robert c. daniels, et al. v. indymac bancorp, inc., et al. 08-cv...

Case 2:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID

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Exhibit 1

2:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID

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MARC M. SELTZER (54534) rnse1tzer)susmangodfrey. corn SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Tel: (310)789-3100 Fax: (310) 789-3150

SHERRIE R. SAVETT (Admitted Pro Hoc Vice) ssavett(bm.net ARTHUR STOCK (Admitted Pro Hac Vice) astock()bm.net PHYLLIS M. PARKER (Admitted Pro Hac Vice) pparker(bm. net

TERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4604

Lead Counsel for Plaintiffs and the Proposed Class (See Signature Page for Name and Address of Additional Counsel for Plaintiffs)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

MICHAEL B. COADY and ROBERT I Case No. CV 08-03812 GW(VBKx) HAKIMIAN, on Behalf of Themselves and All Others Similarly Situated,

STIPULATION OF SETTLEMENT AND RELEASE

Plaintiffs,

vs.

MICHAEL W. PERRY, A. SCOTT KEYS, and ERNST & YOUNG LLP,

Defendants.

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2:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID #:10532

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This Stipulation of Settlement and Release (the "Stipulation") is submitted

pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to the

approval of the District Court, this Stipulation is entered into between and among

plaintiffs Michael B. Coady and Robert Hakimian ("Lead Plaintiffs"), on behalf of

themselves and the Settlement Class (as defined below in ¶1 .hh.), and Michael W.

Perry and A. Scott Keys (the "Settling Defendants") (collectively, the "Settling

Parties"), by and through their respective counsel in the above-captioned

consolidated class action. Subject to the approval of the District Court and certain

limitations expressly provided herein, this Settlement is intended to settle and

release all claims against only the Settling Defendants and all other Released

Parties (as defined below). This Stipulation does not release any claims of Lead

Plaintiffs and the other members of the Settlement Class against the Non-Settling

Defendant Ernst & Young LLP (as defined below in ¶1 .v.).'

A. WHEREAS, beginning on June 11, 2008, class actions were filed in

the District Court, alleging violations of federal securities laws and captioned as

follows: John Folson v. Indymac Bancorp, Inc., et al., CV 08-03 812-GW (VBKx),

Ariel Investments, Ltd. v. Indymac Bancorp, Inc., et al., CV 08-04302-GW (VBKx),

Bruce Yukelson v. Michael W. Perry, et al., CV 08-04591 -GW (VBKx), Maza.l

Investment Partnership v. IndyMac Bancorp., Inc., et al., CV 08-04923-GW

(VBKx), Robert C. Daniels v. Michael W. Perry, et al., CV 08-05073-GW (VBKx).

B. WHEREAS, on July 11, 2008, IndyMac Bank was closed by the

United States Department of the Treasury's Office of Thrift Supervision ("OTS")

and the Federal Deposit Insurance Corporation ("FDIC") was appointed as the

receiver.

C. WHEREAS, on July 31, 2008, IndyMac Bancorp, Inc. ("IndyMac")

filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code (Case No.

All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in 11 herein.


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08-BK-21752-BB (C.D. Cal.)). For this reason, IndyMac is not a party in this

litigation. (Dkt. No. 6)

D. WHEREAS, on September 12, 2008, all the related actions were

consolidated by the District Court's Order identifying John Folson v. Indyrnac

Bancorp, Inc. et al., CV 08-3812-GW (VBKx) as the lead case, and formally styled

Daniels v. Perry, et al. (the "Action"). The District Court appointed Robert C.

Daniels as Lead Plaintiff , 2 and the law firms of Berger & Montague, P.C. and

Susman Godfrey, L.L.P. as Co-Lead Counsel. (Dkt. No, 39).

E. WHEREAS, on January 27, 2009, Lead Plaintiff filed an Amended

Class Action Complaint asserting claims under Section 10(b), 15 U. S.C. § 78j(b),

Rule lOb-5 promulgated thereunder, 17 C.F.R. § 240.1Ob-5, and Section 20(a), 15

U.S.C. § 7 8t(a), of the Exchange Act of 1934 ("Exchange Act"), against IndyMac' s

former officers, Michael W. Perry and A. Scott Keys, as well as IndyMac's outside

auditor Ernst & Young LLP ("E&Y"). (Dkt. No. 66).

F. WHEREAS, on March 20, 2009, Lead Plaintiff filed a Second

Amended Consolidated Class Action Complaint. (Dkt. No. 73).

G. WHEREAS, on April 24, 2009, all Defendants moved to dismiss the

Second Amended Consolidated Class Action Complaint, together with memoranda

of law, declarations, and exhibits in support thereof. (Dkt. Nos. 77-86). Lead

Plaintiff submitted a memorandum of law, declarations, and exhibits in opposition

to Defendants' motions, including supplemental briefing as directed by the Court.

(Dkt.Nos. 91-93, 114-115).

H. WHEREAS, on August 31, 2009, the District Court held a hearing

whereby Defendants' motions to dismiss were granted with leave to amend. (Dkt.

Nos. 119,121).

2 The District Court approved plaintiffs Michael C. Coady and Robert Hakimian as Lead Plaintiffs in this Action "in place and instead of Robert C. Daniels after being apprised of Mr. Daniels' death. (Dkt. No. 207 dated February 29, 2012). The Action was thereafter captioned Coady, et al. v. Perry, et al.

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e 2:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID #:10534

I. WHEREAS, on October 9, 2009, Lead Plaintiff filed a Third Amended

Consolidated Class Action Complaint. (Dkt. No. 124)?

J. WHEREAS, on November 2, 2009, Defendants moved to dismiss the

Third Amended Consolidated Class Action Complaint, together with memoranda of

law, declarations, and exhibits in support thereof. (Dkt. Nos. 129-138). Lead

Plaintiff submitted a memorandum of law, declarations, and exhibits in opposition

to Defendants' motions. (Dkt. Nos. 140-142).

K. WHEREAS, on January 14, 2010, the District Court held a hearing on

Defendants' motions to dismiss. (Dkt. No. 152). Thereafter, Lead Plaintiff filed

supplemental submissions with the Court. (Dkt. Nos. 153, 164).

L. WHEREAS, on May 6, 2010, the District Court issued a tentative

ruling granting Defendants' motions to dismiss the Third Amended Consolidated

Class Action Complaint. (Dkt. No. 165). On August 9, 2010, the Court granted

Lead Plaintiff leave to amend. (Dkt. No. 170).

M. WHEREAS, on September 9, 2010, Lead Plaintiff filed a Fourth

Amended Consolidated Class Action Complaint. (Dkt. No. 172).

N. WHEREAS, on May 27, 2011, by permission of the Court, Lead

Plaintiff filed a Fifth Amended Consolidated Class Action Complaint for Violation

of Federal Securities Laws (the "Complaint"). (Docket No. 186).

0. WHEREAS, on February 29, 2012, the Court ordered the substitution

of Michael B. Coady and Robert Hakimian as Plaintiffs instead of former lead

plaintiff Robert C. Daniels, deceased;

P. WHEREAS, Co-Lead Counsel have conducted an extensive

investigation relating to the claims and the underlying events and transactions

alleged in the Complaint, including numerous interviews with fact witnesses, and

study of a very large volume of public information that has become available

The Corrected Third Amended Consolidated Complaint was filed on October 26, 2009. (Dkt.No. 127).

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I regarding this case, including government reports and complaints and internal

reports, and other documents pertaining to IndyMac Bank and the named

3 defendants. They have also researched the applicable law with respect to the claims

4 of Lead Plaintiffs and the other Settlement Class Members (as defined herein)

5 against the Settling Defendants and the potential defenses thereto. Further, over the

6 course of two years, Co-Lead Counsel, have engaged in several in-person and

7 telephonic settlement discussions, including extensive and complex arm's-length

8 mediation sessions with counsel for the Settling Defendants through mediator Hon.

9 Daniel Weinstein (Ret.) (the "Mediator"), with respect to a compromise and

10 settlement of claims against the Settling Defendants with a view to settling the

11 issues in dispute and achieving the best relief for the Settlement Class.

12

Q. WHEREAS, based upon their investigation and extensive mediation

13 efforts, Co-Lead Counsel have concluded that the terms and conditions of this

14 Settlement and the documents incorporated herein by reference are fair, reasonable

15 and adequate to Lead Plaintiffs and the other Settlement Class Members and in their

16 best interests, and have agreed to settle the claims raised in the Action as against the

17 Settling Defendants pursuant to the terms and provisions of this Stipulation, after

18 considering: (1) the attendant risks of litigation; (2) the desirability of permitting

19 the Settlement to be consummated as provided by the terms of this Stipulation; and

20 (3) the diminishing resources to fund a settlement or an adverse judgment, if any,

21 against the Settling Defendants.

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R. WHEREAS the Settling Defendants have denied and continue to deny

23 that they have committed any act or omission giving rise to any liability and/or

24 violation of law, but nonetheless have determined that, in order to eliminate the

25 burden and expense of further litigation and the risk of not prevailing at trial, it is

26 desirable that the Action fully and finally be settled in the manner and upon the

27 terms and conditions set forth in this Stipulation.

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1

S. WHEREAS, nothing in this Stipulation shall be construed or deemed

to be evidence of an admission or concession on the part of any Settling Defendant

3 or Released Party with respect to any claim or any fault or liability or wrongdoing

4 or damages whatsoever, or any infirmity in the defenses that the Settling

5 Defendants have asserted or may assert. Likewise, nothing in this Stipulation shall

6 be construed or deemed to be evidence of an admission or concession on the part of

7 Lead Plaintiffs or any Settlement Class Member of any infirmity in the claims

8 asserted in the Action against the Settling Defendants or any Non-Settling

9 Defendant.

10

T. WHEREAS, the Settling Defendants and Lead Plaintiffs agree that

11 each has complied fully with the strictures of Rule 11 of the Federal Rules of Civil

12 Procedure.

13

NOW THEREFORE, without any admission or concession on the part of

14 Lead Plaintiffs of any lack of merit of the Action whatsoever, and without any

15 admission or concession of any liability or wrongdoing or lack of merit in the

16 defenses whatsoever by Settling Defendants and other released persons and entities,

17 it is hereby STIPULATED AND AGREED, by and among the parties to this

18 Stipulation, through their respective attorneys, subject to approval of the District

19 Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in

20 consideration of the Federal Rules of Civil Procedure, in consideration of the

21 benefits flowing to the parties hereto from the Settlement, that all Settled Claims (as

22 defined below) as against the Released Parties (as defined below) and all Released

23 Parties' Claims (as defined below) shall be compromised, settled, released and

24 dismissed with prejudice, upon and subject to the following terms and conditions:

25 CERTAIN DEFINITIONS

26

1. As used in this Stipulation, the following terms shall have the

27 following meanings:

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e 2:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID #:10537

I

a. "Action" shall mean John Folson v. Indyinac Bancorp, Inc. et

2 al., CV 08-3812-GW (VBKx) and the other cases consolidated with it: Ariel

3 Investments, Ltd v. Indyniac Bancorp, Inc., et at., CV 08-04302-GW (VBKx),

4 Bruce Yukelson v. Michael W. Perry, et at., CV 08-04591 -GW (VBKx), Mazal

-5 Investment Partnership v. IndyMac Bancorp., Inc., et at., CV 08-04923-GW

6 (VBKx), and Robert C. Daniels v. Michael W. Perry, et al., CV 08-05073-GW

7 (VBKx), formally styled as Daniels v. Perry, et at., now styled as Coady, et al. v.

8 Perry, et al.

9

b. "Authorized Claimant" shall mean a Settlement Class Member

10 who submits a timely and valid Proof of Claim Form to the Claims Administrator,

11 in accordance with the requirements established by the District Court, and whose

12 Claim is approved for payment from the Net Settlement Fund.

13

C. "Claims" means any and all manner of claims, demands, rights,

14 remedies, liabilities, losses, obligations, duties, damages, diminutions in value,

15 costs, debts, expenses, interest, penalties, fines, sanctions, fees, attorneys' fees,

16 expert or consulting fees, actions, potential actions, causes of action, suits,

17 agreements, judgments, decrees, matters, issues and controversies of any kind,

18 nature or description whatsoever, whether disclosed or undisclosed, accrued or

19 unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not

20 matured, suspected or unsuspected, liquidated or not liquidated, fixed or contingent,

21 which now exist, or heretofore or previously existed, or may hereafter exist,

22 including known claims and Unknown Claims, whether direct, derivative,

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individual, class, representative, legal, equitable or of any other type, or in any

24 other capacity, whether based on state, local, foreign, federal, statutory, regulatory,

25 common or other law or rule.

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d. "Claim Form" or "Proof of Claim Form" shall mean the form

27 substantially in the form attached hereto as Exhibit A, that a Claimant must

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1 complete should that Claimant seek to be potentially eligible to share in a

II distribution of the Net Settlement Fund.

3

C. "Claimant" shall mean a person or entity that submits a Claim

4 Form to the Claims Administrator seeking to be eligible to share in the proceeds of

5 the Net Settlement Fund.

6

f. "Claims Administrator" shall mean the firm retained by Lead

7 Plaintiffs and Co-Lead Counsel subject to approval of the District Court to provide

8 all notices approved by the District Court to potential Settlement Class Members

9 and to administer the Settlement and distribute the Net Settlement Fund.

10

g. "Class Distribution Order" shall mean the first order entered by

ii the District Court authorizing and directing that the Net Settlement Fund be

12 distributed, in whole or in part, to the Authorized Claimants.

13

h. "Complaint" shall mean the Fifth Amended Consolidated Class

14 Action Complaint that was filed with the District Court on May 27, 2011.

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i. "Co-Lead Counsel" shall mean the law firms of Berger &

16 Montague, P.C. and Susman Godfrey, L.L.P., which were appointed Co-Lead

17 Counsel by the District Court's September 12, 2008 Order.

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j. "Defendants" shall mean the Settling Defendants and the Non-

19 Settling Defendant.

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k. "Defendants' Counsel" shall mean Covington & Burling LLP

21 and Wilikie Fan & Gallagher LLP.

22

1. "District Court" shall mean the United States District Court for

23 the Central District of California, Western Division.

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M. "Effective Date" shall mean the first date on which all of the

25 following shall have occurred: (i) the District Court has entered the Preliminary

26 Approval Order; (ii) the District Court has approved the Settlement without

27 material modification, following notice to the Settlement Class and a hearing, as

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:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID

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1 prescribed by Rule 23 of the Federal Rules of Civil Procedure; and (iii) the District

2 Court has entered the Judgment without material modification, which has become

3 II Final.

4 n. "Escrow Account" shall mean an account controlled by Co-Lead

5 Counsel acting as agents for the Lead Plaintiffs and the Settlement Class wherein

6 the Settlement Amount shall be deposited and held in escrow.

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o. "Escrow Agent" shall mean Co-Lead Counsel and shall be

8 responsible for overseeing, safeguarding and distributing the Escrow Account,

9 acting as agent for the Settlement Class.

10 p. "E&Y" shall mean Ernst & Young LLP.

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q. "Final," when referring to an order or judgment, shall mean: (i)

12 that the time for appeal or appellate review of such order or judgment has expired;

13 or (ii) if there has been an appeal, that such order or judgment has been affirmed on

14 appeal or that said appeal has been decided without causing a material change in the

15 order or judgment, and such order or judgment is no longer subject to appellate

16 review by further appeal or writ of certiorari.

17 r. "Judgment" shall mean the final judgment, including a bar

18 order, finding of good faith under sections 877 and 877.6 of the California Code of

19 Civil Procedure, and release of claims, substantially in the form attached hereto as

20 Exhibit B, to be entered by the District Court pursuant to Rule 54(b) of the Federal

21 Rules of Civil Procedure approving the Settlement.

22

S. "Lead Plaintiffs" shall mean Michael B. Coady and Robert

23 Hakimian.

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t. "Litigation Expenses" shall mean the costs and expenses

25 incurred by Plaintiffs' Counsel in connection with commencing and prosecuting the

26 Action (which may include the costs and expenses of the Lead Plaintiffs directly

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1 related to their representation of the Settlement Class), for which Co-Lead Counsel

intend to apply to the District Court for reimbursement from the Settlement Fund.

U. "Net Settlement Fund" shall mean the Settlement Fund less: (i)

4 any Taxes; (ii) any Notice and Administration Costs; (iii) any Litigation Expenses

5 awarded by the District Court; and (iv) any attorneys' fees. awarded by the District

6 1 Court.

7 V. "Non-Settling Defendant" shall mean E&Y.

8 W. "Notice" shall mean the Notice of Pendency of Class Action and

9 Proposed Settlement, Settlement Fairness Hearing and Motion for Attorneys' Fees

10 and Reimbursement of Litigation Expenses, substantially in the form attached

11 hereto as Exhibit C, which is to be sent to potential Settlement Class Members.

12 X. "Notice and Administration Costs" shall mean the reasonable

13 costs, fees and expenses that are incurred by the Claims Administrator and Co-Lead

14 Counsel in connection with (i) providing notice to the Settlement Class, including

is obtaining security holder lists; (ii) administering the Claims process and the

16 Settlement; and (iii) any expenses incurred in connection with the Escrow Account.

17

Y. "Plaintiffs' Counsel" shall mean Co-Lead Counsel and all other

18 legal counsel who, at the direction and under the supervision of Co-Lead Counsel,

19 represent any plaintiff in the Action.

20

Z. "Plan of Allocation" shall mean the plan of allocation of the Net

21 Settlement Fund which will be proposed to the District Court by Lead Plaintiffs.

aa. "Preliminary Approval Order" shall mean the order,

23 substantially in the form attached hereto as Exhibit 0, to be entered by the District

24 Court preliminarily approving the Settlement, certifying the Settlement Class for

25 settlement purposes only, and directing that notice be provided to the Settlement

26

Class.

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:08-cv-03812-GW-VBK Document 239-1 Filed 07/02/12 of 37 Page ID #:10541

1

bb. "Publication Notice" or "Summary Notice" shall mean the

2 Summary Notice of Pendency of Class Action and Proposed Settlement, Settlement

3 Fairness Hearing and Motion for Attorneys' Fees and Reimbursement of Litigation

4 Expenses, to be published substantially in the form attached hereto as Exhibit K

5

cc. "Released Parties" shall mean any and all of the Settling

6 Defendants and their respective present or former spouses, immediate family

7 members, heirs, attorneys (including Defendants' Counsel), representatives,

8 executors, estates, administrators, successors and assigns, and insurers, provided

9 however, that "Released Parties" does not include the Non-Settling Defendant, any

10 of its partners, successors, subsidiaries, and affiliates, or any entity in which it has

1! or had during the Settlement Class Period a controlling interest.

12

dd. "Releasing Parties" shall mean Lead Plaintiffs, individually, and

13 on behalf of the Settlement Class Members, including their respective present or

14 former spouses, immediate family members, heirs, attorneys (including Plaintiffs'

15 Counsel), representatives, executors, estates, administrators, successors and assigns

16 and all persons acting in concert with such person.

17 cc. "Settled Claims" shall mean any and all Claims that are based

18 upon, arise out of, result from, relate to, or involve, directly or indirectly (1) any of

19

the allegations, transactions, facts, matters, events, disclosures, statements,

20 occurrences, circumstances, representations, conduct, acts, or omissions or failures

21 to act that have been or could have been alleged or asserted in the Complaint or any

22 of the preceding complaints in the Action (or in any other court, forum, tribunal or

23 proceeding, and (2) the purchase or acquisition of IndyMac common stock during

24 the Settlement Class Period. Notwithstanding the foregoing, "Settled Claims" does

25 not include (i) any claims against the Non-Settling Defendant; (ii) the claims

26 asserted in any ERISA action; (iii) claims relating to the enforcement of the

27 Settlement; (iv) claims asserted in the case Sven Mossberg, et at. v. IndyMac

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1 Financial, Inc., et al., cv-07-1635-GW (VBKx) (C.D. Cal.) (also known as the

7 Tripp action), in which settlement was reached, and a preliminary approval hearing

3 is set for July 9, 2012 (see Dkt. No. 300); or (v) claims by the Settling Defendants

4 for Insurance Coverage.

5

ff. "Settlement" shall mean the settlement with the Settling

6 Defendants provided for by this Stipulation.

7

gg. "Settlement Amount" shall mean the principal amount of Six

8 Million Five Hundred Thousand Dollars ($6,500,000.00) in cash, to be paid

9 pursuant to ¶8 of this Stipulation, plus all interest earned thereon.

10

hh. "Settlement Class" shall mean, solely for purposes of this

11 Settlement, all persons and entities who purchased or otherwise acquired IndyMac

12 Bancorp, Inc. common stock between March 1, 2007 and May 12, 2008, through

13 and inclusive, and who were damaged thereby. Excluded from the Settlement Class

14 are (i) Defendants, (ii) IndyMac Bancorp, Inc. and/or IndyMac Bank, (iii) the

15 executive officers and directors of either IndyMac Bancorp, Inc. and/or IndyMac

16 Bank, (iv) any entity in which any of the Defendants has or had a controlling

17 interest, (v) members of Defendants' immediate families, and (vi) the legal

18 representatives, heirs, successors or assigns of any such excluded party. Also

19 excluded from the Settlement Class are any persons or entities who exclude

20 themselves by filing a timely request for exclusion in accordance with the

21 requirements set forth in the Notice.

22

ii. "Settlement Class Member" shall mean a person or entity that is

23 a member of the Settlement Class and does not exclude himself, herself or itself by

24 filing a timely request for exclusion in accordance with the requirements set forth in

25 the Notice.

26

J. "Settlement Class Period" shall mean the period between March

27 1, 2007 and May 12, 2008, through and inclusive.

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kk. "Settlement Class Representatives" shall mean the Lead

2 Plaintiffs.

3

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"Settlement Fund" shall mean the Settlement Amount plus any

4 II income or interest earned thereon.

- 5 mm. "Settlement Fund Claim" shall mean a claim for payment from

6 1 the Net Settlement Fund.

7 nn. "Settlement Hearing" shall mean the hearing set by the District

8 Court under Rule 23(d)(1)(c) of the Federal Rules of Civil Procedure to consider

9 final approval of the Settlement.

10

AN "Settling Defendants" shall mean Defendants Michael W. Perry

11 and A. Scott Keys.

12

pp. "Settling Defendants' Counsel" shall mean the law firms

13 indicated by the signature blocks below.

14

qq. "Settling Parties" shall mean, collectively, the Lead Plaintiffs,

15 on behalf of themselves and the Settlement Class, and the Settling Defendants.

16

rr. "Taxes" shall mean collectively: (i) any and all taxes, duties and

17 similar charges (including any estimated taxes, withholdings, interest or penalties

18 and interest thereon) arising in any jurisdiction with respect to the income or gains

19 earned by or in respect of the Settlement Fund, including, without limitation, any

20 taxes or tax detriments that may be imposed upon the Settling Defendants or their

21 counsel with respect to any income earned by the Settlement Fund for any period

22 during which the Settlement Fund may be finally determined to not qualify as a

23 Qualified Settlement Fund (within the meaning contemplated in ¶10 herein) for

24 federal or state income tax purposes or any distribution of any portion of the

25 Settlement Fund to Authorized Claimants and other persons entitled thereto

26 pursuant to this Stipulation and; (ii) expenses and costs incurred in connection with

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the taxation of the Settlement Fund (including, without limitation, expenses of tax

2 attorneys and accountants).

3

ss. "Unknown Claims" shall mean any and all Settled Claims which

4 any Lead Plaintiffs or any other Settlement Class Member does not know or suspect

5 to exist in his, her or its favor at the time of the release of such claims, and any

6 claims which any Settling Defendants or any other Released Party does not know or

7 suspect to exist in his, her or its favor at the time of the release of such claims,

8 which if known by him, her or it might have affected his, her or its decision(s) with

9 respect to the Settlement.

10

CLASS CERTIFICATION

11

2. Solely for the purpose of the Settlement, the Settling Defendants

12 stipulate and agree to: (a) certification of the Action as a class action, pursuant to

13 Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of the

14 Settlement Class; (b) appointment of Lead Plaintiffs as class representatives; and

15 (c) appointment of Co-Lead Counsel as class counsel pursuant to Rule 23(g) of the

16 Federal Rules of Civil Procedure. Lead Plaintiffs will move for entry of the

17 Preliminary Approval Order, which will certify the Action to proceed as a class

18 action for settlement purposes only.

19

RELEASE OF CLAIMS

20

3. The obligations incurred pursuant to this Stipulation shall be in full

21

and final disposition of the Action as against the Settling Defendants only, and shall

fully and finally release any and all Settled Claims as against all Released Parties

23 and shall also release certain claims against the Releasing Parties, as provided

24 below. It is the intention of the Settling Parties that the Settlement eliminate all

25

further risk and liability relating to the Claims released herein, and that the

26 Settlement shall be a final and complete resolution of all disputes asserted or which

27 could be or could have been asserted with respect to such Claims, including,

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1-' 13


1 without limitation, any third party claims for contribution or indemnity. On the

2 Effective Date, the Action shall be dismissed as against only the Settling

3 Defendants with prejudice and without costs, except as provided herein.

4

4. Upon the Effective Date, the Releasing Parties shall fully, finally, and

5 forever waive, release, and discharge all Settled Claims against any or all of the

6 Released Parties, and shall thereafter be permanently and finally enjoined from

7 commencing, instituting, prosecuting, or continuing to prosecute any of the Settled

8 Claims either directly, representatively or in any other capacity. against any of the

9 Released Parties.

10

5. Upon the Effective Date, the Released Parties shall fully, finally, and

11 forever waive, release, and discharge any and all Claims against any or all of the

12 Releasing Parties, which arise out of or relate in any way to the institution,

13 prosecution, settlement or dismissal of the Action and shall be permanently

14 enjoined from commencing or prosecuting any such Claims either directly,

15 representatively or in any other capacity against any of the Releasing Parties;

16 provided, however, that nothing herein shall be deemed to bar, preclude or enjoin

17 the Settling Defendants from obtaining insurance coverage for the Settlement

18 Amount.

19

6. Upon the Effective Date, Lead Plaintiffs and the Settling Defendants

20 shall expressly waive, and each other Settlement Class Member and each other

21 Released Party shall be deemed to have waived, and by operation of the Judgment

22 shall have expressly waived, with respect to all Claims released by this Settlement,

23 any and all provisions, rights and benefits conferred by any law of any state or

24 territory of the United States, or principle of common law, which is similar,

25 comparable, or equivalent to Cal. Civ. Code § 1542, which provides:

26

A general release does not extend to claims which the creditor

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does not know or suspect to exist in his or her favor at the time of

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I executing the release, which if known by him or her must have

materially affected his or her settlement with the debtor.

3 Lead Plaintiffs and Settling Defendants acknowledge, and each other Settlement

4 Class Member, and each other Released Party by operation of law shall be deemed

5 to have acknowledged, (i) that the inclusion of Unknown Claims in the Claims

6 released by this Settlement was separately bargained for and was a key element of

7 the Settlement, (ii) that they may discover facts in addition to or different from

8 those now known or believed to be true with respect to Claims released herein, and

9 (iii) that it is the intention of Lead Plaintiffs and Settling Defendants, and by

10 operation of law the other Settlement Class Members, to completely, fully, finally

11 and forever extinguish any and all such Claims, known or unknown, suspected or

12 unsuspected, which now exist, or heretofore existed, or may hereafter exist, and

13 without regard to the subsequent discovery of additional or different facts.

14

THE SETTLEMENT CONSIDERATION

15

7. In consideration of the Settlement of claims asserted in this Action

16 against the Settling Defendants, and subject to the terms and conditions of this

17 Stipulation, the Settling Defendants shall cause to be paid from the proceeds of any

18 available insurance policies for the period March 1, 2007 through March 1, 2008

19 (the "07-08 Policies") the Settlement Amount into the Escrow Account within ten

20 (10) business days of the later of (1) the entry of an order preliminarily approving

21 the Settlement or (2), should any issuer of an 07-08 Policy whose proceeds are to be

paid in connection with the Settlement require it, approval by the United States

23 Bankruptcy Court for the Central District of California in the case In re IndyMac

24 Bancorp, Inc., No. 08-21752-BB of the use of such policy proceeds in connection

25 with the Settlement. In the event that the Settling Defendants' insurance carriers

26 do not fund the payment of the Settlement Amount, in whole or in part, from the

27

28

15


1 proceeds of the 07-08 Policies, the Settling Defendants shall have no independent

obligation to pay the Settlement Amount, and this Settlement may be terminated.

3

USE OF SETTLEMENT FUND

4

8. Until the District Court grants Final approval of the Settlement, Co-

5 Lead Counsel shall control the Escrow Account as Escrow Agent.

6

9. The Settlement Fund shall be used to pay: (a) Taxes; (b) Notice and

7 Administration Costs; (c) Litigation Expenses awarded by the District Court; and

8 (d) attorneys' fees, awarded to Co-Lead Counsel and Plaintiffs' Counsel by the

9 District Court. The balance remaining in the Settlement Fund (the "Net Settlement

10 Fund") shall be distributed to Authorized Claimants as provided below.

11

10. Except as provided herein or pursuant to orders of the District Court,

12 the Net Settlement Fund shall remain in the Escrow Account prior to the Effective

13 Date. All funds held by the Escrow Agent shall be deemed to be in the custody of

14 the District Court and shall remain subject to the jurisdiction of the District Court

15 until such time as the funds shall be distributed or returned pursuant to the terms of

16 this Stipulation and/or further order of the District Court. The Escrow Agent shall

17 invest the Settlement Fund exclusively in instruments backed by the full faith and

18 credit of the United States Government or fully insured by the United States

19 Government or an agency thereof, including a United States Treasury Money

20 Market Fund or a bank account fully insured by the United States Government

21 Federal Deposit Insurance Corporation (FDIC) up to the guaranteed FDIC limit.

22 All risks related to the investment of the Settlement Fund shall be borne by the

23 Settlement Fund.

24

11. The parties hereto agree that the Settlement Fund is intended to be a

25 separate Qualified Settlement Fund within the meaning of Treasury Regulation

26 Section 1.468B-1 and that Lead Counsel shall act as the administrator of the

27 Qualified Settlement Fund within the meaning of Treasury Regulation Section

28

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1

1.468B-2(k)(3), and shall be responsible for filing or causing to be filed all

2 informational and other tax returns for the Settlement Fund and paying from the

3 Settlement Fund any Taxes owed thereon. Settling Defendants' Counsel will cause

4 to be provided promptly to Co-Lead Counsel the statement described in Treasury

5 Regulation Section 1.468B-3(e). Co-Lead Counsel, as administrator of the

6 Settlement Fund within the meaning of Treasury Regulation Section 1.468B-

7 2(k)(3), shall timely make such elections as are necessary or advisable to carry out

this paragraph, including, as necessary, making a "relation back election," as

9 described in Treasury Regulation Section 1.468-10), to cause the Qualified

10 Settlement Fund to come into existence at the earliest allowable date, and shall take

11 or cause to be taken all actions as may be necessary or appropriate in connection

12 therewith.

13

12. All Taxes shall be paid out of the Settlement Fund, and shall be timely

14 paid by the Escrow Agent pursuant to the disbursement instructions to be set forth

15 in the Escrow Agreement, and without prior order of the District Court. Any tax

16 returns prepared for the Settlement Fund (as well as the election set forth therein)

17 shall be consistent with the previous paragraph and in all events shall reflect that all

18 Taxes (including any interest or penalties) on the income earned by the Settlement

19 Fund shall be paid out of the Settlement Fund as provided herein. The Settlement

20 Fund shall indemnify and hold all Released Parties harmless for any Taxes and

21 related expenses of any kind whatsoever (including without limitation, taxes

payable by reason of any such indemnification), if any, payable by the Settling

23 Defendants by reason of any income earned on the Settlement Fund. Settling

24 Defendants' Counsel shall notify the Escrow Agent promptly if any of the Settling

25 Defendants receives any notice of any claim for Taxes relating to the Settlement

26 Fund.

27

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13. This is not a claims-made settlement. Upon the occurrence of the

2 Effective Date, neither the Settling Defendants, any Released Party, nor any person

3 or entity who or which paid any portion of the Settlement Fund on their behalf shall

4 have any right to the return of the Settlement Fund or any portion thereof

5 irrespective of the number of Claims filed, the collective amount of losses of

6 Authorized Claimants, the percentage of recovery of losses, or the amounts to be

7 paid to Authorized Claimants from the Net Settlement Fund.

8

14, The Claims Administrator shall discharge its duties under Co-Lead

9 Counsel's supervision and subject to the jurisdiction of the District Court. Settling

10 Defendants shall have no responsibility for the administration of the Settlement and

11

shall have no liability to any person, including, but not limited to, the Settlement

12 Class Members, in connection with such administration. Co-Lead Counsel shall

13 cause the Claims Administrator to mail the Notice and Proof of Claim Form to

14 those members of the Settlement Class at the address of each such person as set

15 forth in the records of IndyMac Bancorp, Inc., or who otherwise may be identified

16 through further reasonable effort. Co-Lead Counsel will cause to be published the

17 Publication Notice pursuant to the terms of the Preliminary Approval Order or

18 whatever other form or manner might be ordered by the District Court.

19

15. Notwithstanding the fact that the Effective Date has not yet occurred,

20 Co-Lead Counsel may pay from the Settlement Fund, without further approval from

21

Settling Defendants or further order of the District Court, all reasonable Notice and

22 Administration Costs actually incurred, up to $500,000. Such costs and expenses

23

shall include, without limitation, the actual costs of printing and mailing the Notice

24 and Proof of Claim Form, reimbursements to nominee owners for forwarding the

25 Notice to their beneficial owners, publication of the Summary Notice, the

26 administrative expenses incurred and fees charged by the Claims Administrator in

27 connection with providing Notice and processing the submitted Claims, and the

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1 fees, if any, of the Escrow Agent. Additional Notice and Administration Costs may

be paid from the Settlement Fund upon prior approval of the District Court. In the

3 event that the Settlement is terminated pursuant to the terms of this Stipulation, all

4 Notice and Administration Costs reasonably paid or reasonably incurred, including

5 any related fees, shall not be returned or repaid to the Settling Defendants, any

6 Released Party, or to any person or entity who or which paid any portion of the

7 Settlement Amount on their behalf.

8

ATTORNEYS' FEES AND LITIGATION EXPENSES

9

16. Co-Lead Counsel will apply to the District Court for a collective award

10 of attorneys' fees to Plaintiffs' Counsel from the Settlement Fund. Co-Lead

11 Counsel will also apply to the District Court for reimbursement of Litigation

12 Expenses, which may include a request for reimbursement of Lead Plaintiffs'

13 expenses in accordance with 15 U.S.C. § 78u-4(a)(4). None of the Settling

14 Defendants, nor any other Released Party, shall take any position with respect to

15 Co-Lead Counsel's application for an award of attorneys' fees and/or Litigation

16 Expenses.

17

17. Any attorneys' fees and Litigation Expenses that are awarded by the

18 District Court shall be paid to Co-Lead Counsel from the Settlement Fund

19 immediately upon award, notwithstanding the existence of any timely filed

20 objections thereto, or potential for appeal therefrom, or collateral attack on the

21 Settlement or any part thereof. Co-Lead Counsel agree to make appropriate refunds

22 or repayments to the Settlement Fund, plus any interest, if any, actually accrued on

23 such funds, if the Settlement is terminated pursuant to the terms of this Stipulation

24 or if, as a result of any appeal or further proceedings on remand, or successful

25 collateral attack, the award of attorneys' fees and/or Litigation Expenses is reduced

26 or reversed. Co-Lead Counsel shall make the appropriate refund or repayment in

27 full no later than ten (10) business days after receiving from any of Settling

28


1 Defendants' Counsel or from a court of appropriate jurisdiction notice of any such

2 reduction of the award of attorneys' fees and/or Litigation Expenses, or notice of

3 the termination of the Settlement. An award of attorneys' fees and/or Litigation

4 Expenses is not a necessary term to this Stipulation or a condition of this

5 Stipulation, the Settlement or the releases provided herein. Lead Plaintiffs and Co-

6 Lead Counsel may not cancel or terminate the Stipulation or the Settlement based

7 on the District Court's or any appellate court's ruling with respect to attorneys' fees

8 and/or Litigation Expenses. Any appeal relating to an award of attorneys' fees or

9 Litigation Expenses will not affect the finality of the Settlement, the Judgment or

10 the releases provided herein.

11

18. Co-Lead Counsel shall have the authority, subject to the Court's final

12 determination, to allocate the court-awarded attorneys' fees amongst Plaintiffs'

13 Counsel in a manner which they, in good faith, believe reflects the contributions of

14 such counsel to the prosecution and settlement of the Action.

15

CLAIMS ADMINISTRATOR

16

19. The Claims Administrator shall administer the process of receiving,

17 reviewing and approving or denying Settlement Fund Claims under Co-Lead

18 Counsel's supervision and subject to the jurisdiction of the District Court. None of

19 the Settling Defendants or other Released Party shall have any responsibility

20 whatsoever to any person, including, but not limited to, Lead Plaintiffs, Settlement

21 Class Members or Co-Lead Counsel in connection with such administration.

22 Settling Defendants' Counsel shall cooperate in the administration of the Settlement

23 to the extent reasonably necessary to effectuate its terms.

24

20. The Claims Administrator shall receive Settlement Fund Claims and

25 determine first, whether each Settlement Fund Claim is valid, in whole or in part;

26 and second, each Authorized Claimant's pro rata share of the Net Settlement Fund

27 based upon each Authorized Claimant's loss amount (as set forth in the Plan of

28

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1 Allocation to be submitted by Co-Lead Counsel to the District Court for approval,

2 or in such other plan of allocation as the District Court approves).

3

21. A particular plan of allocation to be proposed by Co-Lead Counsel is

4 not a necessary term of this Stipulation, and it is not a condition of this Stipulation,

5 the Settlement, or the releases provided herein that any particular plan of allocation

6 be approved by the District Court. Lead Plaintiffs and Co-Lead Counsel may not

7 cancel or terminate the Stipulation or the Settlement based on the District Court's or

8 any appellate court's ruling with respect to any particular plan of allocation in this

9 Action. No Settling Defendant or any other Released Party (or their respective

10 counsel) shall have any responsibility or liability whatsoever for allocation of the

11 Net Settlement Fund. Any appeal relating to the allocation of the Net Settlement

12 Fund, the administration of the Settlement or the claims process will not affect the

13 finality of the Settlement, the Judgment, or the releases provided herein.

14

22. Any Settlement Class Member who does not submit a valid Claim

15 Form will not be entitled to receive any distribution from the Net Settlement Fund

16 but will otherwise be bound by all of the terms of this Stipulation and Settlement,

17 including the terms of the Judgment to be entered in the Action and the releases

18 provided for herein. I

19

23. Co-Lead Counsel shall be responsible for supervising the

20 administration of the Settlement and disbursement of the Net Settlement Fund. No

21

Settling Defendant or any other Released Party (or their respective counsel), shall

22 have any liability, obligation or responsibility whatsoever for the administration of

23 the Settlement or disbursement of the Net Settlement Fund. No Settling Defendant

24 or any other Released Party, shall be permitted to review, contest or object to any

25 Claim Form or any decision of the Claims Administrator or Co-Lead Counsel with

26 respect to accepting or rejecting any Claim Form or Settlement Fund Claim for

27 payment by a Settlement Class Member. Co-Lead Counsel shall have the right, but

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1 not the obligation, to waive what they deem to be formal or technical defects in any

7 Claim Forms submitted in the interests of achieving substantial justice.

3

24. For purposes of determining the extent, if any, to which a Settlement

4 Class Member shall be entitled to be treated as an Authorized Claimant, the

5 following conditions shall apply:

6

a. Each Settlement Class Member shall be required to submit a

7 Claim Form supported by such documents as are designated therein, including

8 proof of the tr,ansactions and holdings claimed and the claimed incurred losses, or

9 such other documents or proof as the Claims Administrator or Co-Lead Counsel, in

10 their discretion, may deem acceptable.

11

b. All Claim Forms must be submitted by the date that will be set

12 by the District Court, unless such deadline is extended by Order of the District

13 Court. Any Settlement Class Member who fails to submit a Claim Form by such

14 date shall be forever barred from receiving any distribution from the Net Settlement

15 Fund or payment pursuant to this Stipulation (unless, by Order of the District Court,

16 late-filed Claim Forms are accepted), but shall in all other respects be bound by all

17 of the terms of this Stipulation and the Settlement including the terms of the

18 Judgment and the releases provided for herein. Provided that it is received before

19 the motion for the Class Distribution Order is filed, a Claim Form shall be deemed

20 to be submitted when posted, if received with a postmark indicated on the envelope

21 and if mailed by first-class mail and addressed in accordance with the instructions

22 thereon. In all other cases, the Claim Form shall be deemed to have been submitted

23 when actually received by the Claims Administrator.

24 C. Each Claim Form shall be submitted to and reviewed by the

25 Claims Administrator, under the supervision of Co-Lead Counsel, who shall

26 determine in accordance with this Stipulation and the court-approved plan of

27 allocation the extent, if any, to which each Settlement Fund Claim shall be allowed,

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1 subject to review by the District Court pursuant to subparagraph (e) below.

d. Claim Forms that do not meet the submission requirements may

3 be rejected. Prior to rejecting a Settlement Fund Claim in whole or in part, the

4 Claims Administrator shall attempt to communicate with the Claimant in writing, to

5 give the Claimant the chance to remedy any curable deficiencies in the Claim Form

6 submitted. The Claims Administrator, under the supervision of Co-Lead Counsel,

7 shall attempt to notify, in a timely fashion and in writing, all Claimants whose

8 Claim the Claims Administrator proposes to reject in whole or in part, setting forth

9 the reasons therefore, and shall indicate in such notice that the Claimant whose

10 claim is to be rejected has the right to a review by the District Court if the Claimant

11 so desires and complies with the requirements of subparagraph (e) below.

12

e. If any Claimant whose claim has been rejected in whole or in

13 part desires to contest such rejection, the Claimant must, within twenty (20)

14 calendar days after the date of mailing of the notice required in subparagraph (d)

15 above, serve upon the Claims Administrator a notice and statement of reasons

16 indicating the Claimant's grounds for contesting the rejection along with any

17 supporting documentation, and requesting a review thereof by the District Court. If

18 a dispute concerning a Settlement Fund Claim cannot be otherwise resolved, Co-

19 Lead Counsel shall thereafter present the request for review to the District Court.

20

f. The administrative determinations of the Claims Administrator

21 accepting and rejecting Settlement Fund Claims shall be presented to the District

22 Court, on notice to Settling Defendants' Counsel, for approval by the District Court

23 in the Class Distribution Order.

24

25. Each Claimant shall be deemed to have submitted to the jurisdiction of

25 the District Court with respect to the Claimant's Settlement Fund Claim, and the

26 Settlement Fund Claim will be subject to investigation and discovery under the

27 Federal Rules of Civil Procedure, provided that such investigation and discovery

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1 shall be limited to that Claimant's status as a Settlement Class Member and the

9 validity and amount of the Claimant's Settlement Fund Claim. No discovery shall -I be allowed on the merits of this Action or this Settlement in connection with the

4 processing of Claim Forms.

5

26. Co-Lead Counsel will apply to the District Court, on notice to Settling

6 Defendants' Counsel, for a Class Distribution Order, inter alia: (a) approving the

7 Claims Administrator's administrative determinations concerning the acceptance

8 and rejection of the Settlement Fund Claims submitted; and (b) if the Effective Date

9 has occurred, directing payment of the Net Settlement Fund to the Authorized

10 Claimants from the Escrow Account. Payment and/or distribution of any of the

11 Settlement Amount to Settlement Class Members shall be made only after the

12 Effective Date.

13

27. Payment pursuant to the Class Distribution Order shall be final and

14 conclusive against all Settlement Class Members. All Settlement Class Members

15 whose Settlement Fund Claims are not approved by the District Court shall be

16 barred from participating in distributions from the Net Settlement Fund, but

17 otherwise shall be bound by all of the terms of this Stipulation and the Settlement,

18 including the terms of the Judgment to be entered in the Action and the releases

19 provided for therein and herein and will be permanently barred and enjoined from

20 bringing any Settled Claim against any and all Released Parties.

21

28. All proceedings with respect to the administration, processing and

22 determination of Settlement Fund Claims and the determination of all controversies

23 relating thereto, including disputed questions of law and fact with respect to the

24 validity of Settlement Fund Claims, shall be subject to the jurisdiction of the

25

District Court.

24

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#:10556

I

TERMS OF THE JUDGMENT

.7

29. If the Settlement contemplated by this Stipulation is approved by the

3

District Court, the Settling Parties shall request that the District Court enter a

4 Judgment, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,

5 substantially in the form annexed hereto as Exhibit B, and including (without

6 limitation) the releases set forth therein and the bar order set forth therein.

7

WAIVER OR TERMINATION

8

30. Settling Defendants and Lead Plaintiffs shall have the right to

9 terminate the Settlement and this Stipulation by providing written notice of their

10 election to do so to all parties to this Stipulation within thirty (30) calendar days of:

11 (a) the District Court's declining to enter the Preliminary Approval Order in any

12 material respect without leave to amend and resubmit; (b) the District Court's

13 refusal to approve this Stipulation and Settlement or any material part of it without

14 leave to amend and resubmit; (c) the District Court's declining to enter the

15 Judgment in any material respect; or (d) the date upon which the Judgment is

16 modified or reversed in any material respect by the Court of Appeals or the

17 Supreme Court or as the result of any successful collateral attack.

18

31. Lead Plaintiffs shall also have the right to terminate the Settlement in

19 the event that the Settling Defendants do not cause to be paid the Settlement

20 Amount as provided in ¶7 above.

21

32. In addition, as specified in a separate supplemental agreement (the

22 "Supplemental Agreement") between the parties to the Stipulation, if, prior to the

23 Settlement Hearing, Settlement Class Members who purchased or otherwise

24 acquired in the aggregate more than a certain number of shares of IndyMac

25 Bancorp, Inc. common stock traded during the Settlement Class Period properly

26 elect to exclude themselves from the Settlement Class in accordance with the

27 requirements for requesting exclusion provided in the Notice, the Settling

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1 Defendants shall have the option, in accordance with the procedures as set out in

2 the Supplemental Agreement, to terminate the Settlement.

3

33. Any decision with respect to an application for attorneys' fees or

4 Litigation Expenses, or with respect to any plan of allocation, shall not be

5 considered material to this Stipulation and Settlement and shall not be grounds for

6 1 termination.

7

34. Except as otherwise provided herein, in the event the Settlement is

8 terminated or fails to become effective for any reason, the parties to this Stipulation

9 shall be deemed to have reverted to their respective tatus in the Action as of May

10 21, 2012, and, except as otherwise expressly provided, the parties shall proceed in

11 all respects as if this Stipulation and any related orders had not been entered, and

12 the Settlement consideration previously paid by or on behalf of the Settling

13 Defendants, together with any interest earned or appreciation thereon, less any

14 Taxes paid or due with respect to such income, and less Notice and Administration

15 Costs actually and reasonably incurred and paid or payable consistent with the

16 provisions of ¶15 above, shall be returned to the insurer that funded the Settlement

17 consideration within ten (10) business days after immediate written notification of

18 such event by Lead Counsel to the Escrow Agent. Notice and Administration Costs

19 shall first be deducted from the amount(s) to be returned. Any appreciation or

20 interest earned, less any Taxes paid or due with respect to such income, shall be

21 paid in proportion to the amount of the Settlement consideration to be returned. In

the event the Settlement is terminated or fails to become effective for any reason,

23 the Court's certification of the Settlement Class shall be of no further force or

24 effect, and the Settling Defendants shall have the right to oppose certification of

25 any plaintiff class in any future proceedings (including, but not limited to, In any

26 proceedings in the Action).

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#:10558

1

NO ADMISSION OF WRONGDOING

2

35. This Stipulation, whether or not consummated, and any proceedings

3 taken pursuant to it:

4

a. shall not be offered or received against any of the Released

5 Parties as evidence of, or construed as or deemed to be evidence of, any

6 presumption, concession or admission by any of the Released Parties with respect

7 to the truth of any fact alleged by Lead Plaintiffs or the validity of any claim that

8 was or could have been asserte& against any of the Released Parties in this Action

9 or in any litigation, or of any liability, negligence, fault or wrongdoing of any of the

10 Released Parties;

11

b. shall not be offered or received against any of the Released

12 Parties as evidence of a presumption, concession or admission of any fault,

13 misrepresentation or omission with respect to any statement or written document

14 approved or made by any of the Released Parties, or against any of the Lead

15 Plaintiffs or any other Settlement Class Members as evidence of any infirmity in

16 the claims of the Lead Plaintiffs or the other Settlement Class Members;

17

C. shall not be offered or received against any of the Released

18 Parties or against any of the Lead Plaintiffs or any other Settlement Class Members

19 as evidence of a presumption, concession or admission with respect to any liability,

20 negligence, fault or wrongdoing, or in any way referred to for any other reason as

21 against any of the Released Parties, or against any of the Lead Plaintiffs or any

22 other Settlement Class Members, in any other civil, criminal or administrative

23 action, arbitration or proceeding, other than such proceedings as may be necessary

24 to effectuate the provisions of this Stipulation; provided, however, that if this

25 Stipulation is approved by the District Court, the Settling Defendants, Lead

26 Plaintiffs and any other Settlement Class Member may refer to it to effectuate the

27 protection from liability granted them hereunder and/or by the Judgment, or

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#:10559

1 otherwise to enforce the terms of the Settlement;

7

d. shall not be construed against any Released Parties, any of the

3 Lead Plaintiffs or any other Settlement Class Member as an admission, concession

4 or presumption that the consideration to be given hereunder represents the amount

5 which could be or would have been recovered after trial; and

6 C. shall not be construed as or received in evidence as an

7 admission, concession or presumption against any of the Lead Plaintiffs or any

8 other Settlement Class Member that any of their claims are without merit or that

9 damages recoverable under the Complaint would not have exceeded the Settlement

10 Amount.

11

MISCELLANEOUS PROVISIONS

12

36. All of the Exhibits attached hereto are hereby incorporated by

13 reference as though fully set forth herein.

14

37. In the event of the entry of a Final order of a court of competent

15 jurisdiction determining the transfer of money to the Settlement Fund or any

16 portion thereof by or on behalf of any of the Released Parties to be a preference,

17 voidable transfer, fraudulent transfer or similar transaction and any portion thereof

18 is required to be returned, and such amount is not promptly deposited to the

19 Settlement Fund by others, then, if the Lead Plaintiffs so elect, the parties shall

20 jointly move the District Court to vacate and set aside the releases given and the

21 Judgment entered in favor of the Settling Defendants and the other Released Parties

22 pursuant to this Stipulation, which releases and Judgment shall be null and void,

23 and the parties shall be restored to their respective positions in the litigation

24 immediately prior to May 21, 2012, and any cash amounts in the Settlement Fund,

25 as well as any attorneys' fees or Litigation Expenses paid to Plaintiffs' Counsel,

26 shall be returned as provided in ¶34 above, provided, however, that the provisions

27 in this paragraph requiring return of funds shall expire and terminate upon the

28

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1 initial distribution from the Net Settlement Fund to Settlement Class Members

2 pursuant to a Class Distribution Order.

3

38. The parties to this Stipulation intend the Settlement to be a final and

4 complete resolution of all disputes asserted or which could be asserted by the Lead

5 Plaintiffs or any other Settlement Class Members against the Released Parties with

6 respect to all Settled Claims. Accordingly, Lead Plaintiffs and Settling Defendants

7 agree not to assert in any forum that this Action was brought by Lead Plaintiffs, or

8 any other plaintiff in the actions consolidated in the Action, or defended by Settling

9 Defendants in bad faith or without a reasonable basis. The parties hereto shall

10 assert no claims of any violation of Rule 11 of the Federal Rules of Civil Procedure

11 relating to the prosecution, defense or settlement of this Action. The parties to this

12 Stipulation agree that the amount paid and the other terms of the Settlement were

13 negotiated at arm's-length in good faith by the Settling Parties, including mediation

14 sessions conducted under the auspices of a professional mediator, and reflect a

15 settlement that was reached voluntarily after consultation with experienced legal

16

counsel.

17

39. While retaining the right to deny that the claims asserted in this Action

18 were meritorious, Settling Defendants in any statement made to any media

19 representative (whether or not for attribution) will not deny that the Action was

20 commenced and prosecuted in good faith and is being settled voluntarily after

21 consultation with competent legal counsel. In all events, Lead Plaintiffs and

22 Settling Defendants shall refrain from any accusations of wrongful or actionable

23 conduct by either party concerning the prosecution and resolution of this Action,

24 and shall not otherwise suggest that the Settlement constitutes an admission of any

25 claim or defense alleged.

Im

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1

40, This Stipulation may not be modified or amended, nor may any of its

7 provisions be waived, except in writing signed by all signatories hereto or their

successors-in-interest.

4

41. The headings herein are used for the purpose of convenience only and

5 are not meant to have legal effect.

6

42. The administration and consummation of the Settlement as embodied

7 in this Stipulation shall be under the authority of the District Court, and the District

8 Court shall retain jurisdiction for the purpose of entering orders providing for

9 awards of attorneys' fees and Litigation Expenses to Co-Lead Counsel and

10 enforcing the terms of this Stipulation.

11

43. The waiver by one party of any breach of this Stipulation by any other

12 party shall not be deemed a waiver of any other prior or subsequent breach of this

13

Stipulation.

14

44. This Stipulation and its exhibits constitute the entire agreement among

15 the parties hereto concerning this Settlement, and no representations, warranties or

16 inducements have been made by any party hereto concerning this Stipulation and its

17 exhibits other than those contained and memorialized in such documents or in the

18 Supplemental Agreement described in ¶32 above.

19

45. This Stipulation may be executed in one or more original, e-mail

20 and/or faxed counterparts. All executed counterparts and each of them shall be

21 deemed to be one and the same instrument.

22

46. This Stipulation shall be binding upon and inure to the benefit of the

23 successors and assigns of the parties hereto.

24

47. The construction, interpretation, operation, effect and validity of this

25 Stipulation, and all documents necessary to effectuate it, shall be governed by the

26 internal laws of the State of California without regard to conflicts of laws, except to

27 the extent that federal law requires that federal law govern.

28

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#:10562

1

48. This Stipulation shall not be construed more strictly against one party

than another merely by virtue of the fact that it, or any part of it, may have been

3 prepared by counsel for one of the parties, it being recognized that it is the result of

4 arm's-length negotiations between the parties, and all parties have contributed

5

substantially and materially to the preparation of this Stipulation.

6

49. All counsel and any other persons executing this Stipulation and any of

7 the exhibits hereto, or any related Settlement documents, warrant and represent that

8 they have full authority to do so and that they have the authority to take appropriate

9 action required or permitted to be taken pursuant to this Stipulation to effectuate its

10 terms.

11

50. Co-Lead Counsel and Settling Defendants' Counsel agree to cooperate

12 fully with one another in seeking District Court approval of the Preliminary

13 Approval Order, this Stipulation and the Settlement, and to promptly agree upon

14 and execute all such other documents as may be reasonably required to obtain final

15 approval by the District Court of the Settlement.

16

51. If any party is required to give notice to the other parties under this

17 Stipulation, such notice shall be in writing and shall be deemed to have been duly

18 given upon receipt of hand delivery, e-mail, or facsimile transmission with

19 confirmation of receipt. Notice shall be provided to counsel as indicated on the

20 signature block below.

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#:10563

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Dated:_________BERGER MONT E, P.C.

S'herrie R. Sa ett Email: [email protected]

Arthur Stock Email: [email protected]

Phyllis M. Parker Email: [email protected]

1622 Locust Street Philadelphia, PA 19102

Dated: SUSMAN GODFREY LLP

By: Marc M. Seltzer Email: mseltzersusmangodfrey.corn 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029

Co-Lead Co unsel for Plaintiffs Michael B. Coady and Robert Hakimian and the Proposed Class

Dated:

COVINGTON & BURLING LLP

By: David B. Bayless

Email: [email protected] Tammy Albarrán

Email: [email protected] One Front Street San Francisco, CA 94111 Tel.: (415) 591-6000 Fax: (415) 591-6091

Attorneys for Defendant Michael W. Perry

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BERG"MONTE, P.C.

By: Sh

Email: [email protected] Arthur Stock

Email: [email protected] Phyllis M. Parker

Email: [email protected] 1622 Locust Street Philadelphia, PA 19102

SUSMAN GODFREY LLP

By: fC& tA. Marc M. M. Seltzer Email: mseltzersusmangodfrey.com 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029

Co-Lead Counsel for Plaintiffs Michael B. Coady and Robert Hakimian and the Proposed Class

COVJNGTON & BURLING LLP





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BERGER & MONTAGUE P.C.

By: Sherrie R. Savett

Email: [email protected] Arthur Stock

Email: [email protected] Phyllis M. Parker

Email: [email protected] 1622 Locust Street Philadelphia, PA 19102

SUSMAN GODFREY LLP

By: Marc M. Seltzer Email: rnseltzersusmangodfrey.corn 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029

Co-Lead counselfor Plaintiffs Michael B. Coady and Robert Hakitnian and the Proposed class

COVINGTON & BURLING LLP





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WILLKIE FARR & GALLA HER L P

By: gory S. Bruch

(— gbruchwi11kie.com Julie A. Smith

jasmithwillkie.com Jessica L. Matelis

jmateliswillkie.com 1875 K Street, NW Washington, D.C. 20006 Tel.: (202) 303-1000 Fax: (202) 303-2000

Attorneys for Defendant A. Scott Keys

robert c. daniels, et al. v. indymac bancorp, inc., et al. 08-cv...

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