IN THE CIRCUIT COURT OF SHARP COUNTY, ARKANSAS POSITION 1. PLAINTIFF Case No. CV SETTLEMENT AGREEMENT AND RELEASE

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1 IN THE CIRCUIT COURT OF SHARP COUNTY, ARKANSAS POSITION 1 DARRELL E. BEASON, JR., an Arkansas Resident on Behalf of Himself and All Others Similarly Situated, vs. PLAINTIFF Case No. CV LIBERTY BANK OF ARKANSAS DEFENDANTS SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is entered into by and between Darrell E. Beason, Jr. ( Beason or Plaintiff ) as a representative of a defined class of persons ("Settlement Class Members"), on the one hand, and Liberty Bank of Arkansas ( Liberty Bank or Defendant ), on the other (collectively, the "Parties."). This Settlement Agreement is made pursuant to Rule 23(e) of the Arkansas Rules of Civil Procedure and is subject to preliminary and final approval by the Court. Page 1 of 42

2 A. RECITALS WHEREAS, On July 8, 2011, Plaintiff and class representative Beason filed a class action complaint (the "Complaint") initiating an action against Liberty Bank in the Circuit Court of Sharp County, Arkansas, Case No. CV (the "Action"). WHEREAS, Liberty Bank believes Plaintiff s claims are without merit and believes it has engaged in no wrongdoing. Nevertheless, for the purpose of avoiding the burden, expense, risk, opportunity costs, and uncertainty of continuing to litigate this Action and for the purpose of putting to rest the issues raised by the Action, Liberty Bank desires to settle the Action and all claims asserted therein, or could have been asserted therein, on the terms and conditions set forth in this Settlement Agreement, without any admission of any liability or wrongdoing whatsoever. WHEREAS, counsel for Plaintiff and the Settlement Class Members ("Class Counsel") have thoroughly analyzed the applicable law and all of the relevant facts. They believe that the claims asserted in the Action have merit, but are subject to significant defenses. Plaintiff and Class Counsel also recognize and acknowledge the substantial expense, length, and risk of continued proceedings necessary to prosecute the Action against Liberty Bank. Class Counsel acknowledges the Page 2 of 42

3 uncertain and doubtful outcome and risks of further litigation, as well as the difficulties and delays inherent in such litigation. Class Counsel believe that the Settlement confers substantial benefits upon the Settlement Class Members, particularly in light of the significant defenses and substantial risks of prosecuting the claims. Plaintiff and Class Counsel have determined that the Settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class Members because it provides meaningful and immediate relief and avoids the considerable risks and delays of further litigation. WHEREAS, because the Parties wish to memorialize the full and complete terms of the Settlement, the Parties propose to settle the claims in accordance with the terms, provisions, and conditions of this Settlement Agreement as set forth below. NOW, THEREFORE, it is hereby STIPULATED and AGREED by the Parties that the Action shall be settled, subject to the approval of the Court, on the following terms and conditions. Page 3 of 42

4 B. DEFINITIONS The following definitions apply to this Settlement Agreement: 1. "Action" means the action styled Darrell E. Beason, Jr. on Behalf of Himself and All Others Similarly Situated v. Liberty Bank of Arkansas, in the Circuit Court of Sharp County, Arkansas, Position 1, filed on July 8, 2011, Case No. CV "Additional Benefits" means those benefits to Settlement Class Members as referenced herein in Paragraph C(2)(b). 3. "Attorneys Fees, Costs and Expenses" means those fees, costs and expenses referenced herein in Paragraph C(3). 4. "Liberty Bank" means Liberty Bank of Arkansas, any bank acquired by Liberty Bank prior to the Effective Date of this Agreement, and each of the Released Parties released pursuant to Paragraph 15 of this Agreement. 5. "Liberty Bank Account" means a consumer checking account maintained by or with Liberty Bank or any bank acquired by Liberty Bank within the Class Period. 6. "Liberty Bank's Counsel" means Lyn P. Pruitt of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., 425 West Capitol Avenue, Suite 1800, Little Rock, AR Page 4 of 42

5 7. "Liberty Bank Debit Card" means a debit card, check card or any other bank card used for debit purchases issued by Liberty Bank and bearing the Liberty Bank logo or brand, and such cards bearing the logo or brand of another financial institution acquired by or merged into Liberty Bank. 8. "Liberty Bank Debit Card Transaction(s)" means transaction(s) effectuated with or related to such Liberty Bank Debit Card(s), including but not limited to ATM transactions and point of sale ("POS") transactions. 9. "Claim Form" means and refers to the claim form to be completed, signed under penalty of perjury (neither notarization nor witnessing required), and submitted timely to the Claims Administrator by each Refund Eligible Class Member seeking to obtain a distribution from the Escrow Account provided for in Paragraph C(17) of this Settlement Agreement. As specified in Paragraph B(30) of this Settlement Agreement, claim forms will be provided to Settlement Class Members by mail ("Mailed Claim Form"). 10. "Claims Administrator" means Kurtzman Carson Consultants (or KCC ), which is to be retained by Liberty Bank pursuant to Paragraph C(7) of this Settlement Agreement. 11. "Claims Administration and Notice Costs" means those fees, costs and expenses as referenced herein in Paragraph C(10)(c). Page 5 of 42

6 12. "Class Counsel" means the attorneys at Emerson Poynter LLP, 500 President Clinton Ave., Suite 305, Little Rock, Arkansas and 830 Apollo Lane, Houston, Texas "Class Period" shall mean the period between July 7, 2006 through and including June 30, "Complaint" means the Complaint filed in the Action. 15. "Court" means the Circuit Court of Sharp County, Arkansas, Position Effective Date of Settlement. The Effective Date of the Settlement shall be fifteen (15) days after all the following conditions have occurred and been satisfied: a. This Settlement Agreement has been signed by Class Counsel and Liberty Bank's Counsel; b. The Court has entered the Preliminary Approval Order substantially in the form of Exhibit 1 attached hereto; c. Notice has been provided to the Settlement Class as required by the Preliminary Approval Order and Plaintiff or the Claims Administrator has filed one or more declarations attesting that such notice was provided; Page 6 of 42

7 d. The Court has entered the Judgment, as defined herein, with prejudice substantially in the form of Exhibit 2 attached hereto; and e. All times to appeal or seek permission to appeal from the Judgment have expired, or, if an appeal is filed, such appeal has been dismissed in its entirety, or the Judgment has been affirmed in its entirety by the court of last resort to which such appeal may be taken, and such dismissal or affirmation is no longer subject to further appeal or review. 17. "Escrow Account" means an interest bearing account established by Liberty Bank with joint signatory authority vested in the Claims Administrator and Scott Poynter, Class Counsel. The Escrow Account shall be held by Liberty Bank, and Liberty Bank will waive all fees and charges associated with the Escrow Account. 18. "Final Fairness Hearing" means the hearing in the Action for the Court to consider final approval of this Settlement and the entry of Judgment. 19. "Judgment" means the Order and Final Judgment of Dismissal with Prejudice to be entered in the Action in connection with the Settlement after the Final Fairness Hearing. The Judgment shall be substantially in the form of Exhibit 2. Page 7 of 42

8 20. "Notice" means the Notice of Proposed Class Action Settlement to be mailed directly to Settlement Class Members in connection with the this Settlement following the filing of the Preliminary Approval Order. Notice will be provided to Settlement Class Members by mail ("Mailed Notice"), and through establishment of a Settlement Website. The Settling Parties' proposed form of Mailed Notice is attached as Exhibit 3. The Settling Parties shall finalize dates in the Notice before Notice is provided to Settlement Class Members based upon the Preliminary Approval Order and the date set by the Court for the Final Fairness Hearing. 21. "Notice Administrator" means KCC, which is to be retained by Liberty Bank pursuant to Paragraph C(7) of this Agreement and approved by the Court. 22. "Overdraft Fee" or "OD Fee" means an insufficient funds fee, overdraft fee, returned item fee, or other similar fee incurred in a Liberty Bank Account, that could have been the result of the manner in which Liberty Bank processed transactions, on a day a Debit Card Transaction was pending or posted to that checking account, and such Overdraft Fee was not reversed, refunded, or returned to the Settlement Class Member by Liberty Bank. Page 8 of 42

9 23. "Parties" or "Settling Parties" means Plaintiff, as representative of Settlement Class Members, and Liberty Bank. 24. "Person" means a natural person. 25. "Plaintiff" means Darrell E. Beason, Jr., on behalf of himself and as representative of the Settlement Class Members. 26. "Preliminary Approval Order" means the Order Preliminarily Approving Settlement and Providing for Notice to the Class. The Parties' proposed form of Preliminary Approval Order is attached hereto as Exhibit "Settlement" means the settlement into which the Settling Parties have entered to resolve the Action. The terms of the Settlement are as set forth in this Settlement Agreement and the attached exhibits. 28. "Settlement Class Member(s)" means all Persons who are members of the Settlement Class to be certified collectively and individually under Paragraph C1 of this Settlement Agreement. 29. "Settlement Fund" means the sum of $325, to be deposited by Liberty Bank into the Escrow Account as set forth in Paragraph B(17) of this Settlement Agreement in accordance with the Settlement terms hereof. 30. "Settlement Website" means the website that the Notice and Claims Administrator will establish within ten calendar days of Preliminary Approval as a Page 9 of 42

10 means for Settlement Class Members to obtain notice of and information about the Settlement, through and including hyperlinked access to this Settlement Agreement, the Notice, the Preliminary Approval Order, and such other documents a Class Counsel and Liberty Bank's counsel agree to post or that the Court orders posted on the website. These documents shall remain on the Settlement Website at least until the Effective Date. C. TERMS OF THE SETTLEMENT 1. Settlement Class. The Parties stipulate, for the purposes of Settlement only, to the certification of a class pursuant to Rule 23 of the Arkansas Rules of Civil Procedure, defined as: Class. Residents of Arkansas who maintained a Liberty Bank Account with Liberty Bank from July 7, 2006, through June 30, 2012, and who, during that time, incurred at least one Overdraft Fee that could have been the result of the manner in which Liberty Bank processed transactions, on a day a Debit Card Transaction was pending or posted to that Liberty Bank Account, excluding the following: a) All employees, officers and directors of Liberty Bank; b) The judicial officer presiding over this action and his immediate family members; Page 10 of 42

11 c) Any person with an interest in an account at Liberty Bank that is the subject of an active lawsuit against Liberty Bank in any court that makes allegations that are included or are similar to the allegations made in this action; and d) Any person who files a timely exclusion from the settlement. Should the Court not finally approve Settlement of the Action pursuant to the terms of this Settlement Agreement, or if any final approval of the Settlement is reversed on appeal, then the Action shall return to its pre-settlement status, all funds in the Escrow Account shall be returned to Liberty Bank, and Liberty Bank shall be entitled to assert any and all defenses including, but not limited to, challenging the suitability of this Action to proceed as a class action. 2. Settlement Consideration. Liberty Bank shall provide the following consideration in connection with this Settlement: a. Settlement Fund. Subject to approval by the Court, Liberty Bank shall pay $325, into the Escrow Account within seven (7) calendar days of Preliminary Approval Order of the Settlement to create the Settlement Fund. The Settlement Fund shall be used to pay all Attorneys' Fees, Costs, and Expenses, incentive payments, and the Claims Administration and Notice Costs of the Settlement required by this Page 11 of 42

12 Settlement Agreement. In no event shall Liberty Bank be required to pay more than a total of $325,000 in connection with the Settlement outlined in this Settlement Agreement. b. Additional Benefits. As additional consideration for the Settlement and not later than ninety (90) days after the Effective Date of Settlement, Liberty Bank will provide the following benefits to Settlement Class Members with respect to the following transactions: i. Posting of Liberty Bank Debit Card Transactions. On each banking day, all Debit Card Transactions will post prior to ACH Debit Transactions and will be posted in random order. ii. Posting of Liberty Bank ACH Debit Transactions. On each banking day, all Liberty Bank ACH debit transactions will post after Debit Card Transactions but before checks, and will be posted from low to high dollar amounts. iii. Posting of Checks. On each banking day, all check transactions drawn on a Liberty Bank Account will be posted after all Debit Card Transactions and ACH Debit Transactions have been posted, and will be posted in ascending check Page 12 of 42

13 numerical order, or on those occasions where check numbers are not available, then from low to high dollar amounts. iv. Maximum Overdraft Fees Per Posting Cycle. Liberty Bank will cap the maximum number of Overdraft Fees imposed on a Liberty Bank Account in any one banking day to five (5). v. No Overdraft Fee for Certain Transactions. Liberty Bank will not charge Overdraft Fees for transactions that cause a negative balance in the Liberty Bank Account of less than $5.00. vi. One Free OD Fee Pass. Liberty Bank will provide each member of the Settlement Class who receives any remuneration from the Settlement Fund, via direct mail or as otherwise agreed between the parties, a voucher that, upon presentment at a Liberty Bank location, entitles the member to a refund of any one (1) OD Fee charged to that Settlement Class Member s account from date of issuance of any remuneration of Settlement Funds and up to one year thereafter. vii. It is Liberty Bank s position that the Additional Benefits set forth in Paragraphs (C)(2)(b)(i)-(v) will save Liberty Bank Page 13 of 42

14 Account holders more than one million dollars ($1,000,000) annually after the Effective Date of the Settlement. viii. For the Additional Benefits set forth in Paragraphs C(2)(b)(i)- (v), Liberty agrees that it will continue these benefits, or benefits that are the substantial equivalent thereof or better, for at least three (3) years from the Effective Date of this Agreement, unless otherwise required by law. 3. Attorneys' Fees, Costs, and Expenses. Class Counsel shall seek approval from the Court for payment out of the Settlement Fund of not more than 33 1/3% of the Settlement Fund for attorneys' fees and reasonable costs and expenses. Liberty Bank shall have no other or further liability for the attorneys' fees, costs, and expenses of Plaintiff, Class Counsel, or any Settlement Class Members other than the portion of the Settlement Fund awarded to Class Counsel by the Court. a. Unless the Settlement is terminated as provided hereinafter, the Claims Administrator shall pay all Attorneys' Fees, Costs, and Expenses approved by the Court from the Escrow Account to Class Counsel within ten (10) days after entry of the Judgment is entered by the Court, subject to Page 14 of 42

15 Class Counsel returning all such funds should the Judgment be overturned on appeal. b. The Settlement shall not be conditioned upon or subject to Court approval of an award of any particular amount of Attorneys' Fees, Costs, or Expenses to Class Counsel. 4. Incentive Awards. Liberty Bank will not oppose application by Plaintiff for an incentive award in an amount not to exceed $2, for services performed for the class. The incentive award is subject to approval of the Court and shall be paid by the Claims Administrator from the Escrow Account within ten (10) days of the Effective Date of the Settlement. 5. Motion for Preliminary Approval. Within five (5) days of execution of this Settlement Agreement by the Parties, Class Counsel shall file a motion asking the Court to enter an order granting preliminary approval of the Settlement in the form attached hereto as Exhibit 1(the "Preliminary Approval Order") requesting that the Court: a. Preliminarily approve the Settlement as within the range of fair, adequate, and reasonable; Page 15 of 42

16 b. Certify the Settlement Class pursuant to Arkansas Rule of Civil Procedure 23; c. Approve the form and content of the Notice of the Settlement substantially in the form attached as Exhibits 3; d. Establish a procedure for Settlement Class Members to object to the Settlement or to exclude themselves from the Settlement Class, and set a date, no later than fourteen (14) days prior to the date set for the Final Fairness Hearing, after which no Persons shall be allowed to object to or exclude themselves from the Settlement; e. Pending final determination of whether the Settlement should be approved, stay all proceedings in the Action except those related to the effectuation of the Settlement; and f. Schedule a date for the Final Fairness Hearing for a date mutually convenient for the Court, Class Counsel, and Liberty Bank's Counsel that is not more than sixty (60) days after the entry by the Court of the Preliminary Approval Order. 6. Additional Discovery. Class Counsel and Liberty Bank have engaged in significant discovery. In addition and in compliance with its statutory and regulatory obligations to protect its customer's financial information, Liberty Bank Page 16 of 42

17 will cooperate with Class Counsel and allow reasonable confirmatory discovery from Liberty Bank to be conducted by Class Counsel. The period for confirmatory discovery shall begin as of the date of this Settlement Agreement and shall last until the Final Fairness Hearing. All materials provided to Class Counsel that are proprietary and confidential shall be designated as such and retained by Class Counsel, subject to Court order that either party may find it necessary to seek and which is obtained and entered by the Court. Such confirmatory discovery may include document production, and any necessary witness interviews. 7. Notice to Settlement Class Members of the Settlement. Liberty Bank shall retain KCC as the Notice Administrator. a. Subject to approval of the Court, the reasonable fees and costs of the Notice Administrator and any other third-party vendors performing tasks necessary for the implementation or effectuation of the notice shall be paid from the Escrow Account. b. The Notice shall satisfy all requirements of constitutional due process and shall consist of direct mailed notice including a claim form and through establishment of a Settlement Website. Page 17 of 42

18 c. Notice shall commence no later than fourteen (14) days after entry by the Court of a Preliminary Approval Order. d. At least twenty-one (21) days before the Final Fairness Hearing, the Notice Administrator shall provide Liberty Bank's Counsel and Class Counsel with one or more declarations stating that Notice was provided in accordance with the requirements of the Preliminary Approval Order, which the parties shall promptly file with the Court. 8. Exclusion from the Settlement Class. If a Class Member wishes to be excluded from the Settlement Class, he or she must individually sign and timely submit written notice of such intent to Class Counsel for such purpose. a. The written notice must refer to Beason, et. al. v. Liberty Bank and must list the account number(s) of the Settlement Class Member's Liberty Bank Account(s) for which he or she is opting out. b. In addition, the written notice must include, for each account listed: (1) the full names and current addresses of everyone whose name is on the account; (2) a statement that each Person whose name is on the account satisfies the criteria to be a Class Member set forth in Paragraph C(1) of this Settlement Agreement; (3) a statement of intention to exclude each Person whose name is on the account from the Settlement Class; and (4) the Page 18 of 42

19 signature of each Person whose name is on the account. To be effective, written notice must be postmarked at least fourteen (14) days prior to the date as set by the Court in the Notice for the Final Fairness Hearing. 9. Objections to Settlement. Any Class Member who does not opt out of the Settlement Class may object to the Settlement by timely filing with the Court a written statement of objection. The parties may request the Court to allow the parties to take the deposition of any person filing an objection to the Settlement. To be timely, a written statement of an objection in appropriate form must be filed with the Clerk of the Court, and within the Action, and fourteen (14) days prior to the date set in the Notice for Final Fairness Hearing, and also served on Class Counsel and Liberty Bank Counsel, The written statement of objection must set forth: a. The title of the Action; b. The objector's full name, address and telephone number; c. An explanation of the basis upon which the objector claims to be a Settlement Class Member; d. All grounds for the objection, accompanied by any legal support for the objection known to the objector or his or her counsel; Page 19 of 42

20 e. The identity of all counsel representing the objector, if any; f. The identity of all counsel representing the objector, if any, who will appear at the Final Fairness Hearing; g. A list of all persons who will be called to testify by the objector at the Final Fairness Hearing in support of the objection; h. A statement confirming whether the objector intends to personally appear and/or testify at the Final Fairness Hearing; i. The objector's signature or the signature of the objector's duly authorized attorney or other duly authorized representative (along with documentation setting forth such representations). 10. Settlement Administration. Liberty Bank shall retain KCC as the Claims Administrator. a. The fees and costs of the Claims Administrator and of any third-party vendors performing tasks necessary for the implementation or effectuation of the Settlement as provided in Paragraphs C(7) and C(10) of this Settlement Agreement shall be paid from the Escrow Account. In the event the Settlement does not receive final approval, or receives final approval that is overturned on appeal, said amounts shall be the sole responsibility of Liberty Bank. In the event the Settlement does not receive Page 20 of 42

21 final approval, or receives final approval that is overturned on appeal, Liberty Bank shall be entitled to the return of all funds remaining in the Escrow Account. b. The duties of the Claims Administrator, in addition to any other duties that may be specifically described herein, are as follows: i. Receive and verify for completeness all Claim Forms and prepare and transmit payments from the Escrow Account to Settlement Class Members pursuant to Paragraph C(10); ii. Establish and operate a toll free number to receive and respond to requests for Claim Forms and questions about the Settlement; iii. If requested by Liberty Bank, prepare, print and mail the Mailed Notice Form and Mailed Claim Forms; iv. Create, host, and maintain the Settlement Website; v. Provide the following lists to Liberty Bank's Counsel and Class Counsel (with account numbers and/or social security numbers partially redacted), starting thirty (30) Page 21 of 42

22 days after the first Mailed Notice and periodically thereafter: i. Upon request, a list identifying (by the available information regarding name, address, and/or account number) those Persons who have returned a Mailed Claim Form; and ii. A list identifying those Persons who have submitted a request for exclusion, and copies of all such requests for exclusion, if any are erroneously received by KCC, with a complete list of all Persons requesting exclusion from the Settlement Class being provided to Class Counsel and Liberty Bank's Counsel no later than fifteen (15) days prior to the date set for the Final Fairness Hearing. vi. Maintain and oversee confidential data storage relating to the Settlement and the claims process, and engage in account reconciliation, and general administration incidental to the foregoing. Page 22 of 42

23 c. The Claim Administrator's and Notice Administrator's fees, costs, and expenses in performing the foregoing duties will be paid from the Escrow Account. Invoice(s) related to Mailed Notice printing and postage deposits will be paid from the Escrow Account no later than seven (7) days prior to the scheduled mailing date or dates. Other invoices from the Claims Administrator and Notice Administrator will be paid from the Escrow Account within thirty (30) days of the date of said invoices. Making payment of said amounts from the Escrow Account shall be the sole responsibility of Liberty Bank. It is expressly understood and agreed to by Settling Parties that Class Counsel and Settlement Class Members shall not be responsible for any of said fees, costs, and expenses. 11. Submission and Verification of Claims. In addition to the Additional Benefits, all Settlement Class Members are entitled to refunds paid out of the Settlement Fund as follows: a. The Class Member must submit a Claim Form no later than seventy-five (75) days after the Final Fairness Hearing. b. The Class Member shall attest under penalty of perjury that the Person submitting the Claim Form is a Person who holds or held a Liberty Bank Account and, at any time during the Class Period: (1) resided in the Page 23 of 42

24 State of Arkansas; (2) incurred at least one Overdraft Fee in his or her Liberty Bank Account on a single business day as a result of at least one (1) Debit Card Transaction during the time period between July 7, 2006 and June 30, 2012; and (3) the Overdraft Fees were not previously reversed, refunded, or returned to the Class Member by Liberty Bank. c. Class Members shall specify on the Claim Form the total amount of Overdraft Fees that the Class Member incurred during any continuous sixty (60) day period during the Class Period, which he or she must identify by months and year. d. In order to assist Settlement Class Members in determining whether they are entitled to a refund and to properly and accurately complete a Claim Form, Liberty Bank shall make available at no cost to Settlement Class Members account statements for up to 18 monthly statement periods within the Class Period and at the request of the Settlement Class Member. Liberty Bank may make such accounting statements available at its branches or online. e. Liberty Bank may take, but is not required to take, actions as it deems necessary and appropriate in its sole discretion to verify the information provided on Claim Forms and to prevent fraudulent claims Page 24 of 42

25 under this Settlement. In doing so, Liberty Bank shall be entitled to rely on the information contained in its business records relating to the Settlement Class Members' Liberty Bank Account(s). Nothing herein is intended or shall be construed to obligate Liberty Bank to verify each or any Claim Form submitted. f. If Liberty Bank wishes to contest the validity of any Claim Form, it must notify the Claims Administrator, the Class Member, and Class Counsel and attempt to reach agreement with the Class Member regarding the validity of the Claim Form. If Liberty Bank and the Class Member are not able to reach an agreement on the validity of the claim, the Court shall decide the validity of the Claim Form. g. Each Class Member shall submit no more than one Claim Form, regardless of the number of Overdraft Fees such Class Member may have been charged during the Class Period in his or her Liberty Bank Account(s). In the event that a Class Member files multiple Claim Forms, only the valid Claim Form claiming the highest amount of Overdraft Fees will be honored. 12. Distribution of Settlement Fund. After the withdrawal of the costs of Notice and Claims Administration, Attorneys' Fees, Costs and Expenses, and Page 25 of 42

26 Incentive Awards, the distribution of the remainder of the Escrow Account will proceed as follows within sixty (60) days after the Effective Date of this Settlement: a. If the aggregate amount of submitted claims does not exceed the remainder of funds in the Escrow Account, the distribution to Class Members will proceed as follows: i. Each Class Member who submitted a valid Claim Form shall receive the total amount claimed on the Claim Form; ii. If there are still funds remaining in the Escrow Account, the remainder shall be distributed on a pro rata basis within and up to the limits described in iii below. iii. Each Class Member may receive a total reimbursement from the Settlement Fund, including the amount submitted on his or her Claim Form and any pro rata distribution, of no more than three times the amount claimed on his or her Claim Form; and iv. If there are still funds in the Escrow Account after the Settlement Class Members are paid up to three times the amount claimed on their Claim Forms, the remainder of Page 26 of 42

27 the funds in the Escrow Account shall revert to Liberty Bank. b. If the total amount of submitted claims exceeds the funds available in the Escrow Account after payment of the costs of Notice and Claims Administration, Attorneys' Fees, Costs, and Expenses and Incentive Awards, the funds remaining in the Escrow Account shall be distributed to Class Members who submitted valid Claim Forms on a pro rata basis. In no event shall Liberty Bank be required to pay out in the aggregate to Class Members more than the amount remaining in the Escrow Account. c. Payments to Liberty Bank Settlement Class Members pursuant to this Paragraph will be made as follows: (1) for current Liberty Bank Account holders, by electronic deposit or by mailing checks to the address provided on the Claim Form; and (2) for former Liberty Bank Account holders, by mailing checks to the address provided on the Claim Form. 13. Termination of Settlement by Plaintiff or Liberty Bank. This Settlement may be terminated by Plaintiff or Liberty Bank by providing written notice to counsel for the opposing party and the Court within ten (10) days after any of the following occurrences: Page 27 of 42

28 a. Any court rejects, modifies, amends, enjoins or declines to approve the Settlement; b. Any court incorporates into, or deletes or strikes from, or modifies, amends, or changes, the Preliminary Approval Order, Judgment, or the Settlement Agreement, any provision which the Settling Party seeking to terminate the Settlement reasonably regards as material; c. Any court makes any order precluding Plaintiff or Liberty Bank from timely proceeding in whole or in part with the Settlement; d. The Effective Date does not occur; or e. Any other ground for termination provided for elsewhere in this Settlement Agreement. 14. Effect of Termination of Settlement. In the event the Settlement is terminated: a. The Settlement Agreement shall be null and void and of no further effect; b. Any certification of the Settlement Class by the Court will be vacated; Page 28 of 42

29 c. The Settling Parties will be returned to their positions quo ante with respect to all facets of the Action, including, without limitation, with respect to the appropriateness of class certification, as if the Settlement had not been entered into; d. Neither the Settlement terms nor any publicly disseminated information regarding the Settlement, including, without limitation, the Mailed Notices, court filings, orders and public statements relating to the Settlement, may thereafter be used as evidence for any purpose whatsoever; and e. The fact of, and any documents, findings, decisions, or orders relating to, any failure of a court to approve the Settlement or any modification or amendment of the Settlement by a court, as well as the fact and contents of any objections which may have been filed to the Settlement, may not be used as evidence for any purpose whatsoever. 15. Release of Liberty Bank. As of the Effective Date, Plaintiff and every Settlement Class Member, each on behalf of himself or herself and on behalf of his or her respective heirs, assigns, beneficiaries, and successors (the "Releasing Parties"), shall automatically be deemed to have fully and irrevocably released and forever discharged Liberty Bank, and each of its past and present parents, Page 29 of 42

30 subsidiaries, divisions, affiliates, predecessors, successors and assigns, and all of the present and former directors, officers, employees, agents, insurers, shareholders, attorneys, advisors, consultants, representatives, partners, joint venturers, independent contractors, wholesalers, resellers, distributors, retailers, predecessors, successors, and assigns of each of them (the "Released Parties"), of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys' fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out of are based upon, or relate to the conduct, omissions, duties, or matters that were or could have been alleged in the Action, including, without any limitation, any claims, causes of action, demands, damages, losses, or remedies relating to, based upon, resulting from, or arising out of (a) the assessment of an Overdraft Fee on a Liberty Bank Account or the amount of any Overdraft Fee assessed on a Liberty Bank Account, or (b) the order or manner in which Liberty Bank Debit Card Transactions or Liberty Bank check transactions, are posted to and debited from Liberty Bank Accounts. The foregoing Release includes, by way of example but not limitation, any and all of the following to the extent they involve, result in, or seek recovery or relief for Overdraft Fees: (a) the authorization, approval, billing, record keeping, Page 30 of 42

31 and handling of any Liberty Bank Debit Card Transactions, including ATM transactions; (b) the authorization, approval, billing, record keeping, and handling of any Liberty Bank check transaction; (c) any methods used by Liberty Bank in the processing of any Liberty Bank Debit Card Transaction, including ATM transactions; (d) any failure to warn or disclose when Liberty Bank Debit Card Transactions, including ATM transactions, would cause a Liberty Bank Account to be overdrawn or a fee assessed; (e) any failure to allow the holder of any Liberty Bank Account to opt-out of overdrafts, or to publicize or disclose the ability of the holder of any Liberty Bank Account to opt-out of overdrafts; (f) any conduct, representations or statements, if any (in Liberty Bank Account Agreements or otherwise) encouraging the use of Liberty Bank debit cards or reliance on any Liberty Bank balance or other Liberty Bank Account information relating to a Liberty Bank Debit Card provided or shown online or through other means; (g) the timing and manner of distribution of Liberty Bank Account Agreements as it relates to Liberty Bank Debit Cards; (h) any extension of credit decisions made in connection with and the communication, non-communication, or record keeping affiliated with same, as to any Liberty Bank Debit Card Transaction; (i) any decision made by Liberty Bank officers, employees, directors, or agents with respect to any Liberty Bank Debit Card Transactions; (j) any advertising or Page 31 of 42

32 advertisements relating to any of the foregoing; and (k) any alleged usury or improper collection of interest. Plaintiff or any other Settlement Class Member may hereafter discover facts other than or different from those that he or she knows or believes to be true with respect to the subject matter of the claims released pursuant to the terms of this Paragraph of this Settlement Agreement, or the law applicable to such claims may change. Nonetheless, each Releasing Party expressly agrees that, as of the Effective Date, he/she shall have automatically and irrevocably waived and fully, finally, and forever settled and released any known or unknown, suspected or asserted or unasserted, liquidated or unliquidated, contingent or non-contingent claims with respect to all of the matters described in or subsumed by this Paragraph of this Settlement Agreement. Further, each of those individuals agrees and acknowledges that he/she shall be bound by this Settlement Agreement, including by the releases contained in this Paragraph of the Settlement Agreement, and that all of their claims in the Action shall be dismissed with prejudice and released, whether or not such claims are concealed or hidden; without regard to subsequent discovery of different or additional facts and subsequent changes in law; and even if he/she never receives actual notice of the Settlement, never submits a Claim Form, or never receives a distribution of funds from the Settlement. Nothing in this Page 32 of 42

33 Settlement Agreement shall operate or be construed to release any claims or rights by any party to recover any past, present or future amounts that may be owed for actions, issues, claims, or other causes of actions that are outside the scope contemplated by this Agreement. 16. No Admission of Liability. By entering into this Settlement Agreement, the Settling Parties agree that Liberty Bank is not admitting any liability to Plaintiff, the Settlement Class Members, or any other Person or entity, and Liberty Bank expressly denies all such liability. Liberty Bank's motivation for entering into this Agreement is to dispose expeditiously of the claims that have been asserted against it in the Action by settlement and compromise rather than incur the expense and uncertainty of protracted litigation. a. No portion of this Settlement Agreement, nor any act performed or document executed pursuant to or in furtherance of the Settlement: (i) is or may be deemed to be, or may be used as, an admission of, or evidence of, the validity of any claim made by the Plaintiff or Settlement Class Members, or of any wrongdoing or liability of the Released Parties; or (ii) is or may be deemed to be, or may be used as, an admission of, or evidence of, any fault or omission of any of the Released Parties, in the Page 33 of 42

34 Action or in any proceeding in any court, administrative agency or other tribunal. b. In addition to any other defenses Liberty Bank may have at law, in equity, or otherwise to the extent permitted by law, this Settlement Agreement may be pleaded as a full and complete defense to, and may be used as a basis for the injunction against, any action, suit, or other proceeding that may be instituted, prosecuted, or attempted in breach of this Settlement Agreement or the Releases contained herein. c. Nothing in this Settlement Agreement shall be construed as a prohibition on any of Liberty Bank's current business practices including, but not limited to, Liberty Bank's current process for ordering Liberty Bank Debit Card Transaction(s) and/or Liberty Bank check transactions. 17. Public Communications. No Settling Party, Class Counsel, or Liberty Bank's Counsel, or anyone else acting on behalf of any of them shall make any public statement disparaging any Settling Party, Class Counsel, Liberty Bank's Counsel, or this Settlement Agreement. Neither Class Counsel nor Liberty Bank's Counsel shall issue any separate independent press release without approval of all Settling Parties and their counsel. Nothing in this Settlement Agreement bars any Settling Party from posting the Final Approval of this Settlement (or other Page 34 of 42

35 independent press coverage relating to same) on their own website after final approval of this Settlement Agreement. Liberty Bank may communicate with its auditors and make appropriate regulatory and legal disclosures concerning the terms and conditions of this Settlement Agreement. 18. Gender and Plurals. As used in this Settlement Agreement, the masculine, feminine, or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so indicates. 19. Cooperation by the Parties. The Settling Parties agree to cooperate with each other and to take all steps necessary to seek and to obtain all Court approvals required for final approval of the Settlement Agreement and to dismiss the Action with prejudice, including jointly moving for and taking all necessary steps in appropriate sequence to effect final approval of the Settlement. The Parties shall join taking any steps as may be necessary or as may be requested by the Court, and otherwise use their best efforts to effectuate the Settlement provided for in this Settlement Agreement. In addition, the Settling Parties, Class Counsel, and Liberty Bank's Counsel agree that they shall not engage in any conduct or make any statements, directly or indirectly, (a) to encourage, promote, or solicit Settlement Class Members or their counsel to request exclusion from the Settlement Class or to object to the Page 35 of 42

36 Settlement, or (b) to facilitate, induce or cause the non-fulfillment of a condition or the occurrence of an event giving rise to a party's right to terminate this Settlement Agreement. 20. Obligation To Meet And Confer. Before filing any motion in the Court raising a dispute arising out of or related to this Settlement Agreement, the Parties shall consult with each other and certify to the Court that they have consulted. 21. Entire Agreement. This Settlement Agreement constitutes the entire agreement between and among the Settling Parties with respect to the Settlement of the Action. This Settlement shall not be construed more strictly against one party than another merely because it may have been prepared by counsel for one of the Settling Parties, it being recognized that, because of the arm's length negotiations resulting in the Settlement, all Settling Parties hereto have contributed substantially and materially to the preparation of the Settlement Agreement. This Settlement Agreement supersedes all prior negotiations and agreements and may not be modified or amended except by a writing signed by the Settling Parties, Class Counsel, and Liberty Bank Counsel. Page 36 of 42

37 22. Integration. This Settlement Agreement constitutes a single, integrated written contract expressing the entire agreement of the Settling Parties relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any party hereto, except as provided for herein. 23. No Conflict Intended. Any inconsistency between the headings used in this Settlement Agreement and the text of the paragraphs of this Settlement Agreement shall be resolved in favor of the text. 24. Binding Effect. The Settlement shall be binding upon, and shall inure to the benefit of the Settling Parties, the Settlement Class Members, the Persons released this Settlement Agreement, and the respective heirs, administrators, successors and assigns or each of them. Except as provided in the foregoing sentence, nothing in this Settlement Agreement is intended to create any legally enforceable rights in any other person or to make any other person a beneficiary of this Settlement. 25. Governing Law. This Settlement Agreement shall be construed, enforced, and administered in accordance with the laws of the State of Arkansas without reference to its conflict of laws principles. Page 37 of 42

38 26. Jurisdiction. The Court shall retain jurisdiction with respect to the implementation and enforcement of the terms of the Settlement, and all Settling Parties and Settlement Class Members submit to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement. 27. Counterparts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together constitute one and the same instrument, even though all Parties do not sign the same counterparts. Original signatures are not required. Any signature submitted by facsimile or through of an Adobe PDF shall be deemed an original. 28. Modification and Amendment. This Settlement Agreement may be amended or modified only by a written instrument signed by the Parties and their respective counsel and approved by the Court. 29. Authority. Plaintiff and Liberty Bank represent and warrant that the persons signing this Settlement Agreement on their behalf have full power and authority to bind every person, partnership, corporation or entity included within the definitions of Plaintiff and Liberty Bank to all terms of this Settlement Agreement. Any person executing this Settlement Agreement in a representative capacity represents and warrants that he or she is fully authorized to do so and to bind the party Page 38 of 42

39 on whose behalf he or she signs this Settlement Agreement to all of the terms and provisions of this Settlement Agreement. 30. Agreement Mutually Prepared. Neither Liberty Bank nor Plaintiff shall be considered to be the drafter of this Settlement Agreement or any of its provisions for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter of this Settlement Agreement. 31. Independent Investigation and Decision to Settle. The Settling Parties understand and acknowledge that they: (a) have performed an independent investigation of the allegations of fact and law made in connection with this Action; and (b) that even if they may hereafter discover facts in addition to, or different from, those that they now know or believe to be true with respect to the subject matter of the Action as reflected in this Settlement Agreement, that will not affect or in any respect limit the binding nature of this Settlement Agreement. Liberty Bank has provided and is providing information that Plaintiff reasonably request to identify Settlement Class Members and the alleged damages they incurred. It is the Settling Parties' intention to resolve their disputes in connection with this Action pursuant to the terms of this Settlement Agreement now and thus, in furtherance of their intentions, the Settlement Agreement shall remain in full force and effect notwithstanding the Page 39 of 42

40 discovery of any additional facts or law, or changes in law, and this Settlement Agreement shall not be subject to rescission or modification by reason of any changes or differences in facts or law, subsequently occurring or otherwise. 32. Receipt of Advice of Counsel. Each party acknowledges, agrees, and specifically warrants that he, she, or it has fully read this Settlement Agreement and the Releases, received independent legal advice with respect to the advisability of entering into this Settlement Agreement and the Releases, and the legal effects of this Settlement Agreement and the Releases, and fully understands the effect of this Settlement Agreement and the Releases. [Signatures on Following Page] Page 40 of 42

41 IN WITNESS WHEREOF, the Settling Parties hereto have caused the Settlement Agreement to be executed as follows: For Liberty Bank of Arkansas: [Name] [Position] Date For Plaintiff Darrell Beason: Darrell Beason Date Page 41 of 42

42 Agreed to by: Emerson Poynter LLP The Museum Center 500 President Clinton Ave., Suite 305 Little Rock, AR Date Attorney for Plaintiffs Lyn P. Pruitt Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. 425 West Capitol Ave, Suite 1800 Little Rock, AR Date Attorney for Defendant Page 42 of 42

43 IN THE CIRCUIT COURT OF SHARP COUNTY, ARKANSAS POSITION 1 DARRELL E. BEASON, JR., an Arkansas Resident on Behalf of Himself and All Others Similarly Situated, PLAINTIFF vs. LIBERTY BANK OF ARKANSAS DEFENDANTS Case No. CV PRELIMINARY APPROVAL ORDER WHEREAS Plaintiffs Darrell E. Beason ( Plaintiff ), on behalf of himself and on behalf of the Class, and Liberty Bank of Arkansas ( Liberty Bank or Defendant ), all acting by and through their respective counsel, have agreed, subject to Court approval, to settle this litigation upon the terms and conditions stated in the Class Action Settlement Agreement and Release signed on, 2012 and filed with the Court on, 2012 (the Settlement Agreement ); NOW, THEREFORE, based upon the Settlement Agreement and other papers on file in this action, statements of counsel, testimony presented and all Page 1 of 17

44 other proceedings herein, it appears to the Court that a hearing should be held to determine whether the proposed settlement described in the Settlement Agreement is fair, reasonable, and adequate; IT IS HEREBY ORDERED THAT: 1. The Settlement Agreement is hereby incorporated by reference in this Order and all terms defined in the Settlement Agreement will have the same meanings in this Order. 2. For purposes of determining whether the terms of the proposed settlement should be finally approved as fair, reasonable and adequate, the following Class is conditionally certified for settlement purposes only: Residents of Arkansas who maintained a Liberty Bank Account with Liberty Bank from July 7, 2006, through June 30, 2012, and who, during that time, incurred at least one Overdraft Fee that could have been the result of the manner in which Liberty Bank processed transactions, on a day a Debit Card Transaction was pending or posted to that Liberty Bank Account, excluding the following: a. All employees, officers and directors of Liberty Bank; b. The judicial officer presiding over this action and his immediate family members; c. Any person with an interest in an account at Liberty Bank that is the subject of an active lawsuit against Liberty Bank in any court that makes allegations that are included or are similar to the allegations made in this action; and Page 2 of 17

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