Exhibit 10.02


 


UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA


 


	
  In re Xcel Energy, Inc. Securities,
  Derivative

  & ERISA Litigation

  	
  Master File: Civil 02-2677 (DSD/FLN)



  
	
   

  	
  MDL No. 1511

  
	
  This Document Relates to Case Nos. 03-2218

  and 03-2219, the “ERISA Actions.”

  	
   

  



 


STIPULATION AND
AGREEMENT OF SETTLEMENT OF ERISA ACTIONS


 


This
Settlement Agreement (“Agreement”) is made as of December 31, 2004, by and
among the following parties (as defined in this Agreement):  (1) the Class Representatives and the Plans,
by and through Class Counsel; and (2) Xcel Energy Inc. and the Individual
Defendants, by and through their attorneys, pursuant to Rule 23 of the Federal
Rules of Civil Procedure and subject to the Court’s approval.


 


1.             RECITALS


 


1.1           This
Agreement resolves two related actions originally filed in 2002 in the United
States District Court for the District of Colorado against the Defendants
asserting claims arising under the Employee Retirement Income Security Act of
1974, as amended (“ERISA”):  Donald
Newcome and Leonard Banks v. Xcel Energy, Inc., et al. and Gene Barday
v. Xcel Energy, Inc., et al.  The
complaints allege that the Defendants breached their fiduciary duties and
otherwise violated ERISA by using employer and employee contributions to the
Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans (the “Xcel
401(k) Plan”) and the New Century Energies


 





















 


Employees’ Savings and
Stock Ownership Plan for Bargaining Unit Employees and Former Non-Bargaining
Unit Employees (the “NCE Union Plan”) (collectively, the “Plans”) to purchase
the common stock of Xcel at a time when, according to Plaintiffs, it was an
unsuitable and imprudent investment for the Plans.  Plaintiffs also allege that Defendants
violated ERISA by failing to take appropriate actions to protect participants
and beneficiaries from losses that resulted from the imprudent acquisition and
retention of Xcel common stock by the Plans during the same period.  Plaintiffs further allege that Defendants violated
ERISA by misrepresenting to Plaintiffs and participants in the Plans the
financial status of Xcel and, consequently, the true value of Xcel common
stock.  These misrepresentations were
alleged to include misleading, inaccurate, and incomplete communications with
participants regarding the value of Xcel common stock, and its prudence as an
investment for the Plans’ assets, both directly to participants by Defendants,
and in plan-related documents, including the summary plan descriptions.  The Complaints seek equitable and
compensatory relief on behalf of Plaintiffs, the Class Members and the Plans,
pursuant to ERISA §§ 409, 502(a)(2), and 502(a)(3), plus attorneys’ fees,
expenses, and costs pursuant to the common fund doctrine, ERISA
§ 502(g)(1), and other law.


 


1.2           Plaintiffs
seek certification pursuant to Fed. R. Civ. P. 23 of a class consisting of all
persons who were participants or beneficiaries of either of the Plans between
September 23, 1999 and March 31, 2003, and who had Xcel common stock allocated
to their accounts in the Plans at any time during such period (“Settlement
Class”), other than Defendants individually named in the Complaint and their
immediate family members.


 


1.3           Defendants
have denied and continue to deny each of the claims and allegations of
wrongdoing in the Complaints.  On
December 20, 2002, Defendants filed a Motion to Dismiss


 


2





















 


the Complaints, which was
denied in part and granted in part by the court on March 10, 2004.  On July 21, 2004, Defendants filed a motion
for partial summary judgment, which has not yet been ruled upon by the
court.  Defendants have specifically
denied and continue to deny, inter alia, the
allegations that they breached any fiduciary duties or any other provisions of
ERISA in connection with the acquisition or retention of Xcel common stock by
the Plans during the Class Period or at any time, and deny that they in any way
misrepresented the financial performance of Xcel or the value of Xcel common
stock either directly or indirectly to participants in the Plans.  Defendants deny that Plaintiffs, the proposed
class, or the Plans are entitled to any relief of any kind.


 


2.             BASIS FOR
SETTLEMENT


 


2.1           Plaintiffs’
Counsel as defined below have conducted a thorough investigation into
Plaintiffs’ claims, the underlying events and transactions alleged in the
Complaints, and the operation and administration of the Plans, including
interviews with members of the purported class and former agents and employees
of Xcel.  Plaintiffs’ Counsel has also
reviewed thousands of documents produced by Defendants and third parties
through the discovery process, as well as documents obtained from public
sources and the files of Plaintiffs and putative class members.  Additionally, Plaintiffs’ Counsel have
consulted with experts and made a thorough study of the legal principles
applicable to the actual and potential claims of Plaintiffs, the Plans, and the
Settlement Class.


 


2.2           Defendants’
Counsel as defined below also have conducted a thorough investigation into
Plaintiffs’ claims, the underlying events and transactions alleged in the
Complaints, and the operation and administration of the Plans, including
interviews with employees of Xcel. 
Defendants’ Counsel have reviewed numerous documents and made a


 


3





















 


thorough study of the
legal principles applicable to the actual and potential claims of Plaintiffs,
the Plans, and the Settlement Class in the Action.


 


2.3           The
parties, after engaging in substantial discovery, were ordered by the court
(see Order dated October 9, 2004) to engage in mediation.  As a result of the mediation, conducted by a
nationally-recognized mediator over the course of two days, followed by
extensive written and telephonic communications between Plaintiffs’ Counsel,
Defendants’ Counsel, and the mediator, the parties to the Action agreed to a
settlement, the terms of which are embodied in this Settlement Agreement.


 


2.4           Although
the Defendants continue to deny all liability with respect to any and all of
the claims alleged in the Complaints, the Defendants nevertheless consider it
desirable that any and all possible controversies and disputes that arise out
of or relate to the matters, transactions, and occurrences referenced in the
Complaints and/or related to the Plans and the investment options in the Plans,
be conclusively settled and terminated on the terms and conditions set forth
below.  The Settlement of the Action and
the attendant final dismissal of the Complaints will avoid the substantial
expense, inconvenience, and risk of continued litigation and will bring the
claims and potential claims of Plaintiffs, the Plans, the Plans’ fiduciaries
and the Settlement Class to an end.


 


2.5           Based
on Plaintiffs’ investigation and after considering:  (a) the substantial benefits that Plaintiffs,
the Plans and the members of the Settlement Class will receive from the
Settlement; (b) the risk of litigation; (c) the likely length of time before
final resolution of the claims, including time spent in possible appeals if the
Action were not settled; and (d) the desirability of permitting the Settlement
to be consummated as provided by the terms of this Agreement, Plaintiffs’
Counsel has concluded that the terms and conditions of the proposed


 


4





















 


Settlement as set forth
in this Agreement are fair, reasonable, and adequate to the Plaintiffs, the
Plans and the members of the Settlement Class, and Plaintiffs and Plaintiffs’
Counsel have agreed to settle and compromise the Action pursuant to the terms
and provisions of this Agreement, subject to the approval of the Court.


 


3.             SETTLEMENT TERMS


 


ACCORDINGLY,
THE UNDERSIGNED ATTORNEYS FOR THE PARTIES HEREBY STIPULATE AND AGREE on behalf
of their respective clients and the Plans and the Settlement Class to settle,
to compromise, and to dismiss this Action with prejudice, subject to the
approval of the Court, in the manner and on the terms and conditions set forth
below.


 


In addition to
the terms heretofore defined, as used in this Agreement:


 


3.1           “Action” means, collectively, the lawsuits captioned Newcome
and Banks v. Xcel Energy, Inc., et al., Civil No. 03-2218 (D. Minn.) and Barday
v. Xcel Energy, Inc., et al., Civil No. 03-2219 (D. Minn.).


 


3.2           “Administrative Contractors” means the persons engaged by
the Administrators and to whom the Administrators may delegate duties assigned
to the Administrators under this Agreement, including, without limitation,
duties associated with provision of Notice, calculation of Claims, collection
of Releases, and preparation and filing of tax-related documents.  It is agreed by the parties hereto that
neither the Administrators nor the Administrative Contractors are to be deemed
agents or representatives of the Defendants or Defendants’ Counsel for any
purpose, and that neither Defendants, their Related Parties, nor Defendants’
Counsel shall bear any responsibility or liability for any act or omission of
any Administrator or Administrative Contractor.


 


3.3           “Administrative Expenses” means the expenses incurred in the
administration of this Agreement, including, without limitation, all expenses
or costs associated with providing the


 


5





















 


Notices described herein
and all expenses or costs associated with distribution of the Net Settlement
Fund as described in Section 6, below. 
In addition, all reasonable expenses of the Administrators, the
reasonable fees of the Escrow Agent, taxes and tax-preparation expenses incurred
by or on behalf of the Settlement Fund, and the reasonable fees and expenses of
the Administrative Contractors that the Administrators engage, shall be
included as Administrative Expenses and paid from the Settlement Fund.


 


3.4           “Administrators” shall be appointed and supervised by
Plaintiffs and Plaintiffs’ Counsel.  They
shall serve as the Administrators and trustees of the Settlement Fund and will
be deemed to be acting in that capacity when providing Notice pursuant to
Section 10, below.  “Administrators”
shall, as the context requires, also mean “Administrative
Contractors.”


 


3.5           “Agreement” means the Stipulation and Agreement of
Settlement entered herein by the parties.


 


3.6           “Attorneys’ Expenses” means the amount awarded by the Court
as reimbursement for Plaintiffs’ Counsel’s costs and expenses of litigation,
other than costs and expenses authorized as Administrative Expenses.


 


3.7           “Attorneys’ Fees” means the amount awarded by the Court as
compensation for the services provided by Plaintiffs’ Counsel.


 


3.8           “Authorized Claimant” means a Claimant whose Settlement
Claims the Administrators determine to be worth at least twenty-five dollars
($25) pursuant to the process set forth in Section 6.2 below.  “Authorized Claimants” refers
collectively to Authorized Former Participant Claimants and Authorized
Participant Claimants, as defined herein.


 


6





















 


3.9           “Authorized Former Participant Claimant” means an Authorized
Claimant who is a former participant in either or both of the Plans as of the
date the Net Settlement Fund is distributed to the Plans.


 


3.10         “Authorized Participant Claimant” means an Authorized
Claimant who is a participant in one of the Plans as of the date the Net
Settlement Fund is distributed to the Plans.


 


3.11         “Claimant” means any member of the Settlement Class.


 


3.12         “Class” or “Settlement Class” means
the class to be conditionally certified by the Court pursuant to the
Preliminary Approval Order, consisting of all Persons who were participants or
beneficiaries under the Plans during any portion of the Class Period who had
Xcel stock allocated to their Plan account at any time during such period,
other than persons who are named as Defendants in the Complaints and their
immediate family members.


 


3.13         “Class Counsel” or “Plaintiffs’ Counsel” means
the firms of Branstetter, Kilgore, Stranch, & Jennings; Whatley Drake,
L.L.C.; Barrett, Johnston & Parsley; Robbins Umeda & Fink, LLP; Brauer,
Buescher, Goldhammer, Kelman & Dodge; Gilbert &
Sackman, a Law Corporation; Cochrane & Bresnahan, PA.


 


3.14         “Class Period” means the period between September 23, 1999,
and March 31, 2003, inclusive.


 


3.15         “Class Representative(s)” and “Plaintiffs”
mean the following persons: 
Gene Barday, Jr., Leonard Banks and Donald Newcome.


 


3.16         “Code” means the Internal Revenue Code of 1986.


 


3.17         “Complaints” means the complaints filed in the lawsuits
captioned Newcome and Banks v. Xcel Energy, Inc., et al., Civil No.
03-2218 (D. Minn.) and Barday v. Xcel Energy, Inc., et al., Civil No.
03-2219 (D. Minn.).


 


7





















 


3.18         “Defendants” means Xcel, Wayne H. Brunetti, Douglas W.
Leatherdale, C. Coney Burgess, A. Barry Hirschfeld, Margaret R. Preska, Allan
L. Schuman, W. Thomas Stephens, Giannantonio Ferrari, Albert F. Moreno, A. Patricia
Sampson, Rodney E. Slifer, James J. Howard, David A. Christensen, Roger R.
Hemminghaus, Edward J. McIntyre, and David E. Ripka.  “Individual Defendants”
means the Defendants, except Xcel.


 


3.19         “Defendants’ Counsel” means the firms of Jones Day and Briggs
& Morgan, P.A. for Xcel and all Individual Defendants except James J.
Howard, and Rider Bennett LLP for James J. Howard.


 


3.20         “Escrow Agent” means TCF National Bank Minnesota, which bank
or institution shall perform its duties as set forth in this Agreement and in
the Escrow Agreement attached hereto as Exhibit E.


 


3.21         “Derivative Action” means the action captioned Gottlieb
v. Xcel Energy, Inc., et al., No. 02-2931, pending in the United States
District Court for the District of Minnesota and coordinated under the
proceedings captioned In re Xcel Energy, Inc. Securities, Derivative and
ERISA Litigation, Master File No. 02-2677 (DSD/FLN).


 


3.22         “Final Approval of the Settlement” means the entry of an
Order and Final Judgment approving this Agreement and the Settlement pursuant
to Rule 23(e) of the Federal Rules of Civil Procedure and the full, final, and
favorable determination of any appeals, petitions, motions for reconsideration,
or any other proceedings for review or, if no such review proceedings are
taken, the expiration of the applicable time to appeal or seek review from such
order.


 


8





















 


3.23         “Initial Administrative Expense Payment” means the costs of
the Class Notice and other costs relating to the administration of the
Settlement, as mutually agreed by Class Counsel and counsel for Defendants.


 


3.24         “Net Settlement Fund” means the Settlement Fund plus
interest that has accrued thereon, less the Attorneys’ Fees, Attorneys’
Expenses, Administrative Expenses, and the Total Plaintiffs’ Case Contribution
Compensation, as defined herein.


 


3.25         “Notice” and “Individual Notice” means
the Notice of Pendency of Class Action, Proposed Settlement, and Hearing
attached to this Agreement as Exhibit A.


 


3.26         “Order and Final Judgment” means an order and judgment of
the Court approving the Settlement and entry of a final judgment in the form
annexed hereto as Exhibit D, or upon terms not materially different from
those set forth in Exhibit D.


 


3.27         “Person(s)” means a natural person, a corporation,
partnership, association, or any other entity.


 


3.28         “Plaintiffs’ Case Contribution Compensation” means the
amount of two thousand dollars ($2,000) per Plaintiff, which shall be paid from
the Settlement Fund to each Class Representative in recognition of their
contributions to the Action.


 


3.29         “Plan Account” means the account or accounts established or
existing under the Plans designated by the Plan Administrator into which the
Escrow Agent shall transfer the Net Settlement Fund for distribution and
allocation to the Class.  Xcel shall take
all necessary steps to establish the Plan Account.


 


3.30         “Preliminary Approval of Proposed Settlement and Notice” means
the date that the Preliminary Approval Order is entered by the Court.


 


9





















 


3.31         “Preliminary Approval Order” means an order, substantially
in the form annexed hereto as Exhibit C, approving the forms and
procedure for providing notice to the Settlement Class, conditionally certifying
the named Plaintiffs as the representatives of the Settlement Class and
Plaintiffs’ Counsel as counsel to the Settlement Class, establishing a
procedure for members of the Settlement Class to follow in order to object to
the Settlement, and setting a date for a hearing on the approval of the
Settlement.


 


3.32         “Publication Notice” means the abbreviated form of Notice,
attached to this Agreement as Exhibit B, to be published in the
Minneapolis Star-Tribune, the St. Paul Pioneer Press, and USA Today or another
national publication mutually agreed upon by Class Counsel and Defendants’
Counsel.


 


3.33         “Related Parties” means each of a Defendant’s past, present,
and future directors, officers, fiduciaries, employees, partners, principals,
agents, members, independent contractors, registered representatives,
underwriters, issuers, insurers, coinsurers, reinsurers, controlling
shareholders, attorneys, accountants, auditors, investment bankers, advisors,
consultants, trustees, fiduciaries, personal representatives, predecessors,
successors, successors-in-interest, parents, subsidiaries, divisions, assigns,
spouses, heirs, executors, administrators, associates, related or affiliated
entities, and members of their families.


 


3.34         “Released Claims” means only those claims set forth below
and shall not include any claim that has been asserted under the state or
federal securities laws by the Plans, the Plans’ Trustee or fiduciaries, or any
individual member of the Settlement Class directly or derivatively in the Securities
Action or the Derivative Action, nor shall it preclude the Plans, the Plans’
Trustee or fiduciaries, or any individual member of the Settlement Class from
participating as class members in the Securities Action.  “Released Claims”
means any and all claims, demands,


 


10





















 


damages, defenses,
rights, liabilities, and causes of action in law or equity whatsoever, known or
unknown, matured or unmatured, accrued or unaccrued, fixed or contingent,
liquidated or unliquidated, arising under state or federal law or any other
source of law, by or on behalf of the Plaintiffs, the Plans, the Plans’
fiduciaries, or any member of the Settlement Class on their own behalf and on
behalf of any Persons they represent (including the Plans and their respective
spouses, heirs, executors, administrators, past and present partners, officers,
directors, agents, attorneys, predecessors, successors and assigns), against
any of the Released Persons based upon or arising out of or relating in any way
(in whole or in part) to the acquisition, disposition or retention by the
Plaintiffs, the Plans or any members of the Settlement Class of Xcel stock
during the Class Period, including, but not limited to, claims which relate
directly or indirectly to the facts, transactions, events, occurrences, acts,
disclosures, statements, omissions, or failures to act which were alleged or
could have been alleged in any of the Complaints filed in the Action, or which
are based on or arise out of or in any way relate to communications with
participants or beneficiaries directly or indirectly pertaining to Xcel
stock.  Notwithstanding any provision in
this Settlement Agreement, excluded from the Released Claims are any claims
brought in the Securities Action or Derivative Action.  The “Released Claims”
also shall include any and all claims by or on behalf of each and every
Defendant against Plaintiffs, the Settlement Class and Class Counsel relating
to the institution, prosecution or settlement of any or all claims asserted in
this action, including, but not limited to, any action for costs or attorney’s
fees as well as for contribution, indemnification or any other claims relating
to payment of the Settlement Fund or any Settlement Claims by the Defendants.


 


3.35         “Released Persons” means each of the Defendants and all
their Related Parties, each and every member of the Settlement Class, and Class
Counsel.


 


11





















 


3.36         “Securities Action” means the consolidated securities actions
pending in the United States District Court for the District of Minnesota under
the caption In re Xcel Energy, Inc. Securities Litigation, Master File
No. 02-2677 (DSD/FLN).


 


3.37         “Settlement” means the resolution of the Action in the manner
and on the terms set forth herein.


 


3.38         “Settlement Claim” means the total dollar amount of each
Authorized Claimant’s Settlement Claims, as determined in Section 6.2, below.


 


3.39         “Settlement Fund” means the sum of eight million U.S.
dollars ($8,000,000) to be paid by Xcel pursuant to Section 5.1 below.


 


3.40         “Total Plaintiffs’ Case Contribution Compensation” means the
sum that shall be paid to the named Plaintiffs as Plaintiffs’ Case Contribution
Compensation.


 


3.41         “Xcel” means Xcel Energy Inc.


 


3.42         “Xcel stock” means the common stock issued by Xcel and
traded on the New York Stock Exchange.


 


4.             STIPULATION
TO CLASS CERTIFICATION OF THE SETTLEMENT CLASS


 


4.1           The
parties to this Agreement stipulate and agree that for settlement purposes only
this Action shall proceed as a non-opt out class action pursuant to Fed. R.
Civ. P. Rules 23(a)(1)-(4), 23(b)(1), and (b)(2) with Jane B. Stranch, Esq., of
Branstetter, Kilgore, Stranch, & Jennings and Glen Connor, Esq. of Whatley
& Drake, L.L.C., as Class Counsel and with a Settlement Class and Class
Period as defined above.


 


5.             THE SETTLEMENT
FUND


 


5.1           Within
ten (10) business days after the Court enters its Preliminary Approval Order,
Xcel shall deposit with the Escrow Agent in an interest-bearing account, pursuant
to the terms of the Escrow Agreement, the sum of eight million dollars
($8,000,000), which amount


 


12





















 


shall be used to fund the
Settlement Fund described in the Escrow Agreement.  Interest earned on the Settlement Fund under
the Escrow Agreement shall accrue to the benefit of, and be added to, the
Settlement Fund.


 


5.2           Within
a reasonable time following receipt of invoices therefore, the Escrow Agent
shall pay from the Settlement Fund the costs of the Class Notice and other
costs relating to the administration of the Settlement (including the Escrow
Agent’s fees), as mutually agreed by Class Counsel and Defendants’
Counsel.  In the event the Settlement is
not approved and the Order and Final Judgment is not entered, Plaintiffs’
Counsel shall reimburse the Settlement Fund for half the cost of any such
expenses paid.


 


5.3           Within
ten (10) days of the Final Approval of the Settlement, the Escrow Agent shall
pay to Class Counsel out of the Settlement Fund (subject to Court approval) the
Plaintiffs’ Case Contribution Compensation, in an amount of $2,000 for each
Class Representative (a total of $6,000), which Class Counsel shall remit to
the Plaintiffs.


 


5.4           Also
within ten (10) days of the Final Approval of the Settlement, the Escrow Agent
shall pay to Class Counsel out of the Settlement Fund such Attorneys’ Fees and
Attorneys’ Expenses of Class Counsel as may be approved by the Court in the
Order and Final Judgment.


 


5.5           Following
the payment of amounts specified in Sections 5.2, 5.3 and 5.4, the Escrow Agent
shall pay over the Net Settlement Fund (at the joint written instruction of
Class Counsel and Defendants’ Counsel) to the Plan Account for administration
by the Administrators, in accordance with the provisions set forth herein.  The Administrators shall deposit the Net
Settlement Fund into the Plan Account in the following manner:


 


13





















 


a.                                       The
Administrators shall provide Class Counsel with written notice of the amount of
additional Administrative Expenses incurred in connection with the
administration of the Settlement.  Class
Counsel promptly shall review the amount claimed as such and, if reasonable,
approve such amount for payment out of the Net Settlement Fund.


 


b.                                      If
requested, Xcel shall assist the Administrators with the calculation of
Settlement Claims, the identification of Authorized Claimants, and the payment
of Claims.  To the extent Xcel incurs any
expense in connection therewith, the Administrators shall reimburse Xcel from
the Net Settlement Fund for its reasonable and actual costs incurred.  Notwithstanding the foregoing, the Administrators
shall be solely responsible for all communications with Authorized Claimants
regarding their Claims, and neither Xcel nor its agents shall have any
responsibility in this regard. 
Plaintiffs’ Counsel shall direct the Administrators regarding the manner
and content of the Administrators’ written or other communications with
Authorized Claimants regarding their Claims. 
In addition, Class members will be instructed in the Notice and
Publication Notice to contact Plaintiffs’ Counsel, or an agent designated by
them, with any questions regarding the Settlement or Settlement Claims.  Neither Xcel nor its agents shall have any
responsibility with respect to such questions. 
Further, neither Defendants nor their Related Parties shall have any
responsibility, financial obligation or liability whatsoever with respect to
the investment or distribution of the Settlement Fund, with respect to


 


14





















 


the
processing of claims against the Settlement Fund, or otherwise with respect to
the administration of this Settlement or the Settlement Fund.


 


c.                                       Although
the Defendants deny any wrongdoing, the parties agree that the payments
described above are intended as settlement of breach of fiduciary duty claims
for a monetary remedy under ERISA for allegedly lost earnings on assets in the
Plans and shall be treated as earnings on Plan assets for all purposes under
the Plans.  None of the Defendants’
payment to the Settlement Fund represents compensatory or punitive damages or
employer or employee contributions to the Plans.


 


5.6                                 Under
no circumstances shall Defendants be required to pay more than the Settlement
Amount of eight million U.S. dollars ($8,000,000), as set forth above in Section 5.1.  Upon such payment, Defendants’ payment
obligations under this Agreement shall be satisfied and fulfilled.


 


6.                                      PLAN
OF ALLOCATION OF THE NET SETTLEMENT FUND


 


6.1                                 Unless
otherwise agreed by the parties, within sixty (60) days after filing this
Agreement, the Defendants shall provide the Administrators or their designee
with the following information pertaining to the account(s) in the Plans of
each member of the Settlement Class as identified and maintained in the records
of the Plans:


 


a.                                       The
Claimant’s name, last known address, and social security number;


 


b.                                      The
information necessary to make the calculations in Section 6.2 below.  If precise data is not readily available, the
parties shall meet and confer regarding the data that will be used.  This information shall include for each
Claimant:  (a) the account balance in
U.S. dollars invested in Xcel stock at the beginning of the Class Period; (b)
the dollar value of


 


15





















 


purchases
of Xcel stock during the Class Period; (c) the dollar value of sales of Xcel
stock during the Class Period; and (d) the account balance in U.S. dollars
invested in Xcel stock as of the end of the Class Period.


 


c.                                       Whether
the Claimant is a current participant in either Plan as of the most recent date
for which such information is reasonably available.


 


6.2                                 Within
thirty (30) days of Final Approval, the Administrators shall calculate the
Claimants’ Settlement Claims based on the information described in Section 6.1
and according to the following court approved-methodology:


 


a.                                       The
Administrators, with the assistance of Xcel, if necessary, shall determine the
approximate loss (“Loss”) for each member of the Settlement Class as follows:


 


Loss = (A + B) - C, where


 


A = (Value of (50% of the
number of shares that had been held in the Plans on September 23, 1999 [Adjusted
for the 1.55/share exchange of Xcel for NCE shares at the time of merger],
valued at the December 4, 2001 closing price/share of $27.56)) less (Value of those same shares on
the earlier of the March 31, 2003 closing price of $12.82/share or Participant’s
last day of participation in Company Stock Fund at the closing price on that
day)


 


AND


 


B
= (Purchase price of all company stock purchased from September 23, 1999 through March 31, 2003) less
(Value of all this purchased company stock still held on the earlier of March 31,
2003 or Participant’s last day of participation in the Company Stock Fund at
the closing price on the appropriate day)


 


AND


 


16





















 


C = (Sale price of all
company stock sold during the period of September 23, 1999 through March 31, 2003).


 


b.                                      The
Losses of the Claimants as calculated in Section 6.2(a) will be totaled to
yield the Loss of each Plan as a whole over the Class Period (the “Plan Loss”).  The Net Settlement Fund shall be apportioned
between the Xcel 401(k) Plan and the NCE Union Plan according to the
proportionate size of each Plan’s Plan Loss.


 


c.                                       The
Administrators shall calculate for the Account of each Authorized Claimant an
amount which is the same percent of the amount of the Net Settlement Fund
allocated to the Plan in question as the Authorized Claimant’s Loss bears to
the Plan Loss of the Plan in question.


 


d.                                      The
Administrators shall identify all Claimants whose Settlement Claim is less than
twenty-five dollars ($25) (“De Minimis Amounts”).  All such Claimants whose Settlement payment
is De Minimis shall not receive an award from the Net Settlement Fund.  The remaining Claimants shall become
Authorized Claimants.  The De Minimis
Amounts shall then be allocated to the Authorized Claimants on a pro rata basis
based on each Authorized Claimant’s Loss, and such amounts shall be added to
the Settlement Claim for each Authorized Claimant.


 


e.                                       In
light of the manner in which the data is kept and the ease with which it can be
manipulated, it may be appropriate to simplify some of the features of these
calculations.  Such simplifications are
acceptable as long as the two basic features of the distribution are preserved:  (1) that all members


 


17





















 


of the
Settlement Class receive their share of the Net Settlement Fund based
approximately on the formula referenced in § 6.2 which calculates relative
loss of Plan Participants as compared with one another; and (2) that the
distribution take place through the Plans so as to maximize the tax advantages
of investment in the Plans.


 


6.3                                 Promptly
after calculating each Authorized Claimant’s Settlement Claim, the
Administrators shall provide to Defendants the name, social security number,
and amount of each Authorized Claimant’s Settlement Claim, together with the
total of all such Claims.  Except for the
social security numbers, the same information shall be provided to Class
Counsel.


 


6.4                                 Any
Claimant who is an Authorized Former Participant Claimant shall have his or her
account reinstated in the Plan(s) in which he or she held Xcel stock during the
Class Period, for the sole purpose of receiving his or her allocation from the
Net Settlement Fund.


 


6.5                                 As
promptly as possible after deposit of the Net Settlement Fund into the Plan
Account pursuant to Section 5.3, the Administrators, or their agents,
shall cause an amount to be allocated to each Authorized Participant Claimant’s
or Authorized Former Participant Claimant’s Plan account equal to such individual’s
Settlement Claim.  Such amount shall be
allocated to the Authorized Claimant’s contribution source sub-account holding
Xcel stock during the Class Period in accordance with the existing investment
elections in effect for such sub-account (except that amounts credited to the
ESOP Accounts in the Plans, and all amounts credited to Authorized Former
Participant Claimants, shall be invested initially in the Vanguard Prime Money
Market Fund investment option), shall be treated and administered thereafter
for all purposes under the Plans as income credited to the Authorized Claimant’s
contribution source


 


18





















 


sub-account under
the Plans, and shall thereafter be distributed only in accordance with the applicable
provisions of the Plans.


 


6.6                                 The
Administrators shall make available to Defendants’ Counsel and Class Counsel
any and all summaries, compilations, calculations, or tabulations of the claims
and amounts described in this Section 6, upon the request of Defendants’
Counsel, Class Counsel, or the Court.


 


7.                                      THE
SETTLEMENT FUND AND THE ADMINISTRATORS


 


7.1                                 The Parties shall treat the Settlement Fund as a “qualified
settlement fund” within the meaning of the regulations issued under Section 468B
of the Code and any comparable provision of state or local law (collectively,
the “Section 468B Regulations”). 
The Administrator shall be the “administrator”
for purposes of the Section 468B Regulations.  As such, it shall comply with all of the
requirements imposed on administrators by the Section 468B Regulations,
including, without limitation, obtaining a taxpayer identification number for
the Settlement Fund, preparing and filing all income tax returns and
information returns required to be filed by the Settlement Fund and paying all
taxes required to be paid by the Settlement Fund.  Xcel shall be the “transferor” for purposes
of the Section 468B Regulations.  As
such, it shall comply with all of the requirements imposed on transferors by
the Section 468B regulations, including, without limitation, delivering to
the Administrator a statement that complies with section 3(e) of the Section 468B
Regulations and attaching a copy of that statement to its federal income tax
return for the taxable year in which it makes the required payment to the
Settlement Fund.


 


7.2                                 Each Authorized Participant Claimant and
Authorized Former Participant Claimant shall be solely responsible for the
federal, state and local tax consequences to him, her or it of the crediting of
an allocable share of the Net Settlement Amount to his, her or its Plan account
pursuant to Section 6.5 of this Agreement. 
Xcel shall take the position for federal, state


 


19





















 


and local tax purposes that the amounts so credited are not reportable as
income to the Authorized Participant Claimants or Authorized Former Participant
Claimants until distributed under a Plan, but no Defendant or Related Party
shall have any liability to any Authorized Participant Claimant, Authorized
Former Participant Claimant or other person (other than a taxing authority) if
a taxing authority determines that Xcel’s position is incorrect.


 


7.3                                 The
Administrators may resign by sixty (60) days written notice to the Court.  The Administrators may be removed by the
Plaintiffs at any time.  In the event of
the removal or resignation of the Administrators, the Plaintiffs may appoint
successor Administrators.  Upon executing
a written acceptance of an executed copy of this Order, and on the settlement
of the accounts and discharge of the prior Administrators, the successor
Administrators shall have, without further act on the part of anyone, all the
duties, powers, functions, immunities, and discretion granted to the original
Administrators.  Any Administrators who
are replaced, by reason other than death, shall execute all instruments and do
all acts that may be necessary or that may be ordered or requested in writing
by Plaintiffs or the Court or by any successor Administrators to transfer administrative
powers over the Settlement Fund to the successor Administrators.  The appointment of successor Administrators,
if any, shall not under any circumstances require the Defendants to make any
further payment of any nature into the Settlement Fund or otherwise.  All notices hereunder, including notices of
resignation or removal of the Administrators, must be in writing and directed
to the Court, the Administrators, Class Counsel, and the Defendants’ Counsel.


 


7.4                                 The
Administrators and, if necessary, the Administrators’ Contractors, shall in any
event remain available and engaged to respond to inquiries from members of the
Plaintiff


 


20





















 


Class regarding
their Claims or any other aspect of this Agreement for six months after the Net
Settlement Fund is distributed to Authorized Claimants.


 


7.5                                 The
parties may apply to the Court to alter or amend the settlement administration
terms of this Agreement at any time, or from time to time, provided, however,
that no such amendment or modification shall in any way affect:  (a) the purposes of the Settlement Fund; (b)
the Court’s jurisdiction over the parties; (c) the powers, duties, and
liabilities of the Administrators under this Order; (d) the total amount of
money the Defendants are required to pay into the Fund; or (e) any material
term of the Agreement.


 


8.                                      STRUCTURAL
CHANGES TO THE PLANS


 


8.1                                 Subject
to the requirements of the collective bargaining agreements in place between
Xcel and its work force, Xcel will undertake to amend the Plans to provide that
each participant who has at least five years of service shall have the right to
direct the investment of his or her ESOP Accounts, as such term is defined in
the Plans, in the same manner and among the same investment alternatives as are
available for the investment of employee contributions to the Plans.


 


9.                                      SUBMISSION
TO JURISDICTION OF COURT


 


9.1                                 Each
and every member of the Settlement Class and each and every Defendant submits
to the jurisdiction of the Court and will be bound by the terms of this
Agreement, including, without limitation, any and all releases, conditioned on
the Final Approval of the Settlement and subject to their right to object, as
well as any other order of the Court including, without limitation, the Order
and Final Judgment barring further litigation against any of the Released
Persons on the Released Claims.


 


21





















 


9.2                                 Each
Claimant specifically and personally submits to the jurisdiction of the Court.  Any and all disputes relating to Claims that
are not satisfactorily resolved by the Administrators shall be submitted to the
Court for final resolution.


 


10.                               NOTICE
TO MEMBERS OF THE SETTLEMENT CLASS


 


10.1                           The
Administrators shall send the Individual Notice by first-class mail, postage
prepaid, to the address of each member of the Settlement Class at the address
provided by the Defendants, or such other addresses as Plaintiffs’ Counsel has
available, within thirty (30) days after entry of the Preliminary Approval
Order.  The Administrators also shall
cause the Publication Notice, which shall be an abbreviated form of the Notice
that adequately informs the Settlement Class of the details of the Settlement
and their right to object thereto, to be published in the Minneapolis
Star-Tribune, the St. Paul Pioneer Press, and USA Today or some other national
publication mutually agreed upon by Class Counsel and Defendants’ Counsel.  The costs and expenses associated with the
Publication Notice, the Notice, and reasonable efforts by the Administrators to
identify addresses for members of the Settlement Class, shall be an
Administrative Expense and will be paid from the Settlement Fund in accordance
with Section 5, above.  Plaintiffs’
Counsel may also post the Notices (Exhibits A and B) on their websites.


 


11.                               PROCEDURE
FOR APPROVAL OF SETTLEMENT


 


11.1                           No
later than ten (10) days after execution of this Agreement, Class Counsel shall
file a motion with the Court seeking immediate entry of the Preliminary
Approval Order and, after Notice is given to the Settlement Class, a hearing
will be held by the Court pursuant to Rule 23 of the Federal Rules of Civil
Procedure on the fairness of the Settlement to the Class (“Settlement Fairness
Hearing”) and entry of the Order and Final Judgment approving the settlement.


 


22





















 


11.2                           The
Preliminary Approval Order proposed by the parties and submitted with Class
Counsel’s motion for approval of the settlement shall:


 


a.                                       Give
preliminary approval to this Agreement;


 


b.                                      Conditionally
certify the Settlement Class for settlement purposes only pursuant to Rule
23(a) and b(1) and b(2) of the Federal Rules of Civil Procedure and appoint
Plaintiffs’ Counsel as counsel for the Settlement Class;


 


c.                                       Approve
the form of the Individual Notice, and direct the Administrators to mail the
Notice to each potential member of the Settlement Class, and publish within
thirty (30) days of the entry of the Preliminary Approval Order the Publication
Notice in the Minneapolis Star-Tribune, the St. Paul Pioneer Press, and USA
Today or another national publication mutually agreed upon by Class Counsel and
Defendants’ Counsel;


 


d.                                      Set
a briefing schedule and a date and time for the Settlement Fairness
Hearing to determine whether the Agreement is fair, reasonable, and adequate to
the members of the Plaintiff Class, to determine Plaintiffs’ Counsel’s
Attorneys’ Fees and Expenses, and to consider whether the Court should enter an
Order and Final Judgment;


 


e.                                       Set
a deadline by which all objections to the Settlement must be made;


 


f.                                         Stay
the Action until further order of the Court and enjoin the filing or
prosecution by any Class members of any actions based on or in any way related
to the Released Claims until the Settlement Fairness Hearing; and


 


23





















 


g.                                      Determine
pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure that the
Notices constitute the best notice practicable under the circumstances and due
and sufficient notice of the hearing and the rights of the members of the
Plaintiff Class as to all Persons entitled to those Notices.


 


11.3                           No
later than five (5) days after Preliminary Approval of the Settlement, the
Plaintiffs shall submit the Agreement and accompanying Exhibits to the U.S.
Department of Labor (“DOL”) with a notice of the date and time of the
Settlement Fairness Hearing.


 


11.4                           Prior
to the Settlement Fairness Hearing, an independent fiduciary selected by Xcel
and approved by Plaintiffs’ Counsel, which has acknowledged in writing that it
is a fiduciary with respect to the settlement of this Action on behalf of the
Plans (the “Independent Fiduciary”), shall have approved and authorized in
writing the Settlement in accordance with Prohibited Transaction Class
Exemption 2003-39.  If the Independent
Fiduciary disapproves or otherwise does not authorize the Settlement as set
forth in this paragraph prior to the Settlement Fairness Hearing, then the
Defendants shall have the option to waive this condition, such option to be
exercised in writing within the earlier of (i) ten (10) days after the
Defendants’ receipt of the Independent Fiduciary’s written determination, or
(ii) three (3) days prior to (a) the date set for the Settlement Fairness
Hearing, or (b) such later date to which the Court may, in its discretion,
continue the Settlement Fairness Hearing. 
If the Independent Fiduciary has not rendered a written report regarding
the Settlement by the eleventh day prior to the date set for the Settlement Fairness
Hearing, the Defendants may ask the Court to continue the Settlement Fairness
Hearing to allow the Independent Fiduciary to complete its assessment of the


 


24





















 


Settlement.  If the Defendants elect not to waive this
condition, then this Settlement Agreement shall terminate and become null and
void and the provisions of Paragraph 13.9 shall apply.


 


11.5                           The
Order and Final Judgment proposed by the parties and submitted with the motion
for approval of the Settlement shall:


 


a.                                       Approve
this Agreement and Settlement as a fair, reasonable, and adequate settlement,
pursuant to Rule 23 of the Federal Rules of Civil Procedure, and compromise of
this Action, and direct payment of the Settlement Fund and compliance with all
other terms of this Agreement;


 


b.                                      Certify
the Settlement Class pursuant to Rule 23(a) and b(1) and b(2) of the Federal
Rules of Civil Procedure;


 


c.                                       Dismiss
the Complaint and the Action against each of the Defendants with prejudice on
the merits and without costs to any party;


 


d.                                      Terminate
any and all of the Released Claims;


 


e.                                       Terminate
any and all rights of the Defendants for reimbursement of their attorneys’ fees
in the Action;


 


f.                                         Bar
and enjoin any action against Defendants, Defendants’ Counsel, any member of
the Settlement Class, or Class Counsel based on the amount of any Settlement
Claim issued pursuant to the Plan of Allocation approved in the Final Approval
of the Settlement;


 


g.                                      Direct
that each party shall bear its own costs to the extent not allocated in this
Agreement;


 


h.                                      Reserve
jurisdiction over this Action and over any and all further proceedings
concerning the administration and consummation of the


 


25





















 


Settlement
and reimbursement of Administrative Expenses, to the extent any party deems
necessary;


 


i.                                          Permanently
bar and enjoin the Plaintiffs, the Plans, the Plans’ fiduciaries, all members
of the Settlement Class and any other party from the institution or
prosecution, either directly, indirectly, or in a representative capacity, of
any other action in any court asserting any Released Claim against any Released
Person; and


 


j.                                          Contain
such other and further provisions consistent with the terms of this Agreement
as the Court may deem advisable and appropriate.


 


12.                               PLAINTIFFS’
COUNSEL’S ATTORNEYS’ FEES AND EXPENSES


 


12.1                           Plaintiffs’
Counsel shall receive Attorneys’ Fees and Expenses as awarded by the
Court.  The Attorneys’ Fees and Expenses
shall be paid to Plaintiffs’ Counsel from the Settlement Fund within ten (10)
days following the Final Approval of the Settlement.  Plaintiffs’ Counsel shall be solely
responsible for allocating attorneys’ fees among co-counsel, and Defendants
shall bear no responsibility for this allocation and shall not be subject to
suit under this Agreement or otherwise for the same.  Defendants will not object to or oppose Class
Counsel’s application for an award of reasonable Attorneys’ Fees and Expenses
and shall take no position on the amount of such fees and expenses sought by
Plaintiffs or awarded by the Court.  It
is agreed that the allowance or disallowance (in whole or in part) by the Court
of any application by Plaintiffs’ Counsel for an award of fees or expenses is
not a term or condition of the settlement set forth in this Agreement, and any
order or proceedings relating thereto, or any appeal from any such order, shall
not operate to terminate or cancel this Agreement.


 


26





















 


13.                               RELEASE
OF CLAIMS


 


13.1                           Upon
Final Approval of the Settlement, the Plaintiffs, the Plans, the Plans’
fiduciaries, and all members of the Settlement Class shall be deemed to have,
and by operation of the Order and Final Judgment shall have, fully, finally,
and forever released and shall be forever barred from the prosecution of any
and all Released Claims against any and all of the Released Persons.


 


13.2                           Upon
Final Approval of the Settlement, Defendants shall be deemed to have, and by
operation of the Order and Final Judgment shall have, fully, finally, and
forever released, and are forever barred from the prosecution of, any and all
rights for reimbursement of attorneys’ fees or costs incurred in connection
with the Actions, as against the Plaintiffs, Plaintiffs’ counsel and all members
of the Settlement Class.


 


13.3                           The
Release of Claims set forth in this Agreement shall have no impact whatsoever
on any damages that are or could be sought or recovered in the Securities
Action, and under no circumstances shall the Settlement Fund or any Settlement
Claim be applied as a set-off or credit against any judgment, recovery, or
settlement obtained in the Securities Action.


 


13.4                           The
Release of Claims set forth in this Agreement shall have no impact whatsoever
on the obligations set forth in and required by the Agreement.  The Release of Claims granted in this
Agreement shall be effective as a bar to any and all currently unsuspected,
unknown, or partially known claims within the scope of the express terms and
provisions of the Release set forth in this Section, and Sections 3.33 and
3.34.  Accordingly, Plaintiffs hereby
expressly waive, on their own behalf and on behalf of the Plans, the Plans’
fiduciaries, and all members of the Class, any and all rights and benefits
respectively conferred upon them by the provisions of Section 1542 of the
California Civil Code.  Section 1542
reads in pertinent part:


 


27





















 


“A general release
does not extend to claims that the creditor does not know or suspect to exist
in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor.”


 


The parties hereby acknowledge that the foregoing
waiver of the provisions of Section 1542 of the California Civil Code was
separately bargained for and that neither Plaintiffs on the one hand, nor
Defendants on the other, would enter into this Settlement Agreement unless it
included a broad release of all unknown claims. 
The parties each expressly agree that all release provisions in the
Agreement shall be given full force and effect in accordance with each and all
of their express terms and provisions, including those terms and provisions
relating to unknown, unsuspected or future claims, demands, and causes of action.  Plaintiffs assume for themselves on their own
behalf and on behalf of the Plans, the Plans’ fiduciaries, and the Class, and
Settling Defendants assume for themselves on their own behalf, the risk of his,
her, or its respective subsequent discovery or understanding of any matter,
fact or law, that, if now known or understood, would in any respect have
affected his, her, or its entering into this Agreement.


 


13.5                           This
Agreement shall in no event be construed as or be deemed evidence of an
admission or a concession on the part of any party with respect to any claim,
fault, liability, or damage whatsoever. 
The Defendants deny any and all wrongdoing of any kind whatsoever and do
not concede any infirmity in the defenses to the Action that the Defendants have
asserted or intend to assert.  The
Defendants enter into this Agreement in order to avoid further expense,
inconvenience, risk, and delay and to dispose of expensive, burdensome, and
likely protracted litigation.  The
Plaintiffs, the Plans and the Settlement Class also do not concede any
infirmity in any of their claims against Defendants and enter into this
Settlement Agreement in order to avoid further expense, inconvenience, risk,
and delay and to dispose of expensive, burdensome, and likely protracted
litigation.


 


28





















 


13.6                           This
Agreement, whether or not consummated, and any proceedings taken pursuant to
this Agreement, shall not be construed as, or deemed to be evidence of, any
presumption, concession, or admission by any of the parties of:  (a) the truth of any fact alleged by
Plaintiffs or denial alleged by Defendants; (b) the validity of any claim or
defense that has been or could have been asserted in the Action; (c) the
existence or non-existence of any liability, breach of duty, prohibited
transaction, violation of law, fault, wrongdoing, or other wrongful act of any
of the Defendants; (d) or as evidence, a presumption, a concession, or an
admission of any infirmity in any claim or defense of any of the parties.


 


13.7                           This
Agreement shall not be construed as an admission or concession that the
consideration to be given in Settlement represents the amount, if any, which
could or would have been recovered after trial.


 


13.8                           Plaintiffs
and Xcel shall each have the right to terminate this Agreement by providing
written notice of their election to do so to all of the other parties hereto in
the event that (a) the Court declines to enter the Preliminary Approval Order
or some other order containing or incorporating the terms herein; (b) the Court
declines to enter the Order and Final Judgment or some other order consistent
with the terms herein; or (c) the Order and Final Judgment approving settlement
is modified or reversed in any material respect on appeal, reconsideration, or
rehearing (provided, however, that any modification or reversal as to
Plaintiffs’ Counsel’s Attorneys’ Fees or Expenses shall not be deemed material
for purposes of this paragraph).  The
parties agree that they will negotiate in good faith to preserve this Agreement
prior to exercising their rights of termination under this paragraph.


 


13.9                           In the
event this Agreement is terminated, it shall become null and void and of no
further force and effect, the parties shall be deemed to have reverted to their
respective status and


 


29





















 


positions as of
the date immediately before the date of the execution hereof, and the parties
shall proceed in all respects as if this Agreement had not been executed.  In the event of such termination, the funds
paid into the Settlement Fund, plus interest earned thereon, less
Administrative Expenses incurred as of the date of termination, shall be
returned to the entity that paid the funds. 
If the Agreement is terminated, under no circumstances shall Plaintiffs,
Class Counsel, or the Administrators be required to reimburse Defendants for
Administrative Expenses already incurred as of the date of termination, except
as set forth in Section 5.2.


 


14.                               COOPERATION
OF THE PARTIES AND THEIR COUNSEL


 


14.1                           The
parties and their counsel agree to cooperate fully with one another to request
Court approval of this Agreement, and to use their best efforts to effect and
consummate the terms of this Agreement and the Settlement.


 


14.2                           Within
90 days of the Final Approval of the Settlement, the parties to this Agreement
shall comply with the provisions of the Joint Stipulation and Protective Order
entered by the Court, as relates to the destruction or return of confidential
materials.


 


14.3                           Before
the Plaintiffs or their counsel issue any press release relating to the Action
or its resolution, the proposed press release will be given to Xcel for
approval.  The press release will not be
issued unless Xcel consents in writing to its issuance; Xcel will not
unreasonably withhold that consent.


 


15.                               GENERAL
PROVISIONS


 


15.1                           This
Agreement incorporates by reference all Exhibits attached to it.


 


15.2                           This
Agreement and the attached Exhibits A through E, incorporated herein by
reference, constitute the entire agreement of the parties and may not be
modified or amended except by a writing signed by all parties.


 


30





















 


15.3                           The
captions to this Agreement appear for the purpose of convenience only and have
no legal effect.


 


15.4                           Administration
and consummation of the terms of this Agreement shall take place under the
supervision and authority of the Court, and all parties hereto expressly
consent to the jurisdiction of the Court for such purposes.


 


15.5                           The
parties to this Agreement may execute this Agreement in any number of
counterparts and on separate counterparts, each of which shall constitute an
original, but all counterparts together shall constitute one and the same
document.


 


15.6                           Except
insofar as federal law is controlling, this Agreement and all documents
necessary to effect this Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.


 


15.7                           Should
any provision of this Agreement require judicial interpretation, the parties
agree that the Court or other adjudicating body shall not apply a presumption
that the terms be more strictly construed against the party who prepared same,
it being agreed that all parties collectively participated in the negotiation
and preparation of this Agreement.


 


15.8                           The
parties intend this Settlement to be a final and complete resolution of all
disputes between them with respect to the Action.  The parties reserve their right to freely
rebut, in a manner that any such party determines to be appropriate, any
contention made in a public forum to the effect that the litigation was brought
or defended in bad faith or without reasonable basis.


 


15.9                           Any
notice required or desired to be given to any of the parties to this Agreement
shall be delivered by overnight mail and facsimile transmission addressed as
set forth in Exhibit C, or as may otherwise be designated by any party
by written notice to the other parties.


 


31





















 


15.10                     Any and all
statutes of limitations, statutes of repose, and/or their defenses based upon
the passage of time applicable to Plaintiffs’ claims against Defendants shall
be tolled for the period from the filing of this Agreement with the Court to
the earlier of the date the Order and Final Judgment is entered or the
termination of this Agreement.


 


15.11                     This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
Related Parties, and their respective successors and assigns.


 


15.12                     The undersigned
are duly authorized to execute this Agreement on behalf of the parties they
represent.


 


32





















 


WHEREFORE,
the parties stipulate and agree that they will move the Court to enter an order
in the form of the Preliminary Approval Order, attached hereto as Exhibit C,
and schedule a hearing on approval of this Settlement under the terms and
conditions herein described on the first available date at least 60 days after
entry of the Preliminary Approval Order.


 


 


	
  December 31,
  2004

  	
   

  	
  /s/ JAMES G.
  STRANCH, III

  	
   

  
	
   

  	
   

  	
  James G.
  Stranch, III

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ JANE B.
  STRANCH

  	
   

  
	
   

  	
   

  	
  Jane B. Stranch

  
	
   

  	
   

  	
  BRANSTETTER,
  KILGORE,

  
	
   

  	
   

  	
  STRANCH & JENNINGS

  
	
   

  	
   

  	
  227 Second
  Avenue, North, 4th Floor

  
	
   

  	
   

  	
  Nashville,
  Tennessee 37201-1631

  
	
   

  	
   

  	
  (615) 254-8801 /
  (615) 255-5419 (fax)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ JOE R.
  WATLEY, JR.

  	
   

  
	
   

  	
   

  	
  Joe R. Whatley,
  Jr.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ GLEN M.
  CONNOR

  	
   

  
	
   

  	
   

  	
  Glen M. Connor

  
	
   

  	
   

  	
  WHATLEY DRAKE,
  LLC

  
	
   

  	
   

  	
  2323 Second
  Avenue North

  
	
   

  	
   

  	
  Birmingham, AL
  35202

  
	
   

  	
   

  	
  Telephone:
  205-328-9576

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Co-Lead Counsel for Plaintiffs

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ ELLEN KELMAN

  	
   

  	
   

  	
   

  
	
  Ellen Kelman

  	
   

  	
   

  
	
  BRAUER,
  BUESCHER, GOLDHAMMER,

  	
   

  	
   

  
	
  KELMAN &
  DODGE

  	
   

  	
   

  
	
  1563 Gaylord St.

  	
   

  	
   

  
	
  Denver, CO 80206

  	
   

  	
   

  
	
  Telephone: (303)
  333-7751

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ JOHN A. COCHRANE

  	
   

  	
   

  	
   

  
	
  John A. Cochrane

  	
   

  	
   

  
	
  COCHRANE &
  BRESNAHAN, PA

  	
   

  	
   

  
	
  24 East 4th
  Street

  	
   

  	
   

  
	
  Saint Paul, MN
  55101

  	
   

  	
   

  
									



 


33





















 


	
  /s/ JAY SMITH

  	
   

  	
   

  	
   

  
	
  Jay Smith

  	
   

  	
   

  
	
  GILBERT &
  SACKMAN, a Law

  	
   

  	
   

  
	
  Corporation

  	
   

  	
   

  
	
  6100 Wilshire
  Blvd., No. 700

  	
   

  	
   

  
	
  Los Angeles, CA
  90048

  	
   

  	
   

  
	
  Telephone:
  323-938-3000

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ GEORGE E. BARRETT

  	
   

  	
   

  	
   

  
	
  George E.
  Barrett

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ DOUGLAS S. JOHNSTON, JR.

  	
   

  	
   

  	
   

  
	
  Douglas S.
  Johnston, Jr.

  	
   

  	
   

  
	
  BARRETT,
  JOHNSTON & PARSLEY

  	
   

  	
   

  
	
  217 Second
  Avenue, North

  	
   

  	
   

  
	
  Nashville, TN
  37201

  	
   

  	
   

  
	
  Telephone: 

  	
  615-244-2202

  	
   

  	
   

  
	
  Facsimile: 

  	
  615-252-3798

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ BRIAN J. ROBBINS

  	
   

  	
   

  	
   

  
	
  Brian J. Robbins

  	
   

  	
   

  
	
  ROBBINS UMEDA
  & FINK, LLP

  	
   

  	
   

  
	
  610 West Ash
  Street, Suite 1800

  	
   

  	
   

  
	
  San Diego, CA
  92101-3350

  	
   

  	
   

  
	
  Telephone: (619)
  525-3990

  	
   

  	
   

  
	
  Facsimile: (619)
  525-3991

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Counsel
  for Plaintiffs

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  December 31,
  2004

  	
   

  	
  /s/ JOHN M. NEWMAN,
  JR.

  	
   

  
	
   

  	
   

  	
  John M. Newman,
  Jr.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ GEOFFREY J.
  RITTS

  	
   

  
	
   

  	
   

  	
  Geoffrey J. Ritts

  
	
   

  	
   

  	
  JONES DAY

  
	
   

  	
   

  	
  North Point

  
	
   

  	
   

  	
  901 Lakeside Avenue

  
	
   

  	
   

  	
  Cleveland, OH 44114

  
	
   

  	
   

  	
  216.586.3939/216.579.0212 (fax)

  
										



 


34





















 


	
   

  	
   

  	
  /s/ TIMOTHY R. THORNTON

  	
   

  
	
   

  	
   

  	
  Timothy R. Thornton

  
	
   

  	
   

  	
  BRIGGS & MORGAN, P.A.

  
	
   

  	
   

  	
  2400 IDS Center

  
	
   

  	
   

  	
  80 South Eighth Street

  
	
   

  	
   

  	
  Minneapolis, MN 55402

  
	
   

  	
   

  	
  612.334.8400/612.3348650 (fax)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attorneys for All Defendants
  except James J. Howard

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  December 31, 2004

  	
   

  	
  /s/ RACHNA B. SULLIVAN

  	
   

  
	
   

  	
   

  	
  Rachna B. Sullivan

  
	
   

  	
   

  	
  RIDER BENNETT LLP

  
	
   

  	
   

  	
  33 South Sixth Street

  
	
   

  	
   

  	
  Minneapolis, MN 55402

  
	
   

  	
   

  	
  612.340.7951/612.340-7900 (fax)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attorney for Defendant James J.
  Howard

  
					



 


35





















 


EXHIBIT A


 


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA


 


NOTICE OF CLASS ACTION SETTLEMENT


 


	
  In re Xcel Energy, Inc. ERISA Litigation

  	
  )

  
	
  Case Nos. 03-2218 and 03-2219

  	
  )

  
	
   

  	
  )

  



 


TO ALL MEMBERS OF THE FOLLOWING CLASS:


 


All persons who were participants or beneficiaries in
the Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans or the New
Century Energies Employees’ Savings and Stock Ownership Plan for Bargaining
Unit and Former Non-Bargaining Unit Employees and who had Xcel common stock
allocated to your account at any time from September 23, 1999, to March 31,
2003.


 


PLEASE READ THIS NOTICE CAREFULLY.

A FEDERAL COURT AUTHORIZED THIS NOTICE.

THIS IS NOT A SOLICITATION.


 


This Notice advises you of a proposed class action
settlement.  The Settlement will provide
$8 million (less attorneys’ fees, expenses, and costs) to pay claims to
participants or beneficiaries who had Xcel common stock allocated to their
accounts in the Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans
or the New Century Energies Employees’ Savings and Stock Ownership Plan for
Bargaining Unit and Former Non-Bargaining Unit Employees at any time from
September 23, 1999, to March 31, 2003. 
In this Notice, these two plans are referred to collectively as “the Plans.”  The Settlement will also provide that Xcel
will undertake to amend the Plans, subject to the requirements of Xcel’s
collective bargaining agreements, to loosen restrictions on diversification of
Xcel stock held in participants’ accounts in the ESOP portions of the
Plans.  The Settlement resolves a lawsuit
over whether fiduciaries of the Plans breached their fiduciary duties by
violating the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. §§ 1001 et seq. (“ERISA”).  You
should read this entire Notice carefully because your legal rights are affected
whether you act or not.


 


	
  YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT



  
	
  YOU CAN DO NOTHING



  NO ACTION IS NECESSARY TO

  RECEIVE A PAYMENT

  	
  You do not need to do anything to receive a payment. Under the
  Settlement, the Settlement Administrator will calculate the portion, if any,
  of the Settlement you are entitled to received. If you are a current
  participant in one of the Plans and are authorized to receive a payment, the
  Settlement Administrator will deposit the payment into your Plan account.



  If you are a Class Member and no longer participate in either Plan,
  your account will be reinstated in the Plan in which you participated for the
  sole purpose of receiving your settlement payment.

  
	
  YOU CAN OBJECT

  	
  You can write to the Court about why you don’t like the Settlement.

  
	
  YOU CAN GO TO A HEARING

  	
  You can ask to speak in Court about the fairness of the Settlement.

  



 


•                                          Your
rights and options, and the date by which you must object if you are opposed to
the Settlement, are explained in this notice. 



 


QUESTIONS? CALL (866) 890-4864 TOLL FREE, OR VISIT
www.xcelerisasettlement.com.

Do not call the Court, Xcel Energy, or Vanguard.

They cannot answer your questions.


 


1





















 


WHAT THIS NOTICE CONTAINS


 


	
  BASIC INFORMATION

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Why did I get
  this notice package?

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  How do I get more
  information?

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  What is this lawsuit
  about?

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Why is this a class
  action?

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Why is there a
  Settlement?

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  How do
  I know if I am part of the Settlement?

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Are there
  exceptions to being included?

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  I’m still not
  sure if I’m included

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Can I
  exclude myself from the Settlement?

  	
   

  
	
   

  	
   

  	
   

  
	
  THE SETTLEMENT
  BENEFITS—WHAT YOU GET

  
	
   

  
	
  10.

  	
  What does the
  Settlement provide?

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  How much will my
  payment be?

  	
   

  
	
   

  	
   

  	
   

  
	
  HOW YOU GET A PAYMENT

  
	
   

  
	
  12.

  	
  How can I get my payment?

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  When will I get my
  payment?

  	
   

  
	
   

  	
   

  	
   

  
	
  THE LAWYERS REPRESENTING
  YOU

  
	
   

  
	
  14.

  	
  Do I have a lawyer
  in this case?

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  How will the lawyers
  be paid?

  	
   

  
	
   

  	
   

  	
   

  
	
  OBJECTING TO THE SETTLEMENT

  
	
   

  
	
  16.

  	
  What does it mean to
  object?

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  How
  do I tell the Court if I don’t like the Settlement?

  	
   

  
	
   

  	
   

  	
   

  
	
  THE COURT’S FAIRNESS
  HEARING

  
	
   

  
	
  18.

  	
  When
  and where will the Court decide whether to approve the Settlement?

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Do I have
  to go to the fairness hearing?

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  May I speak at the
  hearing?

  	
   

  
	
   

  	
   

  	
   

  
	
  IF YOU DO NOTHING

  
	
   

  
	
  21.

  	
  What happens
  if I do nothing at all?

  	
   

  
	
   

  	
   

  	
   

  
	
  GETTING MORE INFORMATION

  
	
   

  
	
  22.

  	
  Are
  there more details about the Settlement?

  	
   

  
				



 


2





















 


BASIC INFORMATION


 


1.                                      Why
did I get this notice package?


 


You or someone in your family may have had funds in
the Plans invested in Xcel Energy Inc. common stock at some time from September
23, 1999, to March 31, 2003.


 


The Court sent you this Notice because you have a
right to know about a proposed Settlement of a class action lawsuit and about
all of your options, before the Court decides whether to approve the
Settlement.  If the Court approves the
Settlement and after objections and appeals, if any, are resolved, the Plans
and Settlement Administrator appointed by the Court will make the payments that
the Settlement allows.


 


This package explains the lawsuit, the Settlement,
your legal rights, what benefits are available, who is eligible for them, and
how to get them.  The Court in charge of
the case is the United States District Court for the District of Minnesota, and
the case is known as In re Xcel Energy, Inc. ERISA Litigation, Case Nos.
03-2218 and 03-2219.  The people who sued
are called Plaintiffs, and the company and the people they sued, Xcel and
several of its officers and directors, are called the Defendants.


 


2.                                      How
do I get more information?


 


You can call (866) 890-4864 toll-free, or visit the
website www.xcelerisasettlement.com, where you will find answers to common questions
about the Settlement, plus other information to help you determine whether you
are a Class member and whether you are eligible for a payment.  Please do not contact the Court, Xcel, or
Vanguard, the Plans’ recordkeeper.  They
will not be able to answer your questions.


 


3.                                      What
is this lawsuit about?


 


In two Complaints filed in 2002, the Plaintiffs
alleged that the Defendants breached their fiduciary duties and otherwise
violated ERISA, by using employer and employee contributions to the Plans to
purchase Xcel common stock at a time when, according to Plaintiffs, the stock
was an unsuitable and imprudent investment for the Plans.  Plaintiffs further allege that Defendants
violated ERISA by misrepresenting to Plaintiffs and participants in the Plans
the financial status of Xcel and, consequently, the true value of its
stock.  The Complaints seek to recover
from the Defendants losses to the Plans, and indirectly, to their participants
and beneficiaries, caused by Defendants’ alleged conduct.  The Complaints sought recovery for these
alleged losses, in addition to attorneys’ fees and expenses, and the costs of
the litigation.


 


In the Motion to Dismiss the Complaint that they filed
on December 20, 2002, Defendants denied each of the claims and allegations of wrongdoing
in the Complaints, and asked the court to dismiss all of the Plaintiffs’
claims.  On July 21, 2004, the Court
partially granted and partially denied the motion to dismiss, and the
Plaintiffs and Defendants have engaged in an extensive exchange of information
about the claims and defenses since that time, through the court-supervised
discovery process.  Defendants
specifically deny, among other things, the allegations that they breached any
fiduciary duties or any other provisions of ERISA in connection with the
acquisition or retention of Xcel stock by the Plans during the Class Period, or
before, and deny that they in any way misrepresented the financial performance
of Xcel or the value of its stock either directly or indirectly to participants
in the Plans.  Defendants deny that
Plaintiffs or the Plans are entitled to any relief of any kind.


 


4.                                      Why
is this a class action?


 


In a class action, one or more persons called Class
Representatives sue on behalf of people who have similar claims.  All of these people who have similar claims
make up the Class and are Class members. 
One court resolves the issues for all Class members.  Because the wrongful conduct alleged by Plaintiffs
in this case affected a large group of people in a similar way, Plaintiffs
filed their Complaints as class actions.


 


3





















 


5.                                      Why
is there a Settlement?


 


The Court has not decided in favor of Plaintiffs or
Defendants.  Instead, both sides agreed
to a Settlement.  By agreeing to a Settlement,
the parties avoid the costs and risks of a trial, and the Class will get
compensation.  The Class Representatives
and their attorneys believe that the Settlement is best for all Class members.


 


6.                                      How
do I know if I am part of the Settlement?


 


The Court has conditionally certified this case as a
class action, in which everyone who fits the following description is a Class
Member:


 


All persons who were participants or beneficiaries
under the Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans or the
New Century Energies Employees’ Savings and Stock Ownership Plan for Bargaining
Unit and Former Non-Bargaining Unit Employees during any portion of the Class
Period (September 23, 1999, to March 31, 2003, inclusive) and who had Xcel
common stock allocated to their account in the Plans at any time during the
Class Period, except for any person named as an individual Defendant in the
litigation and their immediate family members.


 


7.                                      Are
there exceptions to being included?


 


You are not a Class member if you were named as a
Defendant.  Also, immediate family
members of named Defendants are not in the Class.


 


8.                                      I’m
still not sure if I’m included


 


If you are still not sure whether you are included,
you can ask for free help.  Please call
toll-free (866) 890-4864 or visit www.xcelerisasettlement.com


 


9.                                      Can
I exclude myself from the Settlement?


 


In some class actions, class members have the
opportunity to exclude themselves from a Settlement.  This is sometimes referred to as “opting out”
of a Settlement.  You do not have the
right to exclude yourself from the Settlement in this case.  This case was certified under Fed. R. Civ. P.
23(b)(l) and (b)(2) as a “non opt-out” class action because of the way ERISA
operates.  Breach of fiduciary duty
claims must be brought by participants on behalf of the Plans, and any judgment
or resolution necessarily applies to all participants and beneficiaries of the
Plans.  As such, it is not possible for
any participants or beneficiaries to exclude themselves from the benefits of
the Settlement.  Therefore, you (as well
as the Plaintiffs, the Plans, the Plans’ fiduciaries, and any member of the
Settlement Class, whether acting on their own behalf or on behalf of any
persons they represent) will be bound by any judgments or orders that are
entered in this Action, and, if the Settlement is approved, you will be deemed
to have released each and all of the Defendants and all their related parties,
each and every member of the Settlement Class, and Class Counsel from any and all
claims, demands, damages, defenses, rights, liabilities, and causes of action
in law or equity whatsoever (whether known or unknown, matured or unmatured,
accrued or unaccrued, fixed or contingent, liquidated or unliquidated) arising
under federal or state or any other source of law, based upon or arising out of
or relating in any way to the acquisition, disposition, or retention by the
Plaintiffs, the Plans, the Plans’ fiduciaries, or any members of the Settlement
Class of Xcel stock during the Class Period, including, but not limited to,
claims which relate directly or indirectly to the facts, transactions, events,
occurrences, acts, disclosures, statements, omissions, or failures to act which
were alleged or could have been alleged in any of the Complaints filed in the
Action, or which are based on or arise out of or in any way relate to
communications with participants or beneficiaries directly or indirectly
pertaining to Xcel stock or are otherwise included in the release in the
Settlement, other than your right to obtain the relief provided to you, if any,
by the Settlement.


 


The release to be granted if the proposed Settlement
is approved does not include any claims that have been asserted under the state
or federal securities laws by the Plans or the Plans’ fiduciaries or any
individual member of the Class directly or derivatively in the actions
captioned In re Xcel Energy, Inc. Securities Litigation, Master File No.
02-2677,


 


4





















 


or Gottlieb v. Xcel Energy Inc., et al., Case
No. 02-2931, both pending in the United States District Court for the District
of Minnesota, nor will the release preclude the Plans or members of the Class
from participating in the proposed settlement of In re Xcel Energy, Inc. Securities
Litigation, to the extent they may be eligible to do so.


 


Although you cannot opt out of Settlement, you can
object to the Settlement and ask the Court not to approve the Settlement.  See question 17 on page 6.


 


THE SETTLEMENT BENEFITS—WHAT YOU GET


 


10.                               What
does the Settlement provide?


 


Defendants have agreed to pay $8 million to resolve
Plaintiffs’ claims against them.  The
payment is called the Settlement Fund. 
Certain fees and expenses, including those incurred by Plaintiffs’
Counsel that are approved by the Court, will be deducted from the Settlement
Fund.  The remaining amount is called the
Net Settlement Fund.


 


Xcel also has agreed, subject to the requirements of
its collective bargaining agreements, to undertake to amend the Plans to permit
each participant with at least five years of service to direct the investment
of his or her ESOP accounts in the Plans, in the same manner and among the same
investment alternatives as are available for investment of employee
contributions to the Plans.  Additionally,
this Settlement preserves your rights to participate in the proposed settlement
of the In re Xcel Energy, Inc. Securities Litigation, to the extent you
are eligible.


 


11.                               How
much will my payment be?


 


Your share of the Settlement Fund will depend on the
number of shares of Xcel common stock you held in the Plans during the Class
Period, and the amount that you lost as a result of this holding, as compared
to the amounts other Plan participants lost. 
The formula will take into account your purchases or sales of Xcel stock
in your Plan account.  The more you lost
because of holding Xcel stock in your Plan account, the larger your share of
the Net Settlement Fund will be.  Your
share of the Net Settlement Fund, however, will be less than your actual
losses.  You are not responsible for
calculating the amount you may be entitled to receive under the Settlement —
this will be done by the Settlement Administrator.


 


Your settlement amount will be calculated in three
steps as follows:


 


A.                                    Net
Loss Calculation


 


If you have records reflecting all purchases or sales
of Xcel stock in your Plan account during the Class Period, you can estimate
what is called your Net Loss by performing the following calculation as to your
common stock:  [Value of (50% of the number
of shares that had been held in the Plans on September 23, 1999 [Adjusted for
the 1.55/share exchange of Xcel for NCE shares at the time of the merger],
valued at the December 4, 2001 closing price/share of $27.56)) less (Value of those same shares on
the earlier of the March 31, 2003 closing price of $12.82/share or
Participant’s last day of participation in the Company Stock Fund at the
closing price on the day)] PLUS
[(Purchase price of all company stock purchased from September 23, 1999 through March 31, 2003) less (Value
of all this purchased company stock still held on the earlier of March 31, 2003
or Participant’s last day of participation in the Company Stock Fund at the
closing price on the appropriate day)] MINUS [Sale
price of all company stock sold during the period of September 23, 1999 through March 31, 2003].


 


B.                                    Net
Loss Percentage Calculation


 


If your Net Loss was more than $25, the Settlement
Administrator will determine your net loss percentage by dividing your Net Loss
by the total Net Loss of the Class Members in each Plan.  The entire Net Settlement Fund will be
distributed to Class Members.


 


5





















 


C.                                    Settlement
Payment


 


Your Net Loss percentage will determine your
Settlement payment, by multiplying your net loss percentage by the Net
Settlement Fund.


 


Do not worry if you do not have records that show your
activity in the Plans with respect to Xcel stock.  The Settlement Administrator will make all
calculations for you, and if you are entitled to a payment, will provide you
with a statement showing the amount of your payment.  If you have questions regarding the
settlement or the settlement amount you may receive, please do not contact Xcel
or Vanguard.  Instead, please call
toll-free (866) 890-4864 or visit www.xcelerisasettlement.com.


 


HOW YOU GET A PAYMENT


 


12.                               How
can I get my payment?


 


If you are a Class member and still participate in
either of the Plans, your Settlement proceeds will be deposited directly into
your Plan account.  Your Settlement
proceeds will be paid into the same subaccounts in which you held Xcel
stock.  Settlement amounts that are paid
into subaccounts funded by employee contributions will be initially invested in
the same manner as you direct the investment of contributions to your Plan
account.  Settlement amounts paid into
the ESOP subaccounts in the Plans will be invested initially in the Vanguard
Prime Money Market Fund investment option. 
After the Settlement amounts are paid into your Plan account, you may then
direct those funds to any desired fund option.


 


If you are a Class member and no longer participate in
the Plans, your account will be reinstated in the Plan in which you previously
participated for the sole purpose of receiving your Settlement proceeds.  Your Settlement proceeds will be invested
initially in the Vanguard Prime Money Market Fund investment option, and they
will thereafter be distributed in accordance with the applicable provisions of
the Plans.


 


13.                               When
will I get my payment?


 


The Court will hold a hearing on                  ,2005,
to decide whether to approve the Settlement. 
If Judge Doty approves the Settlement, appeals may follow.  It is always uncertain whether these appeals
can be resolved, and resolving them can take time, perhaps more than a
year.  Please be patient.


 


THE LAWYERS REPRESENTING YOU


 


14.                               Do
I have a lawyer in this case?


 


The Court appointed the following law firms to
represent you and other Class Members: 
Branstetter, Kilgore, Stranch & Jennings; Whatley Drake, L.L.C.;
Barrett, Johnston & Parsley; Robbins Umeda & Fink, LLP; Brauer,
Buescher, Goldhammer, Kelman & Dodge; Gilbert & Sackman, a Law
Corporation; and Cochrane & Bresnahan, PA. 
These lawyers are called Class Counsel. 
You will not be charged for these lawyers.  These lawyers will be paid from the
Settlement Fund.  If you want to be
represented by your own lawyer, you may hire one at your own expense.


 


15.                               How
will the lawyers be paid?


 


Class Counsel will ask the Court for attorneys’ fees
and expenses of up to one-third of the Settlement Fund.  The Court may award less than these amounts.


 


6





















 


OBJECTING TO THE SETTLEMENT


 


You can tell the Court that you do not agree with the
Settlement or some part of it.


 


16.                               What
does it mean to object?


 


Objecting is simply telling the Court that you do not
like something about the Settlement.  It
will not have any bearing on your right to Settlement proceeds, if the
Settlement is approved.


 


17.                               How
do I tell the Court that I don’t like the Settlement?


 


You can object to the Settlement if you dislike any
part of it, or if you disagree with Class Counsel’s request for attorneys’ fees
and reimbursement of expenses.  You can
give reasons why you think the Court should not approve the Settlement or the
request for attorneys’ fees or expenses. 
The Court will consider your views. 
To object, you must send a letter saying that you object to the
Settlement in In re Xcel Energy, Inc. ERISA Litigation, Case Nos. 03-2218 and
03-2219.  Be sure to include your name,
address, telephone number, your signature, a detailed statement of your
specific objections to any matter before the Court, and all the grounds for
your objections to the Settlement.  You
must also include all documents you wish the Court to consider.  Mail the objection and any supporting papers
to the three different places below postmarked no later than                  ,
2005.  You must mail your objection by
this date.  If you fail to do so, the
Court will not consider your objections.


 


	
  Court

  	
   

  	
  Class
  Counsel

  	
   

  	
  Defense
  Counsel

  
	
  Clerk of the Court

  United States District Court

  District of Minnesota

  U.S. Courthouse

  300 S. 4th Street

  Minneapolis, MN 55415

  	
   

  	
  Jane B. Stranch

  Branstetter, Kilgore, Stranch, &

  Jennings

  227 Second Avenue, North 4th Floor

  Nashville, TN 37201-1631

  	
   

  	
  John M. Newman, Jr.

  Jones Day

  North Point

  901 Lakeside Avenue

  Cleveland, OH 44114

  



 


 


ALL PAPERS SUBMITTED MUST INCLUDE THE CASE NUMBERS 03-2218
AND 03-2219 ON THE FIRST PAGE.


 


No one will be entitled to object to the proposed
Settlement, to the final judgment to be entered in this Action, to any award of
attorneys’ fees or expenses, or otherwise to be heard, except by filing and
serving written objections (and, if you wish to be heard at the Settlement
Fairness Hearing, a written notice of intention to appear, as described below)
in the form and manner, and by the date, required by this Notice.  Any person who fails to object in the manner
and by the date required shall be deemed to have waived any objections, and
shall forever be barred from raising such objections in this or any other
action or proceeding.


 


THE COURT’S FAIRNESS HEARING


 


The Court will hold a hearing to decide whether to
approve the Settlement.  You may attend
and you may ask to speak, but you are not required to do so.


 


18.                               When
and where will the Court decide whether to approve the Settlement?


 


The Court will hold a Fairness Hearing on                  ,
2005, at the United States District Court for the District of Minnesota, U.S.
Courthouse, 300 S. 4th Street, Minneapolis, MN 55415, in Courtroom     ,
      Floor.  At
this hearing, the Court will consider whether the Settlement is fair,
reasonable, and adequate.  If there are
objections, the Court will consider them. 
Judge Doty will listen to people who have asked to speak at the
hearing.  The Court will also decide what
amount of Class Counsel fees and expenses will be paid from the Settlement
Fund.  After the hearing, the Court will
decide whether to approve the Settlement. 
We do not know how long these decisions will take.


 


7





















 


Pending the final determination of whether the Settlement should be
approved, the parties, all members of the Class, the Plans, and the Plans’
fiduciaries are each barred and enjoined from instituting or prosecuting any
action that asserts any Released Claim against any Released Person.


 


19.                               Do
I have to go to the fairness hearing?


 


No.  Plaintiffs’
Counsel will answer questions Judge Doty may have.  You are, however, welcome to attend at your
own expense.  If you send an objection,
you do not have to go to Court to talk about it.  As long as your objection is postmarked by            ,
the Court will consider it.  You also may
pay your own lawyer to attend, but it is not required.


 


20.                               May
I speak at the hearing?


 


You may ask the Court for permission to speak at the
Fairness Hearing.  To do so, you must
send a letter saying that it is your “Notice of Intention to Appear at Fairness
Hearing in In re Xcel Energy, Inc. ERISA Litigation.”  The letter must include the names of any
witnesses you may call to testify at the Fairness Hearing and must identify any
documents you intend to introduce into evidence at the Fairness Hearing.  Be sure to include your name, address,
telephone number, and your signature. 
Your Notice of Intention to Appear must be postmarked no later than                ,
2005, and sent to the Clerk of the Court, Class Counsel, and Defense Counsel,
at the three addresses indicated above in question 17.


 


IF YOU DO NOTHING


 


21.                               What
happens if I do nothing at all?


 


The Settlement does not require you to do anything,
and there is no penalty for doing nothing at all.  If you are entitled to a Settlement payment,
you will receive a payment as discussed in question 11 on page 5.


 


GETTING MORE INFORMATION


 


22.                               Are
there more details about the Settlement?


 


This notice summarized the proposed Settlement.  More details are in the parties’ Stipulation
and Settlement Agreement.  You can get a
copy of the Agreement by visiting www.xcelerisasettlement.com, or you can
inspect the papers filed in this Action at the office of the Clerk of Court,
U.S. Courthouse, 300 S. 4th Street, Minneapolis, MN, during normal business
hours.  If you have questions about the
Settlement, call toll-free (866) 890-4864.


 


Remember, please do not call the Court, Xcel, or
Vanguard.  They cannot help you with
additional information.


 


DATE:                ,
2005


 


8





















 


EXHIBIT B


 


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA


 


NOTICE OF CLASS ACTION SETTLEMENT


 


	
  In re Xcel Energy, Inc. ERISA Litigation

  	
  )

  
	
  Case Nos. 03-2218 and 03-2219

  	
  )

  
	
   

  	
  )

  



 


TO ALL MEMBERS OF THE FOLLOWING CLASS


 


All persons who were participants or beneficiaries in
the Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans or the New
Century Energies Employees’ Savings and Stock Ownership Plan for Bargaining
Unit and Former Non-Bargaining Unit Employees and who had Xcel common stock
allocated to your account at any time from September 23, 1999, to March 31,
2003.


 


PLEASE READ THIS NOTICE CAREFULLY.

A FEDERAL COURT AUTHORIZED THIS NOTICE.

THIS IS NOT A SOLICITATION.


 


A
Settlement has been proposed in a class action lawsuit brought by Plaintiffs on
behalf of the Xcel Energy Inc. 401(k) Savings Plan and its predecessor plans
and the New Century Energies Employees’ Savings and Stock Ownership Plan for
Bargaining Unit and Former Non-Bargaining Unit Employees against Xcel and
certain of its officers and directors for alleged breaches of fiduciary duty
under the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”).  The Settlement will provide
$8 million to fully resolve the lawsuit. 
Persons who were participants or beneficiaries of either plan who had
Xcel common stock allocated to their accounts between September 23, 1999, and
March 31, 2003 (“Class Period”) may be entitled to a share of the
Settlement.  Xcel also has agreed,
subject to the requirements of its collective bargaining agreements, to
undertake to amend the Plans to loosen restrictions on diversification of Xcel
stock held in participants’ accounts in the ESOP portions of the Plans.


 


The
United States District Court for the District of Minnesota authorized this
notice. The Court will hold a hearing to decide whether to approve the
Settlement, so that the benefits may be paid.


 


WHO IS INCLUDED?


 


You
are a Class member and could get benefits if you had Xcel common stock
allocated to your Plan account during the Class Period.  Persons named as individual Defendants in the
lawsuit, as well as their immediate family members, are not Class members.


 


1





















 


WHAT IS THIS
ABOUT?


 


The
lawsuit claimed that the Defendants breached their duties under ERISA by
offering Xcel common stock as an investment option in the Plans and investing
and retaining the Plans’ assets in Xcel stock at a time when it was an
unsuitable and imprudent investment for the Plans, providing misleading
information regarding the financial condition of Xcel and the prudence of
investing in its stock, and failing to take appropriate actions to protect
participants and beneficiaries from losses to the Plans that were caused by
these actions.  Defendants deny that they
breached any fiduciary duties or any other provisions of ERISA in connection
with Xcel stock in the Plans, or that they misrepresented the financial
performance of Xcel or the value of Xcel stock to participants in the
Plans.  The Court did not decide which
side was right, but both sides agreed to the Settlement to ensure a resolution,
avoid the cost and risk of litigation, and to provide benefits to Class
members.


 


WHAT DOES THE
SETTLEMENT PROVIDE?


 


Xcel
agreed to create a fund of $8 million to be divided among the Class
members.  A Settlement Agreement,
available at the website below, describes all of the details about the proposed
Settlement.  Your share of the fund, if
any, will depend on the decline in value of shares of Xcel common stock held in
your Plan account during the Class Period, as compared to the decline in value
of shares of Xcel common stock held by other Plan participants in their
accounts.


 


HOW DO YOU RECEIVE
A PAYMENT?


 


If you
are a Class member and are entitled to a share of the Settlement amount
according to the Agreement, you will not be required to do anything to receive
a payment.  Payment will be made directly
to your Plan account or, if you no longer are a participant in one of the
Plans, your account will be reinstated in the Plan in which you participated
for the sole purpose of distributing your Settlement proceeds.  Either way, the Plans will notify you of the
amount of your payment.


 


CAN I OPT OUT OF
THE SETTLEMENT?


 


You do
not have the right to exclude yourself from the Settlement in this case.  The case was certified under Federal Rules of
Civil Procedure 23(b)(1) and (b)(2) as a “non opt-out” class action because of
the way ERISA operates.  Therefore, you
will be bound by any judgments or orders that are entered in this Action, and, if
the Settlement is approved, you will be deemed to have released all of the
Defendants and their related parties, each and every member of the Settlement
Class, and Class counsel from all claims that were or could have been asserted
in this case or are otherwise included in the release in the Settlement, other
than your right to obtain the relief provided to you, if any, by the
Settlement.


 


The
Court will hold a hearing in this case (In re Xcel Energy, Inc. ERISA
Litigation, Case Nos. 03-2218 and 03-2219) on                     ,
2005, at the United States Courthouse, 300 S. 4th
Street, Minneapolis, Minnesota, to consider whether to approve the Settlement
and a request by the lawyers representing all Class members (Branstetter,
Kilgore, Stranch & Jennings; Whatley Drake, L.L.C.; Barrett, Johnston &
Parsley; Robbins Umeda & Fink, LLP; Brauer,


 


2





















 


Buescher, Goldhammer, Kelman & Dodge; Gilbert
& Sackman, a Law Corporation; and Cochrane & Bresnahan, P.A.) for
attorneys’ fees and expenses.  The fees
and expenses, if approved, will be paid from the Settlement Fund.  You may ask to appear at the hearing, but it
is not required.  Although you cannot opt
out of the Settlement, you can object to all or any part of the Settlement.


 


For
more information regarding anything in this Notice, call toll-free (866)
890-4864, or visit www.xcelerisasettlement.com.


 


3





















 


EXHIBIT C


 


UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA


 


	
  In re Xcel Energy, Inc. Securities, Derivative

  & ERISA Litigation

  	
  Master File: Civil 02-2677 (DSD/FLN)

  
	
   

  	
  MDL No. 1511

  
	
  This Document Relates to Case Nos. 03-2218

  and 03-2219, the “ERISA Actions.”

  	
   

  



 


ORDER PRELIMINARILY APPROVING SETTLEMENT, CONDITIONALLY

CERTIFYING CLASS FOR PURPOSES OF SETTLEMENT, APPROVING FORM AND


MANNER OF NOTICE, AND SCHEDULING HEARING ON FAIRNESS OF


SETTLEMENT PURSUANT TO FED. R. CIV. P. 23(e)


 


The
motion of Plaintiffs for an Order (1) preliminarily approving the settlement of
the above-captioned action pursuant to the terms and conditions of the
Stipulation and Agreement of Settlement of ERISA Actions (the “Agreement”),
dated                    ;
(2) approving the form of Notice and directing the manner of delivery and
publication of the Notice; (3) conditionally certifying a non-opt-out class
under Fed. R. Civ. P. 23(a) and 23(b)(l) and (b)(2) for purposes of the
Settlement and the final approval thereof; and (4) scheduling a hearing to
consider the fairness of the Settlement pursuant to Fed. R. Civ. P. 23(e) and
to consider the application for fees and expenses by Plaintiffs’ Counsel
pursuant to the common fund doctrine, having come before the Court, and upon
consideration of the Agreement and exhibits attached thereto, Plaintiffs’
motion and the pleadings and records on file, and good cause appearing, it is
hereby ORDERED as follows:


 


1.                                                    To
the extent not otherwise defined herein, all capitalized terms shall have the
same meaning as used in the Agreement.


 





















 


2.                                                    The
Court has jurisdiction over the subject matter of this Action and over all
parties to this Action, including the Plans, the Plans’ fiduciaries, all
members of the Settlement Class, and all Defendants.


 


3.                                                    The
Settlement documented in the Agreement is hereby PRELIMINARILY APPROVED as
appearing on its face to be fair, reasonable, and adequate; to have been the
product of serious, informed, and extensive arms’ length negotiations among the
parties; and for there to have been a genuine controversy between the parties
involving the Defendants’ compliance with the fiduciary and other requirements
of ERISA.


 


4.                                                    The
Court finds that the form of Notice proposed by Plaintiffs is hereby
APPROVED.  Such Notice shall be (a)
mailed by first-class mail, postage prepaid, to the last known address of all
known Class members within 30 days of entry of this Order; and (b) published in
the Minneapolis Star-Tribune, the St. Paul Pioneer Press, and USA Today or
another national publication mutually agreed upon by counsel within 30 days of the
entry of this Order.  Plaintiffs’ Counsel
will ensure that the Notice and Publication Notice shall be handled in the
manner set forth in and required by the Agreement, and shall file an affidavit
attesting to the mailing of the Notice and publication of the Publication
Notice with the Court at or before the Settlement Fairness Hearing.


 


5.                                                    The
form and manner of delivery and publication of the Notice and Publication
Notice directed hereby and in the Agreement meet the requirements of Fed. R. Civ.
P. 23 and due process, constitute the best notice practicable under the
circumstances, and shall constitute due and sufficient notice to all members of
the Class.


 


6.                                                    The
Court hereby PRELIMINARILY APPROVES the maintenance of this Action as a class
action for purposes of the Settlement pursuant to Fed. R. Civ. P. Rule 23(a)
and


 


2





















 


23(b)(l) and (b)(2). 
Specifically, the Court FINDS that (a) the number of members of the
Class is so numerous that joinder of all members thereof is impracticable; (b)
there are questions of law and fact common to the Class; (c) the claims of the
named Plaintiffs are typical of the claims of the Class; (d) the named
Plaintiffs will fairly and adequately represent the interests of the Class; and
(e) the prosecution of separate actions by individual members of the Class
would create a risk of (i) inconsistent or varying adjudications with respect
to individual members of the Class that would establish incompatible standards
of conduct for Defendants; (ii) adjudications with respect to individual
members of the Class which would as a practical matter be dispositive of the
interests of the other members of the Class; (iii) Defendants have acted or
refused to act on grounds generally applicable to the class; (iv) Plaintiffs
seek relief which is predominantly injunctive or declaratory in nature, and
monetary relief sought therewith flows directly from liability to the class as
a whole on the claims forming the basis of the injunctive or declaratory
relief.  Also for purposes of the
proposed Settlement only, the Court further finds and determines, pursuant to
Rule 23(a) of the Federal Rules of Civil Procedure, that Donald Newcome, Leonard
Banks and Gene Barday have and will adequately represent the Class as Class
Representatives, and are hereby approved as Class Representatives.


 


7.                                                    Accordingly,
for purposes of the Settlement only, this Action is hereby conditionally
CERTIFIED as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(1) and
(b)(2), with the Class defined as follows:


 


All
Persons who were participants or beneficiaries under the Plans at any time
between September 23, 1999, and March 31, 2003, inclusive, and who had Xcel
common stock allocated


 


3





















 


to their Plan account at any time during that period,
other than persons who are named as individual Defendants in the Complaints and
their immediate family members.


 


8.                                                    The
Court appoints as counsel for the Class the firms of Branstetter, Kilgore,
Stranch & Jennings; Whatley Drake, L.L.C.; Barrett, Johnston & Parsley;
Robbins Umeda & Fink, LLP; Brauer, Buescher, Goldhammer, Kelman &
Dodge; Gilbert & Sackman, a Law Corporation; and Cochrane & Bresnahan,
PA.  Based on the proceedings in this
matter to date and the documents on file with the Court, the Court concludes
that Class counsel has and will represent the Class fairly and adequately.  Appointment of the above-named counsel as
Class counsel is supported by the significant work that Class counsel has
performed in identifying and investigating the potential claims in this action,
the experience of Class counsel in handling class actions and ERISA actions,
Class counsel’s knowledge of ERISA, and the resources that Class counsel has
committed to the prosecution of this action.


 


9.                                                    A
hearing (the “Settlement Fairness Hearing”) pursuant to Fed. R. Civ. P. 23(e)
is hereby SCHEDULED to be held before the Court on                                                ,
2005, at   .m. in Courtroom        for
the following purposes:


 


a.                                       to
determine whether the proposed Settlement is fair, reasonable, and adequate and
should be approved by the Court;


 


b.                                      to
determine finally whether this Action satisfies the applicable prerequisites
for class action treatment under Fed. R. Civ. P. 23(a) and 23(b)(1) and (b)(2)
for purposes of the Settlement;


 


c.                                       to
determine whether the Settlement has been negotiated at arm’s length by the
Plaintiffs and their counsel on behalf of the Plans, the Plans’ fiduciaries,
and the


 


4





















 


Settlement Class, whether the Plaintiffs have acted
independently and that their interests are identical to the interests of the
Plans, the Plans’ fiduciaries, and the Settlement Class, and for the Court to
determine that the negotiations and consummation of the Settlement by the
Plaintiffs on behalf of the Plans, the Plans’ fiduciaries, and the Settlement
Class do not constitute “prohibited transactions” as defined by ERISA §§ 406(a)
or (b);


 


d.                                      to
determine whether the Order Approving Settlement as provided under the
Agreement should be entered and whether the Released Parties should be released
of and from the Released Claims, as provided in the Agreement;


 


e.                                       to
determine whether the bar order provisions in the Agreement should be entered
barring and enjoining (a) any action against Defendants, their Related Parties,
Defendants’ counsel, any member of the Settlement Class, or Class Counsel based
on the amount of any Settlement Claim issued pursuant to the Court-approved
Plan of Allocation, and (b) all Plaintiffs, the Plans, the Plans’ fiduciaries,
all members of the Settlement Class, all Defendants, and any other party from
instituting or prosecuting, either directly, indirectly, or in a representative
capacity, any other action in any court asserting any Released Claim against
any Released Person;


 


f.                                         to
determine whether the proposed Plan of Allocation of the Settlement Fund is
fair, reasonable, and adequate and should be approved by the Court;


 


g.                                      to
determine whether Plaintiffs’ Counsel’s application for an award of attorneys’
fees and reimbursement of expenses pursuant to the common fund doctrine is
fair, reasonable, and adequate and should be approved by the Court;


 


5





















 


h.                                      to
consider the Class Representatives’ applications for awards of incentive fees
in the amount of $2,000; and


 


i.                                          to
rule upon such other matters as the Agreement contemplates and as the Court may
deem just and proper.


 


10                                                 Any
application by Plaintiffs’ Counsel for attorneys’ fees and reimbursement of
expenses, and all papers in support thereof, shall be filed with the Court and
served on all counsel of record no less than 21 days before the Settlement
Fairness Hearing.


 


11.                                              The
Court having determined preliminarily that this action may proceed as a non-opt
out class action under Fed. R. Civ. P. 23(a) and 23(b)(l) and (b)(2), Class
members shall be bound by any judgment in this action, subject to the Court’s
final determination at the Settlement Fairness Hearing as to whether this
action may so proceed.


 


12.                                              The
Court shall consider comments or objections to the certification of the Class under
Fed. R. Civ. P. 23(a) and 23(b)(1) and (b)(2), the Settlement, the Plan of
Allocation, the award of attorneys’ fees and reimbursement of expenses, and the
incentive payment to the Class Representatives at the Settlement Fairness
Hearing, but only if such comments or objections and any supporting papers are
filed with the Clerk of the Court, United States District Court for the
District of Minnesota, 300 S. 4th St., Minneapolis, Minnesota, no less than 14
days before the Settlement Fairness Hearing, and by the same date, copies of
all such papers are served on each of the following persons:


 


Jane B. Stranch

BRANSTETTER, KILGORE, STRANCH & JENNINGS

227 Second Avenue, North, 4th Floor

Nashville, TN 37201-163 1

615.254.8801  / 615.255.5419 (fax)

email: jbs@branstetterlaw.com


 


6





















 


John M. Newman, Jr.

JONES DAY

North Point


901 Lakeside Avenue

Cleveland, OH  44114

216.586.3939 / 216.579.0212 (fax)

email: jmnewman@jonesday.com


 


Written objections must provide a detailed statement
of the objector’s specific objections to any matter before the Court and all
the grounds therefor, and must include all documents such person wishes the
Court to consider.


 


13.                                              Attendance
at the hearing is not necessary; however, persons wishing to be heard orally in
opposition to the approval of the Settlement, the Plan of Allocation, the
requests for attorneys’ fees and reimbursement of expenses, or the request for
an incentive payment to the Class Representatives must state in their written
objection(s) their intention to appear at the hearing.  Such persons must identify in their written
objection(s) the names of any witness they may call to testify and any exhibits
they intend to introduce into the evidence at the Settlement Fairness
Hearing.  Class members do not need to
appear at the hearing or take any other action to indicate their approval of
the Settlement.


 


14.                                              No
person shall be entitled to object to the proposed Settlement, to the final
judgment to be entered in this Action, to any award of attorneys’ fees or
expenses, or otherwise to be heard, except by filing and serving written
objections (and, if such person wishes to be heard at the Settlement Fairness
Hearing, a written notice of intention to appear) in the form and manner, and
by the date, required by the Notice.  Any
person who fails to object in the manner and by the date required shall be
deemed to have


 


7





















 


waived any objections, and shall forever be barred
from raising such objections in this or any other action or proceeding.


 


15.                                              Pending
final determination of whether the Settlement should be approved, the parties,
all members of the Class, the Plans, and the Plans’ fiduciaries are each hereby
BARRED AND ENJOINED from instituting or prosecuting any action that asserts any
Released Claim against any Released Person.


 


16.                                              If
the Agreement is terminated pursuant to the provisions of Section 13.8 thereof,
this Preliminary Order shall be null, void, and of no further force or effect,
and each party to the Agreement shall be restored to his, her, or its
respective position as it existed prior to the execution of the Agreement.


 


17.                                              The
Court hereby retains jurisdiction for purposes of implementing the Agreement
and reserves the power to enter additional orders to effectuate the fair and
orderly administration and consummation of the Settlement and reimbursement of
Administrative Expenses, as may from time to time be appropriate, and
resolution of any and all disputes arising thereunder.


 


SO
ORDERED this             
day of             ,
2005.


 


 


	
   

  	
   

  
	
   

  	
  HON.
  DAVID S. DOTY

  
	
   

  	
  UNITED
  STATES DISTRICT COURT

  
	
   

  	
  DISTRICT
  OF MINNESOTA

  



 


8





















 


EXHIBIT D


 


UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA


 


	
  In re Xcel Energy, Inc. Securities, Derivative

  & ERISA Litigation

  	
  Master File: Civil 02-2677 (DSD/FLN)

  
	
   

  	
  MDL No. 1511

  
	
  This Document Relates to Case Nos. 03-2218

  and 03-2219, the “ERISA Actions.”

  	
   

  



 


ORDER AND FINAL JUDGMENT


 


This
action came on for a final hearing on a proposed settlement (the “Settlement”)
of this conditionally certified class action and the issues having been duly
heard and a decision having been duly rendered,


 


IT IS HEREBY
ORDERED AND ADJUDGED:


 


1.                                                    To
the extent not otherwise defined herein, all terms shall have the same meaning
as used in the Stipulation and Agreement of Settlement of ERISA Actions dated                       
(the “Agreement”).


 


2.                                                    The
Court has jurisdiction over the subject matter of this Action and over all
parties to this Action, including the Plans, the Plans’ fiduciaries, all
members of the Settlement Class, and all Defendants.


 


3.                                                    The
Court hereby approves and confirms the Settlement embodied in the Agreement as
being a fair, reasonable, and adequate settlement and compromise of this
Action, adopts the Agreement as its judgment, and orders that the Agreement
shall be herewith effective, binding, and enforced according to its terms and
conditions.  Among the factors considered
by the Court in concluding that the Settlement is fair, reasonable,


 





















 


and adequate are: 
(1)  that cases involving
investment of ERISA plan assets in company stock represent an unsettled and
developing area of the law; (2) that the Defendants have asserted numerous
substantive defenses, including the arguments that a “presumption of prudence”
applies to investment of plan assets in company stock; (3) that Settlement
removes the risks, delay, and costs to the Plans and the Class associated with
continued litigation and delivers assured benefits to the Class (while
preserving Class members’ rights to participate in the proposed settlement of
the Securities Action to the extent they may be eligible under that settlement
agreement); and (4) that the structural changes to the Plans anticipated by the
Agreement provide significant economic benefit to Class members, in addition to
the cash payments to be made under the Agreement.


 


4.                                                    The
Court determines that the Settlement has been negotiated vigorously and at
arm’s length by the Plaintiffs and their counsel on behalf of the Plans and the
Settlement Class and further finds that, at all times, the Plaintiffs have
acted independently and that their interests are identical to the interests of
the Plans and the Settlement Class, and that Plaintiffs have at all times
adequately represented the Class. 
Accordingly, the Court determines that the negotiation and consummation
of the Settlement by the Plaintiffs on behalf of the Plans, the Plans’
fiduciaries, and the Settlement Class do not constitute “prohibited
transactions” as defined ERISA §§ 406(a) or (b).


 


5.                                                    The
Court determines that the Notice transmitted to the Settlement Class, pursuant
to the Preliminary Approval Order concerning the Settlement and the other
matters set forth therein, is the best notice practicable under the
circumstances and included individual notice to all members of the Settlement
Class who could be identified through reasonable efforts.  Such Notice provides valid, due, and
sufficient notice of these


 


2





















 


proceedings and of the matters set forth therein,
including the Settlement described in the Agreement, to all persons entitled to
such notice, and such Notice has fully satisfied the requirements of Rule 23,
Fed. R. Civ. P. and the requirements of due process.


 


6.                                                    The
Court hereby approves the maintenance of this Action as a class action for
purposes of the Settlement pursuant to Fed. R. Civ. P. Rule 23(a) and 23(b)(l)
and (b)(2).  Specifically, the Court
finds that (a) the number of members of the Class is so numerous that joinder
of all members thereof is impracticable; (b) there are questions of law and
fact common to the Class; (c) the claims of the named Plaintiffs are typical of
the claims of the Class; (d) the named Plaintiffs will fairly and adequately
represent the interests of the Class; and that (e) (i) the prosecution of
separate actions by individual members of the Class would create a risk of
inconsistent or varying adjudications with respect to individual members of the
Class that would establish incompatible standards of conduct for Defendants;
(ii) adjudications with respect to individual members of the Class which would
as a practical matter be dispositive of the interests of the other members of
the Class; (iii) Defendants have acted or refused to act on grounds generally
applicable to the class; (iv) Plaintiffs seek relief which is predominantly
injunctive or declaratory in nature, and monetary relief sought therewith flows
directly from liability to the class as a whole on the claims forming the basis
of the injunctive or declaratory relief.


 


7.                                                    The
Court hereby approves the maintenance of the Action as a class action for
settlement purposes only pursuant to Fed. R. Civ. P. Rule 23(a), 23(b)(1) and
(b)(2), with the class being defined as follows:


 


All Persons who were
participants or beneficiaries under the Plans at any time between September 23,
1999, and March 31, 2003, inclusive, and who had Xcel common stock allocated to
their Plan account at any time during that period, other than persons who are


 


3





















 


named as individual
Defendants in the Complaints and their immediate family members.


 


8.                                                    The
Court hereby dismisses the Complaints and the Action against the Defendants
with prejudice and on the merits, and without taxation of costs in favor of or
against any party.


 


9.                                                    As
of the date of Final Approval of Settlement (as defined in the Agreement), the
Plaintiffs, the Plans, the Plans’ fiduciaries, and each member of the Class on
their own behalf and on behalf of their respective heirs, executors,
administrators, past and present partners, officers, directors, agents,
attorneys, predecessors, and assigns, shall have released, and shall be deemed
to have released, each and all of the Released Persons from the Released
Claims, and the Defendants shall be deemed to have released the Plaintiffs, the
Settlement Class and Class Counsel from the Released Claims, in accordance with
the terms of the Agreement.


 


10.                                              The
Plaintiffs, Plans, the Plans’ fiduciaries, all members of the Settlement Class,
and any other party are hereby permanently barred and enjoined from instituting
or prosecuting, either directly, indirectly, or in a representative capacity,
any other action in any court asserting any and all Released Claims against any
and all Released Persons.  Defendants are
hereby permanently barred and enjoined from instituting or prosecuting, either
directly, indirectly, or in a representative capacity, any other action in any
court asserting any and all Released Claims against Plaintiffs, the Settlement
Class and Class Counsel.


 


11.                                              All
parties are hereby permanently barred and enjoined from the institution and
prosecution, either directly, indirectly, or in a representative capacity, of
any actions against any Defendants, their Related Parties, Defendants’ Counsel,
any member of the


 


4





















 


Settlement Class, or Class Counsel based on the amount
of any Settlement Claim issued pursuant to the Plan of Allocation approved in
the Final Approval of the Settlement.


 


12.                                              The
Court hereby decrees that neither the Agreement nor the Settlement nor this
Order and Final Judgment is an admission or concession by any Defendant of any
liability or wrongdoing.  This Final
Judgment is not a finding of the validity or invalidity of any of the claims
asserted or defenses raised in this Action. 
Neither the Agreement nor the Settlement nor the Order and Final
Judgment nor the settlement proceedings nor the settlement negotiations nor any
related documents shall be offered or received in evidence as an admission,
concession, presumption or inference against any Defendant in any proceeding,
other than such proceedings as may be necessary to enforce or consummate the
agreement.


 


13.                                              The
Court awards attorneys’ fees and expenses to Plaintiffs, to be paid from the
Settlement Fund pursuant to the common fund doctrine in the amount of $             ,
and awards compensation in the amount of $2,000 to each of the Class
Representatives, such amounts to be paid as set forth in the Agreement.  Except as otherwise provided herein or in the
Agreement, each party shall bear its own fees, expenses, and costs.  Class Counsel shall allocate the award of
attorneys’ fees among counsel for the Class based on their good-faith
assessment of the contribution of such counsel to the prosecution of this
Action.


 


14.                                              Without
affecting the finality of this Judgment, the Court retains jurisdiction for
purposes of implementing the Agreement and reserves the power to enter
additional orders to effectuate the fair and orderly administration and
consummation of the


 


5





















 


Agreement and Settlement and reimbursement of
Administrative Expenses, as may from time to time be appropriate, and
resolution of any and all disputes arising thereunder.


 


LET
JUDGMENT BE ENTERED ACCORDINGLY.


 


SO
ORDERED this            
day of                                  ,
2003.


 


 


	
   

  	
   

  
	
   

  	
  HON.
  DAVID S. DOTY

  
	
   

  	
  UNITED
  STATES DISTRICT COURT

  
	
   

  	
  DISTRICT
  OF MINNESOTA

  



 


6





















 


EXHIBIT E


 


UNITED STATES DISTRICT COURT


DISTRICT OF MINNESOTA


 


	
  In Re Xcel Energy, Inc., Securities, Derivative

  & “ERISA” Litigation

  	
   

  	
  Master File: Civil 02-2677 (DSD/FLN)

  MDL No. 1511

   

  
	
  This Document Relates To Case Nos.

  03-2218 and 03-2219, the “ERISA Actions.”

  	
   

  	
   

  



 


ESCROW AGREEMENT


ERISA LITIGATION


 


This ESCROW AGREEMENT (the “Escrow Agreement”) is entered into in
connection with a Settlement Agreement dated as of                      .


 


I.              RECITALS


 


A.            The parties to this
Escrow Agreement are as follows:


 


1.             The Representative
Plaintiffs named in the above-described action (“Action”), through Plaintiffs’
Co-Lead Counsel.


 


2.             Xcel Energy, Inc.
(“Xcel”) and the Individual Defendants, through their respective counsel
(collectively, the “Settling Defendants”).


 


3.             TCF National Bank
Minnesota, as escrow agent for the Settlement Fund (the “Escrow Agent”).


 


B.            The Representative
Plaintiffs and the Settling Defendants have entered into a Settlement Agreement
in the Action, which Settlement Agreement will provide for a dismissal with
prejudice of the Settled Claims therein in favor of the Settling Defendants in
consideration of, among other things, the payment of the amount specified in
the Settlement Agreement.


 





















 


C.            The parties hereto
have entered into this Escrow Agreement in order to carry out and effectuate
the Settlement Agreement.  The applicable
provisions of the Settlement Agreement, including the definitions of the terms
used therein, are hereby incorporated by reference as though fully set forth in
this Escrow Agreement; provided, however, that the Escrow Agent shall not have
any duties or obligations except those set forth herein.  The provisions of this Escrow Agreement are
to be construed in accordance with the provisions of the Settlement Agreement.


 


D.            Now, therefore, in
consideration of the foregoing and the mutual covenants and considerations
contained herein, the undersigned parties agree as follows:


 


II.            DEPOSITS INTO
ESCROW


 


A.            Pursuant to and in accordance with the Settlement
Agreement, the sum of Eight Million Dollars ($8,000,000) will be deposited with
the Escrow Agent, by wire transfer.  The
$8,000,000 will be held by the Escrow Agent in an interest bearing account for
benefit of plaintiffs and their attorneys.


 


B.            A portion of the
Settlement Fund shall be used to pay the initial costs of administering the
settlement, including without limitation the costs of notifying members of the
Settlement Class and the taxes incurred, if any, as a result of interest
accrued on the Settlement Fund.  Monies
may be disbursed from the Settlement Fund for the purposes stated above at the
written direction of Plaintiffs’ Settlement Counsel, without need for any order
by the Court.  The Escrow Agent shall
have no liability for acting on such written instructions from Plaintiffs’
Settlement Counsel which the Escrow Agent in good faith believes to be
authentic.


 


2





















 


C.            With the exception of
Paragraph B above, the Settlement Fund shall be distributed only by order of
the Court pursuant to the Settlement Agreement filed with the Court.  The Escrow Agent shall be entitled to rely,
as to distributions and withdrawals from the Settlement Fund, on any order of
the Court, notwithstanding that any such order is subsequently reversed,
vacated, remanded, modified or stayed on appeal, except that the Escrow Agent
is not required to comply with any order subsequent to the time it receives
actual notice that such order is stayed for any reason.


 


III.           INTEREST AND
INVESTMENTS


 


A.            Promptly upon receipt
of the funds referred to in Paragraph II(A) the Escrow Agent shall cause such
funds to be invested in a certificate(s) of deposit or other interest-bearing
accounts as approved by Plaintiffs’ Settlement Counsel.  The Escrow Agent may also, at the direction
of Plaintiffs’ Settlement Counsel, establish a savings account to be funded
with such sums as may be directed by Plaintiffs’ Settlement Counsel for
purposes of effectuating the provisions of the Settlement Agreement.


 


B.            All interest earned on
the Settlement Fund shall be added to the Settlement Fund and distributed
pursuant to orders of the Court.


 


3





















 


IV.           ESCROW AGENT’S FEES
AND EXPENSES


 


A.            For its services in
receiving, investing and reinvesting the Settlement Fund, the Escrow Agent
shall be entitled to withdraw from the Settlement Fund a fee as follows:


 


1.             Its usual penalty, if
any, for any early withdrawal from a certificate of deposit;


 


2.             Its usual charge for
outgoing wire transfers; and


 


3.             Reimbursement for
out-of-pocket expenses that the Escrow Agent incurs in distributing the
Settlement Fund to Class Members, such as check printing fees.  It is understood that the Escrow Agent may
assist the Claims Administrator in distributing the Settlement Fund.


 


B.            The Escrow Agent shall
be compensated solely as described in Paragraph IV(A) above, and the Escrow
Agent shall not have any additional claim for compensation against the parties
hereto.


 


V.            TERMINATION OF THE
SETTLEMENT AGREEMENT


 


In the event that the Settlement Agreement is voided, terminated or
cancelled, or fails to become effective for any reason whatsoever, then within
10 days after written notice is sent by Plaintiffs’ Settlement Counsel or by
counsel for Defendant Xcel Energy, Inc. to the Escrow Agent and all other
parties, the Settlement Fund shall be refunded to the persons who made payments
into such funds, plus all interest earned thereon, less:  (1) reasonable Escrow Agent fees and
expenses as described in Paragraph IV(A) above; (2) any amounts actually
disbursed, billed or incurred for tax liabilities on the Settlement Fund or
expenses incurred in preparation of necessary forms and reports


 


4





















 


with respect thereto, if any; and (3) expenditures actually
disbursed, billed or incurred for administration as set forth in the Settlement
Agreement.


 


VI.           MISCELLANEOUS
PROVISIONS


 


A.            At least quarterly,
until the Effective Date as defined in the Settlement Agreement, the Escrow
Agent shall submit to each of the undersigned counsel a statement of receipts,
disbursements and property on hand pertaining to the Settlement Fund.


 


B.            Should the Escrow
Agent receive or become aware of any demands or claims with respect to the
Settlement Fund, other than those as contemplated by the Settlement Agreement,
it shall have the right to apply to the Court, on notice to the parties hereto,
for appropriate instructions.


 


C.            The Escrow Agent’s
acceptance and administration of the Settlement Fund shall constitute the
submission of the Escrow Agent to the jurisdiction of the Court for the purpose
of carrying out this Escrow Agreement.


 


D.            This Escrow Agreement
may not be assigned by the Escrow Agent without prior written approval of all
the other parties hereto.  The parties
agree that any consented-to appointment of a new escrow agent and substitution
of a new escrow agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.


 


E.             All funds held by the
Escrow Agent shall be deemed and considered to be held in the jurisdiction of
the Court until such time as such funds shall be distributed or returned
consistent with the terms of the Settlement Agreement and this Escrow
Agreement.  The Settling Defendants and
their insurers shall have no responsibility or


 


5





















 


liability for the investment, administration or distribution of such
funds or for the actions of the Escrow Agent.


 


F.             The parties hereby
agree to treat the Settlement Fund as a designated settlement fund within the
meaning of Section 468B of the Internal Revenue Code of 1986 and Section
1.468B-5(c) of the Regulations promulgated thereunder.  The parties agree to elect to treat the
Settlement Fund as a “qualified settlement fund” under Section 1.468B-2 of the
Regulations, and the Settling Defendants agree to cooperate as may be
reasonably requested by Plaintiffs’ Settlement Counsel to make such filings as
may be required to effect such election.


 


G.            This Escrow Agreement
shall be governed and interpreted according to the laws of the State of
Minnesota.


 


H.            The Escrow Agent may
terminate the Escrow Agreement at any time upon 30 days’ prior written notice
to all of the other parties, or upon such shorter notice period as may be
required by any regulatory agency or official having authority over the Escrow
Agent.  Upon the expiration of said
notice period, the Escrow Agent shall pay the balance of the Settlement Fund to
a successor escrow agent designated by mutual agreement of the other parties
hereto, or to the Court if no successor escrow agent is designated by the
parties.


 


I.              This document may be
signed in counterparts and by different parties on different counterparts with
the same effect as if the signatures thereto were on the same instrument.  This Escrow Agreement shall be effective and
binding upon all parties hereto at such time as all parties have executed a
counterpart of this Escrow Agreement.


 


6





















 


IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement through their respective attorneys as aforesaid and the Escrow Agent
also has executed this Escrow Agreement, as of the date of execution of the
Settlement Agreement, by its signature below.


 


7





















 


	
  Dated:  January      , 2005       

  	
   

  	
  Dated:  January      , 2005

  
	
   

  	
   

  	
   

  
	
  FOR THE REPRESENTATIVE

  	
   

  	
  FOR DEFENDANTS XCEL ENERGY,

  
	
  PLAINTIFFS, CLASS COUNSEL,

  	
   

  	
  INC., WAYNE BRUNETTI, EDWARD J.

  
	
  AND THE SETTLEMENT CLASS

  	
   

  	
  MCINTYRE, WILLIAM T. PIEPER, GARY

  
	
   

  	
   

  	
  R. JOHNSON AND RICHARD C. KELLY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By 

  	
   

  
	
  James G. Stranch, III, No. 2542

  	
   

  	
  John M. Newman, Jr., No. 5763

  
	
  Jane B. Stranch, No. 6044

  	
   

  	
  Geoffrey J. Ritts, No. 62603

  
	
  BRANSTETTER, KILGORE, STRANCH &

  	
   

  	
  JONES DAY

  
	
  JENNINGS

  	
   

  	
  North Point

  
	
  227 Second Avenue North, 4th Floor

  	
   

  	
  901 Lakeside Avenue

  
	
  Nashville, Tennessee 37201-1631

  	
   

  	
  Cleveland, Ohio 44114

  
	
  Telephone: (615) 254-8801

  	
   

  	
  Telephone: (216) 586-3939

  
	
  Fax: (615) 250-3937

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Timothy R. Thornton, No. 109630

  
	
  Joe R. Whatley, Jr.

  	
   

  	
  BRIGGS AND MORGAN, P.A.

  
	
  Glen M. Connor

  	
   

  	
  2400 IDS Center

  
	
  WHATLEY & DRAKE, LLC

  	
   

  	
  80 South 8th Street

  
	
  2323 Second Avenue North

  	
   

  	
  Minneapolis, MN 55402

  
	
  Birmingham, AL 35202

  	
   

  	
  Telephone: (612) 334-8400

  
	
  Telephone: (205) 328-9576

  	
   

  	
   

  
	
  Fax: (205) 328-9669

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  ESCROW AGENT

  
	
   

  	
   

  	
   

  	
  TCF National Bank Minnesota

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Its

  	
   

  
								



 


8