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
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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
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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