14 to do so.
15
b. The Escrow Agent
16
2.2 The Escrow Agent shall invest the Settlement Fund deposited pursuant to
17 ¶ 2.1 above in short-term United States Agency or Treasury Securities or other
18 instruments backed by the full faith and credit of the United States Government or
19 fully insured by the United States Government or an agency thereof and shall reinvest
20 the proceeds of these instruments as they mature in similar instruments at their then-
21 current market rates. All risks related to the investment of the Settlement Fund in
22 accordance with the investment guidelines set forth in this paragraph shall be borne by
23 the Class and the Escrow Agent. The Released Persons shall have no responsibility
24 for, interest in, or liability whatsoever with respect to the investment decisions or the
25 actions or omissions of the Escrow Agent, or any transactions executed by the Escrow
26 Agent.
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2.3 The Escrow Agent shall not disburse the Settlement Fund except as
2 provided in the Stipulation, by an order of the Court, or with the written agreement of
3 counsel for Defendants.
4
2.4 Subject to further order(s) and/or directions as may be made by the Court,
5 or as provided in the Stipulation, the Escrow Agent is authorized to execute such
6 transactions as are consistent with the terms of the Stipulation.
7
2.5 All funds held by the Escrow Agent shall be deemed and considered to be
8 in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court,
9 until such time as such funds shall be distributed pursuant to the Stipulation and/or
10 further order(s) of the Court.
11
2.6 Without further order of the Court, the Escrow Agent may pay from the
12 Settlement Fund the costs and expenses reasonably and actually incurred in connection
13 with providing notice to the Class, locating Class Members, soliciting Class claims,
14 assisting with the filing of claims, administering and distributing the Net Settlement
15 Fund to Authorized Claimants, processing Proof of Claim and Release forms, and
16 paying Tax or Tax Expenses, escrow fees and costs, if any.
17
C. Taxes
18
2.7 (a) The Settling Parties and the Escrow Agent agree to treat the
19 Settlement Fund at all times as a "qualified settlement fund" within the meaning of
20 Treas. Reg. §1.468B-1. In addition, the Escrow Agent shall timely make such
21
elections as necessary or advisable to carry out the provisions of this ¶ 2.7, including
22 the "relation-back election" (as defined in Treas. Reg. § 1.468B-1) back to the earliest
23 permitted date. Such elections shall be made in compliance with the procedures and
24 requirements contained in such regulations. It shall be the responsibility of the Escrow
25 Agent to timely and properly prepare and deliver the necessary documentation for
26 signature by all necessary parties, and thereafter to cause the appropriate filing to
27 occur.
28
13
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1
(b) For the § 468B of the Internal Revenue Code of 1986, as amended,
2 and the regulations promulgated thereunder, the "administrator" shall be the Escrow
3 Agent. The Escrow Agent shall timely and properly file all informational and other tax
4 returns necessary or advisable with respect to the Settlement Fund (including, without
5 limitation, the returns described in Treas. Reg. § 1.468B-2(k)(1)). Such returns (as well
6 as the election described in ¶2.7(a) hereof) shall be consistent with this ¶ 2.7 and in all
7 events shall reflect that all Taxes (including any estimated Taxes, interest or penalties)
8 on the income earned by the Settlement Fund shall be paid out of the Settlement Fund
9 as provided in ¶2.7(c) hereof.
10
(c) All (i) Taxes (including any estimated Taxes, interest or penalties)
11 arising with respect to the income earned by the Settlement Fund, including any Taxes
12 or tax detriments that may be imposed upon the Defendants or their counsel with
13 respect to any income earned by the Settlement Fund for any period during which the
14 Settlement Fund does not qualify as a "qualified settlement fund" for federal or state
15 income tax purposes, and (ii) expenses and costs incurred in connection with the
16 operation and implementation of this ¶ 2.7 (including, without limitation, expenses of
17 tax attorneys and/or accountants and mailing and distribution costs and expenses
18 relating to filing (or failing to file) the returns described in this ¶ 2.7) ("Tax Expenses,"
19 as defined in ¶ 1.33 above), shall be paid out of the Settlement Fund, and in all events
20 neither Defendants nor their counsel shall have any liability or responsibility for the
21 Taxes or the Tax Expenses. The Settlement Fund shall indemnify and hold each of the
22 Defendants and their counsel harmless for Taxes and Tax Expenses (including, without
23 limitation, Taxes payable by reason of any such indemnification). Further, Taxes and
24 Tax Expenses shall be treated as, and considered to be, a cost of administration of the
25 Settlement Fund and shall be timely paid by the Escrow Agent out of the Settlement
26 Fund without prior order from the Court, and the Escrow Agent shall be obligated
27 (notwithstanding anything herein to the contrary) to withhold from distribution to
28 Authorized Claimants any funds necessary to pay such amounts including the
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1 establishment of adequate reserves for any Taxes and Tax Expenses (as well as any
2 amounts that may be required to be withheld under Treas. Reg. §1.468B-2(1)(2)) and
3 neither Defendants nor their counsel are responsible for nor shall they have any
4 liability for any Taxes or Tax Expenses. The Settling Parties agree to cooperate with
5 the Escrow Agent, each other, and their tax attorneys and accountants to the extent
6 reasonably necessary to carry out the provisions of this ¶ 2.7.
7
d. Termination of Settlement
8
2.8 In the event that the Stipulation is not approved or the Stipulation is
9 terminated, cancelled, or fails to become effective for any reason and/or the Effective
10 Date does not occur, the Settlement Fund (including accrued interest) less expenses
11 actually paid, incurred or due and owing in connection with the settlement provided for
12 herein, shall be refunded directly to Toyota pursuant to written instructions from
13 counsel to the Defendants (in accordance with ¶ 7.4 below).
14
3. Certification of the Class, Preliminary Approval Order and Settlement
15
Hearing
16
3.1 The Settling Parties stipulate to: (i) the certification, for settlement
17 purposes only, of a Class (as defined above), pursuant to Rules 23(a) and (b)(3) of the
18 Federal Rules of Civil Procedure; (ii) the appointment of Lead Plaintiff as the class
19 representative; and (iii) the appointment of Lead Counsel as class counsel.
20
3.2 On or before November 16, 2012, the Settling Parties shall submit the
21 Stipulation together with its Exhibits to the Court and shall apply for entry of an order
22 (the "Preliminary Approval Order"), substantially in the form and content of Exhibit A
23 hereto, requesting, among other things, the preliminary approval of the settlement set
24 forth in the Stipulation, and approval for the mailing of a settlement notice (the
25 "Notice") and Proof of Claim form and publication of a summary notice (the
26 "Summary Notice"), substantially in the form and content of Exhibits A-i through A-3
27 hereto. The Notice shall include the general terms of the settlement set forth in the
28 Stipulation, the proposed Plan of Allocation, the general terins of the Fee and Expense
15
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1 Application as defined in ¶ 6.1 below and the date of the Settlement Hearing as defined
2 1 below.
3
3.3 Lead Counsel shall request that after notice is given, the Court hold a
4 hearing (the "Settlement Hearing") and approve the settlement of the Litigation as set
5 forth herein. To permit compliance with the settlement notice requirements of the
6 Class Action Fairness Act, to the extent they apply to settlement of this Litigation, the
7 Settlement Hearing shall take place no earlier than 100 calendar days after the filing of
8 this Stipulation. At or after the Settlement Hearing, Lead Counsel also will request
9 that the Court approve the proposed Plan of Allocation and the Fee and Expense
10 Application.
11
4. Releases
12
4.1 Upon the Effective Date, as defined in ¶ 1.8 hereof, Lead Plaintiff and
13 each and every Class Member shall be deemed to have—and by operation of the
14 Judgment shall have—fully, finally, and forever released, relinquished, discharged and
15 dismissed each and every one of the Released Claims against each and every one of the
16 Released Persons, whether or not such Class Member executes and delivers the Proof
17 of Claim and Release, and whether or not such Class Member shares in the Settlement
18 Fund.
19
4.2 Upon the Effective Date, as defined in ¶ 1.8 hereof, each of the Released
20 Persons shall be deemed to have—and by operation of the Judgment shall have—fully,
21 finally, and forever released, relinquished, and discharged Lead Plaintiff, each and all
22 of the Class Members, Lead Counsel, Liaison Counsel and Plaintiffs' Counsel from all
23 claims (including Unknown Claims) debts, demands, controversies, obligations, losses,
24 rights, liabilities and/or causes of action of any kind or nature whatsoever—including,
25 but not limited to, any claims for damages (whether compensatory, special, incidental,
26 consequential, punitive, exemplary or otherwise) injunctive relief, declaratory relief,
27 rescission or rescissionary damages, interest, attorneys' fees, expert or consulting fees,
28 costs, expenses, or any other form of legal or equitable relief whatsoever—whether
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1 based on federal, state, local, foreign, statutory or common law or regulation, class or
2 individual in nature, known or unknown, fixed or contingent, suspected or
3 unsuspected, concealed or hidden, accrued or un-accrued, liquidated or un-liquidated,
4 at law or in equity, matured or un-matured, arising out of, relating to, or in connection
5 with the institution, prosecution, assertion, settlement or resolution of the Litigation or
6 the Released Claims, provided that claims based upon, relating to or arising out of the
7 interpretation or enforcement of the terms of the Settlement are not released.
8
5. Administration and Calculation of Claims, Final Awards and
9
Supervision and Distribution of the Settlement Fund
10
5.1 Lead Counsel shall cause the Claims Administrator to mail the Notice and
11 Proof of Claim and Release to those members of the Class who may be identified
12 through reasonable effort, including through the cooperation of Toyota and/or its
13 agents. Lead Counsel will cause to be published the Summary Notice pursuant to the
14 terms of the Preliminary Approval Order or whatever other form or manner might be
15 ordered by the Court. For the purpose of identifying and providing notice to the Class,
16 within five (5) business days of the date of entry of the Preliminary Approval Order,
17 Toyota shall provide or cause to be provided to the Claims Administrator (at no cost to
18 the Settlement Fund, Lead Counsel or the Claims Administrator) any lists it or its
19 agent(s) has that identify potential Class Members (including names and addresses), in
20 electronic form. The Claims Administrator, subject to such supervision and direction
21 of the Court and/or Lead Counsel, as may be necessary or as circumstances may
22 require, shall administer and calculate the claims submitted by Class Members and
23 shall oversee distribution of the Net Settlement Fund to Authorized Claimants.
24
5.2 The Settlement Fund shall be applied as follows:
25
(a) to pay all the costs and expenses reasonably and actually incurred
26 in connection with providing notice, locating Class Members, soliciting Class claims,
27 assisting with the filing of claims, administering and distributing the Settlement Fund
28
17
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1 to Authorized Claimants, processing Proof of Claim and Release forms and paying
2 escrow fees and costs, if any;
3
(b) to pay the Taxes and Tax Expenses described in ¶ 2.7 above;
4
(c) after entry of an order awarding Lead Counsel attorney fees,
5 expenses and costs, to pay Lead Counsel such attorney fees, expenses and costs with
6 interest thereon (the "Fee and Expense Award"), if and to the extent allowed by the
7 Court; and
8
(d) to distribute the balance of the Settlement Fund (the "Net
9 Settlement Fund," as defined in ¶ 1.19 above) to Authorized Claimants as allowed by
10 the Stipulation, the Plan of Allocation, or the Court.
11
5.3 Upon the Effective Date and thereafter, and in accordance with the terms
12 of the Stipulation, the Plan of Allocation, or such further approval and further order(s)
13 of the Court as may be necessary or as circumstances may require, the Net Settlement
14 Fund shall be distributed to Authorized Claimants, pursuant to a class distribution
15 order, subject to and in accordance with the following.
16
5.4 Within one-hundred and twenty (120) calendar days after the mailing of
17 the Notice or such other time as may be set by the Court, each Person claiming to be an
18 Authorized Claimant shall be required to submit to the Claims Administrator a
19 completed Proof of Claim and Release, substantially in the form of Exhibit A-2
20 attached hereto, signed under penalty of perjury and supported by such documents as
21 specified in the Proof of Claim and Release. Each Claimant shall be deemed to have
22 submitted to the jurisdiction of the Court with respect to the claim, and the claim shall
23 be subject to investigation and discovery under the Federal Rules of Civil Procedure,
24 provided, however, that such investigation and discovery shall be limited to the
25 claimant's status as a member of the Class and the validity and amount of the claim.
26 No discovery shall be allowed as to the merits of the litigation or of the Settlement in
27 connection with the processing of a claim.
M.
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5.5 Except as otherwise ordered by the Court, all Class Members who fail to
2 timely submit a Proof of Claim and Release within such period, or such other period as
3 may be ordered by the Court, or otherwise allowed, shall be forever barred from
4 receiving any payments pursuant to this Stipulation and the settlement set forth herein,
5 but will in all other respects be subject to and bound by the provisions of this
6 Stipulation, the releases contained herein, and the Judgment. Notwithstanding the
7 foregoing, Lead Counsel may in their discretion, accept for processing late filed claims
8 so long as the distribution of the Net Settlement Fund to Authorized Claimants is not
9 materially delayed by doing so.
10
5.6 The Net Settlement Fund shall be distributed to the Authorized Claimants
11 substantially in accordance with the Plan of Allocation set forth in the Notice and
12 approved by the Court. Lead Counsel will apply to the Court for a class distribution
13 order: (1) approving the Claims Administrator's administrative determinations
14 concerning the acceptance and rejection of the claims submitted; (ii) approving
15 payment of any outstanding administration fees and expenses associated with the
16 administration of the Settlement from the Escrow Account; and (iii) if the Effective
17 Date has occurred, directing payment of the Net Settlement Fund to Authorized
18 Claimants from the Escrow Account. If there is any balance remaining in the Net
19 Settlement Fund after six (6) months from the initial date of distribution of the Net
20 Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise),
21 Lead Counsel shall, if feasible, reallocate such balance among Authorized Claimants in
22 an equitable and economic fashion. Thereafter, subject to Court approval, once further
23 distribution becomes no longer economically feasible as determined by Lead Counsel,
24 any balance that still remains in the Net Settlement Fund shall be donated to an
25 appropriate non-profit organization proposed by Lead Plaintiff.
26
5.7 This is not a claims-made settlement and there will be no reversion.
27 Defendants and the Released Persons shall have no responsibility for, interest in, or
28 liability whatsoever with respect to the distribution of the Net Settlement Fund, the
19
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1 Plan of Allocation, the determination, administration, or calculation of claims, the
2 payment or withholding of Taxes, or any losses incurred in connection therewith. No
3 Person shall have any claim of any kind against the Defendants or their Related
4 Persons with respect to any of the matters set forth in ¶J 5.1-5.9 hereof. Lead Plaintiff,
5 Lead Counsel and the Class Members release Defendants and their Related Persons
6 from any and all liability and claims arising from or with respect to the investment or
7 distribution of the Settlement Fund and Net Settlement Fund.
8
5.8 No Person shall have any claim against Lead Plaintiff, Lead Counsel or
9 the Claims Administrator, or any other Person designated by Lead Counsel, based on
10 distributions made substantially in accordance with this Stipulation and the settlement
11 contained herein, the Plan of Allocation, or further order(s) of the Court.
12
5.9 It is understood and agreed by the Settling Parties that any proposed Plan
13 of Allocation of the Net Settlement Fund including, but not limited to, any adjustments
14 to an Authorized Claimant's claim set forth therein, is not a part of this Stipulation and
15 is to be considered by the Court separately from the Court's consideration of the
16 fairness, reasonableness and adequacy of the settlement set forth in this Stipulation,
17 and any order or proceeding relating to the Plan of Allocation shall not operate to
18 terminate or cancel the Stipulation or affect the finality of the Court's Judgment
19 approving the Stipulation and the settlement set forth therein, or any other orders
20 entered pursuant to the Stipulation.
21
6. Lead Counsel's Attorney Fees and Expenses of Counsel and the Lead
22
Plaintiff
23
6.1 Lead Counsel may submit an application or applications for a collective
24 award of attorneys' fees and reimbursement to Plaintiffs' Counsel (the "Fee and
25 Expense Application") to be paid from the Settlement Fund for: (a) attorney's fees;
26 plus (b) reimbursement of expenses and costs incurred in connection with prosecuting
27 the Litigation (which may include reimbursement of the expenses of Plaintiffs in
28 accordance with 15 U.S.C. § 78u-4(a)(4), plus any interest on such attorney fees, costs
20
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1 and expenses at the same rate and for the same periods as earned by the Settlement
2 Fund (until paid) as may be awarded by the Court.
3
6.2 The attorney's fees, expenses and costs, as awarded by the Court, shall be
4 payable to Lead Counsel from the Settlement Fund, as ordered, immediately after the
5 Court executes an order awarding such fees and expenses, notwithstanding the
6 existence of any timely filed objections thereto, or potential for appeal therefrom, or
7 collateral attack on the Settlement or any part thereof. Lead Counsel shall thereafter
8 allocate the attorney fees amongst Plaintiffs' Counsel in a manner in which it in good
9 faith believes reflects the contributions of such counsel to the initiation, prosecution,
10 and resolution of the Litigation.
11
6.3 In the event that the Effective Date does not occur, or the Judgment or the
12 order making the Fee and Expense Award is reversed or modified, or the Stipulation is
13 cancelled or terminated for any other reasons, and in the event that any Fee and
14 Expense Award has been paid to any extent, then each Plaintiffs' Counsel, including
15 Lead Counsel and Liaison Counsel, who have received any portion of the Fee and
16 Expense Award shall within five (5) business days from receiving notice from
17 Defendants' counsel or from a court of appropriate jurisdiction, refund to the
18 Settlement Fund, any and all such fees, expenses and costs previously paid to them or
19 otherwise transferred to them from the Settlement Fund plus interest thereon at the
20 same rate as earned on the Settlement Fund: (a) in the full amount if the Effective Date
21 does not occur or if the Stipulation is terminated or cancelled, or (b) in such other
22 amount corresponding to that portion of any Fee and Expense Award that is reversed
23 or modified. Each such Plaintiffs' Counsel's law firm, as a condition of receiving such
24 fees and expenses, agrees that it is subject to the jurisdiction of the Court for the
25 purpose of enforcing the provisions of this paragraph.
26
6.4 The procedure for and the allowance or disallowance by the Court of any
27 applications by Lead Plaintiff or Lead Counsel for attorney fees, costs and expenses to
28 be paid out of the Settlement Fund, are not part of the settlement set forth in the
21
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1 Stipulation, and are to be considered by the Court separately from the Court's
2 consideration of the fairness, reasonableness and adequacy of the settlement set forth
3 in the Stipulation, and any order or proceeding relating to the Fee and Expense
4 Application, or any appeal from any order relating thereto or reversal or modification
5 thereof, shall not operate to terminate or cancel the Stipulation, or affect or delay the
6 finality of the Judgment approving the Stipulation and the settlement of the Litigation
7
set forth therein.
8
6.5 Defendants and their Related Persons shall have no responsibility for, and
9 no liability whatsoever with respect to, any payment to Plaintiffs' counsel from the
10 Settlement Fund.
11
6.6 Defendants and their Related Persons shall have no responsibility for, and
12 no liability whatsoever with respect to, the allocation among Plaintiffs' Counsel,
13 and/or any other Person who may assert some claim thereto, of any Fee and Expense
14 Award that the Court may make in the Litigation, and Defendants and their Related
15 Persons take no position with respect to such matters.
16
7. Conditions of Settlement, Effect of Disapproval, Cancellation or
17
Termination
18
7.1 The Effective Date of the Stipulation shall be the date when all of the
19 I following shall have occurred and is conditioned on the occurrence of all of the
20 following events:
21
(a) Toyota shall have timely made, or caused to be made, its
22 contribution to the Settlement Fund as required by 12.1 above;
23
(b) the Court has entered the Preliminary Approval Order, as provided
24 in ¶ 3.1 above;
25
(c) no option to terminate the Stipulation has been exercised pursuant
26 to ¶ 7.3 hereof;
27
(d) the Court has entered the Judgment, or a judgment substantially in
28 the form and content of Exhibit B hereto; and
22
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(e) the Judgment has become Final, as defined in ¶ 1.11 hereof.
2
7.2 Upon the occurrence of all of the events referenced in ¶ 7.1 hereof, any
3 and all remaining interest or right of Defendants in or to the Settlement Fund, if any,
4 shall be absolutely and forever extinguished. If it becomes clear that all of the
5 conditions specified in ¶ 7.1 cannot or will not be met, then the Stipulation shall be
6 cancelled and terminated subject to ¶ 7.4 hereof, unless Lead Counsel and counsel for
7 Defendants mutually agree in writing to proceed with the Stipulation.
8
7.3 Toyota shall have the option to terminate the settlement in the event that
9 Persons who would otherwise be Class Members who purchased in the aggregate more
10 than a certain number of Toyota Motor Corporation American Depositary Shares
11 during the Class Period choose to exclude themselves from the Class, as set forth in a
12 separate agreement (the "Supplemental Agreement") executed between Lead Counsel
13 and Defendants' counsel. The Supplemental Agreement will not be filed with the
14 Court unless requested by the Court or unless a dispute among the Settling Parties
15 concerning the interpretation or application of the Supplemental Agreement arises, and
16 in that event the Supplemental Agreement shall be filed with and maintained by the
17 Court under seal.
18
7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall
19 terminate, or be cancelled, or shall not become effective for any reason, within five (5)
20 business days after written notification of such event is sent by counsel for Defendants
21 or Lead Counsel, the Settlement Fund (including accrued interest), less expenses and
22 costs that either have been disbursed pursuant to ¶J 2.6 and 2.7 hereof, or are
23 determined to be chargeable to the Settlement Fund pursuant to 112.6 and 2.7 hereof,
24 shall be refunded by the Escrow Agent directly to Toyota pursuant to written
25 instructions from counsel for Defendants. At the request of counsel for Defendants,
26 the Escrow Agent or its designee shall apply for any tax refund owed to the Settlement
27 Fund and pay the proceeds, after deduction of any fees or expenses incurred in
28 connection with such application(s) for refund, to Toyota.
23
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7.5 In the event that the Stipulation is not approved by the Court or the
2 settlement set forth in the Stipulation is terminated or fails to become effective in
3 accordance with its terms, then the Settling Parties shall be restored to their respective
4 positions in the Litigation as of October 5, 2012. In such event, the terms and
5 provisions of the Stipulation, with the exception of IT 1.1-1.33, 2.2-2.8, 6.3-6.4, 7.4-
6 7.6, 8.3 and 8.9-8.13 herein, shall have no further force and effect with respect to the
7 Settling Parties and shall not be used in the Litigation or in any other proceeding for
8 any purpose, and any judgment or order entered by the Court in accordance with the
9 terms of the Stipulation shall be treated as vacated, nunc pro tunc. No order of the
10 Court concerning—or modification or reversal on appeal of any order of the Court
11 concerning—the Plan of Allocation or the amount of any attorney fees, costs, expenses
12 and interest awarded by the Court to the Lead Plaintiff or any of Plaintiffs counsel
13 shall constitute grounds for cancellation or termination of the Stipulation.
14
7.6 If the Effective Date does not occur, or if the Stipulation is terminated
15 pursuant to its terms, neither Lead Plaintiff nor any of its counsel shall have any
16 obligation to repay any amounts actually and properly disbursed pursuant to ¶J 2.6 or
17 2.7 above. In addition, any expenses already incurred pursuant to ¶J 2.6 or 2.7 above
18 at the time of such termination or cancellation, but which have not been paid, shall be
19 paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the
20 balance being refunded in accordance with ¶J 2.8 and 7.4 hereof.
21
8. Miscellaneous Provisions
22
8.1 The Settling Parties: (a) acknowledge that it is their intent to consummate
23 this agreement; and (b) agree to cooperate to the extent reasonably necessary to
24 effectuate and implement all terms and conditions of this Stipulation and to exercise
25 their best efforts to accomplish the foregoing terms and conditions of this Stipulation.
26
8.2 The Settling Parties intend this settlement to be a final and complete
27 resolution of all disputes between them with respect to the Litigation. The settlement
28 compromises claims that are contested and shall not be deemed an admission by any
24
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1 Settling Party as to the merits of any claim or defense. The Judgment will contain a
2 statement that during the course of the Litigation, the parties and their respective
3 counsel at all times complied with the requirements of Federal Rule of Civil Procedure
4 11. The Settling Parties agree that the Settlement Amount and the other terms of the
5 settlement were negotiated in good faith by the Settling Parties, and reflect a settlement
6 that was reached voluntarily after consultation with competent legal counsel. The
7 Settling Parties reserve their right to rebut, in a manner that such party determines to
8 be appropriate, any contention made in any public forum that the Litigation was
9 brought or defended in bad faith or without a reasonable basis.
10
8.3 Neither the Stipulation nor the settlement contained herein, nor any act
11 performed or document executed pursuant to or in furtherance of the Stipulation or the
12 settlement: (a) is or may be deemed to be or may be used as an admission of, or
13 evidence of, the validity or invalidity of any Released Claim or of any wrongdoing or
14 liability of the Defendants and the Released Persons; or (b) is or may be deemed to be
15 or may be used as an admission of, or evidence of, any fault or omission of any of the
16 Defendants and the Released Persons in any civil, criminal or administrative
17 proceeding in any court, administrative agency or other tribunal. Defendants and the
18 Released Persons may file the Stipulation and/or the Judgment in any action that may
19 be brought against them in order to support a defense or counterclaim based on
20 principles of res judicata, collateral estoppel, release, good faith settlement, judgment
21 bar or reduction, or any other theory of claim preclusion or issue preclusion or similar
22 defense or counterclaim.
23
8.4 Except and only to the extent modified by this Stipulation, all agreements
24 made and orders entered during the course of the Litigation relating to the
25 confidentiality of information shall survive this Stipulation. Lead Plaintiff and Lead
26 Counsel hereby agree that until the Judgment becomes Final, or the Stipulation is
27 terminated or cancelled, they and Plaintiffs' counsel and any experts, consultants,
28 vendors and/or others to whom they have provided such documents (except for the
25
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1 Court, the Special Master, and court personnel) shall treat all documents produced in
2 the Litigation by Defendants, and all responses to Requests for Admission and
3 Interrogatories, regardless of whether or not they were designated as "Confidential
4 Material" or "Highly Confidential Material" at the time of production, as if they were
5 designated as "Highly Confidential Material" pursuant to the stipulated Protective
6 Order Re Confidential and Highly Confidential Information (Dkt. # 227), and that
7 within ninety (90) days after the Litigation (including any appeals) is concluded, they
8 and Plaintiffs' Counsel and any experts and consultants to whom they have provided
9 any documents that Defendants produced, and to whom they have provided any of
10 Defendants' responses to Requests for Admission or Interrogatories, shall either return
11 all documents Defendants produced and any of Defendants' responses to Requests for
12 Admission and Interrogatories, and all copies thereof, to counsel for Defendants, or
13 that they shall destroy all documents that Defendants produced and any of Defendants'
14 responses to Requests for Admission and Interrogatories, and all copies thereof, and
15 certify that fact in writing to counsel for Defendants.
16
8.5 All of the Exhibits to this Stipulation are material and integral parts hereof
17 and are fully incorporated herein by this reference.
18
8.6 This Stipulation may be amended or modified only by a written
19 instrument signed by or on behalf of all Settling Parties or their respective successors-
20
in-interest.
21
8.7 This Stipulation and the Exhibits hereto and the Supplemental Agreement
22 constitute the entire agreement between Lead Plaintiff and Defendants and no
23 representations, warranties or inducements have been made to any party concerning
24 the Stipulation or its Exhibits or the Supplemental Agreement other than the
25 representations, warranties and covenants contained and memorialized in such
26 documents. Except as otherwise provided for herein, each party shall bear its own
27
costs.
28
26
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8.8 Lead Counsel, on behalf of the Class, are expressly authorized by the
2 Lead Plaintiff to take all appropriate action required or permitted to be taken by the
3 Class pursuant to the Stipulation to effectuate its terms and also are expressly
4 authorized to enter into any modifications or amendments to the Stipulation on behalf
5 of the Class that they deem appropriate.
6
8.9 Each counsel or other Person executing the Stipulation or any of its
7 Exhibits on behalf of any party hereto hereby warrants that such Person has the full
8 authority to do so.
9
8.10 This Stipulation may be executed in one or more counterparts. All
10 executed counterparts and each of them shall be deemed to be one and the same
11 instrument. A complete set of executed counterparts shall be filed with the Court.
12
8.11 This Stipulation shall be binding upon, and inure to the benefit of, the
13 successors and assigns of the parties hereto.
14
8.12 The Court shall retain jurisdiction with respect to implementation and
15 enforcement of the terms of this Stipulation, and all parties hereto submit to the
16 jurisdiction of the Court for purposes of implementing and enforcing the settlement
17 embodied in this Stipulation.
18
8.13 This Stipulation and the Exhibits hereto shall be considered to have been
19 negotiated, executed and delivered, and to be wholly performed, in the State of
20 California, and the rights and obligations of the parties to this Stipulation shall be
21 construed and enforced in accordance with, and governed by, the internal, substantive
22 laws of the State of California without giving effect to that State's choice-of-law
23
principles.
24
8.14 If a trustee, receiver, conservator or other fiduciary is appointed under any
25 law similar to Title 11 of the United States Code (Bankruptcy), and in the event of the
26 entry of a final order of a court of competent jurisdiction determining the transfer of
27 money to the Settlement Fund or any portion thereof to be a preference, voidable
28 transfer, fraudulent transfer or similar transaction and any portion thereof is required to
27
Gibson, Dunn & Crutcher LLP
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 29 of 111 Page ID #:9803
be returned, and such amount is not promptly deposited to the Settlement Fund by
others, then, at the election of Lead Counsel, the Settling Parties shall jointly move the
Court to vacate and set aside the releases given and the Judgment entered pursuant to
this Stipulation, which releases and Judgment shall be null and void, and the Settling
Parties shall be restored to their respective positions in the litigation as of
October 5, 2012, and any cash amounts in the Settlement Fund or paid to Lead Counsel
shall be returned as provided above.
8.15 Toyota warrants as to itself that, as to the payments made by or on behalf
of it, at the time of such payment made pursuant to ¶ 2.1 above, it was not insolvent,
nor will the payment required to be made by or on behalf of it render it insolvent,
within the meaning of and/or for the purposes of the United States Bankruptcy Code,
including §§ 101 and 547 thereof. This representation is made by Toyota and not by
Toyota's counsel.
8.16 Defendants shall provide the notice of the settlement set forth in the Class
Action Fairness Act ("CAFA"), 28 U.S.C. § 1715, without waiver of the position that
such notice may not be required in this Litigation. To allow compliance with the
timing requirements of 28 U.S.C. § 1715 (including that Defendants have 10 days
following filing of a settlement with the Court to send the CAFA notice and that the
Settlement Hearing may take place no sooner than 90 days thereafter), the Settlement
Hearing shall take place no sooner than 100 days after this Stipulation is filed.
IN WITNESS WHEREOF, the parties hereto have caused this Stipulation to be
executed, by their duly authorized attorneys, dated as of November 9, 2012.
BERNSTEIN LITOWTTZ BERGER & GROSSMANN LLP
By: &L Blair A. Nicholas
BLAIR A. NICHOLAS (blairnblbglaw.com) NIKI L. MENDOZA (nikimb1bglaw.com)
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BENJAMIN GALDSTON (benoi)blbg1aw.com) oA\m KAPLAN
Mdavidkblbc4aw.com ) SEPI4'W. GOODMAN
(j oseph.00drnanb1bg1aw. corn) 12481 High BlutfDrive, Suite 300 San Diego, CA 92130 Tel: (858) 793-0070 Fax: (858') 793-0323
-and- GERALD H. SILK
Y erry@blbglaw.com) 285 Avenue of the Americas, 38th Floor
New York, NY 10019 Tel: (212) 554-1400 Fax: (212) 554-1444
counsel for Lead Plaint if Maiyland State Retirement and Pension System and Lead Counsel for the Class
FAIRBANK & VINCENT ROBERT H. FAIRBANK (rfairbank()fairbankvincent.corn) DIRK L. VINCENT (dvincent@fairbankvincent.com ) 444 S. Flower Street, Suite 3860 Los Angeles, CA 90071 Tel:(213) 891-9010 Fax: (213) 891-9011
Liaison counsel for the Class
MARYLAND OFFICE OF ATTORNEY GENERAL DOUGLAS F. GANSLER Attorney General of Maryland JOHN f. KUCHNO Assistant Attorney General
9kuchno.oag.state.rnd.us ) 00 St. Paul Place, 20th Floor
Baltimore, MD 21202 Tel: (410) 576-7291 Fax: (410) 576-6955
Counsel for Lead Plaintiff Maryland State Retirement and Pension System
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#:9805
SHEAR'LtN & STRL1NG LLP
i)'. /
• / I 7 Stuart J. Baskin
STUART J BASKIN 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179
PATRICK D. ROBBINS EMILY V. GRIFFEN 4 Embarcadero Center, Suite 3800 San Francisco, CA 94111-5994 Telephone: (415) 616-1100 Fax: (415) 616-1199
Counsel for Defendants Toyota Motor Corporation, Toyota Motor North America, Inc., Toyota Motor Sales, U.S.A., Inc., Katsuald Watanabe, Fujio Cho, Toshimi Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter, and Robert C. Daly
GIB SON, DUNN & CRUTCHER LLP
By: Kay E. Kochenderfer
KAY E. KOCHENDERFER 333 S. Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
GARETH T. EVANS 3161 Michelson Drive Irvine CA 92612 Telepcione: (949) 451-3800 Fax: (949) 431-4220
Counsel for Defendants Toyota Motor Corporation, Toyota Motor North America Inc., Toyota Motor Sales, U.S.A., Inc., Katsuaki fratanabe, Fujio Cho, Yoshimi Inaba, James K Lentz Ill, Irving A. Miller, Robert S. Carter, and Robert C. Daly
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27 STIPULATiON OF SETTLEMENT.DOCX
30 Gibson, Dunn & Cjutchsr LIP
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Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 32 of 111 Page ID If #:9806
SHEARMAN & STERLING LLP
By: Stuart J. Baskin
STUART J. BASKIN 599 Lexington Avenue New York,'NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179
PATRICK D. ROBBINS EMILY V. GRIFFEN 4 Embarcadero Center, Suite 3800 San Francisco, CA 94111-5994 Telephone: (415) 616-1100 Fax: (415) 616-1199
Counsel for Defendants Toyota Mor Gprporation, Toyota Motor North America, Inc ,Xoóta Motor Sales, US.A., Inc., Katsualci Fujio Cho, Yoshimi Inaba, James E. Lnfz II-Irving A. Miller, Robert S. Carter, and ftcbert Q'Daly
GIBSON, D & CPt <CHER LLP
By:4— / /'__\- '___-.-
/7 Kay E. Kochenderfer
KAY E. KOHENDERFER 333 S. Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
GARETH T. EVANS 3161 Michelson Drive Irvine CA 92612 Telepcione: (949) 451-3800 Fax: (949) 451-4220
Counsel for Defendants Toyota Motor Corporation, Toyota Motor North America, Inc., Toyota Motor Sales, US.A., Inc., Katsuaki Watanabe, Fujio Cho, Yoshimi Inaba, James E. Lentz III, Irving A. Miller, Robert S. Carter, and Robert C. Daly
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STIPULATION OF SETTLEMENT.DOCX
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Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 33 of 111 Page ID #:9807
EXHIBIT A
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IN RE TOYOTA MOTOR CORPORATION SECURITIES LITIGATION
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
[PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT, CERTIFYING CLASS, PROVIDING FOR NOTICE AND SCHEDULING SETTLEMENT HEARING
EXHIBIT A
Courtroom: 840 Judge: Dale S. Fischer
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 34 of 111
ID #:9808
1
2
[PROPOSED] PRELTIIVIINARY APPROVAL ORDER Master File No. CV 10-922 DSP (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 35 of 111
ID #:9809
1
WHEREAS, Lead Plaintiff Maryland State Retirement and Pension System
2 ("Lead Plaintiff'), on behalf of itself and the Class (as hereinafter defined), and
3 Defendants Toyota Motor Corporation, Toyota Motor North America, Inc.,
4 Toyota Motor Sales, U.S.A., Inc., ("Toyota") Katsuaki Watanabe, Fujio Cho,
5 Yoshirni Inaba, James E. Lentz Ill, Irving A. Miller, Robert S. Carter and Robert
6 C. Daly (the "Individual Defendants" and together with Toyota, the "Defendants")
7 (collectively, the "Settling Parties") have entered into a settlement of the claims
8 asserted in the above-captioned action (the "Action"), the terms of which are set
9 forth in the Stipulation of Settlement (the "Stipulation" or the "Settlement"),
10 which is subject to review under Rule 23(e) of the Federal Rules of Civil
11 Procedure, and which, together with the Exhibits thereto, sets forth the terms and
12 conditions of the proposed Settlement of the claims asserted in the Action with
13 prejudice; and
14
WHEREAS, the Court having read and considered the Stipulation and
15 Exhibits thereto, including the proposed (i) Notice; (ii) Claim Form; (iii)
16 Summary Notice; and (iv) Judgment, and submissions relating thereto, and finding
17 that substantial and sufficient ground exists for entering this Order.
18
NOW, THEREFORE, IT IS HEREBY ORDERED:
19
1. This order (the "Preliminary Approval Order" or "Notice Order")
20 hereby incorporates by reference the definitions in the Stipulation, and all terms
21 used herein shall have the same meanings as set forth in the Stipulation.
22
2. The Court hereby preliminarily approves the Settlement as being fair,
23 just, reasonable and adequate to the Class, pending a final hearing on the
24' Settlement.
25
3. Pending further order of the Court, all litigation activity, except that
26 contemplated herein, in the Stipulation, in the Notice or in the Judgment, is hereby
27 stayed and all hearings, deadlines and other proceedings in this Action, except the
28 Settlement Hearing, are hereby taken off calendar.
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. cv 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 36 of 111
ID #:9810
1
CLASS CERTIFICATION
2
4. The Court hereby certifies, for settlement purposes only, pursuant to
3 Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, a Class defined
4 I as follows:
5
All Persons (other than those Persons who timely and validly request
6 exclusion from the Class) who purchased or otherwise acquired the
American Depositary Shares of Toyota Motor Corporation during the
7 period from May 10, 2005, through and including February 2, 2010,
8 excluding the Defendants and their Related Persons.
91 5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for
10 the purposes of the Settlement only, Lead Plaintiff is appointed as the Class
11 Representative and Bernstein Litowitz Berger & Grossmann LLP is appointed as
12 Lead Counsel for the Class.
13 6. Lead Counsel has the authority to enter into the Stipulation on behalf
14 of Lead Plaintiff and the Class, and is authorized to act on behalf of Lead Plaintiff
15 and the Class, with respect to all acts or consents required by or that may be given
16 pursuant to the Stipulation, such as other acts that are reasonably necessary to
17 consummate the Settlement.
18 7. The Court approves the firm of Epiq Class Action & Claims
19 Solutions, Inc. ("Claims Administrator") to supervise and administer the notice
20 procedure, as well as the processing of claims as more fully set forth below:
21 a. No later than ten (10) business days after entry of this
22 Preliminary Approval Order, the Claims Administrator shall cause a copy of
23 the Notice and Proof of Claim, annexed hereto as Exhibits A-i and A-2,
24 respectively, to be mailed by first-class mail, postage prepaid, to all
25 members of the Class at the address of each such person as set forth in the
26 records of Toyota or its transfer agent or who are identified by further
27 reasonable efforts as set forth in the Stipulation (the "Notice Date");
28 b. A summary notice (the "Summary Notice"), annexed hereto as
Exhibit A-3, shall be published once in the national edition of The [PROPOSED] PRELIIIVIINARY APPROVAL ORDER -2- Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 37 of 111
ID #:9811
1
Investor Business Daily and over the PR Newswire no later than ten (10)
2
business days after the Notice Date; and
3
C. The Notice, the Summary Notice, and the Claim Form shall
4 also be placed on the Claims Administrator's website, on or before the
5
Notice Date.
6
8. The Court approves the form, substance and requirements of the
7 Notice and Summary Notice (together, the "Notices") and the Claim Form, and
8 finds that the procedures established for publication, mailing and distribution of
9 such Notices substantially in the manner and form set forth in Paragraph 7 of this
10 Order meet the requirements of Rule 23 of the Federal Rules of Civil Procedure,
11 Section 21D(a)(7) of the Securities Exchange Act of 1934 (the "Exchange Act"),
12 as amended by the Private Securities Litigation Reform Act of 1995 (the
13 "PSLRA"), 15 U.S.C. § 78u-4(a)(7), the Constitution of the United States, and any
14 other applicable law, and constitute the best notice practicable under the
15 circumstances.
16
9. Within five (5) business days of entry of this Order, Toyota shall
17 provide or cause to be provided to the Claims Administrator (at no cost to the
18 Settlement Fund, Lead Counsel or the Claims Administrator) any lists it or its
19 agent(s) has that identify potential Class Members (including names and
20 addresses), in electronic form.
21
10. No later than thirty-five (35) calendar days prior to the Settlement
22 Hearing, Lead Counsel shall cause to be filed with the Clerk of this Court
23 affidavits or declarations of the person or persons under whose general direction
24 the mailing of the Notice and the publication of the Summary Notice shall have
25 been made, showing that such mailing and publication have been made in
26 accordance with this Order.
27
11. Nominees who purchased or otherwise acquired Toyota Motor
28 Corporation American Depositary Shares ("ADS's") for beneficial owners who
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 38 of 111
ID #:9812
1 are Class Members are directed to: (a) request within fourteen (14) days of receipt
2 of the Notice additional copies of the Notice and the Claim Form from the Claims
3 Administrator for such beneficial owners; or (b) send a list of the names and
4 addresses of such beneficial owners to the Claims Administrator within fourteen
5 (14) days after receipt of the Notice. If a nominee elects to send the Notice to
6 beneficial owners, such nominee is directed to mail the Notice within fourteen
7 (14) days of receipt of the additional copies of the Notice from the Claims
8 Administrator, and upon such mailing, the nominee shall send a statement to the
9 Claims Administrator confirming that the mailing was made as directed, and the
10 nominee shall retain the list of names and addresses for use in connection with any
11 possible future notice to the Class. Upon full compliance with this Order,
12 including the timely mailing of Notice to beneficial owners, such nominees may
13 seek reimbursement of their reasonable expenses actually incurred in complying
14 with this Order by providing the Claims Administrator with proper documentation
15 supporting the expenses for which reimbursement is sought and reflecting
16 compliance with these instructions, including timely mailing of the Notice, if the
17 nominee elected or elects to do so. Such properly documented expenses incurred
18 by nominees in compliance with the terms of this Order shall be paid from the
19 Settlement Fund.
20
HEARING: RIGHT TO BE HEARD
21
12. The Court will hold a settlement hearing (the "Settlement Hearing")
22 on , 2013, at 1:30 p.m., in the United States District Court for the
23 Central District of California, Western Division, 255 East Temple Street,
24 Courtroom 840, Los Angeles, California, for the following purposes: (i) to
25 determine whether the Court should grant final certification of the Class solely for
26 purposes of the Settlement; (ii) to determine whether the proposed Settlement is
27 fair, reasonable, adequate and in the best interests of the Class and should be
28 approved by the Court; (iii) to determine whether the Judgment, in the form
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 39 of 111
ID #:9813
1 attached as Exhibit B to the Stipulation, should be entered dismissing and
2 releasing the Released Claims against the Released Persons; (iv) to rule upon the
3 Plan of Allocation; (v) to rule upon Lead Counsel's application for an award of
4 attorneys' fees and reimbursement of litigation expenses; and (vi) to consider any
5 other matters that may properly be brought before the Court in connection with
ii I the Settlement.
7
13. Papers in support of the Settlement, the Plan of Allocation and Lead
8 Counsel's application for attorneys' fees and reimbursement of litigation expenses
9 shall be filed no later than thirty-five (35) calendar days prior to the Settlement
10 Hearing. Reply papers shall be filed no later than seven (7) calendar days prior to
11 the Settlement Hearing.
12
14. Any member of the Class may appear at the Settlement Hearing and
13 show cause why the proposed Settlement embodied in the Stipulation should or
14 should not be approved as fair, reasonable, adequate and in the best interests of the
15 Class, or why the Judgment should or should not be entered thereon, and/or to
16 present opposition to the Plan of Allocation or to the application of Lead Counsel
17 for attorneys' fees and reimbursement of litigation expenses. However, no Class
18 Member or any other person shall be heard or entitled to contest the approval of
19 the terms and conditions of the Settlement, the Judgment, the terms of the Plan of
20 Allocation or the application by Lead Counsel for an award of attorneys' fees and
21 reimbursement of litigation expenses, unless that Class Member or Person (i) has
22 served written objections, by hand or first-class mail, including the basis therefor,
23 as well as copies of any papers and/or briefs in support of his, her or its position
24 upon the following counsel for receipt no later than twenty-one (21) calendar days
25 prior to the Settlement Hearing:
26
27
28
[PROPOSED] PEELIM11ARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 40 of 111 ID #:9814
ii I Lead Counsel for the Class:
BERNSTEiN LITOWITZ BERGER & GROSSMANN LLP
Blair A. Nicholas Niki L. Mendoza 12481 High Bluff Drive, Suite 300 San Diego, California 92130-3582
Counsel for Defendants:
GIBSON, DUNN & CRUTCHER LLP Kay E. Kochenderfer Gareth Evans 333 South Grand Avenue Los Angeles, California 90071
and (ii) filed said objections, papers and briefs with the Clerk of the United States
District Court for the Central District of California, Western Division. Any
objection must include: (a) the full name, address, and phone number of the
objecting Class Member; (b) a list of all of the Class Member's Class Period
transactions in Toyota ADS's, including dates and prices paid and received, and
including brokerage confirmation receipts or other competent documentary
evidence of such transactions; (c) a written statement of all grounds for the
objection accompanied by any legal support for the objection; (d) copies of any
papers, briefs or other documents upon which the objection is based; (e) a list of
all persons who will be called to testify in support of the objection; (f) a statement
of whether the objector intends to appear at the Settlement Hearing; and (g) a list
of other cases in which the objector or the objector's counsel have appeared either
as settlement objectors or as counsel for objectors in the preceding five years. If
the objector intends to appear at the Settlement Hearing through counsel, the
objection must also state the identity of all attorneys who will appear on his, her or
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. CV 10-922 DSF (ASWx)
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2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 41 of 111
ID #:9815
1 its behalf at the Settlement Hearing. Any Class Member who does not make his,
2 her or its objection in the manner provided for herein shall be deemed to have
3 waived such objection and shall forever be foreclosed from making any objection
4 to the fairness or adequacy of the Settlement as reflected in the Stipulation, to the
5 Plan of Allocation or to the application by Lead Counsel for an award of
6 attorneys' fees and reimbursement of litigation expenses. The manner in which a
7 notice of objection should be prepared, filed and delivered shall be stated in the
8 Notice. By objecting to the Settlement, the Plan of Allocation and/or the
9 application by Lead Counsel for an award of attorneys' fees and reimbursement of
10 litigation expenses, or otherwise requesting to be heard at the Settlement Hearing,
11 a person or entity shall be deemed to have submitted to the jurisdiction of the
12 Court with respect to the person's or entity's objection or request to be heard and
13 the subject matter of the Settlement.
14
15. If approved, all Class Members will be bound by the proposed
15 Settlement provided for in the Stipulation, and by any judgment or determination
16 of the Court affecting Class Members, regardless of whether or not a Class
17 Member submits a Claim Form.
18
16. Any member of the Class may enter an appearance in the Action, at
19 his, her or its own expense, individually or through counsel of his, her or its own
20 choice. If they do not enter an appearance, they will be represented by Lead
211 Counsel.
22
17. The Court reserves the right to (a) adjourn or continue the Settlement
23 Hearing, or any adjournment or continuance thereof, without further notice to
24 Class Members and (b) approve the Stipulation, the Plan of Allocation, or an
25 award of attorneys' fees and reimbursement of litigation expenses with
26 I modification and without further notice to Class Members. The Court retains
27 jurisdiction of this Action to consider all further applications arising out of or
28 otherwise relating to the proposed Settlement, and as otherwise warranted.
[PROPOSED] PREL1MTNARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 42 of 111 ID #:9816
1
18. All Class Members shall be bound by all determinations and
2 judgments in the Action concerning the Settlement, whether favorable or
3 I unfavorable to the Class.
4
CLAIMS PROCESS
5
19. In order to be entitled to potentially participate in the Settlement, a
6 Class Member must complete and submit a Claim Form in accordance with the
7 instructions contained therein. To be valid and accepted, Claim Forms submitted
8 in connection with this Settlement must be postmarked no later than one-hundred
9 and twenty (120) days after the Notice Date.
10
20. Any Class Member who does not timely submit a valid Claim Form
11 shall not be eligible to share in the Settlement Fund, unless otherwise ordered by
12 the Court, but nonetheless shall be barred and enjoined from asserting any of the
13 Released Claims against the Released Persons and shall be bound by any
14 judgment or determination of the Court affecting the Class Members.
15
REQUEST FOR EXCLUSION FROM THE CLASS
16
21. Any requests for exclusion must be submitted for receipt no later
17 than twenty-one (21) calendar days prior to the Settlement Hearing. Any Class
18 Member who wishes to be excluded from the Class must provide (a) the name,
19 address and telephone number of the person or entity requesting exclusion; (b) the
20 person's or entity's transactions in Toyota ADS's during the Class Period,
21 including the dates, the number of Toyota ADS's purchased, acquired and/or sold
22 or disposed of, the date of each purchase, acquisition or sale or disposal and the
23 price paid and/or received; and (c) a statement that the person or entity wishes to
24 be excluded from the Class. The Claims Administrator (or other person
25 designated to receive exclusion requests) shall provide to Lead Counsel and
26 Defendants' counsel copies of any request for exclusion from the Class within
27 three (3) business days of receipt thereof. All persons who submit valid and
28 timely requests for exclusion in the manner set forth in this paragraph shall have
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. cv 10922 DSF (A.[Wx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 43 of 111
ID #:9817
1 no rights under the Stipulation, shall not share in the distribution of the Net
2 Settlement Fund, and shall not be bound by the Stipulation or any Final Judgment.
3
22. Any member of the Class who does not request exclusion from the
4 Class in the manner stated in this Order shall be deemed to have waived his, her or
5 its right to be excluded from the Class, and shall forever be barred from requesting
6 exclusion from the Class in this or any other proceeding, and shall be bound by
7 the Settlement and the Judgment, including, but not limited to the release of the
8 Released Claims against the Released Persons provided for in the Stipulation and
9 the Judgment, if the Court approves the Settlement.
10
23. The Released Persons shall have no responsibility or liability
11 whatsoever with respect to the Plan of Allocation or Lead Counsel's application
12 for an award of attorneys' fees and reimbursement of litigation expenses. The
13 Plan of Allocation and Lead Counsel's application for an award of attorneys' fees
14 and reimbursement of litigation expenses will be considered separately from the
15 fairness, reasonableness and adequacy of the Settlement. At or after the
16 Settlement Hearing, the Court will determine whether Lead Plaintiff's proposed
17 Plan of Allocation should be approved, and the amount of attorneys' fees and
18 litigation expenses to be awarded. Any appeal from any orders relating to the Plan
19 of Allocation or Lead Counsel's application for an award of attorneys' fees and
20 litigation expenses, or any reversal or modification thereof, shall not operate to
21 terminate or cancel the Settlement, or affect or delay the finality of the Judgment
22 approving the Stipulation and the settlement of the Action set forth therein.
23
24. Only Class Members and Lead Counsel shall have any right to any
24 portion of, or any rights in the distribution of, the Settlement Fund, unless
25 otherwise ordered by the Court or otherwise provided in the Stipulation.
26
25. All funds held by the Escrow Agent shall be deemed and considered
27 to be in custodia legis and shall remain subject to the jurisdiction of the Court
28
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. cv 10-922 DSF (AJWx)
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ID #:9818
I until such time as such funds shall be distributed pursuant to the Stipulation and/or
21 I further order of the Court.
3
26. As set forth in the Stipulation, without further order of the Court, the
4 Escrow Agent may pay from the Settlement Fund the costs and expenses
5 reasonably and actually incurred in connection with providing notice to the Class,
6 locating Class Members, soliciting Class claims, assisting with the filing of
7 claims, administering and distributing the Net Settlement Fund to Authorized
8 Claimants, processing Proof of Claim forms, and paying Taxes or Tax Expenses,
9 escrow fees and costs, if any. In the event the Court does not approve the
10 Settlement, or if the Settlement otherwise fails to become effective, neither Lead
11 Plaintiff nor Lead Counsel shall have any obligation to repay any amounts
12 actually and properly incurred or disbursed for such purposes.
13
27. Neither the Stipulation nor the settlement contained therein, nor any
14 act performed or document executed pursuant to or in furtherance of the
15 Stipulation or the settlement: (a) is or may be deemed to be or may be used as an
16 admission of, or evidence of, the validity or invalidity of any Released Claim or of
17 any wrongdoing or liability of the Defendants and the Released Persons; or (b) is
18 or may be deemed to be or may be used as an admission of, or evidence of, any
19 fault or omission of any of the Defendants and the Released Persons in any civil,
20 criminal or administrative proceeding in any court, administrative agency or other
21 tribunal. Defendants and the Released Persons may file the Stipulation and/or the
22 Judgment in any action that may be brought against them in order to support a
23 defense or counterclaim based on principles of res judicata, collateral estoppel,
24 release, good faith settlement, judgment bar or reduction, or any other theory of
25 claim preclusion or issue preclusion or similar defense or counterclaim.
26
28. Unless otherwise provided in the Stipulation, there shall be no
27 distribution of any of the Net Settlement Fund to any Class Member until a Plan
28 of Allocation is finally approved and is affirmed on appeal or certiorari or is no
[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 45 of 111
ID #:9819
1 longer subject to review by appeal or certiorari and the time for any petition for
2 rehearing, appeal or review, whether by certiorari or otherwise, has expired.
3
29. In the event that the Settlement fails to become effective in
4 accordance with its terms, or if the Judgment is not entered or is reversed, vacated
5 or materially modified on appeal (and, in the event of material modification, if any
6 party elects to terminate the Settlement), this Order (except Paragraphs 26 and 28)
7 shall be null and void, the Stipulation (except as otherwise provided therein) shall
8 be deemed terminated, and the parties shall return to their positions without
9 prejudice in any way, as provided for in the Stipulation.
10
11 IT IS SO ORDERED.
12 DATED:
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HONORABLE DALE S. FISCHER
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[PROPOSED] PRELIMINARY APPROVAL ORDER Master File No. CV 10-922 DSF (AJWx)
Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 46 of 111 Page ID #:9820
EXHIBIT A-i
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 47 of 111 Page ID #:9821 I
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BERNSTEiN LITOWITZ BERGER & GROSSMANN LLP
BLAIR A. NICHOLAS (Bar No. 178428) (blairn@blbglaw.com) BENJAMINGALDSTON (Bar No. 211114) (bengb1bg1aw. corn) DAVID R. KAPLAN (Bar No. 23 0144)
M81vidkblbglaw. corn)
High Bluff Drive, Suite 300 San Die!6,~CA 92130 Tel: (88 793-0070 Fax: (88793-0323
dGERALD H. SILK (! erryblbglaw. corn) 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 554-1400 Fax: (212) 554-1444
Counsel for Lead Plaintiff Maryland State Retirement and Pension System and Lead Counsel for the Class
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
IN RE TOYOTA MOTOR CORPORATION SECURITIES LITIGATION
FAIRBANK & VINCENT ROBERT H. FAIRBANK (Bar No.7635
%aCENT (rfairbankirbankvincent. corn) DIRK L. (Bar No. 157961) (dvincent@fairbankvincent.com ) 444 S. Flower Street, Suite 3860 Los Angeles, CA 90071 Tel: ('13) 891-9010 Fax: (213) 891 -9011
Liaison Counsel for the Class (Additional Counsel listed on signature page)
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT, SETTLEMENT HEARING, AND MOTION FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
EXHIBIT A-i
Courtroom: 840 Judge: Dale S. Fischer
NOTICE OF SETTLEMENT
Master File No. CV 10-922 DSF (AIWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 48 of 111
ID #:9822
1
A Federal Court authorized this Notice.
2
This is not a solicitation from a lawyer.
3 NOTICE OF PENDENCY OF CLASS ACTION: Please be advised that your rights
4 may be affected by a class action lawsuit pending in this Court (the "Action"
5 or "Litigation") if, during the period between May 10, 2005, and
6 February 2, 2010, inclusive, you purchased or otherwise acquired the
7 American Depositary Shares ("ADS's") of Toyota Motor Corporation.
8 NOTICE OF SETTLEMENT: Please also be advised that the Court-appointed
9 Lead Plaintiff, Maryland State Retirement and Pension System ("Lead
10 Plaintiff"), on behalf of the Class (as defined in ¶1 below), has reached a
11 proposed settlement of the Action for a total of $25.5 million in cash that will
12 resolve all claims in the Action (the "Settlement").
13 This Notice explains important rights you may have, including your possible
14 receipt of cash from the Settlement. Your legal rights will be affected whether
15 or not you act. Please read this Notice carefully and in its entirety!
16
1. Description of the Litigation and Class: This Notice relates to the
17 pendency and proposed settlement of a class action lawsuit against Toyota Motor
18 Corporation, Toyota Motor North America, Inc., Toyota Motor Sales, U.S.A.,
19 Inc. ("Toyota"); and Katsuaki Watanabe, Fujio Cho, Yoshimi Inaba, James E.
20 Lentz III, Irving A. Miller, Robert S. Carter and Robert C. Daly (collectively, the
21 "Individual Defendants"). Toyota and the Individual Defendants are collectively
22 referred to as the "Defendants." Defendants and Lead Plaintiff are collectively
23 referred to as the "Settling Parties." The proposed Settlement, if approved by the
24 Court, will settle certain claims of all persons and entities who purchased or
25 otherwise acquired Toyota Motor Corporation ADS's ("Toyota ADS's") between
26 May 10, 2005, and February 2, 2010, inclusive (the "Class Period") (the "Class").
27 For clarification, in order to be Class Member, you must have purchased Toyota
Master File No. cv 10-922 DSF (AJWx)
28
NOTICE OF SETTLEMENT -1-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 49 of 111
ID #:9823
I ADS's, CUSIP 892331307, during the Class Period. Purchases of Toyota
21 I common stock are not included in the Class definition.
3
2. Statement of Class' Recovery: Subject to Court approval and, as
4 described more fully below, Lead Plaintiff, on behalf of the Class, has agreed to
5 settle all claims related to the purchase or other acquisition of Toyota ADS's that
6 were or could have been asserted against Defendants and their Related Persons
7 (as defined in ¶44 below) in the Action in exchange for a settlement payment of
8 $25.5 million to be deposited into an interest-bearing escrow account (the
9 "Settlement Fund"). The Net Settlement Fund (the Settlement Fund less taxes,
10 notice and administration costs, and attorneys' fees and certain litigation
11 expenses awarded to Lead Counsel) will be distributed in accordance with a plan
12 of allocation (the "Plan of Allocation") that will be approved by the Court and
13 will determine 110w the Net Settlement Fund shall be allocated to the members of
14 the Class. The proposed Plan of Allocation is included in this Notice, and may
15 be modified by the Court without further notice.
16
3. Statement of Average Amount of Recovery Per ADS: The
17 Settlement Fund consists of $25.5 million plus interest earned. Your recovery
18 will depend on the number of Toyota ADS's you purchased or otherwise
19 acquired, and the timing of those transactions. It will also depend on the number
20 of valid claim forms that members of the Class submit and the amount of such
21 claims. Assuming that all of the investors who purchased or otherwise acquired
22 Toyota ADS's during the Class Period and were damaged thereby participate in
23 the Settlement, Lead Counsel estimates that the estimated average distribution
24 will be approximately $0.77 per damaged Toyota ADS before the deduction of
25 Court-approved fees and litigation expenses, as described below, and the cost of
26 notice and claims administration. Historically, less than all eligible investors
27 submit claims, resulting in higher average distributions per security.
Master File No. CV 10-922 DSP (AJWx)
NOTICE OF SETTLEMENT -2-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 50 of 111
ID #:9824
1
4. Statement of the Parties' Position on Damages: Defendants deny
2 all claims of wrongdoing, deny that they are liable to Lead Plaintiff and/or the
3 Class, and deny that Lead Plaintiff or other members of the Class suffered any
4 injury. Moreover, the parties do not agree on the amount of recoverable damages
5 or on the average amount of damages per security that would be recoverable if
6 Lead Plaintiff were to prevail on each of the claims in this Litigation. The issues
7 on which the parties disagree include, but are not limited to: (1) whether the
8 statements made or facts allegedly omitted were material, false or misleading, or
9 whether Defendants would be liable under the securities laws for the statements
10 or alleged omissions; (2) the amount by which the prices of Toyota ADS's were
11 allegedly inflated (if at all) during the Class Period; and (3) the effect of various
12 market forces influencing the trading prices of Toyota ADS's at various times
13 during the Class Period.
14
5. Statement of Attorneys' Fees and Expenses Sought: Lead
15 Counsel will apply to the Court for an award of attorneys' fees from the
16 Settlement Fund in an amount not to exceed 12% of the Settlement Fund net of
17 Court-approved litigation expenses, plus interest earned at the same rate and for
18 the same period as earned by the Settlement Fund. In addition, Lead Counsel
19 also will apply for the reimbursement of certain litigation expenses paid or
20 incurred by Plaintiffs' Counsel in connection with the prosecution and resolution
21 of the Action in an amount not to exceed $2,000,000 plus interest earned at the
22 same rate and for the same period as earned by the Settlement Fund. The request
23 for litigation expenses may include a request for reimbursement of the costs and
24 expenses of Plaintiffs in accordance with 15 U.S.C. § 78u-4(a)(4). Assuming that
25 all of the investors who purchased or otherwise acquired Toyota ADS's during
26 the Class Period and were damaged thereby participate in the Settlement, and if
27 the Court approves Lead Counsel's fee and expense application, Lead Counsel
Master File No. CV 10-922 DSF (AJWx)
28
NOTICE OF SETTLEMENT -3-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 51 of 111 ID #:9825
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estimates that the average cost per damaged Toyota ADS will be approximately
$0.15.
6. Identification of Attorney Representatives: Lead Plaintiff and the
Class are being represented by Blair A. Nicholas, Esq. of Bernstein Litowitz
Berger & Grossmann LLP, the Court-appointed Lead Counsel. Any questions
regarding the Settlement should be directed to Mr. Nicholas at Bernstein Litowitz
Berger & Grossmann LLP, 12481 High Bluff Drive, Suite 300, San Diego, CA
92130-3582, (866) 648-2524, blbgblbglaw.corn.
YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT:
REMAIN A MEMBER OF THE This is the only way to receive a CLASS payment. If you wish to obtain a
payment as a member of the Class, you will need to file a claim form (the "Claim Form"), which is included with this Notice, postmarked no later than [120 calendar days after Notice Date].
EXCLUDE YOURSELF FROM Receive no payment. This is the only THE CLASS BY SUBMITTING option that allows you to ever be part of A WRITTEN REQUEST FOR any other lawsuit against any of EXCLUSION SO THAT IT IS Defendants or the other Released Persons RECEIVED NO LATER THAN concerning the Released Claims. 121 calendar days prior to Settlement Hearing].
OBJECT TO THE Write to the Court and explain why you SETTLEMENT BY do not like the Settlement, the proposed SUBMITTING WRITTEN Plan of Allocation, or the request for OBJECTIONS SO THAT THEY attorneys' fees and reimbursement of ARE RECEIVED NO LATER expenses. You cannot object to the THAN 121 calendar days prior to Settlement unless you are a member of Settlement Hearing]. the Class and do not validly exclude
yourself.
GO TO THE HEARING ON Ask to speak in Court about the fairness
NOTICE OF SETTLEMENT -4-
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 52 of 111 Page ID #:9826
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AT _: of the Settlement, the proposed Plan of _.M., AND FILE A NOTICE OF Allocation, or the request for attorneys' INTENTION TO APPEAR SO fees and reimbursement of expenses. THAT IT IS RECEIVED NO LATER THAN [21 calendar days prior to Settlement Hearing].
DO NOTHING Receive no payment, remain a Class Member, give up your rights and be bound by the Final Order and Judgment entered by the Court if it approves the Settlement, including the Release of the Released Claims.
WHAT THIS NOTICE CONTAINS
Why Did I Get This Notice?
Page
What Is This Case About? What Has Happened So Far?
Page
How Do I Know If I Am Affected By The Settlement?
Page
What Are The Settling Parties' Reasons For The Settlement?
Page
What Might Happen If There Were No Settlement?
Page
How Much Will My Payment Be?
Page
What Rights Am I Giving Up By Agreeing To The Settlement?
Page
What Payment Are The Attorneys For The Class Seeking?
Page
How Will The Lawyers Be Paid?
Page
How Do I Participate In The Settlement?
Page
What Do INeed To Do?
Page
What If I Do Not Want To Be A Part Of The Settlement?
Page
How Do I Exclude Myself?
Page
When And Where Will The Court Decide Whether To Approve
The Settlement? Do I Have To Come To The Hearing? Page
May I Speak At The Hearing If I Don't Like The Settlement? Page
NOTICE OF SETTLEMENT -5-
Master File No. CV 10-922 DSF (AJWx)
28
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 53 of 111 Page ID #:9827 I
1 What If I Bought ADS's On Someone Else's Behalf?
Page
21 I Can I See The Court File?
Page
3 Whom Should I Contact If I Have Questions?
Page
4 NOTICE?
5
6
1. This Notice is being sent to you pursuant to an Order of the United
7 States District Court for the Central District of California (the "Court") because
8 you or someone in your family may have purchased or otherwise acquired Toyota
9 ADS's during the Class Period. The Court has directed us to send you this Notice
10 because, as a potential Class Member, you have a right to know about your options
11 before the Court rules on the proposed settlement of this case. Additionally, you
12 have the right to understand how a class action lawsuit may generally affect your
13 legal rights. If the Court approves the Settlement, a claims administrator selected
14 by Lead Plaintiff and approved by the Court will make payments pursuant to the
15 Settlement after any objections and appeals are resolved.
16
2. In a class action lawsuit, the Court selects one or more people, known
17 as class representatives, to sue on behalf of all people with similar claims,
18 commonly known as the class or the class members. In this Action, the Court has
19 appointed Maryland State Retirement and Pension System as Lead Plaintiff under a
20 federal law governing lawsuits such as this one, and approved Lead Plaintiff's
21 selection of the law firm of Bernstein Litowitz Berger & Grossmann LLP as lead
22 counsel ("Lead Counsel") to serve as Lead Counsel in the Action. Lead Plaintiff is
23 the Class Representative. "Plaintiffs" includes the Lead Plaintiff and additional
24 plaintiffs Fresno County Employees' Retirement Association and Robert M. Moss.
25 A class action is a type of lawsuit in which the claims of a number of individuals
26 are resolved together, thus providing the class members with both consistency and
27 efficiency. Once the class is certified, the Court must resolve all issues on behalf
28 of the class members, except for any persons who choose to exclude themselves
NOTICE OF SETTLEMENT
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 54 of 111
ID #:9828
I from the class. (For more information on excluding yourself from the Class, please
2! I read "What If I Do Not Want To Be A Part Of The Settlement? How Do I Exclude
3 Myself?" located below.)
4
3. The Court in charge of this case is the United States District Court for
5 the Central District of California, Western Division, and the case is known as In re
6 Toyota Motor Corporation Securities Litigation. The Judge presiding over this
7 case is the Honorable Dale S. Fischer, United States District Judge. The people
8 who are suing are called plaintiffs, and those who are being sued are called
9 defendants. In this case, the plaintiff is referred to as Lead Plaintiff, on behalf of
10 itself and the Class, and Defendants are Toyota and the Individual Defendants.
11
4. This Notice explains the lawsuit, the Settlement, your legal rights,
12 what benefits are available, who is eligible for them, and how to receive them. The
13 purpose of this Notice is to inform you of this case, that it is a class action, how
14 you might be affected, and how to exclude yourself from the Class if you wish to
15 do so. It also is being sent to inform you of the terms of the proposed Settlement,
16 and of a hearing to be held by the Court to consider the fairness, reasonableness
17 and adequacy of the proposed Settlement, the fairness and reasonableness of the
18 proposed Plan of Allocation, and the application by Lead Counsel for attorneys'
19 fees and reimbursement of expenses (the "Settlement Hearing").
20
5. The Settlement Hearing will be held on at
21 _.m., before the Honorable Dale S. Fischer, at the United States District Court for
22 the Central District of California, Western Division, 255 East Temple Street,
23 Courtroom 840, Los Angeles, California to determine:
24 S whether the Court should grant final certification of the Class
25 solely for purposes of the Settlement;
26 .
whether the proposed Settlement is fair, reasonable, adequate and
27
in the best interests of the Class and should be approved by the
28
Court;
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF SETTLEMENT -7-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 55 of 111
ID #:9829
1 whether the Released Claims against Defendants and the other
2
Released Persons should be dismissed with prejudice and fully and
3
finally released by Lead Plaintiff and the Class as set forth in the
4
Stipulation of Settlement entered into by the Settling Parties as of
5
November 9, 2012 (the "Stipulation");
6 • whether the proposed Plan of Allocation is fair and reasonable and
7
should be approved by the Court;
8 • whether Lead Counsel's request for an award of attorneys' fees
9
and reimbursement of certain litigation expenses should be
10
approved by the Court; and
11 • any other matters that may be timely brought before the Court.
12
6. This Notice does not express any opinion by the Court concerning the
13 merits of any claim in the Action, and the Court still has to decide whether to
14 approve the Settlement. If the Court approves the Settlement, payments to
15 Authorized Claimants (defined below) will be made after any appeals are resolved,
16 and after the completion of all claims processing. Please be patient.
17 WHAT IS THIS CASE ABOUT WHAT HAS HAPPENED SO FAR
18
19
7. On or after February 8, 2010, the following seven putative class action
20 cases were filed in the United States District Court for the Central District of
21 California: (1) Harry Stackho use v. Toyota Motor Corporation, et at., 10-CV-922
22 DSF (AJWx); (2) Tom Mustric v. Toyota Motor Corporation, et at., 10-CV-1429
23 DSF (AJWx); (3) Kathryn A. Squires v. Toyota Motor Corporation, et at., 10-
24 CV 1452 DSF (AJWx); (4) Robert M Moss v. Toyota Motor Corporation, et at.,
25 10-CV-1911 DSF (AFWx); (5) Phi/tip Gelenberg v. Toyota Motor Corporation, et
26 at., 10-CV-2196 DSF (AJWx); (6) Patricia Sampoti v. Toyota Motor Corporation,
27 et at., 10-CV-2253 DSF (AJWx); and (7) Haret Pia Mutual Fund v. Toyota Motor
Master File No. CV 10-922 DSF (AJWx)
28
NOTICE OF SETTLEMENT -8-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 56 of 111 ID #:9830
Corporation, et al., 10-CV-2578 DSF (AJWx) 1 . On June 7, 2010, the Court
ordered these cases consolidated, and on August 2, 2010, the Court appointed
Maryland State Retirement and Pension System as Lead Plaintiff, the law firm of
Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel for the putative
class, and the law firm of Fairbank & Vincent as Liaison Counsel for the putative
class.
8. On October 4, 2010, Lead Plaintiff filed a Consolidated Class Action
Complaint (the "Complaint") alleging claims on behalf of a class of purchasers of
Toyota Motor Corporation American Depositary Shares between May 10, 2005,
and February 2, 2010, inclusive, and all persons and entities who purchased or
otherwise acquired Toyota common stock during the Class Period. The claims
asserted included claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, and claims under Japanese law based on the allegations that
Defendants concealed unintended acceleration problems affecting Toyota Vehicles.
9. On January 20, 2011, Defendants moved to dismiss the Complaint.
On March 31, 2011, Lead Plaintiff filed their opposition to the motion to dismiss,
and on April 20, 2011, Defendants filed their reply in further support of their
motion to dismiss.
10. On July 7, 2011, the Court granted in part and denied in part
Defendants' motion to dismiss the Complaint. Specifically, the Court partially
sustained the Complaint's claims under the federal securities laws, but dismissed
the claim under Japanese law.
11. On September 9, 2011, Defendants filed their Answer to the
Complaint.
12. On December 9, 2011, Defendants moved for partial judgment on the
pleadings, requesting the Court to dismiss all claims based on three of the
1 On July 10, 2010, Plaintiff Hare! Pia Mutual Fund filed a Notice of Voluntary Dismissal in Case No. 10-CV-2578 DSF (AJWx) (ECF No. 24).
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Master File No. CV 10-922 DSP (AIWx)
NOTICE OF SETTLEMENT
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 57 of 111
ID #:9831
1 remaining seven allegedly false or misleading statements at issue in the Complaint.
2 On January 23, 2012, Lead Plaintiff filed their opposition to the motion for partial
3 judgment on the pleadings and Defendants filed their reply in further support of
4 their motion on February 13, 2012.
5
13. On February 21, 2012, the Court issued the memorandum and order
6 denying Defendants' motion for partial judgment on the pleadings.
7
14. On February 17, 2012, Lead Plaintiff filed a motion for class
8 certification seeking certification of a class of all persons and entities that
9 purchased or otherwise acquired Toyota ADS's between April 7, 2008, and
10 February 2, 2010, inclusive, and who, upon disclosure of certain facts, were
11 allegedly injured thereby. Lead Plaintiff did not seek certification of a class of
12 persons that purchased the common stock of Toyota Motor Corporation. On May
13 8, 2012, Defendants filed their opposition to Lead Plaintiff's certification motion
14 and a motion to exclude the expert report of Lead Plaintiff's expert. On August 2,
15 2012, Lead Plaintiff filed a reply in further support of its certification motion, and
16 an opposition to the motion to exclude Lead Plaintiff's expert. On August 9, 2012,
17 Lead Plaintiff filed a motion to exclude the expert report of Defendants' expert.
18 On August 30, 2012, Defendants filed a reply in support of their motion to exclude
19 the expert report of Lead Plaintiff's expert, and on September 6, 2012, Defendants
20 filed an opposition to Lead Plaintiff's motion to exclude the expert report of
21 Defendants' expert. On September 27, 2012, Lead Plaintiff filed a reply in support
22 of its motion to exclude the expert report of Defendants' expert. The motions were
23 briefed and under submission when the agreement in principle to settle was
24 reached.
25
15. Prior to reaching an agreement to settle, the parties had conducted
26 extensive litigation of the case, including, among other things, taking ten
27 depositions (including of the parties' respective experts), and the production of
28 over 6 million pages of documents.
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF SETTLEMENT -10-
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ID #:9832
1
16. On October 5, 2012, the Parties filed a joint stipulation continuing
2 various hearing dates and staying discovery on the grounds that the Parties were
3 engaged in settlement discussions that they believed would lead to a settlement,
4 subject to board approvals. On October 10, 2012, the Court entered an Order
approving the stipulation that continued the hearings to December 3, 2012, and
6 stayed discovery pending further order of the Court.
7
17. On or before November 16, 2012, the Parties submitted the proposed
8 Settlement to the Court, along with Lead Plaintiff's motion for preliminary
9 approval of the Settlement. On [INSERT], the Court preliminarily approved the
10 Settlement, preliminarily certified the Class, authorized this Notice to be sent to
Ii potential members of the Class, and scheduled the Settlement Hearing to consider
12 whether to grant final approval to the Settlement.
13
HOW DO 1 KNOW IF 1AM
RIM
14
15
18. If you are a member of the Class, you are subject to the Settlement
16 unless you timely and validly request to be excluded. The Class consists of all
17 persons or entities that purchased or otherwise acquired Toyota ADS's between
18 May 10, 2005, and February 2, 2010, inclusive. Excluded from the Class are
19 Defendants and their Related Persons (defined below). Also excluded from the
20 Class are any persons who exclude themselves by filing a request for exclusion in
21 accordance with the requirements set forth in this Notice (see "What If I Do Not
22 Want To Participate In The Class And The Settlement? How Do I Exclude
23 Myself?" below).
24 RECEIPT OF THIS NOTICE DOES NOT NECESSARILY MEAN THAT
25 YOU ARE A CLASS MEMBER OR THAT YOU ARE ELIGIBLE TO
26 RECEIVE PROCEEDS FROM THE SETTLEMENT. IF YOU WISH TO
27 POTENTIALLY PARTICIPATE IN THE SETTLEMENT, YOU MUST
28
NOTICE OF SETTLEMENT -11-
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 59 of 111
ID #:9833
1j I SUBMIT THE ENCLOSED CLAIM FORM POSTMARKED NO LATER
2 THAN [120 days after Notice Date].
3 WHAT ARE THE SETTLING PARTIES' REASONS FOR THE
4
SETTLEMENT?
5
19. Lead Plaintiff and Lead Counsel believe that the claims asserted
6 against Defendants have merit. Lead Plaintiff and Lead Counsel recognize,
7 however, the expense and length of continued proceedings necessary to pursue
8 their claims against Defendants through trial and appeals, as well as the difficulties
9 in establishing liability for allegations of fraud. Lead Plaintiff and Lead Counsel
10 have considered the uncertain outcome and trial and appellate risk in complex
11 lawsuits like this one.
12
20. In light of the amount of the Settlement and the immediacy of
13 recovery to the Class, Lead Plaintiff and Lead Counsel believe that the proposed
14 Settlement is fair, reasonable and adequate, and in the best interests of the Class.
15 Lead Plaintiff and Lead Counsel believe that the Settlement provides a substantial
16 benefit now, namely $25.5 million in cash (less the various deductions described in
17 this Notice), as compared to the risk that the claims would result in a similar,
18 smaller, or no recovery after summary judgment, trial and appeals, possibly years
19 in the future.
20
21. Defendants' have denied and continue to deny each and all of the
21 claims alleged by Lead Plaintiff in the Action. Defendants have expressly denied
22 and continue to deny all charges of wrongdoing or liability against them arising out
23 of any of the conduct, statements, acts or omissions alleged, or that could have
24 been alleged, in the Action. Defendants also have denied and continue to deny,
25 among other things, the allegations that Lead Plaintiff or the Class have suffered
26 any damage, or that Lead Plaintiff or the Class were harmed by the conduct alleged
27 in the Complaint. Defendants also have taken into account the uncertainty and
28 risks inherent in any litigation, especially in a complex case such as this.
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF SETTLEMENT -12-
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ID #:9834
ii Nonetheless, Defendants have concluded that further conduct of the Action would
2 be protracted and expensive, and that it is desirable that the Action be fully and
3 finally settled in the manner and upon the terms and conditions set forth in the
4 Stipulation. The Settlement shall in no event be construed or deemed to be
5 evidence of or an admission or concession on the part of Defendants with respect
6 to any claim or of any fault or liability or wrongdoing or damage whatsoever, or
7 any infirmity in the defenses that Defendants have or could have asserted.
8 Defendants expressly deny that Lead Plaintiff has asserted a valid claim and denies
9 any and all allegations of fault, liability, wrongdoing or damages whatsoever.
10
11
WHAT MIGHT HAPPEN W THERE WERE NO
12
13 22. If there were no Settlement and Lead Plaintiff failed to establish any
14 essential legal or factual element of its claims, neither Lead Plaintiff nor the Class
15 would recover anything from Defendants. Also, if Defendants were successful in
16 proving any of their defenses, the Class likely would recover substantially less than
17 the amount provided in the Settlement, or nothing at all.
18
HOW MUCH WILL MY PAYMENT BE
19
20 I. THE PROPOSED PLAN OF ALLOCATION: GENERAL PROVISIONS
21
22
23. The $25.5 million total settlement amount, and the interest earned
23 thereon, shall be the Gross Settlement Fund. The Gross Settlement Fund, less all
24 taxes, approved costs, fees and expenses (the "Net Settlement Fund"), shall be
25 distributed to Claimants who submit timely and valid Claim Forms that are
26 approved by payment by the Court ("Authorized Claimants") under the Plan of
27 Allocation described below, or as otherwise ordered by the Court.
28
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I
24. Each Authorized Claimant's share of the Net Settlement Fund will
2 depend on the total number of Toyota ADS's represented by the valid Claim Forms
3 submitted to the Claims Administrator, and the aggregate amount of those claims
4 relative to the Net Settlement Fund. Each Authorized Claimant's share of the Net
5 Settlement Fund will also depend on how many Toyota ADS's the Claimant
6 purchased or acquired during the Class Period, and when the Claimant purchased
7 or acquired and sold or disposed of them. A payment to any Authorized Claimant
8 that would amount to less than $10.00 in total will not be included in the
9 distribution of the Net Settlement Fund, and no payment to these members of the
10 Class will be made.
11
25. For purposes of determining the amount a Claimant may recover
12 under the Plan of Allocation, Lead Counsel conferred with a damages consultant.
13 The objective of the Plan of Allocation is to equitably distribute the settlement
14 proceeds to those Class Members who suffered economic losses as a result of the
15 alleged violations of the federal securities laws as opposed to losses caused by
16 market or industry factors or Company-specific factors unrelated to the alleged
17 violations of law. The Plan of Allocation reflects Lead Plaintiffs' damages
18 consultant's analysis undertaken to that end, including a review of publicly
19 available information regarding Toyota and statistical analyses of the price
20 movements of Toyota ADS's and the price performance of relevant market and
21 industry indices during the Class Period. The Plan of Allocation, however, is not a
22 formal damage analysis.
23 26. The Plan of Allocation, subject to Court approval or modification
24 without further notice to the Class, is as follows:
25
26 (a) To the extent there are sufficient funds in the Net Settlement
27 Fund, each Authorized Claimant will receive an amount equal
28 to the Authorized Claimant's "Recognized Claim" (as defined
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1
below). If, however, the amount in the Net Settlement Fund is
2 not sufficient to permit payment of the Recognized Claim of
3 each Authorized Claimant, then each Authorized Claimant shall
4
be paid the percentage of the Net Settlement Fund that each
5
Authorized Claimant's Recognized Claim bears to the total of
6
the Recognized Claims of all Authorized Claimants ("pro rata
7
share"), subject to the $10.00 minimum payment threshold. If
8
the Net Settlement Fund exceeds the sum total amount of the
9
Recognized Claims of all Authorized Claimants entitled to
10 receive payment out of the Net Settlement Fund, the excess
11 amount in the Net Settlement Fund shall be distributed pro rata
12
to all Authorized Claimants entitled to receive payment.
13
Payment in this manner shall be deemed conclusive against all
14
Authorized Claimants.
15
(b) To calculate a "Recognized Loss Amount," "Class Period
16
Sales"2 must be matched against purchases during the Class
17
Period. To do so, Class Period Sales of Toyota ADS's will be
18
first matched with any pre-Class Period holdings and then
19 matched with purchases during the Class Period in
20
chronological order ("FIFO Matching"). 3 Class Period Sales
21 matched to pre-Class Period purchases shall have no loss or
22 gain for the purpose of calculating a Recognized Loss Amount.
23
24 2"Class Period Sales" include all sales during the Class Period and through May 4,
2010, the end of the 90-day look-back period. The Class Period Sales that match 25 with purchases during the Class Period are the "Matched Sales." The Class Period
26 purchases that match with Class Period Sales are the "Matched Purchases." The Class Period purchases that do not match with Class Period Sales are the "Held
27 Purchases."
28 Class Period Sales that do not match with pre-Class Period holdings or Class
Period purchases will not be used in calculating any Recognized Loss Amount. NOTICE OF SETTLEMENT
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1
Any person or entity that sold Toyota ADS's "short" shall have
2 no Recognized Loss Amount with respect to any purchase
3
during the Class Period to cover said short sale, and such
4 purchases must be identified as short sales or purchases to
5
cover short sales in Claimants' Proof of Claim forms. The date
6
of covering a "short sale" is deemed to be the date of purchase
7 or acquisition of Toyota ADS's. The date of a "short sale" is
8
deemed to be the date of sale or disposition of Toyota ADS's.
9
In accordance with the Plan of Allocation, however, the
10
Recognized Loss Amount on "short sales" is zero. In the event
11
that a Claimant has an opening short position in Toyota ADS's,
12
the earliest Class Period purchases shall be matched against
13 such an opening short position, and not be entitled to a
14
recovery, until that short position is fully covered."
15
(c) The price per ADS, purchased or sold, shall be exclusive of all
16 commissions, taxes and fees. The purchase or sale date of any
17
Toyota ADS is the trade date, not the settlement date.
18
(d) Each Claimant's "Recognized Claim" shall be the sum of the
19
Claimant's Recognized Loss Amounts on all transactions in
20
Toyota ADS's during the Class Period. If the Claimant had an
21
"overall market gain" with respect to his, her or its overall
22
transactions in Toyota ADS's during the Class Period, then the
23 value of the Claimant's Recognized Claim shall be zero. To the
24 extent that a Claimant suffered an "overall market loss" with
25
respect to his, her, or its overall transactions in Toyota AD S's
26
during the Class Period, but that market loss was less than the
27
Recognized Claim, then the Claimant's Recognized Claim shall
28
be limited to the amount of the actual market loss. For
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purposes of determining whether a Claimant had a "market
gain" with respect to his, her or its overall transactions in
Toyota ADS's during the Class Period or suffered a "market
loss," the Claims Administrator shall calculate (i) the
Claimant's Total Purchase Amount 4 and subtract from that
amount (ii) the sum of the Claimant's Sales Proceeds 5 and
Holding Value. 6 This amount will be deemed a Claimant's
market gain (if a negative number) or market loss (if a positive
number) with respect to his, her or its overall transactions in
Toyota ADS 's during the Class Period.
27. The calculations made pursuant to the Plan of Allocation are not
intended to be estimates of, nor indicative of, the amounts that Class Members
might have been able to recover after a trial. Nor are the calculations pursuant to
the Plan of Allocation intended to be estimates of the amounts that will be paid to
Authorized Claimants pursuant to the Settlement. The computations under the
Plan of Allocation are only a method to weigh the claims of Authorized Claimants
against one another for the purposes of making pro rata allocations of the Net
Settlement Fund.
The "Total Purchase Amount" is the total amount the Claimant paid (excluding commissions and other charges) for all Toyota ADS's purchased or acquired during the Class Period.
The Claims Administrator shall match any sales of Toyota ADS's during the Class Period and through May 4, 2010, the end of the 90-day look-back period, first against the Claimant's opening position in the security (the proceeds of those sales will not be considered for purposes of calculating market gains or losses). The total amount received for sales of the remaining Toyota ADS's sold during the Class Period and through May 4, 2010 is the "Sales Proceeds." 6 The Claims Administrator shall ascribe a value of $75.51 per share (the average closing price of the ADS between February 3, 2010 and May 4, 2010, as shown at the end of Table A attached hereto) for Toyota ADS's purchased or acquired during the Class Period and still held as of the close of business on May 4, 2010 (the "Holding Value").
NOTICE OF SETTLEMENT -17-
I
2
3
4
5
6
7
8
9
10
11
121
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
28. The Plan of Allocation generally measures the amount of loss that a
2 Class Member can claim for purposes of making pro rata allocations of the cash in
3 the Net Settlement Fund to Authorized Claimants. Recognized Loss Amounts are
4 based on the level of alleged artificial inflation in the price of Toyota's ADS's at
5 the time of purchase or acquisition. For losses to be compensable damages under
6 the federal securities laws, however, the disclosure of the allegedly misrepresented
7 information must be the cause of the decline in the price of the ADS. In this case,
8 Lead Plaintiff alleges that Defendants made false statements and omitted material
9 facts from May 10, 2005 through and including February 2, 2010. It is alleged that
10 corrective disclosures that removed the alleged artificial inflation from the prices
11 of Toyota ADS occurred on January 27, 2010, February 2, 2010 and February 3,
12 2010. Accordingly, in order to have a compensable loss:
13 (a) ADS's purchased or otherwise acquired from May 10, 2005
14 through January 26, 2010, inclusive, must have been held until
15 at least the beginning of trading on January 27, 2010, the day of
16 the first corrective disclosure;
17 (b) ADS's purchased or otherwise acquired from January 27, 2010,
18 through February 1, 2010, inclusive, must have been held until
19 at least the beginning of trading on February 2, 2010, the day of
20 the second corrective disclosure; and
21 (c) ADS's purchased or otherwise acquired on February 2, 2010
22 must have been held until at least the beginning of trading on
23 February 3, 2010, the day of the last corrective disclosure.
24 29. To the extent a transaction does not satisfy the conditions set forth in
25 the preceding paragraph, the Claimant's Recognized Loss Amount for those
26 transactions will be zero. 27
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1
CALCULATION OF SPECIFIC LOSS AMOUNTS
2 30. Based on the formulas set forth below, a Recognized Loss Amount
3 shall be calculated for each Class Period purchase or acquisition of Toyota ADS's
4 listed in the Proof of Claim form and for which adequate documentation is
5 provided. If a Recognized Loss Amount results in a negative number, that
6 Recognized Loss Amount shall be zero.
7
31. For each Toyota ADS purchased or acquired between May 10, 2005,
8 and January 26, 2010, inclusive, and:
9 (a) Sold prior to January 27, 2010, the Recognized Loss Amount is
10 $0.00.
11 (b) Sold on January 27, 2010, January 28, 2010, January 29, 2010,
12 or February 1, 2010, the Recognized Loss Amount shall be the
13 lesser of (i) $6.64; or (ii) the purchase/acquisition price minus
14 the sale price.
15 (c) Sold on February 2, 2010, the Recognized Loss Amount shall
16 be the lesser of (i) $9.67; or (ii) the purchase/acquisition price
17 minus the sale price.
18 (d) Sold from February 3, 2010, through the close of trading on
19 May 4, 2010, the Recognized Loss Amount is the least of (i)
20 $14.46; (ii) the purchase/acquisition price minus the sale price;
21 or (iii) the purchase price minus the average closing price of
22 the ADS between February 3, 2010, and the date of sale as
23 shown in Table A.
24 (e) Held as of the close of trading on May 4, 2010, the Recognized
25 Loss Amount is the lesser of (i) $14.46; or (ii) the
26 purchase/acquisition price minus $75.51, which is the average
27 closing price of the ADS between February 3, 2010 and May 4,
28 2010, as shown at the end of Table A.
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1
32. For each Toyota ADS purchased or acquired on January 27, 2010,
2 January 28, 2010, January 29, 2010, or February 1, 2010, and:
3 (a) Sold prior to February 2, 2010, the Recognized Loss Amount is
4 $0.00.
5 (b) Sold on February 2, 2010, the Recognized Loss Amount shall
6 be the lesser of (i) $3.03; or (ii) the purchase/acquisition price
7 minus the sale price.
8 (c) Sold from February 3, 2010, through the close of trading on
9 May 4, 2010, the Recognized Loss Amount is the least of (i)
10 $7.82; (ii) the purchase/acquisition price minus the sale price;
11 or (iii) the purchase price minus the average closing price of
12 the ADS between February 3, 2010, and the date of sale as
13 shown in Table A.
14 (d) Held as of the close of trading on May 4, 2010, the Recognized
15 Loss Amount is the lesser of (i) $7.82; or (ii) the
16 purchase/acquisition price minus $75.51, which is the average
17 closing price of the ADS between February 3, 2010 and May 4,
18 2010, as shown at the end of Table A.
19 33. For each Toyota ADS purchased or acquired on February 2, 2010, 20
and: 21
22 (a) Sold on February 2, 2010, the Recognized Loss Amount is
$0.00. 23
24 (b) Sold from February 3, 2010, through the close of trading on
25 May 4, 2010, the Recognized Loss Amount is the least of (i)
26 $4.79; (ii) the purchase/acquisition price minus the sale price;
27 or (iii) the purchase price minus the average closing price of
28
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1
the ADS between February 3, 2010, and the date of sale as
2 shown in Table A.
3
(c) Held as of the close of trading on May 4, 2010, the Recognized
4
Loss Amount is the lesser of (i) $4.79; or (ii) the
5 purchase/acquisition price minus $75.51, which is the average
6 closing price of the ADS between February 3, 2010 and May 4,
7
2010, as shown at the end of Table A.
8
34. For each Toyota ADS purchased or acquired on or after February 3,
9 2010 the Recognized Loss Amount is $0.00.
10 II. DISTRIBUTION OF THE NET SETTLEMENT FUND
11 35. The "Recognized Loss Amount" will be used for calculating the
12 relative amount of participation by Authorized Claimants in the Net Settlement
13 Fund and does not reflect the actual amount an Authorized Claimant can expect to
14 recover from the Net Settlement Fund. The combined Recognized Loss Amounts
15 of all Authorized Claimants may be greater than the Net Settlement Fund. In such
16 event, subject to the $10.00 minimum payment requirement discussed above, each
17 Authorized Claimant shall receive his, her or its pro rata share of the Net
18 Settlement Fund, which shall be his, her or its Total Recognized Claim divided by
19 the total of all Total Recognized Claims to be paid, multiplied by the total amount
20 in the Net Settlement Fund.
21 36. Payment pursuant to the Plan of Allocation shall be conclusive against
22 all Authorized Claimants. No Person shall have any claim against Lead Counsel,
23 Lead Plaintiff, the Claims Administrator, Defendants and their Related Persons
24 (defined below), or any Person designated by Lead Counsel based on distributions
25 made substantially in accordance with the Stipulation and the Settlement contained
26 therein, the Plan of Allocation, or further order(s) of the Court. All members of the
27 Class who fail to timely submit a Claim Form within such period, or such other
28 period as may be ordered by the Court, or otherwise allowed, shall be forever
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1 barred from receiving any payments pursuant to the Settlement, but will in all other
2 respects be subject to and bound by the terms of the Settlement, including the
3 Release of the Released Claims against the Released Persons.
4
37. The Court has reserved jurisdiction to allow, disallow, or adjust on
5 equitable grounds the claim of any member of the Class.
6
38. The Plan of Allocation set forth herein is the plan that is being
7 proposed by Lead Plaintiff and Lead Counsel to the Court for approval. The Court
8 may approve this plan as proposed or it may modify it without further notice to the
9 Class.
10 WHAT RIGHTS AM I GIVING UP BY AGREEING TO THE SETTLEMENT?
11
12
39. If the Settlement is approved, the Court will enter a judgment (the
13 "Judgment"). The Judgment will dismiss with prejudice certain claims asserted
14 against Defendants in the Action and will provide that Lead Plaintiff and all other
15 members of the Class shall be deemed to have - and by operation of the Judgment
16 shall have - fully, finally, and forever released, relinquished, discharged and
17 dismissed each and every one of the Released Claims (as defined in ¶41 below)
18 against each and every one of the Released Persons (as defined in ¶42 below),
19 whether or not such Class Member executes and delivers the Proof of Claim, and
20 whether or not such Class Member shares in the Settlement Fund.
21
40. "Immediate Family" means an individual's spouse, parents, siblings,
22 children, grandparents, grandchildren; the spouses of his or her parents, siblings
23 and children; and the parents and siblings of his or her spouse, and includes step
24 and adoptive relationships.
25
41. "Released Claims" means any and all claims (including "Unknown
26 Claims" as defined below), debts, demands, controversies, obligations, losses,
27 rights, liabilities and/or causes of action of any kind or nature whatsoever—
28 including, but not limited to, any claims for damages (whether compensatory,
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1 special, incidental, consequential, punitive, exemplary or otherwise) injunctive
2 relief, declaratory relief, rescission or rescissionary damages, interest, attorneys'
fees, expert or consulting fees, costs, expenses, or any other form of legal or
4 equitable relief whatsoever—whether based on federal, state, local, foreign,
5 statutory or common law or regulation, class or individual in nature, known or
6 unknown, fixed or contingent, suspected or unsuspected, concealed or hidden,
7 accrued or un-accrued, liquidated or un-liquidated, at law or in equity, matured or
8 un-matured, and that either were asserted or could have been asserted, that relate to
9 the purchase or acquisition of the American Depository Shares of Toyota Motor
10 Corporation by the respective Class Member during the Class Period and (i) have
11 been asserted in this Litigation by the Class Members or any of them against any of
12 the Released Persons (as defined below), or (ii) could have been asserted in the
13 Litigation or any other forum by the Class Members or any of them against any of
14 the Released Persons, which arise out of or are based upon or related in any way to
15 the allegations, transactions, facts, matters or occurrences, representations or
16 omissions involved, set forth, or referred to in the Litigation, including, but not
17 limited to, statements or alleged omissions relating to unintended acceleration in
18 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles), recalls of
19 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles), the quality of
20 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles) and/or
21 Toyota's financial results. For clarification, Released Claims do not include claims
22 that relate to the purchase or acquisition of Toyota common stock (except to the
23 extent that Toyota ADS's represent underlying Toyota common stock, in which
24 case claims relating to the purchase of Toyota ADS's during the Class Period are
25 included in the Released Claims), or claims based upon, relating to or arising out
26 of the interpretation or enforcement of the terms of the Settlement.
27
42. "Released Persons" means each and all of the Defendants and their
28 II Related Persons.
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1
43. "Unknown Claims" means any Released Claims that any Lead
2 Plaintiff or any Class Member does not know or does not suspect to exist in his,
3 her, or its favor at the time of the release of the Released Persons, which, if known
4 by him, her, or it, might have affected his, her, or its settlement with and release of
5 the Released Persons, or might have affected his, her, or its decision(s) with respect
ji to the settlement. Upon the effective date of the Settlement, when the Judgment
7 has become final, Lead Plaintiff shall have expressly waived and relinquished, and
8 each of the Class Members shall be deemed to have, and by operation of the
9 Judgment shall have, expressly waived and relinquished the provisions, rights, and
10 benefits conferred by California Civil Code § 1542, which provides:
11
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
12
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
13
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
14
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
15
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
16
HER SETTLEMENT WITH THE DEBTOR.
17
Additionally, Lead Plaintiff shall have expressly waived and relinquished,
18 and each of the Class Members shall be deemed to have, and by operation of the
19 Judgment shall have, expressly waived and relinquished, any and all provisions,
20 rights, and benefits conferred by any law of any law of any state or territory of the
21 United States, or any foreign state or territory, or any principle of common law,
22 which is similar, comparable or equivalent to California Civil Code § 1542. Lead
23 Plaintiff and Class Members may hereafter discover facts in addition to or different
24 from those that any of them now knows or believes to be true related to the subject
25 matter of the Released Claims, but Lead Plaintiff upon the effective date of the
26 Settlement shall have expressly, fully, finally and forever settled and released and
27 each Class Member, upon the Effective Date, shall be deemed to have, and by
28 operation of Judgment shall have, fully, finally, and forever settled and released
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1 any and all Released Claims against all Released Persons, known or unknown,
2 suspected or unsuspected, contingent or non-contingent, whether or not concealed
3 or hidden, which now exist, or heretofore have existed, upon any theory of law or
4 equity now existing or coming into existence in the future, including, but not
5 limited to, conduct that is negligent, intentional, with or without malice, or a
6 breach of any duty, law, regulation or rule, without regard to the subsequent
7 discovery or existence of such different or additional facts. Lead Plaintiff
8 acknowledges, and the Class Members shall be deemed by operation of the
9 Judgment to have acknowledged, that the foregoing waiver of "Unknown Claims"
10 (and inclusion of "Unknown Claims" in the definition of "Released Claims") was
11 separately bargained for and is a key element of the settlement of which this
12 release is a part.
13
44. "Related Persons" means each of a Defendant's past or present
14 directors, officers, managers, employees, partners, members, principals, agents,
15 underwriters, insurers and co-insurers and their reinsurers, controlling
16 shareholders, attorneys, accountants or auditors, personal or legal representatives,
17 predecessors, successors (including by way of merger, consolidation, or other
18 acquisition of controlling interest), parents, subsidiaries, divisions, joint ventures,
19 assigns, spouses, heirs, executors, estates, administrators, related or affiliated
20 entities, any entity in which a Defendant has a controlling interest, any members of
21 any Individual Defendant's Immediate Family, or any trust of which any Individual
22 Defendant is the settlor or which is for the benefit of any Individual Defendant's
23 family, in their respective capacities as such.
24
45. The Judgment also will provide that Defendants and each of the other
25 Released Persons, shall be deemed by operation of the Judgment to have fully,
26 finally, and forever released, relinquished, and discharged Lead Plaintiff, each and
27 all of the Class Members, Lead Counsel, Liaison Counsel and Plaintiffs' Counsel
28 from all claims (including Unknown Claims) debts, demands, controversies,
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1 obligations, losses, rights, liabilities and/or causes of action of any kind or nature
2 whatsoever—including, but not limited to, any claims for damages (whether
3 compensatory, special, incidental, consequential, punitive, exemplary or otherwise)
4 injunctive relief, declaratory relief, rescission or rescissionary damages, interest,
5 attorneys' fees, expert or consulting fees, costs, expenses, or any other form of
6 legal or equitable relief whatsoever—whether based on federal, state, local,
71 foreign, statutory or common law or regulation, class or individual in nature,
8 known or unknown, fixed or contingent, suspected or unsuspected, concealed or
9 hidden, accrued or un-accrued, liquidated or un-liquidated, at law or in equity,
10 matured or un-matured, arising out of, relating to, or in connection with the
11 institution, prosecution, assertion, settlement or resolution of the Litigation or the
12 Released Claims, provided that claims based upon, relating to or arising out of the
13 interpretation or enforcement of the terms of the Settlement are not released.
14 WHAT PAYMENT ARE THE ATTORNEYS FOR THE CLASS SEEKING
15
HOW WILL THE LAWYERS BE PAID
16 46. Lead Counsel has not received any payment for its services in 17 pursuing claims against Defendants on behalf of the Class, nor has Lead Counsel 18 been reimbursed for its out-of-pocket expenses. Before final approval of the 19 Settlement, Lead Counsel intends to apply to the Court for an award of attorneys' 20 fees from the Settlement Fund in an amount not to exceed 12% of the Settlement 21 Fund net of Court-approved litigation expenses, plus interest at the same rate and 22 for the same time period as earned by the Settlement Fund. At the same time, Lead 23 Counsel also intends to apply for the reimbursement of certain litigation expenses 24 paid or incurred by Plaintiffs' Counsel in an amount not to exceed $2,000,000 plus 25 interest at the same rate and for the same time period as earned by the Settlement 26 Fund. The request for reimbursement of expenses may include reimbursement of 27 the expenses of Plaintiffs in accordance with 15 U.S.C. § 78u-4(a)(4). The sums
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ID #:9848
1 approved by the Court will be paid from the Settlement Fund. Members of the
2 Class are not personally liable for the payment of these sums.
3
HOW DO I PARTICIPATE IN THE SET
4 WHAT DO I NEED TO DO?
5
47. If you purchased or otherwise acquired Toyota ADS's between
6 May 10, 2005, and February 2, 2010, inclusive, and you are not excluded by the
7 definition of the Class, and you do not elect to exclude yourself from the Class,
8 then you are a member of the Class and you will be bound by the proposed
9 Settlement if the Court approves it, and you will be bound by any judgment or
10 determination of the Court affecting the Class. If you are a member of the Class,
11 and you wish to be potentially eligible to receive a payment from the Net
12 Settlement Fund, you must submit a Claim Form and supporting documentation to
13 establish your entitlement to share in the Net Settlement Fund. A Claim Form is
14 included with this Notice, or you may go to the website maintained by the Claims
15 Administrator for the Settlement to request that a Claim Form be mailed to you.
16 The website is www.ToyotaADSLitigation.com . You may also request a Claim
17 Form by calling toll-free 877-868-0240 or emailing
18 infoToyotaADSLitigation.corn. Copies of the Claim Form can also be
19 downloaded from Lead Counsel's website at www.blbglaw.com . Those who
20 exclude themselves from the Class, and those who do not submit timely and valid
21 Claim Forms with adequate supporting documentation, will not be eligible to share
22 in the Settlement. Please retain all records of your ownership of, or transactions in
23 Toyota ADS's, as they may be needed to document your claim.
24
48. As a Class Member, you are represented by Lead Plaintiff and Lead
25 Counsel, unless you enter an appearance through counsel of your own choice at
26 your own expense. You are not required to retain your own counsel, but if you
27 choose to do so, such counsel must file a notice of appearance on your behalf and
28 must serve copies of his or her notice of appearance on the attorneys listed in the
NOTICE OF SETTLEMENT -27-
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 75 of 111
ID #:9849
1 section entitled, "When And Where Will The Court Decide Whether To Approve
2 The Settlement?," below.
3
49. If you do not wish to remain a Class Member, you may exclude
4 yourself from the Class by following the instructions in the section entitled, "What
5 If I Do Not Want To Be A Part Of The Class And The Settlement? How Do I
6 Exclude Myself?" below.
7
50. If you wish to object to the Settlement or any of its terms, the
8 proposed Plan of Allocation, or Lead Counsel's application for attorneys' fees and
9 reimbursement of litigation expenses, and if you do not exclude yourself from the
10 Class, you may present your objections by following the instructions in the section
11 entitled, "When And Where Will The Court Decide Whether To Approve The
12 Settlement?" below.
13
WHAT IF I DO NOT WANT TO BE A PART OF THE S
14 HOW DO I EXCLUDE MYSELF?
15
51. Each Class Member will be bound by all determinations and
16 judgments in this lawsuit, including those concerning the Settlement, whether
17 favorable or unfavorable, unless such person or entity mails, by first-class mail (or
18 its equivalent outside the United States), or otherwise delivers a written request for
19 exclusion from the Class, addressed to In re Toyota Motor Corporation Securities
20 Litigation, Claims Administrator, P.O. Box 5110, Portland, OR 97208-5110. The
21 exclusion request must be received no later than [21 calendar days prior to
22 Settlement Hearing]. You will not be able to exclude yourself from the Class after
23 that date. Each Request for Exclusion must provide: (a) the name, address and
24 telephone number of the person or entity requesting exclusion; (b) the person's or
25 entity's transactions in Toyota ADS's during the Class Period, including the dates,
26 the number of Toyota ADS 's purchased or acquired, the date of each purchase,
27 acquisition or sale and the price paid and/or received; and (c) a statement that the
28 person or entity wishes to be excluded from the Class. Requests for exclusion will
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF SETTLEMENT -28-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 76 of 111 ID #:9850
not be valid if they are not received within the time stated above, unless the Court
otherwise determines. Keep a copy of everything you mail, in case something is
lost during shipping or processing.
52. If you do not want to be part of the Class, you must follow these
instructions for exclusion even if you have pending, or later file, another lawsuit,
arbitration or other proceeding concerning any of the Released Claims.
53. If a person or entity requests to be excluded from the Class, that
person or entity will not receive any benefit provided for in the Settlement.
54. Toyota shall have the option to terminate the settlement in the event
that Persons who would otherwise be Class Members who purchased in the
aggregate more than a certain number of Toyota ADS's during the Class Period
choose to exclude themselves from the Class, as set forth in a separate agreement
(the "Supplemental Agreement") executed between Lead Counsel and Defendants'
counsel.
WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT
DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING IF I DON'T LIKE THE SETTLEMENT?
55. If you do not wish to object in person to the proposed Settlement, the
proposed Plan of Allocation, and/or the application for attorneys' fees and
reimbursement of litigation expenses, you do not need to attend the Settlement
Hearing. You can object to or participate in the Settlement without attending the
Settlement Hearing.
56. The Settlement Hearing will be held on at _L—.in.
before the Honorable Dale S. Fischer, at the United States District Court for the
Central District of California, Western Division, 255 East Temple Street,
Courtroom 840, Los Angeles, California. The Court reserves the right to approve
the Settlement, the Plan of Allocation or the request for attorneys' fees and
NOTICE OF SETTLEMENT -29-
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Master File No. cv 10-922 DSF (AJWx)
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ID #:9851
reimbursement of litigation expenses at or after the Settlement Hearing without
further notice to the members of the Class.
57. Any member of the Class who does not request exclusion from the
Class in the manner set forth in ¶51 above may object to the Settlement, the Plan of
Allocation, or Lead Counsel's request for an award of attorneys' fees and
reimbursement of litigation expenses. Objections or oppositions must be in
writing. You must file any written objection or opposition, together with copies of
all other papers (including proof of all purchases or other acquisitions of Toyota
ADS 's during the Class Period) and briefs, with the Clerk's Office at the United
States District Court for the Central District of California, Western Division, at the
address set forth below on or before [21 calendar days before the Settlement
Hearing]. You must also serve the papers on Lead Counsel for the Class and
counsel for Defendants by hand or first-class mail, at the addresses set forth below
so that the papers are received on or before [21 calendar days before the Settlement
Hearing].
Clerk's Office Counsel for Defendants
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF SHEARMAN & STERLING LLP CALIFORNIA, WESTERN DIVISION Stuart J. Baskin Clerk of the Court
500 Lexington Avenue 255 East Temple Street
New York, New York 10022 Los Angeles, California 90012
GIBSON, DUNN & CRUTCHER LLP Lead Counsel for the Class
Kay E. Kochenderfer Gareth Evans
BERNSTEiN LITOWITZ BERGER
333 South Grand Avenue & GROSSMANN LLP
Los Angeles, California 90071 Blair A. Nicholas Niki L. Mendoza 12481 High Bluff Drive, Suite 300 San Diego, California 92130-3582
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NOTICE OF SETTLEMENT
28
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 78 of 111
ID #:9852
1
58. The filing must demonstrate your membership in the Class, including
2 a list of all of your Class Period transactions in Toyota ADS's during the Class
3 Period, including dates and prices paid and received, and including brokerage
4 confirmation receipts or other competent documentary evidence of such
5 transactions. You may not object to the Settlement or any aspect of it if you are not
6 a member of the Class or if you excluded yourself from the Class.
7
59. You may file a written objection without having to appear at the
8 Settlement Hearing. Any objection must include: (a) the full name, address, and
9 phone number of the objecting Class Member; (b) a list of all of the Class
10 Member's Class Period transactions in Toyota ADS's, including dates and prices
11 paid and received, and including brokerage confirmation receipts or other
12 competent documentary evidence of such transactions; (c) a written statement of
13 all grounds for the objection accompanied by any legal support for the objection;
14 (d) copies of any papers, briefs or other documents upon which the objection is
15 based; (e) a list of all persons who will be called to testify in support of the
16 objection; (f) a statement of whether the objector intends to appear at the
17 Settlement Hearing; and (g) a list of other cases in which the objector or the
18 objector's counsel have appeared either as settlement objectors or as counsel for
19 objectors in the preceding five years. If you intend to appear at the Settlement
20 Hearing through counsel, the objection must also state the identity of all attorneys
21 who will appear on your behalf at the Settlement Hearing. Any member of the
22 Class who does not make his, her or its objection in the manner provided for herein
23 shall be deemed to have waived such objection and shall forever be foreclosed
24 from making any objection to the fairness or adequacy of the Settlement as
25 reflected in the Stipulation, to the Plan of Allocation or to the application by Lead
26 Counsel for an award of attorneys' fees and reimbursement of litigation expenses.
27 You may not appear at the Settlement Hearing to present your objection, however,
28
NOTICE OF SETTLEMENT -31-
Master File No. CV 10-922 DSF (A.fWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 79 of 111
ID #:9853
1 unless you first filed and served a written objection in accordance with the
2 procedures described above, unless the Court orders otherwise.
3
60. If you wish to be heard orally at the hearing in opposition to the
4 approval of the Settlement, the Plan of Allocation, or Lead Counsel's request for an
5 award of attorneys' fees and reimbursement of litigation expenses, and if you have
6 filed and served a timely written objection as described above, you also must
7 notify the above counsel on or before [21 calendar days before the Settlement
8 Hearing] concerning your intention to appear. Persons who intend to object and
9 desire to present evidence at the Settlement Hearing must include in their written
10 objections the identity of any witnesses they may call to testify and exhibits they
11 intend to introduce into evidence at the hearing.
12
61. By objecting to the Settlement, the Plan of Allocation and/or the
13 application by Lead Counsel for an award of attorneys' fees and reimbursement of
14 litigation expenses, or otherwise requesting to be heard at the Settlement Hearing,
15 a person or entity shall be deemed to have submitted to the jurisdiction of the Court
16 with respect to the person's or entity's objection or request to be heard and the
17 subject matter of the Settlement. If the Court overrules your objection and
18 approves the Settlement or the part of the Settlement to which you have objected,
19 you only will share in the Settlement Fund if you file a Claim Form in the manner
20 stated in ¶47 above and the Claims Administrator approves your claim.
21
62. You are not required to hire an attorney to represent you in making
22 written objections or in appearing at the Settlement Hearing. If you decide to hire
23 an attorney, which will be at your own expense, he or she must file a notice of
24 appearance with the Court and serve it on Lead Counsel so that the notice is
25 received on or before [21 calendar days prior to the Settlement Hearing].
26
63. The Settlement Hearing may be adjourned by the Court without
27 further written notice to the Class. If you intend to attend the Settlement Hearing,
28 you should confirm the date and time with Lead Counsel.
Master File No. CV 10-922 DSF (AJWx)
NOTICE OF SETTLEMENT 32-
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 80 of 111 Page ID #:9854 I
1
UNLESS THE COURT ORDERS OTHERWISE, ANY CLASS
2
MEMBER WHO DOES NOT OBJECT IN THE MANNER
3
DESCRIBED ABOVE WILL BE DEEMED TO HAVE WAIVED
4
ANY OBJECTION AND SHALL BE FOREVER FORECLOSED
5
FROM MAKING ANY OBJECTION TO THE PROPOSED
6
SETTLEMENT, THE PROPOSED PLAN OF ALLOCATION,
7
OR LEAD COUNSEL'S REQUEST FOR AN AWARD OF
S
ATTORNEYS' FEES AND REIMBURSEMENT OF
9
LITIGATION EXPENSES. CLASS MEMBERS DO NOT NEED
10
TO APPEAR AT THE HEARING OR TAKE ANY OTHER
11
ACTION TO INDICATE THEIR APPROVAL.
12 WHAT IF I BOUGHT ADS'S ON SOMEONE ELSE'S BEHALF?
13
14 64. If you purchased or otherwise acquired Toyota ADS's during the Class
15 Period for the beneficial interest of a person or organization other than yourself,
16 you must either (a) request within fourteen (14) days of receipt of this Notice
17 additional copies of this Notice and the Claim Form for such beneficial owners
18 from the Claims Administrator at In re Toyota Motor Corporation Securities
19 Litigation, Claims Administrator, P.O. Box 5110, Portland, OR 97208-5110 or
20 info.ToyotaADSLitigation.corn; or (b) send a list of the names and addresses of
21 such beneficial owners to the Claims Administrator, at the address stated in
22 subparagraph (a), within fourteen (14) days after receipt of this Notice. If you
23 choose the second option, the Claims Administrator will send a copy of the Notice
24 to the beneficial owner. If you elect to send the Notice to beneficial owners, you
25 are directed to mail the Notice within fourteen (14) days of receipt of the additional
26 copies of the Notice from the Claims Administrator, and upon such mailing, you
27 must send a statement to the Claims Administrator confirming that the mailing was
28 made as directed, and you shall retain the list of names and addresses for use in
NOTICE OF SETTLEMENT -33-
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 81 of 111
ID #:9855
1 connection with any possible future notice to the Class. Upon full compliance with
2 these directions, such nominees may seek reimbursement of their reasonable
3 expenses actually incurred, by timely providing the Claims Administrator with
4 proper documentation supporting the expenses for which reimbursement is sought.
5 Copies of this Notice may also be obtained by calling toll-free (877) 868-0240,
6 may be downloaded from the settlement website, www.ToyotaADSLitigation.com
7 or from Lead Counsel's website, www.blbglaw.com .
8
CAN I SEE THE COURT FILE?
jl WHOM SHOULD I CONTACT IF I HAVE QUESTIONS?
10
65. This Notice contains only a summary of the terms of the proposed
11 Settlement. More detailed information about the matters involved in the Action is
12 available at In re Toyota Motor Corporation Securities Litigation, Claims
13 Administrator, P.O. Box 5110, Portland, OR 97208-5110, including, among other
14 documents, copies of the Stipulation, the Claim Form and the Complaint.
15
66. All inquiries concerning this Notice or the Claim Form should be
16 I directed to:
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In re Toyota Motor Corporation Securities Litigation
Claims Administrator P.O. Box 5110
Portland, OR 97208-5110 www.ToyotaADSLitigation.com info@ToyotaADSLitigation.com
Claims Administrator
Blair A. Nicholas, Esq. Niki L. Mendoza, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMAINN LLP
12481 High Bluff Drive, Suite 300 San Diego, California 92130-3582
(888) 648-2524 blbgblbglaw.com
Lead Counsel
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26
27
Master File No. CV 10-922 DSF (A.fWx) -34-
NOTICE OF SETTLEMENT
28
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 82 of 111
ID #:9856
1
DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF
2 THE CLERK OF COURT REGARDING THIS NOTICE.
3
4 Dated:
By Order of the Clerk of Court 5
United States District Court for the Central District of California
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NOTICE OF SETTLEMENT
Master File No. CV 10-922 DSF (AJWx)
Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 83 of 111 Page ID #:9857
Table A Toyota Motor Corporation ADRs
Closing Prices and Average 90-day Lookback Prices
Date Price Average Price 2/3/2010 $71.46 $71.46 2/4/2010 $69.79 $70.63 2/5/2010 $72.64 $71.30
2/8/2010 $70.83 $71.18 2/9/2010 $72.54 $71.45 2/10/2010 $73.60 $71.81 2/11/2010
$73.90
$72.11 2/12/2010
$74.92
$72.46 2/16/2010
$73.91
$72.62 2/17/2010
$72.10
$72.57 2/18/2010
$71.41
$72.46 2/19/2010
$71.32
$72.37 2/22/2010
$70.91
$72.26 2/23/2010
$69.57
$72.06 2/24/2010
$72.27
$72.08 2/25/2010
$71.86
$72.06 2/26/2010
$72.76
$72.10 3/1/2010
$71.60
$72.08 3/2/2010
$72.36
$72.09 3/3/2010
$74.81
$72.23 3/4/2010
$73.33
$72.28 3/5/2010
$74.81
$72.40 3/8/2010
$75.78
$72.54 3/9/2010
$74.55
$72.63 3/10/2010
$74.25
$72.69 3/11/2010
$74.81
$72.77 3/12/2010
$74.86
$72.85 3/15/2010
$75.93
$72.96 3/16/2010
$77.23
$73.11 3/17/2010
$77.11
$73.24 3/18/2010
$76.63
$73.35 3/19/2010
$77.36
$73.48 3/22/2010
$77.97
$73.61
3/23/2010
$80.07
$73.80 3/24/2010
$79.32
$73.96 3/25/2010
$78.11
$74.07 3/26/2010
$79.02
$74.21 3/29/2010
$79.25
$74.34 3/30/2010
$79.51
$74.47 3/31/2010
$78.70
$74.58 4/1/2010
$78.77
$74.68
4/5/2010
$79.52
$74.80 4/6/2010
$79.11
$74.90 4/7/2010
$78.21
$74.97
Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 84 of 111 Page ID #:9858
Table A Toyota Motor Corporation ADRs
Closing Prices and Average 90-day Lookback Prices
Date Price Average Price
4/8/2010 $77.78 $75.03 4/9/2010 $78.21 $75.10 4/12/2010 $77.85 $75.16 4/13/2010 $77.34 $75.21 4/14/2010 $78.61 $75.28 4/15/2010 $78.35 $75.34 4/16/2010 $77.67 $75.38 4/19/2010 $77.37 $75.42
4/20/2010 $77.08 $75.45 4/21/2010 $76.42 $75.47 4/22/2010 $75.55 $75.47
4/23/2010 $75.98 $75.48 4/26/2010 $77.13 $75.51 4/27/2010 $75.34 $75.51 4/28/2010 $75.20 $75.50 4/29/2010 $76.44 $75.52
4/30/2010 $75.44 $75.52
5/3/2010 $76.03 $75.53 5/4/2010 $74.46 $75.51
Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 85 of 111 Page ID #:9859
EXHIBIT A-2
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 86 of 111 Page ID #:9860 I
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BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
BLAIR A. NICHOLAS (Bar No. 178428)
UNJairnblbglaw.com)
AMIN GALDSTON (Bar No. 211114) (bengblbglaw.com) DAVID R. KAPLAN (Bar No. 230144) (davidk@blpglaw.com) 12481 High Bluff Drive, Suite 300 San Die!6~~CA 92130 Tel: (8 793-0070 Fax: (88 793 -0323
dGERALD H. SILK (jerry@blbglaw.com) 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 554-1400 Fax: (212) 554-1444
Counsel for Lead Plaintiff Maryland State Retirement and Pension System and Lead Counsel for the Class
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
IN RE TOYOTA MOTOR CORPORATION SECURITIES LITIGATION
FAIRBANK & VINCENT ROBERT H. FAIRBANK (Bar No. 76359) (rfairbank@fairbankvincent.com ) DIRK L. VINCENT (Bar No. 157961)
4 i4vncent@fairbankvincent.com)
S. Flower Street, Suite 3860 Los c CA 90071 Tel: (13) 891-9010 Fax: (213) 891-9011
Liaison counselfbr the Class
('Additional Counsel listed on signature page)
Master File No. CV 10-922 DSF (AJWx)
PROOF OF CLAIM FORM AND RELEASE
EXHIBIT A-2
Courtroom: 840 Judge: Dale S. Fischer
PROOF OF CLAIM AND RELEASE Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 87 of 111 ID #:9861
1 I. GENERAL INSTRUCTIONS
1. To be eligible to recover as a member of the Class based on your
claims in the action entitled In re Toyota Motor Corporation Securities Litigation,
Case No. CV 1 0-922-DSF (the "Action"), you must complete and, on page
hereof, sign this Proof of Claim Form. If you fail to timely file a properly
addressed (as set forth in paragraph 3 below) Proof of Claim Form, your claim may
be rejected and you may be precluded from any recovery from the Settlement Fund
created in connection with the proposed settlement of the Action.
2. Submission of this Proof of Claim Form, however, does not assure
that you will share in the proceeds of the settlement of the Action.
3. YOU MUST MAIL YOUR COMPLETED AND SIGNED
PROOF OF CLAIM FORM POSTMARKED ON OR BEFORE [120 days
after Notice Date]:
In re Toyota Motor Corporation Securities Litigation Claims Administrator P.O. Box 5110 Portland, OR 97208-5110
If you are NOT a member of the Class (as defined below and in the Notice Of
Pendency Of Class Action And Proposed Settlement, Settlement Hearing, And
Motion For Attorneys' Fees And Reimbursement Of Litigation Expenses
("Notice")), DO NOT submit a Proof of Claim Form.
4. If you are a member of the Class and you did not timely request
exclusion in connection with the proposed settlement, you are bound by the terms
of any judgment entered in the Action, including the releases provided therein,
WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM FORM.
II. CLAIMANT IDENTIFICATION
If you purchased or otherwise acquired the American Depositary Shares of
Toyota Motor Corporation ("Toyota ADS's") during the period from May 10,
2005, through and including February 2, 2010 (the "Class Period"), and held
documents evidencing these transactions (i.e., broker confirmation slip(s), etc.) in
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PROOF OF CLAIM AND RELEASE 1 Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 88 of 111
ID #:9862
1 your name, you are the beneficial purchaser as well as the record purchaser. If,
2 however, you purchased or acquired Toyota ADS's and the transactional
3 document(s) was/were registered in the name of a third party, such as a nominee or
4 brokerage firm, you are the beneficial purchaser and the third party is the record
5 purchaser.
6
Use Part I of the Proof of Claim Form - entitled "Claimant Identification" -
7 to identify each purchaser of record ("nominee"), if different from the beneficial
8 purchaser of Toyota ADS's which forms the basis of this claim. THIS CLAIM
9 MUST BE FILED BY THE ACTUAL BENEFICIAL PURCHASER OR
10 PURCHASERS, OR THE LEGAL REPRESENTATIVE OF SUCH
11 PURCHASER OR PURCHASERS, OF THE TOYOTA ADS'S UPON
12 WHICH THIS CLAIM IS BASED.
13
All joint purchasers must sign this claim. Executors, administrators,
14 guardians, conservators and trustees must complete and sign this claim on behalf of
15 persons represented by them and their authority must accompany this claim and
16 their titles or capacities must be stated. The Social Security (or taxpayer
17 identification) number and telephone number of the beneficial owner may be used
18 in verifying the claim. Failure to provide the foregoing information could delay
19 verification of your claim or result in rejection of the claim.
20 III. CLAIM FORM
21
Use Part II of Proof of Claim and Release - entitled "Transactions in Toyota
22 ADS's" - to supply all required details of your transaction(s) in Toyota ADS's. If
23 you need more space or additional schedules, attach separate sheets giving all of
24 the required information in substantially the same form. Sign and print or type
25 your name on each additional sheet.
26
On the schedules, provide all of the requested information with respect to all
27 of your purchases and all of your sales or dispositions of Toyota ADS's which took
28 place at any time during the Class Period, whether such transactions resulted in a
PROOF OF CLAIM AND RELEASE Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 89 of 111
ID #:9863
profit or loss. Failure to report all requested information may result in the
rejection of your claim.
List each transaction separately and in chronological order, by trade date,
beginning with the earliest. You must accurately provide the month, day and year
of each transaction you list.
The date of covering a "short sale" is deemed to be the date of purchase or
acquisition of a Toyota ADS. The date of a "short sale" is deemed to be the date of
sale or disposition of a Toyota ADS.
Copies of broker confirmations or other documentation of your transactions
in Toyota ADS's should be attached to your claim. Failure to provide this
documentation could delay verification of your claim or result in rejection of your
claim.
In re Toyota Motor Corporation Securities Litigation PART I: CLAIMANT IDENTIFICATION
Beneficial Owner's Name (First, Middle, Last) / Joint Owner's Name
Street Address
City
State Zip Code
Foreign Province Foreign Country
Area Code Telephone Number (Daytime)
Area Code Telephone Number (Evening)
Social Security Number or Taxpayer Identification Number
Email Address
Account Number (if filing for more than one account, please file separate claims)
Record Owner's Name (if different from beneficial owner listed above)
Check appropriate box (check only one box): o Individual/Sole Proprietor 0 Joint Owners 0
Pension Plan o Corporation 0 Partnership 0 Trust
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PROOF OF CLAIM AND RELEASE
3 Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 90 of 111 Page ID #:9864 I
1 o IRA
0 Other
2 (describe:
3 NOTE: Separate Proofs of Claim should be submitted for each separate legal
4 entity (e.g., a claim from Joint Owners should not include separate transactions of
5 just one of the Joint Owners, an Individual should not combine his or her IRA
6 transactions with transactions made solely in the Individual's name).
7 NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large
8 numbers of transactions may request, or may be requested, to submit information
9 regarding their transactions in electronic files. All Claimants MUST submit a
10 manually signed paper Proof of Claim form listing all their transactions, whether or
11 not they also submit electronic copies. If you wish to file your claim electronically,
12 you must contact the Claims Administrator at (877) 868-0240, or visit their website
13 at www.ToyotaADSLitigation.com , to obtain the required file layout. No
14 electronic files will be considered to have been properly submitted unless the
15 Claims Administrator issues to the Claimant a written acknowledgment of receipt
16 and acceptance of electronically submitted data.
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PROOF OF CLAIM AND RELEASE
4 Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 91 of 111
ID #:9865
PART II: TRANSACTIONS D TOYOTA ADS'S
A. INITIAL TOYOTA ADS HOLDINGS: State the number of Toyota
ADS's the Claimant owned at the close of trading on May 9, 2005:
If none, write "zero" or "0". If other than zero, be sure to attach the required
I documentation.
B. TOYOTA ADS PURCHASES: List all purchases or acquisitions of
Toyota ADS's made between May 10, 2005, and May 4, 2010, inclusive. Please
note that ADS's purchased or acquired during the 90-day look-back period
between February 3, 2010, and May 4, 2010, inclusive, will be used only to
balance your claim, and will not calculate to a Recognized Loss. (NOTE: If you
acquired your Toyota ADS's during this period other than by an open market
purchase, please enter the transaction(s) in the table below with a transaction type
of "R" for received ADS's and provide a complete description of the terms of the
acquisition on a separate page). Be sure to attach the required documentation.
Trade Date(s) Trans (List Type Number of Purchase Price Chronologically) ADS Purchased
Per ADS Total Purchase (P/R)**
Month/Day/Year Price*
* excluding commissions, transfer taxes or other fees
* * P=Purchase, R=Received (Transfer In)
C. TOYOTA ADS SALES: List all sales of Toyota ADS's made between
May 10, 2005, and May 4, 2010, inclusive. Sales includes all dispositions of
Toyota ADS's, including disposition through conversion to Toyota common stock.
Be sure to attach the required documentation. (NOTE: If you delivered your
Toyota ADS's during this period other than by an open market sale, please enter
the transaction(s) in the table below with a transaction type of "D" for delivered
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PROOF OF CLAIM AND RELEASE 5 Master File No. CV 10-922 DSF (AJWx)
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ADS's and provide a complete description of the terms of the transfer on a separate
page.)
Trade Date(s) Trans (List Type Number of Sale Price Chronologically)
ADS Sold Per ADS Total Sale (S/D)*4 Month/Day/Year Price*
*excluding commissions, transfer taxes or other fees. The "sale" price for conversions to Toyota stock shall be deemed the closing price of the ADS on the date of conversion.
* * S=Sale, D=De livery (Transfer Out)
D. UNSOLD TOYOTA ADS HOLDINGS AT THE CLOSE OF
TRADING ON MAY 4,2010: State the number of Toyota ADS's the Claimant
owned at the close of trading on May 4, 2010. Be sure to attach
the required documentation.
IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS PLEASE PHOTOCOPY THIS PAGE, WRITE YOUR NAME ON THE COPY AND CHECK THIS BOX:
0
IF YOU DO NOT CHECK THIS BOX THESE ADDITIONAL PAGES MAY NOT BE REVIEWED.
PROOF OF CLAIM AND RELEASE
6 Master File No. cv 10-922 DSF (AIWx)
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2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 93 of 111
ID #:9867
1
PART III: RELEASE OF CLAIMS AND SIGNATURE
2 I Definitions
3
"Released Persons" means each and all of the Defendants and their Related
4 I Persons.
5
"Defendants" means Toyota Motor Corporation, Toyota Motor North
6 America, Inc., Toyota Motor Sales, U.S.A., Inc., ("Toyota"), Katsuaki Watanabe,
7 Fujio Cho, Yoshimi Inaba, James E. Lentz Ill, Irving A. Miller, Robert S. Carter
8 and Robert C. Daly (the "Individual Defendants").
9
"Related Persons" means each of a Defendant's past or present directors,
10 officers, managers, employees, partners, members, principals, agents, underwriters,
11 insurers and co-insurers and their reinsurers, controlling shareholders, attorneys,
12 accountants or auditors, personal or legal representatives, predecessors, successors
13 (including by way of merger, consolidation, or other acquisition of controlling
14 interest), parents, subsidiaries, divisions, joint ventures, assigns, spouses, heirs,
15 executors, estates, administrators, related or affiliated entities, any entity in which a
16: Defendant has a controlling interest, any members of any Individual Defendant's
17 Immediate Family, or any trust of which any Individual Defendant is the settlor or
18 which is for the benefit of any Individual Defendant's family, in their respective
19 capacities as such.
20
"Released Claims" means any and all claims (including "Unknown Claims"
21 as defined below), debts, demands, controversies, obligations, losses, rights,
22 liabilities and/or causes of action of any kind or nature whatsoever—including, but
23 not limited to, any claims for damages (whether compensatory, special, incidental,
24 consequential, punitive, exemplary or otherwise) injunctive relief, declaratory
25 relief, rescission or rescissionary damages, interest, attorneys' fees, expert or
26 consulting fees, costs, expenses, or any other form of legal or equitable relief
27 whatsoever—whether based on federal, state, local, foreign, statutory or common
28 11 law or regulation, class or individual in nature, known or unknown, fixed or
PROOF OF CLAIM AND RELEASE
VA Master File No. CV 10-922 DSF (AJWx)
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ID #:9868
1 contingent, suspected or unsuspected, concealed or hidden, accrued or un-accrued,
2 liquidated or un-liquidated, at law or in equity, matured or un-matured, and that
3 either were asserted or could have been asserted, that relate to the purchase or
4 acquisition of the American Depository Shares of Toyota Motor Corporation by
5 the respective Class Member during the Class Period and (1) have been asserted in
6 this Litigation by the Class Members or any of them against any of the Released
7 Persons (as defined below), or (ii) could have been asserted in the Litigation or any
8 other forum by the Class Members or any of them against any of the Released
9 Persons, which arise out of or are based upon or related in any way to the
10 allegations, transactions, facts, matters or occurrences, representations or alleged
11 omissions involved, set forth, or referred to in the Litigation, including, but not
12 limited to, statements or alleged omissions relating to unintended acceleration in
13 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles), recalls of
14 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles), the quality of
15 Toyota vehicles (including Toyota, Lexus and Scion brand vehicles) and/or
16 Toyota's financial results. For clarification, Released Claims do not include claims
17 that relate to the purchase or acquisition of Toyota common stock (except to the
18 extent that Toyota American Depositary Shares represent underlying Toyota
19 common stock, in which case claims relating to the purchase of Toyota American
20 Depositary Shares are included in the Released Claims), or claims based upon,
21 relating to or arising out of the interpretation or enforcement of the terms of the
22 Settlement.
23
"Class" means all Persons (other than those Persons who timely and validly
24 request exclusion from the Class) who purchased or otherwise acquired the
25 American Depositary Shares of Toyota Motor Corporation during the period from
26 May 10, 2005, through and including February 2, 2010, excluding the Defendants,
27 and their Related Persons.
28
PROOF OF CLAIM AND RELEASE
8 Master File No. CV 10-922 DSF (AJWx)
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ID #:9869
1
"Unknown Claims" means any Released Claims that any Lead Plaintiff or
2 any Class Member does not know or does not suspect to exist in his, her, or its
3 favor at the time of the release of the Released Parties, which, if known by him,
4 her, or it, might have affected his, her, or its settlement with and release of the
5 Released Persons, or might have affected his, her, or its decision(s) with respect to
6 the settlement. With respect to any and all Released Claims, upon the effective
7 date of the Settlement, Lead Plaintiff shall have expressly waived and relinquished,
8 and each of the Class Members shall be deemed to have, and by operation of the
9 Judgment shall have, expressly waived and relinquished the provisions, rights, and
10 benefits conferred by California Civil Code § 1542, which provides:
11
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
12
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
13
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
14
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
15
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
16
HER SETTLEMENT WITH THE DEBTOR.
17 Lead Plaintiff shall expressly waive and relinquish, and each of the Class Members
18 shall be deemed to have, and by operation of the Judgment shall have, expressly
19 waived and relinquished, any and all provisions, rights, and benefits conferred by
20 any law of any law of any state or territory of the United States, or any foreign
21 state or territory, or any principle of common law, which is similar, comparable or
22 equivalent to California Civil Code § 1542. Lead Plaintiff and Class Members
23 may hereafter discover facts in addition to or different from those that any of them
24 now knows or believes to be true related to the subject matter of the Released
25 Claims, but Lead Plaintiff upon the Effective Date shall expressly, fully, finally
26 and forever settle and release and each Class Member, upon the Effective Date,
27 shall be deemed to have, and by operation of Judgment shall have, fully, finally,
28 and forever settled and released any and all Released Claims, known or unknown,
PROOF OF CLAIM AND RELEASE
9 Master File No. CV 10-922 DSF (AIWx)
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ID #:9870
1 suspected or unsuspected, contingent or non-contingent, whether or not concealed
2 or hidden, which now exist, or heretofore have existed, upon any theory of law or
3 equity now existing or coming into existence in the future, including, but not
4 limited to, conduct that is negligent, intentional, with or without malice, or a
5 breach of any duty, law, regulation or rule, without regard to the subsequent
6 discovery or existence of such different or additional facts. Lead Plaintiff
7 acknowledges, and the Class Members shall be deemed by operation of the
8 Judgment to have acknowledged, that the foregoing waiver of "Unknown Claims"
9 (and inclusion of "Unknown Claims" in the definition of "Released Claims") was
10 separately bargained for and is a key element of the settlement of which this
11 release is a part.
12 The Release
13
I (We) understand and acknowledge that without further action by anyone,
14 on and after the effective date of the Settlement, each Class Member, for good and
15 sufficient consideration, the receipt and adequacy of which are hereby
16 acknowledged, shall be deemed to have, and by operation of law and of the
17 Judgment shall have fully, finally, and forever released, relinquished, discharged
18 and dismissed each and every one of the Released Claims against each and every
19 one of the Released Persons, whether or not a Proof of Claim Form is executed and
20 delivered by, or on behalf of, such Class Member, and whether or not I (we) share
21 in the Settlement Fund.
22
SIGNATURE AND CERTIFICATIONS
23
By signing and submitting this Proof of Claim Form, the Claimant(s) or the
24 person(s) who represents the Claimant(s) certifies, as follows:
25
I (We) submit this Proof of Claim Form under the terms of the Stipulation of
26 Settlement described in the Notice. I (We) also submit to the jurisdiction of the
27 United States District Court for the Central District of California, with respect to
28 my (our) claim as a Class Member and for purposes of enforcing the release set
PROOF OF CLAIM AND RELEASE
10 Master File No. cv 10-922 DSF (AIWx)
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ID #:9871
I forth herein. I (We) further acknowledge that I (We) am (are) bound by and
2 subject to the terms of any judgment that may be entered in the Action. I (We)
3 agree to furnish additional information to the Claims Administrator to support this
4 claim if requested to do so. I (We) have not submitted any other claim covering
5 the same purchases or acquisitions of Toyota ADS during the Class Period and
6 know of no other person having done so on my (our) behalf.
7
I (We) hereby acknowledge full and complete satisfaction of, and do hereby
8 fully, finally and forever release, relinquish and discharge and dismiss each and
9 every one of the Released Claims against each and every one of the Released
10 Persons as defined above,
11
1. that the Claimant(s) is a (are) Class Member(s), as defined herein and
12
in the Notice;
13
2. that I (we) have not filed a request for exclusion from the Class and
14
that I (we) do not know of any request for exclusion from the Class filed on my
15
(our) behalf with respect to my (our) transactions in Toyota ADS's;
16
3. that I (we) own(ed) the Toyota ADS's identified in the Proof of
17
Claim, or that, in signing and submitting this Proof of Claim, I (we) have the
18
authority to act on behalf of the owner(s) thereof;
19
4. that Claimant(s) may be eligible to receive a distribution from the Net
20
Settlement Fund;
21
5. that I (we) agree to furnish such additional information with respect to
22
this Proof of Claim as the parties, the Claims Administrator or the Court may
23
require;
24
6. that I (we) waive trial by jury, to the extent it exists, and agree to the
25
Court's summary disposition of the determination of the validity or amount of
26
the claim made by this Proof of Claim;
27
7. that I (we) have not assigned or transferred or purported to assign or
28
transfer, voluntarily or involuntarily, any matter released pursuant to this
PROOF OF CLAIM AND RELEASE
11 Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 98 of 111
ID #:9872
1 release or any other part or portion thereof;
2
8. that I (we) have included information about all of my (our)
3
transactions in Toyota ADS's which occurred during the Class Period; and
4
9. that I (we) certify that I am (we are) not subject to backup withholding
5
under the provisions of Section 3406(a)(1)(c) of the Internal Revenue Code.
6 NOTE: If you have been notified by the Internal Revenue Service that you are
7 subject to backup withholding, please strike the language that you are not subject
8 to backup withholding in the certification above. The Internal Revenue Service
9 does not require your consent to any provision other than the certification required
10 to avoid backup withholding.
11
I (We) declare, under penalty of perjury under the laws of the United States
12 of America, that the statements made and answers given in this Proof of Claim are
13 true and correct and that the documents submitted herewith are true and genuine.
14
15 Signature of Claimant
16 Print Name of Claimant
Date
17
18 Signature of Joint Claimant, if any
Print Name of Joint Claimant
Date
If Claimant is other than an individual, or is not the person completing this form, th efollowing also must be provided:
Signature of Person Completing Form
Print Name of Person Completing Form Date
Capacity of Person Signing (Executor, President, Trustee, etc.)
REMINDER CHECKLIST
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PROOF OF CLAIM AND RELEASE
12 Master File No. CV 10-922 DSF (AJWx)
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* Please sign the Certification Section of the Proof of Claim and Release form.
* If this Claim is being made on behalf of Joint Claimants, then both must sign.
* Please remember to attach supporting documents.
* DO NOT SEND ORIGINALS OF ANY SUPPORTING DOCUMENTS.
* Keep a copy of your Proof of Claim and Release form and all documentation
submitted for your records.
* The Claims Administrator will acknowledge receipt of your Proof of Claim
and Release by mail, within 60 days. Your claim is not deemed filed until you
receive an acknowledgment postcard. If you do not receive an
acknowledgment postcard within 60 days, please call the Claims
Administrator toll free at (877) 868-0240.
* If you move, please send your new address to:
In re Toyota Motor Corporation Securities Litigation Claims Administrator
P.O. Box 5110
Portland, OR 97208-5110
Do not use highlighter on the Proof of Claim and Release form or supporting
documentation.
THIS PROOF OF CLAIM MUST BE POSTMARKED NO LATER THAN
1120 days after Notice Date], AND MUST BE MAILED TO:
In re Toyota Motor Corporation Securities Litigation Claims Administrator
P.O. Box 5110 Portland, OR 97208-5110
ACCURATE CLAIMS PROCESSING TAXES A SIGNIFICANT AMOUNT
OF TIME.
THANK YOU FOR YOUR PATIENCE
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PROOF OF CLAIM AND RELEASE
13 Master File No. CV 10-922 DSF (AJWx)
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Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 100 of 111 Page ID #:9874
EXHIBIT A-3
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 101 of 111
ID #:9875
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BERNSTEiN LITOWITZ BERGER & GROSSMANN LLP
BLAIR A. NICHOLAS (Bar No. 178428) (bIairnblbg1aw. corni BENJAMIN GALDSTON (Bar No. 211114)
RAen@blbglaw.corn) VID R. KAPLAN(Bar No. 230144)
(davidkb1bglaw. corn) 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Tel: (858) 793-0070 Fax: (858) 793-0323
-and- GERALD H. SILK
Y erryb1bg1aw.corn) 285 Avenue of the Americas
New York, NY 10019 Tel: (212) 554-1400 Fax: (212) 554-1444
Counsel for Lead Plaintiff Maryland State Retirement and Pension System and Lead Counsel for the Class
FAIRBANK & VINCENT ROBERT H. FAIRBANK (Bar No. 76359)
Mfairbank@fairbankvincent.com ) RKL. VINCENT (Bar No. 15796 1)
(dvincent@fairbankvincent.com ) 444 S. Flower Street, Suite 3860 Los Angeles, CA 90071 Tel: ('13) 891-9010 Fax: (213) 891-9011
Liaison Counsel for the Class
(Additional Counsel listed on signature page)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
IN RE TOYOTA MOTOR
Master File No. CV 10-922 DSF CORPORATION
(AJWx) SECURITIES LITIGATION
SUMMARY NOTICE
EXHIBIT A-3
Courtroom: 840 Judge: Dale S. Fischer
SUMMARY NOTICE Master File No. CV 10-922 DSF (AIWx)
28
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 102 of 111
ID #:9876
1
TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR
2 OTHERWISE ACQUIRED THE AMERICAN DEPOSITARY SHARES OF
3 TOYOTA MOTOR CORPORATION ("TOYOTA ADS'S") BETWEEN
4 MAY 10, 20059 AND FEBRUARY 2, 2010, INCLUSIVE:
5
YOU ARE HEREBY NOTIFIED that a proposed settlement has been
6 reached in this action. A hearing will be held with respect to the settlement on
7
at : .m. before the Honorable Dale S. Fischer in the
8 United States District Court for the Central District of California, 255 East Temple
9 Street, Courtroom 840, Los Angeles, CA 90012.
10
The purpose of the hearing is to determine whether the proposed settlement
11 of the securities class action claims asserted in this litigation, pursuant to which
12 Defendants will deposit the sum of $25,500,000.00 in cash into a settlement fund
13 in exchange for the dismissal of the litigation and a release of claims against
14 Defendants and their related persons and entities, should be approved by the Court
15 as fair, reasonable, adequate and in the best interests of the class, which includes
16 all persons and entities who purchased or otherwise acquired Toyota ADS's
17 between May 10, 2005, and February 2, 2010, inclusive, excluding the Defendants,
18 and their Related Persons (as defined in the Stipulation of Settlement).
19
If you purchased or otherwise acquired Toyota ADS's at any time between
20 May 10, 2005, and February 2, 2010, inclusive, you may be entitled to share in the
21 distribution of the settlement fund if you submit a claim form no later than [120
22 days after the Notice Date], establishing that you may be entitled to a recovery.
23
If you purchased or otherwise acquired Toyota ADS's at any time between
24 May 10, 2005, and February 2, 2010, inclusive, you have the right to object to the
25 settlement, the plan of allocation and/or the request by Lead Counsel for an award
26 of attorneys' fees and expenses, or otherwise request to be heard, by submitting no
27 later than [21 days before the Settlement Hearing] a written objection in
28 accordance with the procedures described in a more detailed notice that has been
SUMMARY NOTICE so
Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 103 of 111
ID #:9877
mailed to all persons known to be purchasers or other acquirers of Toyota ADS's
between May 10, 2005, and February 2, 2010, inclusive. You also have the right
to exclude yourself from the class by submitting no later than [21 days before the
Settlement Hearing] a written request for exclusion from the Class in accordance
with the procedures described in the more detailed notice. If the settlement is
approved by the Court, you will be bound by the settlement and the Court's final
order and judgment, including the releases provided for in the final order and
judgment, unless you submit a timely and valid request to be excluded.
This notice provides only a summary of matters regarding the litigation and
the settlement. A detailed notice describing the litigation, the proposed settlement,
and the rights of members of the Class to appear in Court at the hearing, to request
to be excluded from the Class and/or to object to the settlement, the plan of
allocation and/or the request by Lead Counsel for an award of attorneys' fees and
expenses has been mailed to all persons known to be purchasers or other acquirers
of Toyota ADS's between May 10, 2005, and February 2, 2010, inclusive. You
may obtain a copy of this notice, a proof of claim form, or other information by
writing to the following address or calling the following telephone number:
In re Toyota Motor Corporation Securities Litigation Claims Administrator
P.O. Box 5110 Portland, OR 97208-5110
or by downloading the same from www.ToyotaADSLitigation.com or
www.blbglaw.com .
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S
OFFICE REGARDING THIS NOTICE. Inquiries, other than requests for the
detailed notice referenced above and a proof of claim form, may be made to
plaintiffs' counsel:
Blair A. Nicholas Niki L. Mendoza BERNSTEiN LITOWITZ BERGER
& GROSSMANN LLP 12481 High Bluff Drive, Suite 300
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SUMMARY NOTICE -2- Master File No. cv 10-922 DSF (AJWx)
e 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 104 of 111 ID #:9878
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San Diego, CA 92130 Tel: 866-648-2524
Dated: By Order of the Clerk of the Court
United States District Court for the Central District of California
SUMMARY NOTICE -3- Master File No. CV 10-922 DSF (AJWx)
28
Case 2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 105 of 111 Page ID #:9879
EXHIBIT B
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 106 of 111
ID #:9880
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IN RE TOYOTA MOTOR CORPORATION SECURITIES LITIGATION
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Master File No. CV 10-922 DSF (AJWx)
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
EXHIBIT B
Courtroom: 840 Judge: Dale S. Fischer
[PROPOSED] FINAL JUDGMENT Master File No. CV 10-922 DSF (AJWx)
2:10-cv-00922-DSF-AJW Document 301-1 Filed 11/13/12 Page 107 of 111
ID #:9881
I
This matter came before the Court for hearing pursuant to the Order of this
2 Court, dated November 9, 2012 ("Preliminary Approval Order"), on the
3 application of the Lead Plaintiff for approval of the Settlement set forth in the
4 Stipulation of Settlement (the "Stipulation"). Full and adequate notice having been
5 given to the Class as required in the Court's Order, and the Court having
6 considered all papers filed and proceedings held herein and otherwise being fully
7 informed in the premises and good cause appearing therefor,
8
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
9
1. This Judgment incorporates by reference the definitions in the
10 Stipulation, and all capitalized terms used, but not defined herein, shall have the
11 same meanings as in the Stipulation.
12
2. This Court has jurisdiction over the subject matter of the Litigation
13 and over all parties to the Litigation, including all members of the Class.
14
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this
15 Court hereby certifies the Litigation as a class action for settlement purposes only.
16 The Class consists of all Persons who purchased or otherwise acquired the
17 American Depositary Shares of Toyota Motor Corporation during the period from
18 May 10, 2005, through and including February 2, 2010, excluding Defendants and
19 their Related Persons. Also excluded from the Class are any Persons who
20 excluded themselves by timely submitting a request for exclusion in accordance
21 with the requirements set forth in the Preliminary Approval Order, a list of whom
22 is attached hereto as Exhibit 1.
23
4. With respect to the Class, this Court finds, solely for the purposes of
24 settlement, that:
25
(a) the members of the Class are so numerous that joinder of all Class
26
Members in the Litigation is impracticable;
27
(b) there are questions of law and fact common to the Class;
28
(c) the claims by Lead Plaintiff are typical of the claims of the Class;
[PROPOSED] FINAL JUDGMENT Master File No. CV 10-922 DSF (AJWx)
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ID #:9882
1
(d) Lead Plaintiff and Lead Counsel have and will fairly and
2 adequately represent and protect the interests of the Class Members;
3
(e) the questions of law and fact common to the members of the Class
4 predominate over any questions affecting only individual members; and
5
(f) a class action is superior to other available methods for the fair and
6 efficient adjudication of the controversy, considering: (i) the interests of the
7
Class Members in individually controlling the prosecution of separate
8 actions; (ii) the extent and nature of any litigation concerning the
9 controversy already commenced by Class Members; and (iii) the desirability
10 or undesirability of concentrating the litigation of these claims in this
11 particular forum.
12
5. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby
13 approves the Settlement set forth in the Stipulation and finds that the Settlement is,
14 in all respects, fair, reasonable and adequate to Lead Plaintiff and the Class. The
15 Court further finds that the Settlement set forth in the Stipulation is the result of
16 arm's-length negotiations between experienced counsel representing the interests
17 of the Settling Parties and is in the best interest of the Class. The Court further
18 finds that the record is sufficiently developed and complete to have enabled Lead
19 Plaintiff and Defendants to have adequately evaluated and considered their
20 positions. Accordingly, the Settlement embodied in the Stipulation is hereby
21 finally approved in all respects. The Settling Parties are hereby directed to perform
22 its terms.
23
6. Except as to any individual claim of those persons who have validly
24 and timely requested exclusion from the Class (identified in Exhibit 1 hereto), the
25 Litigation as it relates to all claims contained therein related to the purchase or
26 acquisition of Toyota ADS's during the Class Period, including the Released
27 Claims, are dismissed with prejudice as against the Released Persons. The Settling
28 Parties are to bear their own costs, except as otherwise provided in the Stipulation.
[PROPOSED] F[NAL JUDGMENT Master File No. CV 10-922 DSF (AJWx)
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1
7. Pursuant to this Judgment, upon the Effective Date, Lead Plaintiff and
2 each and every Class Member shall be deemed to have - and by operation of this
3 Judgment shall have - fully, finally, and forever released, relinquished, discharged
4 and dismissed each and every one of the Released Claims against each and every
5 one of the Released Persons, whether or not such Class Member executes and
6 delivers the Proof of Claim and Release, and whether or not such Class Member
7 shares in the Settlement Fund.
8
8. Pursuant to this Judgment, upon the Effective Date, each of the
9 Released Persons shall be deemed to have - and by operation of this Judgment
10 shall have - fully, finally, and forever released, relinquished, and discharged Lead
11 Plaintiff, each and all of the Class Members, Lead Counsel, Liaison Counsel and
12 Plaintiffs' Counsel from all claims (including Unknown Claims) debts, demands,
13 controversies, obligations, losses, rights, liabilities and/or causes of action of any
14 kind or nature whatsoever—including, but not limited to, any claims for damages
15 (whether compensatory, special, incidental, consequential, punitive, exemplary or
16 otherwise) injunctive relief, declaratory relief, rescission or rescissionary damages,
17 interest, attorneys' fees, expert or consulting fees, costs, expenses, or any other
18 form of legal or equitable relief whatsoever—whether based on federal, state,
19 local, foreign, statutory or common law or regulation, class or individual in nature,
20 known or unknown, fixed or contingent, suspected or unsuspected, concealed or
21 hidden, accrued or un-accrued, liquidated or un-liquidated, at law or in equity,
22 matured or un-matured, arising out of, relating to, or in connection with the
23 institution, prosecution, assertion, settlement or resolution of the Litigation or the
24 Released Claims, but claims based upon, relating to or arising out of the
25 interpretation or enforcement of the terms of the Stipulation are not released.
26
9. The distribution of the Notice and the publication of the Summary
27 Notice as provided for in the Preliminary Approval Order constituted the best
28 notice practicable under the circumstances, including individual notice to all Class
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1 Members who could be identified through reasonable effort. Said notice provided
2 the best notice practicable under the circumstances of those proceedings and of the
3 matters set forth therein, including the proposed Settlement set forth in the
4 Stipulation, to all persons entitled to such notice, and said notice fully satisfied the
5 requirements of Federal Rule of Civil Procedure 23, Section 21D(a)(7) of the
6 Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7) as amended by the
7 Private Securities Litigation Reform Act of 1995, due process, and any other
8 applicable law.
9
10. Any plan of allocation submitted by Lead Counsel or any order
10 entered regarding any attorneys' fee and/or expense application shall in no way
11 disturb or affect this Final Judgment and Order of Dismissal with Prejudice and
12 shall be considered separate from this Final Judgment and Order of Dismissal with
13 Prejudice.
14
11. The settlement compromises claims that are contested and shall not be
15 deemed an admission by any Settling Party as to the merits of any claim or
16 defense. Neither the Stipulation nor the settlement contained therein, nor any act
17 performed or document executed pursuant to or in furtherance of the Stipulation or
18 the settlement: (a) is or may be deemed to be or may be used as an admission of, or
19 evidence of, the validity or invalidity of any Released Claim or of any alleged
20 wrongdoing or alleged liability of the Defendants and the Released Persons; or (b)
21 is or may be deemed to be or may be used as an admission of, or evidence of, any
22 alleged fault or omission of any of the Defendants and the Released Persons in any
23 civil, criminal or administrative proceeding in any court, administrative agency or
24 other tribunal. Defendants and the Released Persons may file the Stipulation
25 and/or the Judgment in any action that may be brought against them in order to
26 support a defense or counterclaim based on principles of res judicata, collateral
27 estoppel, release, good faith settlement, judgment bar or reduction, or any other
28 theory of claim preclusion or issue preclusion or similar defense or counterclaim
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12. Without affecting the finality of this Final Judgment and Order of
2 Dismissal with Prejudice in any way, this Court hereby retains continuing
3 jurisdiction over: (a) implementation of this settlement and any award or
4 distribution of the Settlement Fund, including interest earned thereon;
5 (b) disposition of the Settlement Fund; (c) hearing and determining applications for
6 attorneys' fees and expenses in the Litigation; and (d) all parties hereto for the
7 purpose of construing, enforcing and administering the Stipulation and the
8 settlement therein.
9
13. The Court finds that during the course of the Litigation, the Settling
10 Parties and their respective counsel at all times complied with the requirements of
11 Federal Rule of Civil Procedure 11.
12
14. In the event that the settlement does not become effective in
13 accordance with the terms of the Stipulation or the Effective Date does not occur,
14 or in the event that the Settlement Fund, or any portion thereof, is returned to the
15 Defendants, then this Final Judgment and Order of Dismissal with Prejudice shall
16 be rendered null and void to the extent provided by and in accordance with the
17 Stipulation and shall be vacated and, in such event, all orders entered and releases
18 delivered in connection herewith shall be null and void to the extent provided by
19 and in accordance with the Stipulation.
20
15. There is no just reason for delay in the entry of this Judgment and
21 immediate entry by the Clerk of the Court is expressly directed.
22
IT IS SO ORDERED.
23
24 I DATED:
25 HONORABLE DALE S. FISCHER
26
UNITED STATES DISTRICT COURT JUDGE
27
28
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