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IN mE UNTED ST A.T;ES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEPHEN J. HARMLlN, AS RECEIVER AD LITEM FOR PHILADELPHIA ALTERNATIVE
ASSET MAAGEMENT COMPANY, LLC, AN
ITS PARTNERS., AFFILIATES, SUBSIDIARIES,
Civil Action No. 06-CV-1944 (MMB)
AND RELATED ENTITIES,
.Plaintif,
v.
MAN FINANCIAL INC, et at, Defendants.
COMMODITY FUTURES TRADING COMMISSION,
Plaintift~
v.
Case No. 05-CV~2973::(MM)
PAUL M'. EUSTACE, AND PH1LADELPHIA ALTERNATIVE ASSET
MANAGEMENT COMPAN, LLC,
Defendants.
. ORDER~CONCERNING PROPOSED SETTLEMENT .
The Cour baving been notified that the Receiver ad litem (the "RAL"), on 'behalf of the
4Z ' ~
Philadelphia Alternative Asset Management Company, LtC. and its parers, affiliates, ..
subsidiaries and related entities, \ncludig Philadelphia Alternative Asset FUd, Ltd.,
Philadelphia Alterntive Feeder Fund, LLC, Option Capital Fund, LP 'an :Pluládelphia
Altemative Asset Fund, LP (collectively; th~ "Receivership Entities"), has enter.e into a
Settlem.ent Agreement (the "Settlement Agreement") with defendants John Wallace (UWallace")
and Edward Gobora ("Gobora"), it is HEREßV O:RDEREDtla,t:
1. A Settlement Hearng is scheduled to be held before the Cour on M~ch 5,2008
atj:OO p.m. for the following puroses:
3;00
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a. to determine whether the Settlement Agreement and tÌ~ releils'ës'set forth
therein should be approved by the Court;
b. to determne wheter the Order as provided \)der . thè Setemt
Agreement should be entered;
c. to rule upon such other matters as the Cour may deem appiopnate.
2. The Receiver, C. Clark Hoçigson, Jr., shall cause a Setlement Noti~e to be
mailed, by first cIass mail, postage p~paid, on or before ~ (1 ,2008; to ali:' investors in
the Re,ceivership Entities who have been and can be identified with reasonable, efort. The
Motion and Exhbit "An thereto (the Settlement Agreement), sh.all accompany ~'Settlement
Notice, The ReGeiver is permitted to sexe copies of the Motioo electroiicafly upor; those for
whom he has ai electronic address, and shall also post the Motion and Settement Ägreement on
ros website.
3. The Receiver's cowise! shalL., at or before the Setement Hearng;,file with the
i. .
Cow1 proof of service of
the Settlement Notice.
4. The Cour will consider comments and/or objections to the, Settemert Agreement
only if sucb èomments or objectio.ns and any supporting papers ar~ filed in wnti,ng' with th~ Clerk
of the Cour, United States Disi.ct Cour for the Eastern Distrct of Pennsylvana, D,S.
Courthouse, 601 Market Street, Room 2609, Philadelplùa, Pennsylvania 19106~179!).and copIes
of all such papers are served, on or before Februry 28, 2008, upon each oftbe' following: James
1. Rodgers, Esquire, Dilwort Paxson LLP, 3200 The Mellon Ban Center, i 735' Maket Street,
Philadelplua, Pennsylvania 19103-7595 (on behalf of the RAL) and Timothy. E. Hoeffnr,
Esquire, Saul Ewing LLP, Centre Square West, 1500 Market Street, Philadelphia, PAt9102, (On
,.
behalf of Wallace and Gobora). Persons wishing to be heard orally in opposition to -the approval
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of the .Settlement Agreement shall state in their written objection their intention to ,appear at the
Settlement Hearing, and identify any witnesses they may call to testify and exlbitå th~y intend
to introduce into evidence. Persons do not need to appear at the Heang or tae any.~other actìon
to indicate their approval.
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Case 2:06-cv-01944-MMB Document 504 Filed 02/14/2008 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANI
STEPHEN 1. HALIN, AS RECEIVER AD
LITEM FOR PHILADELPHIA AL TERNA TIVE ASSET MANAGEMENT COMPANY, LLC, AND
ITS PARTNERS, AFFILIATES, SUBSIDIARIES, AND RELATED ENTITIES, Plaintiff, v. MAN FINANCIAL INC, et al., Defendants.
Civil Action No. 06-CV-1944 (MMB)
COMMODITY FUTURES TRAING COMMISSION,
Plaitiff,
v.
Case No. 05-CV -2973 (MMB)
PAUL M, EUSTACE, AND PHILADELPHIA AL TERNA TIVE ASSET MANAGEMENT COMPANY, LLC, Defendants.
THE RECEIVER AD LITEM'S MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT WITH JOHN WALLACE AND EDW AM GOBORA
The Receiver ad litem (the "RAL"), on behalf of the Philadelphia Alternative Asset
Management Company, LLC, and its parers, affiliates, subsidiaries and related entities,
including Philadelphia Alternative Asset Fund, Ltd. ("P AAF"), Philadelphia Alternative Feeder
Fund, LLC, Option Capital Fund, LP and Philadelphia Alternative Asset Fund, LP (collectively,
the "Receivership Entities"), has entered into a Settlement Agreement (the "Settlement
Agreement") with defendants John Wallace ("Wallace") and Edward Gobora ("Gobora"). The
RA, Wallace and Gobora are collectively referred to herein as the "Settling Paries". The RAL
respectfully submits ths Motion for Approval of the Settlement Agreement. As set forth in the
accompanying Memorandum of Law and Declaration of the RAL, it is the conclusion and
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recommendation of the RA that it is in the best interests of the Receivership Entities and all
Interested Paries that the Court enter an Order: (a) approving the Settlement Agreement without
modification; (b) enjoining and baring all Interested Paries, all defendants and thrd-party
defendants in the Action and Third-Pary Action (as defined in the Settlement Agreement), and
Richard Fogerty and G. James Cleaver, as Joint Official Liquidators ofPAAF, from commencing
a claim, action or proceeding of any kind in any foru as against Gobora and Wallace based on,
relating to or arsing from any of the underlying facts that form the basis for the allegations,
claims or defenses in the Action and the Third-Par Action; and (c) finding that the Settlement
Agreement and the releases set fort therein are final and binding upon the RAL, the Receiver,
Gobora, Wallace, the ReceivershipEntities and
all Interested P¡ries.
Accordingly, the Settling Paries hereby request that the Court enter Order # i scheduling
a Settlement Hearing to further consider the Settement Agreement and, following such Hearng,
the Settling Paries fuher request that the Cour enter Order # 2 approving the Settlement
Agreement without modification and providing all other relief expressly requested.
Respectfully,
/s/ James J. Rodgers James J. Rodgers Laura E. Vendzules Thomas Vecchio
DILWORTH PAXSON LLP
3200 The Mellon Ban Center 1735 Market Street Philadelphia, PA 19103 (215) 575-7000 - phone
(215) 575-7200 - fax
Attorneys for Stephen 1. Harelin, Receiver ad litem for Philadelphia Alternative Asset
Management Company, LLC and Its Parners,
Affliates, Subsidiaries and Related Entities
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Case 2:06-cv-01944-MMB Document 504 Filed 02/14/2008 Page 3 of 18
Lee A. Rosengard Keith R. Dutil Michael Cordone
STRALEY RONON STEVENS & YOUNG, LLP
2600 One COmmerce Square Philadelphia, PA 19103
(215) 564-8000 - pJ:one
(215) 564-8120 - fax
Attomeys for Reç~iver C. Clark Hoagson, Jr and
SÜ~phenJ. Hamielin, Receiver ad litem for
Philaael¡)h.a AIteTIative Asset M~agement
Company, LLC ~d Its Parers, Affiliates,
Subsidiares and Related Entities
DATED: February 14,2008
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Case 2:06-cv-01944-MMB Document 504 Filed 02/14/2008 Page 4 of 18
IN THE UNTED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYL VANIA
STEPHEN 1. HARILIN, AS RECEIVER AD
LITEM FOR PHILADELPHIA AL TERNA TIVE ASSET MANAGEMENT COMPANY, LLC, AND
ITS PARTNERS, AFFILIATES, SUBSIDIARIES, AND RELATED ENTITIES,
Civil Action No. 06-CV-1944 (MB)
Plaitiff,
v.
MAN FINANCIAL INC, et aI., Defendants.
COMMODITY FUTURES TRAING
COMMISSION,
Plaintiff,
v.
Case No. 05-CV -2973 (MMB)
PAUL M.EUSTACE, AND PHILADELPHIA ALTERNATIVE ASSET MAAGEMENT COMPANY, LLC, Defendants.
MEMORANDUM OF LAW IN SUPPORT OF THE RECEIVER
AD LITEM'S
MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT WITH JOHN WALLACE AND EDWARD GOBORA
Stephen 1. Harmelin, the Receiver ad litem (the "RAL") for Philadelphia Alternative
Asset Management Company, LLC, and its partners, affiliates, subsidiaries and related entities,
including Philadelphia Alternative Asset Management Company, LLC ("P AAMCo"),
Philadelphia Alternative Asset Fund, Ltd. ("P AAF"), Philadelphia Alternative Feeder Fund,
LLC, Option Capital Fund, LP and Philadelphia Alternative Asset Fund, LP (collectively, the
"Receivership Entities"), has entered into a Settlement Agreement (the "Settlement Agreement")
with defendants John Wallace ("Wallace"); Edward Gobora ("Gobora") (Wallace and Gobora
are referred to collectively as the "Settling Defendants": Plaintiff and the Settling Defendants
shall be referred to herein collectively as the "Settling Paries"). The RAL respectfully submits
this Motion for Approval of the Settlement Agreement. As set forth in this Memorandum of
Case 2:06-cv-01944-MMB Document 504
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Law and accompanying Declaration of the RAL, it is the conclusion and recommendation of the
RAL that it is in the best interests of the Receivership Entities and all Interested Paries (as
dermed in the Settlement Agreement) that the Court enter an Order: (a) approving the Settlement
Agreement without modification; (b) enjoining and baring all Interested Paries, all defendants
and all thrd-pary defendants in the Action and the Third-Part Action (as dermed below), and
Richard Fogerty and G. James Cleaver, as Joint Offcial Liquidators of P AAF, and all of their
respective heus, trstees, executors, administrators, legal representatives, agents, successors and
assigns, from commencing a claim, action or proceeding of any kind in any foru against
Wallace and Gobora based on, relating to or arising from any of the underlying facts that form
the basis for the allegations, claims or defenses in the Action and the Third-Pary ActioIi; and (c)
finding that the Settlement Agreement and the releases set forth therein are final and binding
upon the RAL, the Receiver (defined below), Wallace, Gobora, the Receivership Entities and all
Interested Parties. If
the Settlement Agreement is approved, the insurer for Gobora and Wallace
Law
will pay a total of $500,000 (the "Settlement Proceeds") to the RAL. This Memorandum of
and the accompanying Exhibits are submitted in support of the Motion of the RAL for Approval
of the Settlement Agreement, and the releases set forth therein.
I. RELEVANT BACKGROUND
On or about June 23, 2005, the United States Commodity Futures Trading Commission
("CFTC") commenced an action against Paul Eustace and P AAMCo, Civil Action No. 05-CV-
2973, in this Cour. On June 23, 2005, the Honorable John R. Padova entered a statutory
restraining order (the "SRO") appointing C. Clark Hodgson, Jr. as the temporary receiver (the
"Receiver") for P AAMCo, and its "parners, affliates or subsidiares or related entities of the
Defendants" (i.e., the Receivership Entities). SRO at § IV. The SRO expressly granted the
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Alternative Asset Management Company, LLC, and its Partners, Affliates, Subsidiaries and
Related Entites v. Man Financial lnc, Thomas Gilmartin and UBS Fund Services (Cayman),
Ltd., (the "SAC"), which added direct claims against UBS. On December 14, 2007, the RAL
sought permission of this Couit to file direct claims against Lashbrook, Somervile, Wallace and
Gobora. On January 31, 2008, this Court extended the time for the RAL to file a Third Amended
Complaint to assert direct claims until Februar 13,2008.
By Order entered on December 24,2007, this Court approved a settlement of
the claims
the Order
between the RA and MFG and Gilmartn. The Court issued an Opinion in support of
approving that settlement on December 28, 2007.
On January 31, 2008, the RAL and UBS filed a Joint Motion for Approval of the
settlement between them. This Court has scheduled a hearig for March 5, 2008 in order to
detem1Îne whether the settlement between the RAL and UBS should be approved.
Without admitting any liability, fault, or wrongdoing on the part of any of the Settling
Paries, and in order to avoid the expense and uncertainty associated with contiuing the Action,
the Settling Paries wish to settle and resolve fully and finally all disputes or claims between
them, to discontinue with prejudice the Action as it relates to Wallace and Gobora, and to release
each of the Settling Parties (and the other Re1easees as set forth in the Settlement Agreement)
from any and all liability connected therewith.
II. SUMMARY OF THE TERMS OF THE SETTLEMENT AGREEMENT
On or about Februar 13,2008, the RA, the Receiver and Wallace and Gobora executed
the Settlement Agreement, attached hereto as Exhibit "A", which sets forth the terms and
conditions for the settlement of all claims between the Settling Parties on the merits and with
Case 2:06-cv-01944-MMB Document 504
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prejudice. The Declaration of Stephen J. Harelin in support of approval of the Settlement
Agreement is attached hereto as Exhibit "B".
This Settlement Agreement was facilitated by the Honorable David R. Strawbridge who
conducted a number of conferences
and many telephone calls among the paries. If this Cour
approves the Settlement Agreement
the RAL wil
recover $500,000"
as Settlement Proceeds. The
total proceeds from the settlement agreements in tms litigatign, either
previously approved or
under ponsideration, wil amount to a recovery of $96 niillÒn, well Oyer 50%()f the maxim~m
damages posited in the reports of
the RAL's damageèxpert.
Separate and apart from settlements in this litigation, t1ie Receiver has already recovered
in
excess of $75 millon in assets, over $43 milion ofwhic1ihas been distributed t6 the Investors
in the Offshore, Option Capital or LP Funds. Such a recovery is extraordinary. For example, a
recent study of class action settlements indicates that the median settlement as a percentage of
estimated damages was 3.1 % in 2005 and 2.4% in 2006. Cornerstone Research, Securities Class
Action Settlement: 2006 Review and Analysis, Laura E. Simons and Ellen M. Ryan, p. 6. See
also Sterling v. Stewart, 158 F.3d 1199, 1204, n.7 (11th Cir.1998) (noting that the distrct court
considered a settlement recovery that was 15% of the maximum recovery fair and that the actual
settlement of25% was fair, adequate and reasonable).
The following is a summar of the key terms of the Settlement Agreement among the
Receiver and the RAL, on the one hand, and Gobora and Wallace on the other hand:
. Plaintiff agrees to seek from this Cour the entr of an Order approving the Settlement
Agreement, as well as the entr of a Bar Order (the "Bar Order") from tms Cour to
enjoin or bar all Interested Pares, all defendants and third-par defendants in the Action
and the Third-Par Action, and the Joint Liquidators from commencing or continuing a
claim against the Settling Defendants. iI 1.
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. National Union Fire Insurance Company of Pittsburgh (insurer for the Settling
Defendants) will pay $500,000 to the RAL to resolve all disputes between the Settling
Paries. ~ 2.
. The Receiver agrees not to distribute any funds until afer a CourtOrder approving the
Settlement Agreement is final and non-appealable. ~ 2.
. Settlement Agreement provides for mutual releases between the Settling Paries,
including a joint tortfeasor release of the Settling Defendants. ~~ 3-4 .
. The Settlement Agreement contemplates Notice to all Interested Paries and a hearing to
assist the Court in determining whether to approve the Settlement Agreement. ~ 1.
. The Action is being settled witlthe Settliiig Defendants only, and the Settlement
Agreement shall have no effect whatsoever on
the claims or P9tential claims by the RA
against other parties. ~ 5.
As mentioned above, the RAL has agreed to seek the entry of a Bar Order that would
prohibit any Interested Pary from bringillg suit against the Settling Defendants. Other Interested
Parties face substantial hurdles if they were to decide to try to pursue claims directly, including
but not limited to statute of limitations issues, diffculty in establishig standing and potential
causes of action, the lack of privity and the cost of pursuing uncertain litigation. i
In a similar case, the United States District Cour for the District of New Jersey found
that a bar order enjoining potential claimants was fair and, given the difficulties that the
i With respect to the statute oflimitations, this Court's SRO and Consent Order specifically provided following:
IT is FURTHER ORDERED that except by leave of the Court, during the pendency of the receivership
ordered herein, the Defendants, and all other persons and entities be and hereby are stayed from taking any
action to establish or enforce any claim, right or interest for, against, on behalf of, in, or in the name of, the
receivership defendants, the Receiver, receivership assets, or the Receiver's duly authorized agents acting
in their capacities as such, including but not limited to, the following actions:
A. Commencing prosecuting, litigating or enforcing any suit, except that actions may be filed to toll any
applicable statute of limitations;
* * * *
SRO, VII (A) and Consent Order, XII (A) (emphasis added). To the RA's knowledge, no such suit tolling the statute of limitations has been fiied by any Investor in the Receivership Entities in any jurisdiction. It is the RAL's opinion that there would be numerous defenses to any individual claim filed by an individual Investor after this date including those based on applicable statutes of limitation.
Case 2:06-cv-01944-MMB Document 504
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claimants faced in bringing individual claims, the bar order actually led to a higher settlement
value on the case:
The Cour finds that the Receiver established this settlement is in
the best interest of the Receivership estate, and tht federal
law and
public policy favor the entr of the Bar Order t9 facilitate
settlement of this matter. Inadqition, the Cour is satisfied that the Receiver established that the Bar Order is fair to Shasta members, and will not prejudice them. Specifically, the Receiver notes that individual claIms by Sha1;ta members would be difficult to pursue for various reasons, includjng problems with standjng, statute of li11itatIo.ns, and privity issltes.. hi short, the Receiver denl0nstrates
tnat the Bar Order
will lead to a higher 1;ettlement vaIue, and
therefore a larger recovery for claImants than would otherwse be available without the Bar Order.
Commodity Futures Trading Commission v. Equity Financial Group, Civil No. 04-1512 (RBK),
2007 U.S. Dist. LEXIS 53310, at *5 (D.N.J. July23, 2007). This Court has already approved
such a Bar Order in the context of
the RA's settlement with MFG and Gilmarin.
As set forth in the accompanying Declaration of the RAL, in determining to enter into the
Settlement Agreement, the RAL considered several factors, including but not limited to: (1) the
risk, expense and delay inherent in proceeding with a jury trial and potential appeals; (2) the law
and the facts in light of the extensive discovery; (3) the risk to other Interested Parties in
attempting to pursue claims directly; and (4) the anticipated recovery in light of the
recommendations of Judge Strawbridge. DecL ~ 6. After extensive consideration of these
factors and others, it is the RAL's good faith business judgment that the Settlement Agreement is
in the best interests of the Receivership Entities, and that the Settlement Agreement is fair,
adequate and reasonable. Decl. ~ 7. The RAL strongly recommends and encourages the
Investors not to object to the Settlement. DecL ~ 8.
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III. CONCLUSION
It is the conclusion and recommendation of the RAL that it is in the best interests of the
Receivership Entities to enter into the Settlement Agreement, which the RAL believes is fair,
adequate and reasonable. The RAL also believes that the Settlement Agreement is in the best
interests of all Interested Paries. For all the foregoing
reasons, and after consideration of all
evidence provided at a hearng on ths matter, the Settling Parties respectfully request that this
Cour enter Order # 2 approving
the Settlement Agreement and providing all other relief
expressly requested.
/s/ James 1. Rodgers James J. Rodgers
Laura E. Vendzules
Thomas Vecchio
DILWORTH PAXSON LLP
3200 The Mellon Ban Center 1735 Market Street Philadelphia, P A 19103 (215) 575-7000 - phone
(215) 575-7200 - fax
Attorneys for Stephen J. Harmelin, Receiver adliÌem for Philadelphia Alternative Asset
Management Company, LLC and Its Parners,
Affliates, Subsidiaries and Related Entities
Lee A. Rosengard Keith R. Dutil Michael Cordone
STRALEY RONON STEVENS & YOUNG, LLP
2600 One Commerce Square Philadelphia, P A 19103
(215) 564-8000 - phone
(215) 564-8120 - fax
Attorneys for Receiver C. Clark Hodgson, Jr. and Stephen 1. Harelin, Receiver ad litem for Philadelphia Alternative Asset Management Company, LLC and Its Parners, Affiliates, Subsidiaries and Related Entities
DATED: February 14,2008
Case 2:06-cv-01944-MMB Document 504
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CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of February, 2008, I caused a true and COlTect copy
of the Receiver ad litem's ("RAL") Motion for Approval of Settlement between the RAL, John
Wallace and Edward Gobora (collectively, the "Settling
Parties"), the Memorandum of Law in
be served via
support thereof and proposed form of Order # 1 and 2 ("Motion for Approval"), to
electronic transmission on the following:
Gl~1l Irwin Chernigoff, Esquire gchernigoff(Icftc.gov
Robert Sentner, Esquire rsentner(Iiixonpeabody.com
Michael
1 Otten,.
Esquire
motten(Icftc.gov
Har J. Giacometti, Esquire hgiacometti(Isgclegal.com
WayneC. Stansfield, Esquire wstansfield(Ireedsmith.com rreber(Ireedsmith.com
Therese Doherty, Esquire
tdohert(Ierrick.com
Timothy E. Hoeffer
thoeffer~saui.com
Gaetan Alfano, Esquire galfano(?niar-law.com
DavidM. Howard david.howard~dechert.com
Keith W. Miler, Esquire
keithmiler. paulhastings.com
Also on February 14,2008, I caused a true and correct copy of
the Motion for Approval
to be served via United States First Class Mail, postage prepaid, on the paries listed below:
Thomas W. Sexton, Esq. National Futures Association 200 W. Madison Chicago, Ilinois 60606
Paul M. Eustace 102 Lakeshore Road East
Oakvile, Ontaro
CANADA
L6J 6N2
721846_2
Case 2:06-cv-01944-MMB Document 504 Filed 02/14/2008 Page 13 of 18
Mark Hollgan, Esquire Walkers Walkers House PO Box 265 GT, Mar Street George Town, Grand Cayman, Cayman Islands (VIA AIR MAL)
Linda T. Coberly, Esquire Michael J. Philippi, Esquire David W. Wirt, Esquire Winston & Strawn, LLP 35 W. Wacker Drive Chicago, Ilinois 60601
/s/ James J. Rodgers James J. Rodgers (JR797)
721846_2
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Case 2:06-cv-01944-MMB Document 504 Filed 02/14/2008 Page 14 of 18
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEPHEN J. HARMLIN, AS RECEIVER AD
LITEM FOR PHILADELPHIA AL TERNA TIVE
ASSET MAAGEMENT COMPANY, LLC, AND
ITS PARTNERS, AFFILIATES, SUBSIDIARIES, AND RELATED ENTITIES, Plaintiff,
v.
Civil Action No. 06-CV-1944 (MMB)
MAN FINANCIA INC, et aI.,
Defendants.
COMMODITY FUTURES TRADING COMMSSION, Plaintiff,
v.
Case No. 05-CV -2973 (MMB)
PAUL M. EUSTACE, AND PHILADELPHIA AL TERNA TIVE ASSET MANAGEMENT COMPANY, LLC, Defendants.
ORDER #1 CONCERNING PROPOSED SETTLEMENT
The Cour, having been notified that the Receiver ad litem (the "RA"), on behalf of the
Philadelphia Alternative Asset Management Company, LLC, and its parners, affiiates,
subsidiaries and related entities, including Philadelphia Alternative Asset Fund, Ltd.,
Philadelphia Alternative Feeder Fund, LLC, Option Capital Fund, LP and Philadelphia
Alternative Asset Fund, LP (collectively, the "Receivership Entities"), has entered into a
Settlement Agreement (the "Settlement Agreement") with defendants John Wallace ("Wallace")
and Edward Gobora ("Gobora"), it is HEREBY ORDERED that:
1. A Settlement Hearing is scheduled to be held before the Cour on March 5, 2008
at 4:00 p.m. for the following purposes:
721857_1
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Filed 02/14/2008 Page 15 of 18
a. to determine whether the Settlement Agreement and the releases set forth
therein should be approved by the Court;
b. to determne whether the Order as provided under the Settlement
Agreement should be entered;
c. to rule upon such other matters as the Court may deem appropriate.
2. The Receiver, C. Clark Hodgson, Jr., shall cause a Settlement Notice to be
mailed, by first class mail, postage prepaid, on or before , 2008, to all investors in
the Receivership Entities who have been and can be identified with reasonable effort. The
Motion and Exhbit "A" thereto (the Settlement Agreement), shall accompany the Settlement
Notice. The Receiver is permitted to serve copies of the Motion electronically upon those for
whom he has an electronic address, and shall also post the Motion and Settlement Agreement on
his website.
3. The Receiver's counsel shall, at or before the Settlement Hearing, file with the
Court proof of service of the Settlement Notice.
4. The Cour wil consider comments and/or objections to the Settlement Agreement
only if such comments or objections and any supporting papers are fied in writing with the Clerk
of the Cour, United States Distrct Cour for the Eastern District of Pennsylvania, U.S.
Courthouse, 601 Market Street, Room 2609, Philadelphia, Pennsylvana 19106-1797, and copies
of all such papers are served, on or before February 28, 2008, upon each of
the following: James
J. Rodgers, Esquire, Dilwort Paxson LLP, 3200 The Mellon Bank Center, 1735 Market Street,
Philadelphia, Pennsylvania 19103-7595 (on behalf of the RAL) and Timothy E. Hoeffner,
Esquire, Saul Ewing LLP, Centre Square West, 1500 Market Street, Philadelphia, PA 19102, (on
behalf of
Wallace and Gobora). Persons wishing to be heard orally in opposition to the approval
721857_1
2
Case 2:06-cv-01944-MMB Document 504
Filed 02/14/2008 Page 16 of 18
of the Settlement Agreement shall state in their written objection their intention to appear at the
Settlement Hearing, and identify any witnesses they may call to testify and exhbits they intend
to introduce into evidence. Persons do not need to appear at the Hearing or take any other action
to indicate their approval.
BY THE COURT:
Baylson, J.
721857_1
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Case 2:06-cv-01944-MMB Document 504
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEPHEN 1. HARMELIN, AS RECEIVER AD LITEM FOR PHILADELPHIA AL TERNA TIVE ASSET MANAGEMENT COMPANY, LLC, AN
ITS PARTNERS, AFFILIATES, SUBSIDIARIES, AND RELATED ENTITIES, Plaintiff,
v.
Civil Action No. 06-CV-1944 (MMB)
MAN FINANCIAL INC, et aI., Defendants.
COMMODITY FUTURES TRADING COMMISSION, Plaintiff,
v.
Case No. 05-CV-2973 (MMB)
PAUL M. EUSTACE, AND PHILADELPHIA ALTERNATIVE ASSET MAAGEMENT COMPANY, LLC, Defendants.
ORDER #2 GRATING APPROVAL OF SETTLEMENT AGREEMENT
AND NOW, this
day of
, 2008, upon consideration of the
Motion of the Receiver ad litem (the "RAL"), on behalf of the Philadelphia Alternative Asset
Management Company, LLC, and its partners, afliates, subsidiaries and related entities,
including Philadelphia Alternative Asset Fund, Ltd. ("PAAF"), Philadelphia Alternative Feeder
Fund, LLC, Option Capital Fund, LP and Philadelphia Alternative Asset Fund, LP (collectively,
the "Receivership Entities") for Approval of the Settlement Agreement between the RAL and
defendants John Wallace ("Wallace") and Edward Gobora ("Gobora" and together with Wallace,
the "Settling Defendants"), and after a Hearng on this matter, the Court having determined that
the Settlement Agreement is fair, reasonable and adequate, it is hereby ORDERED,
721858_1
Case 2:06-cv-01944-MMB Document 504
Filed 02/14/2008 Page 18 of 18
ADJUGED, and DECREED that the Motion is GRATED. It is FURTHER ORDERED
that:
BY THE COURT:
Baylson, J.
721858_1
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 1 of 20
SETTLEMENT AGREEMENT
This Settement Agreement (the "Agreement") is made as of Februar
~ 2008, by and between Stephen J. Hanelin, the cour-appointed Receiver ad litem
(the ~'Receiver ad ¡ite,n") and C. Clark Hodgson, Jr., the cour-appointed Receiver (the
"Receiver") for the Philadelphia Alternative Asset Management Company, LLC
C"PAAMCd') and all ofIts parers, affiliates, subsidiadesand related entities,including,
but not-limited to, Philadelphia Alternative Asset Fund, Ltd. ("P AA"), Option Capital
FlUd, LP, Philadelphia Alternative Asset Food, LP, and Philadelphia Alternative Feeder
Fund, LLC (collectively, the "Receivership Entities"), on behalf of all of the foregoing
Receivership Entities (collectively, "Plainti), on the o,nehand, and JohI Wallace
("Wallace"), Edward Go~ora ("Gobora") and, for puroses of Paragraph 2 hereof,
National UnIon Fire Insurance Company of Pittsbligh, P A ("National Union"), on the
other hand. Plaintiff, Wallace and Gobora together shall be referred to herein as the
"Setting Paries" and, where the context so requires, individuay as a "Setting Pary."
WHREAS, on or about June 23, 20G5, the United States Commodity
Futues Trading'Commssion ("CFTC") commenced an action against Paul Eustace and
P AACo, Civil Action No. OS-CV -2973, in the United States Distrct Cour for the
Easern District ofPennylvana (the "Court");
WHREAS, at the request of
the CFTC and initialy by Order dated June
23, 2005, and thereafer by Orders dated September 22, 2005, and April 21, 2006, the
Cour appointed C. Clark Hodgson, Jr. as the Receiver, with the fu powers of an equIty
receiver, for P AACo and the other Receivership Entities;
71
5843_i
1
i " ~ A
EXfUBIT
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 2 of 20
WHREAS, the Receiver commenced an action agaist, inter alia, MF
Global Inc., f/a Man Financial Inc ("MFG"), Thomas Gilmarin ("Gilmarn") and
certain other defendants on or about May 8, 2006, by filing a complait in the Cour
(Civil Action No. 06-CV~1944 (ME)), which complaint was subsequently amended on
or about November 15, 2006 (the "Action");
WHEREAS, MFG filed a third-par complait in the Cour 011 or
about
Augut 4, 2006, asserting claims agait Wallace, Gobora David Lashbrook
("Lashbrook") and Scott Somervile CSomervile") (the third pary complaint including
subsc:quent amendments therèto, the "Third-Par Action");
WHREAS, by Order dated May 3, 2007, the Cour replaced C. Clark
Hodgson, Jr. as Receiver with respect to the Action and appoin:rd Stephen J. Harelin to
act as the Receiver ad litem with ful and exclusive autority over the Action;
WHREAS, on or about July 6, 2007, the ReceiYer ad litem filed a second
amended complaint in the Action, which is captioned Stêphen J. Haneli. Reèeiver ad
Litem for Philadelphia Alternative Asset Mangement Compary, LLC, and its Pårers,
Affliates. Subsidiaries and Related Entities. v. Man Financial Inc. Thoma Gilmarin and
DES Fund Servces (Cayman). Ltd.;
WHERES, on or about Decembèr 2, 2007, Plaintiff entered into. a
Settlement Agreement with MFG and Gilmar, which was amended as of
December 17.
2007 and subsequently approved by the Cour on December 20,2007;
715843_2
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Case 2:06-cv-01944-MMB Document 504-2
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WHREAS, on December 20,2007, the Cour entered an order granting
the Receiver ad litem leave to file a thd amended complait to assert direct clais
against Wallace and Gobora, which order has been subsequently modified to require that
the Receiver ad litem must do so on or before Febru 14,2008;
WHEREAS, on or about Janua 30, 1008, Plaitiff entered into a
settement agreement, dated as of Janua 28.2008, with UBS Cayman;
WHREAS, Wallace and Gobora deny aU matenal allegations agaist
them and deny any and all fault or liabilty to any par to the Action or the Thid-Par
Action; and
WHEREAS, without admtting any liabilty, fault, or wrongdoing on the
par of any Setting Par hereto,in order to save the expenses of, and avoid the
uncerainties associated with potentiål litigation, the Settling Pares wish to sette and
resolve fully and finaly all differences, disputes or claims between them, whether actual
or potential, lmovvn or unown, suspected or unsuspected, specifcally mentioned hèrein
or not, related to the allegations in the Action, the Trud-Par Action, andfor predecesor
actions by the Receiver, and to release each of the Setting Pares fro~ any and all
liabilty connected therewith with the understading that the releases do not constitute an
admission of any liabilty, wrongdoing' of any natue, or the lack of merit of any potential
clais, cross-clai, counterclaims, tlrd-pai claims, or defenses;
NOW, THEREFORE, for the consideration stated herein, including but
not limite to, the mutual covenants and undertngs set fort herein, the receipt and
715843_2
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 4 of 20
suffciency of which Is hereby acknowledged, the Setting Paries hereby stipulate and
agree as follows:
1. Order Confirming Agreement. The Receiver ad ltem shall,
witlú 10 days afr the execution of ths Agreement, fie a motion in the Cour for an
Order to con:finn this Agreement (the "Cour Order"). The Setting Jares shall advocate
for, and request th~.Cour to, enter the Cour Order. The Setting Pares shall
not file any
notice of appeal from the ent of the Court Order approving this Agreement. Plaintiff
will ask the Cour:
the
(a) To provide reasonable notice to al pares interested in each of
Receivership Entities, including but not limited to, all investors in, sharholders,
members, parers and creditors of. eäch of the Receivership Entities ("Interested
Pares");
. (b)
To set a bar date by which the Interested Pares must file with the
Cour any objections to the settement provisions contaned herein;
(c) To provide for a hearg on ths Agreement's provisions, including
the releases contained herein, and any objections by
any Interested Pares;
(d) To approve ths Agreement, without modification; and
(e) To permanently enjoin or bar all Interested Paries, all defendants
and third-part defendants in the Action and Thid-Par Action, and Richard Fogert
and G. James Cleaver, as Joint Offcial Liquidators ofPAA, and all of
their respective
heirs, trstee, executors, adminstrtors, legal representaves, agents, successors and
715843_2
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 5 of 20
assigns from commencing a claim, action Or proceedng of any kind in any fonu agaist
Wallace and Gobora based on, relating to or arsing from any of
the underlying facts that
fonn the basis for the allegations, clal or defenses in the Acton and the ThTd- Par
Action; and
(f) To order tht ths Agreement and the releaes set fort herein are
final and binding upon:Plaitiff," the Setting Pares, each of the Receivershíp Entities,
and all Interested Pares.
2. Consideration. On behalf of Wallace and Gobora, National
Union hereby agrees to
pay to the Receiver ad litem for the benefit of Plaintiffs
receivership estate the sum of five hundred thousand dollars ($500,000.00) to resolve all
disputes between the Setting Pares as set fort in ths Agreement (the "Settlement
Amount"), to be paid with five
(5) business days of entry of the Cour Order. Such.
Settlement Amount shall be paid by wire trsfer to the account of the Receiver at.
Citizens Ban of Pennsylviia, pursuant to the followig wire.trsfer instctions:
Citizens Ban of PA, Plúladelphia, PA, ABA Nmnber 036076150, for fuer credit to
the account of "Philadelphia Alternative Asset Managem.ent Company - C. Clark
Hodgson, Jr. - Receiver," Account Number 6210906552. The Receiver shaH not
distrbute any of the Settlement Amount unti the Cour Order becomes fial. For the
purposes of
ths Agreement, the Cour Order becomes final: (a) ifno appea is taken, on
the date on which the tie to appea has expired; (b) if any appeal is taen, on the date on
which any such appea is finally disposed of in a maner afrmng the material
provisions of the Cour Order, or (c) on such other date to which the Settling Pares may
agree .in writig. In the event that ths Agreement shall be termated by" the Setting
715843_2
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 6 of 20
Paries or declared void or unenforceable by a cour order, or the Cour Order is reversed
on appeal, then the Receiver shall reftd the Settement Amoimt to National Union
with five (5) business days aftr such termination or the issuace of such order and
such payment shall be
made in the maner instrted by AIG Domestic Claims, Inc.
7J5843_2
6
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 7 of 20
whether known or unown, suspected or unsusected, and whether or not concealed or
hidden, for, upon, or by reason of any matter, clai, cause or thg whatsoever from the
begiing. of the world to the day of the date of
ths Agreement.
Agreement be deemed to be a joint torteasor release conforming to and satifying the
provisions of the laws of the Co:ronwealth of Pennylvania, só as to eXtinguish all
, .
(b) It is the specific intention of the Settlig Pares hereto that ths
liabilty of the Defendant Releaees including, but not limited to, liability for con-ibution
and/or indemnty to any other par to the Action and/or the Thd-:Pary Action. Solely
for purses of
ths Agreement, the Receiver ad liem and Wallac and Gobora agree that
Walläce and Gobora are joint torteasors with defendants named in the Action and the
Thrd-Pary Action.
(c) In the event it should ever be determined that any person,
parership, corporation, or other entity is or was a joint tortfeasor with or common Jaw
indemnitee of Wallace and Gob
ora, whether set forth in the Action, the Thrd-Par
Action, or otherwse, then a verdict, award, judgment, or settlement In favor of Plaintiff
and agaist or with any such other person, parership, corporation, or other entity, shall
be reduced by the greater of the:
(i) pro rata shae allocable to Wallace and Gobora of
Plaintiffs damages recoverable agains all joint tortfeasors;
or
(ii) amount of the consideration paid on behalf of Wallace and
Gobora pursuat to this Agreement.
715843_2
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Case 2:06-cv-01944-MMB
Document 504-2
Filed 02/14/2008
Page 8 of 20
715843_2
8
Case 2:06-cv-01944-MMB Document 504-2
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reason of any matter, clai, cause or thng whatsoever from the begiring of the world to
the day of the date of this Agreement.
(b) Concurently with the execution and delivery of this Agreement,
each of Walace and Gobora shall provide to the Receiver ad litem an executed releae in
favor of each of other defendant in the Action Or Thrd-Par Action with whom the
Receiver ad litem has entered into a settlement agreement, and the Receiver ad litem shall
provide to Wallace and Gobora a corresponding executed release of equivalent scope
from each such defendant.
S. Reservation of Claims. Nothng contained herein shall- constitute
a release of clais, punitive damages, exemplar daages, costs, judgments, debts,
rentas, bonds, bils, commissions, contrbution or indemnfication clai, cauSes of
action, grevances, demands, suits and proceedings in law or in equity of any nature
whatsoever between Plaintiff and any pares in the Action or the Third-Par Action:
òther than Wallace and Gobora.
6. Public Relations. The Settling Pares agree that other than as
requied by law or judicial process or as contemplated by, or reaonably necessar to
effectute the purposes of. ths Agreement, they will not issue a press ri;leae and shall
not otherwse publicly comment on ths Agreement or the negotiations leading thereto.
7. No Other Actions; No Assignment. The Settling Paries hereto
represent and warant tht they have not brought any proceedings against each other,
other than the Action, and fuer that, except as otherwse provided in ths Agreement,
they have not assigned or transferrd or purorted to assign or transfer to any person, fi
715843-i
9
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 10 of 20
or corporation whatsoever, any claim, debt, liabilty, demand, obligation, cost, expense,
action or cause of action herein released.
8. Relince on Counsel. EACH OF TIE SETTING P ARTlES
REPRESENTS AND WARS THAT HE is FREELY ENTERIG INTO nns
AGREEMENT, THAT HE is ACTING WITH THE ADVICE OF COUNSEL OF HIS
OR ITS CHOOSING, AN THAT I- HAS READ AL'I FULLY UNERSTANS
THE CONTES AND EFFECTS OF THIS AGREEMENT. EACH OF THE
UNERSIGNED HEREBY CERTIFIES TRATHE HAS READ ALL OF THIS
AGREEMENT AND THE RELEASES AND FULLY UNERSTANDS ALL OF THE
SAM.
9. No Admissions. The Seting Paries each acknowledge that the
terms of ths Agreement are solely for the purose of résolving disputed claims and
avoiding fuer costs and uncertty of litigation, and do not cònstute an admission of"
any ~ongdoing by any Setting Par heretò.
10. Binding Agreement. Upon execution of this Agreement, ths
Agreement is binding upn each of the Settng Paries hereto and upon their heirs,
exectors, legal representatives, successors, and permitted assigns, and inures to the
benefit of the Setting Paries benefited hereby and their heirs, executors, legal
representatives, successors, and penntted assigns. Notwthding the foregoing, no
Setting Pary hereto may assign its rights or obligations under this Agreement except as
otherwse provided herein or without the pnor wrtten consent of any other Setting Par
hereto.
715843_2
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 11 of 20
i 1. Entire Understanding. Ths Agreement and the Exhibits hereto
constitute the entire understanding of the Settling Paries hereto and supersede and
replace all other prior agreements between the Settling Paries hereto with respect to the
subject matter liereof, whether wrtten or oral. . The Settling Pares hereto acknowledge
that each Setting Par ha not executed this Agreement in reliance on any promise,
representation or waranty not set fort
herein.
12. . Aîendnients aJldVVaiver. Ths Agreement may not be altered,
changed, amended or modified except by way of a wrtten instrent signed by duly
authorized representatives of aU of theSettingParèS. 'The recitals set forth at the
begiimng of this Agreement are incorporated into
the Agreement by rtference. Neither
any failure nor delay on the par of aìy Setting Par in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall a single or parial exercise
thereofprecIude any other or fuer exercise or any other right, power or privilege.
13. Governing Law. Ths Agreement shall be governed exclusively
by, and construed, inteipreted and enforced in accordance with the laws of the
Commonwealth ofPeimsylvana, applied without regard to confict ofla~s principles.
14. Counterparts; Facsimile Signatures. Th Agreement may be
executed in any num~er of counterpar, and each executed counterpar shall have the
same force and effect as the original instrent and as if all the Settling Pares to the
counterpars had signed the same ii;strent Furer, the signatue pages of this
Agreement may be transmitted by facsimile and/or PDF, and signates tranmitted by
facsimile and/or PDF shall have the same force and effect as the original signatues.
715843_2
11
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 12 of 20
15. Joint Drafting. This Agreement reflects the joint drafng effort
of each Setting Par hereto in consultation with their respetive legal counsel. In the
event of any dispute or controversy regarding the Agreement, the Settling Paries shall be
considered joint authors and no provision shall be interpreted against any Settling Pary
because of any aleged putative authorship.
16. Forum; Waiver of Ji-ry TriaL. The Setting Pares irevocably
consent to the exclusive jursdiction of the Uiúted States Dístrct Cour for the Eastern
Distrct. of
Pennsylvana to enforce, or in any action, suit or proceeding for any breach of
or default under, ths Agreement and/or any underting or obligation under any other
ageement, document or instfent entered into or executed in connection herewith.
Without limiting the foregoing) each of the Setting Pares hereby expressly and
irrevocably waives any claim or defense based on any aleged lack of personal'
jursdiction) improper venue or foru non conveniens, or any similar basis. Each of the,
Settling Pares hereby waives any right which he or it may have to a jur tral in any
action, suit or proceeding arsing out of or related in any way to tls Agreement or any
document executed pursut to or in connection with this Agreement.
17. Authority. .Each person signing this Agreement represents and
~arants that he or she is duly authonzed and empowered to execute this Agreement and
bind the Setting Paries on whose behalf they have executed tls Agreement. The
Settling Paries represent and warant to the extent applicable: (a) that they have taken all
necessar corporate, legal and adminstrative actions duly to approve the making and
performance of t1s Agreement, and no fuer corporate, administative or other
approval is necessar; and (b) that the makng and peiformance of this Agreement wil
715843_2
12
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 13 of 20
not violate any provision of their respective aricles of incorporation, charer or corporate
by-laws, or other binding document. It is i.derstood and agreed by the Setting Pares
that the Receiver and the Receiver ad litem are entering into ths Agreement solely in
their capacities as Receiver and Receiver ad litem, respectively, and that they shall have
no personalìabilty for any oftheIr obligations hereunder other than!n such capacities.
18. Notices. (a) All notices, waivers, demands, requests, consents,
approvals and communcations required or permitted under this Agreement ("Notice(s)")
shall be in wrting and given as follows: by (i) personal delivery, (ìi) by facsimile and
electronic mail. or (iii) established overnght conuercial courer, with delivery charges
prepaid or duly charged. All Notices shal be addressed to the applicable addresses as set
fort below, or to any other address or addresses as any par from time to tie may
designate, by Notice given to the others in the maner provided in this paragraph as
follows:
To: John Wallace and Edward Gobora;
i. c/o Timothy Hoeffner, Esq.
Saul Ewing LLP 1500 Market Street, Suite 3400 Philadelphia, PA 19103 (215) (215) (facsimle)
thoeffer(isaul.com
To: Receiver ad litem:
1.
Stephen J. Harelín, Esq.
Dilworth Paxson LLP 1735 Market Street .Philadelphia, FA 19103-7595 (215) 575-7000 (215) 575-7200 (facsimle)
shanelin~djlwortlaw.com
13.
715843_2
Case 2:06-cv-01944-MMB
Document 504-2 Filed 02/14/2008
Page 14 of 20
2. James J. Rodgers, Esq.
Dilworth Paxson LLP 1735 Market Street Philadelphia, PA 19103-7595
(215) 575-7000
(215) 575-7200 (facsimile)
jrodgersØ)dilwortaw.com
To: Receiver:
1. C. Clàrk Hodgson. Jr.. Esq.
Strdley Ronon Stevens 8t Young LLP
2600 One Còmmerce Squae
Philadelphia, P A 19103-7098
(215) 564-8000
(215) 564-8120 (facsimile) chodgsonØ)stradley.com
2. Michael Cordone, Esq.
Stradley Ronon Stevell & Young LLP 2600 One Commerce Square Philade1phia,P A 19103-7098
(215) 564-8000
(215) 564-8120 (facsimile) mcordoneØ)stradley.com
(b) N otIces so given shalÌ be deemed to have been given on the day
sent to the par or Settling Pares if delivered personally or by facsimile and electronic
mail (with transmission confirmed), or the next business day if sent by overnght camer.
AlI copies to the applicable persons or entity(ies) designated above to receive copies shal
be given in the same maner as the origial Notice.
19. Attorneys' Fees. Each Settling Par shall bear its own attorneys'
fees and costs in connection with the negotiation and dring of this Agreement, the
Action and the Thid-Par Action.
715843_2
14
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 15 of 20
Dated: Februy /3, 2008
Stephen J. Harelin, Receiver ad litem
for Philadelphia Alternative Asset Management Company, LLC and its Parners, Affiliates, Subsidiares and Related Entities
Dated: February _, 200.8
C. Clark Hodgson, Jr., Receiver for Philadelphia Álternative Asset Management Company, LLC and its Parers, Affliates,
Subsidiares and Related Entities
By:
C. Clark Hodgson, Jr.
Dated: Febru -' 2008
John Wallace
Dated: February _, 2008
Edward Gobora
Dated: February _,2008
AIG Domestic Claims, Inc. for National Union Fire Insurance Company Pittburgh, PA of
By: Name: Alan E. Burkholz Title:
15
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 16 of 20
F eb 13 2008 11 : 53
02/12/2008 23; 55 5106603142
GENERAL CONSEL
PAGE 02
Dated; Febru -- 2008
Stehen J. Harelin, Reiver ad litem
for Plradelpbia Alteniative Asset Management Company, LLC and its
Parers, AfiateS, Subsidiares and Relat
Entities
By:
Stephen J. Haeli
Däte: Februar -,2008
C. Clark Hodg$o~ Jr., Reciver for
Phiadelphia Alterntive Asset ~ement
CompltY, LLC ánd its Pàrers, Afliates,
Sub~idiareS and Relatd Entities
By: C, 0"u.~w .
C. Clark Hodgs
Dated: Febru.. 2008
John Wallace
Dated: Febn: -- 2008
Edward Ooborn
Dated: Februar -' 2008
AlG Domestic Claims, Inc. for
Natona Union Fir Ince Company
of Pittburgh P A
By:
Name: Alan E, Burolz Tite;
715843_2
'15
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 17 of 20
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715113_2
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Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 18 of 20
Date: Febnry -- 2008
Stephen J. Hwne1~ Reover ad litm
for Pbiladel;phiaAltere,lve Assét
MaagafeiitCóni.tâìy~ LLC and it Pater, Afaies. Subsidiares and Related
Eies
By;
Stmbên J. Haelin
Dat: Febru -- 2008
PhlÏliMl'biA1t~~ASSMaemeDt
Compaiy, JiLêãhd,ilPäier. AfWê.
Stišidiiüèi~åñ Rclatêd Ertities
By:
C.Clat Hödgsoii1r., R~ver f(!
c. clä HQigsn, Ji:.
Dated: Februar~. 200S
Jobn Walace
Dated: Febru -72008
(JU)()Jul tr YfJ.møJ Bdwàr Gobora
Dated: Febnia- L 5.008
AlG Poinestc Claws. me. for
Natona Union Fi:ç lnance Company
?fPjttburgh. P A
Title: b¡,.ee+çr-C?~feÆ CklMS
~~~
715843_i
15
Case 2:06-cv-01944-MMB Document 504-2
Filed 02/14/2008 Page 19 of 20
DECLARTION OF STEPHEN J. HARMELIN
Stephen 1. Harmelin deposes and says the followig:
1. By Order of
this Cour dated May 3, 2007, I replaced the Receiver as the Receiver
ad litem with full andexc1usive authority over the action captioned Stephen J Harmelin,
Receiver ad Litem for Philadelphia Alternative Asset Management Company, LLC, and
its Partners, Affliates, Subsidiaries and Related Entites, v. Man Financial Inc, Thomas
Gilmartin and UBS Fund Services (Cayman), Ltd, Civil Action No. 06-CV-1944 (MMB)
(the "Action").
2. On February 13, 2008, I executed a Settlement Agreement (the "Settlement
Agreement") with defendants John Wallace ("Wallace") and Edward Gobora
("Gobora"). Gobora and Wallace (and their insurer) also executed the Settlement
Agreement on Februry 13,2008. The Settlement Agreement is attached to the Joint
Motion for Approval of
the Settlement as Exlbit "A".
3. If
the Settlement Agreement is approved, National Union Fire Insurance
Company of
Pittsburgh, PA (the insurer for Gobora and Wallace) wil pay a total of
the Receivership Entities and the
$500,000 (the "Settlement Proceeds") for the benefit of
Investors in the Receivership Entities.
these claims, extensive negotiations
4. In connection with obtaining a settlement of
were conducted by the Honorable David R. Strawbridge with the varous paries on at
least ten occasions, including some full-day settlement conferences.
EXHIBIT
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Case 2:06-cv-01944-MMB Document 504-2
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5. Additionally, I and my counsel engaged in substatial ars-lengt negotiations
over a course of months with representatives of Gobora and Wallace in an effort to
resolve all claims, and counsel for the Settling Paries have communicated by email or
telephone on multiple occasions wherein the terms and scope of the proposed Settlement Agreement were extensively debated and negotiated.
6. In determining the reasonableness of the Settlement Agreement, I considered
several faCtors, il1cludlngbut nottiniÏedto: (1) the risk, expense aiddeiayinlerel1t il
proceeding with a jur trial
and potential appeals; (2) the law and the facts in light of the
extensive discovery; (3) the risk to other Interested Parties, including the Investors in the
Receivership Entities, in attempting to pursue claims directly; and
( 4) the anticipated
recovery in light of the recommendations of Judge Strawbridge.
7. Afer extensive consideration of these factors and others, it is my good faith
business judgment that the Settlement Agreement
is in the best interests of the
Receivership Entities, and that the Settlement Agreement is fair, adequate and reasonable.
8. I strongly recommend and encourage the Investors in the Receivership Entities
not to òbject to the Settlement Agreement.
Pursuant to 28 D.S.C. § 1746, I declare under penalty ofpeijury that the foregoing is true
and correct.
Dated: February 14,2008
Stephen J. Harelin
Receiver ad litem
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