Preview
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NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022
Exhibit 1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION
) Index No. 651295/2021
In re INFINITY Q DIVERSIFIED ALPHA )
FUND SECURITIES LITIGATION )
) CLASS ACTION
) Part 53: Justice Andrew S. Borrok
)
This Document Relates To: )
)
The Consolidated Action )
)
)
DOMINUS MULTIMANAGER FUND, LTD., ) Index No. 652906/2022
Individually and on Behalf of All Others )
Similarly Situated, ) CLASS ACTION
)
Part 53: Justice Andrew S. Borrok
Plaintiff, )
)
v. )
)
INFINITY Q CAPITAL MANAGEMENT )
LLC, et al., )
)
Defendants. )
)
STIPULATION OF SETTLEMENT
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This Stipulation of Settlement, dated August 17, 2022 (the “Stipulation”), is made and
entered into by and among: (i) plaintiffs Andrea Hunter, David Rosenstein, and Neil O’Connor
(collectively, the “State Plaintiffs,” lead plaintiffs in In re Infinity Q Diversified Alpha Fund
Securities Litigation, Index No. 651295/2021 (N.Y. Sup. Ct.) (together with Dominus
Multimanager Fund, Ltd. v. Infinity Q Capital Management, LLC, et. al., Index No. 652906/2022
(N.Y. Sup. Ct.), the “State Action”)); (ii) Lead Plaintiff Schiavi + Company LLC DBA Schiavi +
Dattani (“Schiavi and Dattani”) and plaintiff Dominus Multimanager Fund, Ltd. (“Dominus”),
collectively, the “Federal Plaintiffs,” plaintiffs in In re Infinity Q Diversified Alpha Fund and
Infinity Q Volatility Alpha Fund L.P. Securities Litigation (formerly known as Yang v. Trust for
Advised Portfolios, et al.), Case No. 1:21-cv-01047-FB-MMH (E.D.N.Y) (the “Federal Action”));
(iii) The Trust for Advised Portfolios (“TAP”), including Infinity Q Diversified Alpha Fund (the
“Diversified Fund”); Christopher E. Kashmerick, John C. Chrystal, Albert J. DiUlio, S.J., Harry
E. Resis, Russell B. Simon, and Steven J. Jensen (collectively, the “TAP Individual Defendants”);
U.S. Bancorp Fund Services LLC (“U.S. Bancorp”); Quasar Distributors, LLC (“Quasar”), and
EisnerAmper LLP (“EisnerAmper”) (TAP, TAP Individual Defendants, Quasar, U.S. Bancorp,
and EisnerAmper, collectively, the “Settling Defendants”) by and through their counsel of record
in the Litigation. 1 This Stipulation is intended by State Plaintiffs, Federal Plaintiffs, and the
Settling Defendants (collectively, the “Settling Parties”) to fully, finally, and forever resolve,
discharge, and settle the Litigation and the Released Claims, as defined below, with respect to the
Settling Defendants upon and subject to the terms and conditions hereof, subject to the approval
of this Court pursuant to Article 9 of the New York Civil Practice Law and Rules (the “CPLR”).
1
All capitalized terms not otherwise defined shall have the meanings ascribed to them in
Section 1 herein.
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WHEREAS:
A. Plaintiff Andrea Hunter commenced an action by filing the Complaint for
Violations of the Securities Act of 1933 on February 24, 2021. Hunter v. Infinity Q Diversified
Alpha Fund, et al., Index No. 651295/2021 (N.Y. Sup. Ct.) (“Hunter”).
B. Plaintiff Liang Yang commenced the Federal Action by filing the Class Action
Complaint for Violation of the Federal Securities Laws on February 26, 2021. Yang v. Trust for
Advised Portfolios, et al., Case No. 1:21-cv-01047-FB-MMH (E.D.N.Y) (“Yang”).
C. By order dated April 15, 2021, the Hunter action was consolidated with the
factually-related action, Rosenstein v. Trust for Advised Portfolios, et al., Index No. 651302/2021
(N.Y. Sup. Ct.), and proceeded under the caption In re Infinity Q Diversified Alpha Fund Securities
Litigation, Index No. 651295/2021 (N.Y. Sup. Ct.) (the “Initial State Action”). Also by that order,
the law firms of Scott+Scott Attorneys at Law LLP (“Scott+Scott”) and The Rosen Law Firm,
P.A. (“Rosen”) were appointed co-lead counsel for plaintiffs in that Action.
D. On April 16, 2021, the State Plaintiffs filed the Consolidated Complaint for
Violations of the Securities Act of 1933 in the Initial State Action, which defendants moved to
dismiss.
E. On June 8, 2021, plaintiff Oak Financial Group, Inc. filed a factually-related
complaint asserting claims for alleged violations of the federal securities laws and common law
fraud against various defendants who are not parties to this settlement and also TAP, the
Diversified Fund, the TAP Individual Defendants, Quasar, and EisnerAmper, in the United States
District Court for the Eastern District of New York. Oak Financial Group, Inc. v. Infinity Q
Diversified Alpha Fund, et al., Case No. 1:21-cv-03249-FB-MMH (E.D.N.Y.).
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F. On February 9, 2022 plaintiff Charles Sherck filed a putative class action
complaint, the allegations of which are factually related to the complaints in Hunter and Yang, and
which alleges violations of the federal securities laws against U.S. Bancorp in Milwaukee County
Circuit Court, State of Wisconsin. Sherck v. U.S. Bancorp Fund Services, LLC, Case No.
2022CV000846 (Wis. Cir. Ct.) (“Sherck”).
G. On February 17, 2022, plaintiffs Schiavi and Datani and Dominus filed a putative
class action complaint on behalf of purchasers in the Diversified Fund and the Infinity Q Volatility
Alpha Fund, L.P., and the Infinity Q Volatility Alpha Offshore Fund, Ltd. (together, the “Volatility
Fund,” and with the Diversified Fund, the “Funds”), the allegations of which are factually related
to the complaints in Hunter, Yang, and Sherck. Schiavi + Company LLC DBA Schiavi + Dattani,
et al. v. Trust for Advised Portfolios, et al., Case No. 1:22-cv-00896 (E.D.N.Y.) (“Schiavi”).
H. On March 31, 2022, Schiavi and Dattani was appointed lead plaintiff in the Federal
Action and Robbins Geller Rudman & Dowd LLP (“Robbins Geller”) and Boies Schiller Flexner
LLP were appointed co-lead counsel.
I. On April 8, 2022, the Yang action was consolidated with the factually-related
Schiavi action.
J. On May 2, 2022, the State Plaintiffs filed their Consolidated Amended Complaint
for Violations of the Securities Act of 1933 in the Initial State Action.
K. On June 6, 2022, the Federal Plaintiffs filed the Consolidated Complaint for
Violations of the Federal Securities Laws in the Federal Action.
L. On August 12, 2022, plaintiff Dominus filed a putative class action complaint in
the Supreme Court of the State of New York on behalf of purchasers in the Volatility Fund in
furtherance of the settlement, the allegations of which are factually related to the Initial State
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Action and the Federal Action. Dominus Multimanager Fund, Ltd. v. Infinity Q Capital
Management, LLC, et. al., Index No. 652906/2022 (N.Y. Sup. Ct.) (“Dominus”).
M. On August 15, 2022, the State Plaintiffs filed a motion for leave to file a second
Consolidated Amended Complaint for Violations of the Securities Act of 1933 in the Initial State
Action, which includes Lead Plaintiff Schiavi and Dattani in the Federal Action, as a class
representative for investors in the Diversified Fund.
N. The parties to the State Action and the Federal Action have been engaged in
mediation since December 17, 2021, before Robert A. Meyer, Esq. of JAMS, a nationally
recognized and Chambers-rated mediator with extensive experience in mediating and resolving
complex litigation matters. Mr. Meyer has been involved with all aspects of the mediation and
negotiations with counsel for the parties during the eight-month mediation process, involving two
full days of mediation, multiple written submissions, numerous discussions, and arm’s-length
negotiations.
I. TERMS OF THE STIPULATION AND AGREEMENT OF SETTLEMENT
Without any admission or concession on the part of Lead Plaintiffs (defined below) of any
lack of merit of the Litigation whatsoever and without any admission or concession of any liability
or wrongdoing or lack of merit in the defenses whatsoever by Settling Defendants, IT IS HEREBY
STIPULATED AND AGREED by and among Lead Plaintiffs (on behalf of themselves and the
Class) and the Settling Defendants, by and through their respective counsel, that, subject to the
approval of the Court pursuant to Article 9 of the CPLR, in consideration of the benefits flowing
to the Settling Parties hereto from the Settlement, that the Litigation and the Released Claims, as
against the Released Defendant Parties, and all of the Released Defendants’ Claims, as against the
Released Plaintiff Parties and the Released Defendant Parties, shall be finally and fully
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compromised, settled, and released, and the Litigation shall be dismissed with prejudice, upon and
subject to the terms and conditions of this Stipulation, as follows:
1. Certain Definitions
As used in this Stipulation, the following capitalized terms shall have the following
meaning:
1.1 “Authorized Claimant” means any Class Member who submits a valid Claim to the
Claims Administrator that is accepted for payment.
1.2 “Claim(s)” means a Proof of Claim and Release that is submitted by a Class
Member to the Claims Administrator either electronically or by submission of a paper Proof of
Claim and Release.
1.3 “Claims Administrator” means the firm of Gilardi & Co. LLC.
1.4 “Class” means all Persons or entities that either: (i) purchased or otherwise acquired
Investor Shares in the Diversified Fund (Ticker symbol IQDAX) and/or Institutional Shares in the
Diversified Fund (Ticker symbol IQDNX) (collectively, “Diversified Fund Shares”) between
February 22, 2016 and February 22, 2021, both dates inclusive (the “Class Period”); and/or
(ii) invested through the Volatility Fund during the Class Period. Excluded from the Class are:
(i) defendants in the Litigation (“Defendants”); (ii) all officers, trustees, and directors of those
Defendants; (iii) members of any individual Defendants’ immediate families; (iv) any Defendant’s
legal representatives, heirs, successors, or assigns; and (v) any entity in which any of the foregoing
excluded Persons has or had a controlling majority ownership interest. Also excluded from the
Class is any Person who would otherwise be a Member of the Class, but who validly and timely
requests exclusion in accordance with the requirements set by the Court.
1.5 “Class Member” or “Member of the Class” means a Person who falls within the
definition of the Class, as set forth in ¶1.4 above.
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1.6 “Court” means the Supreme Court of New York, New York County.
1.7 “Effective Date,” or the date upon which the Settlement becomes “Effective,”
means the first date by which all of the events and conditions specified in ¶7.1 of this Stipulation
have been met, have occurred, or have been waived.
1.8 “Escrow Account” means an interest-bearing escrow account, controlled by Lead
Counsel, established by the Escrow Agent pursuant to ¶2.2 of this Stipulation to receive the
Settlement Amount as specified in ¶2.2 hereof.
1.9 “Escrow Agent” means Robbins Geller, Scott+Scott, and Rosen.
1.10 “Fee and Expense Award” means any attorneys’ fees and expenses awarded by the
Court, as described in ¶6.1.
1.11 “Final” means, with respect to the Judgment: (a) if no appeal therefrom has been
filed, the time has passed for any notice of appeal to be timely filed therefrom; or (b) if an appeal
has been filed, either (i) the Judgment has been finally affirmed or (ii) the appeal from the
Judgment has been dismissed and the time for any reconsideration or further appellate review has
passed. For purposes of this paragraph, an “appeal” shall include any motion for reconsideration
or petition for a writ of certiorari or other writ that may be filed in connection with approval or
disapproval of the Settlement. Any appeal or proceeding seeking subsequent judicial review
pertaining solely to an order issued with respect to: (a) attorneys’ fees or expenses; (b) the Plan of
Allocation (as submitted or subsequently modified); or (c) the procedures for determining whether
a Person who has submitted a claim is an Authorized Claimant shall not in any way delay, affect,
or preclude the Judgment from becoming Final.
1.12 “Judgment” means the Final Judgment and Order of Dismissal with Prejudice to be
rendered by the Court, substantially in the form attached hereto as Exhibit B, as well as any form
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of final judgment that may be entered by the Court in a form other than the form attached hereto
as Exhibit B, and where none of the Settling Parties elects to terminate the Settlement by reason
of such variance, consistent with the terms of this Stipulation.
1.13 “Lead Counsel” means Scott+Scott, Rosen, and Robbins Geller.
1.14 “Lead Plaintiffs” means the State Plaintiffs and the Federal Plaintiffs.
1.15 “Litigation” means the State Action and the Federal Action (defined above).
1.16 The “Milwaukee Class Action” means Sherck v. U.S. Bancorp Fund Services, LLC,
Case No. 2022CV000846 (Wis. Cir. Ct.), pending in Milwaukee Circuit Court in the State of
Wisconsin, which purports to allege claims against U.S. Bancorp under the Securities Act of 1933
on behalf of a class of shareholders of the Diversified Fund during the putative class period of
January 1, 2019 through December 30, 2020.
1.17 “Net Settlement Fund” means the Settlement Fund less: (a) any Court-awarded
attorneys’ fees, expenses, and interest thereon; (b) any Court-awarded sum to the Lead Plaintiffs
for their time and expense incurred in connection with their representation of the Class; (c) Notice
and Administrative Expenses; (d) Taxes and Tax Expenses; and (e) other Court-approved
deductions.
1.18 “Notice” means the Notice of Pendency and Proposed Settlement of Class Action,
which is to be sent to Members of the Class, substantially in the form attached hereto as Exhibit
1-A.
1.19 “Notice and Administrative Expenses” means the reasonable costs and expenses
actually incurred in connection with providing Notice of the Settlement to the Class by mail,
publication, and other means, locating Class Members, assisting with the submission of Claims,
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processing Proof of Claim and Release forms, administering the Settlement, and paying escrow
taxes, fees, and costs, if any.
1.20 “Oak Financial Action” means Oak Financial Group, Inc. v. Infinity Q Diversified
Alpha Fund, et al., Case No. 1:21-cv-03249-FB-MMH (E.D.N.Y.), pending in the United States
District Court for the Eastern District of New York, which purports to allege claims against certain
Settling Defendants on behalf of an investment adviser which allegedly purchased shares of the
Diversified Fund between October 27, 2015 and August 2020.
1.21 “Person(s)” means an individual, corporation (including all divisions and
subsidiaries), limited liability corporation, professional corporation, partnership, limited
partnership, limited liability partnership, limited liability company, joint venture, association, joint
stock company, estate, legal representative, trust, unincorporated association, government or any
political subdivision or agency thereof, and any business or legal entity and all of their respective
spouses, heirs, beneficiaries, executors, administrators, predecessors, successors, representatives,
or assignees.
1.22 “Plaintiffs’ Counsel” means any attorney or firm who has appeared in the Litigation
on behalf of a plaintiff or the Class.
1.23 “Plan of Allocation” means the plan described in the Notice or any alternate plan
approved by the Court whereby the Net Settlement Fund shall be distributed to Authorized
Claimants. Any Plan of Allocation is not part of this Stipulation and neither Settling Defendants
nor their Related Parties shall have any responsibility or liability with respect thereto.
1.24 “Proof of Claim and Release” means the Proof of Claim and Release form for
submitting a Claim, which, subject to approval of the Court, shall be substantially in the form
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attached hereto as Exhibit A-2, and that a Class Member must complete and submit should that
Class Member seek to share in a distribution of the Net Settlement Fund.
1.25 “Related Party” or “Related Parties” means, as applicable, each plaintiff’s, Class
Member’s, Plaintiffs’ Counsel’s, Settling Defendants’, or Settling Defendants’ Counsel’s
respective former, present, or future parents, subsidiaries, divisions, controlling persons,
associates, and affiliates and each and all of their respective present and former trustees,
employees, members, partners, principals, officers, directors, controlling shareholders, agents,
attorneys, advisors (including financial or investment advisors), accountants, auditors, consultants,
custodians, administrators, transfer agents, underwriters, investment bankers, distributors,
commercial bankers, entities providing fairness opinions, general or limited partners or
partnerships, limited liability companies, members, joint ventures and insurers and reinsurers of
each of them, and the predecessors, successors, estates, immediate family members, spouses, heirs,
executors, trusts, trustees, administrators, agents, legal or personal representatives, assigns, and
assignees of each of them, in their capacity as such. Any Person excluded from the definition of
“Released Defendant Parties” in the last sentence of ¶1.27 hereof shall not be considered a Related
Party in this definition.
1.26 “Released Claims” means any and all of the Released Plaintiff Parties’ claims,
demands, rights, causes of action, and liabilities, whether based in law or equity, arising under
federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation,
including both known and Unknown Claims, that were or could have been asserted in the Litigation
or that arise out of or relate in any way to both: (a) any of the facts, matters, allegations,
transactions, events, disclosures, statements, acts, or omissions involved, set forth, or referred to
in any of the complaints in the Litigation; and (b) the purchase, acquisition, sale, redemption, or
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holding of the securities of the Diversified Fund or the Volatility Fund during the Class Period.
“Released Claims” do not include claims to enforce the Settlement, or the claims of any Person
who submits a timely request for exclusion that is accepted by the Court. “Released Claims”
includes “Unknown Claims,” as defined in ¶1.39 hereof. For the avoidance of doubt, Released
Claims includes the claims alleged or that could have been alleged: (a) in the Milwaukee Class
Action; and (b) in the Oak Financial Action.
1.27 “Released Defendant Party” or “Released Defendant Parties” means: (i) TAP and
each current and former series or portfolio thereof including the Diversified Fund, and each of
their respective current and former affiliates, subsidiaries (including Infinity Q Commodity Fund
Ltd. (“IQCF”)), predecessors, successors, assigns, underwriters, investment bankers, distributors,
administrators, custodians, and transfer agents; (ii) U.S. Bancorp and each of its current and former
parents, affiliates, subsidiaries, predecessors, successors, and assigns; (iii) Quasar and each of its
current and former parents, affiliates, subsidiaries, predecessors, successors, and assigns;
(iv) EisnerAmper, Eisner Advisory Group, LLC, Eisner Partners SPV LLC, and each of their
current and former parents, affiliates, subsidiaries, predecessors, successors, and assigns (the
“EisnerAmper Releasees”); (v) for each of the foregoing in (i), (ii), (iii),and (iv), all of their
respective current and former officers, trustees, directors, partners, principals, members, managers,
controlling persons, employees, attorneys, insurers, agents, representatives, consultants, and
Related Parties, including, but not limited to, the TAP Individual Defendants; (vi) Leonard Potter
and James Velissaris in their capacity as directors or officers of IQCF, including their execution
or discharge of their duties, powers, authorities, or discretions as directors or officers of IQCF or
their conduct of the business or affairs of IQCF (even if they were also acting in some other
capacity while acting in their capacity as directors or officers of IQCF); and (vii) for Settling
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Defendants who are natural persons, their spouses, family members, heirs, insurers, executors,
trustees, Related Parties, and any trust of which any such Person is settlor or which is for their
benefit or the benefit of their spouses, family members, or heirs. Notwithstanding the foregoing
and for the avoidance of doubt, Released Defendant Parties do not include: (a) Infinity Q Capital
Management, LLC; Bonderman Family Limited Partnership; Infinity Q Management Equity,
LLC; the Volatility Fund, and Scott Lindell; and (b) James Velissaris and Leonard Potter in any
capacity other than as directors or officers of IQCF (even if they were also acting in some other
capacity while acting in their capacity as directors or officers of IQCF).
1.28 “Released Defendants’ Claims” means any and all claims, demands, rights, causes
of action, and liabilities, whether based in law or equity, arising under federal, state, local,
statutory, common, or foreign law, or any other law, rule, or regulation including both known and
Unknown Claims, as defined in ¶1.39 hereof, against Released Plaintiff Parties that arise out of or
relate in any way to the institution, prosecution, or settlement of the claims against Settling
Defendants in the Litigation, including under Rule 11 of the Federal Rules of Civil Procedure, or
for any other fees or cost shifting, except for claims relating to the enforcement of the Settlement.
For the avoidance of doubt, nothing herein shall be deemed to impair the rights of TAP or the
Diversified Fund (i) to offset, when distributing the assets of the Diversified Fund, any net gains
by Class Members obtained by virtue of such shareholders’ prior purchases and redemptions of
the securities of the Diversified Fund prior to February 19, 2021, or (ii) to pursue clawback claims
against Class Members in respect of prior redemptions of the Diversified Fund. As against
Released Defendant Parties, “Released Defendants’ Claims” also means any and all claims,
demands, rights, causes of action, and liabilities, whether based in law or equity, arising under
federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation
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including both known and Unknown Claims, as defined in ¶1.39 hereof, that any Released
Defendant Party may have against any other Released Defendant Party, and that arise out of or
relate in any way to TAP, the Funds, Diversified Fund Shares, the interests in the Volatility Fund,
or any of the facts, matters, allegations, transactions, events, disclosures, statements, acts, or
omissions involved, set forth, or referred to in the complaints in the Litigation, except that (a)
“Released Defendants’ Claims” do not include claims for indemnification between or among
Released Defendant Parties or any combination of Released Defendant Parties, (b) nothing herein
shall constitute a release by TAP or the Diversified Fund of any claims, demands, rights, causes
of action, and liabilities, whether based in law or equity, arising under federal, state, local,
statutory, common, or foreign law, or any other law, rule, regulation, contract, agreement, or
governing instrument, including both known and Unknown Claims, as defined in ¶1.39 hereof,
each may have against any of the TAP Individual Defendants, Quasar, U.S. Bancorp, and/or
EisnerAmper, and (c) nothing herein shall constitute a release by any of the TAP Individual
Defendants, Quasar, U.S. Bancorp, and/or EisnerAmper of any claims, demands, rights, causes of
action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory,
common, or foreign law, or any other law, rule, regulation, contract, agreement, or governing
instrument, including both known and Unknown Claims, as defined in ¶1.39 hereof, including, but
not limited to, claims for indemnity, each may have against TAP or the Diversified Fund.
1.29 “Released Plaintiff Party” or “Released Plaintiff Parties” means each and every
Class Member, Lead Plaintiff, Lead Counsel, Plaintiffs’ Counsel, and their Related Parties.
1.30 “Settlement” means the resolution of the Litigation in accordance with the terms
and provisions of this Stipulation.
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1.31 “Settlement Fund” means the Settlement Amount as specified in ¶2.2 hereof plus
all interest and accretions thereto.
1.32 “Settlement Hearing” means the hearing set by the Court to consider whether the
Settlement should be approved as fair, reasonable, and adequate within the meaning of Article 9
of the CPLR.
1.33 “Settling Defendants” collectively means TAP, including the Diversified Fund; the
TAP Individual Defendants; Quasar; U.S. Bancorp; and EisnerAmper.
1.34 “Settling Defendants’ Counsel” collectively means Morgan, Lewis & Bockius
LLP; Duane Morris LLP; Vedder Price P.C.; Faegre Drinker Biddle & Reath LLP; and Davis
Wright Tremaine LLP.
1.35 “Settling Parties” collectively means Settling Defendants and Lead Plaintiffs in the
State and Federal Actions, on behalf of themselves and the Class.
1.36 “Summary Notice” means the summary notice of proposed Settlement and hearing
for publication, substantially in the form attached hereto as Exhibit A-3.
1.37 “Tax” or “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and
other charges of any kind (together with any and all interest, penalties, additions to tax, and
additional amounts imposed with respect thereto) imposed by any governmental authority,
including, but not limited to, any local, state, and federal taxes, arising with respect to the income
earned by the Settlement Fund.
1.38 “Tax Expenses” means Taxes and expenses and costs incurred in connection with
the operation and implementation of ¶2.11 (including, without limitation, expenses of tax attorneys
and/or accountants and mailing and distribution costs and expenses relating to filing (or failing to
file) the returns described in ¶2.11).
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1.39 “Unknown Claims” means: (a) any and all Released Claims that any of the Released
Plaintiff Parties do not know or suspect to exist in his, her, or its favor at the time of the release of
the Released Defendant Parties, which, if known by him, her, or it, might have affected his, her,
or its settlement with and release of the Released Defendant Parties, or might have affected his,
her, or its decision(s) with respect to the Settlement, including, but not limited to, whether or not
to object to the Settlement or seek exclusion from the Class; and (b) any and all Released
Defendants’ Claims that any of the Released Defendant Parties do not know or suspect to exist in
his, her, or its favor at the time of the release of the Released Plaintiff Parties or Released
Defendant Parties that, if known by him, her, or it, might have affected his, her, or its settlement
and release of the Released Plaintiff Parties or Released Defendant Parties. With respect to (a)
any and all Released Claims against the Released Defendant Parties and (b) any and all Released
Defendants’ Claims against the Released Plaintiff Parties, the Settling Parties stipulate and agree
that, upon the Effective Date, the Settling Parties shall expressly waive, and each Released Plaintiff
Party and Released Defendant Party shall be deemed to have, and by operation of the Judgment
shall have expressly waived, the provisions, rights, and benefits of California Civil Code §1542,
which provides:
A general release does not extend to claims that the creditor or releasing party
does not know or suspect to exist in his or her favor at the time of executing
the release and that, if known by him or her, would have materially affected
his or her settlement with the debtor or released party.
and all provisions, rights, and benefits conferred by any law of any state or territory of the United
States, or principle of common law, which is similar, comparable, or equivalent to Cal. Civ. Code
§1542. The Released Plaintiff Parties and Released Defendant Parties acknowledge that they may
hereafter discover facts, legal theories, or authorities in addition to or different from those that he,
she, it, or their counsel now knows or believes to be true with respect to the subject matter of the
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Released Claims or Released Defendants’ Claims, but: (a) the Released Plaintiff Parties shall
expressly, fully, finally, and forever waive, compromise, settle, discharge, extinguish, and release,
and each Released Plaintiff Party shall be deemed to have waived, compromised, settled,
discharged, extinguished, and released, and upon the Effective Date, and by operation of the
Judgment, shall have waived, compromised, settled, discharged, extinguished, and released, fully,
finally, and forever, any and all Released Claims against the Released Defendant Parties, known
or unknown, suspected or unsuspected, contingent or non-contingent, accrued or unaccrued,
whether or not concealed or hidden, which now exist, or heretofore have existed, or may hereafter
exist, upon any theory of law or equity now existing or coming into existence in the future,
including, but not limited to, conduct which is negligent, intentional, with or without malice, or a
breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such
different or additional facts, legal theories, or authorities; and (b) the Released Defendant Parties
shall expressly fully, finally, and forever waive, compromise, settle, discharge, extinguish, and
release, and each Released Defendant Party shall be deemed to have waived, compromised, settled,
discharged, extinguished, and released, and upon the Effective Date, and by operation of the
Judgment, shall have waived, compromised, settled, discharged, extinguished, and released, fully,
finally, and forever, any and all Released Defendants’ Claims against the Released Plaintiff Parties
and Released Defendant Parties, 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, including, but not
limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty,
law, or rule, without regard to the subsequent discovery or existence of such different or additional
facts, legal theories, or authorities. The Settling Parties acknowledge, and the Released Plaintiff
16
FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022
Parties and Released Defendant Parties shall be deemed, by operation of the Judgment, to have
acknowledged that the foregoing waiver was separately bargained for and is an essential element
of the Settlement of which this release is a part.
1.40 “Voluntary Dismissal Stipulation” means a stipulation of dismissal signed on
behalf of the Federal Plaintiffs and all Settling Defendants in the Federal Action pursuant to Fed.
R. Civ. P. 41(a) substantially in the form annexed hereto as Exhibit C, which shall provide for the
dismissal with prejudice of the Federal Action conditional upon the Judgment in the State Action
becoming Final.
2. The Settlement
2.1 The obligations incurred pursuant to this Stipulation are: (a) subject to the Court’s
approval of the Stipulation and the Judgment (reflecting such approval) becoming Final; and (b) in
full and final disposition of the Litigation and any and all Released Claims, as against all Released
Defendant Parties, and all Released Defendants’ Claims, as against all Released Plaintiff Parties
and Released Defendant Parties, upon and subject to the t
Preview
FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 Exhibit 1 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION ) Index No. 651295/2021 In re INFINITY Q DIVERSIFIED ALPHA ) FUND SECURITIES LITIGATION ) ) CLASS ACTION ) Part 53: Justice Andrew S. Borrok ) This Document Relates To: ) ) The Consolidated Action ) ) ) DOMINUS MULTIMANAGER FUND, LTD., ) Index No. 652906/2022 Individually and on Behalf of All Others ) Similarly Situated, ) CLASS ACTION ) Part 53: Justice Andrew S. Borrok Plaintiff, ) ) v. ) ) INFINITY Q CAPITAL MANAGEMENT ) LLC, et al., ) ) Defendants. ) ) STIPULATION OF SETTLEMENT FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 This Stipulation of Settlement, dated August 17, 2022 (the “Stipulation”), is made and entered into by and among: (i) plaintiffs Andrea Hunter, David Rosenstein, and Neil O’Connor (collectively, the “State Plaintiffs,” lead plaintiffs in In re Infinity Q Diversified Alpha Fund Securities Litigation, Index No. 651295/2021 (N.Y. Sup. Ct.) (together with Dominus Multimanager Fund, Ltd. v. Infinity Q Capital Management, LLC, et. al., Index No. 652906/2022 (N.Y. Sup. Ct.), the “State Action”)); (ii) Lead Plaintiff Schiavi + Company LLC DBA Schiavi + Dattani (“Schiavi and Dattani”) and plaintiff Dominus Multimanager Fund, Ltd. (“Dominus”), collectively, the “Federal Plaintiffs,” plaintiffs in In re Infinity Q Diversified Alpha Fund and Infinity Q Volatility Alpha Fund L.P. Securities Litigation (formerly known as Yang v. Trust for Advised Portfolios, et al.), Case No. 1:21-cv-01047-FB-MMH (E.D.N.Y) (the “Federal Action”)); (iii) The Trust for Advised Portfolios (“TAP”), including Infinity Q Diversified Alpha Fund (the “Diversified Fund”); Christopher E. Kashmerick, John C. Chrystal, Albert J. DiUlio, S.J., Harry E. Resis, Russell B. Simon, and Steven J. Jensen (collectively, the “TAP Individual Defendants”); U.S. Bancorp Fund Services LLC (“U.S. Bancorp”); Quasar Distributors, LLC (“Quasar”), and EisnerAmper LLP (“EisnerAmper”) (TAP, TAP Individual Defendants, Quasar, U.S. Bancorp, and EisnerAmper, collectively, the “Settling Defendants”) by and through their counsel of record in the Litigation. 1 This Stipulation is intended by State Plaintiffs, Federal Plaintiffs, and the Settling Defendants (collectively, the “Settling Parties”) to fully, finally, and forever resolve, discharge, and settle the Litigation and the Released Claims, as defined below, with respect to the Settling Defendants upon and subject to the terms and conditions hereof, subject to the approval of this Court pursuant to Article 9 of the New York Civil Practice Law and Rules (the “CPLR”). 1 All capitalized terms not otherwise defined shall have the meanings ascribed to them in Section 1 herein. 2 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 WHEREAS: A. Plaintiff Andrea Hunter commenced an action by filing the Complaint for Violations of the Securities Act of 1933 on February 24, 2021. Hunter v. Infinity Q Diversified Alpha Fund, et al., Index No. 651295/2021 (N.Y. Sup. Ct.) (“Hunter”). B. Plaintiff Liang Yang commenced the Federal Action by filing the Class Action Complaint for Violation of the Federal Securities Laws on February 26, 2021. Yang v. Trust for Advised Portfolios, et al., Case No. 1:21-cv-01047-FB-MMH (E.D.N.Y) (“Yang”). C. By order dated April 15, 2021, the Hunter action was consolidated with the factually-related action, Rosenstein v. Trust for Advised Portfolios, et al., Index No. 651302/2021 (N.Y. Sup. Ct.), and proceeded under the caption In re Infinity Q Diversified Alpha Fund Securities Litigation, Index No. 651295/2021 (N.Y. Sup. Ct.) (the “Initial State Action”). Also by that order, the law firms of Scott+Scott Attorneys at Law LLP (“Scott+Scott”) and The Rosen Law Firm, P.A. (“Rosen”) were appointed co-lead counsel for plaintiffs in that Action. D. On April 16, 2021, the State Plaintiffs filed the Consolidated Complaint for Violations of the Securities Act of 1933 in the Initial State Action, which defendants moved to dismiss. E. On June 8, 2021, plaintiff Oak Financial Group, Inc. filed a factually-related complaint asserting claims for alleged violations of the federal securities laws and common law fraud against various defendants who are not parties to this settlement and also TAP, the Diversified Fund, the TAP Individual Defendants, Quasar, and EisnerAmper, in the United States District Court for the Eastern District of New York. Oak Financial Group, Inc. v. Infinity Q Diversified Alpha Fund, et al., Case No. 1:21-cv-03249-FB-MMH (E.D.N.Y.). 3 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 F. On February 9, 2022 plaintiff Charles Sherck filed a putative class action complaint, the allegations of which are factually related to the complaints in Hunter and Yang, and which alleges violations of the federal securities laws against U.S. Bancorp in Milwaukee County Circuit Court, State of Wisconsin. Sherck v. U.S. Bancorp Fund Services, LLC, Case No. 2022CV000846 (Wis. Cir. Ct.) (“Sherck”). G. On February 17, 2022, plaintiffs Schiavi and Datani and Dominus filed a putative class action complaint on behalf of purchasers in the Diversified Fund and the Infinity Q Volatility Alpha Fund, L.P., and the Infinity Q Volatility Alpha Offshore Fund, Ltd. (together, the “Volatility Fund,” and with the Diversified Fund, the “Funds”), the allegations of which are factually related to the complaints in Hunter, Yang, and Sherck. Schiavi + Company LLC DBA Schiavi + Dattani, et al. v. Trust for Advised Portfolios, et al., Case No. 1:22-cv-00896 (E.D.N.Y.) (“Schiavi”). H. On March 31, 2022, Schiavi and Dattani was appointed lead plaintiff in the Federal Action and Robbins Geller Rudman & Dowd LLP (“Robbins Geller”) and Boies Schiller Flexner LLP were appointed co-lead counsel. I. On April 8, 2022, the Yang action was consolidated with the factually-related Schiavi action. J. On May 2, 2022, the State Plaintiffs filed their Consolidated Amended Complaint for Violations of the Securities Act of 1933 in the Initial State Action. K. On June 6, 2022, the Federal Plaintiffs filed the Consolidated Complaint for Violations of the Federal Securities Laws in the Federal Action. L. On August 12, 2022, plaintiff Dominus filed a putative class action complaint in the Supreme Court of the State of New York on behalf of purchasers in the Volatility Fund in furtherance of the settlement, the allegations of which are factually related to the Initial State 4 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 Action and the Federal Action. Dominus Multimanager Fund, Ltd. v. Infinity Q Capital Management, LLC, et. al., Index No. 652906/2022 (N.Y. Sup. Ct.) (“Dominus”). M. On August 15, 2022, the State Plaintiffs filed a motion for leave to file a second Consolidated Amended Complaint for Violations of the Securities Act of 1933 in the Initial State Action, which includes Lead Plaintiff Schiavi and Dattani in the Federal Action, as a class representative for investors in the Diversified Fund. N. The parties to the State Action and the Federal Action have been engaged in mediation since December 17, 2021, before Robert A. Meyer, Esq. of JAMS, a nationally recognized and Chambers-rated mediator with extensive experience in mediating and resolving complex litigation matters. Mr. Meyer has been involved with all aspects of the mediation and negotiations with counsel for the parties during the eight-month mediation process, involving two full days of mediation, multiple written submissions, numerous discussions, and arm’s-length negotiations. I. TERMS OF THE STIPULATION AND AGREEMENT OF SETTLEMENT Without any admission or concession on the part of Lead Plaintiffs (defined below) of any lack of merit of the Litigation whatsoever and without any admission or concession of any liability or wrongdoing or lack of merit in the defenses whatsoever by Settling Defendants, IT IS HEREBY STIPULATED AND AGREED by and among Lead Plaintiffs (on behalf of themselves and the Class) and the Settling Defendants, by and through their respective counsel, that, subject to the approval of the Court pursuant to Article 9 of the CPLR, in consideration of the benefits flowing to the Settling Parties hereto from the Settlement, that the Litigation and the Released Claims, as against the Released Defendant Parties, and all of the Released Defendants’ Claims, as against the Released Plaintiff Parties and the Released Defendant Parties, shall be finally and fully 5 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 compromised, settled, and released, and the Litigation shall be dismissed with prejudice, upon and subject to the terms and conditions of this Stipulation, as follows: 1. Certain Definitions As used in this Stipulation, the following capitalized terms shall have the following meaning: 1.1 “Authorized Claimant” means any Class Member who submits a valid Claim to the Claims Administrator that is accepted for payment. 1.2 “Claim(s)” means a Proof of Claim and Release that is submitted by a Class Member to the Claims Administrator either electronically or by submission of a paper Proof of Claim and Release. 1.3 “Claims Administrator” means the firm of Gilardi & Co. LLC. 1.4 “Class” means all Persons or entities that either: (i) purchased or otherwise acquired Investor Shares in the Diversified Fund (Ticker symbol IQDAX) and/or Institutional Shares in the Diversified Fund (Ticker symbol IQDNX) (collectively, “Diversified Fund Shares”) between February 22, 2016 and February 22, 2021, both dates inclusive (the “Class Period”); and/or (ii) invested through the Volatility Fund during the Class Period. Excluded from the Class are: (i) defendants in the Litigation (“Defendants”); (ii) all officers, trustees, and directors of those Defendants; (iii) members of any individual Defendants’ immediate families; (iv) any Defendant’s legal representatives, heirs, successors, or assigns; and (v) any entity in which any of the foregoing excluded Persons has or had a controlling majority ownership interest. Also excluded from the Class is any Person who would otherwise be a Member of the Class, but who validly and timely requests exclusion in accordance with the requirements set by the Court. 1.5 “Class Member” or “Member of the Class” means a Person who falls within the definition of the Class, as set forth in ¶1.4 above. 6 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 1.6 “Court” means the Supreme Court of New York, New York County. 1.7 “Effective Date,” or the date upon which the Settlement becomes “Effective,” means the first date by which all of the events and conditions specified in ¶7.1 of this Stipulation have been met, have occurred, or have been waived. 1.8 “Escrow Account” means an interest-bearing escrow account, controlled by Lead Counsel, established by the Escrow Agent pursuant to ¶2.2 of this Stipulation to receive the Settlement Amount as specified in ¶2.2 hereof. 1.9 “Escrow Agent” means Robbins Geller, Scott+Scott, and Rosen. 1.10 “Fee and Expense Award” means any attorneys’ fees and expenses awarded by the Court, as described in ¶6.1. 1.11 “Final” means, with respect to the Judgment: (a) if no appeal therefrom has been filed, the time has passed for any notice of appeal to be timely filed therefrom; or (b) if an appeal has been filed, either (i) the Judgment has been finally affirmed or (ii) the appeal from the Judgment has been dismissed and the time for any reconsideration or further appellate review has passed. For purposes of this paragraph, an “appeal” shall include any motion for reconsideration or petition for a writ of certiorari or other writ that may be filed in connection with approval or disapproval of the Settlement. Any appeal or proceeding seeking subsequent judicial review pertaining solely to an order issued with respect to: (a) attorneys’ fees or expenses; (b) the Plan of Allocation (as submitted or subsequently modified); or (c) the procedures for determining whether a Person who has submitted a claim is an Authorized Claimant shall not in any way delay, affect, or preclude the Judgment from becoming Final. 1.12 “Judgment” means the Final Judgment and Order of Dismissal with Prejudice to be rendered by the Court, substantially in the form attached hereto as Exhibit B, as well as any form 7 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 of final judgment that may be entered by the Court in a form other than the form attached hereto as Exhibit B, and where none of the Settling Parties elects to terminate the Settlement by reason of such variance, consistent with the terms of this Stipulation. 1.13 “Lead Counsel” means Scott+Scott, Rosen, and Robbins Geller. 1.14 “Lead Plaintiffs” means the State Plaintiffs and the Federal Plaintiffs. 1.15 “Litigation” means the State Action and the Federal Action (defined above). 1.16 The “Milwaukee Class Action” means Sherck v. U.S. Bancorp Fund Services, LLC, Case No. 2022CV000846 (Wis. Cir. Ct.), pending in Milwaukee Circuit Court in the State of Wisconsin, which purports to allege claims against U.S. Bancorp under the Securities Act of 1933 on behalf of a class of shareholders of the Diversified Fund during the putative class period of January 1, 2019 through December 30, 2020. 1.17 “Net Settlement Fund” means the Settlement Fund less: (a) any Court-awarded attorneys’ fees, expenses, and interest thereon; (b) any Court-awarded sum to the Lead Plaintiffs for their time and expense incurred in connection with their representation of the Class; (c) Notice and Administrative Expenses; (d) Taxes and Tax Expenses; and (e) other Court-approved deductions. 1.18 “Notice” means the Notice of Pendency and Proposed Settlement of Class Action, which is to be sent to Members of the Class, substantially in the form attached hereto as Exhibit 1-A. 1.19 “Notice and Administrative Expenses” means the reasonable costs and expenses actually incurred in connection with providing Notice of the Settlement to the Class by mail, publication, and other means, locating Class Members, assisting with the submission of Claims, 8 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 processing Proof of Claim and Release forms, administering the Settlement, and paying escrow taxes, fees, and costs, if any. 1.20 “Oak Financial Action” means Oak Financial Group, Inc. v. Infinity Q Diversified Alpha Fund, et al., Case No. 1:21-cv-03249-FB-MMH (E.D.N.Y.), pending in the United States District Court for the Eastern District of New York, which purports to allege claims against certain Settling Defendants on behalf of an investment adviser which allegedly purchased shares of the Diversified Fund between October 27, 2015 and August 2020. 1.21 “Person(s)” means an individual, corporation (including all divisions and subsidiaries), limited liability corporation, professional corporation, partnership, limited partnership, limited liability partnership, limited liability company, joint venture, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity and all of their respective spouses, heirs, beneficiaries, executors, administrators, predecessors, successors, representatives, or assignees. 1.22 “Plaintiffs’ Counsel” means any attorney or firm who has appeared in the Litigation on behalf of a plaintiff or the Class. 1.23 “Plan of Allocation” means the plan described in the Notice or any alternate plan approved by the Court whereby the Net Settlement Fund shall be distributed to Authorized Claimants. Any Plan of Allocation is not part of this Stipulation and neither Settling Defendants nor their Related Parties shall have any responsibility or liability with respect thereto. 1.24 “Proof of Claim and Release” means the Proof of Claim and Release form for submitting a Claim, which, subject to approval of the Court, shall be substantially in the form 9 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 attached hereto as Exhibit A-2, and that a Class Member must complete and submit should that Class Member seek to share in a distribution of the Net Settlement Fund. 1.25 “Related Party” or “Related Parties” means, as applicable, each plaintiff’s, Class Member’s, Plaintiffs’ Counsel’s, Settling Defendants’, or Settling Defendants’ Counsel’s respective former, present, or future parents, subsidiaries, divisions, controlling persons, associates, and affiliates and each and all of their respective present and former trustees, employees, members, partners, principals, officers, directors, controlling shareholders, agents, attorneys, advisors (including financial or investment advisors), accountants, auditors, consultants, custodians, administrators, transfer agents, underwriters, investment bankers, distributors, commercial bankers, entities providing fairness opinions, general or limited partners or partnerships, limited liability companies, members, joint ventures and insurers and reinsurers of each of them, and the predecessors, successors, estates, immediate family members, spouses, heirs, executors, trusts, trustees, administrators, agents, legal or personal representatives, assigns, and assignees of each of them, in their capacity as such. Any Person excluded from the definition of “Released Defendant Parties” in the last sentence of ¶1.27 hereof shall not be considered a Related Party in this definition. 1.26 “Released Claims” means any and all of the Released Plaintiff Parties’ claims, demands, rights, causes of action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation, including both known and Unknown Claims, that were or could have been asserted in the Litigation or that arise out of or relate in any way to both: (a) any of the facts, matters, allegations, transactions, events, disclosures, statements, acts, or omissions involved, set forth, or referred to in any of the complaints in the Litigation; and (b) the purchase, acquisition, sale, redemption, or 10 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 holding of the securities of the Diversified Fund or the Volatility Fund during the Class Period. “Released Claims” do not include claims to enforce the Settlement, or the claims of any Person who submits a timely request for exclusion that is accepted by the Court. “Released Claims” includes “Unknown Claims,” as defined in ¶1.39 hereof. For the avoidance of doubt, Released Claims includes the claims alleged or that could have been alleged: (a) in the Milwaukee Class Action; and (b) in the Oak Financial Action. 1.27 “Released Defendant Party” or “Released Defendant Parties” means: (i) TAP and each current and former series or portfolio thereof including the Diversified Fund, and each of their respective current and former affiliates, subsidiaries (including Infinity Q Commodity Fund Ltd. (“IQCF”)), predecessors, successors, assigns, underwriters, investment bankers, distributors, administrators, custodians, and transfer agents; (ii) U.S. Bancorp and each of its current and former parents, affiliates, subsidiaries, predecessors, successors, and assigns; (iii) Quasar and each of its current and former parents, affiliates, subsidiaries, predecessors, successors, and assigns; (iv) EisnerAmper, Eisner Advisory Group, LLC, Eisner Partners SPV LLC, and each of their current and former parents, affiliates, subsidiaries, predecessors, successors, and assigns (the “EisnerAmper Releasees”); (v) for each of the foregoing in (i), (ii), (iii),and (iv), all of their respective current and former officers, trustees, directors, partners, principals, members, managers, controlling persons, employees, attorneys, insurers, agents, representatives, consultants, and Related Parties, including, but not limited to, the TAP Individual Defendants; (vi) Leonard Potter and James Velissaris in their capacity as directors or officers of IQCF, including their execution or discharge of their duties, powers, authorities, or discretions as directors or officers of IQCF or their conduct of the business or affairs of IQCF (even if they were also acting in some other capacity while acting in their capacity as directors or officers of IQCF); and (vii) for Settling 11 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 Defendants who are natural persons, their spouses, family members, heirs, insurers, executors, trustees, Related Parties, and any trust of which any such Person is settlor or which is for their benefit or the benefit of their spouses, family members, or heirs. Notwithstanding the foregoing and for the avoidance of doubt, Released Defendant Parties do not include: (a) Infinity Q Capital Management, LLC; Bonderman Family Limited Partnership; Infinity Q Management Equity, LLC; the Volatility Fund, and Scott Lindell; and (b) James Velissaris and Leonard Potter in any capacity other than as directors or officers of IQCF (even if they were also acting in some other capacity while acting in their capacity as directors or officers of IQCF). 1.28 “Released Defendants’ Claims” means any and all claims, demands, rights, causes of action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation including both known and Unknown Claims, as defined in ¶1.39 hereof, against Released Plaintiff Parties that arise out of or relate in any way to the institution, prosecution, or settlement of the claims against Settling Defendants in the Litigation, including under Rule 11 of the Federal Rules of Civil Procedure, or for any other fees or cost shifting, except for claims relating to the enforcement of the Settlement. For the avoidance of doubt, nothing herein shall be deemed to impair the rights of TAP or the Diversified Fund (i) to offset, when distributing the assets of the Diversified Fund, any net gains by Class Members obtained by virtue of such shareholders’ prior purchases and redemptions of the securities of the Diversified Fund prior to February 19, 2021, or (ii) to pursue clawback claims against Class Members in respect of prior redemptions of the Diversified Fund. As against Released Defendant Parties, “Released Defendants’ Claims” also means any and all claims, demands, rights, causes of action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation 12 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 including both known and Unknown Claims, as defined in ¶1.39 hereof, that any Released Defendant Party may have against any other Released Defendant Party, and that arise out of or relate in any way to TAP, the Funds, Diversified Fund Shares, the interests in the Volatility Fund, or any of the facts, matters, allegations, transactions, events, disclosures, statements, acts, or omissions involved, set forth, or referred to in the complaints in the Litigation, except that (a) “Released Defendants’ Claims” do not include claims for indemnification between or among Released Defendant Parties or any combination of Released Defendant Parties, (b) nothing herein shall constitute a release by TAP or the Diversified Fund of any claims, demands, rights, causes of action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory, common, or foreign law, or any other law, rule, regulation, contract, agreement, or governing instrument, including both known and Unknown Claims, as defined in ¶1.39 hereof, each may have against any of the TAP Individual Defendants, Quasar, U.S. Bancorp, and/or EisnerAmper, and (c) nothing herein shall constitute a release by any of the TAP Individual Defendants, Quasar, U.S. Bancorp, and/or EisnerAmper of any claims, demands, rights, causes of action, and liabilities, whether based in law or equity, arising under federal, state, local, statutory, common, or foreign law, or any other law, rule, regulation, contract, agreement, or governing instrument, including both known and Unknown Claims, as defined in ¶1.39 hereof, including, but not limited to, claims for indemnity, each may have against TAP or the Diversified Fund. 1.29 “Released Plaintiff Party” or “Released Plaintiff Parties” means each and every Class Member, Lead Plaintiff, Lead Counsel, Plaintiffs’ Counsel, and their Related Parties. 1.30 “Settlement” means the resolution of the Litigation in accordance with the terms and provisions of this Stipulation. 13 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 1.31 “Settlement Fund” means the Settlement Amount as specified in ¶2.2 hereof plus all interest and accretions thereto. 1.32 “Settlement Hearing” means the hearing set by the Court to consider whether the Settlement should be approved as fair, reasonable, and adequate within the meaning of Article 9 of the CPLR. 1.33 “Settling Defendants” collectively means TAP, including the Diversified Fund; the TAP Individual Defendants; Quasar; U.S. Bancorp; and EisnerAmper. 1.34 “Settling Defendants’ Counsel” collectively means Morgan, Lewis & Bockius LLP; Duane Morris LLP; Vedder Price P.C.; Faegre Drinker Biddle & Reath LLP; and Davis Wright Tremaine LLP. 1.35 “Settling Parties” collectively means Settling Defendants and Lead Plaintiffs in the State and Federal Actions, on behalf of themselves and the Class. 1.36 “Summary Notice” means the summary notice of proposed Settlement and hearing for publication, substantially in the form attached hereto as Exhibit A-3. 1.37 “Tax” or “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax, and additional amounts imposed with respect thereto) imposed by any governmental authority, including, but not limited to, any local, state, and federal taxes, arising with respect to the income earned by the Settlement Fund. 1.38 “Tax Expenses” means Taxes and expenses and costs incurred in connection with the operation and implementation of ¶2.11 (including, without limitation, expenses of tax attorneys and/or accountants and mailing and distribution costs and expenses relating to filing (or failing to file) the returns described in ¶2.11). 14 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 1.39 “Unknown Claims” means: (a) any and all Released Claims that any of the Released Plaintiff Parties do not know or suspect to exist in his, her, or its favor at the time of the release of the Released Defendant Parties, which, if known by him, her, or it, might have affected his, her, or its settlement with and release of the Released Defendant Parties, or might have affected his, her, or its decision(s) with respect to the Settlement, including, but not limited to, whether or not to object to the Settlement or seek exclusion from the Class; and (b) any and all Released Defendants’ Claims that any of the Released Defendant Parties do not know or suspect to exist in his, her, or its favor at the time of the release of the Released Plaintiff Parties or Released Defendant Parties that, if known by him, her, or it, might have affected his, her, or its settlement and release of the Released Plaintiff Parties or Released Defendant Parties. With respect to (a) any and all Released Claims against the Released Defendant Parties and (b) any and all Released Defendants’ Claims against the Released Plaintiff Parties, the Settling Parties stipulate and agree that, upon the Effective Date, the Settling Parties shall expressly waive, and each Released Plaintiff Party and Released Defendant Party shall be deemed to have, and by operation of the Judgment shall have expressly waived, the provisions, rights, and benefits of California Civil Code §1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to Cal. Civ. Code §1542. The Released Plaintiff Parties and Released Defendant Parties acknowledge that they may hereafter discover facts, legal theories, or authorities in addition to or different from those that he, she, it, or their counsel now knows or believes to be true with respect to the subject matter of the 15 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 Released Claims or Released Defendants’ Claims, but: (a) the Released Plaintiff Parties shall expressly, fully, finally, and forever waive, compromise, settle, discharge, extinguish, and release, and each Released Plaintiff Party shall be deemed to have waived, compromised, settled, discharged, extinguished, and released, and upon the Effective Date, and by operation of the Judgment, shall have waived, compromised, settled, discharged, extinguished, and released, fully, finally, and forever, any and all Released Claims against the Released Defendant Parties, known or unknown, suspected or unsuspected, contingent or non-contingent, accrued or unaccrued, whether or not concealed or hidden, which now exist, or heretofore have existed, or may hereafter exist, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts, legal theories, or authorities; and (b) the Released Defendant Parties shall expressly fully, finally, and forever waive, compromise, settle, discharge, extinguish, and release, and each Released Defendant Party shall be deemed to have waived, compromised, settled, discharged, extinguished, and released, and upon the Effective Date, and by operation of the Judgment, shall have waived, compromised, settled, discharged, extinguished, and released, fully, finally, and forever, any and all Released Defendants’ Claims against the Released Plaintiff Parties and Released Defendant Parties, 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, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts, legal theories, or authorities. The Settling Parties acknowledge, and the Released Plaintiff 16 FILED: NEW YORK COUNTY CLERK 08/17/2022 11:33 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 08/17/2022 Parties and Released Defendant Parties shall be deemed, by operation of the Judgment, to have acknowledged that the foregoing waiver was separately bargained for and is an essential element of the Settlement of which this release is a part. 1.40 “Voluntary Dismissal Stipulation” means a stipulation of dismissal signed on behalf of the Federal Plaintiffs and all Settling Defendants in the Federal Action pursuant to Fed. R. Civ. P. 41(a) substantially in the form annexed hereto as Exhibit C, which shall provide for the dismissal with prejudice of the Federal Action conditional upon the Judgment in the State Action becoming Final. 2. The Settlement 2.1 The obligations incurred pursuant to this Stipulation are: (a) subject to the Court’s approval of the Stipulation and the Judgment (reflecting such approval) becoming Final; and (b) in full and final disposition of the Litigation and any and all Released Claims, as against all Released Defendant Parties, and all Released Defendants’ Claims, as against all Released Plaintiff Parties and Released Defendant Parties, upon and subject to the t