case3: 02-cv-00870-ben-rbb document826 filed 02/09/2009...

Case 3 : 02-cv-00870-BEN-RBB Document 826 Filed 02/09/2009 of 39

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIA

IN RE PEREGRINE SYSTEMS, INC. Case No. 02-CV-0870-BEN (RBB)SECURITIES LITIGATION

This Document Relates to: ALL ACTIONS

STIPULATION AND AGREEMENT OFSETTLEMENT WITH DEFENDANTS JOHN J. MOORES, CHARLES E. NOELL III,NORRIS VAN DEN BERG, RICHARD A. HOSLEY II, CHRISTOPHER A. COLE, AND

RODNEY F. DAMMEYER

This Stipulation and Agreement of Settlement dated as of August 8, 2008 is submitted

pursuant to Rule 23 of the Federal Rules of Civil Procedure . Capitalized terms used in this

Stipulation shall have the meanings given to them in the "Definitions" section unless otherwise

defined. The Settlement set forth in this Stipulation is subject to approval by the Court. This

Stipulation is entered into among the Loran Group (as defined herein), Waga (as defined herein),

the Class (as defined herein), and John J. Moores, Charles E. Noell III, Norris van den Berg,

Richard A . Hosley II , Christopher A. Cole, and Rodney F. Dammeyer (the "Settling Defendants")

and JMI Services ("JMI"), the Avery K. Moores 1994 Trust, Barry A. Moores 1993 Trust, Barry

0. Moores 1991 Trust, Benjamin H. Moores 1996 Trust, Melissa K. Moores 1990 Trust, Jennifer

Ann Moores Trust, John J. Moores, Jr. Trust, Anthony K. Moores 1991 Trust, Molly Moores

Schulman 1991 Trust, Jason B . Schulman 1990 Trust, Rachel E. Schulman 1990 Trust, Michael &

Debra Baas 1990 Trust, Rosanne E . Baas 1990 Trust, Christopher N. Baas 1990 Trust, Seth J.

Baas 1990 Trust, Britton L. Baas 1990 Trust, Patrick & Rosario Baas Trust; Clare C. Toner 1992

024332741250.1

Case 3:02-cv-00870-BEN-RBB Document 826 Filed 02/09/2009 of 39

Trust; David A. Toner 1992 Trust, and Toni L. Cruse 1994 Trust (all such Trusts referred to

herein collectively with JMI, as the "Additional Released Parties")

WHEREAS:

A. Beginning in May 2002, class action complaints alleging violations of the federal

securities laws were filed in the Court against Peregrine and other defendants. The other

defendants include former officers and directors of Peregrine, former business partners of

Peregrine, and Peregrine's former auditor. The class actions were consolidated pursuant to an

Order of the Court entered on July 23, 2002. By Order dated January 30, 2003, the Court

appointed the Loran Group as the Lead Plaintiff for securities fraud claims arising under Sections

10(b) and 20(a) of the Securities Exchange Act of 1934 (" 1934 Act") and Heywood Waga as Lead

Plaintiff for claims on behalf of persons who held shares of either Harbinger Corporation

("Harbinger") or Remedy Corporation ("Remedy") and who acquired Peregrine registered

common stock in connection with Peregrine's acquisition of these companies (the "Subclasses").

The claims on behalf of the members of the Subclasses are for violation of Sections 11 and 15 of

the Securities Act of 1933 ("1933 Act") and Section 14(a) of the 1934 Act. The Court further

appointed the law firm of Gold Bennett Cera & Sidener LLP as Lead Counsel for the Section

10(b) claims and the law firms of Abraham Fruchter & Twersky LLP, and Stull , Stull & Brody as

Lead Counsel for the claims brought on behalf of the Harbinger and Remedy Subclasses. These

firms are collectively referred to herein as "Lead Counsel";

B. On March 18, 2003, Lead Plaintiffs filed a Consolidated Class Action Complaint

for Violations of the Federal Securities Laws (the "Consolidated Complaint"). Because Peregrine

had filed for bankruptcy in September 2002, it was no longer named as a defendant in the

Consolidated Complaint. The Consolidated Complaint generally alleged that certain defendants

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disseminated a series of materially false and misleading statements in public filings, press

releases, shareholder reports, audit opinions, and communications with securities analysts during

the Class Period that caused Peregrine securities to trade at artificially inflated prices, thereby

causing damage to purchasers of Peregrine securities. As to the Harbinger and Remedy

Subclasses, the Consolidated Complaint alleged that certain defendants signed registration

statements that contained false and misleading statements;

C. The Court , in an Order dated November 21, 2003, granted in part and denied in

part, motions to dismiss filed by various defendants, including certain of the Settling Defendants.

Specifically, the Court dismissed the Sections 10(b), 12(a)(2), 14(a), and 20(a) claims against the

Settling Defendants without prejudice and with leave to amend, and declined to dismiss the

Section 11 claims against certain of the Settling Defendants;

D. On April 5, 2004, Lead Plaintiffs filed a First Amended Consolidated Class Action

Complaint for Violations of the Federal Securities Laws (the "Complaint"). The Complaint

alleges, among other things, that certain of the Settling Defendant's in connection with their roles

at Peregrine violated Sections 10(b), 14(a), and 20(a) of the 1934 Act, and Rule I Ob-5

promulgated thereunder, 17 C.F.R. § 240.1 Ob-5, and as to the Harbinger and Remedy Subclasses,

the Complaint alleges that certain defendants signed registration statements that contained false

and misleading statements and violated Sections 11 and 15 of the 1933 Act, during the Class

Period;

E. The Court, in an Order dated March 30, 2005, dismissed all claims alleged under

the 1934 Act against the Settling Defendants . At the Loran Group' s request , the Court entered a

judgment on January 6, 2006, dismissing those claims with prejudice to allow for an appeal to the

Ninth Circuit Court of Appeals. The appeal was argued on November 6, 2007, but no decision

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has been issued. Claims under Sections 11 of the 1933 Act against certain of the Settling

Defendants were stayed pending resolution of the foregoing appeal.

F. Lead Plaintiffs asserted claims against Peregrine in Peregrine's bankruptcy case on

behalf of the Settlement Class Members. As part of the settlement agreement negotiated by Lead

Plaintiffs with Peregrine, Peregrine agreed to assign, and in its plan of reorganization did assign,

all of its claims for wrongdoing in connection with its financial failure, to the Peregrine Litigation

Trust, with the Settlement Class Members to receive all proceeds recovered by the Peregrine

Litigation Trust.

G. The Peregrine Litigation Trust acting through a Trustee filed the lawsuit captioned

Peregrine Litigation Trust v. Moores, et al., San Diego County Superior Court, Case No. GIC

788659 ("the PLT Action"), against certain former officers and directors of Peregrine and other

parties allegedly related to said former officers and directors' roles at Peregrine, including the

Settling Defendants;

H. The demurrers of the Settling Defendants and the Additional Related Parties in the

PLT Action were sustained without leave to amend on May 3, 2007, and the demurrer ruling in

the PLT Action is currently the subject of an appeal before Division One of the Fourth Appellate

Division of the State of California , 4th Civil No. D051347 ("the PLT Appeal")

The Settling Defendants are named as defendants in the Class Action and the PLT

Action (hereinafter collectively "the Actions"). The Settling Defendants deny any wrongdoing

alleged, or which could have been alleged in the Class Action and/or the PLT Action, and neither

this Stipulation nor any actions taken to obtain approval of the Settlement shall be construed or

deemed to be evidence of or an admission or concession on the part of the Settling Defendants

with respect to any claim or of any fault or liability or wrongdoing or damage whatsoever, or any

02433/2736731.1 4


infirmity in the defenses that the Settling Defendants have asserted. The parties to this Stipulation

recognize, however, that the Class Action has been filed by Lead Plaintiffs and the PLT Action

has been brought for the benefit of the Class and the Actions have been defended by the Settling

Defendants in compliance with the requirements of Federal Rule of Civil Procedure 11(b). The

Class Action is being voluntarily settled on the terms set forth herein after advice of counsel and

based on the recommendation of the Honorable Edward A. Infante (retired), former Chief

Magistrate Judge of the United States District Court for the Northern District of California acting

as a mediator, and the parties hereto believe that the terms of this Settlement are fair, adequate and

reasonable. This Stipulation shall not be construed or deemed to be a concession by Lead

Plaintiffs of any infirmity in the claims asserted in the Class Action;

Lead Plaintiffs' Counsel have conducted an investigation relating to the claims and

the underlying events and transactions alleged in the Class Action. Lead Plaintiffs' Counsel have

examined the filings by Peregrine with the U.S. Securities and Exchange Commission before,

during and after the Class Period which relate to the allegations in the Class Action. Lead

Plaintiffs' Counsel have also inspected hundreds of thousands of documents obtained from

Peregrine as a result of the settlement of Lead Plaintiffs' claims against Peregrine;

K. Lead Plaintiffs, by their counsel, have conducted discussions and arm's length

negotiations with counsel for the Settling Defendants with respect to a compromise and settlement

of the Class Action with a view to settling the issues in dispute and achieving the best relief

possible consistent with the interests of the Class;

L. Lead Plaintiffs' Counsel analyzed the evidence adduced during their factual

investigation. Lead Plaintiffs' Counsel also researched the applicable law with respect to the

02433/2736731.1


claims of Lead Plaintiffs and the Class against the Settling Defendants and the potential defenses

thereto;

M. Lead Plaintiffs and the Settling Defendants realize that the continued litigation of

the claims would entail substantial risk, effort and expense and Lead Plaintiffs and the Settling

Defendants believe that the claims in the Class Action are best settled on the terms as set forth

herein.

N. Based upon their investigation as set forth above, Lead Plaintiffs' Counsel have

concluded that the terms and conditions of this Stipulation are fair, reasonable and adequate to

Lead Plaintiffs and the Class, and in their best interests, and have agreed to settle the claims made

in the Class Action, as against the Settling Defendants, pursuant to the terms and provisions of this

Stipulation, after considering (a) the substantial benefits that Lead Plaintiffs and the members of

the Class will receive from this Settlement, (b) the attendant risks of litigation, and (c) the

desirability of permitting the Settlement to be consummated as provided by the terms of this

Stipulation.

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

of any lack of merit of the claims asserted in the Class Action whatsoever, and without any

admission or concession of any liability or wrongdoing or lack of merit in the defenses asserted by

the Settling Defendants,

It is hereby STIPULATED AND AGREED, by and among the parties to this Stipulation,

through their respective attorneys, subject to approval of the Court pursuant to Rule 23(e) of the

Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties hereto

from the Settlement, that all Released Claims as against the Settling Defendants shall be

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compromised, settled, released and dismissed with prejudice, upon and subject to the following

terms and conditions:

DEFINITIONS

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

(a) "Actions" means the Class Action and the PLT Action collectively.

(b) "Additional Released Parties" means JMI Services, the Avery K. Moores

1994 Trust, Barry A. Moores 1993 Trust, Barry 0. Moores 1991 Trust, Benjamin H. Moores 1996

Trust, Melissa K. Moores 1990 Trust, Jennifer Ann Moores Trust, John J. Moores, Jr. Trust,

Anthony K. Moores 1991 Trust, Molly Moores Schulman 1991 Trust, Jason B. Schulman 1990

Trust, Rachel E. Schulman 1990 Trust, Michael & Debra Baas 1990 Trust, Rosanne E. Baas 1990

Trust, Christopher N. Baas 1990 Trust, Seth J. Baas 1990 Trust, Britton L. Baas 1990 Trust,

Patrick & Rosario Baas Trust; Clare C. Toner 1992 Trust; David A. Toner 1992 Trust, and Toni

L. Cruse 1994 Trust.

(c) "Authorized Claimant" means any Settlement Class Member whose claim

for recovery is allowed by the Court.

(d) "Class Action" means the lawsuit captioned In re Peregrine Systems, Inc.,

Securities Litigation , United States District Court for the Southern District of California , Case No.

02-CV-0870-BEN (RBB), currently stayed , with some claims asserted therein on appeal to the

United States Court of Appeals for the Ninth Circuit, Docket No. 06-55197 ("the Class Action

Appeal").

(e) "Complaint" means the First Amended Consolidated Class Action

Complaint for Violation of the Federal Securities Laws filed in the Class Action on or about April

4, 2004.

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(f) "Class" and "Class Members" means, for the purposes of this Stipulation

only, a class consisting of all Persons (including Lead Plaintiffs) who purchased or otherwise

acquired Peregrine common stock during the Class Period and who were injured thereby, and two

Subclasses consisting of all Persons who held shares of Harbinger Corporation and who acquired

Peregrine registered common stock in connection with Peregrine's acquisition of Harbinger

Corporation , which was consummated on or about June 16 , 2000 , and all persons who held shares

of Remedy Corporation and who acquired Peregrine registered common stock in connection with

Peregrine's acquisition of Remedy Corporation, which was consummated on or about August 27,

2001. Excluded from the Class are: defendants in the Class Action, the Additional Released

Parties, members of the immediate families (parents, spouses, siblings and children) of each of the

individual defendants, any person, firm, trust, corporation, or entity in which any defendant has a

controlling interest, the officers, directors, parents, subsidiaries and affiliates of Peregrine, and the

legal representatives, heirs, successors in interest or assigns of any such excluded party. Also

excluded from the Class are any putative Settlement Class Members who exclude themselves by

filing a Request for Exclusion in accordance with the requirements set forth in the Notice or

putative Settlement Class Members who have previously released the Settling Defendants in

connection with Peregrine-related claims.

(g) "Class Period" means the period of time from July 22, 1999 through May 3,

2002, inclusive.

(h) "Court" means the United States District Court for the Southern District of

California.

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(i) "Effective Date of Settlement" or "Effective Date" means the date upon

which the Settlement contemplated by this Stipulation shall become effective, as set forth in

paragraph 26 below.

(j) "Lead Plaintiffs" means the group consisting of David Levy, Leighton

Powell, David Schenkel, John Virden, Conrad Willemse, Bill Holman, Bob Benesko, Michael

Slavitch, Richard Maheu, and Mark Rollins (hereinafter the "Loran Group") who were appointed

as Lead Plaintiffs for the claims arising under Section 10(b) of the 1934 Act, and Heywood Waga

(hereinafter "Waga"), who was appointed as Lead Plaintiff for the claims arising under Section 11

of the' 1933 Act.

(k) "Lead Plaintiffs' Counsel" means Lead Plaintiffs ' counsel for the Loran

Group , Gold Bennett Cera & Sidener LLP, and Lead Plaintiffs Counsel for Waga, Stull, Stull &

Brody and Abraham Fruchter & Twersky LLP, who were appointed pursuant to the Order of the

District Court dated January 30, 2003.

(1) "Non-Settling Defendants" means KPMG LLP, BearingPoint, Inc. and

Larry Rodda.

(m) "Notice" means the Second Notice of Pendency of Class Action and

Hearing on Proposed Partial Settlement, which is to be finalized by the Parties.

(n) "Order and Final Judgment" means the proposed order to be entered

approving the Settlement, which is to be finalized by the Parties.

(o) "Parties" means Lead Plaintiffs, the Class and the Settling Defendants.

(p) "Peregrine" or the "Company" means Peregrine Systems, Inc.

(q) "Plaintiffs" means, collectively, Lead Plaintiffs and the Class.

02433/2736731.1 9


(r) "Plan of Allocation of Settlement Proceeds" or "Plan of Allocation" means

the plan previously approved by the Court on November 15, 2006, for the allocation and

distribution of the net settlement proceeds to Authorized Claimants.

(s) "Preliminary Approval Order" means the proposed Order Preliminarily

Approving the Settlement and Providing for Notice, which is to be finalized by the Parties.

(t) "PLT Action" means the lawsuit captioned Peregrine Litigation Trust v.

Moores, et al., San Diego County Superior Court, Case No. GIC 788659 currently on appeal to

Division One of the Fourth Appellate Division of the State of California, 4th Civil No. D051347

("the PLT Appeal")

(u) "Recognized Loss" shall have the same meaning as that term is used in

Notice.

(v) "Released Claims" means all claims , rights, demands , suits , matters, issues

or causes of action, whether known or unknown, fixed or contingent, foreseen or unforeseen,

against the Settling Defendants and the Additional Released Parties, whether under state or federal

law, including the federal securities laws, and whether directly, indirectly, representatively,

derivatively or in any other capacity, in connection with, based upon, arising out of, or relating to

any claim that has been or could have been raised in the Class Action or the acts, facts or events

alleged in the Actions, including the claims against the Settling Defendants and the Additional

Released Parties asserted in the PLT Action. Released Claims as used herein also specifically

includes claims which the Plaintiffs do not know or suspect to exist in their favor at the time of

this Stipulation which, if known by them, might affect the Settlement and the releases herein, or

might affect their decision not to object to, or opt out of, the Settlement. With respect to any and

all claims released herein, the Parties agree that, effective upon the Effective Date, Plaintiffs

02433/2736731.1 10


expressly waive and relinquish, shall be deemed to have, and by operation of the Order and Final

Judgment shall have, expressly waived and relinquished, and the Settling Defendants expressly

waive and relinquish, to the fullest extent permitted by law, the provisions , rights , and benefits of

§ 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IFKNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HISOR HER SETTLEMENT WITH THE DEBTOR.

Additionally, the Parties expressly waive, upon the Effective Date and by operation of the Order

and Final Judgment shall have waived, any and all provisions, rights and benefits conferred by

any law of the United States or of any state or territory of the United States or of any other

country, whether statutory, code, or common law, which is similar, comparable or equivalent to §

1542 of the California Civil Code. The Parties may hereafter discover facts in addition to or

different from those which they now know or believe to be true with respect to the subject matter

of the claims released herein, but hereby stipulate and agree that they do release, and shall be

deemed to have, and upon the Effective Date and by operation of the Order and Final Judgment

shall have released all claims described herein, whether known or unknown, suspected or

unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist,

or heretofore have existed, upon any theory of law or equity now existing or coming into

existence in the future, without regard to the subsequent discovery or existence of such different

or additional facts. The Parties acknowledge that the foregoing waiver was bargained for and is a

material term and condition of the Settlement.

(w) "Request(s) for Exclusion" means a written request for exclusion from the

Settlement Class as described in the Notice which provides all information requested in the

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Notice, is signed by the person or entity seeking exclusion or their counsel , and is made within the

time period specified in the Notice.

(x) "Settling Defendants" means John J. Moores, Charles E. Noell III, Norris

van den Berg, Richard A. Hosley II, Christopher A. Cole, and Rodney F. Dammeyer.

(y) "Settling Defendants' Claims" means any and all claims of the Settling

Defendants relating to the institution or prosecution of the Class Action and/or the PLT Action,

against any of the Lead Plaintiffs, Plaintiffs, Settlement Class Members, or their attorneys.

(z) "Settlement" means the settlement contemplated by this Stipulation.

(aa) "Settlement Class" means a class certified for settlement purposes only

pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure consisting of:

All Persons (including Lead Plaintiffs) who purchased or otherwise acquiredPeregrine common stock during the Class Period and who were injured thereby,and two subclasses ("Subclasses") consisting of all Persons who held shares ofHarbinger Corporation and who acquired Peregrine registered common stock inconnection with Peregrine's acquisition of Harbinger Corporation, which wasconsummated on or about June 16, 2000, and all persons who held shares ofRemedy Corporation and who acquired Peregrine registered common stock inconnection with Peregrine's acquisition of Remedy Corporation, which wasconsummated on or about August 27, 2001. Excluded from the Class are:Defendants in the Class Action, the Additional Released Parties, members of theimmediate families (parents, spouses, siblings and children) of each of theindividual Defendants, any person; firm, trust, corporation, or entity in which anyDefendant has a controlling interest, the officers, directors, parents, subsidiariesand affiliates of Peregrine, and the legal representatives, heirs, successors ininterest or assigns of any such excluded party. Also excluded from the Class areany putative Class Members who exclude themselves by filing a Request forExclusion in accordance with the requirements set forth in the Notice, or putativeClass members who have previously released the Settling Defendants in connectionwith Peregrine-related claims.

(bb) "Settling Defendants' Counsel" means the law firms of Quinn Emanuel

Urquhart Oliver & Hedges LLP, Gibbs & Bruns LLP, Bewley , Lassleben & Miller LLP, and Neal,

Gerber & Eisenberg LLP.

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(cc) "Settlement Hearing" means the hearing prescribed by Rule 23(e)(2) of the

Federal Rules of Civil Procedure.

(dd) "Stipulation" means this Stipulation and Agreement of Settlement among

the Lead Plaintiffs, the Settling Defendants and the Additional Released Parties.

(ee) "1934 Act" means the Securities Exchange Act of 1934.

(ff) "1933 Act" means the Securities Act of 1933.

CLASS CERTIFICATION

2. The Parties stipulate , solely for purposes of the Settlement , to certification of the

Settlement Class. This Stipulation to certification of a Class and Subclasses shall apply in the

event that the judgment referenced in Paragraph 7(a)(4)(D)(v) is entered . It is in the intent and

agreement of the parties hereto that such judgment be for the benefit of the Lead Plaintiffs and the

members of the Class and Subclasses which comprise the Settlement Class.

3. The Parties further stipulate to the appointment of the Lead Plaintiffs as

representatives of the Settlement Class and to the appointment of Lead Plaintiffs' Counsel as

Class Counsel, such stipulations being solely for settlement purposes.

4. If the Effective Date does not occur for any reason, each of the Settling Defendants

reserves the right to contest certification of any class in the Class Action. The execution of this

Stipulation and any actions taken to secure approval thereof shall not be used by Lead Plaintiffs in

any way to support their request for certification of a class other than in connection with the

Settlement.

SCOPE AND EFFECT OF SETTLEMENT

5. The obligations incurred pursuant to this Stipulation shall be in full and final

disposition of the Class Action, as against each of the Settling Defendants only, and any and all

Released Claims, as well as any and all Settling Defendants ' Claims . The Class Action shall not

02433/2736731.1 13


be dismissed or settled with respect to the Non-Settling Defendants, by operation of this

Stipulation or the Settlement.

6. (a) Upon the Effective Date of the Settlement, Lead Plaintiffs, the Class on

behalf of themselves, and their respective predecessors, successors, affiliates, heirs, executors,

administrators, successors and assigns, and any persons they represent, shall, by operation of the

Order and Final Judgment, with respect to each and every Released Claim, release and be deemed

to release and forever discharge, and shall forever be enjoined from prosecuting, any Released

Claims against the Settling Defendants including without limitation the Class Action and the PLT

Action. Such release and injunction will extend to the Settling Defendants' and the Additional

Released Parties' attorneys, agents, insurers, trusts, trustees, estates, employers, employee benefit

plans, representatives, heirs, marital community and assigns.

(b) Upon the Effective Date of the Settlement, the Settling Defendants and the

Additional Released Parties shall , by operation of the Order and Final Judgment, release and be

deemed to release and forever discharge each and every of the Settling Defendants' Claims, and

shall forever be enjoined from prosecuting the Settling Defendants' Claims.

THE SETTLEMENT CONSIDERATION

7. (a) The Settling Defendants shall pay Fifty-Five Million Nine Hundred and

Fifty Thousand Dollars ($55,950,000), plus interest as described below (the "Cash Settlement

Amount"), into an agreed-upon escrow account (the "Cash Settlement Account") as follows:

(1) Nine Hundred and Fifty Thousand Dollars ($950,000) shall

be paid by Settling Defendant Dammeyer on August 21, 2008;

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Case 3 : 02-cv-00870 -BEN-RBB Document 826 Filed 02/09/2009 of 39

(2) Five Million Dollars ($5,000,000) shall be paid by the

Settling Defendants other than Settling Defendant Dammeyer (the "Remaining Settling

Defendants") on October 10, 2008;

(3) The Remaining Settling Defendants shall pay Twenty-Two

Million Five Hundred Thousand Dollars ($22,500,000) plus interest, on or before January 5, 2009.

Simple interest on this payment shall accrue starting November 3, 2008, at the six-month treasury

bill rate in effect on that date;

(4) Twenty-Seven Million Five Hundred Thousand Dollars

($27,500,000) (the "Final Payment") shall be paid by the Remaining Settling Defendants,

pursuant to the following terms:

(A) The Note. On or before January 5, 2009, the

Remaining Settling Defendants shall provide a promissory note (the "Note") in a form reasonably

satisfactory to Lead Plaintiffs, signed and payable by John J. Moores and Rebecca Ann Moores

jointly as individuals and as Trustees of the John and Rebecca Ann Moores Family Trust (the

"Family Trust") in the amount of Twenty-Seven Million Five Hundred Thousand Dollars

($27,500,000) plus interest, due on October 31, 2009 or on such earlier date as provided below.

The Note may be prepaid at any time at the option of the obligors. Lead Plaintiffs' Counsel will

be notified if the Family Trust is dissolved, no longer holds substantially all of John and Rebecca

Moores' assets, or if its trustees or beneficiaries change.

(B) Interest. Simple interest shall accrue on the Final

Payment starting November 3, 2008. From November 3, 2008 through March 31, 2009, the rate

of interest shall be the six-month treasury bill rate in effect on November 3, 2008; beginning

March 31, 2009, the rate of interest shall be four percent (4%) per annum.

02433/2736731.1 15


(C) Security via Letter of Credit. Up until delivery of the

Note, Defendant Moores will make commercially reasonable efforts to obtain a letter of credit

securing the Note.

(D) Alternative Security and Agreements. If no letter of

credit is obtained (pursuant to the preceding sub-paragraph) prior to delivery of the Note, the

following alternative terms will apply:

(i) Defendant Moores will cause JMI Holdings

LLC - Omni Project Investment Series (the "JMIH Omni Series") to grant to Lead Plaintiffs'

Counsel a security interest in its economic interest (which is between 72% and 73%) in JMIR

Investments LLC - Omni Hotel Investment Series (the "JMIR Omni Series"), which owns a 50%

interest in the San Diego Ballpark Hotel Company (the "Hotel Company"), which owns the Omni

Hotel San Diego (the "Hotel");

(ii) Lead Plaintiffs' Counsel will be provided

with (a) a written broker's valuation opinion valuing the Hotel, prepared by Holiday Fenoglio

Fowler, L.P. on or before January 5, 2009, together with information reflecting the debt balance

on the Hotel, (b) representations from Defendant Moores or JMIH Omni Series concerning the

absence of liens or encumbrances on the interest held by JMIH Omni Series in JMIR Omni Series

and the interest held by JMIR Omni Series in the Hotel Company, and (c) with information

reflecting any known recent offers or purchase proposals of these interests;

(iii) Any distributions received by JMIH Omni

Series from its interest in the JMIR Omni Series shall be applied, within ten days of receipt, to

prepay a portion of the outstanding balance of the Note; and

02433/2736731.1 1 6


(iv) The Note will be subject to additional

mandatory prepayment obligations as follows: Defendant Moores represents that the certain real

estate and other assets, enumerated to Lead Plaintiffs' Counsel, are or will be listed or otherwise

offered for sale. Any net proceeds of sales of these assets, after satisfying existing encumbrances.

taxes or debt service requirements as to the particular asset being sold, shall be used to prepay a

portion of the outstanding balance of the Note within ten days of receipt.

(v) The Remaining Settling Defendants

hereby stipulate to entry of a judgment if payment default occurs and the Note remains unpaid

after October 31, 2009, in a form to be reasonably agreed upon by the parties by January 5, 2009,

to be entered jointly and severally against the Family Trust and its beneficiaries, John J. Moores

and Rebecca Ann Moores, who are the signatories of the Note, for the full unpaid balance of the

Note as of November 1, 2009.

(b) Under no circumstances shall any of the Settling Defendants be required to pay

more than their portion of the Cash Settlement Amount plus interest as specified above in

consideration of the Settlement except for the costs of entering and executing the judgment

referenced in the subparagraph 7(a)(4)(D)(v) above and any statutory interest thereon. Lead

Plaintiffs' Counsel shall provide wire instructions for the deposit of the Cash Settlement Amount

into the Cash Settlement Account.

(c) The effectiveness of this Stipulation is contingent upon the approval of the form of

the Note described in paragraph 7(a)(4)(A) and the form of the judgment described in paragraph

7(a)(4)(D)(v) by all parties.

(d) As of the date this agreement is signed , Lead Plaintiffs ' Counsel acknowledge that

there have been no defaults.

02433/2736731.1 17


(e) Each Settling Defendant individually represents that his portion of the Cash

Settlement Amount of $55,950,000 is free and clear of any liens, judgments, or security interests

that relate to him, and that no portion of the Cash Settlement Amount is encumbered in any way.

Defendant Moores represents that no portion of the Cash Settlement Amount is subject to a claim

by his wife, Rebecca Moores. To the extent that anyone other than the Settling Defendants

contends that they have an interest in any portion of the Cash Settlement Amount, the Settling

Defendants shall take all actions reasonably necessary to resolve such claim as to their portion of

the Cash Settlement Amount.

8. (a) The Cash Settlement Amount, net of any Taxes (as defined below) on the

income thereof, shall be used to pay (i) the Notice and Administration Costs referred to in

paragraph 10 hereof, (ii) the fees and expense award referred to in paragraph 11 hereof, (iii) the

remaining administration expenses referred to in paragraph 12 hereof, and (iv) such amounts in

the above categories ( i) and (iii) not to exceed $100,000. The balance of the Cash Settlement

Amount after the above payments shall be held in escrow pending further order of the Court. All

funds comprising the Cash Settlement Amount shall be deemed to be in the custody of the Court

and shall remain subject to the jurisdiction of the Court until such time as the funds shall be

distributed or returned to those Settling Defendants that provided the funds, pursuant to this

Stipulation and/or further order of the Court. The Parties hereto agree that the Cash Settlement

Amount is intended to be a Qualified Settlement Fund. within the meaning of Treasury Regulation

§ 1.468B-1 and that Gilardi & Co., LLC, as administrator of the Settlement Fund within the

meaning of Treasury Regulation § 1.468B-2(k)(3), shall be responsible for filing tax returns for

the Settlement Fund and paying from the Settlement Fund any Taxes owed with respect to the

Settlement Fund. Gilardi & Co., LLC is hereafter referred to as the "Claims Administrator."

02433/2736731.1 18


Settling Defendants' Counsel agree to provide promptly to the Claims Administrator the statement

described in Treasury Regulation § 1.468B-3(e).

(b) All (i) taxes on the income of the Cash Settlement Amount and (ii)

expenses and costs incurred in connection with the taxation of the Cash Settlement Amount

(including, without limitation, expenses of tax attorneys and accountants) (collectively "Taxes")

shall be paid out of the Cash Settlement Account, shall be considered to be a cost of

administration of the Settlement and shall be timely paid from the Cash Settlement Account

without prior order of the Court.

ADMINISTRATION

9. The Settling Defendants shall have no responsibility for the administration of the

Settlement and shall have no liability to the Lead Plaintiffs or the Class in connection with such

administration. The Settling Defendants shall cooperate in the administration of the Settlement to

the extent reasonably necessary to effectuate its terms.

10. Lead Plaintiffs' Counsel may expend from the Cash Settlement Account, without

further approval from the Settling Defendants or the Court, up to the sum of $100,000 to pay the

reasonable costs and expenses associated with the administration of the Settlement, including

without limitation, the costs of identifying members of the Class and effecting mailed Notice and

Publication Notice. Such amounts shall include, without limitation, the actual costs of

publication, printing and mailing the Notice, reimbursements to nominee owners for forwarding

notice to their beneficial owners, and the administrative expenses incurred and fees charged by the

Claims Administrator in connection with providing notice (collectively "Notice and

Administrative Costs"). If the Settlement is not consummated, a refund will be made to those

Settling Defendants that provided the funds of remaining non-expended amounts of the $100,000

0243312736731.1 19


allocated for Notice and Administrative Costs less amounts that were incurred but not yet

expended.

ATTORNEYS' FEES AND EXPENSES

11. (a) Lead Plaintiffs' Counsel intend to apply to the Court for an award from the

Cash Settlement Amount of attorneys' fees, and will also request reimbursement of expenses, plus

interest thereon, from the proceeds of this Settlement at the same time as final approval of the

Settlement is requested. The Settling Defendants will take no position on Lead Plaintiffs'

Counsel's prospective fee application or request for reimbursement of expenses. Such attorneys'

fees, expenses, and interest as are awarded by the Court shall only be paid from the Cash

Settlement Account to Lead Plaintiffs' Counsel after the occurrence of the Effective Date as

provided in paragraph 26 hereof.

(b) Any order or proceedings relating to the fee and expense applications or

any appeal from any order relating thereto or reversal or modification thereof shall not operate to

terminate or cancel this Stipulation or the Settlement or affect the finality of any final judgment

approving the Stipulation or the Settlement of the Class Action.

DISTRIBUTION TO AUTHORIZED CLAIMANTS

12. In connection with the distribution of the settlement funds generated by this

Settlement, the Claims Administrator shall determine each Settlement Class Member's share of

the settlement funds based upon the Plan of Allocation.

13. (a) Each Authorized Claimant shall be allocated a pro rata share of the cash

portion of the settlement funds based on his or her Recognized Loss compared to the total

Recognized Loss of all Authorized Claimants and consistent with the Plan of Allocation. This is

not a claims-made settlement. The Settling Defendants shall not be entitled to get back any of the

02433/2736731.1 20


settlement consideration once the Settlement becomes Final. The Settling Defendants shall have .

no involvement in reviewing or challenging claims.

(b) Any order or proceedings relating to the Plan of Allocation or any appeal

from any order relating thereto or modification thereof shall not operate to terminate or cancel this

Stipulation or the Settlement or affect the entry of any final judgment approving the Stipulation or

the Settlement of the Class Action except as set forth in the Supplemental Agreement described in

paragraph 23 herein.

ADMINISTRATION OF THE SETTLEMENT

14. Any member of the Class who has not timely submitted a valid Proof of Claim as

and when required by the Court, will be barred from receiving any distribution of the proceeds of

this Settlement. Any member of the Settlement Class who does not submit a valid Request for

Exclusion in connection with this Settlement will otherwise be bound by all of the terms of this

Stipulation and the Settlement, including the terms of the Order and Final Judgment to be entered

in the Class Action and the releases provided for herein, and will be barred from bringing any

action against the Settling Defendants concerning the Released Claims, even if such member of

the Settlement Class has not submitted a Proof of Claim.

15. Lead Plaintiffs' Counsel shall be responsible for supervising the administration of

the Settlement and allocation of the Net Settlement Fund by the Claims Administrator. Except for

their obligation to pay the Cash Settlement Amount, the Settling Defendants shall have no

liability, obligation or responsibility for any administration of the Settlement or allocation of the

Net Settlement Fund. Lead Plaintiffs' Counsel shall have the right, but not the obligation, to

waive what they deem to be formal or technical defects in any Proofs of Claim submitted in the

interests of achieving substantial justice.

02433/2736731.1 21


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

Member shall be entitled to be treated as an "Authorized Claimant," the following conditions shall

apply.

(a) Each Settlement Class Member will be required to submit a Proof of Claim

supported by such documents as are designated therein, including proof of the Settlement Class

Member's loss, or such other documents or proof as Lead Plaintiffs' Counsel, in their discretion,

may deem acceptable;

(b) All Proofs of Claim shall be submitted in a timely fashion pursuant to such

schedule as may be set by Order of the Court. Any Settlement Class Member who fails to submit

a timely Proof of Claim, and who does not submit a valid Request for Exclusion in connection

with this Settlement, shall be forever barred from receiving any payment pursuant to this

Stipulation (unless, by Order of the Court, a later submitted Proof of Claim by such Settlement

Class Member is approved), but shall in all other respects be bound by all of the terms of this

Settlement including the terms of the Order of Final Judgment to be entered in the Class Action

and the releases provided for herein, and will be barred from bringing any action against the

Settling Defendants concerning the Released Claims;

(c) Each Proof of Claim will be submitted to and reviewed by a Claims

Administrator, under the supervision of Lead Plaintiffs' Counsel, who shall determine the extent,

if any, to which each claim shall be allowed, subject to review by the Court pursuant to

subparagraph (e) below;

(d) Proofs of Claim that do not meet the submission requirements may be

rejected. Prior to rejection of a Proof of Claim, the Claims Administrator will communicate with

the Settlement Class Member in order to remedy curable deficiencies in the Proof of Claim

02433/2736731.1 22


submitted. The Claims Administrator, under supervision of Lead Plaintiffs' Counsel, will notify,

in a timely fashion and in writing, all Settlement Class Members whose Proofs of Claim they

propose to reject in whole or in part, setting forth the reasons therefore, and shall indicate in such

notice that the Settlement Class Member whose claim is to be rejected has the right to a review by

the Court if the Settlement Class Member so desires and has complied with the relevant

requirements;

(e) The administrative determinations of the Claims Administrator accepting

and rejecting claims shall , at a time to be determined in the future, be presented to the Court for

approval.

17. The Proof of Claim shall include a provision that each Settlement Class Member

shall be conclusively deemed to have submitted to the jurisdiction of the Court with respect to the

Settlement Class Member's claim and the enforcement of the release provided for therein.

18. Payment pursuant to this Stipulation and Court approval shall be deemed final and

conclusive against all Settlement Class Members. All Settlement Class Members whose claims

may not be approved by the Court and who do not submit a valid Request for Exclusion in

connection with this Settlement shall be barred from participating in distributions from the Net

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

Settlement, including the terms of the Order of Final Judgment to be entered in the Class Action

and the releases provided for herein, and will be barred from bringing any action against the

Settling Defendants concerning the Released Claims.

19. Except as set forth in the Supplemental Agreement described in paragraph 23

herein, all proceedings with respect to the administration, processing and determination of claims

described by paragraph 16 of this Stipulation and the determination of all controversies relating

02433/2736731.1 23


thereto, including disputed questions of law and fact with respect to the validity of claims, shall be

subject to the jurisdiction of the Court, and the Settling Defendants shall have no role with regard

thereto.

20. The Net Settlement Fund shall be distributed to Authorized Claimants, subject to

Court Approval, by the Claims Administrator only after the Effective Date and at a time subject to

the discretion of Lead Plaintiffs' Counsel, and after: (i) all Claims have been processed, and all

Claimants whose Claims have been rejected or disallowed, in whole or in part, have been notified

and provided the opportunity to be heard concerning such rejection or disallowance; (ii) all

objections with respect to all rejected or disallowed claims have been resolved by the Court; (iii)

all matters with respect to attorneys' fees, costs, and disbursements have been resolved by the

Court, all appeals therefrom have been resolved or the time therefore has expired ; and (iv) all

costs of administration have been paid . Any funds remaining which have not been claimed by

Authorized Claimants shall, after a reasonable period of time, be donated to a charity of Lead

Plaintiffs' Counsel's choice.

PRELIMINARY APPROVAL ORDER

21. Promptly after this Stipulation has been fully executed, Lead Plaintiffs' Counsel

shall apply to the Court for entry of the Preliminary Approval Order.

ORDER AND FINAL JUDGMENT

22. The parties shall jointly request that the Court enter an Order and Final Judgment,

and this Stipulation.and Agreement of Settlement shall not become effective until such time as an

Order and Final Judgment substantially in such form (with only such changes as may be agreed to

by Lead Plaintiffs and the Settling Defendants) is entered and becomes final , as provided in

paragraph 26 hereof. The parties hereto agree that they will seek entry of the Order and Final

Judgment as soon as practicable.

0243312736731.1 24


SUPPLEMENTAL AGREEMENT

23. Substantially simultaneously herewith, Lead Plaintiffs and the Settling Defendants

are executing a "Supplemental Agreement" setting forth, among other things, certain conditions

under which this Stipulation may be withdrawn or terminated by the Settling Defendants if

potential Settlement Class Members who purchased in excess of a certain number of shares of

common stock traded during the Class Period exclude themselves from the Class. The

Supplemental Agreement shall not be filed with the Court unless a dispute arises as to its terms or

if the Settling Defendants exercise their rights thereunder. In the event of a withdrawal from this

Stipulation pursuant to the Supplemental Agreement, this Stipulation shall become null and void

and of no further force and effect and the provisions of paragraph 28 shall apply. Notwithstanding

the foregoing, the Stipulation shall not become null and void as a result of the election by the

Settling Defendants to exercise their option to withdraw from the Stipulation pursuant to the

Supplemental Agreement until the conditions for termination set forth in the Supplemental

Agreement have been satisfied.

OPTION TO TERMINATE

24. Any or all Settling Defendants , in their sole discretion , shall have the option to

terminate the Settlement in the event that, prior to the Effective Date, a court renders a decision in

either the PLT Appeal as to the Settling Defendants or the Class Action Appeal. Each Settling

Defendant shall be entitled to exercise the option to terminate described in this paragraph only if

he provides Lead Plaintiffs' Counsel with written notice exercising that option and files that notice

with the Court within thirty (30) days of entry of a decision in the PLT Appeal or Class Action

Appeal. The Settling Defendants shall use reasonable efforts to obtain a stay of proceedings in the

PLT Appeal after execution of this Stipulation and on the Settling Defendants ' request Lead

Plaintiffs will cooperate in such efforts. Failure to exercise the option set forth in this paragraph

02433/2736731.1 25


following a decision in the PLT Appeal or a decision as to the Settling Defendants in the Class

Action Appeal does not waive the Settling Defendants ' rights to exercise the option following a

subsequent decision of either appeal. In the event of a withdrawal by a Settling Defendant from

this Stipulation pursuant to this paragraph , this Stipulation shall become null and void as to that

Settling Defendant and of no further force and effect and the provisions of paragraph 28 shall

apply.

THE SUCCESSOR TRUSTEE ORDER

25. If the Order and Final Judgment is not entered substantially in the form agreed to

by the Parties, including without limitation if the Order and Final Judgment does not expressly

with respect to each and every Released Claim, release and forever discharge, and forever enjoin

Lead Plaintiffs, the Class on behalf of themselves, and their respective predecessors, successors,

affiliates, heirs, executors, administrators, successors and assigns, and any persons they represent

from prosecuting any Released Claims, including the PLT Action, against the Settling Defendants;

or, if any court should construe the release and injunction described herein to permit the continued

prosecution of the PLT Action against the Settling Defendants, Lead Plaintiffs and the Class agree

that they will (a) obtain an order from the Court declaring that the Peregrine Litigation Trustee is

currently Richard M. Kipperman, and (b) use best efforts to cooperate with the Settling

Defendants to obtain dismissal of any Released Claims brought by the PLT against the Settling

Defendants and to obtain an executed release from the then Trustee. Nothing herein prevents any

of the Settling Parties from making such further motions as may be necessary.

EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION

26. The Effective Date of Settlement as to any Settling Defendant shall be the date

when all of the following conditions have occurred:

(a) the Court has entered the Preliminary Approval Order;

02433/2736731.1 26


(b) each Settling Defendant has timely deposited his portion of the Cash

Settlement Amount and/or with respect to Settling Defendants other than Dammeyer, paid the

January 2009 payment and given adequate security for the October 2009 payment pursuant to this

Stipulation;

(c) the Court has approved the Settlement, following Notice to the Class and a

Settlement Hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure and the

Preliminary Approval Order;

(d) the Court has entered an Order and Final Judgment, in all material respects

in the form agreed to by the Parties (with only such changes in form as may be accepted by Lead

Plaintiffs and the Settling Defendants), and the expiration of any time for appeal or review of such

Order and Final Judgment, or, if any appeal is filed and not dismissed, after such Order and Final

Judgment is upheld on appeal in all material respects and is no longer subject to review upon

appeal or review by writ of certiorari;

(e) dismissal with prejudice has been entered in the PLT Appeal as to all

Respondents therein and the expiration for any time for appeal or review of such order of final

judgment or dismissal, or, if any appeal therefrom is filed, such dismissal has been upheld on

appeal in all material respects and is no longer subject to review upon appeal or review by writ of

certiorari;

(f) withdrawal or termination has not occurred pursuant to the Supplemental

Agreement or pursuant to paragraph 24 and any remaining rights of withdrawal or termination

under the Supplemental Agreement have been waived by the Settling Defendants; and

(g) Lead Plaintiffs, as required by the Settling Defendants, and as a condition

precedent to the effectiveness of the Settlement, have entered into a settlement agreement or

02433/2736731,1 27


agreements with defendants Frederic B. Luddy, Richard T. Nelson, Stephen P. Gardner, and

Matthew C. Gless, for the release by the Class of all Peregrine-related claims, to be finally

approved by the District Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

27. The Settling Defendants and Lead Plaintiffs shall each have the right to terminate

the Settlement and this Stipulation by providing written notice of their election to do so

("Termination Notice") to the other party hereto within thirty (30) days of (a) the Court's

declining to enter the Preliminary Approval Order in any material respect; (b) the Court's refusal

to approve this Stipulation or any material part of it or to enter the Order and Final Judgment in

any material respect; or (c) the date upon which the Order and Final Judgment is modified or

reversed in any material respect.

28. Except as otherwise provided herein, in the event the Settlement is terminated or

the Effective Date fails to occur for any reason, then all parties whose rights are affected by this

Stipulation shall be deemed to have reverted to their respective status in the Class Action as of

March 21, 2008 and, except as otherwise expressly provided, the parties shall proceed in all

respects as if this Stipulation and any related orders had not been entered, and any portion of the

Cash Settlement Amount previously paid by any terminating Settling Defendant(s), together with

any interest earned thereon, less any Taxes paid or due with respect to such income, and less the

Notice and Administrative Costs actually incurred and paid or payable from the Cash Settlement

Account (not to exceed $100,000 without the prior approval of the Settling Defendants and the

Court), shall be returned to the Settling Defendant(s) who paid such amounts, by wire transfer,

within ten (10) business days of the event causing termination or non-compliance with the

conditions to effectiveness of the Settlement.

02433/2736731.1 28


NO ADMISSION OF WRONGDOING

29. This Stipulation, whether or not consummated, and any proceedings taken pursuant

to it:

(a) shall not be offered or received against the Settling Defendants or

Additional Released Parties or against the Lead Plaintiffs or the Class as evidence of or construed

as or deemed to be evidence of any presumption, concession, or admission by the Settling

Defendants or the Additional Released Parties or by any of the Lead Plaintiffs or the Class with

respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that had been or

could have been asserted in the Class Action or in any litigation, or the deficiency of any defense

that has been or could have been asserted in the Class Action or in any litigation, or of any

liability, negligence, fault, or wrongdoing of the Settling Defendants or the Additional Released

Parties or in support of a motion for class certification;

(b) shall not be offered or received against the Settling Defendants or the

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

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

made by the Settling Defendants , or the Additional Released Parties, or against the Lead Plaintiffs

or the Class as evidence of any infirmity in the claims of Lead Plaintiffs or the Class;

(c) shall not be offered or received against the Settling Defendants, or the

Additional Released Parties, or against the Plaintiffs as evidence of a presumption, concession or

admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to

for any other reason as against any of the parties to this Stipulation, in any other civil, criminal or

administrative action or proceeding, other than such proceedings as may be necessary to effectuate

the provisions of this Stipulation; provided, however, that if this Stipulation is approved by the

02433/2736731.1 29


Court, the Settling Defendants and the Additional Released Parties may use its provisions to

effectuate the liability protection granted them hereunder;

(d) shall not be construed against the Settling Defendants, or the Additional

Released Parties, or the Lead Plaintiffs or the Class as an admission or concession that the

consideration to be given hereunder represents the amount which could be or would have been

recovered after trial; and

(e) shall not be construed as or received in evidence as an admission,

concession or presumption against the Lead Plaintiffs or the Class or any of them that any of their

claims are without merit or that damages recoverable in the Class Action would not have

exceeded the Cash Settlement Amount.

BAR ORDER

30. It is the intention of the parties to this Stipulation that the Settlement documented

herein eliminate all further risk and liability of the Settling Defendants relating to the Released

Claims. Accordingly, the parties agree that as of the Effective Date:

(a) In accordance with paragraph 5 hereof, Plaintiffs and each person in the

Settlement Class, whether or not that person is an Authorized Claimant and whether or not that

person receives a distribution under the Plan of Allocation will release and be deemed to release

the Settling Defendants from all Released Claims.

(b) In accordance with paragraph 22 hereof, the Order and Final Judgment shall

provide for the dismissal of the Released Claims with prejudice as to the Settling Defendants

pursuant to Fed. R. Civ. P. 54(b).

(c) The Order and Final Judgment shall, in accordance with Section 4(f) of the

Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(f)(7)(A), bar, extinguish,

discharge and satisfy all claims for contribution against the Settling Defendants, which claims

02433/2736731.1 30


shall be discharged as a matter of law thereunder. Such bar order shall permanently bar, enjoin

and restrain all persons from commencing, prosecuting or asserting any claim against the Settling

Defendants, however styled, whether legal or equitable, whether arising under state, federal or

common law, whether for indemnification, contribution or otherwise denominated, where the

claim is based upon, arises out of or relates to the claims in the Class Action including, without

limitation, any claim in which a Non-Settling Defendant seeks to recover from the Settling

Defendants (1) any amounts a Non-Settling Defendant has paid, becomes liable to pay or may

become liable to pay (whether in cash or other form of consideration ) in the Class Action, and (2)

any costs, fees, expenses or attorneys' fees that a Non-Settling Defendant incurred or may incur in

the Class Action. Nothing in this paragraph shall be construed to divest any Non-Settling

Defendant of the right to obtain an appropriate judgment reduction or settlement credit available

to such Non-Settling Defendant under any applicable statutory or common law rule.

MISCELLANEOUS PROVISIONS

31. All of the related agreements finalized by the Parties on or before August 8, 2008

are hereby incorporated by reference as though fully set forth herein.

32. If there is a conflict between this Stipulation and any exhibit to this Stipulation, the

language of this Stipulation shall be controlling.

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

resolution of all disputes asserted or which could be asserted by the Lead Plaintiffs or the Class

against the Settling Defendants with respect to the Released Claims. Accordingly, Lead Plaintiffs

and the Settling Defendants agree that the Class Action was brought by Lead Plaintiffs and

defended by the Settling Defendants in compliance with the requirements of Fed. R. Civ. P. 11(b).

The parties have no claims of any violation of Rule 11 of the Federal Rules of Civil Procedure

relating to the prosecution, defense , or settlement of the Class Action by any of the Lead

02433/2736731.1 31


Plaintiffs, the Class or the Settling Defendants or their counsel. The parties agree that the amount

paid and the other terms of the Settlement were negotiated at arm's length in good faith by the

parties, and reflect a settlement that was reached voluntarily after consultation with experienced

legal counsel.

34. This Stipulation may not be modified or amended, nor may any of its provisions be

waived except by a writing signed by all parties hereto or their successors-in-interest.

35. The headings herein are used for the purpose of convenience only and are not

meant to have legal effect.

36. The administration and consummation of the Settlement as embodied in this

Stipulation shall be under the authority of the Court and the Court shall retain jurisdiction for the

purpose of entering orders providing for awards of attorneys' fees and expenses to Lead Plaintiffs'

Counsel and enforcing the terms of this Stipulation.

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

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

waiver by any other party.

38. This Stipulation and related documents, together with the Supplemental

Agreement, constitute the entire agreement among the parties hereto concerning the Settlement of

the Action as to the Settling Defendants, and no representations, warranties, or inducements have

been made by any party hereto concerning this Stipulation and related documents finalized by the

Parties and the Supplemental Agreement other than those contained and memorialized in such

documents.

39. This Stipulation may be executed in one or more facsimile counterparts. All

executed counterparts and each of them shall be deemed to be one and the same instrument

02433/2736731.1 32


provided that counsel for the parties to this Stipulation shall exchange among themselves original

signed counterparts.

40. This Stipulation shall be binding upon, and inure to the benefit of, the parties

hereto, and the successors and assigns of the parties hereto.

41. The construction, interpretation, operation, effect and validity of this Stipulation,

and all documents necessary to effectuate it, shall be governed by the laws of the State of

California without regard to conflicts of laws, except to the extent that federal law requires that

federal law govern.

42. This Stipulation shall not be construed more strictly against one party than another

merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of

the parties, it being recognized that it is the result of arm's-length negotiations between the parties

and all parties have contributed substantially and materially to the preparation of this Stipulation.

43. All counsel and any other person executing this Stipulation and related documents

finalized by the Parties, warrant and represent that they have the full authority to do so and that

they have the authority to take appropriate action required or permitted to be taken pursuant to the

Stipulation to effectuate its terms.

02433/2736731.1 33


44. Lead Plaintiffs' Counsel and the Settling Defendants' Counsel agree to cooperate

reasonably with one another in seeking Court approval of the Preliminary Approval Order, the

Stipulation and the Settlement, and to promptly agree upon and execute all such other

documentation as may be reasonably required to obtain final approval by the Court of the

Settlement.

DATED: DecemberO 2008 GOLD BENNETT CERA & SIDENER LLP

By: ^ly^cSolomon B. Cera

Attorneys for Section I0(b) Lead Plaintiff

The Loran Group

DATED: Deccmber , 2008 ABRAHAM FRUCHTER & TWERSKY LLP

By:Lawrence D. Levit

DATED: December_, 2008 STULL, STULL & BRODY

By:Howard T. Longman

Attorneys for Section I I Lead PlaintiffHeywood Waga

DATED: Decembea 2008 QUINN EMANUEL URQUHARTOLIVER & HEDGES, LLP

By:_John B. QuinnHarry A. Olivar, Jr.

Attorneys for John J. Mooresand JMI Services, Inc.

02433a736731.1 34


44. Lead Plaintiffs' Counsel and the Settling Defendants' Counsel agree to cooperate




Settlement.

DATED: December _, 2008

DATED: December , 2008

DATED: December-, 2008

DATED: December 1, 2008

GOLD BENNETT CERA & SIDENER LLP

By:Solomon B. Cera

Attorneys for Section 10(b) Lead PlaintiffThe Loran Group

ABA UCHT Y

Lawrence D. Levit

STULL, STULL & BRODY

By:Howard T. Longman

Attorneys for Section 11 Lead Plaintiff

Heywood Waga

QUINN EMANUEL URQUHARTOLIVER & HEDGES, LLP

By:John B. QuinnHarry A. Olivar, Jr.


0243312736731.1 34


44. Lead Plaintiffs ' Counsel and the Settling Defendants ' Counsel agree to cooperate




Settlement,

DATED: December 2008 . GOLD BENNETT CERA & SIDENER LLP

By:Solomon B. Cera

Attorneys for Section 10(b) Lead PlaintiffThe Loran Group

DATED: December , 2008 ABRAHAM FRUCHTER & TWERSKY LLP

By:Lawrence D. Levit

DATED: December 7- 008 S . S L & BRO '"-7

By: Gam'Ho dd T. Longman

Attorneys for Section 11 Lead PlaintiffHeywood Waga

DATED: December 1, 2008 QUINN EMANUEL URQUHARTOLIVER & HEDGES, LLP

By:John B. QuinnHarry A. Olivar, Jr.


02433;2736731.1 34

Case 3:02-cv-00870-BEN-RBB Document 826 Filed 02/09/2009 - Page37 39

DATED: December 2008 GIBBS &

By: , , t,.' -r

R in C. GibbsJ. hristopher3^eylds

Cotner

Attorneys for Charles E. Noell III,Richard A. Hosley II, and Norris van den Berg

DATED: December 2008 BEWLEY, LASSLEBEN & MILLER, LLP

By:Leighton M. Anderson

Attorneys for Christopher A. Cole

DATED: December 2008 NEAL GERBER & EISENBERG LLP

By:Phillip L. Stern

Attorneys for Respondent Rodney F.Dammeyer

02433.2740682.1 35


DATED: December 2008 GIBBS & BRUNS LLP

By:Robin C. GibbsJ. Christopher ReynoldsJeffry J. Cotner

Attorneys for Charles E. Noell III,Richard A. Hosley II, and Norris van den Berg

DATED: December U 2008 BEWLEY, LA LEBEN LER,

By:Lei to . Ande son


DATED: December-, 2008 NEAL GERBER & EISENBERG LLP

By:Phillip L. Stem


LLP

02433/2736731.1 35


By:Leighton M. Anderson


DATED: December --, 2008 NEAL GERBER & EISENBERG LLP

By:P illip . tern


0243317139273.1 35

Case 3:02-cv-00870-BEN-RBB Document 826-2 Filed 02/09/2009 Page 1 of 27

EXHIBIT 1



IN RE PEREGRINE SYSTEMS, INC.SECURITIES LITIGATION

Case No. 02-CV-0870- BEN (RBB)

This Document Relates to:ALL ACTIONS

SECOND NOTICE OF PENDENCY OF CLASS ACTION ANDHEARING ON ADDITIONAL PROPOSED PARTIAL SETTLEMENTS

TO: ALL PERSONS WHO PURCHASED OR ACQUIRED PEREGRINE SYSTEMS, INC.SECURITIES DURING THE PERIOD FROM JULY 22, 1999 THROUGH MAY 3,2002, INCLUSIVE, INCLUDING ALL PERSONS WHO OWNED SHARES OFHARBINGER CORP. OR REMEDY CORP. STOCK AND EXCHANGED THOSESHARES FOR PEREGRINE SHARES.

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTSMAY BE AFFECTED BY PROCEEDINGS IN THIS ACTION. IF YOU ARE ASETTLEMENT CLASS MEMBER, AS DEFINED HEREIN, YOU MAY BE ENTITLED TORECEIVE A CASH BENEFIT PURSUANT TO THE PROPOSED PARTIAL SETTLEMENTSDESCRIBED IN THIS NOTICE.

EXCLUSION DEADLINE: REQUESTS FOR EXCLUSION MUST BE SUBMITTEDPOSTMARKED ON OR BEFORE [55 DAYS AFTER DATE OF PRELIMINARYAPPROVAL ORDER].

SECURITIES BROKERS AND OTHER NOMINEES: PLEASE SEE INSTRUCTIONS ONPAGE _ HEREIN.

#120595

Case 3 : 02-cv-00870-BEN-RBB Document 826-2 Filed 02/09/2009 Page 3 of 27

I. SUMMARY OF SETTLEMENT AND RELATED MATTERS

This Notice of Pendency of Class Action and Hearing on Proposed Partial

Settlements (the "Notice") is given pursuant to Rule 23 of the Federal Rules of Civil Procedure

and an Order of the United States District Court for the Southern District of California (the

"Court") dated , 2009. The purpose of this Notice is to inform you of additional

proposed settlements (collectively referred to as the "Settlement") in the aggregate principal

amount of $56,075,000, which will affect your rights in this Class Action relating to Peregrine

Systems, Inc. ("Peregrine"). Final approval of the Settlement will be considered at a hearing to

be held by the Court to consider its fairness, reasonableness, and adequacy. This Notice

describes your rights under the Settlement and what steps you may take in relation to this Class

Action. Capitalized terms used in this Notice have the meanings given to them in the

"Definitions" section below unless otherwise defined. The Settlement discussed herein relates to

claims against the following defendants , who were former outside directors of Peregrine: John J.

Moores, Charles E. Noell III , Norris van den Berg, Richard A. Hosley II, Christopher A. Cole,

and Rodney F. Dammeyer (at times collectively referred to as the "Outside Director Settling

Defendants"); and the following defendants who were former officers of Peregrine : Stephen P.

Gardner, Matthew C. Gless, Frederic B . Luddy, and Richard T. Nelson ( at times collectively

referred to as the "Officer Settling Defendants"). The Outside Director Settling Defendants and

the Officer Settling Defendants are collectively referred to as the "Settling Defendants." The

Class previously settled claims against Peregrine in connection with Peregrine 's Bankruptcy

Court proceedings. Prior settlements were also reached with defendants Arthur Andersen LLP,

Douglas S. Powanda, William D . Savoy and Thomas G. Watrous. These prior settlements,

approved by the Court, were described in a previous notice dated July 31, 2006. This Notice is

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not an expression of any opinion by the Court as to the merits of any claims or any defenses

asserted by any party in this Class Action or as to the fairness or adequacy of the Settlement.

H. STATEMENT OF PLAINTIFFS' RECOVERY

2. The Settlement, if finally approved, will consist of $56,075,000 plus

approximately $5,000,000 which is being held by the Peregrine Litigation Trust, resulting in a

Settlement Fund of approximately $61,075,000. The Settlement Fund will be available for

distribution to Settlement Class Members, subject to deduction for costs of notice and

administration, and for attorneys' fees, costs and expenses as approved by the Court. Attorneys'

fees equal to 20% of the Settlement Fund and expenses of up to $500,000 are being requested.

Your recovery from these funds will depend on a number of variables, including the number and

timing of Peregrine shares you purchased, whether they were acquired on the open market or

through an exchange of shares, and the number of claims submitted. It is estimated that if all

eligible Peregrine securities purchasers or exchangers covered by this Settlement were to file

claims to share therein , then the average recovery per damaged share of common stock under the

Settlement would be $0.11 per share (before the deduction of any Court-awarded attorneys' fees

and expenses).

III. STATEMENT OF POTENTIAL OUTCOME OF CASE

The Lead Plaintiffs (defined hereinafter) and the Settling Defendants disagree as

to both liability and damages and do not agree on the average amount of damages per share, if

any, that would be recoverable if Lead Plaintiffs were to prevail on the claims alleged against the

Settling Defendants. In addition to the numerous risks of litigation and liability issues on which

the parties disagree, the damage-related issues on which the parties disagree include: (a) whether

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any affirmative misstatements were made by any Settling Defendant; (b) whether the alleged

misstatements or omissions were made intentionally, recklessly, negligently, or innocently; (c)

the appropriate economic model for determining the amount by which Peregrine's securities

were allegedly artificially inflated (if at all) during the Class Period (defined below); (d) the

amount by which Peregrine's securities were allegedly artificially inflated (if at all) during the

Class Period; (e) the effect of various market forces influencing the trading price of Peregrine's

securities at various times during the Class Period; (f) the extent to which external factors, such

as general market and industry conditions, influenced the trading price of Peregrine's securities

at various times during the Class Period; (g) the extent to which the various matters that Lead

Plaintiffs allege were materially false or misleading influenced (if at all) the trading price of

Peregrine's securities at various times during the Class Period; (h) the extent to which the

various allegedly adverse material facts that Lead Plaintiffs allege were omitted influenced (if at

all) the trading price of Peregrine's securities at various times during the Class Period; and (i)

whether any statements made or facts allegedly omitted were material or otherwise actionable

under the federal securities laws. Under the relevant securities laws, a claimant's recoverable

damages are limited to the losses attributable to the alleged fraud or material misrepresentations

or omissions. Losses which resulted from factors other than the alleged fraud or material

misrepresentations or omissions are not compensable under the federal securities laws.

4. Lead Counsel believe that there was a substantial risk that Lead Plaintiffs and the

Settlement Class might not have recovered anything from the Settling Defendants in light of the

status of the litigation, the absence of insurance to satisfy the claims asserted in the Class Action

not exhausted by defense costs, and the defenses asserted to the claims. Absent the Settlement,

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Lead Plaintiffs could have recovered nothing or substantially less than the settlement amount

herein described.

The Settling Defendants deny that they are liable to the Lead Plaintiffs or the

Settlement Class and deny that Lead Plaintiffs or the Settlement Class have suffered any

damages.

IV. STATEMENT OF ATTORNEYS' FEES AND REIMBURSEMENT OFEXPENSES SOUGHT

6. Lead Counsel intend to apply for fees equal to 20% of the Settlement Fund (an

average of $0.03 per damaged share). This amount is based on the recommendation of the

retired federal Magistrate Judge who served as a mediator for various settlement negotiations in

this Action. Lead Counsel have expended considerable time and effort in the prosecution of this

litigation on a contingent fee basis, and have advanced the expenses of the litigation, with the

expectation that if they were successful in obtaining a recovery for the Settlement Class they

would be compensated for their efforts from such recoveries. In this type of litigation, it is

customary for counsel to be awarded a percentage of the common fund they have created as their

attorneys' fees. Lead Counsel are not seeking a fee on the amounts distributed in connection

with assets forfeited by Defendant Gardner to the United States government.

7. Lead Counsel are also seeking reimbursement of expenses in an amount not to

exceed $500,000 incurred in this litigation from April 30, 2006 through the date on which final

approval of the Settlement is granted.

V. REASONS FOR THE SETTLEMENT

8. The principal reason for the Settlement is the immediate substantial cash benefit

to be made available to Settlement Class Members if the Settlement is finally approved and

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becomes effective. This benefit must be compared to the risk that no recovery might be achieved

from the Settling Defendants in view of the current status of the litigation, the significant delay

that may arise from continued litigation against these defendants, and the possibility that some or

all of the Settling Defendants might ultimately be found not liable to Lead Plaintiffs and/or the

Settlement Class.

VI. BACKGROUND OF THE LITIGATION

9. Peregrine at all times during the Class Period was a publicly traded company

headquartered in San Diego, California that developed and marketed software products, and

whose stock was traded on NASDAQ.

10. Beginning in May 2002, class action complaints alleging violations of the federal

securities laws were filed in the Court against Peregrine and other defendants. The other

defendants include former officers and directors of Peregrine, former strategic alliance partners

of Peregrine, and Peregrine's former auditor. The class actions were consolidated pursuant to an

Order of the Court entered on July 23, 2002. By Order dated January 30, 2003, the Court

appointed the Loran Group as the Lead Plaintiff for securities fraud claims arising under Sections

10(b) and 20(a) of the Securities Exchange Act of 1934 (" 1934 Act") and Heywood Waga as

Lead Plaintiff for claims on behalf of persons who held shares of either Harbinger Corporation

("Harbinger") or Remedy Corporation ("Remedy") and who acquired Peregrine registered

common stock in connection with Peregrine's acquisition of these companies (the "Subclasses").

The claims on behalf of the members of the Subclasses are for violation of Sections 11 and 15 of

the Securities Act of 1933 and Section 14(a) of the 1934 Act. The Court further appointed the

law firm of Gold Bennett Cera & Sidener LLP as Lead Counsel for the Sections 10(b) and 20(a)

claims and the law firms of Abraham Fruchter & Twersky LLP, and Stull, Stull & Brody as Lead

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Counsel for the claims brought on behalf of the Harbinger and Remedy Subclasses (collectively

referred to as "Lead Counsel").

11. On March 18, 2003, Lead Plaintiffs tiled a Consolidated Class Action Complaint

for Violations of the Federal Securities Laws (the "Consolidated Complaint"). The Consolidated

Complaint generally alleged that certain defendants disseminated a series of materially false and

misleading statements in public filings, press releases, shareholder reports, audit opinions, and

communications with securities analysts during the Class Period that caused Peregrine securities

to trade at artificially inflated prices, thereby causing damage to purchasers of Peregrine

securities. As to the Harbinger and Remedy Subclasses, the Consolidated Complaint alleged that

certain defendants signed registration statements that contained false and misleading statements.

12. The Court, in an Order dated November 21, 2003, granted in part and denied in

part motions to dismiss tiled by various defendants, including certain of the Settling Defendants.

Specifically, the Court dismissed the Section 10(b), 12(a)(2), 14(a), 15 and 20(a) claims against

certain of the Outside Director Settling Defendants without prejudice and with leave to amend,

and refused to dismiss the Section 11 claims against certain of the Outside Director Settling

Defendants. The motions to dismiss filed by Defendants Nelson and Luddy were granted in their

entirety. The motions to dismiss filed by Defendants Gardner and Gless were granted with

respect to the Section 12(a)(2) and 14 claims, but denied as to the Section 10(b), 11, 15 and 20(a)

claims.

13. On April 5, 2004, Lead Plaintiffs filed a First Amended Consolidated Class

Action Complaint for Violations of the Federal Securities Laws (the "Complaint"). Because

Peregrine had filed for bankruptcy in September 2002, it was no longer named as a defendant in

the Complaint. The Complaint generally alleges that certain defendants disseminated a series of

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materially false and misleading statements in public filings, press releases, shareholder reports,

audit opinions, and communications with securities analysts during the Class Period which

caused Peregrine securities to trade at artificially inflated prices, thereby causing damage to

purchasers of Peregrine securities . As to the Harbinger and Remedy Subclasses , the Complaint

alleges that certain defendants signed registration statements that contained false and misleading

statements.

14. The Complaint alleges that material overstatements of the Company' s revenues

and earnings disseminated during the Class Period resulted from the Company's failure to

recognize revenue properly when it was earned under applicable accounting rules and to report

Peregrine's true financial results accurately. Peregrine restated earnings for fiscal years 2000

and 2001. The primary reason for the restatements was the overstatement of revenue.

15. The Complaint further alleges that Lead Plaintiffs and other Class Members

purchased or otherwise acquired Peregrine securities during the Class Period at artificially

inflated prices as a result of certain defendants' dissemination of false and misleading statements

and suffered losses when the truth about Peregrine's financial condition became known and

Peregrine's stock price declined.

16. The Settling Defendants deny all allegations of wrongdoing or liability in the

Class Action. The Settling Defendants (excluding Stephen P. Gardner, Matthew C. Gless, and

Richard T. Nelson) also deny all other accusations of wrongdoing or violations of law, and have

asserted numerous defenses to the claims were this litigation to proceed against them. Stephen

P. Gardner, Matthew C. Gless, and Richard T. Nelson have pled guilty to criminal charges, but

otherwise deny all allegations of wrongdoing or violations of law. The Settlement is not and

shall not be construed or be deemed to be evidence or an admission or a concession on the part

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of the Settling Defendants of any fault or liability or damages whatsoever, and they do not

concede any infirmity in the defenses which they have asserted or intended to assert in the Class

Action.

17. The Court, in an Order dated March 30, 2005, granted in part and denied in part

motions to dismiss filed by various defendants, including certain of the Settling Defendants.

Specifically, the Court dismissed the Sections 10(b) and 20(a) claims against the Settling

Defendants, and refused to dismiss the Sections 11 and 14(a) claims against certain of the

Settling Defendants. Thereafter, the Court entered a Rule 54(b) judgment as to the Section 10(b)

claims in favor of the Settling Defendants and stayed prosecution of the Section 11 claims until

final resolution of an appeal as to the Section 10(b) claims. Lead Plaintiff the Loran Group

appealed the dismissal of the Section 10(b) claims to the Ninth Circuit Court of Appeals. The

appeal was argued on November 6, 2007. If this Settlement is finalized , the appeal will be

withdrawn as to the Settling Defendants. On January 23, 2009, the Ninth Circuit affirmed the

dismissal of the claims against defendants KPMG LLP, BearingPoint , Inc. and Larry Rodda.

VII. BACKGROUND TO THE SETTLEMENT

18. Lead Counsel has conducted an investigation relating to the claims and the

underlying events and transactions alleged in the Complaint. Lead Counsel has examined

relevant filings by Peregrine with the United States Securities and Exchange Commission before,

during and after the Class Period. Further, Lead Counsel was able to obtain access to Peregrine's

business records during the relevant period as a result of Lead Counsel's negotiations with

Peregrine during its Bankruptcy Court proceedings. Based on the foregoing, Lead Counsel

believe that in light of the current status of the litigation against the Settling Defendants, the

Settlement represents a significant and highly beneficial recovery for Settlement Class Members.

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19. Lead Counsel have analyzed the evidence adduced during their factual

investigation and have researched the applicable law with respect to the claims of Lead Plaintiffs

and the Settlement Class against the Settling Defendants and the potential defenses thereto. Prior

to entering into the Settlement described herein, Lead Counsel conducted an extensive

investigation of the claims, including the analysis of hundreds of thousands of documents and e-

mails produced by Peregrine.

20. Lead Plaintiffs, through Lead Counsel, have conducted discussions and arms'

length negotiations with counsel for the Settling Defendants regarding a compromise and

settlement of the Class Action with a view to settling the issues in dispute and achieving the best

relief possible consistent with the interests of the Settlement Class Members. As to the Outside

Director Settling Defendants, the parties were assisted in these efforts by a retired United States

Magistrate Judge serving as a settlement mediator.

21. Lead Plaintiffs and the Settling Defendants realize that the continued litigation of

the claims would entail substantial effort and expense and involve considerable risk and

uncertainty, and believe that the claims in the Class Action as against the Settling Defendants are

best settled as set forth herein.

22. No determination has been made by the Court as to liability or the amount, if any,

of damages suffered by the Class, nor the proper measure of any such damages. The Settlement

will provide a substantial cash benefit for Settlement Class Members and avoid the risk that

liability or damages might not be proven against the Settling Defendants, or that if liability and

damages are proven against them, that any ensuing judgment might not be collectible from them.

Under relevant law, the ultimate liability of these Non-Settling Defendants, if any, may be

reduced by the larger of the amount of the settlement payments or the proportionate

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responsibility of the Settling Defendants for any damage ultimately proven to have been incurred

by the Settlement Class.

23. A FINAL DETERMINATION HAS NOT BEEN MADE ON THE MERITS OF

THE LEAD PLAINTIFFS' CLAIMS AGAINST THE SETTLING DEFENDANTS OR THEIR

DEFENSES THERETO. ALTHOUGH THE COURT HAS MADE CERTAIN RULINGS ON

LEAD PLAINTIFFS' CLAIMS, AS DESCRIBED IN PARAGRAPHS 12 AND 17 ABOVE,

THIS NOTICE DOES NOT IMPLY THAT THERE HAS BEEN OR WOULD BE ANY

FINDING OF VIOLATION OF THE LAW OR THAT RECOVERY COULD BE HAD IN

ANY AMOUNT IF THE ACTION WERE NOT SETTLED.

VIII. DEFINITIONS

24. "Actions" means the Class Action and the PLT Action collectively.

25. "Additional Released Parties" means JMI Services, the Avery K. Moores 1994

Trust, Barry A. Moores 1993 Trust, Barry O. Moores 1991 Trust, Benjamin H. Moores 1996

Trust, Melissa K. Moores 1990 Trust, Jennifer Ann Moores Trust, John J. Moores, Jr. Trust,

Anthony K. Moores 1991 Trust, Molly Moores Schulman 1991 Trust, Jason B. Schulman 1990

Trust, Rachel E. Schulman 1990 Trust, Michael & Debra Baas 1990 Trust, Rosanne E. Baas

1990 Trust, Christopher N. Baas 1990 Trust, Seth J. Baas 1990 Trust, Britton L. Baas 1990

Trust, Patrick & Rosario Baas Trust; Clare C. Toner 1992 Trust; David A. Toner 1992 Trust, and

Toni L. Cruse 1994 Trust.

26. "Authorized Claimant" means any Settlement Class member whose Claim for

recovery is allowed by the Court.

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27. "Class Action" means the lawsuit captioned In re Peregrine Systems, Inc.,

Securities Litigation, United States District Court for the Southern District of California, Case

No. 02-CV-0870-BEN (RBB).

28. "Class Period" means the period of time from July 22, 1999 through May 3, 2002,

inclusive.

29. "Court" means the United States District Court for the Southern District of

California.

30. "Excluded Settlement Class Members" means any Settlement Class member who

validly requests exclusion from the Settlement, as set forth in this Notice.

31. "Lead Counsel" means the law firms appointed as lead counsel in the Court's

January 30, 2003 Order: Gold Bennett Cera & Sidener LLP as Lead Counsel for the Section

10(b) and 20(a) claims and Abraham Fruchter & Twersky LLP and Stull, Stull & Brody as Lead

Counsel for the claims brought on behalf of the Harbinger and Remedy Subclasses.

32. "Lead Plaintiffs" means the group consisting of David Levy, Leighton Powell,

David Schenkel, John Virden, Conrad Willemse, Bill Holman , Bob Benesko , Michael Slavitch,

Richard Maheu, and Mark Rollins (hereinafter the "Loran Group") who were appointed as Lead

Plaintiffs for the claims arising under Section 10(b) of the 1934 Act, and Heywood Waga

(hereinafter "Waga"), who was appointed as Lead Plaintiff for the claims arising under Section

11 of the 1933 Act.

33. "Person" means an individual or entity, including any corporation (including any

division or subsidiary), partnership, limited partnership, association, joint stock company, estate,

legal representative, trust , unincorporated association, or government or any political subdivision

or agency thereof.

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34. "Plan of Allocation" means the plan, previously approved by the Court on

November 15, 2006, for the allocation and distribution of the Settlement proceeds to Authorized

Claimants.

35. "PLT Action" means the lawsuit captioned Peregrine Litigation Trust v. Moores,

et al., San Diego Superior Court, Case No. GIC 788659, which is currently on appeal to Division

One of the Fourth Appellate Division of the State of California, Civil No. D051347.

36. "Released Claims" means all claims, rights, demands, suits, matters, issues or

causes of action, whether known or unknown, fixed or contingent, foreseen or unforeseen,

against the Settling Defendants and the Additional Released Parties, whether under state or

federal law, including the federal securities laws, and whether directly, indirectly,

representatively, derivatively or in any other capacity, in connection with, based upon, arising

out of, or relating to any claim that has been or could have been raised in the Actions or the acts,

facts or events alleged in the Actions, including the claims against the Settling Defendants and

the Additional Released Parties asserted in the PLT Action. Released Claims also specifically

include claims the Lead Plaintiffs and Settlement Class do not know or suspect to exist in their

favor at the time of the Settlement which, if known by them, might affect the Settlement and the

releases therein, or might affect their decision not to object to, or opt out of, the Settlement.

With respect to any and all claims released herein, the Parties agree that, effective upon the

Effective Date, Plaintiffs expressly waive and relinquish, shall be deemed to have, and by

operation of the Order and Final Judgment shall have, expressly waived and relinquished, and

the Settling Defendants expressly waive and relinquish, to the fullest extent permitted by law, the

provisions, rights, and benefits of § 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS ORHER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH

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IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTEDHIS OR HER SETTLEMENT WITH THE DEBTOR.

Additionally, the Parties expressly waive, upon the Effective Date and by operation of the Order

and Final Judgment shall have waived, any and all provisions, rights and benefits conferred by

any law of the United States or of any state or territory of the United States or of any other

country, whether statutory, code, or common law, which is similar, comparable or equivalent to

§ 1542 of the California Civil Code. The Parties may hereafter discover facts in addition to or

different from those which they now know or believe to be true with respect to the subject matter

of the claims released herein, but hereby stipulate and agree that they do settle and release, and

shall be deemed to have, and upon the Effective Date and by operation of the Order and Final

Judgment shall have, settled and released all claims described herein, whether known or

unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or

hidden, which now exist, or heretofore have existed, upon any theory of law or equity now

existing or coming into existence in the future, without regard to the subsequent discovery or

existence of such different or additional facts. The Parties acknowledge that the foregoing

waiver was bargained for and is a material term and condition of the Settlement.

37. "Settlement" refers to the agreements to settle claims in the Class Action, which,

if approved, will result in dismissal of the claims in the PLT Action, as set forth in the

Stipulation and Agreement of Settlement with defendants John J. Moores, Charles E. Noell III,

Norris van den Berg, Richard A. Hosley II, Christopher A. Cole, and Rodney F. Dammeyer

dated as of August 8, 2008, and the Stipulation and Agreement of Settlement with Defendants

Stephen P. Gardner, Matthew C. Gless, Frederic B. Luddy, and Richard T. Nelson dated as of

December 22, 2008, both of which are on file with the Court.

38. "Settlement Class" means:

All Persons (including Lead Plaintiffs) who purchased or otherwiseacquired Peregrine common stock during the Class Period and whowere injured thereby, and two subclasses ("Subclasses") consistingof all Persons who held shares of Harbinger Corporation and who

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acquired Peregrine registered common stock in connection withPeregrine's acquisition of Harbinger Corporation, which wasconsummated on or about June 16, 2000, and all Persons who heldshares of Remedy Corporation and who acquired Peregrineregistered common stock in connection with Peregrine'sacquisition of Remedy Corporation, which was consummated onor about August 27, 2001.

Excluded from the Settlement Class are: defendants in the Actions, the Additional Released

Parties, members of the immediate families (parents, spouses, siblings and children) of each of

the individual defendants; any person, firm, trust, corporation, or entity in which any defendant

has a controlling interest; the officers, directors, parents, subsidiaries, and affiliates of Peregrine;

and the legal representatives, heirs, successors in interest or assigns of any such excluded party.

Also excluded from the Settlement Class are any putative class members who exclude

themselves by filing a Request for Exclusion in accordance with the requirements set forth in this

Notice, or putative class members who have previously released the Settling Defendants in

connection with Peregrine-related claims.

39. "Settlement Fund" means all funds deposited in an escrow account by the Settling

Defendants, including accumulated interest or other earnings, less any costs, expenses, reserves,

taxes, or attorneys' fees paid therefrom (as authorized by the Stipulation or by Court Order) and

the balance of funds held by the Peregrine Litigation Trust, which totaled approximately

$5,000,000 as of January 31, 2009. The funds from the PLT are being included in the Settlement

Fund in accordance with an Order of the Bankruptcy Court as conceived and structured by Lead

Counsel.

40. "Settling Defendants" means, collectively, John J. Moores, Charles E. Noell III,

Norris van den Berg, Richard A. Hosley II, Christopher A. Cole, Rodney F. Dammeyer, Stephen

P. Gardner, Matthew C. Gless, Frederic B. Luddy, and Richard T. Nelson.

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IX. TERMS OF THE PROPOSED SETTLEMENTS

41. In full and complete resolution of the claims which have or could have been

asserted against the Settling Defendants in the Class Action and of the additional claims

described in paragraph 44 below, and subject to the terms and conditions of the Settlement,

which is on file with the Court and available for inspection, the Settling Defendants have paid or

will pay $56,075,000 in cash into an escrow account as follows:

(a) Settling Defendant Dammeyer paid $950,000 into escrow on August 21,

2008.

(b) Settling Defendants Moores, Noell, van den Berg, Hosley, and Cole paid

$5,000,000 into escrow on October 10, 2008, paid $22,500,000 into escrow on January 5, 2009,

and will pay $27,500,000 into escrow on or before October 31, 2009. The October 31, 2009

payment obligation is reflected in a promissory note from defendant John J. Moores and Rebecca

Ann Moores jointly as individuals and as Trustees of the John and Rebecca Ann Moores Family

Trust, which may be prepaid at any time and will be secured by the security and agreements set

forth in paragraph 7(a)(4)(D) of the Stipulation and Agreement of Settlement. Simple interest

shall accrue on the outstanding balance starting November 3, 2008. From November 3, 2008

through March 31, 2009, the rate of interest shall be the six-month Treasury bill rate in effect on

November 3, 2008; beginning March 31, 2009, the rate of interest shall be four percent (4%) per

annum.

(c) Settling Defendant Luddy will pay One Hundred Thousand Dollars

($100,000) into an agreed upon escrow account, half of such amount within ten (10) days of

entry of an order granting preliminary approval of the Officer Settling Defendants' settlement

and the other half five days before the final approval hearing.

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(d) Settling Defendant Nelson will pay Twenty-Five Thousand Dollars

($25,000) into an agreed upon escrow account within ten (10) days of entry of an order granting

preliminary approval of the Officer Settling Defendants' settlement.

(e) Settling Defendants Gardner and Gless will not be required to pay any

cash in light of their current financial condition. In January 2009, Gardner filed for bankruptcy

protection. Gardner previously forfeited to the United States government certain assets pursuant

to his guilty plea in the criminal case captioned United States v. Gardner, et al., Criminal Case

No. 04CR2605W (S.D. Cal.). These assets consist of approximately $1,354,684.44 in cash and

three parcels of real property located in Maine. It is anticipated that some amount of these

previously-forfeited assets will be distributed to the Authorized Claimants in accordance with the

Plan of Allocation. Such distribution will need to be approved at a later date by the U.S.

Department of Justice and the federal district court overseeing Gardner's criminal case. No

attorneys' fees will be claimed on any amounts so distributed. As to Gless, he has provided Lead

Counsel with a financial statement showing essentially no assets. Settling Defendants Gardner

and Gless will also be required, consistent with their rights in connection with the criminal cases

pending against them and to the extent their respective criminal counsel indicates it is advisable,

to cooperate with Lead Counsel in pursuing any remaining claims. Such cooperation may

include providing relevant documents in their possession, custody and control, as well as

interviews and testimony upon request from Lead Counsel.

In addition to resolving the claims against the Settling Defendants in the Class Action, the

Settlement will, if finally approved, also release the claims brought against the Settling

Defendants and certain Additional Released Parties in the PLT Action. Such actions would

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resolve claims that Lead Plaintiffs asserted against Peregrine in Peregrine's bankruptcy case on

behalf of the Settlement Class members.

42. The Settling Defendants deny the wrongdoing alleged, or that could have been

alleged in both the Class Action and the PLT Action. The Settlement shall not be construed as

evidence or an admission by the Settling Defendants regarding any claim, fault, liability,

wrongdoing, or damage, or of any infirmity in the defenses that the Settling Defendants have

asserted.

43. If the Settlement is approved by the Court, all claims which have or could have

been asserted in the Actions against the Settling Defendants or the Additional Released Parties

will be released and dismissed on the merits, with prejudice, as to all Settlement Class members.

All Persons, except Excluded Settlement Class Members, will be forever barred from

prosecuting the Actions, or any other action raising any Settled Claims against the Settling

Defendants or the Additional Released Parties.

44. The Settlement will become effective once, among other things, a final judgment

is entered in the Class Action approving the Settlement, the PLT Action is dismissed with

prejudice, and neither order is subject to appeal and the entire settlement amount has been

deposited into escrow account by the Settling Defendants.

X. NOTICE OF SETTLEMENT FAIRNESS HEARING

45. NOTICE IS HEREBY GIVEN, pursuant to Rule 23 of the Federal Rules of Civil

Procedure and an Order of the Court dated , 2009, that a hearing will be held

before the Honorable Roger T. Benitez, in the United States Courthouse, 880 Front Street, Fourth

Floor, Courtroom 3, San Diego , CA 92101-8900, at _:_, on , 2009 (the

"Settlement Fairness Hearing") to determine whether the Settlement is fair, reasonable and

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adequate, and to consider the application of Lead Counsel for an award of attorneys' fees and

reimbursement of expenses.

46. The Court, by its Order Preliminarily Approving Settlements and Providing for

Notice, dated , 2009, has, for settlement purposes , certified (a) a Settlement Class

consisting of all persons who purchased Peregrine securities during the period from July 22,

1999 through May 3, 2002, inclusive; (b) a subclass consisting of all persons who held shares of

Harbinger stock and who acquired Peregrine registered common stock in connection with

Peregrine's acquisition of Harbinger on or about June 16, 2000; and (c) a subclass consisting of

all persons who held shares of Remedy stock and who acquired Peregrine registered common

stock in connection with Peregrine ' s acquisition of Remedy on or about August 27, 2001.

Excluded from the Settlement Class are: (i) all defendants in the Class Action; (ii) all members

of the immediate families (parents, spouses, siblings and children) of such defendants; (iii) the

Additional Released Parties; (iv) any entity affiliated with any defendant in the Class Action or

with any member of the immediate family of such defendant , including without limitation any

entity in which any such defendant or any member of the immediate family of such defendant

has a controlling interest; (v) the officers, directors, parents, subsidiaries and affiliates of

Peregrine ; (vi) the legal representatives , heirs, successors in interest and assigns of any of the

foregoing; and (vii) with respect to the Settling Defendants, any Person who has previously

released them from claims relating to Peregrine.

XI. DISTRIBUTION OF SETTLEMENT PROCEEDS

47. In addition to the $56,075,000 total settlement consideration, an additional

amount of approximately $5,000,000, which is being held by the Peregrine Litigation Trust,

together with the interest earned thereon, less all taxes, approved costs, fees and expenses shall

#120595 18


be distributed to members of the Settlement Class and Subclasses who previously filed

acceptable Proofs of Claim ("Authorized Claimants") pursuant to the Notice dated July 31, 2006.

The Proof of Claim forms previously submitted by Settlement Class Members have been

processed by the Claims Administrator and will be used to determine the amount of each

Authorized Claimant's recovery. The Allowed Losses previously calculated by the Claims

Administrator will be used to determine each Authorized Claimant's pro rata share of the money

recovered. If you did not previously file a Proof of Claim and wish to do so at this time, you

may download the form at www.gilardi.com. Any such newly filed Proofs of Claim must be

submitted by no later than [55 days after date of Preliminary Approval Order].

48. Each Authorized Claimant shall receive, on a pro rata basis, that share of the

Settlement Fund that the Authorized Claimant ' s "Recognized Loss" bears to the total

Recognized Losses of all Authorized Claimants as calculated pursuant to the Plan of Allocation

of Settlement Proceeds previously approved by the Court on November 15, 2006.

49. Checks will be issued to Authorized Claimants as soon as possible after the Court

has finally approved the Settlement. It is possible that there will be two separate distributions in

light of the staggered dates of the Settlement payments.

XII. THE RIGHTS OF SETTLEMENT CLASS MEMBERS

50. The Court has certified a Settlement Class allowing the Settlement to proceed for

the benefit of the members of the Settlement Class. If you purchased Peregrine securities and/or

received them in an exchange for Harbinger or Remedy shares during the period from July 22,

1999 through May 3, 2002, inclusive, then you are a Settlement Class Member. However, if you

previously released claims against any of the Settling Defendants relating to Peregrine, you are

#120595 19


not entitled to any share of the settlement proceeds paid by them. Settlement Class Members

have the following options pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure:

(a) If you wish to remain a member of the Settlement Class, you do not have

to do anything at this time. Settlement Class Members will be represented by Lead Plaintiffs and

Lead Counsel, unless you enter an appearance through counsel of your own choice at your own

expense. You are not required to retain your own counsel, but if you choose to do so, such

counsel must file an appearance on your behalf on or before [55 days after date of Preliminary

Approval Order], and must serve copies of such appearance on the attorneys listed in paragraph

55 below.

(b) If you do not wish to remain a member of the Settlement Class, you may

exclude yourself from the Settlement Class by following the instructions in paragraph 53 below.

Persons who exclude themselves from the Settlement Class will NOT be entitled to receive any

share of the Settlement proceeds and will not be bound by the Settlement.

(c) If you object to the Settlement, or to Lead Counsel's application for fees or

expenses, and if you do not exclude yourself from the Settlement Class, you may present your

objections by following the instructions in paragraph 55 below.

51. IF YOU ARE A SETTLEMENT CLASS MEMBER AND YOU DO NOT

PROPERLY EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS, YOU WILL BE

BOUND BY THE SETTLEMENT, INCLUDING RELEASES, AND THE FINAL

JUDGMENT OF THE COURT DISMISSING THIS ACTION AGAINST THE SETTLING

DEFENDANTS. IF YOU EXCLUDE YOURSELF, YOU WILL NOT BE BOUND BY THE

JUDGMENT BUT YOU WILL NOT BE ENTITLED TO ANY SHARE OF THE NET

SETTLEMENT FUND.

#120595 20


XIII. EXCLUSION FROM THE SETTLEMENT

52. Each Member of the Settlement Class shall be bound by all determinations and

judgments in this Class Action concerning the Settlement, whether favorable or unfavorable,

unless such Person shall mail, by first class mail, a written request for exclusion from the

Settlement Class, postmarked no later than [55 days after date of Preliminary Approval Order],

addressed to In re Peregrine Systems, Inc. Securities Litigation Exclusions, c/o Gilardi & Co.

LLC, Claims Administrator , Post Office Box 8040, San Rafael , CA 94912-8040. No Person

may be excluded from the Settlement Class after that date. In order to be valid, each such

request for exclusion must set forth the name and address of the Person requesting exclusion,

must state that such Person "requests exclusion from the Settlement Class in In re Peregrine

Systems, Inc. Securities Litigation," and must be signed by such Person. Persons requesting

exclusion must also provide: (1) for every purchase or acquisition of Peregrine stock during the

Class Period, the date of the purchase or acquisition, the purchase or acquisition price, and the

number of shares purchased or acquired; and (2) for every sale of Peregrine stock during the

Class Period, the date of the sale, the sale price, and the number of shares sold. Persons

requesting exclusion should indicate whether any or all of their Peregrine shares were acquired in

connection with the Harbinger or Remedy mergers. Persons requesting exclusion are also

requested to provide a telephone number. The request for exclusion shall not be effective unless

it provides the required information and is made within the time stated above, or the exclusion is

otherwise accepted by the Court.

XIV. RIGHTS IN CONNECTION WITH SETTLEMENT FAIRNESS HEARING

53. At the Settlement Fairness Hearing, the Court will determine whether finally to

approve the Settlement and to dismiss the Class Action and the claims of the Settlement Class

#120595 21


Members as against the Settling Defendants only, including a release of all claims in the PLT

Action. If the Settlement is approved, an additional hearing will be held to determine whether

the application of Lead Counsel for attorneys' fees and expenses shall be approved. These

hearings may be adjourned from time to time by the Court without further written notice to the

Settlement Class Members.

54. At the Settlement Fairness Hearing, any Settlement Class Member who has not

properly submitted a Request for Exclusion from the Settlement Class may appear in person or

by counsel and be heard to the extent allowed by the Court in opposition to the fairness,

reasonableness and adequacy of the Settlement or the application for attorneys' fees and

reimbursement of expenses; provided, however, that in no event shall any person be heard in

opposition thereto and in no event shall any paper or brief submitted by any such person be

accepted or considered by the Court, unless, on or before [55 days after date of Preliminary

Approval Order], such person (a) files with the Clerk of the Court notice of such person's

intention to appear, showing proof of such person's membership in the Settlement Class, and

providing a statement that indicates the basis for such opposition, along with any documentation

in support of such objection, and (b) simultaneously serves copies of such notice, proof,

statement and documentation, together with copies of any other papers or briefs such person files

with the Court, in person or by mail upon each of the following: Solomon B . Cera, Esq., Gold

Bennett Cera & Sidener LLP, 595 Market Street , Suite 2300, San Francisco , CA 94105-2835;

Howard T. Longman, Esq., Stull Stull & Brody, 6 East 45th Street, New York, NY 10017; and

Lawrence D. Levit, Esq., Abraham Fruchter & Twersky LLP, One Penn Plaza, Suite 2805, New

York, NY 10119-0165, on behalf of Lead Plaintiffs ; and Harry A. Olivar, Jr., Esq ., Quinn

Emanuel Urquhart Oliver & Hedges, LLP, 865 South Figueroa Street, 10th Floor, Los Angeles,

#120595 22


California 90017, on behalf of Defendants John J. Moores and JMI Services, Inc.; Robin C.

Gibbs, Esq ., Gibbs & Bruns LLP, 1 100 Louisiana , Suite 5300, Houston , TX 77002, on behalf of

Defendants Charles E. Noell III, Richard A. Hosley 11, and Norris van den Berg; Leighton M.

Anderson, Esq., Bewley, Lassleben & Miller, LLP, 13215 East Penn Street, Suite 510, Whittier,

CA 90602-1797, on behalf of Defendant Christopher A. Cole; Phillip L. Stern, Esq., Neil , Gerber

& Eisenberg LLP, 2 North LaSalle Street, 22nd Floor, Chicago, IL 60602, on behalf of

Defendant Rodney F. Dammeyer; Christopher H. McGrath, Esq., Paul Hastings Janofsky &

Walker, LLP, 4747 Executive Drive, 12th Floor, San Diego , CA 92121, on behalf of Defendant

Frederic B. Luddy; Christian D. Humphreys, Esq., McKenna Long & Aldridge, LLP, Symphony

Towers, 750 B Street, Suite 3300, San Diego, CA 92101-8105, on behalf of Defendant Richard

T. Nelson; Caroline McIntyre, Esq., Bergeson, LLP, 303 Almaden Blvd, Suite 500, San Jose, CA

95110-2712, on behalf of Defendant Stephen P. Gardner; and Thomas L. Vance, Esq., Vance &

Blair, LLP , 853 Camino Del Mar, Suite 202 , Del Mar, CA 92014, on behalf of Defendant

Matthew C. Gless.

XV. FURTHER INFORMATION

55. For a more detailed statement of the matters involved in this Class Action,

reference is made to the pleadings, to the Stipulations of Settlement, to the Orders entered by the

Court and to the other papers filed in the Class Action, which may be inspected at the Office of

the Clerk of the Court, United States District Court, Southern District of California, 880 Front

Street , Suite 4290, San Diego , CA 92101-8900, during regular business hours.

56. Further information regarding the Settlement referred to in this Notice may also

be obtained by contacting Lead Counsel: Solomon B. Cera, Esq., Gold Bennett Cera & Sidener

LLP, 595 Market Street , Suite 2300 , San Francisco , CA 94105 , (415) 777-2230 ; Howard T.

#120595 23


Longman, Esq., Stull Stull & Brody, 6 East 45th Street, New York, NY 10017, (212) 687-7230;

and Lawrence D. Levit, Esq., Abraham Fruchter & Twersky LLP, One Penn Plaza, Suite 2805,

New York, NY 101 19-0165, (212) 279-5050.

XVI. SPECIAL NOTICE TO SECURITIES BROKERS AND OTHER NOMINEES

56. If you purchased or acquired securities of Peregrine Systems, Inc. during the

period from July 22, 1999 through May 3, 2002, inclusive for the beneficial interest of a person

or organization other than yourself, the Court has directed that, within seven days of your receipt

of this Notice, you either (a) provide to the Claims Administrator the name and last known

address of each person or organization for whom or which you purchased or acquired such

Peregrine securities during such time period or (b) request additional copies of this Notice, which

will be provided to you free of charge, and within seven days mail the Notice directly to the

beneficial owners of Peregrine securities. If you choose to follow alternative procedure (b), the

Court has directed that, upon such mailing, you send a statement to the Claims Administrator

confirming that the mailing was made as directed. You are entitled to reimbursement from the

Settlement Fund of your reasonable expenses actually incurred in connection with the foregoing,

including reimbursement of postage expense and the cost of ascertaining the names and

addresses of beneficial owners. Those expenses will be paid upon request and submission of

appropriate supporting documentation. All communications concerning the foregoing should be

addressed to the Claims Administrator:

In re Peregrine Systems, Inc. Securities Litigationc/o Gilardi & Co. LLCP.O. Box 8040San Rafael, CA 94912-8040(800) 654-5763www.gilardi.com

DO NOT CONTACT THE COURT.

#120595 24

Case 3:02-cv-00870-BEN-RBB

Dated : February_, 2009

Document 826-2 Filed 02/09/2009 Page 27 of 27

By Order of the CourtClerk of the Court

#120595 25


EXHIBIT 2



Case No . 02-CV-0870-BEN (RBB)IN RE PEREGRINE SYSTEMS, INC.SECURITIES LITIGATION

This Document Relates to:ALL ACTIONS

SECOND SUMMARY NOTICE OF PENDENCY OFCLASS ACTION AND HEARING ON PROPOSED SETTLEMENTS

TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED SECURITIES OFPEREGRINE SYSTEMS, INC. FROM JULY 22, 1999 THROUGH MAY 3, 2002,INCLUSIVE, INCLUDING ALL PERSONS WHO OWNED SHARES OFHARBINGER CORP. OR REMEDY CORP. STOCK AND EXCHANGED THOSESHARES FOR PEREGRINE SHARES (THE "CLASS").

YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil

Procedure and an Order of the Court dated , 2009, that the above-captioned action has

been certified as a class action for settlement purposes and that additional settlements of

$56,075,000 have been proposed with regard to defendants John J. Moores, Charles E. Noell III,

Norris van den Berg, Richard A. Hosley II , Christopher A. Cole, Rodney F . Dammeyer, Stephen

P. Gardner, Matthew C. Gless, Frederic B. Luddy, and Richard T. Nelson. A hearing will be held

before the Honorable Roger T. Benitez, in the United States District Court for the Southern

District of California, 880 Front Street, Courtroom 3, 4"' Floor, San Diego, California 92101-

8900, at _:_, on , 2009 to determine whether the proposed settlements should be

approved by the Court as fair, reasonable, and adequate and to consider the application of

Plaintiffs' Counsel for attorneys' fees and reimbursement of expenses. In addition to settling the

#119554 -1-


above-captioned action, the proposed Settlements will release all claims that have been, or could

have been, brought against the Settling Defendants and Additional Released Parties in Peregrine

Litigation Trust v. Moores, San Diego Superior Court, Case No. GIC 788659, which is currently

on appeal in the California Court of Appeal.

IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS

WILL BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT

FUNDS. If you have not yet received the full printed Second Notice of Pendency of Class

Action and Hearing on Additional Proposed Partial Settlements (the "Notice"), you may obtain a

copy by identifying yourself as a member of the Settlement Class and by calling or writing to:

In re Peregrine Systems, Inc. Securities Litigationc/o Gilardi & Co. LLCClaims AdministratorP.O. Box 8040San Rafael, California 94912-8040(800) 654-5763www.gilardi.com

Inquiries, other than requests for the Notice, may be made to Lead Plaintiff's Counsel:

Solomon B. Cera, Esq.Gold Bennett Cera & Sidener LLP595 Market Street, Suite 2300San Francisco, California 94105

Lawrence D. Levit, Esq.Abraham Fruchter & Twersky LLPOne Penn Plaza, Suite 2805New York, New York 10119-0165

Howard T. Longman, Esq.Stull Stull & Brody6 East 45' StreetNew York, New York 10017

The recovery of each Settlement Class member will be based on the Allowed Loss

determined from the Proof of Claim forms previously submitted to the Claims Administrator. To

exclude yourself from the Settlement Class you must submit a request for exclusion, postmarked

#119554 -2-


no later than [55 dates after date of Preliminary Approval Order], setting forth certain

information ordered by the Court and described in the Notice. If you are a Settlement Class

member and do not exclude yourself you will be bound by the final orders and judgments of the

Court.

PLEASE DO NOT CONTACT THE COURT.

By Order of The Court

#119554 -3-


EXHIBIT 3

3:02-cv-00870-BEN-RBB Document 826-4 Filed 02/09/2009 Page 2 of 13

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

IN RE PEREGRINE SYSTEMS, INC.SECURITIES LITIGATION

This Document Relates to:

ALL ACTIONS.

Master File No. 02-CV-0870-BEN (RBB)

CLASS ACTION

FINAL ORDER AND JUDGMENTDISMISSING ACTION AGAINSTDEFENDANTS JOHN J. MOORES,CHARLES A. NOELL HI, NORRIS VANDEN BERG, RICHARD A. HOSLEY II,CHRISTOPHER A. COLE, ANDRODNEY F. DAMMEYER,CONFIRMING RELEASES, ANDBARRING CERTAIN CLAIMS

Judge: Honorable Roger T. Benitez

JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-BEN(RBB)


By Stipulation and Agreement of Settlement dated as of August 9, 2008 (the

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"Stipulation"), Lead Plaintiffs and defendants John J. Moores, Charles E. Noell III, Norris van den

Berg, Richard A. Hosley II, Christopher A. Cole, and Rodney F. Dammeyer (the "Settling

Defendants") have entered into a settlement of this Class Action. By Order dated , 2009

(the "Preliminary Approval Order"), this Court: (a) preliminarily approved the Settlement;

(b) certified, for settlement purposes only, the Settlement Class identified in the Stipulation; and

(c) provided for notice to be disseminated to the Settlement Class members. On , 2009,

this Court held a final hearing to consider whether to approve the Settlement under the provisions

of Rule 23 of the Federal Rules of Civil Procedure. Due and adequate notice of the hearing was

given to Settlement Class members and all parties in the Class Action. The Court has considered

the Stipulation, all papers filed and proceedings had herein, and all oral and written comments

received regarding the Settlement, and has reviewed the entire record in the Class Action.

NOW, THEREFORE, GOOD CAUSE APPEARING, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that:

1. Defmitions . For purposes of this Judgment, the Court adopts all defined terms set

forth in the Stipulation.

2. Jurisdiction . The Court has jurisdiction over the subject matter of the Class

Action, Lead Plaintiffs, and the Settling Defendants.

3. Requirements of Class Action Satisfied . With respect to the Settlement Class,

the Court finds and concludes that: (a) the Settlement Class members are so numerous that joinder

of all Settlement Class members in the Class Action is impracticable; (b) questions of law and fact

common to the Settlement Class predominate over any individual questions; (c) the claims of Lead

Plaintiffs are typical of the claims of the Settlement Class; (d) Lead Plaintiffs and Plaintiffs'

Counsel have, at all times, fairly and adequately represented and protected the interests of the

Settlement Class members; and (e) a class action is superior to other available methods for the fair

and efficient adjudication of the controversy, considering: (i) the interests of the Settlement Class

members in individually controlling the prosecution of the separate actions; (ii) the extent and

nature of any litigation concerning the controversy already commenced by Settlement Class

JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

BEN(RBB) -1-


I members; (iii) the desirability or undesirability of continuing the litigation of these claims in this

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particular forum; and (iv) the difficulties likely to be encountered in the management of the Class

Action.

4. Adequacy of Notice. The Court finds that the distribution of the Second Notice of

Pendency of Class Action and Hearing on Additional Proposed Partial Settlement and the

publication of the summary notice (as provided for in the Preliminary Approval Order) constituted

the best notice practicable under the circumstances to apprise the Settlement Class members of the

terms of the proposed Settlement and their rights. Settlement Class members were given an

opportunity to present their objections, if any, to the Stipulation. The Court finds that the

provision of notice to Settlement Class members fully met the requirements of Rule 23 of the

Federal Rules of Civil Procedure, federal law, due process, the United States Constitution, and any

other applicable law.

5. Requests for Exclusion from Settlement . The Court finds that all Settlement

Class members have been provided with an adequate opportunity to exclude themselves from the

Settlement Class by requesting exclusion though the procedures set forth in the Notice. The Court

further finds that the persons identified in Exhibit 1 hereto ("Excluded Settlement Class

Members"), and no other persons or entities, have submitted a valid Request for Exclusion as

defined in the Stipulation.

6. Approval of Settlement . The Court approves the Settlement, including the

releases, the amount of the settlement consideration, and all other Settlement terms as fair, just,

reasonable, and adequate to all of the Settlement Class members within the meaning of Rule 23 of

the Federal Rules of Civil Procedure. Lead Plaintiffs and the Settling Defendants are directed to

exercise their best efforts to consummate the Settlement as set forth in the Stipulation.

7. Dismissal of Class Action Atainst Certain Defendants and Injunction Against

Further Prosecution of Settled Claims .

(a). The Class Action and all claims contained therein, and all other Settled

Claims are dismissed with prejudice in favor of the Settling Defendants and against Lead Plaintiffs

and all other Settlement Class members, except Excluded Settlement Class Members. In

JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

BEN(RBB) -2-


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accordance with Section 4(f) of the Private Securities Litigation Reform Act of 1995 , 15 U.S.C. §

78u-4(f)(7)(A), all claims for contribution against the Settling Defendants are barred,

extinguished , discharged and satisfied as a matter of law. All persons are permanently barred,

enjoined , and restrained from commencing , prosecuting or asserting any claim against the Settling

Defendants , however styled , whether legal or equitable, whether arising under state, federal or

common law, whether for indemnification , contribution or otherwise denominated , where the

claim is based upon, arises out of or relates to the facts underlying the claims in the Class Action

including, without limitation , any claim in which a Non-Settling Defendant seeks to recover from

the Settling Defendants ( 1) any amounts a Non- Settling Defendant has paid, becomes liable to pay

or may become liable to pay (whether in cash or other form of consideration) in the Class Action,

and (2) any costs , fees, expenses or attorneys ' fees that a Non-Settling Defendant incurred or may

incur in the Class Action . This bar extends to the Settling Defendants ' and the Additional

Released Parties ' attorneys, agents , insurers , trusts, trustees , estates, employers , employee benefit

plans, representatives , heirs, marital community and assigns. Nothing in this paragraph shall be

construed to divest any Non-Settling Defendant of the right to obtain an appropriate judgment

reduction or settlement credit available to such Non-Settling Defendant under any applicable

statutory or common law rule.

(b). The release and injunction described in paragraph 7(a) above is intended to

release all claims in, and stop further prosecution of the appeal in, the action encaptioned

Peregrine Litigation Trust v. Moores, et al., San Diego County Superior Court, Case No. GIC

788659 ("the PLT Action"). If any court should construe the release and injunction described in

paragraph 7(a) to permit the continued prosecution of the PLT Action, Lead Plaintiffs and the

Class must (a) move the Court for a declaration that the Peregrine Litigation Trustee is currently

Richard M. Kipperman, and (b) use best efforts to obtain the Trustee's release and dismissal of any

Settled Claims brought by the Peregrine Litigation Trust against the Settling Defendants.

Release by Lead Plaintiffs and Settlement Class Members . Upon the Effective

Date, Lead Plaintiffs fully, finally, and forever release, relinquish and discharge , and each

Settlement Class member (except Excluded Settlement Class Members) shall be deemed to have,JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,

COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

BEN(RBB) -3-


and by operation of this Judgment shall have, fully, finally, and forever released, relinquished and

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discharged, each of the Settling Defendants and Additional Released Parties from any and all

Settled Claims.

9. Further Releases by Recipients of Settlement Fund. Only those Settlement

Class members that file valid and timely Proofs of Claim and Release in the form prescribed by

the Court shall be entitled to receive any distribution from the Settlement Fund, except as may be

otherwise ordered by the Court. All Settlement Class members (except Excluded Settlement Class

Members) shall, upon entry of this Judgment, be bound by the releases set forth in this Judgment

whether or not they executed and submitted a valid and timely Proof of Claim and Release form or

receive a distribution of the Settlement Fund.

10. Release by the Settling Defendants . Upon the Effective Date, the Settling

Defendants fully, finally, and forever release, relinquish and discharge each of the Lead Plaintiffs

and Settlement Class members from any and all claims that the Settling Defendants and/or the

Additional Released Parties may have, or may have had, regarding the commencement,

prosecution, assertion, or resolution of the Class Action or the Settled Claims including, without

limitation, any claims for violation of Rule 11 of the Federal Rules of Civil Procedure.

Notwithstanding the foregoing, the Settled Claims do not include any claims for violation of the

Stipulation.

11. Release Includes Unknown Claims . Upon entry of this Judgment, the Settled

Claims include all claims, rights, demands, suits, matters, issues or causes of action, whether

known or unknown, fixed or contingent, foreseen or unforeseen, against the Settling Defendants

and the Additional Released Parties, whether under state or federal law, including the federal

securities laws, and whether directly, indirectly, derivatively or representatively or in any other

capacity, in connection with, based upon, arising out of, or relating to any claim that has been or

could have been raised in the Class Action or the acts, facts or events alleged in the Class Action.

Settled Claims also specifically includes claims which the Plaintiffs do not know or suspect to

exist in their favor at the time of the Stipulation which, if known by them, might affect the

Settlement and the releases in the Stipulation , or might affect their decision not to object to, or optJUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

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out of, the Settlement. With respect to any and all claims released, the Parties agree that, upon the

Effective Date, Plaintiffs expressly waive and relinquish, shall be deemed to have, and by

operation of this Order and Final Judgment shall have, expressly waived and relinquished, and the

Settling Defendants expressly waive and relinquish, to the fullest extent permitted by law, the

provisions, rights, and benefits of § 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMSWHICH THE CREDITOR DOES NOT KNOW OR SUSPECTTO EXIST IN HIS OR HER FAVOR AT THE TIME OFEXECUTING THE RELEASE, WHICH IF KNOWN BY HIMOR HER MUST HAVE MATERIALLY AFFECTED HIS ORHER SETTLEMENT WITH THE DEBTOR.

Additionally, the parties waive, upon the Effective Date and by operation of this Order and Final

Judgment shall have waived, any and all provisions, rights and benefits conferred by any law of

the United States or of any state or territory of the United States or of any other country, whether

statutory, code or common law, which are similar, comparable or equivalent to § 1542 of the

California Civil Code. The Parties may hereafter discover facts in addition to or different from

those which they now know or believe to be true with respect to the subject matter of the claims

released, but hereby stipulate and agree that they do settle and release, and shall be deemed to

have, and upon the Effective Date and by operation of this Final Order and Judgment shall have,

settled and released all claims described in the Stipulation, whether known or unknown, suspected

or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now

exist, or heretofore have existed, upon any theory of law or equity now existing or coming into

existence in the future, without regard to the subsequent discovery or existence of such different or

additional facts. The Parties acknowledge that the foregoing waiver was bargained for and is a

material term and condition of the Settlement.

12. Injunction Barring Claims by the Settling Defendants for Indemnification or

Contribution . Each of the Settling Defendants is permanently barred and enjoined from

instituting or prosecuting against any person or entity in any court, state or federal, or any other

tribunal, any claim, however styled, whether denominated as a claim for indemnification or

contribution or otherwise denominated, whether legal or equitable, known or unknown, foreseen

JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES , NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

BEN(RBB) -5-

Ca00 3: 02-cv-00870 -BEN-RBB Document 826-4 Filed 02/09/2009 Page 8 of 13

I or unforeseen, matured or unmatured, accrued or unaccrued, whether arising under state law or

2 federal law, by which said Settling Defendant seeks to recover from any other person or entity any

3 portion of: (a) any amounts that said Settling Defendant has paid, or in the future pays, or has

4 become liable to pay, or may become liable to pay (whether in cash or any other form of

5 consideration) in connection with the Class Action; and/or (b) any costs, expenses, or attorneys'

6 fees that the Additional Released Party has incurred or may incur in defending the Class Action.

7 All such claims shall be extinguished, discharged, satisfied and unenforceable. Nothing in this

8 paragraph shall bar or enjoin any of the Settling Defendants from pursuing claims against any

9 insurance companies.

10 13. Injunction Barring Claims Against the Settling Defendants for

11 Indemnification or Contribution . To the extent permitted by law, all persons or entities are

12 permanently barred and enjoined from instituting or prosecuting against any Settling Defendant or

13 Additional Released Parties in any court, state or federal, or any other tribunal, any claim,

14 however styled, whether denominated as a claim for indemnification or contribution or otherwise

15 denominated, whether legal or equitable, known or unknown, foreseen or unforeseen, matured or

16 unmatured, accrued or unaccrued, whether arising under state law or federal law, by which such

17 person or entity seeks to recover from any Settling Defendant or Additional Released Parties any

18 portion of: (a) any amounts that such person or entity has paid, or in the future pays, or has

19 become liable to pay, or may become liable to pay (whether in cash or any other form of

20 consideration) in connection with the Class Action; and/or (b) any costs, expenses, or attorneys'

21 fees that such person or entity has incurred or may incur in defending the Class Action. All such

22 claims shall be extinguished, discharged, satisfied and unenforceable.

23 14. Reduction of Judgments against Persons Whose Claims for Indemnification or

24 Contribution against the Settling Defendants Are Barred. In view of the Settlement Payment

25 made by the Settling Defendants on behalf of the Additional Released Parties, all of whom are

26 deemed to be covered persons who entered into a settlement with Lead Plaintiffs within the

27 meaning of 15 U.S.C. § 78u-4(f)(7)(B), any person or entity against whom a final judgment is

28 hereafter obtained, either in the Class Action or in any other action or proceeding by or on behalfJUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

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1 of any Settlement Class member (except an Excluded Settlement Class Member) based upon any

2 claim asserted in the Class Action, shall be entitled in said action or proceeding to a reduction in

3 the amount of said judgment in accordance with, or to have the amount of damages in said

4 judgment calculated by reference to, all applicable provisions of federal statutory and common law

5 relating to the proper amounts ofjudgments or damages following a settlement between a plaintiff

6 and less than all of the parties legally liable for plaintiffs injury, including without limitation the

7 provisions of 15 U.S.C. § 78u-4(f)(7)(B).

8 15. No Admission or Evidence . Neither the Stipulation nor the Settlement, nor any

9 act performed or document executed pursuant to, or in connection with, the Stipulation or the

10 Settlement: (a) is, or may be deemed to be, or may be used as, an admission of, or evidence of, the

11 validity of any Settled Claim or of any wrongdoing or liability by the Settling Defendants; (b) is,

12 or may be deemed to be, or may be used as, an admission of, or evidence of, any fault or omission

13 of the Settling Defendants in any civil, criminal or administrative proceeding in any court,

14 administrative agency or other tribunal; or (c) shall be offered in evidence by any person or entity

15 for any purpose except to enforce the Stipulation. Any Settling Defendant and Additional

16 Released Parties may file the Stipulation and/or this Judgment in any other action that may be

17 brought against them in order to support a defense or counterclaim based on principles of res

18 judicata, collateral estoppel, release, good faith settlement, bar order, or judgment reduction or

19 credit, or in support of any theory of claim preclusion or issue preclusion or similar defense or

20 counterclaim. Lead Plaintiffs, other Settlement Class members, the Settling Defendants, the

21 Additional Released Parties, and their respective counsel, may file the Stipulation in any

22 proceeding brought to enforce any of its terms or provisions.

23 16. Pleadings in Good Faith . The Court finds that all pleadings and other court

24 papers filed by Lead Plaintiffs against the Settling Defendants, and all pleadings and other court

25 papers filed by the Settling Defendants against Lead Plaintiffs, were filed on a good faith basis in

26 accordance with Rule 11 of the Federal Rules of Civil Procedure, Section 27(c) of the Securities

27 Act, and Section 21D(c) of the Exchange Act.

28JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

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17. Bear Own Costs . Lead Plaintiffs and the Settling Defendants are to bear their own

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costs, except as otherwise provided in the Stipulation.

18. Effectiveness of Judgment Not Dependent on Certain Other Rulings . The

effectiveness of this Judgment shall not be affected, in any manner, by rulings that the Court may

I make concerning the Plan of Allocation of Settlement Proceeds and/or Plaintiffs' Counsel's

application for an award of attorneys' fees or reimbursement of expenses.

19. Reversal on Appeal. In the event that this Judgment is subsequently vacated,

modified, or reversed on appeal, or in the event the PLT Action is not dismissed pursuant to

paragraph 7(b) above, this Judgment and any order entered by the Court in accordance with the

terms of the Stipulation, including without limitation any order based upon the stipulated

certification of the Settlement Class, shall be vacated, nunc pro tunc; Lead Plaintiffs and the

Settling Defendants shall be restored to their respective positions in the Class Action as of

March _, 2008; the Settlement fund shall be returned to the Settling Defendants as provided for

in the Stipulation; and the Class Action shall proceed as though no class had ever been certified.

20. Entry of Separate Judgment. The Court finds that this Judgment comes within

the provisions of Rule 54(b) of the Federal Rules of Civil Procedure and finds that there is no just

reason for delay in entering this Judgment. This Judgment disposes of all claims against the

Settling Defendants, which claims are legally and factually severable from the claims remaining in

the Class Action. Any appellate review of this Judgment will not require the appellate court to

address issues similar to those contained in claims still pending before this Court. Pursuant to

Rule 54(b), the Court directs that this Judgment be entered forthwith in the Class Action as a

separate, final judgment in the Class Action.

21. Reservation of Jurisdiction . The Court reserves exclusive and continuing

jurisdiction over the Class Action, Lead Plaintiffs, and the Settlement Class members for purposes

of supervising the administration and distribution of the Settlement Fund and any other related

matters.

22. Captions . The captions in the paragraphs of this Judgment are for convenience

only and are not to be used for construction of the meaning of the respective paragraphs.JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES, NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

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N 3:02-cv-00870-BEN-RBB Document 826-4 Filed 02/09/2009 Page 11 of 13

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IT IS SO ORDERED.

Dated: , 2009

Roger T. BenitezJudge of the United States District Court

Presented By:

GOLD BENNETT CERA & SIDENER LLP

By: Akvt',A^Solomon B. Cera595 Market Street, Suite 2300San Francisco , California 94105-2835Telephone : (415) 777-2230Facsimile : (415) 777-5189

Attorneys for Section 10(b) LeadPlaintiff The Loran Group

STULL, STULL & BRODY

By: 1

SHoward T. Longman6 East 45th Street , 5th FloorNew York, New York 10017Telephone : (212) 687-7230Facsimile : (212) 490-2022

- and -

JUDGMENT CONFIRMING ACTION AGAINST DEFENDANTS MOORES , NOELL, VAN DEN BERG, HOSLEY,COLE, AND DAMMEYER CONFIRMING RELEASES, AND BARRING CERTAIN CLAIMS - Case No. 02-CV-0870-

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ABRAHAM FRUCHTER & TWERSKY LLP

By:

Lawrence D. LevitOne Penn Plaza, Suite 2805New York, New York 10119-0165Telephone: (212) 714-2444Facsimile : (212) 279-3655

Attorneys for Section 1 I Lead PlaintiffHeywood Waga

0 3:02-cv-00870-BEN-RBB Document 826-4 Filed 02/09/2009 Page 13 of 13

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EXHIBIT 1

EXCLUDED SETTLEMENT CLASS MEMBERS

02433/2592642.1

case3: 02-cv-00870-ben-rbb document826 filed 02/09/2009...

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