Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 1 of 5

Transcription

1 Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 1 of 5

2 Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 2 of 5

3 Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 3 of 5

4 Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 4 of 5

5 Case 3:11-cv MMA-DHB Document 91-2 Filed 01/10/13 Page 5 of 5

6 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 1 of 15 EXHIBIT 1

7 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 2 of 15 Emerson Poynter LLP Attorneys at Law Little Rock Houston Class Action Litigation Securities Litigation Antitrust Litigation ERISA Litigation Consumer Litigation Trials and Appeals Product Liability and Tort Law Litigation Securities Arbitration Martindale-Hubble AV Rated Our Firm Emerson Poynter LLP has a national class action legal practice with offices in Houston, Texas, and Little Rock, Arkansas. Emerson Poynter, and its team of experienced Attorneys and Paralegals, handles complex commercial litigation with a concentration in those cases that involve violations of federal and state securities or antitrust laws, consumer protection laws, and violations of the Employee Retirement Income Security Act of 1974 ( ERISA ). Our law firm has handled numerous securities and shareholder derivative cases representing investors. Emerson Poynter and its predecessor firms have also been active in many mass tort, class action, and individual cases of note. In the class action litigation area, Emerson Poynter has represented and currently represents plaintiffs in well over 100 class action cases, some of which are being prosecuted with other leading national firms. Emerson Poynter has served as Co-Lead Counsel in several recent Multidistrict Litigation ( MDL ) cases involving product liability and consumer protection issues. In 2004, Emerson Poynter was appointed by the Honorable Stephen P. Friot as Plaintiffs Co-Lead Counsel in In re Farmers Insurance Co., Inc. FCRA Litigation, which was recently settled in the Western District of Oklahoma. This case was litigated on behalf of a certified class of Farmers current and past customers who were charged more than the lowest premium for insurance based upon information in a consumer report, and received certain adverse action notices that willfully

8 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 3 of 15 failed to conform to the Fair Credit Reporting Act. The case resolved in late 2011 and provided class members with about $100 million in cash and other relief. Emerson Poynter LLP also represent numerous long-grain rice farmers in Arkansas and other states, and continues to serve as Co-Chairman of Plaintiffs Executive Committee in the MDL action In re Genetically Modified Rice Litigation (the Rice MDL Action ) having been appointed to such position by the Honorable Catherine D. Perry of the Eastern District of Missouri in April The Rice MDL Action sought damages for long-grain rice producers in Arkansas, Missouri, Mississippi, Louisiana, and Texas for defendants contamination of the United States rice supply with genetically modified rice as revealed by Bayer and the USDA in August This MDL action was settled for over $750 million in cash relief for American rice farmers. Emerson Poynter additionally served as Co-Lead Plaintiffs Counsel in an MDL case transferred to the Honorable Richard D. Bennett of the District of Maryland captioned In Re; Tyson Foods, Inc. Chicken Raised Without Antibiotics Consumer Litigation. The case involved false advertising claims associated with the sale of Tyson Foods chicken as being raised without antibiotics, when in fact the chicken was raised with antibiotics. The action was settled for $5 million in cash and other relief for class members who purchased the chicken products at issue. Emerson Poynter is also active in cases seeking to improve corporate governance in public companies through its involvement in shareholder derivative litigation. Most notably, Emerson Poynter served as Co-Lead Counsel in cases resulting in significant and far-reaching corporate governance and compliance improvements within companies such as AOL/Time Warner, Computer Associates, Nicor, Cryolife, Inc., and Crompton (Chemtura). The Firm has also represented shareholders in claims involving corporate buyouts and other change-of-control transactions. In 2007, Emerson Poynter represented shareholders of Alltel Corporation in an acquisition of the company by an affiliate of Goldman Sachs. The action was settled favorably for the shareholders, and the Honorable Judge Chris Piazza of the Pulaski County Circuit Court, Arkansas, approved the settlement in August of In the consumer protection litigation area, Emerson Poynter is a leader in fighting for the rights of consumers. Besides the aforementioned Tyson RWA Chicken MDL Action, Emerson Poynter is also a leader in the MDL action captioned In Re; Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation pending in the United States District Court for the Western District of Missouri. Emerson Poynter is Co-Lead Counsel in the Webb et al. v. Carters Inc. et al. litigation currently pending in the United States District Court for the Central District of California concerning Carter s line of tagless baby clothing; in the Montanez et al. v. Gerber Childrenswear, Inc., et al. litigation currently pending in the United States District Court for the Central District of California concerning Gerber s line of tagless baby clothing; in the Horne et 2

9 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 4 of 15 al. v. The Dannon Company Inc. litigation currently pending in the United States District Court for the Eastern District of Arkansas concerning Dannon s line of yogurt products; and, in the Herrington, et al. v. Johnson and Johnson Consumer Companies, Inc. et al. litigation currently pending in the United States District Court for the Northern District of California concerning numerous baby products. In the retirement plan/pension area, Emerson Poynter served as Co-Lead Counsel in the Winn-Dixie Stores, Inc. ERISA Litigation that settled in the Middle District of Florida in 2008, and served as Co-Lead Counsel in the ADC Telecommunications ERISA litigation that settled in the District of Minnesota in Emerson Poynter served on the Enron ERISA Litigation Plaintiffs Counsel Steering Committee. This case settled in the United States District Court, Southern District of Texas, Houston Division in Our Attorneys John G. Emerson Partner Mr. Emerson is a founding partner of the Firm. He was born in Little Rock, Arkansas, and was raised there and in Houston, Texas. He is a member of the state bars of Texas, Washington and Arkansas. Mr. Emerson obtained his Bachelor of Arts from the University of Texas at Austin. He then earned his Juris Doctorate from South Texas College of Law. Mr. Emerson has represented numerous stockholders in shareholder derivative lawsuits brought against corporate boards. These suits sought to impose corporate governance reforms aimed at protecting shareholders and eliminating corporate waste and abuse. For example, Mr. Emerson served as one of the Lead Derivative Counsel in the Federman v. Artz derivative action brought on behalf of Computer Associates in the Federal District Court for the Eastern District of New York. This action was brought against the Computer Associates board of directors and led to the resignation of the Company's CFO, the resignation of two other senior financial officers, and the adoption of certain corporate governance measures that Computer Associates has represented as the "gold standard" of governance reform. Mr. Emerson was Co-Lead Counsel in the In Re Nicor, Inc. Shareholder Derivative Litigation in the Circuit Court of Cook County, 3

10 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 5 of 15 Illinois County Department, Chancery Division. This action was brought against Nicor's board of directors and its settlement resulted in significant corporate governance improvements at Nicor. In 2005, Mr. Emerson was Co-Lead Counsel in the In Re Cryolife Derivative Litigation pending in the Superior Court of Fulton County, Georgia. The settlement of this action in 2005 resulted in wide-sweeping and significant corporate governance improvements at Cryolife. Mr. Emerson was also Co-Lead Counsel in the AOL Time Warner Shareholder Derivative Litigation which was settled in the Federal District Court for the Southern District of New York in This settlement resulted in wide ranging corporate governance and compliance changes and was a substantial factor in Time Warner s ability to obtain $200 million from its Directors and Officers (D&O) insurance carriers. Mr. Emerson was Lead Counsel in the Crompton (now known as Chemtura) Shareholder Derivative Litigation which settled in the Bankruptcy Court for the Southern District of New York in This settlement resulted in significant corporate governance improvements that were put in place during bankruptcy and continued after the Company s reorganization and exit from bankruptcy in In the tort area, Mr. Emerson, has represented plaintiffs against many of the country s largest Fortune 500 companies. He was a co-lead counsel in mass tort litigation in which he represented numerous plaintiffs who had been diagnosed with radiogenic cancers alleged to have been caused by exposure to radioactive materials associated with the mining and milling of uranium and the disposal and supposed storage of radioactive wastes and toxic chemicals. These cases involved the operations of Exxon, Conoco, U.S. Steel, Chevron, and others. These mass tort cases were settled under a confidential agreement. Mr. Emerson currently serves as Chairman of the Expert Witness Committee in the MDL Action In Re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation on file in the United States District Court for the Western District of Missouri. Mr. Emerson has extensive jury trial experience over the past 30 years. In the consumer class action area, Mr. Emerson represented one of the Lead Plaintiffs in the AOL Version 5.0 software litigation. He also served as Co-Lead Counsel in litigation for consumers against the Farmers Insurance Group of Companies involving alleged violations of the Fair Credit Reporting Act. In the antitrust area, Mr. Emerson has represented plaintiffs in the Compact Disc Antitrust Litigation filed against the music industry in the United States, and has represented plaintiffs in the High Pressure Laminates Antitrust Litigation in both the direct and indirect purchaser cases. Currently, Mr. Emerson is involved in the following Antitrust cases: CRT (Cathode Ray Tube) Antitrust Litigation; Flash Memory Antitrust Litigation; GPU (Graphics Processing Units) Antitrust Litigation; Packaged Ice Antitrust Litigation; Ocean Shipping 4

11 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 6 of 15 Antitrust Litigation; SRAM (Static Random Access Memory) Antitrust Litigation; TFT-LCD (Flat Panel) Antitrust Litigation; and Trans-Pacific Airline Surcharge Litigation. Mr. Emerson was also a consultant to Canadian plaintiffs counsel in the Canadian Medtronic Pacemaker Pacing Lead Product Liability Litigation that was certified and settled in British Columbia as a Canadian national class action. He has also been a consultant to Canadian counsel in the Canadian compact disc antitrust litigation, the Canadian Publishers Clearing House litigation, and the Canadian AOL 5.0 Software Litigation, which were of course companion cases to those discussed above. Mr. Emerson is committed to representing employees or former employees who participated in their public company s retirement plans and sustained significant losses in these plans due to corporate malfeasance. In this regard, he was appointed to the Plaintiffs Counsel Steering Committee by Judge Melinda Harmon in the consolidated Enron ERISA Litigation, Pamela M. Tittle v. Enron Corp., et al. Mr. Emerson was admitted to the Texas Bar in He is admitted to practice before the U.S. Supreme Court; U.S. Court of Appeals, 5th Circuit; U.S. Court of Appeals, 8 th Circuit; U.S. District Courts for the Southern, Northern, Western and Eastern Districts of Texas; Western and Eastern Districts of Arkansas; Western District of Washington; District of Colorado; and all Texas, Washington and Arkansas state courts. Mr. Emerson was affiliated with the fraternity Delta Theta Phi. He is a member of the American Bar Association (Tort and Insurance Practice Section, Legal Economics Section); American Association for Justice (AAJ); Supporting Fellow of the Pound Civil Justice Institute; Class Action Trial Lawyers (CATL); AAJ Class Action Litigation Group; Texas Trial Lawyers Association; State Bar of Texas (Grievance Committee 4-D, Houston, 7/91 through 7/94; Membership Services Committee, 91-92); Sustaining Life Fellow Texas Bar Foundation; Bar Association for the United States District Court for the Eastern District of Texas; Houston Bar Association; Fellow of the Houston Bar Foundation; Washington State Bar; King County Bar Association; Pulaski County Bar Association; and, the Arkansas Bar Association. Mr. Emerson is AV Preeminent Rated by Martindale-Hubbel. Mr. Emerson s address is jemerson@emersonpoynter.com. 5

12 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 7 of 15 Scott E. Poynter Partner Mr. Scott Poynter is also a founding partner of the Firm. He was born in Fayetteville, Arkansas and was raised in Mountain Home. Mr. Poynter earned his Bachelor of Science Degree in Accounting from Arkansas Tech University. He then earned his Juris Doctorate from the University of Arkansas in While in law school, Mr. Poynter was active in Phi Alpha Delta legal fraternity and was awarded a leadership scholarship from the school. After completing law school, Mr. Poynter joined the Judge Advocate Department of the United States Air Force and served six years of active duty as a Judge Advocate and litigated more than fifty jury trials. In 1995, then Captain Poynter was selected by the Air Force for its Advanced Trial Advocacy Course, a course reserved for the military s finest litigators. After leaving active duty, Mr. Poynter was a partner at a national class action law firm, which focused its work on the representation of investors. He also continued his military career in the Arkansas Air National Guard and attained the rank of Major. As Plaintiffs Co-Lead Counsel in the Farmers MDL Action, Mr. Poynter was devoted to recovering statutory damages in a certified class action brought on behalf of Farmers customers who paid higher insurance premiums based upon credit information without their knowledge due to faulty FCRA notices prepared by Farmers. As a result of his and his co-counsel s effort, they secured a $100 million settlement on behalf of class members last fall. In another MDL action, In Re Genetically Modified Rice Litigation, Mr. Poynter serves as Co-Chair of Plaintiffs Executive Committee on behalf of long-grain rice farmers who experienced a deflated rice market after America s rice supply was contaminated by Bayer s genetically modified rice in 2006 and markets in Europe and Asia were lost. A $750 million cash settlement was achieved last year, and Mr. Poynter continues to work on behalf of his clients in securing their cash relief. Mr. Poynter also served as Co-Lead Plaintiffs Counsel in the Tyson RWA Chicken MDL Action before Judge Bennett in the District of Maryland, which provided class members over $5 million in relief. Additionally, he served as class counsel in multiple consumer actions against Alltel, and thus far, has secured over $60 million of relief former Alltel subscribers who were members of certain consumer classes. 6

13 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 8 of 15 Mr. Poynter is also an experienced ERISA litigator, having served as Co-Lead Plaintiffs Counsel for retirement plan participants involving retirement plans at ADC Telecommunications, Inc. and Winn Dixie Stores, Inc. Due to Mr. Poynter s efforts, millions of dollars were recovered in those retirement plans in settlements approved by judges in the District of Minnesota in 2006 and the Middle District of Florida in Mr. Poynter was also instrumentally involved in ERISA Actions involving Enron, Reliant Energy, and he also represented numerous Goodyear Tire & Rubber Company employees in an ERISA action brought in Ohio. As an active participant in the representation of investors whose shares are acquired through leveraged buyouts, mergers, tender offers, and other change of control transactions, Mr. Poynter has challenged the fairness of such transactions, the adequacy of disclosures made in connection with the transactions, and the price offered to shareholders for their equity. These types of cases have resulted in the restructuring of scores of corporate transactions and the recovery of hundreds of millions of dollars in additional compensation for shareholders. Most recently, Mr. Poynter was a lead counsel in such litigation and represented Alltel shareholders in a case assigned to Pulaski Circuit Judge Chris Piazza. In re Alltel Corp. Shareholders Litigation, Circuit Court of Pulaski County, Arkansas, Case No This case was settled in late August Mr. Poynter also devotes a significant amount of his law practice to representing investors seeking financial recovery for losses suffered as a result of securities fraud. Additionally, Mr. Poynter has represented stockholders in shareholder derivative lawsuits brought against corporate boards, seeking to impose corporate governance reforms aimed at protecting shareholders and eliminating corporate waste and abuse. For example, Mr. Poynter served as one of the counsel in Perkins v. Sortwell, et al., brought on behalf of Aurora Foods, Inc. In this derivative action, certain corporate insiders were forced to relinquish more than 3.6 million of their personal shares to Aurora Foods representing nearly a $15 million benefit to the Company. Additionally, significant corporate governance safeguards were implemented to significantly reduce the risk of accounting malfeasance. Mr. Poynter s experience in this action contributed significantly to the settlement achieved in a derivative action brought on behalf of Computer Associates, which led to the resignation of the Company s CFO and two other senior financial officers. Moreover, Mr. Poynter was one of the lead counsel in derivative litigation in Georgia involving Cryolife that led to the denial of the Cryolife s Board of Directors motion to dismiss based upon the investigation and report of a special litigation committee. Through his effort in building Plaintiffs case in discovery, the motion to dismiss was denied very quickly and a favorable settlement for Cryolife and its shareholders followed. Mr. Poynter has also led other derivative actions involving Nicor, AOL Time Warner, and Crompton Corporation. 7

14 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 9 of 15 Mr. Poynter has also been extensively involved in many telecommunications class action cases brought under consumer protection statutes, and appeared on the nationally syndicated television show The Morning Show with Mike and Juliet as an expert on the cell phone industry s early termination fees. Mr. Poynter provided viewers of this show with legal information regarding the response of consumers to such fees, and the Federal Communications Commission s recent hearings on the subject. Mr. Poynter is admitted to practice before: U.S. Court of Appeals for the Armed Forces; U.S. District Courts for the Western and Eastern Districts of Arkansas; 8 th Circuit Court of Appeals; and all Arkansas State Courts. Mr. Poynter s address is scott@emersonpoynter.com. Christopher D. Jennings Associate Mr. Jennings is an associate with the firm. His practice concentrates on complex litigation and representing consumers, businesses, and governmental entities in individual and class action antitrust, consumer protection, derivative, products liability, and federal securities cases. Mr. Jennings has assisted in prosecuting numerous individual, mass tort, and class cases in state and federal courts throughout the nation. Currently, Mr. Jennings is assisting in litigating several antitrust cases including In re CRT (Cathode Ray Tube) Antitrust Litigation, MDL 1917 (N.D. Cal.); In re Flat Glass Antitrust Litigation (II), MDL 1942 (W.D. Pa.); In re Packaged Ice Antitrust Litigation, MDL 1952 (E.D. Mich.); In re Text Messaging Antitrust Litigation, MDL No (N.D. Ill.); and In re TFT-LCD (Flat Panel) Antitrust Litigation, MDL 1827 (N.D. Cal.). Mr. Jennings is also involved in several consumer protection and products liability cases, including multiple telecommunications class action cases brought under various state consumer protection statutes. Two such class cases he has recently assisted in litigating have resulted in settlements where approximately $61 million in total relief was made available to class members. Most recently, Mr. Jennings successfully argued to the Arkansas Supreme Court the reversal of an order denying class certification in a case involving Alltel Communications, Inc. Rosenow v. Alltel Corp. et al., 2010 Ark. 26 (2010). 8

15 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 10 of 15 Mr. Jennings also has experience in representing consumers and businesses in consolidated multidistrict litigation. For example, in In re Tyson Consumer Litigation, MDL 1982 (D. Md. 2008), Mr. Jennings assisted in successfully arguing complex procedural and jurisdictional issues and developing novel discovery techniques on behalf of his clients. He has also worked extensively on behalf of Arkansas rice farmers in In re: Genetically Modified Rice Litigation, MDL 1811 (E.D. Mo. 2006), most notably where his team successfully opposed German holding company Bayer AG's jurisdictional challenges. In re Genetically Modified Rice Litigation, 576 F.Supp.2d 1063 (E.D. Mo. 2008). Mr. Jennings is a native of Little Rock. In 2001, Mr. Jennings obtained his Bachelor of Arts Degree in Political Science from the University of Arkansas with a minor in History. In 2005, he earned a Masters in Public Administration (MPA) degree from the University of Arkansas. His area of emphasis while obtaining his Masters focused on state level corporate and non-profit lobbying strategy and development. In 2006, Mr. Jennings earned his Juris Doctorate from the William H. Bowen School of Law at the University of Arkansas Little Rock. Mr. Jennings is admitted to practice in Arkansas state courts, the Eastern and Western Districts of Arkansas and the 8th Circuit Court of Appeals. He has also been admitted to practice in numerous federal district courts throughout the country. Mr. Jennings is a member of the American Bar Association, American Association for Justice; Arkansas Bar Association; Pulaski County Bar Association; and the Arkansas Young Lawyers Section. Mr. Jennings was recently named a Mid-South Super Lawyers Rising Star in Mr. Jennings address is cjennings@emersonpoynter.com. Will T. Crowder Associate Mr. Crowder is an associate with the firm. He was born and raised in Camden, Arkansas. In 2000, Mr. Crowder earned a Bachelor of Arts Degree in Political Science from the University of Arkansas. In 2003, Mr. Crowder earned his Juris Doctorate from the William H. Bowen School of Law at the University of Arkansas at Little Rock. Mr. Crowder is a member of the Arkansas Bar and admitted to the United States District Court for the Eastern and Western Districts of Arkansas, the District of Colorado, and the U.S. Court of Appeals for the Eighth Circuit. 9

16 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 11 of 15 From 2004 until 2006, Mr. Crowder was a judicial clerk for U.S. District Judge Harry F. Barnes in El Dorado, Arkansas. Following his clerkship he has been employed by the Little Rock law firms of Jack, Lyon & Jones, P.A. (where he focused on defense work) and McMath Woods, P.A. (where he began his representation of the injured). During his time at Emerson Poynter, Mr. Crowder has been extensively involved in all manner and types of class cases, including the firms consumer litigation cases: Carrera v. Bayer Corporation, (D.N.J.), deceptive trade practices action for marketing of Bayer s WeightSmart diet pill. Montantez v. Gerber Childrenswear, LLC (C.D. Cal) and Webb v. Carter s, Inc. (C.D. Cal), cases involving tagless labels on children s garments. In re: Cheerios Marketing and Sales Practices Litigation (D.N.J.), multidistrict litigation pending against General Mills for health and cancer-prevention claims made by their products. Mr. Crowder has also lead the firm s efforts in litigation of cases on behalf of Arkansas s citizens Claims against major retailers who manufacture products with dangerous levels of heavy metals and other chemicals; Claims against manufacturers of toning shoes on behalf of Arkansas s citizens; Claims against banks relating to overdraft practices. Mr. Crowder is a member of the American Bar Association, American Association for Justice, the Arkansas Trial Lawyers Association and the Pulaski County Bar Association. Star. In 2009, 2010, and 2011, Mr. Crowder was selected as a Mid-South Super Lawyer Rising Mr. Crowder s is wcrowder@emersonpoynter.com. Corey D. McGaha Mr. McGaha, is an associate with Emerson Poynter LLP since July He is admitted to practice in the state courts of Arkansas and Texas, the United States District Courts for the Eastern and Western Districts of Arkansas, and the United States District Court for the Eastern District of Texas. Mr. McGaha graduated cum laude from Ouachita 10

17 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 12 of 15 Baptist University and received his law degree from the University of Arkansas in After graduating law school, Mr. McGaha served as a law clerk to the Hon. Harry F. Barnes, United States District Court for the Western District of Arkansas from He is a member of the American Bar Association, the ABA s Young Lawyers Division, the Arkansas Bar Association, and the Texas Bar Association. Mr. McGaha worked as an attorney at Patton Roberts PLLC in Texarkana, Texas from 2006 through Mr. McGaha assisted the firm in successfully litigating and settling a number of security fraud cases including: In Re: Brocade Securities Litigation, Northern District of California - A national securities fraud class action which resulted in a court-approved cash settlement of $160 million for shareholders. In Re: Salomon Analyst Metromedia Litigation, Southern District of New York A securities fraud class action which resulted in a court-approved cash settlement of $35 million for shareholders of Metromedia Fiber Network. Walker v. Rent-A-Center, Inc., Eastern District of Texas A securities fraud class action which resulted in a court approved cash settlement of $3.6 million for the shareholders of Rent-A-Center, Inc. McClure, et al, v. AOL Time Warner, Inc., Texas state court An individual securities fraud action in which clients received 100% more than they would have received in the global settlement of the national securities fraud class action. Mr. McGaha also assisted the Firm in representing the Industrial Technology Research Institute (ITRI), the prominent Taiwanese national research institute, in its first prosecution of its patent portfolio in the United States against Samsung Electronics, and its second ongoing prosecution of its patent portfolio against LG Electronics. Mr. McGaha enjoyed a strong local civil litigation practice at Patton Roberts, focused on commercial, real estate, and personal injury litigation that included: Arkansas State Highway Commission v. Wilson, et al, Arkansas state court - In his first jury trial, Mr. McGaha secured an $188,000 jury verdict on his client s counterclaim against the Arkansas State Highway Commission after the State condemned a third of his clients farm. The jury verdict was substantially higher than the amount of money, $116,000, the State originally interpled into the court s registry. 11

18 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 13 of 15 Reported decision in Buck v. City of Hope, 2009 Ark. App. 105, 303 S.W.3d 85 (Ark.App. 2009) Mr. McGaha successfully argued for his client that the trial court erred in finding it lacked subject matter jurisdiction over claims for nuisance, inverse condemnation, trespass and negligence against the City of Hope, Arkansas. Watz, et al. v. Red Robin International, Inc., et al, Arkansas state court Mr. McGaha successfully gained a dismissal of a wrongful death lawsuit against his clients, the Red Robin restaurant chain, for lack of subject matter jurisdiction. Lancaster v. Red Robin International, Inc., Arkansas state court Mr. McGaha achieved another success for the Red Robin restaurant chain by defeating a former employee s defamation claim by a motion for summary judgment. While living in Texarkana, Mr. McGaha was active in the bar as a member of the Texarkana Bar Association, and treasurer for the Texarkana Young Lawyers Association. Mr. McGaha was also a member of the Texarkana Chapter of Kiwanis International. Mr. McGaha s is cmcgaha@emersonpoynter.com. Terry M. Poynter Of Counsel Mr. Terry Poynter was born in Springfield, Missouri, and grew up in Mountain Home, Arkansas. He earned his Bachelor of Science Degree in Business Administration at the University of Arkansas in Fayetteville, Arkansas in 1962, and earned his Juris Doctorate from the same institution in January, Mr. Poynter was a part-time sports journalist during his undergraduate and law school days. He worked for the Arkansas Democrat, Arkansas Gazette, was an assistant to the sports information director, and, finally, in 1964, was the sports editor of the Northwest Arkansas Times in Fayetteville. During law school, he was Co-Editor-in-Chief of the Arkansas Law Review and Bar Journal. During his distinguished legal career, Mr. Poynter served two terms as prosecuting attorney for the 16 th Judicial District. He has, at one time or another, been primary counsel for six different financial institutions, in addition to serving on the Arkansas Supreme Court s Board of Legal Specialization from 1998 through 2002; the Arkansas Supreme Court Board of Bar Examiners from 1999 through 2003; and the Arkansas Bar Association s Board of Governors. 12

19 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 14 of 15 Mr. Poynter was appointed as Special Chief Justice of the Arkansas Supreme Court by Governor Bill Clinton in 1990, to sit for Mr. Jack Holt Jr., who had recused in a case. Mr. Poynter is admitted to the U.S. Court of Appeals for the 8th Circuit; U.S. District Court for the Eastern and Western Districts of Arkansas, and all Arkansas State Courts. He is a member of the American Association for Justice, Arkansas Trial Lawyers, the Arkansas Bar Association and the Baxter County Bar Association. Mr. Poynter retired from the practice of law in January 2012, but remains a trusted advisor to his son and other attorneys at Emerson Poynter. Robert Jigarjian Of Counsel Mr. Jigarjian received his Bachelor of Arts degree from Hamilton College in 1981, his Masters of Business Administration from Tulane University in 1985 and his Juris Doctorate from Golden Gate University in Prior to law school, Mr. Jigarjian worked as an institutional sales trader with Keefe Bruyette & Woods, Inc., where he specialized in sales and trading of equity securities in the bank and savings and loan sectors. Mr. Jigarjian was a founding member of Green & Jigarjian LLP. He joined Emerson Poynter in Prior to founding Green & Jigarjian, Mr. Jigarjian was employed at Girard & Green LLP. Mr. Jigarjian has substantial experience in the representation of individual and institutional investors in class action and derivative litigation. He represented one of the lead plaintiffs in the class action captioned In re Prison Realty Securities Litigation, Case No. 3: (M.D. Tenn.) which resulted in a settlement that created a fund for the class valued at approximately $105 million. He also represented one of the lead plaintiffs in the consolidated class and derivative action captioned In re Digex, Inc. Shareholders Litigation, C.A. No NC (Del. Ch.), which resulted in a settlement that created a fund for the class valued at approximately $180 million and provided for other non-cash benefits valued at approximately $450 million. Mr. Jigarjian currently represents the derivative plaintiffs in Saito, et al. v. McCall, et al., C.A. No NC (Del. Ch.). The Delaware Chancery Court recently approved a settlement in the Saito litigation that provided for payment by directors and officers liability insurers to McKesson Corporation of $30 million and certain corporate governance 13

20 Case 3:11-cv MMA-DHB Document 91-3 Filed 01/10/13 Page 15 of 15 improvements. Mr. Jigarjian also represents the lead class plaintiffs in In Re: Salomon Analyst XO Litigation, 02-CV-8114 (GEL) (S.D.N.Y.). Mr. Jigarjian is a member of the State Bar of California and is admitted to the United States District Courts for the Northern, Southern, Eastern and Central Districts of California and to the Ninth Circuit Court of Appeals. Mr. Jigarjian s address is jigarjianlaw@gmail.com. 14

21 Case 3:11-cv MMA-DHB Document 91-4 Filed 01/10/13 Page 1 of 4 EXHIBIT 2

22 Case 3:11-cv MMA-DHB Document 91-4 Filed 01/10/13 Page 2 of 4 Mr. Alan M. Mansfield has specialized in the area of national consumer class action and public interest litigation since 1991, focusing on telecommunications, health care and consumer privacy issues. He has been involved over the years in numerous significant matters, including the Joe Camel teen smoking case, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, and the DMV motor vehicle Smog Impact Fee refund case (Jordan v. Department of Motor Vehicles (1999) 75 Cal.App.4th 449). Mr. Mansfield was previously responsible for several years for the consumer law group in the San Diego office of the largest class action firm in the United States, now known as Robbins Geller Rudman & Dowd. His clients have included such public interest organizations as Consumer Watchdog, the Privacy Rights Clearinghouse and the California Medical Association. Mr. Mansfield was one of the lead counsel in Garrett v. City of Escondido, 465 F.Supp. 2d 1043 (S.D. Cal. 2006) in the U.S. District Court for the Southern District of California, which successfully challenged the legality of the City of Escondido s immigration landlord-tenant enforcement ordinance and which resulted in one of the first decisions addressing the constitutionality of local ordinances addressing immigration issues. Based on that and other work he and the previous firm he was the managing partner for (Rosner & Mansfield) performed in the community, he and his firm was awarded the 2007 Public Service by A Law Firm Award by the San Diego County Bar Association. Mr. Mansfield has been appointed as co-lead counsel and litigated a variety of class and private Attorney General actions to successful resolution in both state and federal courts. Highlights of recent successful actions where he was appointed as one of the lead class counsel include a class action against American Honda for misrepresenting gas mileage on Honda Civic Hybrids, resulting in a settlement valued at over $400 million (Lockabey v. American Honda, S.D. Sup. Ct. Case No. Case No CU-BT-CTL); a class action against Anthem Blue Cross for improperly closing certain health plans, resulting in a settlement requiring defendant to limit plan rate increases and requiring any plan changes to be without medical underwriting for several years (Feller v. Anthem Blue Cross, Ventura County Superior Court Case No CU-BT-VTA) a class action against Sprint Communications for charging customers telephone fees for data plan communication, resulting in a settlement that fully refunded the vast majority of such charges (Taylor v. Sprint Communications, Case No. C07-CV-2231-W (RJB)); a class action involving billing customers for previously promised airtime, resulting in a class action settlement that resulted in the ability of over 1 million customers to claim full reimbursement for the uncredited airtime (Nelson v. Virgin Mobile, Case No. 05-CV-1594-AJB); an action involving the unauthorized billing of consumers for overdraft fees on checking and debit account, resulting in the creation of a $35 million common fund and significant cy pres contributions to several non-profit organizations (Closson v. Bank of America, San Francisco Superior Court Case No. CGC ); a case challenging Sprint s failure to provide a cancellation window when it imposed certain additional fees against customers in July 2003, resulting in a class-wide settlement returning Early Termination Fees that had been charged consumers, as well as improving certain disclosure practices (UCAN v. Sprint Spectrum LP, San Diego Superior Court Case No. GIC ) and Maycumber v. PowerNet Global Telecommunications, Case No. 06-cv-1773-H (RBB) (S.D. Cal.), where the action challenged a practice of charging a Network Access Charge as a tax when it was not, and PowerNet agreed to recalculate and classify such fees and a class-wide resolution where current customers were able to obtain bill credits for a significant portion of such charges and former customers could obtain cash refunds or calling cards for such amounts, at the customers option. Mr. Mansfield also represented the public interest group UCAN in an action before the California Public Utilities Commission involving billing for Early Termination Fees, resulting in a refund of over

23 Case 3:11-cv MMA-DHB Document 91-4 Filed 01/10/13 Page 3 of 4 $18 million in fees to over 100,000 former Cingular Wireless customers (In Re Cingular Wireless, CPUC Case No. I ) as well as an action challenging AT&T California s practice of terminating 911-only service to California residents in violation of the Public Utilities Code, resulting in a multi-million dollar fine and an order requiring significant practice changes by AT&T (UCAN v. SBC California, CPUC Case NO. C ). He also successfully prevailed after a two week long class action arbitration in January 2009 on behalf of a class of senior citizens residing at a senior living community who were charged entrance fees in violation of California s landlord-tenant laws, obtaining significant relief for the benefit of the class members and contributions for Alzheimer s Disease research (VanPelt v. SRG). He recently assisted the ACLU in obtaining a significant First Amendment victory regarding the improper seizure by the U.S. Government of property belonging to members of the Mongols Motorcycle Club (Rivera v. Melson, No. 2:09-cv DOC (JCx)(C.D. Cal.), as well as recently obtained a significant decision from the Ninth Circuit interpreting the scope of the First Amendment as applied to California law (Beeman v. Anthem Prescription, 2011 U.S. App. LEXIS (9th Cir., July 19, 2011, en banc review granted). Mr. Mansfield has written extensively on a number of subjects, including being the primary author of the chapter and update on the scope of the Consumers Legal Remedies Act in Anti-Trust and Unfair Competition Law - Third, published by the California Bar Association, and is one of the authors of the current revision of that chapter for the Fourth Edition of that treatise. He also has been the author of several recently published articles, including "Class Action Waivers After the Supreme Court Decision in AT&T v. Concepcion, San Diego ABTL Report (Summer 2011) and the San Diego Defense Bar Journal (Summer 2011); "Kwikset Corp. v. Superior Court: Re-affirming the Vitality of Private Enforcement of the Unfair Competition Law", State Bar of California Competition Magazine (Spring 2011)(co-authored with Pamela M. Parker); and Supreme Court s Most Recent Prop. 64 Decision Provides Guidance On Standing, San Diego ABTL Report (Winter 2011). Other articles he has authored include Is Your Client Prepared to Comply With the Data Security Breach Notification Laws?, San Diego Association of Business Trial Lawyers Report (Spring 2007); Has The Class Certification Inquiry Changed Due To Proposition 64?, State Bar of California Anti-Trust and Unfair Competition Section (May 2005); Hartwell: Are Courtroom Doors Open To Litigation Involving Regulated Industries?, San Diego ABTL Report (August 2002); Litigation Issues Arising from the Use of Websites, Practicing Law Institute (April 2001); Kraus, Cortez and Future Battlegrounds In Representative Actions Under the Unfair Competition Law, Consumer Attorneys of California Forum (July/August 2000) (co-authored with Mark A. Chavez); Private Enforcement of California s Consumer Protection Unfair Business Practices Act, CAOC Annual Meeting (November 1997); Life After BMW v. Gore - Who Is Now The Trier of Fact?, PLI (Fall 1997). Mr. Mansfield is a regular speaker and panelist in continuing legal education programs relating to California s consumer protection statutes, including making presentations to the California Center for Judicial Education and Research (July 2001), the Privacy Foundation (October 2011, March 2009, February 2007 and October 2005) and the Naval College for JAG Officers (May 2004). He is also a panelist on litigating arbitration provisions after Concepcion in a national symposium for "Litigating Class Actions" (LSI May 2012), and was also a panelist in February 2008 for a Lexis-Nexis conference entitled Weathering Mass Tort and Class Action Settlements and Negotiations. He has also made several presentations to both the Enright Inn of Court and the Southern District Judicial Conference on state and federal data breach notification laws.

24 Case 3:11-cv MMA-DHB Document 91-4 Filed 01/10/13 Page 4 of 4 Mr. Mansfield is the past editor of the ABTL Report for the San Diego Chapter of the Association of Business Trial Lawyers and on its Board of Governors and Editorial Board, has previously served on the Board of Directors of the National Association for Consumer Advocates, and is a current member of the American Bar Association, the Anti-trust Section of the California Bar Association, the San Diego County Bar Association, the Federal Bar Association, the Consumer Attorneys of California and San Diego. He is currently a member of the William B. Enright Inn of Court and recently finished serving a term as a Lawyer Representative for the Southern District of California at the Ninth Circuit Judicial Conference. Mr. Mansfield received his B.S. degree, cum laude, in Business Administration - Finance from California Polytechnic State University, San Luis Obispo in 1983 and his Juris Doctorate degree from the University of Denver School of Law in He is admitted to the Bar of the State of California, to the United States District Courts for all Districts of California and to the Third, Fifth, Ninth and Tenth Circuit Courts of Appeal. April 2012

25 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 1 of 73 EXHIBIT 3

26 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 2 of 73 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO D/B/A ALTERED AIR, on Behalf of Himself and All Others Similarly Situated, Plaintiff, vs. KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10, Defendants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:11-CV MMA (DTBx) Hon. Michael M. Anello INDIRECT PURCHASER SETTLEMENT AGREEMENT This Indirect Purchaser Settlement Agreement ( Agreement ) is made and entered into this 4th day of September, 2012, by and among Kason Industries, Inc. and Peter A. Katz (collectively the Kason Defendants ), Component Hardware Group, Inc. and Thomas Carr (collectively the CHG Defendants ) (the Kason Defendants and CHG Defendants are sometimes collectively referred to as Defendants ) and Plaintiff John Rigo d/b/a Altered Air ( Plaintiff ), both individually and on behalf of all members of the Indirect Purchaser Class as Page 1 of 33

27 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 3 of 73 defined and described in paragraph B.7 below, by and through their respective attorneys. A. RECITALS. WHEREAS, on January 12, 2011, Plaintiff filed a complaint ( Complaint ) (Doc. 1) initiating an action against Defendants Kason Industries, Inc., Peter A. Katz, Component Hardware Group, Inc., and Thomas Carr, styled John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx) ( Indirect Purchaser Action or the Action ), in the United States District Court for the Southern District of California. WHEREAS, on January 24, 2011, Plaintiff filed a corrected Complaint (Doc. 3). WHEREAS, on March 7, 2011, the Defendants filed separate Motions to Dismiss the Action, which were granted in part and denied in part by the Court s Order of July 19, 2011 (Doc. 42). WHEREAS, following the Court s Order on the Defendants Motion to Dismiss the Action, the Parties have conducted formal and informal discovery, including numerous arms-length settlement discussions, and the exchange and analysis of a significant number of confidential, non-public documents. Page 2 of 33

28 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 4 of 73 WHEREAS, Plaintiff and Class Counsel believe that the claims asserted in the Complaint have merit, while the Defendants believe that their defenses have merit and in particular believe that Plaintiffs would be unable to prove injury or damages. However, the Parties have each looked at the uncertainties of trial and the benefits to be obtained under the proposed settlement and have considered the costs, risks, and delays associated with the continued prosecution of this complex and time-consuming litigation and likely appeals of any rulings in favor of Plaintiff or Defendants. Accordingly, it is now the intention of the Parties and the objective of this Agreement to avoid the costs of continued litigation and trial and to settle and dispose of, fully and completely and forever, any and all claims and causes of action in the Action. WHEREAS, 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. NOW, THEREFORE, in consideration of the covenants, agreements and releases set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by and among the undersigned that this Action be settled, compromised and dismissed on the merits with prejudice, without costs as to Plaintiff, the Indirect Purchaser Class, or Page 3 of 33

29 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 5 of 73 Defendants except as provided for herein, subject to the approval of the Court, on the following terms and conditions: B. DEFINITIONS. The following terms, as used in this Agreement, have the following meanings: 1. Action or Indirect Purchaser Action means John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx). 2. Administrator means any person or entity agreed to by the parties and appointed by the Court to perform the tasks necessary to provide notice and to otherwise administer and handle the claims of Indirect Purchaser Class Members under this Agreement in accordance with the terms set forth herein. 3. Defendant Releasees means, jointly and severally, individually and collectively, Kason Industries, Inc., Component Hardware Group, Inc., Peter Katz, and Thomas Carr and each of their respective past, present and future officers, directors, employees, agents, stockholders, attorneys, trustees, servants, representatives, direct and indirect parents and owners, subsidiaries, affiliates, heirs, principals, estates, executors, administrators, assigns and their respective past, present and future officers, directors, employees, agents, stockholders, Page 4 of 33

30 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 6 of 73 attorneys, trustees, servants, representatives, parents, subsidiaries, affiliates, heirs, principals, estates, executors, administrators and assigns. 4. Court means the United States District Court for the Southern District of California. 5. Effective Date and/or Effective Date of Settlement means the latest of the following dates: (a) if no appeal from the Final Order and Judgment (as such term is defined in paragraph D.3 hereof) is filed, the date of the expiration of the time for the filing or noticing of any appeal from the Final Order and Judgment; or (b) if an appeal from the Final Order and Judgment is filed and not voluntarily withdrawn, and the Court of Appeals affirms the Final Order and Judgment or dismisses the appeal, and (i) if a petition for writ of certiorari review is filed and denied, the date such petition is denied, or (ii) if no writ of certiorari review is filed and denied, the date of expiration of the time for the filing of such petition passes; or (c) if a petition for a writ of certiorari is filed and granted, the date of the final affirmance of the Final Order and Judgment or final dismissal of the review proceeding initiated by the petition for writ of certiorari. The Parties agree that neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C shall be taken into account in determining the above-stated times. Page 5 of 33

31 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 7 of Final Order and Judgment shall mean any final order and judgment entered by the Court approving the fairness and adequacy of this Settlement Agreement pursuant to the procedure set forth in Section D Indirect Purchaser Class or Settlement Class means all persons or entities, including but not limited to individuals, companies, corporations, partnerships, joint ventures, agents, principals, and employees who purchased Food Service Equipment Component Hardware or Food Service Equipment that incorporated Food Service Equipment Component Hardware anywhere in the United States from a person or entity other than the Defendants from February 1, 2004, through February 11, Excluded from the Indirect Purchaser Class are the Defendants, the Trial judge and his or her spouse, parents, siblings or children, and any person deemed by the Court to have properly requested to be excluded from the Settlement. 8. Indirect Purchaser Class Member or Class Member means each and every member of the Indirect Purchaser Class. 9. Class Counsel means the CONSUMER LAW GROUP OF CALIFORNIA, Willow Creek Road, Suite 160, San Diego, CA 92131, and EMERSON POYNTER LLP, 500 President Clinton Avenue, Suite 305, Little Rock, AR Page 6 of 33

32 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 8 of Opt Out means any Indirect Purchaser Class Member that timely and validly exercises its right to opt out of the Indirect Purchaser Class for purposes of this Agreement pursuant to the procedures specified in the Settlement Notice and ordered by the Court. 11. Parties means Plaintiff both individually and on behalf of the Indirect Purchaser Class, and Defendants. 12. Preliminary Approval Order means an order entered by the Court in a form substantially similar to the Preliminary Approval Order attached hereto as Exhibit A. 13. Food Service Equipment Component Hardware means any type of food service equipment component hardware products as defined by paragraph 11 of Plaintiff s Corrected Complaint filed on January 24, 2011 (Doc. 3), sold by Defendants, or any alleged co-conspirator from February 1, 2004, through February 11, Food Service Equipment means any type of equipment used in the food service industry (e.g., and not by way of limitation, refrigerators, stoves, ovens, etc.) that contain Food Service Equipment Component Hardware as an incorporated component. 15. Releasors means Plaintiff, the Indirect Purchaser Class Members and their respective past, present and future officers, directors, employees, agents, Page 7 of 33

33 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 9 of 73 stockholders, attorneys, trustees, servants, representatives, parents, subsidiaries, affiliates, heirs, principals, estates, executors, administrators, assigns and their respective past, present and future officers, directors, employees, agents, stockholders, attorneys, trustees, servants, representatives, parents, subsidiaries, affiliates, heirs, principals, estates, executors, administrators and assigns of each of the foregoing. 16. Settlement Amount means an aggregate of Seven Hundred and Twenty Thousand and No/100 Dollars ($720,000) to be paid into the Settlement Fund pursuant to the terms of this Agreement. Three Hundred Twenty Thousand and No/100 Dollars ($320,000) of such Settlement Amount shall be paid by the CHG Defendants and Four Hundred Thousand and No/100 ($400,000) of such Settlement Amount shall be paid by the Kason Defendants. 17. Settlement Fund means the Settlement Amount plus any interest that may accrue thereon. 18. Settlement Notice means the notice of the settlement, substantially in the form attached hereto as Exhibit B, to be distributed to Indirect Purchaser Class Members pursuant to the Preliminary Approval Order. 19. Summary Notice means the summary form of notice, substantially in the form attached hereto as Exhibit C, to be published and distributed pursuant to the Preliminary Approval Order. Page 8 of 33

34 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 10 of 73 C. CLASS CERTIFICATION. 1. The Parties stipulate, for the purposes of Settlement only, to the certification of the Indirect Purchaser Class pursuant to Rule 23(b)(2) and (3) of the Federal Rules of the Civil Procedure. 2. Any class certification order entered in this Action sought pursuant to this Agreement shall not constitute, in this Action or any other action or proceeding, an admission by Defendants, or finding or evidence, that Plaintiff s claims, or those of any alleged Settlement Class Member who purchased Food Service Component Hardware, are appropriate for class treatment for purposes other than settlement or that any requirement for class certification for purposes other than settlement is otherwise satisfied. D. APPROVAL OF AGREEMENT AND DISMISSAL OF CLAIMS. 1. Preliminary Approval. Plaintiff and Defendants shall use their best efforts to effectuate this Agreement. The Plaintiff shall file an unopposed motion to the Court for preliminary approval of the settlement and certification for settlement purposes only of the Indirect Purchaser Class sought pursuant to Section C above. The Parties will further present to the Court the proposed Preliminary Approval Order attached as Ex. A hereto, which will provide for, by, or in Page 9 of 33

35 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 11 of 73 connection with this Agreement, inter alia: (a) preliminary approval of the settlement; (b) appointment of Class Counsel; (b) Certification of an Indirect Purchaser Class for settlement purposes only; (d) dissemination of the Settlement Notice and Summary Notice; (e) a stay of all proceedings in the Action against Defendants; (f) a preliminary injunction against Plaintiffs and Indirect Purchaser Class Members for commencing or proceeding with any action that includes allegations or claims within the scope of the Release as described in Section E below prior to the Effective Date; (g) specifying the terms for objections; and (h) setting a date for a fairness hearing to determine whether to finally approve the settlement. Within ten (10) days of the filing of the Motion for Preliminary Approval, the Administrator shall, on behalf of all Parties to this Agreement, notify federal and state officials as specified in 28 U.S.C. 1715(a) & (b). The Parties agree to cooperate to attempt to provide reasonable estimates of the numbers of Indirect Purchaser Class Members residing in each State, to the extent feasible, pursuant to 28 U.S.C. 1715(b)(7)(A) and (B). The Parties will also provide the Court the proposed Final Order and Judgment. Page 10 of 33

36 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 12 of Notice of Settlement a. No later than twenty (20) days after entry of the Preliminary Approval Order, subject to the Court s approval and direction, the Parties shall provide notice to Indirect Purchaser Class Members in the following manner: i. Written notice substantially in the form of the Settlement Notice shall be served via electronic mail or via United States mail, first class, postage prepaid, to be mailed out within twenty (20) days after the entry of the Preliminary Approval Order to those Indirect Purchaser Class Members who the Parties are able to identify through reasonable efforts and for whom mailing addresses may be found. ii. A website operated by the Administrator will: (i) enable Indirect Purchaser Class Members to access, download and submit the Settlement Notice; (ii) provide a list of dates and deadlines in the settlement process; (iii) permit Indirect Purchaser Class Members to submit a claim online; and (iv) provide relevant updates and information with respect to the settlement and claims process, including a link to the Full Settlement Notice, substantially in the form of Exhibit B to this Agreement. iii. A dedicated, toll-free telephone number that persons can call to hear information regarding the settlement including the status of the Claims Page 11 of 33

37 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 13 of 73 Submission Period and the Full Settlement Notice, substantially in the form of Exhibit B to this Agreement. iv. A summary form of the Notice (the Summary Notice ), in a form substantially similar to that attached as Exhibit C to this Agreement, as a national press release via PR Newswire (or similar entity), and in the following trade publications: A. Nation s Restaurant News B. Restaurant Hospitality C. Food Service Director D. Food Management E. Food Service Equipment & Supplies F. Food Service Equipment Reports v. The Parties agree that the methods of notice set forth in this Section constitute the best form of notice to the Settlement Class that is practicable under the circumstances. vi. All costs associated with disseminating, publishing and posting the Settlement Notice and all associated expenses of the claims administrator shall be paid out of the Settlement Fund. b. Should the Court enter a Preliminary Approval Order that requires a notice program that, together with other related expenses, is likely to result in the Page 12 of 33

38 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 14 of 73 expenditure from the Settlement Fund prior to Final Approval of an amount exceeding Seventy Five Thousand and No/100 Dollars, the Kason Defendants and CHG Defendants shall have the right to terminate this Agreement without further obligation. If the Kason Defendants and/or CHG Defendants elect such an option, they must so elect in writing within seven (7) days of the Court s Preliminary Approval Order, and shall only do so after conferring in good faith with counsel for the other parties to determine if an agreement as to Notice costs can be reached to resolve the parties concerns. If any Defendant terminates within such seven (7) day period, the other Defendant(s) may do so as well by written notice given within seven (7) days thereafter. c. Class Counsel, either directly, or in its discretion, through the Administrator, shall be responsible for responding to all inquiries from Indirect Purchaser Class Members as appropriate. The Parties shall review and have an opportunity to object to any voice prompt recordings or scripts prior to their use in this settlement in accordance with a schedule set forth in the Preliminary Approval Order. Should the parties not be able to immediately resolve their differences, the parties agree to submit the dispute to the Court for resolution. Page 13 of 33

39 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 15 of Final Order And Judgment. a. Upon obtaining preliminary approval of this Agreement from the Court in accordance with Section D.1 above, the Parties shall seek the prompt scheduling of a fairness hearing. Plaintiff shall propose that the court enter a Final Order and Judgment ( Proposed Final Order ) in a form reasonably acceptable to the Defendants. The text of the Proposed Final Order will include, without limitation, the following: i. approve finally this Agreement and its terms as being a fair, reasonable and adequate settlement of this Action within the meaning of Rule 23 of the Federal Rules of Civil Procedure and direct its consummation according to its terms; ii. direct that the Action be dismissed with prejudice and without costs; iii. reserve exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement; iv. determine under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and direct that the judgment of dismissal shall be final and entered forthwith; and Page 14 of 33

40 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 16 of 73 v. approve a record of Opt Outs, which Class Counsel shall have provided a copy of to counsel for Defendants in advance of the fairness hearing. 4. This Agreement shall become final only upon the Effective Date. This Agreement shall, if either Defendants or the Plaintiff elects, be null and void and shall have no further force and effect in the event that: (a) preliminary and final approval of the Agreement is not obtained, or such approval is reversed on appeal; (b) entry of the Final Order and Judgment is reversed; or (c) the Final Order and Judgment is substantially modified by the Court, or on appeal, and Defendants or Plaintiff do not agree with its modification. In the event the agreement is nullified as provided herein, the Settlement Fund shall be returned forthwith to Defendants, less all costs for notice and administration of the settlement reasonably incurred up to the date the Agreement becomes null and void. 5. Reservation of Rights. Defendants and Plaintiff expressly reserve all of their rights if the Agreement does not become effective. In the event the Agreement does not become effective, Defendants and Plaintiff further agree that this Agreement, and any discussions or negotiations associated with it, shall not be discoverable or offered into evidence or used in this Action or any other action for any purpose, including, but not limited to, the existence, certification or Page 15 of 33

41 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 17 of 73 maintenance of any purported class or in connection with a trial or appeal of this matter or any other matter. In such event, this Agreement and all negotiations, proceedings, documents prepared and statements made in connection with this Agreement and filings to be made in conjunction herewith shall be without prejudice to the Parties and shall not be admissible into evidence, and shall not be deemed or construed to be an admission or confession by any of the Parties of any fact, matter, or proposition of law, and shall neither be discoverable nor used in any manner for any purpose, and all Parties to the Action shall stand in the same position as if this Agreement had not been negotiated, made or filed with the Court. E. RELEASE AND DISCHARGE. 1. As of the Effective Date, the Plaintiff and other Settlement Class Members who have not excluded themselves from the Settlement Class, by operation of entry of the Final Judgment and Order of Dismissal, release and forever discharge the Defendant Releasees from all Released Claims. For purposes of this Agreement, "Released Claims" shall mean any and all claims, actions, causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets or liabilities, including but not limited to tort claims, claims for breach of contract, breach of the duty of good faith and fair dealing, breach of statutory duties, actual Page 16 of 33

42 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 18 of 73 or constructive fraud, misrepresentations, fraudulent inducement, statutory and consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade practices, restitution, rescission, compensatory and punitive damages, injunctive or declaratory relief, attorneys fees, interests, costs, penalties and any other claims, whether or not alleged in the Action, whether known or unknown, suspected or unsuspected, contingent or matured, under federal, state or local law, which the Plaintiff and/or any Settlement Class Member had, now have or may in the future have with respect to any conduct, acts, omissions, facts, matters, or transactions asserted or relating to or arising out of the conduct, acts, omissions, facts, matters, or transactions asserted in the Action by the Plaintiff and/or the Settlement Class Members including, without limitation, causes of action for violations of federal or state antitrust laws or Cal. Bus. & Prof. Code 17200, et seq., Cal Bus. & Prof. Code 17000, et seq., and similar claims under the statutes and common law of other states as well as claims for unjust enrichment. a. Without in any way limiting the scope of the Release, this Release covers, without limitation, any and all claims for attorneys fees, costs or disbursements incurred by Class Counsel or any other counsel representing the Plaintiff or Settlement Class Members, or any of them, in connection with or related in any manner to the Action, the settlement of the Action, the Page 17 of 33

43 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 19 of 73 administration of such settlement and/or the Released Claims as well as any and all claims for incentive awards to Plaintiff. b. The Defendant Releasees, on behalf of themselves and their respective successors, assigns, past, present, and future parents, subsidiaries, joint venturers, partnerships, related companies, affiliates, unincorporated entities, divisions, groups, directors, officers, shareholders, employees, agents, attorneys, representatives, servants, partners, executors, administrators, assigns, predecessors, successors, descendants, dependents, and heirs, by operation of the Final Order and Judgment are deemed to have fully released and forever discharged Plaintiff, Settlement Class Members and Class Counsel from any claims arising out of the investigation, filing, prosecution or resolution of the Action. 2. THE PLAINTIFF, THE SETTLEMENT CLASS MEMBERS AND THE DEFENDANT RELEASEES EXPRESSLY ACKNOWLEDGE THAT THEY ARE FAMILIAR WITH PRINCIPLES OF LAW SUCH AS SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MIGHT HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Page 18 of 33

44 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 20 of 73 TO THE EXTENT THAT CALIFORNIA OR OTHER LAW MAY BE APPLICABLE TO THIS AGREEMENT, THE PARTIES HEREBY EXPRESSLY AGREE THAT THE PROVISIONS, RIGHTS AND BENEFITS OF SECTION 1542 AND ALL SIMILAR FEDERAL OR STATE LAWS, RIGHTS, RULES OR LEGAL PRINCIPLES OF ANY OTHER JURISDICTION THAT MAY BE APPLICABLE HEREIN ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVED AND RELINQUISHED TO THE FULLEST EXTENT PERMITTED BY LAW SOLELY IN CONNECTION WITH UNKNOWN CLAIMS ARISING FROM OR RELATING TO THE FACTS AND CIRCUMSTANCES ALLEGED IN THE COMPLAINT, AND THE PARTIES HEREBY AGREE AND ACKNOWLEDGE THAT THIS IS AN ESSENTIAL TERM OF THE RELEASE. IN CONNECTION WITH THE RELEASE, THE PARTIES ACKNOWLEDGE THAT THEY ARE AWARE THAT THEY MAY HEREAFTER DISCOVER CLAIMS PRESENTLY UNKNOWN AND UNSUSPECTED OR FACTS IN ADDITION TO OR DIFFERENT FROM THOSE WHICH THEY NOW KNOW OR BELIEVE TO BE TRUE WITH RESPECT TO MATTERS RELEASED HEREIN. F. SETTLEMENT CONSIDERATION. 1. Defendants shall provide the following consideration in connection with the Settlement: Page 19 of 33

45 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 21 of 73 a. Settlement Fund. Subject to approval by the Court, the CHG Defendants and the Kason Defendants or their designees shall each pay fifty percent (50%) of their respective share of the Settlement Amount into the Settlement Fund by wire transfer within fourteen (14) days after the Court s entry of the Preliminary Approval Order. The remaining fifty percent (50%) of the respective shares Settlement Amount shall be paid into the Settlement Fund by such Defendants within ten (10) days following the Effective Date of this Agreement. The Settlement Fund shall be established at a financial institution designated by Class Counsel, subject to the reasonable approval of Defendants, and administered by the Administrator in accordance with the provisions of this Agreement. In the event that the Court does not grant final approval of this settlement, then any amounts in the Settlement Fund shall be returned to the Defendants, proportionally to their respective payments, within ten (10) days, except as provided for in Section H.1 of this Agreement (Settlement Fund Disbursements). b. Injunctive Relief. Defendants and all persons acting on their behalf consent to the entry of an injunction in the general form of Exhibit E hereto. G. SETTLEMENT FUND. 1. The Defendant Releasees shall have no liability or responsibility for disbursements from, or administration of, the Settlement Fund. The Defendant Page 20 of 33

46 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 22 of 73 Releasees shall not be liable for any costs or attorneys fees of Plaintiff or the Indirect Purchaser Class Members, including but not limited to costs or expenses of Plaintiff s counsel, experts, consultants, agents or representatives, except as provided for herein. Such costs and attorneys fees as approved by the Court shall be paid out of the Settlement Fund. Defendant Releasees further shall not be liable for any of the expenses of notice to the Indirect Purchaser Class or administration of the Settlement Fund, except that all such expenses properly and reasonably incurred shall be paid out of the Settlement Fund as set forth herein. 2. Class Counsel shall seek approval from the Court for payment of not more than thirty percent (30%) of the Settlement Fund for attorneys fees, plus litigation costs and expenses, and an additional amount to Plaintiff not exceeding $2,500. Defendants agree that such sums are reasonable, and will not oppose the Court s awarding of such sums. The award by the Court of any particular amount of attorneys fees, costs and expenses or payments to Plaintiff shall not affect the binding nature of the Settlement and this Agreement by the Parties. 3. Subject to Court approval, Plaintiff and Class Counsel shall be reimbursed and paid solely out of the Settlement Fund for all reasonable expenses including, but not limited to, attorneys fees and past, current, or future litigation expenses. Attorneys fees and expenses awarded by the Court shall be payable from the Settlement Fund within 10 days after the Final Order and Judgment, Page 21 of 33

47 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 23 of 73 notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom any collateral attack on the settlement or any part thereof, subject to Class Counsel s joint and several obligation to make appropriate refunds or repayments to the Settlement Fund, if and when, as a result of any appeal and/or further proceedings on remand, or successful collateral attack, the fee or cost award is reduced or reversed. Defendants shall not be liable for any costs, fees, or expenses of any of Plaintiff s respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court may be paid out of the Settlement Fund. In the event that attorneys fees or costs are paid out of the Settlement Fund, and the Effective Date does not take place Class Counsel shall reimburse all withdrawn attorneys fees and costs, except for the reasonable costs of notice and administration, to the Settlement Fund prior to the return of the Settlement Fund to Defendants. 4. Any escrow fees or charges shall be deducted from the Settlement Fund. Defendants will not be responsible for any escrow fees or charges incurred beyond its payment of the Settlement Amount. All interest earned on the Settlement Fund shall become and remain part of the Settlement Fund. In the event that the Effective Date does not take place or in the event that the Agreement is rescinded, the Settlement Fund, including any and all interest that has accrued, shall be immediately returned, in its entirety, to Defendants proportionally to the Page 22 of 33

48 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 24 of 73 Defendants respective payments, except as provided for in Section H.1 of this Agreement (Settlement Fund Disbursements). H. SETTLEMENT FUND DISBURSEMENTS. 1. Disbursement for all reasonable costs and expenses associated with providing notice of the settlement to the proposed Indirect Purchaser Class, all reasonable expenses and costs associated with administering the settlement, including claims administration, work with financial institutions and experts, and consulting and advisory fees, Court-approved Notice, and any payments, costs and expenses incurred in connection with taxation matters relating to the settlement and this Agreement, shall be paid from the Settlement Fund following preliminary approval and up to the Effective Date of Settlement without the prior approval of the Court. In the event the Agreement is disapproved, rescinded, or otherwise fails to become effective, all such amounts incurred as of the date of such occurrence shall not be refundable to Defendants. 2. Except as provided for herein, Defendants shall have no responsibility, financial obligation or liability whatsoever with respect to: (a) the investment, distribution or administration of the Settlement Fund, including but not limited to, the costs and expenses of such distribution and administration; (b) any fees, costs or expenses of any of Plaintiff s attorneys, experts, advisors, agents, or representatives, with all such fees, costs and expenses as approved by the Court to Page 23 of 33

49 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 25 of 73 be paid out of the Settlement Fund; or (c) the giving of notice of this settlement to Indirect Purchaser Class Members, including, but not limited to, the expense and costs of such notice. 3. The Parties to this Agreement and their counsel shall treat, and shall cause the Claims Administrator to treat, the Settlement Fund as being at all times a qualified settlement fund within the meaning of Treas. Reg B 1. The Parties, their counsel, the Claims Administrator, and the Escrow Agent agree that they will not ask the Court to take any action inconsistent with the treatment of the Settlement Fund in such manner. In addition, the Claims Administrator and, as required, the Parties shall timely make such elections as necessary or advisable to carry out the provisions of this paragraph, including the relation-back election (as defined in Treas. Reg B l(j)) back to the earliest permitted date. Such elections shall be made in compliance with the procedures and requirements contained in such regulations. It shall be the responsibility of the Claims Administrator timely and properly to prepare and deliver the necessary documentation for signature by all necessary parties and thereafter to cause the appropriate filing to occur. All provisions of this Agreement shall be interpreted in a manner that is consistent with the Settlement Fund being a qualified settlement fund within the meaning of Treas. Reg B 1. Page 24 of 33

50 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 26 of 73 I. SETTLEMENT FUND ELIGIBILITY. 1. After accounting for the costs of Attorneys fees, Costs and Expenses, incentive payments, Claims Administration and Notice Costs, the distribution of the remainder of the Settlement Fund will proceed a within ninety (90) days after the Effective Date of the Settlement. The Settlement Fund shall be distributed in accordance with the Plan of Allocation attached as Exhibit D to this Agreement. 2. If there are any funds remaining in the Settlement Fund after the distributions completed in paragraph I.1 above, all such remaining funds shall be distributed through cy pres distribution. All funds resulting from returned or uncashed checks shall remain in the Settlement Fund for one year, at which time the funds will be distributed through cy pres distribution. In the event that all funds in the Settlement Fund are paid to Indirect Purchaser Class Members, Defendants will have no obligation to make a cy pres distribution under this Paragraph or as part of the Settlement. The cy pres distribution shall be made as follows: a. The Settling Parties agree that the funds remaining in the Settlement Fund shall be distributed to no more than two organizations, one selected by Plaintiff and one selected by Defendants. The Court will be requested to approve these recipients as part of the Final Approval Order. The purpose of such cy pres payments shall be directed to be consistent with or related to the underlying allegations in the Lawsuit. Page 25 of 33

51 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 27 of 73 b. If more than one organization is designated by the Parties, each designated nonprofit organization shall receive an equal share of the cy pres distribution. c. The cy pres distribution shall be paid as soon as is practicable following the final distribution of funds to the Indirect Purchaser Class Members. J. TAXES. 1. The Administrator shall be solely responsible for filing all information and other tax returns necessary to report any net taxable income earned by the Settlement Fund and shall file all informational and other tax returns necessary to report any income earned by the Settlement Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally required, any tax payments, including interest and penalties due on income earned by the Settlement Fund. All taxes (including interest and penalties) due with respect to the income earned by the Settlement Fund shall be paid from the Settlement Fund. Defendants shall have no responsibility to make any filings relating to the Settlement Fund or pay any taxes on the Settlement Fund, unless the settlement is not consummated and the Settlement is returned to Defendants. In the event the settlement is not consummated and the Settlement Fund is returned to Defendants, Defendants shall be responsible for the payment of any taxes (including interest or penalties) on said income, and the Administrator shall be obliged to apply for a Page 26 of 33

52 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 28 of 73 refund of any taxes previously paid and, upon receipt of such refund, forward said refund to Defendants. K. OBJECTIONS AND EXCLUSIONS. 1. Any Class Member who does not request exclusion or opt out of the Indirect Purchaser 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 Southern District of California, twenty-one (21) days prior to the date set in the Notice of Final Fairness Hearing, and also served on Class Counsel and Defendants Counsel so that it is received by that date. The written statement of objection must set forth: a. The title of the Action; b. The objector s full name, address, telephone number; c. An explanation of the basis upon which the objector claims to be a 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; e. The identity of all counsel representing the objector, if any; Page 27 of 33

53 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 29 of 73 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). 2. Any Settlement Class Member may request to be excluded from the Settlement by timely submitting to the Administrator a written statement of exclusion. To be timely, a written statement of exclusion must be sent to the Administrator with a postmark no later than twenty-one (21) days prior to the date set in the Notice of Final Fairness Hearing. The written statement of exclusion must set forth: a. The title of the Action; b. The person's full name, address, telephone number; c. An explanation of the basis upon which the person claims to be a Settlement Class Member; Page 28 of 33

54 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 30 of 73 d. A statement confirming the person is requesting exclusion from the settlement; e. The person's signature or the signature of the person s duly authorized attorney or other duly authorized representative (along with documentation setting forth such representations). L. MISCELLANEOUS. 1. Gender and Plurals. As used in this 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. 2. Cooperation by the Parties. The 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 Agreement and to dismiss the Action with prejudice, including taking all necessary steps in appropriate sequence to effect final approval of the Settlement. The Parties shall jointly take any steps as may be necessary or as may be request by the Court, and otherwise use their best efforts to effectuate the Settlement provided for in this Agreement. 3. Obligation to Meet and Confer. Before filing any motion in the Court raising a dispute arising out of or related to this Agreement, the Parties shall consult with each other and certify to the Court in writing that they have so consulted. Page 29 of 33

55 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 31 of Entire Agreement. This Agreement and its Exhibits, which are incorporated into and considered part of this Agreement, constitute 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 Agreement. This Agreement supersedes all prior negotiations and agreements and may not be modified or amended expect by a writing signed by the Settling Parties. The Exhibits to this Agreement are: A. EXHIBIT A PRELIMINARY APPROVAL ORDER B. EXHIBIT B SETTLEMENT NOTICE C. EXHIBIT C SUMMARY NOTICE D. EXHIBIT D PLAN OF ALLOCATION E. EXHIBIT E FORM OF INJUNCTION F. EXHIBIT F PRESS RELEASE 5. No Conflict Intended. Any inconsistency between the headings used in this Agreement and the text of the paragraphs of this Agreement shall be Page 30 of 33

56 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 32 of 73 resolved in favor of the text. Any inconsistency between this Agreement and the Exhibits shall be resolved in favor of the text in the Exhibits. 6. Binding Effect. The Settlement shall be binding upon, and shall inure to the benefit of the Plaintiff, the Settlement Class Members, the Defendant Releasees, and the respective heirs, administrators, successors and assigns of each of them. Except as provided in the foregoing sentence, nothing in this Agreement is intended to create any legally enforceable rights in any other person or to make any other person, including, but without limitation, any agreed upon recipient of cy pres funds, a beneficiary of this Settlement. 7. Governing Law. This Agreement shall be construed, enforced, and administered in accordance with the laws of the State of California, without reference to its conflict of law principles. 8. Jurisdiction. The Court shall retain jurisdiction with respect to the implementation and enforcement of the terms of the Settlement, and Plaintiff, Defendants, and all Settlement Class Members consent to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement. 9. Counterparts. This 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 Page 31 of 33

57 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 33 of 73 same counterparts. Original signatures are not required. Any signature submitted by facsimile or through of an Adobe PDF shall be deemed an original. 10. Modification and Amendment. This Agreement may be amended or modified only by a written instrument signed by the parties or their respective counsel. 11. Authority. Plaintiff and Defendants represent and warrant that the persons signing this Agreement on their behalf have full power and authority to bind every person, partnership, corporation or entity included within the definitions of Plaintiff and Defendants to all terms of this Agreement. Any person executing this Agreement in a representative capacity represents and warrants that he or she is fully authorized to do so and to bind the party on whose behalf he or she signs this Agreement to all of the terms and provisions of this Agreement. 12. Notice. Where this Agreement requires any party to provide notice or any other communication or document to any other party, such notice, communication, or document shall be provided by letter transmitted by facsimile or overnight delivery or through of an Adobe PDF to Counsel reflected on the signature pages. Page 32 of 33

58 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 34 of 73 IN WITNESS WHEREOF, the Plaintiff and Defendants have executed or caused the Settlement Agreement to be executed, by themselves or their duly authorized representatives or attorneys. John Rigo d/b/a Altered Air Kason Industries, Inc., By: EMERSON POYTNER LLP By: CONSUMER LAW GROUP OF CALIFORNIA By: By: Peter A. Katz By: Component Hardware Group, Inc. By: Thomas Carr By: Page 33 of 33

59 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 35 of 73

60 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 36 of 73 IN \ryitness WHEREOF, the Plaintiff and Defendants have executed or caused the Settlement Agreement to be executed, by themselves or their duly authonzed representatives or attorneys. John Rigo dlb/aaltered Air Kason Industries, Inc., By: EMERSON POYTNER LLP By: CONSUMER LAW GROUP CALIFORNIA Peter A.Katz By: OF I Component Hardware Group, Inc. By: gler\" By: '*!t' Thomas Carr By:,.,. Page 33 of33

61 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 37 of 73

62 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 38 of 73

63 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 39 of 73 a1llsl2st2 22t r0tlllrr2lra PMI t l:oa.tjt rd-rrr-lgla PA6E Az/s a ta tn WIrlilESlI WHERBOF, thc Plrhtitr rnd hdrur hryo ercgrsed or oilsod lhc Scillonmt Agrccncut b bc ef,eetnd, by thenrelrrea or tbsh drly alhodzed rcgcmhdtno or domsy!. Rlgodft/aAltotedAir syk-{ B!t:_ PoEA" TlE colrgumn rnw eoup of Coryoat Estlwuc Oturp, frc. CALTFORNIA By: I Prgc33 of33

64 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 40 of 73 a1llsl2st2 22t r0tlllrr2lra PMI t l:oa.tjt rd-rrr-lgla PA6E Az/s a ta tn WIrlilESlI WHERBOF, thc Plrhtitr rnd hdrur hryo ercgrsed or oilsod lhc Scillonmt Agrccncut b bc ef,eetnd, by thenrelrrea or tbsh drly alhodzed rcgcmhdtno or domsy!. Rlgodft/aAltotedAir syk-{ B!t:_ PoEA" TlE colrgumn rnw eoup of Coryoat Estlwuc Oturp, frc. CALTFORNIA By: I Prgc33 of33

65 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 41 of 73 EXHIBIT A SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

66 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 42 of JOHN RIGO D/B/A as ALTERED AIR, on Behalf of Himself and All Others Similarly Situated, v. Plaintiff, KASON INDUSTRIES, INC.; PETER A. KATZ; COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Defendants. CASE NO. 3:11-CV MMA (DTBx) CLASS ACTION ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND DIRECTING DISSEMINATION OF CLASS NOTICE PROGRAM Courtroom: Hon. Michael M. Anello Complaint Filed: January 12, 2011 THIS MATTER having been brought before the Court by Plaintiff JOHN RIGO dba ALTERED AIR, through Emerson Poynter LLP and The Consumer Law Group of California ( CLGCA ) (together, Plaintiffs Counsel ), and unopposed by Defendants KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC. and THOMAS CARR (together Defendants ), through their attorneys, Sandler Lasry Laube Byer & Valdez, LLP, Sutherland Asbill & Brennan, LLP, Kirkland & Ellis, LLP and Baker & McKenzie, LLP, -1- ORDER GRANTING MTN FOR PRELIMINARY APPROVAL OF CASE NO.: 3:11-CV MMA (DTBx) CLASS ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

67 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 43 of pursuant to Fed. R. Civ. P. 23(e), for an Order granting preliminary approval of a class action settlement, and directing the dissemination of class notice (the Motion ); and the Court having reviewed the submissions of the parties, having held a hearing on, 2012, and having found that the parties are entitled to the relief they seek, and for good cause shown; IT IS ORDERED that the Motion is GRANTED, and it is further ORDERED as follows: 1. The proposed Class Settlement Agreement and Release dated August, 2012 (the Settlement Agreement ), submitted with the Motion, is preliminarily approved. 1 The Court finds that the terms of Settlement Agreement fall within the range of possible approval sufficient to warrant sending notice thereof to the Settlement Class. Federal Judicial Center, Manual for Complex Litigation ( MCL 4 th ) (4 th ed. 2004). This finding that the settlement is reasonable is subject to a final determination to be made after a Fairness Hearing, as set forth below. 2. Conditional Class Certification For Settlement Purposes: Based upon the submissions of the Parties, for purposes of the settlement only, the Court finds with respect to the Settlement Class that: (a) the Settlement Class Members are so numerous as to make joinder of them impracticable; (b) there are questions of law and fact common to the Settlement Class, and such questions predominate over any questions affecting only individual Settlement Class Members; (c) the Class Representative s claims and the defenses asserted thereto are typical of the claims of Settlement Class Members and the defenses asserted thereto; (d) the Class Representative and Settlement Class Counsel have fairly and adequately protected the interests of Settlement Class Members throughout this action; and (e) a class action is superior to all other available methods for fairly and efficiently resolving this action, considering: (i) the interests of the Settlement Class Members in 1 Except as otherwise specified herein, all defined terms set forth in this Order shall have the same meaning as that set forth in the Settlement Agreement. -2- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

68 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 44 of individually controlling the prosecution of separate actions; (ii) the extent and nature of the litigation concerning the controversy already commenced by Settlement Class Members; (iii) the desirability and undesirability of concentrating the litigation of these claims in a particular forum; and (iv) the difficulties likely to be encountered in the management of a class action. Based on such findings, the Court preliminarily approves Plaintiff as representative of the Settlement Class and conditionally certifies a Settlement Class pursuant to Fed. R. Civ. P. 23(a) and (b)(3) comprised of all persons or entities (except those provided under the Settlement Agreement), including, but not limited to, individuals, companies, corporations, partnerships, joint ventures, agents, principals, and employees, who purchased Food Service Equipment Component Hardware or Food Service Equipment that incorporated Food Service Equipment Component Hardware anywhere in the United States from a person or entity other than the Defendants from February 1, 2004, through February 11, Emerson Poynter LLP and CLGCA are appointed as Settlement Class Counsel. 4. A hearing (the Fairness Hearing ) shall be held before this Court on, 2012 at.m., to determine whether (a) this action finally meets each of the prerequisites for class certification set forth in Fed. R. Civ. P. 23(a), and may properly be maintained as a class action on behalf of the Settlement Class under Fed. R. Civ. P. 23(b)(3); (b) the Settlement Agreement should receive final approval as fair, reasonable, adequate, and in the best interests of the Settlement Class; (c) orders should be entered granting final approval of the Settlement Agreement, entering final judgment and dismissing the First Amended Complaint (Dkt. No. 26) in the above-captioned action with prejudice ( Final Settlement Order and Judgment ), consistent with the terms provided for in the Settlement Agreement; and (d) the application of Settlement Class Counsel for the payment of attorneys fees and expenses, and payment to the Class Representative, -3- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

69 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 45 of is reasonable and should be approved. The Fairness Hearing may be postponed, adjourned or continued by further order of this Court, without further notice to the Settlement Class. 5. At the Fairness Hearing, the Court will consider any timely and verified objections presented by Settlement Class Members and the Parties responses to any such objections. 6. Any Settlement Class Member may object to the fairness, reasonableness or adequacy of the proposed settlement. Any member of the Settlement Class who so objects may (but need not) appear at the Fairness Hearing, in person or through counsel, to show cause why the proposed settlement should not be approved as fair, adequate and reasonable. Each Settlement Class Member who wishes to object to any term of the Settlement Agreement must do so in writing by filing a written objection with the Clerk of the Court and mailing it to counsel for the Parties. Any such objection must be filed with the Clerk of the Court and received by counsel for the Parties no later than days before the date of the Fairness Hearing. The objection must include the types and date(s) or approximate date(s) of the Settlement Class Member s purchase(s) of Food Service Equipment Component Hardware or Food Service Equipment that incorporated Food Service Equipment Component Hardware and copies of any materials that will be submitted to the Court or presented at the Fairness Hearing. The objection must be signed by the Settlement Class Member and must clearly state in detail the legal and factual grounds for objection; must include the Settlement Class Member s name, address, and, if available, telephone number; and, if represented by counsel, counsel s name, address, and telephone number. All objections that fail to satisfy the requirements of this paragraph or that are not properly and timely submitted will not be considered by this Court and will be deemed waived, and those Settlement Class Members shall be bound by the final determination of this Court. -4- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

70 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 46 of Any Person included within the Settlement Class who wishes to be excluded from membership in the Settlement Class must do so in writing by mailing a request for exclusion from the Settlement Class to the Settlement Administrator, so that such request is postmarked no later than 21 days before the date of the Fairness Hearing. The request must set forth (a) the title of the Action; (b) the person s full name, address and telephone number; (c) an explanation of the basis upon which the person claims to be a Settlement Class Member; (d) a statement confirming the person is requesting exclusion from the settlement; and (e) the person s signature or the signature of the person s duly authorized attorney or other duly authorized representative (along with documentation setting forth such representations).. Any Person within the Settlement Class who wishes to be excluded from the Settlement Class can only opt out for himself or herself and, except for minors, cannot opt out for any other Person, nor can any Person within the Settlement Class authorize another Person to opt out on his or her behalf. Any request for exclusion that fails to satisfy the requirements of this paragraph or that is not properly and timely submitted, as required above, shall not be effective. Such Person shall be deemed to have waived all rights to opt out of the Settlement Class, and shall be deemed a Settlement Class Member for all purposes pursuant this Order. 8. The Court finds that the manner and content of the settlement notice program specified in the Settlement Agreement will provide the best notice practicable to the Settlement Class under the circumstances. All costs incurred in connection with the preparation and dissemination of any notices to the Settlement Class shall be borne by Defendants and be paid out of the Settlement Fund, subject to the provisions of the Settlement Agreement. 9. If the Settlement Agreement is finally approved, the Court shall enter a separate order finally approving the Settlement Agreement, entering judgment and dismissing the Corrected Complaint with prejudice consistent with the terms of the -5- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

71 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 47 of Settlement Agreement. Such order and judgment shall be fully binding with respect to Plaintiff, all members of the Settlement Class and the Defendant Releasees. 10. In the event that the proposed settlement provided for in the Settlement Agreement is not approved by this Court, or entry of the final order and judgment set forth herein does not occur for any reason, then the Settlement Agreement, all drafts, negotiations, discussions, and documentation relating thereto, and all orders entered by this Court in connection therewith shall become null and void and all monies (except for incurred settlement notice and administrative costs) returned to Defendants by the Settlement Administrator. In such event, the Settlement Agreement and all negotiations and proceedings relating thereto shall be withdrawn without prejudice to the rights of the Parties, who shall be restored to their respective positions as of the date of the execution of the Settlement Agreement. 11. The Court hereby appoints Kurstman Carson Consultants LLC as the Settlement Administrator to perform the duties set forth in the Settlement Agreement in accordance with the schedule set forth in this Order. The dates of performance are as follows: (a) The Settlement Notice shall be posted on www. kasonsettlement.com, or such other domain as agreed to by the Parties, within 20 days of entry of this Order. A copy of the Settlement Agreement shall be made available to the public through a link on the Settlement Website, or by calling a toll free number to be established by the Settlement Administrator. This website shall be operational no later than 10 days after entry of this Order. (b) Beginning no later than 20 days of entry of this Order, or at the earlier or later date of publication, the Summary Notice shall be published one time in the following magazine publications: A. Nation s Restaurant News -6- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

72 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 48 of B. Restaurant Hospitality C. Food Service Director D. Food Management E. Food Service Equipment & Supplies F. Food Service Equipment Reports (c) Within 20 days from the date of entry of this Order, the Settlement Administrator shall disseminate the Summary Notice to those Settlement Class Members who the Parties are able to identify through reasonable efforts and for whom mailing addresses may be found. (d) Within 10 days of entry of this Order, the Settlement Administrator shall provide to counsel for the Parties for comment any proposed voice prompt recordings or scripts that the Settlement Administrator may use to answer any questions Settlement Class may have regarding the Settlement, either electronically or live. Should the Parties not be able to resolve their differences, the Parties agree to submit the dispute to the Magistrate Judge assigned to this action for resolution. (e) Within 20 days of entry of this Order, the Settlement Administrator shall establish a dedicated, toll-free telephone number that members of the Settlement Class can call to hear information regarding the Settlement. This toll-free number will be available through the end of the claims submission period. The Settlement Administrator shall also place information regarding the status of the claims submission period on the settlement website, continuing until the end of the claims submission period. / / / -7- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

73 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 49 of (f) The Parties shall file and serve papers in support of final approval of the Settlement, including any requested payment of attorneys fees, representative payments, costs and litigation expenses, by, 2012, and any responses to any objections that may be filed are due by, at.m. (g) The Fairness Hearing shall be held on, This Court hereby enters a preliminary injunction barring and enjoining all Settlement Class Members from bringing, filing, commencing, prosecuting, continuing to prosecute, maintaining, intervening in, participating in, or receiving any benefits from any other lawsuit, arbitration, or administrative, regulatory, or other proceeding in law or equity that asserts, arises from, concerns, or is in any way related to the Released Claims, until such time as this Court has ruled on the fairness of the settlement terms following the Fairness Hearing. This injunction shall be vacated without further court order if the settlement is not finally approved. DATED:, 2012 Hon. MICHAEL M. ANELLO U.S. District Court Judge -8- ORDER GRANTING PRELIMINARY APPROVAL OF CLASS CASE NO.: 3:11-CV MMA (DTBx) ACTION SETTLEMENT & DIRECTING DISSEMINATION OF CLASS NOTICE Error! Unknown document property name.

74 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 50 of 73 EXHIBIT B SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

75 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 51 of 73 UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO v. KASON INDUSTRIES, INC., et al. CIVIL ACTION NO.: 3:11-cv MMA (DTBx) NOTICE OF CLASS ACTION SETTLEMENT IF YOU HAVE PURCHASED CERTAIN TYPES OF FOOD SERVICE EQUIPMENT COMPONENT HARDWARE MANUFACTURED BY KASON INDUSTRIES, INC. OR COMPONENT HARDWARE GROUP, INC. PLEASE READ THIS NOTICE. YOU MAY BE ENTITLED TO A CASH REFUND. Key Dates for Settlement Class Members Last Day to Opt Out of Settlement, 2012 Last Day to Object to Settlement, 2012 Final Fairness Hearing Before the Hon. Michael M. 9:00 a.m. Last Day to Submit Claims, Why is this Notice Being Provided to Me? Plaintiff John Rigo in the above lawsuit (the Lawsuit ) has reached a settlement of the lawsuit against Kason Industries, Inc. Peter A. Katz, Component Hardware Group, Inc. and Thomas Carr ( Defendants ), for himself and also on behalf of everyone else (other than certain persons affiliated with Defendants or the Court) who purchased certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. between February 1, 2004 through February 11, A list of the products in question can be reviewed by accessing The purpose of this Notice is to: (1) inform you of the terms of a proposed settlement and the benefits available to you under the settlement, (2) inform you how this Lawsuit and the settlement may affect your legal rights, (3) advise you of the steps you must take if you want to object to or exclude yourself from the Settlement Class, and (4) advise you of the steps that you must take if you want to receive benefits under the settlement, which includes submitting a Claim Form. 2. What is the Lawsuit About? Plaintiff filed the Lawsuit alleging that Defendants conspired to fix prices for food service equipment component hardware manufactured by them (but not purchased directly from these two companies), in violation of federal and state anti-trust and unfair competition laws. The Lawsuit seeks damages and restitution of funds that Plaintiff and potential class members paid, an Order enjoining Defendants from engaging in any conduct that violates such laws, attorneys fees, and costs of suit. Defendants deny these claims, have asserted numerous defenses, and have vigorously defended the Lawsuit. The Court has made no determination about the correctness or validity of any of the Plaintiff s contentions or any of Defendants' defenses in the Lawsuit. Instead, the parties have entered into a Settlement Agreement to end the time, expense, and uncertainty of this litigation. 3. What are the Settlement Terms? The Court has preliminarily approved a settlement on the following terms, for the benefit of each Settlement Class Member who chooses to participate in the settlement: A. Compensation to each Settlement Class Member: For each Settlement Class Member who does not request to be excluded from (in other words, opt-out of) the Settlement Class and submits a Claim, they can receive a cash refund for the purchase price of such items based on a Plan of Allocation, which can be reviewed at the settlement website listed below. For those who purchased covered components, they can make a claim for the full purchase price of the item, and for those who purchase products that contained covered components, they can make a claim for 1.4% of the purchased price of that product. If you are not sure whether you purchased an affected product, for a list of covered products or to download or submit a Claim Form, visit There shall be a total settlement fund for paying these claims of $720,000, less attorney s fees and costs, including settlement administration costs. If the amount of Claims submitted exceeds the amount of remaining settlement funds, such Claims shall be prorated by (1) dividing the remaining settlement funds by the total value of valid Claims submitted, (2) applying the percentage from the above calculation to reduce the total value of an individual Claimants' refund, and (3) rounding up the reduced Claim value to the nearest dollar. Once Claims reach the amount of this total value cap, Defendants shall have no further obligation to provide additional compensation consistent with the above proration formula. Such a Claim can be submitted electronically at or by mailing the completed Claim Form to the address listed in Section 11 below. If you are not sure whether you purchased an affected product, please visit this website for a list of Questions? Call the Settlement Administrator at XXX-XXXX or Visit 1

76 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 52 of 73 covered products. To download or submit a Claim Form, visit You may also request to have a Claim Form mailed to you by calling XXX_XXXX. The deadline for submitting a Claim is, If any funds are remaining after Claims have been paid, any unclaimed funds shall not return to Defendants but shall be contributed to charitable organizations to be approved by the Court. B. Injunctive Relief. Defendants have agreed to act in compliance with all applicable state and federal anti-trust laws and not engage in any anti-competitive conduct that might raise prices for food service equipment component hardware. This injunctive relief shall be in place for five years from when the settlement becomes effective and the Court shall retain jurisdiction to enforce this injunction. C. Payment Procedure. If the Court approves this settlement, the cash refunds will be distributed on or before the later of (1) 30 days after the Claims Submission Period is over, (2) 10 days after the time to appeal the trial court s decision overruling an objection to approval of the settlement has expired without the filing of such an appeal, presuming a person or entity objects to the approval of the settlement, or (3) if a person objects to the approval of the settlement and timely files an appeal, 30 days after the date that the trial court's entry of Judgment is affirmed in its entirety and not subject to further appellate review. Check back at for an update on when the refunds will be issued. In the event that your address and/or contact information changes in the meantime, you should provide your updated contact information and address to the company administering the settlement at the address set forth in Section 11 below. D. Release of Claims. If you do not opt out of the settlement, you will be deemed to have fully and finally waived and released the following claims. The phrase Released Claims in the Settlement Agreement refers to any and all claims, actions, causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets or liabilities, including but not limited to tort claims, claims for breach of contract, breach of the duty of good faith and fair dealing, breach of statutory duties, actual or constructive fraud, misrepresentations, fraudulent inducement, statutory and consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade practices, restitution, rescission, compensatory and punitive damages, injunctive or declaratory relief, attorneys fees, interests, costs, penalties and any other claims, whether or not alleged in the Lawsuit and arising out of the claims asserted in the Lawsuit whether known or unknown, alleged in the Lawsuit, suspected or unsuspected, contingent or matured, under federal, state or local law, which the Plaintiff and/or any Settlement Class Member had, now have or may in the future have with respect to any conduct, acts, omissions, facts, matters, or transactions asserted or relating to or arising out of the conduct, acts, omissions, facts, matters, or transactions asserted in the Action by the Plaintiff and/or the Settlement Class Members including, without limitation, causes of action for violations of federal or state antitrust laws or Cal. Bus. & Prof. Code 17200, et seq., Cal Bus. & Prof. Code 17000, et seq., and similar claims under the statutes and common law of other states as well as claims for unjust enrichment, and any and all claims, damages, suits, demands, liabilities, judgments, losses, and causes of action as asserted in the Complaint (a copy of that Complaint can be viewed at The Court shall approve the release of all claims relating to the allegations in the Complaint as defined above. E. Attorneys Fees and Costs. You will not be required to pay any attorneys fees or costs if you remain in this Lawsuit. An award of attorneys fees and costs will be determined by the Court, but in no event shall such award exceed 30% of the Settlement Fund plus costs, which shall be awarded based on a combination of a percentage of overall fund and lodestar/multiplier and approach. Plaintiff s Counsel are also requesting the Plaintiff receive an additional amount for acting as class representative of up to $2,500, which is also subject to Court approval. These amounts were only negotiated after the other material settlement terms were agreed to between the parties. Questions? Call the Settlement Administrator at XXX-XXXX or Visit 2

77 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 53 of Effect of Not Opting Out. Unless you opt out of (i.e., you request to be excluded from) the Settlement Class as set forth below, you will automatically be in the Settlement Class. If you remain a member of the Settlement Class, you will be bound by the Court s Order finally approving this settlement and the Judgment entered by the Court. Settlement Class Counsel caution that if you participate in this settlement and do not opt-out, you shall be deemed to have released Defendants from the Released Claims as described in Section 3.D above. 5. What Has Occurred in the Lawsuit? This Lawsuit was filed on January 12, 2011and has been the subject of motion practice, with the Court upholding the Complaint on July 19, The Parties have conducted formal and informal discovery, and the exchange and analysis of a significant number of confidential, non-public documents. The parties, through their respective counsel, have engaged in extensive arm s length negotiations in reaching this settlement among the parties. 6. Who Represents the Settlement Class? Settlement Class Counsel are: EMERSON POYNTER LLP William Crowder 500 President Clinton Avenue, Suite 305 Little Rock, AR The Consumer Law Group Alan M. Mansfield Willow Creek Rd., Suite 160 San Diego, California The Settlement Agreement. If you would like to obtain a complete copy of the Settlement Agreement and the exhibits, you may review them at 8. Is the Settlement Final? Not yet. The Final Fairness Hearing will be held on, 2012, at 9:00 a.m. at the following address: United States District Judge Michael M. Anello Southern District of California 940 Front Street San Diego, California This settlement will not be final or take effect unless and until: (A) it is finally approved by the Court after the Final Fairness Hearing and a Final Order and Judgment have been entered by the Court, and (1) the applicable period for the appeal of the Final Order and Judgment has expired without any appeals having been filed, or (2) all such appeals have been dismissed; or (B) the Ninth Circuit Court of Appeals has entered a final judgment affirming the Final Order and Judgment, which (1) is no longer subject to any further appellate challenge, or (2) has been affirmed by the United States Supreme Court. Counsel do not know at this time if any objections or appeals will be filed. Check back periodically at for an update on the status of these proceedings. 9. If the Court Finally Approves the Settlement, What Will Happen to Any Claims I May Have against Defendants? If the settlement receives final judicial approval, it will result in a release by Plaintiff and all Settlement Class Members of all Released Claims, which are described in Section 3.D of this Notice. This means that if you do not exclude yourself from the Settlement Class, you will not be able to sue, or join another lawsuit against, Defendants for the claims described in that Section. 10. Why is Counsel Recommending the Class Settlement? Plaintiff and Settlement Class Counsel are supporting this settlement based on the fairness of the settlement in terms of providing refunds to Settlement Class Members of the amounts they were likely overcharged on average, the risks of and uncertainty at trial and/or appeal, and the delays associated with such litigation. Plaintiff and Settlement Class Counsel reached this settlement after weighing the risks and benefits to the Settlement Class of this settlement as compared to continuing the litigation. The factors that counsel considered included the uncertainty associated with continued litigation, including various legal issues that have not yet been determined by the Court. Counsel balanced these and other risks, including Defendants financial condition, in determining that the settlement is fair, reasonable and adequate in light of all the circumstances, and is in the best interests of the Settlement Class considering the substantial benefits provided to Settlement Class Members under this settlement. 11. What If I Do Not Want to Participate in the Settlement? You will be bound by the Judgment entered in the Lawsuit unless you submit a valid and timely request for exclusion (an opt-out request ) from the Settlement Class. If you wish to be excluded from the Settlement Class, you must send an opt-out request by mail to the Settlement Questions? Call the Settlement Administrator at XXX-XXXX or Visit 3

78 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 54 of 73 Administrator. The opt-out request must be postmarked no later than, 2012 and mailed to the following address: Rigo v. Kason Industries, Inc. et al c/o KCC P.O. Box XXXX Novato, CA XXXXX To be valid, an opt-out request must (a) refer to the Kason Settlement and provide the names of the products you purchased, and the location and approximate dates of purchase; (b) identify the name and address of the individual who is opting out and state your wish to be excluded from the Settlement Class; and (c) state that such person is authorized to opt out of the Settlement Class. If you opt out, you will not be bound by the Court s Final Order and Judgment and you will not waive or release any of the Released Claims asserted in the Lawsuit, but you will not be entitled to receive any benefit or monetary relief under this settlement. If you choose not to opt out, your interests will be represented by Plaintiff through the attorneys listed in Section 6 above. 12. Right to Object to the Settlement. Any member of the Settlement Class has the right to object to the proposed settlement and may appear personally or through counsel at the Fairness Hearing to be held on, 2012, and object to approval of the settlement. Even if you object to the settlement, you may still be entitled to participate in the settlement. In order to be heard or to have papers or briefs considered by the Court, any objecting Settlement Class Member must file, by, 2012, an original of the Settlement Class Member s objection with the Court at the address listed in Section 8. The objection must include: (a) the case name and case number; (b) a list of all available names of the products that were purchased by the Settlement Class Member and the approximate date and location of such purchase(s); (c) attach copies of any materials that will be submitted to the Court or presented at the Fairness Hearing; (d) be signed by the Settlement Class Member; and (e) state in detail: (i) the legal and factual ground(s) for the objection, (ii) the Settlement Class Member s name, address and, if available, telephone number, and (iii) if represented by counsel, such counsel s name, address and telephone number. Any objecting Settlement Class Member who fails to submit a timely written objection shall waive and forfeit any and all rights that he or she may have to appear separately and/or object, and shall be bound by all the terms of the settlement, release and by all proceedings, orders and judgments in this Lawsuit. Copies of all documents filed with the Clerk of the Court must also be sent to the following counsel: Settlement Class Counsel THE CONSUMER LAW GROUP Alan M. Mansfield, Esq Willow Creek Rd., Suite 160 San Diego, CA Counsel for Defendants KIRKLAND & ELLIS, LLP Christopher T. Casamassima, Esq. 333 South Hope Street Los Angeles, CA BAKER & MCKENZIE, LLP Colin H. Murray, Esq. Two Embarcadero Center, 11th Floor San Francisco, CA SUTHERLAND, ASBILL & BRENNAN LLP Joshua A. Mayes, Esq. 999 Peachtree Street, NE Atlanta, GA SANDLER LASRY LAUBE BYER & VALDEZ LLP Richard M. Valdez, Esq. 402 W. Broadway, Suite 1700 San Diego, CA IF YOU DO NOT OPPOSE THE PROPOSED SETTLEMENT, YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING OR FILE ANY PAPERS. IF YOU FILE AN OBJECTION, IT WILL BE CONSIDERED BY THE COURT. YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING. Questions? Call the Settlement Administrator at XXX-XXXX or Visit 4

79 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 55 of Resolution of Disputes. If there is a dispute regarding your settlement amount, or any other aspect of your participation in the settlement, this dispute shall be decided by the Judge before which the Lawsuit is pending or the assigned Magistrate Judge if the dispute cannot be informally resolved. 14. Where You Can Obtain Further Information. If you want additional information about the Lawsuit and this settlement that is not answered or available at you should contact the Settlement Administrator at the following toll-free telephone number: 1-XXX-XXX-XXX. DO NOT CONTACT THE COURT OR DEFENDANTS COUNSEL, OR DEFENDANTS DIRECTLY ABOUT THIS LAWSUIT. Questions? Call the Settlement Administrator at XXX-XXXX or Visit 5

80 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 56 of 73 EXHIBIT B revised August 31, 2012 SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

81 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 57 of 73 UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO v. KASON INDUSTRIES, INC., et al. CIVIL ACTION NO.: 3:11-cv MMA (DTBx) NOTICE OF CLASS ACTION SETTLEMENT IF YOU HAVE PURCHASED CERTAIN TYPES OF FOOD SERVICE EQUIPMENT COMPONENT HARDWARE MANUFACTURED BY KASON INDUSTRIES, INC. OR COMPONENT HARDWARE GROUP, INC. OR PURCHASED FOOD SERVICE EQUIPMENT THAT INCORPORATED SUCH FOOD SERVICE EQUIPMENT COMPONENT HARDWARE PLEASE READ THIS NOTICE. YOU MAY BE ENTITLED TO A CASH REFUND. Key Dates for Settlement Class Members Last Day to Opt Out of Settlement, 2012 Last Day to Object to Settlement, 2012 Final Fairness Hearing Before the Hon. Michael M. 9:00 a.m. Last Day to Submit Claims, Why is this Notice Being Provided to Me? Plaintiff John Rigo in the above lawsuit (the Lawsuit ) has reached a settlement of the lawsuit against Kason Industries, Inc. Peter A. Katz, Component Hardware Group, Inc. and Thomas Carr ( Defendants ), for himself and also on behalf of everyone else (other than certain persons affiliated with Defendants or the Court) who purchased certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. or purchased food service equipment that incorporated such food service equipment component hardware between February 1, 2004 and February 11, A list of the products in question can be reviewed by accessing The purpose of this Notice is to: (1) inform you of the terms of a proposed settlement and the benefits available to you under the settlement, (2) inform you how this Lawsuit and the settlement may affect your legal rights, (3) advise you of the steps you must take if you want to object to or exclude yourself from the Settlement Class, and (4) advise you of the steps that you must take if you want to receive benefits under the settlement, which includes submitting a Claim Form. 2. What is the Lawsuit About? Plaintiff filed the Lawsuit alleging that Defendants conspired to fix prices for food service equipment component hardware manufactured by them (but not purchased directly from these two companies), in violation of federal and state anti-trust and unfair competition laws. The Lawsuit seeks damages and restitution of funds that Plaintiff and potential class members paid, an Order enjoining Defendants from engaging in any conduct that violates such laws, attorneys fees, and costs of suit. Defendants deny these claims, have asserted numerous defenses, and have vigorously defended the Lawsuit. The Court has made no determination about the correctness or validity of any of the Plaintiff s contentions or any of Defendants' defenses in the Lawsuit. Instead, the parties have entered into a Settlement Agreement to end the time, expense, and uncertainty of this litigation. 3. What are the Settlement Terms? The Court has preliminarily approved a settlement on the following terms, for the benefit of each Settlement Class Member who chooses to participate in the settlement: A. Compensation to each Settlement Class Member: For each Settlement Class Member who does not request to be excluded from (in other words, opt-out of) the Settlement Class and submits a Claim, they can receive a cash refund for the purchase price of such items based on a Plan of Allocation, which can be reviewed at the settlement website listed below. For those who purchased covered components, they can make a claim for the full purchase price of the item, and for those who purchase products that contained covered components, they can make a claim for 1.4% of the purchased price of that product. If you are not sure whether you purchased an affected product, for a list of covered products or to download or submit a Claim Form, visit There shall be a total settlement fund for paying these claims of $720,000, less attorney s fees and costs, including settlement administration costs. If the amount of Claims submitted exceeds the amount of remaining settlement funds, such Claims shall be prorated by (1) dividing the remaining settlement funds by the total value of valid Claims submitted, (2) applying the percentage from the above calculation to reduce the total value of an individual Claimants' refund, and (3) rounding up the reduced Claim value to the nearest dollar. Once Claims reach the amount of this total value cap, Defendants shall have no further obligation to provide additional compensation consistent with the above proration formula. Such a Claim can be submitted electronically at or by mailing the completed Claim Form to the address listed in Section 11 below. If you are not sure whether you purchased an affected product, please visit this website for a list of covered products. To download or submit a Claim Form, visit You may Questions? Call the Settlement Administrator at XXX-XXXX or Visit 1

82 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 58 of 73 also request to have a Claim Form mailed to you by calling XXX_XXXX. The deadline for submitting a Claim is, If any funds are remaining after Claims have been paid, any unclaimed funds shall not return to Defendants but shall be contributed to charitable organizations to be approved by the Court. B. Injunctive Relief. Defendants have agreed to act in compliance with all applicable state and federal anti-trust laws and not engage in any anti-competitive conduct that might raise prices for food service equipment component hardware. This injunctive relief shall be in place for five years from when the settlement becomes effective and the Court shall retain jurisdiction to enforce this injunction. C. Payment Procedure. If the Court approves this settlement, the cash refunds will be distributed on or before the later of (1) 30 days after the Claims Submission Period is over, (2) 10 days after the time to appeal the trial court s decision overruling an objection to approval of the settlement has expired without the filing of such an appeal, presuming a person or entity objects to the approval of the settlement, or (3) if a person objects to the approval of the settlement and timely files an appeal, 30 days after the date that the trial court's entry of Judgment is affirmed in its entirety and not subject to further appellate review. Check back at for an update on when the refunds will be issued. In the event that your address and/or contact information changes in the meantime, you should provide your updated contact information and address to the company administering the settlement at the address set forth in Section 11 below. D. Release of Claims. If you do not opt out of the settlement, you will be deemed to have fully and finally waived and released the following claims. The phrase Released Claims in the Settlement Agreement refers to any and all claims, actions, causes of action, rights, demands, suits, debts, liens, contracts, agreements, offsets or liabilities, including but not limited to tort claims, claims for breach of contract, breach of the duty of good faith and fair dealing, breach of statutory duties, actual or constructive fraud, misrepresentations, fraudulent inducement, statutory and consumer fraud, anti-trust, breach of fiduciary duty, unfair business or trade practices, restitution, rescission, compensatory and punitive damages, injunctive or declaratory relief, attorneys fees, interests, costs, penalties and any other claims, whether or not alleged in the Lawsuit and arising out of the claims asserted in the Lawsuit whether known or unknown, alleged in the Lawsuit, suspected or unsuspected, contingent or matured, under federal, state or local law, which the Plaintiff and/or any Settlement Class Member had, now have or may in the future have with respect to any conduct, acts, omissions, facts, matters, or transactions asserted or relating to or arising out of the conduct, acts, omissions, facts, matters, or transactions asserted in the Action by the Plaintiff and/or the Settlement Class Members including, without limitation, causes of action for violations of federal or state antitrust laws or Cal. Bus. & Prof. Code 17200, et seq., Cal Bus. & Prof. Code 17000, et seq., and similar claims under the statutes and common law of other states as well as claims for unjust enrichment, and any and all claims, damages, suits, demands, liabilities, judgments, losses, and causes of action as asserted in the Complaint (a copy of that Complaint can be viewed at The Court shall approve the release of all claims relating to the allegations in the Complaint as defined above. E. Attorneys Fees and Costs. You will not be required to pay any attorneys fees or costs if you remain in this Lawsuit. An award of attorneys fees and costs will be determined by the Court, but in no event shall such award exceed 30% of the Settlement Fund plus costs, which shall be awarded based on a combination of a percentage of overall fund and lodestar/multiplier and approach. Plaintiff s Counsel are also requesting the Plaintiff receive an additional amount for acting as class representative of up to $2,500, which is also subject to Court approval. These amounts were only negotiated after the other material settlement terms were agreed to between the parties. Questions? Call the Settlement Administrator at XXX-XXXX or Visit 2

83 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 59 of Effect of Not Opting Out. Unless you opt out of (i.e., you request to be excluded from) the Settlement Class as set forth below, you will automatically be in the Settlement Class. If you remain a member of the Settlement Class, you will be bound by the Court s Order finally approving this settlement and the Judgment entered by the Court. Settlement Class Counsel caution that if you participate in this settlement and do not opt-out, you shall be deemed to have released Defendants from the Released Claims as described in Section 3.D above. 5. What Has Occurred in the Lawsuit? This Lawsuit was filed on January 12, 2011and has been the subject of motion practice, with the Court upholding the Complaint on July 19, The Parties have conducted formal and informal discovery, and the exchange and analysis of a significant number of confidential, non-public documents. The parties, through their respective counsel, have engaged in extensive arm s length negotiations in reaching this settlement among the parties. 6. Who Represents the Settlement Class? Settlement Class Counsel are: EMERSON POYNTER LLP William Crowder 500 President Clinton Avenue, Suite 305 Little Rock, AR The Consumer Law Group Alan M. Mansfield Willow Creek Rd., Suite 160 San Diego, California The Settlement Agreement. If you would like to obtain a complete copy of the Settlement Agreement and the exhibits, you may review them at 8. Is the Settlement Final? Not yet. The Final Fairness Hearing will be held on, 2012, at 9:00 a.m. at the following address: United States District Judge Michael M. Anello Southern District of California 940 Front Street San Diego, California This settlement will not be final or take effect unless and until: (A) it is finally approved by the Court after the Final Fairness Hearing and a Final Order and Judgment have been entered by the Court, and (1) the applicable period for the appeal of the Final Order and Judgment has expired without any appeals having been filed, or (2) all such appeals have been dismissed; or (B) the Ninth Circuit Court of Appeals has entered a final judgment affirming the Final Order and Judgment, which (1) is no longer subject to any further appellate challenge, or (2) has been affirmed by the United States Supreme Court. Counsel do not know at this time if any objections or appeals will be filed. Check back periodically at for an update on the status of these proceedings. 9. If the Court Finally Approves the Settlement, What Will Happen to Any Claims I May Have against Defendants? If the settlement receives final judicial approval, it will result in a release by Plaintiff and all Settlement Class Members of all Released Claims, which are described in Section 3.D of this Notice. This means that if you do not exclude yourself from the Settlement Class, you will not be able to sue, or join another lawsuit against, Defendants for the claims described in that Section. 10. Why is Counsel Recommending the Class Settlement? Plaintiff and Settlement Class Counsel are supporting this settlement based on the fairness of the settlement in terms of providing refunds to Settlement Class Members of the amounts they were likely overcharged on average, the risks of and uncertainty at trial and/or appeal, and the delays associated with such litigation. Plaintiff and Settlement Class Counsel reached this settlement after weighing the risks and benefits to the Settlement Class of this settlement as compared to continuing the litigation. The factors that counsel considered included the uncertainty associated with continued litigation, including various legal issues that have not yet been determined by the Court. Counsel balanced these and other risks, including Defendants financial condition, in determining that the settlement is fair, reasonable and adequate in light of all the circumstances, and is in the best interests of the Settlement Class considering the substantial benefits provided to Settlement Class Members under this settlement. 11. What If I Do Not Want to Participate in the Settlement? You will be bound by the Judgment entered in the Lawsuit unless you submit a valid and timely request for exclusion (an opt-out request ) from the Settlement Class. If you wish to be excluded from the Settlement Class, you must send an opt-out request by mail to the Settlement Administrator. The opt-out request must be postmarked no later than, 2012 and mailed to the following address: Rigo v. Kason Industries, Inc. et al c/o KCC P.O. Box XXXX Novato, CA XXXXX Questions? Call the Settlement Administrator at XXX-XXXX or Visit 3

84 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 60 of 73 To be valid, an opt-out request must (a) refer to the Kason Settlement and provide the names of the products you purchased, and the location and approximate dates of purchase; (b) identify the name and address of the individual who is opting out and state your wish to be excluded from the Settlement Class; and (c) state that such person is authorized to opt out of the Settlement Class. If you opt out, you will not be bound by the Court s Final Order and Judgment and you will not waive or release any of the Released Claims asserted in the Lawsuit, but you will not be entitled to receive any benefit or monetary relief under this settlement. If you choose not to opt out, your interests will be represented by Plaintiff through the attorneys listed in Section 6 above. 12. Right to Object to the Settlement. Any member of the Settlement Class has the right to object to the proposed settlement and may appear personally or through counsel at the Fairness Hearing to be held on, 2012, and object to approval of the settlement. Even if you object to the settlement, you may still be entitled to participate in the settlement. In order to be heard or to have papers or briefs considered by the Court, any objecting Settlement Class Member must file, by, 2012, an original of the Settlement Class Member s objection with the Court at the address listed in Section 8. The objection must include: (a) the case name and case number; (b) a list of all available names of the products that were purchased by the Settlement Class Member and the approximate date and location of such purchase(s); (c) attach copies of any materials that will be submitted to the Court or presented at the Fairness Hearing; (d) be signed by the Settlement Class Member; and (e) state in detail: (i) the legal and factual ground(s) for the objection, (ii) the Settlement Class Member s name, address and, if available, telephone number, and (iii) if represented by counsel, such counsel s name, address and telephone number. Any objecting Settlement Class Member who fails to submit a timely written objection shall waive and forfeit any and all rights that he or she may have to appear separately and/or object, and shall be bound by all the terms of the settlement, release and by all proceedings, orders and judgments in this Lawsuit. Copies of all documents filed with the Clerk of the Court must also be sent to the following counsel: Settlement Class Counsel THE CONSUMER LAW GROUP Alan M. Mansfield, Esq Willow Creek Rd., Suite 160 San Diego, CA Counsel for Defendants KIRKLAND & ELLIS, LLP Christopher T. Casamassima, Esq. 333 South Hope Street Los Angeles, CA BAKER & MCKENZIE, LLP Colin H. Murray, Esq. Two Embarcadero Center, 11th Floor San Francisco, CA SUTHERLAND, ASBILL & BRENNAN LLP Joshua A. Mayes, Esq. 999 Peachtree Street, NE Atlanta, GA SANDLER LASRY LAUBE BYER & VALDEZ LLP Richard M. Valdez, Esq. 402 W. Broadway, Suite 1700 San Diego, CA IF YOU DO NOT OPPOSE THE PROPOSED SETTLEMENT, YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING OR FILE ANY PAPERS. IF YOU FILE AN OBJECTION, IT WILL BE CONSIDERED BY THE COURT. YOU NEED NOT APPEAR AT THE FINAL FAIRNESS HEARING. 13. Resolution of Disputes. If there is a dispute regarding your settlement amount, or any other aspect of your participation in the settlement, this dispute shall be decided by the Judge before which the Lawsuit is pending or the assigned Magistrate Judge if the dispute cannot be informally resolved. 14. Where You Can Obtain Further Information. If you want additional information about the Lawsuit and this settlement that is not answered or available at you should contact the Settlement Administrator at the following toll-free telephone number: 1-XXX-XXX-XXX. DO NOT CONTACT THE COURT OR DEFENDANTS COUNSEL, OR DEFENDANTS DIRECTLY ABOUT THIS LAWSUIT. Questions? Call the Settlement Administrator at XXX-XXXX or Visit 4

85 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 61 of 73 EXHIBIT C SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

86 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 62 of 73 SUMMARY CLASS NOTICE THIS NOTICE ADVISES YOU OF A PROPOSED CLASS ACTION SETTLEMENT WITH KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC. AND THOMAS CARR ( DEFENDANTS ). THIS NOTICE MAY AFFECT YOUR LEGAL RIGHTS -- PLEASE READ IT CAREFULLY. This summary notice informs you about the settlement of John Rigo v. Kason Industries Inc. et al., United States District Court, Southern District of California, Case No. 3:11-CV MMA (DTBx). John Rigo represents a class of customers who purchased (but not directly from these two companies) certain types of food service equipment component hardware manufactured by Kason Industries, Inc. or Component Hardware Group, Inc. between February 1, 2004 through February 11, A list of the products in question can be reviewed by accessing If you timely submit a Claim Form by [date], if this settlement is finally approved you can receive a cash refund for up to the purchase price of such items or 1.4% of the purchase price of an item that contains a covered component. There shall be a total settlement fund for paying these claims of $720,000, less certain fees and costs. These claims are also subject to possible proration as described in the full class settlement notice. You can submit a Proof of Claim Form online at or by requesting a Proof of Claim Form from the Settlement Administrator and submitting it to the address below. Plaintiff's counsel will ask the Court to approve payment of 30% of the above fund plus costs incurred, as well as $2,500 for Mr. Rigo as the class representative. To exclude yourself from this settlement, or to object to the settlement, you must follow the instructions in the Notice, which can be located as described below. The deadline to opt out of the settlement is [DATE]. The deadline to submit any objection is [DATE]. This is only a summary of the settlement. For additional information regarding this settlement, the full Notice of Class Action Settlement ( Notice ) is available to review or download at or by mail from the Settlement Administrator at Rigo v. Kason Industries, Inc. et al. c/o KCC, P.O. Box XXX. You may also call XXX-XXXX if you have any questions or to request a copy.

87 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 63 of 73 EXHIBIT D SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

88 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 64 of 73 EXHIBIT D PLAN OF ALLOCATION After the payment of any amounts awarded by the Court in the Final Approval Order for Class Counsel's fees and expenses and additional compensation to Plaintiff, the payment of all allowed expenses of the Administrator, and the setting aside of an appropriate reserve, if any, for Taxes (the "Net Settlement Fund"), the Administrator shall determine each Claimant s award in the manner set forth below by reference to the total amount the Claimant paid for Food Service Equipment Component Hardware, including but not limited to Food Service Equipment Component Hardware incorporated in Food Service Equipment, during the Class Period, as stated on a valid and timely Claim Form returned by said Claimant (a Recognized Claim ). For purposes of computing the amount to which each participating class member will be entitled, the following rules of allocation will be followed. For those that indirectly purchased Food Service Equipment Hardware that was not incorporated into Food Service Equipment (e.g., repair parts), the entire amount of the purchase price will be taken into account in making such calculations. For those that indirectly purchased Food Service Equipment Component Hardware that was incorporated into Food Service

89 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 65 of 73 Equipment, 1.4% of the purchase price of the Food Service Equipment will be taken into account, unless the Claimant demonstrates in its Claim that the Equipment contains Food Service Component Equipment Hardware worth more than 1.4% of the purchase price. The amount paid for Food Service Equipment Hardware by each claimant under a Recognized Claim as determined above is referred to herein as a Claim Purchase Amount and the aggregate of Claim Purchase Amounts under all such Recognized Claims shall be referred to herein as the Aggregate Claim Purchase Amount. Each claimant will be entitled to recover up to 100% of its Claim Purchase Amount, provided that: o If the Net Settlement Fund available to satisfy claims is less than 100% of the Aggregate Claim Purchase Amount, the Net Settlement Fund will be distributed pro rata to the Claimants in the proportion that such Claimant s Claimed Purchase Amount bears to the Aggregate Purchase Amount. o If the Net Settlement Fund is greater than 100% of the Aggregate Claim Purchase Amount, then each Claimant shall receive 100% of its Claimed Purchase Amount, and the excess

90 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 66 of 73 will be distributed on a cy pres basis as set forth in Section I.2. of the Settlement Agreement. In no event shall Defendants have any further obligation to provide additional compensation or contribute any further amounts to the Settlement Fund.

91 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 67 of 73 EXHIBIT E SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

92 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 68 of 73 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JOHN RIGO D/B/A ALTERED AIR, on Behalf of Himself and All Others Similarly Situated, Plaintiff, vs. KASON INDUSTRIES, INC., PETER A. KATZ, COMPONENT HARDWARE GROUP, INC.; THOMAS CARR; and DOES 1-10, Defendants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:11-CV MMA (DTBx) Hon. Michael M. Anello [PROPOSED] AGREED and STIPULATED INJUNCTION and ORDER Kason Industries, Inc. and Peter A. Katz (collectively the Kason Defendants ), Component Hardware Group, Inc. and Thomas Carr (collectively the CHG Defendants ) (the Kason Defendants and CHG Defendants are sometimes collectively referred to as Defendants ) and Plaintiff John Rigo d/b/a Altered Air ( Plaintiff ) (collectively, Defendants and Plaintiff are referred to as the Parties ), agree and stipulate to the following Antitrust Injunction and Compliance. Page 1 of 4 Error! Unknown document property name.

93 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 69 of 73 WHEREFORE, based on all matters appearing of record and the agreement and stipulation of counsel, IT IS HEREBY ORDERED, that for a period of five (5) years from the date of entry of this Injunction and Order the Defendants shall be enjoined from engaging in horizontal price fixing, market allocation, bid rigging, or other conduct involving a contract, combination or conspiracy with a competitor that violates Section 1 of the Sherman Act, with respect to the sale of any Food Service Equipment Component Hardware, (defined by paragraph 11 of Plaintiff s Corrected Complaint filed on January 24, 2011 (Doc. 3)), that are likely, through the reasonably anticipated stream of commerce, to be sold to end-user purchasers in the United States. IT IS FURTHER ORDERED, that, within ninety days of the Effective Date, Kason Industries, Inc. and Component Hardware Group, Inc. each agree to provide a comprehensive antitrust compliance training presentation, at their expense, for the officers and employees responsible for the pricing or production capacity of Food Service Equipment Component Hardware, and establish a designated legal counsel resource for all officers and employees regarding any antitrust compliance inquiries for the next five years. Kason Industries, Inc. and Page 2 of 4 Error! Unknown document property name.

94 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 70 of 73 Component Hardware Group, Inc. each shall certify compliance in writing and make the certification available on demand by Class Counsel for five years. IT IS SO ORDERED, this, day of. AGREED AND STIPLUATED: Hon. Michael M. Anello U.S. District Judge John Rigo d/b/a Altered Air Kason Industries, Inc., By: EMERSON POYTNER LLP By: By: CONSUMER LAW GROUP OF CALIFORNIA Peter A. Katz Component Hardware Group, Inc. By: By: Page 3 of 4 Error! Unknown document property name.

95 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 71 of 73 Thomas Carr By: Page 4 of 4 Error! Unknown document property name.

96 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 72 of 73 EXHIBIT F SETTLEMENT AGREEMENT John Rigo d/b/a Altered Air, on Behalf of Himself and All Others Similarly Situated vs. Kason Industries, Inc., et al., Case No. 3:11-CV MMA (DTBx)

97 Case 3:11-cv MMA-DHB Document 91-5 Filed 01/10/13 Page 73 of 73 Media Contact(s): The Consumer Law Group Alan M. Mansfield, Esq Willow Creek, Suite 160 San Diego, CA THIS NOTICE IS AN ADVISORY OF A PROPOSED CLASS ACTION SETTLEMENT WITH KASON INDUSTRIES INC., PETER A. KATZ, COMPONENT HARDWARE GROUP INC. AND THOMAS CARR. San Diego, CA [Date of release]. The following statement is being issued by regarding the John Rigo, et al. v.kason Industries et al. case. SUMMARY CLASS NOTICE This summary notice is issued in accordance with the Court order dated [DATE] preliminarily approving the settlement of John Rigo, et al. v. Kason Industries, Inc. et al,, United States District Court, Southern District of California, Case No. 3:11-CV MMA (DTBx). John Rigo represents a class of customers who purchased (but not directly from these two companies) certain types of food service equipment component hardware manufactured by Kason Industries or Component Hardware Group between February 1, 2004 through February 11, A list of the products in question can be reviewed by accessing If customers timely submit a Claim Form by [date], if this settlement is finally approved they can receive a cash refund for up to the purchase price of such items or 1.4% of the purchase price of an item that contains a covered component. There shall be a total settlement fund for paying these claims of $720,000, less certain fees and costs. These claims are also subject to possible proration as described in the full class settlement notice. They can submit a Proof of Claim Form online at or by requesting a Proof of Claim Form from the Settlement Administrator and submitting it to the address below. Plaintiff's counsel will ask the Court to approve payment of 30% of the above fund plus costs incurred, as well as $2,500 for Mr. Rigo as the class representative. To be excluded from this settlement, or to object to the settlement, Settlement Class Members must follow the instructions in the Notice, which can be located as described below. The deadline to opt out of the settlement is [DATE]. The deadline to submit any objection is [DATE]. This is only a summary of the settlement. For additional information regarding this settlement, the full Notice of Class Action Settlement ( Notice ) is available to review or download at or by mail from the Settlement Administrator at Rigo v. Kason Industries, Inc. et al. c/o KCC, P.O. Box XXX. You may also call XXX-XXXX if you have any questions or to request a copy of the Notice. ### Source: The Consumer Law Group of California (

98 Case 3:11-cv MMA-DHB Document 91-6 Filed 01/10/13 Page 1 of 42 EXHIBIT 4

99 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 11 of of 241 of 4142 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE FOOD SERVICE EQUIPMENT HARDWARE ANTITRUST LITIGATION Master Consolidated Case File No. 1:10-cv-1849-WSD THIS DOCUMENT RELATES TO: DIRECT PURCHASER ACTIONS SETTLEMENT AGREEMENT This Settlement Agreement ( Settlement Agreement ) is made and entered into this 17th day of September by and between the following Parties : Component Hardware Group, Inc. ( CHG ) and putative plaintiff class representative Kohlder Manufacturing Co., Inc. individually and on behalf of the Participating Class Members of the Settlement Class (as defined herein) ( Plaintiffs ) as a purchaser of Food Service Equipment (as defined herein) in the United States from CHG (or any of its subsidiaries or affiliates) or any Defendant or alleged co-conspirators named or that may be named in the Consolidated Class Action Complaint filed on September 17, 2010, for the period from February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action: WHEREAS, there is pending in the United States District Court for the Northern District of Georgia, the Class Action, In Re Food Service Equipment Hardware Antitrust Litigation (No. 1:10-cv-1849-WSD), brought on behalf of direct purchasers of Food Service Equipment, in which Plaintiffs have alleged violations of law, including the existence of unlawful conspiracies

100 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 22 of of 341 of 4142 to restrict competition, fix prices, rig bids, and allocate customers regarding the sale of Food Service Equipment in the United States in violation of Section 1 of the Sherman Antitrust Act and Section 4 of the Clayton Act; WHEREAS, although CHG denies any liability, injury, or damage to the Settlement Class, and would assert a number of defenses were it to be named in the Class Action, CHG has concluded that it will enter this Settlement Agreement to avoid the expense, inconvenience, and burden of litigation and any other present or future litigation arising out of the same facts that gave rise to the Class Action, and to avoid the distraction and diversion of its personnel and resources, and to put to rest this controversy with business customers; WHEREAS, due to its financial position, CHG is unable to offer economic value, including any additional cash payment, to the Settlement Class in excess of the terms of this settlement to resolve the Action without imperiling its operations and its continued viability as a competitor in its industry; WHEREAS, CHG agrees to cooperate with Plaintiffs in the ongoing prosecution of the Class Action in accordance with the Antitrust Criminal Penalty Enhancement and Reform Act ( ACPERA ) as set forth in this Settlement Agreement; WHEREAS, Plaintiffs recognize the benefits of CHG s cooperation in part because such cooperation will ease Plaintiffs burden and relieve the expense of additional litigation, and further recognize and will submit to the Court that CHG s cooperation contemplated by this Settlement Agreement satisfies the requirements of ACPERA to eliminate the availability of treble damages and joint liability for the sales of other participants in the alleged conspiracy, an exemption that does not apply to any other named Defendants in the Class Action; 2

101 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 33 of of 441 of 4142 WHEREAS, Plaintiffs Counsel have concluded, after due investigation and after carefully considering the relevant circumstances, including, without limitation, the claims asserted in the Class Action and the legal and factual defenses thereto and the applicable law, as well as CHG s eligibility for protection from treble and joint damages under ACPERA, and after extensive review of documents and data provided by CHG and otherwise obtained by the Plaintiffs, that it would be in the best interests of the Plaintiffs and the Class Members to enter into this Settlement Agreement in order to avoid the uncertainties of litigation, to assure that the benefits reflected herein are obtained for the Plaintiffs and all Class Members, and that this settlement fairly reflects the maximum value CHG can realistically afford to offer to resolve the Class Action; and, as a result, Plaintiffs Counsel consider the settlement set forth herein to be fair, reasonable, adequate, and in the best interests of Plaintiffs and all members of the Class; WHEREAS, arm s-length settlement negotiations have taken place between Plaintiffs Counsel and counsel for CHG, and this Settlement Agreement, which embodies all of the terms and conditions of the settlement between the CHG and the Plaintiffs and the Class, has been reached, subject to the approval of the Court and Final Approval as provided herein; WHEREAS, it is anticipated that this Settlement Agreement will resolve all claims, potential claims, or other relief against or potentially against the Releasees (defined herein) raised in the Class Action; and NOW, THEREFORE, in consideration of the covenants, terms, and releases in this Settlement Agreement and for other good and valuable consideration, it is by and among the undersigned agreed that the Class Action be settled, compromised, and fully resolved as to the Releasees, without costs as to Plaintiffs, the Class, or CHG, including all such costs that the 3

102 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 44 of of 541 of 4142 Parties would have otherwise been entitled to recover, such as costs related to electronic discovery, all subject to the approval of the Court and the following terms and conditions: A. Definitions The following terms, as used in this Settlement Agreement, have the following meanings: 1. Action or Class Action means the action captioned In re Food Service Equipment Hardware Antitrust Litigation (No. 1:10-cv-1849-WSD), ( FSEH ), which is currently pending in the Northern District of Georgia, and includes all cases that have been consolidated or coordinated with FSEH, may be consolidated or coordinated with FSEH, or which raise allegations related or similar to the allegations raised or that could have been raised in FSEH, and includes all actions based on the same conduct at issue in FSEH. 2. CHG means Component Hardware Group, Inc., and all of its successors. 3. Claims shall mean any and all suits, claims, rights, demands, assertions, allegations, causes of action, controversies, proceedings, losses, damages, injuries, attorneys fees, costs, expenses, debts, liabilities, judgments, or remedies, which are related to the subject matter of the Class Action, whether arising under federal or state or any other law, including all Claims that were or could have been brought in the Class Action. 4. Claims Administrator means an independent professional service to be selected by Class Counsel and charged with administering the claims process and distribution of the settlement. 5. Class Counsel or Plaintiffs Counsel shall refer to the law firms of Labaton Sucharaow LLP, 140 Broadway, New York, NY, 10005, and Hausfeld LLP, 1700 K Street, NW, Suite 650, Washington, D.C., Class Member or Settlement Class Member or Class means each member of the proposed Settlement Class. 4

103 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 55 of of 641 of Class Period means the period from and including February 1, 2004 up to and including February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. 8. Court means the U.S. District for the Northern District of Georgia, Atlanta Division. 9. Defendants mean the Defendants to this Action: Kason Industries Inc., Peter A. Katz, CHG, Thomas Carr, and all others named in consolidated complaint filed on September 17, Document is defined to be synonymous in meaning and equal in scope to the usage of this term in Fed. R. Civ. P. 34(a), including, without limitation, electronic or computerized data compilations. A draft or non-identical copy is a separate document within the meaning of this term. 11. Effective Date means the date on which the Settlement Agreement becomes final in accordance with the terms of paragraph Execution Date shall mean the date of the execution of this Settlement Agreement by counsel for each and every party thereto. 13. Food Service Equipment means any type of food service equipment component hardware products as defined by paragraph 17 of the consolidated complaint filed on September 17, 2010, sold by Defendants in the Class Action, or any alleged co-conspirators from February 1, 2004, through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action, excluding oven canopy hoods and any plumbing product. 5

104 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 66 of of 741 of Opt Out means a Class Member who has submitted a timely and valid request for exclusion from the Settlement Class pursuant to the opt-out procedure adopted by the Court. 15. Participating Class Member means every entity and person falling within the definition of the Settlement Class defined herein that is not an Opt-Out (i.e., has not made a timely and valid request for exclusion from the Settlement Class pursuant to the opt-out procedure approved by the Court). 16. Releasees shall refer jointly and severally, individually and collectively to CHG, and its past, present and future parents, subsidiaries, divisions, affiliates, stockholders, investors, equity holders (and their parent entities, owners, members, officers, and advisors), investors, and each and any of its past, present, and future respective members, officers, directors, insurers, general or limited partners, employees, agents, legal representatives (and the predecessors, heirs, attorneys and executors, administrators, successors and assigns of any of the foregoing). Notwithstanding the foregoing, Releasees does not include (i) any Defendant formerly or currently named in the Action, other than CHG and those others included in the definition of Releasees above; (ii) any Defendant (other than CHG and those others included in the definition of Releasees) subsequently added or joined in the Action; or (iii) any other coconspirator of Defendants in the Action (other than CHG and those others included in the definition of Releasees). 17. Releasors shall refer jointly and severally, individually and collectively, to each and every Plaintiff and Participating Class Member, including any of his, her or its past, present or future parents, subsidiaries, divisions, affiliates, stockholders, and each and any of their respective past, present, and future stockholders, officers, directors, insurers, general or limited partners, agents, attorneys, employees, legal representatives, trustees, associates, heirs, executors, 6

105 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 77 of of 841 of 4142 administrators, purchasers, predecessors, successors and assigns, acting in their capacity as such, and anyone claiming by or through them. 18. Cash Settlement Amount means eight hundred thousand dollars ($800,000). 19. Settlement Rebate means rebates discussed and defined in section F. 20. Settlement Class means: All persons and entities that purchased Food Service Equipment within the United States, directly from Defendants in the Class Action or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 21. Settlement Fund means the Cash Settlement Amount and any interest earned on that amount. 22. Taxes mean any sums due to be paid to governmental taxing authorities from, or as a consequence of, the Cash Settlement Amount, payment for attorneys fees, and payment for notice and administration costs, including taxes, estimated taxes, interest and penalties. 23. Tax Expenses mean any and all reasonable fees and costs due to be paid to tax preparers, tax consultants or others for determining the tax liability of the Cash Settlement Amount, payment for attorneys fees, and payment for notice and administration costs and otherwise assisting Class Counsel in carrying out their responsibilities under this Settlement Agreement. B. Stipulation to Class Certification 24. The Parties hereby stipulate for the purposes of this Settlement Agreement that the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this case, 7

106 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page 88 of of 941 of 4142 and, subject to Court approval, the following Settlement Class shall be certified for settlement purposes as to the Releasees: All persons and entities that purchased Food Service Equipment within the United States, directly from CHG or any of its affiliates, Defendants or any of their affiliates, or from any alleged coconspirators or any of their affiliates, during the period from February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 25. The Parties agreement as to certification of the Settlement Class is only for purposes of effectuating the Settlement and for no other purpose. The Parties retain all of their respective objections, arguments and/or defenses with respect to class certification if the Settlement Agreement is rescinded or otherwise does not receive Final Approval as defined herein. The Parties acknowledge that there has been no stipulation to a class or certification of a class for any purposes other than effectuating the Settlement Agreement, and that if the Settlement Agreement does not receive Final Approval as defined herein, this agreement as to certification of the Settlement Class becomes null and void ab initio and no Party may cite to this Settlement Agreement or certification of the Settlement Class in support of an argument for certifying a class. C. Approval of this Settlement Agreement and Dismissal of Claims 26. Plaintiffs, Class Counsel, and CHG and its counsel agree to use their reasonable best efforts to effectuate this Settlement Agreement, including but not limited to cooperating in promptly seeking both preliminary and final approval of this Settlement Agreement (including the giving of class notice under Federal Rules of Civil Procedure 23(c) and (e) to secure 8

107 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 02/03/11 05/09/11 01/10/13 Page 99 of 10 of of 42 certification of the Settlement Class), and the prompt, complete, and final dismissal with prejudice of the Action as to all Releasees. 27. Within thirty (30) days of the Execution Date of this Settlement Agreement, Plaintiffs shall submit to the Court a motion, to be joined in by CHG, for preliminary approval of this Settlement Agreement, for authorization to disseminate notice to the Settlement Class, and for a stay of all proceedings against the Releasees in the Class Action or in any action asserting claims based on the facts alleged in the Action brought by or on behalf of any members of the proposed Settlement Class (the Motion ). The Motion shall include: (a) the definition of the Settlement Class to be certified by the Court pursuant to this Settlement Agreement; (b) the proposed form of, method for, and date of dissemination of notice to the Settlement Class; (c) a proposed form of preliminary approval order; and (d) a proposed form of final judgment order. 28. Within ten (10) days of the filing of the Motion, Class Counsel shall, on behalf of all Parties to this Settlement Agreement, notify federal and state officials as specified in 28 U.S.C. 1715(a) & (b). 29. Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in accordance with Fed. R. Civ. P. 23 and the Court s order, provide Settlement Class Members who have been identified by reasonable means with notice by first class mail of the Settlement Agreement and the date of the hearing scheduled by the Court to consider the fairness, adequacy, and reasonableness of the proposed Settlement Agreement (the Settlement Hearing ). Individual notice of the settlement shall be mailed to persons and entities who have been identified by CHG, and any other entity identified by Defendants, whether provided voluntarily or ordered by a Court, as direct purchasers of Food Service Equipment in the United States from CHG or any of its affiliates, from Defendants in the Class Action, or from any alleged co- 9

108 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 11 of 41 of 4142 conspirators from February 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action, and notice of the settlement shall be published once in accord with the notice plan described in the motion for preliminary approval. The failure of any Class Member to receive notice or any other document as described in this Settlement Agreement shall not be a basis for invalidating this Settlement Agreement or any order entered pursuant thereto, and the Settlement Agreement, Release, and covenants not to sue shall nevertheless be binding and the final judgment approving the Settlement Agreement effective, in accordance with their terms. 30. Class Counsel shall promptly submit a motion for final approval of the Settlement Agreement by the Court after notice is given to the members of the Settlement Class of the Settlement Hearing. If the Court approves the Settlement Agreement, Class Counsel shall seek entry of an order and final judgment, which includes the following findings and orders: a) Approving finally this Settlement Agreement and its terms as a fair, reasonable, and adequate settlement as to the Participating Class Members within the meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its consummation according to its terms; b) Ordering that, as to the Releasees, the Action be dismissed with prejudice and, except as specifically provided for in this Settlement Agreement, without costs; c) Discharging and releasing the Releasees from all Released Claims, in conformance with this Settlement Agreement; d) Reserving exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this settlement; e) Determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to the Releasees shall be final and entered forthwith; and f) Requiring Class Counsel to file with the Clerk of the Court a record of Opt-Outs, and to provide a copy of the record to counsel for CHG. 10

109 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 12 of 41 of This Settlement Agreement shall become final and shall be deemed to have received final approval ( Final Approval ) on the date that: (a) the Court has entered a final order approving this Settlement Agreement under Rule 23(e) of the Federal Rules of Civil Procedure and a final judgment dismissing the Action as against CHG and the Releasees with prejudice as to all Participating Class Members and without costs; and (b) the time for appeal or to seek permission to appeal from the Court s approval of this Settlement Agreement and entry of a final judgment as described in clause (a) above has expired or, if appealed, approval of this Settlement Agreement and the final judgment has been affirmed in its entirety by the court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review (the Effective Date ). The Parties agree that neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651, shall be taken into account in determining the time of finality of the judgment. On the Execution Date of this Settlement Agreement, the Parties shall be bound by its terms, and this Settlement Agreement shall not be rescinded unless in accordance with terms provided herein. Appeals relating solely to attorneys fees, costs and/or the plan of distribution shall not delay the Final Approval of this Settlement Agreement and shall not delay the entry of final judgment, or the finality of the judgment, as to the claims against any of the Releasees. In the event that Final Approval is not received, this Settlement Agreement becomes null and void, and any and all funds in the Settlement Fund shall be returned to CHG in accordance with the terms below. 32. The Parties acknowledge that CHG is entering into this Settlement Agreement to eliminate the uncertainty, burden, and expense of litigation without any presumption or inference of admission of liability or wrongdoing or bad faith on the part of the Releasees, or without any inference of admission of any impact, losses, or damages to Plaintiffs or to the Settlement Class. 11

110 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 13 of 41 of 4142 The terms of this Settlement Agreement, the negotiations leading up to this Settlement Agreement, performance in accordance with this Settlement Agreement, and the data, documents, or information exchanged between the Parties in connection with, or pursuant to, this Settlement Agreement, may not be offered, taken, construed, or introduced as evidence of liability or as an admission or statement of wrongdoing by the Releasees, either in this Class Action, or in any pending or future civil or criminal proceeding in any court of law or equity or before any government, administrative, or regulatory agency or other tribunal in the United States or elsewhere in the world, except in a proceeding to enforce this Settlement Agreement or to defend against the assertion of the claims in this Class Action or as otherwise required by law. D. Release and Discharge 33. Upon the occurrence of the Final Approval, and in consideration of payment of the Cash Settlement Amount and the offering of the Settlement Rebates, as specified in Sections E and F of this Settlement Agreement, and for other valuable consideration recited herein, including the provisions addressing cooperation with Plaintiffs, the Releasees shall be completely released, acquitted, and forever discharged to the fullest extent permitted by law from and against any and all claims, demands, actions, suits, and causes of action, whether class, individual, or otherwise in nature, damages of any nature whatsoever, liabilities of any nature whatsoever, including costs, expenses, penalties and attorneys fees, that Releasors, or anyone of them, whether directly, indirectly, derivatively, or in any capacity whatsoever, ever had, now has, or hereafter can, shall, or may have against the Releasees, whether known or unknown, suspected or unsuspected, in law or equity, relating in any way to or on account of or arising out of the facts, occurrences, transactions, or other matters alleged in the Complaint in the Action, or contained in complaints containing the same or similar allegations of conspiracy or collusion or aiding and abetting or other wrongful conduct between or among Defendants or CHG or any co- 12

111 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 14 of 41 of 4142 conspirators, including any conduct that could have been alleged in this Action based on conduct or events from the beginning of time through the Effective Date of this Settlement Agreement, with respect to the product and geographic markets in the Action, which arise under any federal, state, or common law or the law of any nation or domestic or foreign or governmental entity, including antitrust, unfair competition, unfair practices, price discrimination, unitary pricing, trade practice, unjust enrichment, or civil conspiracy law, including, without limitation, the Sherman Antitrust Act, 15 U.S.C. 1 et seq. (all of the foregoing collectively the Released Claims ). 34. Each Releasor waives California Civil Code Section 1542 and similar provisions in other states. Each Releasor hereby certifies that he, she, or it is aware of and has read and reviewed the following provision of California Civil Code Section 1542 ( Section 1542 ): A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The provisions of the release set forth above shall apply according to their terms, regardless of the provisions of Section 1542 or any equivalent, similar, or comparable present or future law or principle of law of any jurisdiction. Each Releasor may hereafter discover facts other than or different from those which he, she, or it knows or believes to be true with respect to the claims that are the subject matter of this Settlement Agreement, but each Releasor hereby expressly and fully, finally and forever waives and relinquishes, and forever settles and releases any known or unknown, suspected or unsuspected, contingent or non-contingent, claim whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts, as well as any and all rights and benefits existing under (i) Section 1542 or any equivalent, similar or 13

112 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 15 of 41 of 4142 comparable present or future law or principle of law of any jurisdiction and (ii) any law or principle of law of any jurisdiction that would limit or restrict the effect or scope of the provisions of the release set forth above, without regard to the subsequent discovery or existence of such other or different facts. 35. This Settlement Agreement is intended to fully and finally release all claims against the Releasees that have been brought or could have been brought by the Settlement Class. Each Releasor hereby covenants and agrees that he, she, or it shall not sue or otherwise seek to establish or impose liability against any Releasee based, in whole or in part, on any of the Released Claims. Nothing herein shall be construed to release any claims relating to geographic markets outside the United States or product markets not at issue in this Action; however Releasees do not agree or admit, and nothing in this Settlement Agreement establishes, implies, or can be used to suggest, that Plaintiffs, the Class Members, or any other persons or entities have any valid claims against the Releasees. The release and discharge set forth in Paragraphs 33 through 35 herein do not include claims relating solely to payment disputes, physical harm, defective product, breach of contract, or bodily injury (the Excepted Claims ). 36. The Releasors shall not, after the Execution Date of this Settlement Agreement, seek to recover against any of the Releasees for any of the Released Claims. E. Cash Settlement 37. CHG shall pay or cause to be paid the Cash Settlement Amount of $800,000 in settlement of the Action. The Cash Settlement Amount is the total and exclusive amount that CHG will pay under this Settlement Agreement for the benefit of the Released Claims, including without limitation funds to satisfy claims by any Participating Class Member, attorneys fees and costs, any Court-approved incentive awards to the Class Representative(s), payment of any and 14

113 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 16 of 41 of 4142 all estimated taxes, taxes, tax preparations fees, and payment of any and all administrative and notice expenses associated with the Action or this Settlement Agreement. 38. CHG shall pay the Cash Settlement Amount in two installments. The first installment, for $400,000, shall be wire transferred by CHG or its designee within ten (10) business days of the preliminary approval of the Settlement Agreement by the Court (the First Settlement Installment ). The First Settlement Installment shall be paid into an escrow account at identified by Class Counsel (the Escrow Account ) and administered in accordance with the provisions of this Settlement Agreement. CHG or its designee shall wire transfer the second installment of the Cash Settlement Amount, for $400,000, (the Second Settlement Installment ) to the Escrow Account ten (10) days after the one-year anniversary of payment of the First Settlement Installment into the Escrow Account, unless such date falls on a weekend or bank holiday, in which case CHG shall wire the Second Settlement Installment on the first day American banks are open for business following thirty (30) days after the one-year anniversary of payment of the First Settlement Installment into the Escrow Account. CHG shall not make any contributions to the Settlement Fund other than the First Settlement Installment and the Second Settlement Installment. The Escrow Account shall be established by Class Counsel for the benefit of Participating Class Members and all expenses associated with the Escrow Account shall be the sole responsibility of Class Counsel. Interest earned by the Settlement Fund shall be for the benefit of the Participating Class Members. F. The Settlement Rebate 39. As further consideration for this settlement, CHG shall offer to all Participating Class Members a 2.75% rebate off the purchase price for all purchases of Food Service Equipment from CHG made in the U.S. during the twenty four (24) month period starting the first day of the month most immediately following the month in which Final Approval occurs 15

114 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 17 of 41 of 4142 (the Settlement Rebate ). The Settlement Rebate will be earned upon each eligible customer purchase. If annual purchases during this 24-month period were to occur at the level of annual sales of Food Service Equipment conservatively projected by CHG for 2011 and 2012, the total Settlement Rebate would represent an approximate value of $1,708,500 over the 24-month period. G. Most Favored Nation 40. Plaintiffs and Class Counsel agree to use their best efforts to ensure that they do not settle with any Defendant that executes a settlement agreement with Plaintiffs or the Class after the date of the execution of this Settlement Agreement at a value lower than the value of this Settlement Agreement. The value of CHG s settlement compared to that of any other Defendant will be calculated as follows. CHG s total settlement value for comparison purposes shall be $2,508,500 ( CHG Settlement Value ). A settling Defendant s settlement value shall be calculated by (1) calculating the cash value of any non-cash settlement terms, including any rebates, discounts, or other non-cash price relief, had those terms applied to that settling Defendant s 2009 sales of Food Service Equipment, and (2) then adding that total to all cash paid or to be paid by the settling Defendant in conjunction with the settlement (in total, the Defendant Settlement Value. ) 41. Plaintiffs and Class Counsel shall notify CHG of the full terms and conditions of any such settlement(s) with any other Defendants within ten (10) days after any such settlement is entered so that CHG shall have reasonable time to review the settlement. CHG shall have ten (10) days after receiving such notice to notify plaintiffs in writing if CHG contends that Plaintiffs and Class Counsel have failed to use best efforts, as required by the preceding paragraph, in reaching a settlement with such other Defendants. 16

115 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 18 of 41 of 4142 H. The Settlement Fund 42. CHG and the Releasees shall have no liability or responsibility for disbursements from, or administration of, the Settlement Fund. CHG and the Releasees shall not be liable for any costs or attorneys fees of Plaintiffs or the Participating Class Members, including but not limited to costs or expenses of Plaintiffs counsel, experts, consultants, agents or representatives. Such costs and attorneys fees as approved by the Court shall be paid out of the Settlement Fund. CHG and the Releasees further shall not be liable for any of the expenses of notice to the Class or administration of the Settlement Fund, except that all such expenses shall be paid out of the Settlement Fund. 43. Class Counsel may at an appropriate time, determined in their sole discretion, submit a motion seeking approval of the payment of attorneys fees and expenses from the Settlemetn Fund. CHG shall have no obligation to pay any amount of Class Counsel s attorneys fees or the costs or expenses of litigation for the Settlement Class. 44. Subject to Court approval, Plaintiffs and Class Counsel shall be reimbursed and paid solely out of the Settlement Fund for all expenses including, but not limited to, attorneys fees and past, current, or future litigation expenses. Attorney s fees and expenses awarded by the Court shall be payable from the Settlement Fund upon award, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the settlement or any part thereof, subject to Class Counsel s obligation to make appropriate refunds or repayments to the Settlement Fund, if and when, as a result of any appeal and/or further proceedings on remand, or successful collateral attack, the fee or cost award is reduced or reversed. CHG shall not be liable for any costs, fees, or expenses of any of Plaintiffs respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court may be paid out of the Settlement Fund. In the event that attorneys fees 17

116 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 19 of 41 of 4142 or costs are paid out of the Settlement Fund and Final Approval is not subsequently received, Class Counsel shall reimburse all withdrawn attorneys fees and costs, except for the costs of notice, to the Settlement Fund prior to the return of the Settlement Fund to CHG. 45. Except as provided for herein, CHG and the Releasees agree not to object, subject to an order of the Court in the Action, to the payment to Class Counsel of approved attorneys fees, costs, and expenses out of the Settlement Fund. Disbursement of such fees, costs, and expenses shall not be delayed by reason of any appeal of the Final Judgment in the Action; provided, however, that if the Court s award of fees, costs, and expenses is vacated, reversed, or reduced on or as a result of an appeal, Class Counsel shall within ten (10) business days after receiving written notice from the Court inform CHG of such vacatur, reversal, or reduction, and make a refund to the Escrow Account in the amount of such vacatur, reversal, or reduction. 46. Any Escrow Accounts shall be invested in United States Government Treasury Bills or Notes of no more than six (6) month s duration (provided, however, that such portions of the Settlement Fund as may reasonably be needed to pay current expenses associated with providing notice to the Class, administering the Settlement Fund and the settlement may be deposited in a federally insured bank account in an amount not exceeding $40,000.) Any escrow fees or charges shall be deducted from the Settlement Fund. CHG will not be responsible for any escrow fees or charges incurred beyond its payment of the Cash Settlement Amount. All interest earned on the Settlement Fund shall become and remain part of the Settlement Fund. In the event that Final Approval is not received on the Settlement Agreement or in the event that the Settlement Agreement is rescinded, the Settlement Fund shall be immediately returned, in its entirety, to CHG, including any and all interest that has accrued. 18

117 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 20 of 41 of 4142 I. Cooperation Agreement 47. CHG agrees to use commercially reasonable efforts to provide cooperation (including but not limited to production of documents, witness interviews, depositions and testimony at trial) to Plaintiffs as part of the settlement as set forth in this section. CHG agrees to use commercially reasonable efforts to obtain cooperation from Thomas Carr, including but not limited to production of any documents under his control, an interview, deposition, declaration and/or affidavit, and testimony at trial. All cooperation shall be coordinated to avoid all unnecessary duplication and expense. The terms of CHG s cooperation with Plaintiffs prosecution and of the Action are set forth specifically below. 48. Confidentiality. In connection with its provision of information, testimony, and documents, CHG shall have the right to assert the attorney-client privilege, attorney-work product protection, whether arising under U.S. or foreign law, or applicable privacy laws available under the pertinent foreign law. 49. Plaintiffs and Class Counsel will not use or disclose any information, testimony, or documents provided by CHG for any purpose other than the investigation or prosecution of the claims asserted in the Action. Any materials produced by CHG that are marked Confidential, or any testimony designated Confidential, shall not be disclosed to any persons other than Class Counsel and/or individuals affiliated with CHG, except as follows. To the extent that Class Counsel disclose any such information designated Confidential in the Action to the Court, Class Counsel shall only disclose such information pursuant to the terms of any protective orders entered in the Action, unless otherwise ordered by the Court, and shall file any documents reflecting Confidential information with the Court only under seal, unless first informed by CHG s counsel that filing a particular document under seal is not necessary. Information, testimony, or documents provided by CHG in the United States shall remain in the 19

118 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 21 of 41 of 4142 United States unless Plaintiffs are validly compelled to produce it by a court, tribunal, or governmental entity to a litigation or governmental entity outside the United States or unless Class Counsel share the documents with retained consulting or testifying experts outside the United States who agree in writing to abide by the applicable protective order and terms of this paragraph and not to disclose the information, testimony, or documents outside the scope of their work in this Action. In the event the Plaintiffs are requested to produce such information, Class Counsel shall provide adequate prior notice of at least five (5) business days to CHG and its counsel to permit CHG to object to such production. These confidentiality protections supplement and do not limit or restrict any additional protections afforded by any Protective Orders entered by the Court. 50. The Parties and their counsel further agree that any statements made by CHG s counsel in connection with and/or as part of this settlement shall be protected by Federal Rule of Evidence 408, and shall in no event be discoverable by any Person or treated as evidence of any kind. 51. Interviews. Beginning seven (7) days after Preliminary Approval, CHG shall use commercially reasonable efforts to make available for interviews with Class Counsel and/or experts, upon reasonable notice and at a mutually agreeable date and time, (subject to the qualifications in paragraph 55 below), current and former employees of CHG, to be designated by Class Counsel, who Class Counsel reasonably believe in good faith possess information that may be relevant to Plaintiffs claims as alleged in the Class Action. 1 The number of such interviews will be mutually agreed upon by CHG s counsel and Class Counsel, and shall take place at a location of CHG s choosing. Each party shall be responsible for its own costs of 1 In agreeing to make persons available pursuant to this Settlement Agreement, CHG does not concede that any such person has knowledge that supports Plaintiffs claims. 20

119 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 22 of 41 of 4142 preparing for and conducting the interview, including the costs of its counsel and any individuals affiliated with that party. The substance of the interviews must be relevant to the Claims in the Class Action. Further, CHG and the interviewees do not waive and shall be entitled to assert all testimonial privileges and protections. Such interviews must be conducted within 12 months of the Effective Date of this Agreement, unless good cause is shown. 2 If any person initially refuses to cooperate under this paragraph, CHG shall use commercially reasonable efforts to make such person available for interviews with Class Counsel. Class Counsel acknowledge that such employees or former employees of CHG may be represented by separate counsel and therefore may not be made available to CHG or Class Counsel for this purpose. 52. Declarations and Affidavits. Upon reasonable notice and at a mutually convenient date and time, but no earlier than seven (7) days after Final Approval, CHG shall use commercially reasonable efforts to make available to Class Counsel (subject to the qualifications in paragraph 55 below), current and former employees of CHG that Class Counsel have a goodfaith reason to believe may provide declarations or affidavits reasonably necessary to the prosecution of the Action. Any such meeting will take place at a location of CHG s choosing, and shall be conducted for the purpose of preparing such affidavits or declarations. The content of the affidavit or declaration must be relevant to the Claims in the Class Action and shall be such that the declarant or affiant is willing to sign under penalty of perjury. Further, CHG and the declarant or affiant do not waive and shall be entitled to assert all testimonial privileges and protections. Such declarations or affidavits must be prepared and executed within 12 months of the Effective Date of this Agreement, unless good cause is shown. 3 Class Counsel acknowledge 2 Any unresolved disputes shall be resolved by the Court as to what constitutes good cause. 3 Any unresolved disputes shall be resolved by the Court as to what constitutes good cause. 21

120 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 23 of 41 of 4142 that such employees or former employees of CHG may be represented by separate counsel and therefore may not be made available to CHG for this purpose. 53. Depositions. Following the Final Approval of this Settlement Agreement, and upon reasonable notice by Class Counsel, upon reasonable notice and at a mutually agreeable date and time, CHG shall use commercially reasonable efforts to make available (subject to the qualifications in paragraph 55 below) current and former employees of CHG for depositions provided that Class Counsel has a good-faith reason to believe that such depositions are reasonably necessary for the prosecution of the Class Action. Such depositions shall take place at a location of CHG s choosing. Each party shall be responsible for its own costs of preparing for and conducting the deposition, including the costs of its counsel and any individuals affiliated with that party. The number of depositions under this paragraph shall be mutually agreed upon between CHG s Counsel and Class Counsel. If any person initially refuses to cooperate under this paragraph, CHG shall use commercially reasonable efforts to make such person available for deposition. Class Counsel acknowledges that such employees or former employees of CHG may be represented by separate counsel and therefore may not be made available to CHG or Class Counsel for this purpose. Depositions shall be designated as confidential. 54. Testimony at Trial. Upon reasonable notice, and upon consultation with counsel for CHG, CHG shall use commercially reasonable efforts to request to be available for trial testimony in the United States, at the Settlement Class s expense, (subject to the qualifications in paragraph 55 below), current and former employees of CHG who possess information that Class Counsel or CHG believe in good faith would reasonably assist Plaintiffs in prosecution of the Class Action. If any person initially refuses to cooperate under this paragraph, CHG shall use commercially reasonable efforts to make such person available for testimony at trial. Class 22

121 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 24 of 41 of 4142 Counsel acknowledges that such employees or former employees of CHG may be represented by separate counsel and therefore may not be made available to CHG or Class Counsel for this purpose. 55. Efforts as to Former Employees. With respect to all former employees, CHG shall use commercially reasonable efforts to request in good faith that such former employees appear for interviews, depositions, and trial testimony, and to provide declarations or affidavits as set out in the preceding subparagraphs, and CHG shall have no further obligations with respect to securing the person s cooperation or appearance. 56. Production of Documents. Upon Plaintiffs request, CHG agrees to use commercially reasonable efforts to provide full cooperation with Class Counsel with respect to discovery and gathering evidentiary materials relating to Plaintiffs claims in this Action. However, Plaintiffs agree to not use the documents publicly until Preliminary Approval of this Settlement Agreement is granted. In the event that Final Approval is not received, Plaintiffs agree to return all gathered materials provided by CHG to CHG pursuant to this agreement, and not to further use those materials for any purpose, except to the extent such materials were already relied upon in the Class Action. CHG s cooperation under this paragraph includes but not limited to the production of the following categories of documents, to the extent such documents exist and are in its possession, custody, or control: (i) transaction data in electronic format sufficient to show all of the CHG s sales of Food Service Equipment in the United States during the Class Period, to the extent that information has not been previously produced to Plaintiffs; (ii) documents relating to or reflecting actual or potential communications between CHG and one or more Defendants regarding pricing, bidding, or markets for purchases in the United States; (iii) copies of Documents provided to the United States Department of Justice or 23

122 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 25 of 41 of 4142 any other Governmental Entity investigating alleged antitrust violations in the Food Service Equipment industry relevant to Plaintiffs claims as alleged in the Action; (iv) upon reasonable and specific requests, and within a reasonable time frame, any other documents relevant to Plaintiffs claims as alleged in the Class Action, to the extent such documents have not already been produced. If any document protected by the attorney-client privilege or work product doctrine is accidentally or inadvertently produced, the Document shall promptly be returned to CHG, and its production shall in no way be construed to have waived any privilege or protection attached to such Document. 57. Authentication of Documents. After Final Approval, CHG agrees to use commercially reasonable efforts to produce at trial or deposition, or through affidavits or declarations, at CHG s option, qualified representatives of their choice to authenticate CHG s documents produced in the Class Action, and if applicable, to provide the testimony reasonably necessary to lay the foundation for the admission of the documents as a business record. 58. Scope of Discovery. Plaintiffs acknowledge that this Class Action is limited to sales in the United States, and will not request interviews, testimony, documents, or other evidence relating to sales or alleged conduct affecting or occurring in markets outside the United States. 59. Nothing in this Settlement Agreement, including the cooperation provisions under Section I, shall be deemed a waiver by CHG of any privilege (including the attorney-client privilege) or protection (including the work product doctrine or any confidentiality agreement), and CHG shall be entitled to assert those privileges and protections notwithstanding this Settlement Agreement. 24

123 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 26 of 41 of Nothing in this Settlement Agreement, including the cooperation provisions under Section I, shall constitute a representation or agreement to provide information, documents, or testimony that is not completely truthful and accurate. Further, nothing in this Settlement Agreement, including the cooperation provisions under Section I, shall constitute an agreement to provide any particular substantive testimony (by declaration or otherwise), whether favorable or unfavorable to any party in the Class Action, other than truthful testimony on topics that that in Class Counsel s good faith view are reasonably relevant to the Claims in the Class Action. 61. Nothing in this Settlement Agreement shall be construed to require CHG to commit any act, including the transmittal or disclosure of any information, which would violate any law protecting the privacy of personal information about any individual employed or formerly employed by CHG. 62. If the Settlement Agreement is rescinded, terminated, or otherwise becomes ineffective or void, at any time subsequent to the Effective Date, Plaintiffs shall, if requested by CHG, return to the CHG or destroy, and provide CHG with a written certification by Class Counsel of such destruction, all Documents or other materials provided to the Plaintiffs, the Class or Class Counsel by CHG pursuant to the cooperation provisions of this Settlement Agreement. J. Taxes 63. Class Counsel shall be solely responsible for filing all informational and other tax returns necessary to report any net taxable income earned by the Settlement Fund and shall file all informational and other tax returns necessary to report any income earned by the Settlement Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally required, any tax payments, including interest and penalties due on income earned by the Settlement Fund. All taxes (including any interest and penalties) due with respect to the income 25

124 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 27 of 41 of 4142 earned by the Settlement Fund shall be paid from the Settlement Fund. CHG shall have no responsibility to make any filings relating to the Settlement Fund and will have to responsibility to pay tax on any income earned by the Settlement Fund or to pay any taxes on the Settlement Fund unless the settlement is not consummated, and the Settlement Fund is returned to CHG. In the event the settlement is not consummated and the Settlement Fund is returned to CHG, CHG shall be responsible for the payment of all taxes (including any interest or penalties), if any, of on said income. 64. The Parties to this Settlement Agreement and their counsel shall treat, and shall cause the Claims Administrator to treat, the Escrow Accounts as being at all times a qualified settlement fund within the meaning of Treas. Reg B 1. The Parties, their counsel, the Claims Administrator, and the Escrow Agent agree that they will not ask the Court to take any action inconsistent with the treatment of the Escrow Accounts in such manner. In addition, the Claims Administrator and, as required, the Parties shall timely make such elections as necessary or advisable to carry out the provisions of this paragraph, including the relation-back election (as defined in Treas. Reg B l(j)) back to the earliest permitted date. Such elections shall be made in compliance with the procedures and requirements contained in such regulations. It shall be the responsibility of the Claims Administrator timely and properly to prepare and deliver the necessary documentation for signature by all necessary parties and thereafter to cause the appropriate filing to occur. All provisions of this Settlement Agreement shall be interpreted in a manner that is consistent with the Escrow Accounts being a qualified settlement fund within the meaning of Treas. Reg B 1. K. Miscellaneous 65. This Settlement Agreement does not settle or compromise any claim by Plaintiffs or any Class Member against any Defendant or alleged co-conspirator or any other person or 26

125 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 28 of 41 of 4142 entity other than the Releasees. All rights of any Class Member against a Defendant or coconspirator or any other person or entity other than the Releasees are specifically reserved by Plaintiffs and the Class Members. 66. Plaintiffs and CHG agree that persons or entities that exercised their opportunity to opt-out of the Settlement Class and do not elect to be bound by the terms of this Settlement Agreement in accordance with the Court s opt-out procedure are not entitled to the benefits and relief of this Settlement Agreement, including receipt of any portion of the Cash Settlement Amount and the Settlement Rebate. 67. Class Counsel and Plaintiffs shall not assist any person or entity that timely opted out of the Settlement Class, or their counsel, in any way in litigation or preparation for litigation concerning the subject matter of the Class Action. 68. Class Counsel and Plaintiffs agree that immediately following the Execution Date, CHG and their counsel may contact and communicate directly or indirectly with, in person or otherwise at CHG s discretion, any members of the putative Settlement Class for the purpose of describing and explaining the Settlement Agreement and the basis for the Settlement Agreement. Class Counsel agree to make themselves available on reasonable notice to participate in any such contact or communication, if requested to do so by CHG. 69. CHG and Plaintiffs expressly reserve all of their respective rights and positions in the Class Action, without prejudice, to the extent that the Settlement Agreement does not receive Final Approval from the Court or, if appealed, from the Appellate Court or if the Settlement Agreement is rescinded by any party to this Settlement Agreement or otherwise becomes null and void. 27

126 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 29 of 41 of For the purpose of construing or interpreting this Settlement Agreement, Plaintiffs and CHG agree that it is to be deemed to have been drafted equally by all parties hereto and shall not be construed strictly for or against any party. 71. Should any of the Cash Settlement Amount remain in the Settlement Fund after the distribution of all payments to Participating Class Members and the distribution of other funds as authorized by the Court, including the distribution of funds to Plaintiffs Counsel but excluding any cy pres award, all such remaining funds shall be returned to CHG within thirty (30) days of final distribution of all other funds. Plaintiffs agree not to seek cy pres or fluid distribution of any portion of the Settlement Fund. 72. This Settlement Agreement shall constitute the entire agreement between Plaintiffs and CHG pertaining to the settlement of the Class Action with regard to the Releasees and supersedes any and all prior and contemporaneous undertakings of Plaintiffs and CHG in connection therewith. 73. All terms of the Settlement Agreement are contractual and not mere recitals. This Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of Releasors and Releasees. Without limiting the generality of the foregoing each and every covenant and agreement made herein by Plaintiffs shall be binding upon all Participating Class Members and Releasors. 74. Nothing expressed or implied in this Settlement Agreement is intended to or shall be construed to confer upon or give any person or entity other than Plaintiffs, Participating Class Members, CHG, Releasors, and Releasees any right or remedy under or by reason of this Settlement Agreement. 28

127 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 30 of 41 of This Settlement Agreement may be modified or amended only by a writing jointly executed by Class Counsel and counsel for CHG, subject (if after preliminary or final approval by any court) to approval by the Court. Amendments and modifications may be made without notice to the Settlement Class unless notice is required by law or by the Court. 76. All terms of this Settlement Agreement shall be governed by and interpreted according to the substantive laws of the State of Georgia without regard to its choice of law or conflict of law principles. 77. CHG, the Releasors, and each Participating Class Member hereby irrevocably submit to the exclusive jurisdiction of the Court for any suit, action, proceeding or dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement Agreement. Nothing herein shall be construed as a submission to jurisdiction for any purpose other than enforcement of the Settlement Agreement. 78. Any disputes between or among CHG and any Participating Class Member or Settlement Class Members concerning matters contained in this Settlement Agreement shall, if they cannot be resolved by negotiation and agreement, be submitted to the Court. The Court shall retain jurisdiction over the implementation and enforcement of this Settlement Agreement. 79. The headings used in this Settlement Agreement are intended for convenience of the reader only and shall not affect the meaning or interpretation of this Settlement Agreement. 80. This Settlement Agreement contains an entire, complete and integrated statement of each and every term and provision agreed to by and among the parties, and it is not subject to any condition not provided for herein. 29

128 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 31 of 41 of This Settlement Agreement may be executed in counterparts by Class Counsel, CHG and its counsel, and a facsimile or pdf signature shall be deemed an original signature for purposes of executing this Settlement Agreement. 82. Each of the undersigned attorneys and parties represents that they are fully authorized to enter into the terms and conditions of, and to execute, this Settlement Agreement, subject to Court approval; and the undersigned Plaintiffs counsel represents that they are authorized to execute this Settlement Agreement on behalf of Plaintiffs and the Settlement Class. All of the undersigned attorneys shall use their best efforts to effectuate this Settlement Agreement. The Settlement Agreement shall be deemed executed on the date of signature for Class Counsel and counsel for CHG. 83. Where this Settlement Agreement requires any party to provide notice or any other communication or document to any other party, such notice, communication, or document shall be provided letter transmitted by facsimile or by overnight delivery at the address(es) reflected on the signature pages. 30

129 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 32 of 41 of 4142 Dated: September 17, 2010 }~7~ WIlliam P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 Northside Parkway Atlanta, GA Tel: (404) Fax: (404) ~~~ Ryan Kriger LABATON SUCHAROW LLP 140 Broadway New York, NY Tel: (212) Fax: (212) K Street, NW Suite 650 Washington, D.C mhausfeld@hausfeldllp.com mjones@hausfeldllp.com Co-Counsel for the Settlement Class 31

130 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 33 of 41 of 4142 James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL Tel: (312) Fax: (312) j Counsel for Component Hardware Group, Inc. 31

131 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 34 of 41 of 4142 CONFIDENTIAL SETTLEMENT MATERIALS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE FOOD SERVICE EQUIPMENT HARDWARE ANTITRUST LITIGATION Master Consolidated Case File No.1: 1 O-cv-1849-WSD THIS DOCUMENT RELATES TO: DIRECT PURCHASER ACTIONS SETTLEMENT AGREEMENT ADDENDUM WHEREAS, on September 17, 2010, putative plaintiff class representative in the abovecaptioned litigation Kohlder Manufacturing Co., Inc., ("Kohlder") individually and on behalf of the Participating Class Members of the Settlement Class, did enter into a settlement agreement ("Settlement Agreement") with Component Hardware Group, Inc. ("CHG"); WHEREAS, QualServ Corporation ("QuaIServ"), an additional putative plaintiff class representative in the above-captioned litigation, has reviewed the Settlement Agreement and, having conferred with its counsel, hereby agrees to all of the terms and provisions thereof, which agreement is reflected by its signature below; ACCORDINGL Y, IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED, pursuant to paragraph 75 of the Settlement Agreement, by and among counsel for Kohlder, QualServ, and CHG (the "Settling Parties") herein, that the Settlement Agreement is amended as follows: 1. The introductory paragraph is amended to state, in relevant pait: "This Settlement Agreement ("Settlement Agreement") is made and entered into this 5th day of October by and

132 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 35 of 41 of 4142 between the following "Parties": Component Hardware Group, Inc. ("CHG") and putative plain!~ff.(jass representative~ Kohlder Manufacturing Co., Inc. and OualServ Corporation on behalf of themselves and the Participating Class Members of the Settlement Class (as defined herein) ("Plaintiffs") as purchaser~ of Food Service Equipment (as defined herein) in the United States from CHG (or any of its subsidiaries or affiliates) or any Defendant or alleged coconspirators named or that may be named in the Consolidated Class Action Complaint filed on September 17, 2010, for the period from FeblUary 1, 2004 through February 11, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action:" 2. The Settlement Agreement, as amended herein, remains in full force and effect. 3. Capitalized terms used herein, but not otherwise defined, have the meaning assigned to them in the Settlement Agreement Dated: October~, 2010 Wil iam P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 NOlihside Parkway Atlanta, GA Tel: (404) Fax: (404)

133 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 36 of 41 of Broadway New York, NY Tel: (212) Fax: (212) K Street, NW Suite 650 Washington, D.C mhausfeld@hausfeldllp.com mjones@hausfeldllp.com Co-Counseljor the Settlement Class 3

134 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 37 of 41 of 4142 Dated: October S, 2010 ~~-n) Frank M. Lowrey IV Georgia Bar No BONDURANT, MIXSON & ELMORE LLP 1201 West Peachtree Street, N. W One Atlantic Center Atlanta, Georgia Tel: (404) James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL Tel: (312) Fax: (312) j Counsel Jor Component Hardware Group, Inc v2 [1015/201015:\3] 4

135 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 38 of 41 of 4142 CONFIDENTIAL SETTLEMENT MATERIALS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA A TLANT A DIVISION IN RE FOOD SERVICE EQUIPMENT HARDWARE ANTITRUST LITIGATION Master Consolidated Case File No.l:10-cv-1849-WSD THIS DOCUMENT RELATES TO: DIRECT PURCHASER ACTIONS SETTLEMENT AGREEMENT SECOND ADDENDUM Pursuant to paragraph 75 of the Settlement Agreement entered into on September 17, 2010 and amended in an Addendum signed October 4, 2010 between putative plaintiff class representatives Kohlder Manufacturing Co., Inc. and QualServ Corporation, individually and on behalf of the Participating Class Members of the Settlement Class, and Component Hardware Group, Inc., IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED that the Settlement Agreement is further amended as follows: I. This Settlement Agreement ("Settlement Agreement") is made and entered into this 5th day of October by and between the following "Parties": Component Hardware Group, Inc. ("CHG") and putative plaintiff class representative Kohlder Manufacturing Co., Inc. and QualServ Corporation on behalf of themselves and the Participating Class Members of the Settlement Class (as defined herein) ("Plaintiffs") as a purchasers of Food Service Equipment (as defined herein) in the United States from CHG (or any of its subsidiaries or affiliates) or any

136 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 39 of 41 of 4142 Defendant or alleged co-conspirators named or that may be named in the Consolidated Class Action Complaint filed on September 17,2010, for the period from February 1,2004 through February 11, 2009 or SUCH later date through \\<ilich the aftticompetitive effeots of the conspiracy continued, as may be determined in the Class Action:. 2. Paragraph 7 is amended to state: "Class Period" means the period from and including February 1, 2004 up to and including February 11, ' such later date through which the amicompetitive effects of the conspiracy continued, as may be determined in the Class Action. 3. Paragraph 13 is amended to state: "Food Service Equipment" means any type of food service equipment component hardware products as defined by paragraph 17 of the consolidated complaint filed on September 17,2010, sold by Defendants in the Class Aetion, or any alleged co-conspirators from February 1, 2004, through February 11, 2009 or such later date through WHich the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action, excluding oven canopy hoods and any plumbing product. 4. Paragraph 20 is amended to state: "Settlement Class" means: All persons and entities that purchased Food Service Equipment within the United States, directly from Defendants in the Class Action or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February 1, 2004 through February 11, 2009 or SUCH later date through vihich the anti competitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 2

137 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 40 of 41 of Paragraph 24 is amended to state: The Parties hereby stipulate for the purposes of this Settlement Agreement that the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this case, and, subject to Court approval, the following Settlement Class shall be certified for settlement purposes as to the Releasees: All persons and entities that purchased Food Service Equipment within the United States, directly from CHG or any of its affiliates, Defendants or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February I, 2004 through February I I, 2009 or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 6. Paragraph 29 is amended to state: Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in accordance with Fed. R. Civ. P. 23 and the Court's order, provide Settlement Class Members who have been identified by reasonable means with notice by first class mail of the Settlement Agreement and the date of the hearing scheduled by the Court to consider the fairness, adequacy, and reasonableness of the proposed Settlement Agreement (the "Settlement Hearing"). Individual notice of the settlement shall be mailed to persons and entities who have been identified by CHG, and any other entity identified by Defendants, whether provided voluntarily or ordered by a Court, as direct purchasers of Food Service Equipment in the United States from CHG or any of its affiliates, from Defendants in the Class Action, or from any alleged coconspirators from February I, 2004 through February I I, f-ffiIch later date through which the anti competitive effects of the conspiracy continued, as may be determined in the Class Action, and notice of the settlement shall be published once in accord with the notice plan described in the motion for preliminary approval. The failure of any Class Member to receive notice or any other document as described in this Settlement Agreement shall not be a basis for 3

138 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 41 of 41 of 4142 invalidating this Settlement Agreement or any order entered pursuant thereto, and the Settlement Agreement, Release, and covenants not to sue shall nevertheless be binding and the final judgment approving the Settlement Agreement effective, in accordance with their terms. 7. The Settlement Agreement, as amended herein, remains in full force and effect. 8. Capitalized terms used herein, but not otherwise defined, have the meaning assigned to them in the Settlement Agreement. Dated: February 3, 2011 ktl~g\ Q ('O... ~C.o'\ l-t "::J William P. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 NOIthside Parkway Atlanta, GA Tel: (404) Fax: (404) pcarr@carrpalmer.com 4v=tiJ d~c41\kl/l Hollis Salzman LABATON SUCHAROW LLP 140 Broadway New York, NY Tel: (212) Fax: (212) hsalzman@labaton.com H't.T Megan Jones HAUSFELD LLP 1700 K Street, NW Suite 650 Washington, D.C mhausfeld@hausfeldllp.com mjonescglhausfeldllp.com Co-Counsel for the Settlement Class 4

139 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed Filed 02/03/11 05/09/11 01/10/13 Page Page of 42 of 41 of 4142 Dated: February 3, 2011 /"'1w,,-t_JJJL)Wl~ Z T Frank M. Lowrey IV Georgia Bar No BONDURANT, MIXSON & ELMORE LLP 1201 West Peachtree Street, N.W One Atlantic Center Atlanta, Georgia Tel: (404) lowrey@bmelaw.com Cl1jA(!,11 i[nu:tthl'--( r 11 cr James H. Mutchnik, P.C. Christopher T. Casamassima Andrew T. Dustin Jonathan Lahn KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL Tel: (312) Fax: (312) james.mutclmik@kirkland.com chris.casamassima@kirldand.com andrew.dustin@kirkland.com jonathan.lahn@kikrland.com Counsel jar Component Hardware Group, Inc. 5

140 Case 3:11-cv MMA-DHB Document 91-7 Filed 01/10/13 Page 1 of 28 EXHIBIT 5

141 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1 2 of of 2728 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE FOOD SERVICE EQUIPMENT HARDWARE ANTITRUST LITIGATION Master Consolidated Case File No.1: 1O-cv-1849-WSD THIS DOCUMENT RELATES TO: ALL CASES SETTLEMENT AGREEMENT This Settlement Agreement ("Settlement Agreement") is made and entered into this first day of March, 2011, by and between the following "Parties": Kason Industries, Inc. ("Kason"), Peter A. Katz ("Katz"), and putative plaintiff class representatives Kohlder Manufacturing Co., Inc. and Qualserv Corporation, (collectively, "Plaintiffs" in the captioned action), individually and on behalf of the Participating Class Members (as defined herein) of the Settlement Class (as defined herein) as purchasers of Food Service Equipment Hardware (as defined herein) in the United States from Kason (or any of its subsidiaries, divisions, or affiliates), Component Hardware Group, Inc. (or any of its subsidiaries, divisions, or affiliates) ("CHG"), or any other Defendant or alleged co-conspirators named or that may be named in the Consolidated Class Action Complaint filed on September 17, 2010, for the period from February 1,2004 through February 11,2009. WHEREAS, Plaintiffs brought this action on behalf of themselves and other direct purchasers of Food Service Equipment Hardware (including but not limited to All Star Carts & Vehicles, Inc., American Hood Systems, Inc., and Raymond L. Masse d/b/a Capital Area

142 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2 3 of of 2728 Refrigeration and d/b/a Lou's Refrigeration, Heating & Cooling) alleging violations oflaw by Kason, Katz, and others, including the existence of unlawful conspiracies to restrict competition, allocate customers, fix prices, and rig bids with respect to the sale of Food Service Equipment Hardware in the United States in violation of Section 1 of the Sherman Antitrust Act and Section 4 of the Clayton Act; WHEREAS, although Kason and Katz deny any and all liability, injury, or damage to the Settlement Class, have filed a Motion to Dismiss the Complaint, and would assert a number of defenses to Plaintiffs' claims if such Motion were denied, Kason and Katz have concluded that they will enter this Settlement Agreement to avoid the expense, inconvenience, and burden of litigation and any other present or future litigation arising out of the same facts that gave rise to the Class Action, and to avoid the distraction and diversion of Kason's personnel and resources, and to put to rest this controversy with its customers; WHEREAS, due to its fmancial position, Kason is unable to offer economic value, including any additional cash payment, to the Settlement Class in excess of the terms of this settlement to resolve the Action without imperiling its operations and its continued viability as a competitor in its industry; WHEREAS, Class Counsel have concluded, after due investigation and after carefully considering the relevant circumstances, including, without limitation, the claims asserted in the Class Action and the legal and factual defenses thereto and the applicable law, and after review of documents and data provided by Kason and otherwise obtained by the Plaintiffs, that it would be in the best interests of the Plaintiffs and the Class Members to enter into this Settlement Agreement to avoid the uncertainties oflitigation, to assure that the benefits reflected herein are obtained for the Plaintiffs and all Class Members, and that this settlement fairly reflects the value 2

143 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 3 4 of of 2728 of the claims taking into account what Kason and Katz can realistically afford to offer to resolve the Class Action; and, as a result, Class Counsel consider the settlement set forth herein to be fair, reasonable, adequate, and in the best interests of Plaintiffs and all members of the Class; WHEREAS, arm's-length settlement negotiations have taken place between Class Counsel and counsel for Kason and Katz, and this Settlement Agreement, which embodies all of the terms and conditions of the settlement between Kason, Katz, and the Plaintiffs and the Class, has been reached, subject to the approval ofthe Court and Final Approval as provided herein; WHEREAS, it is anticipated that this Settlement Agreement will resolve all claims, potential claims, or other relief against or potentially against the Releasees (as defined herein) that have been, or could have been, raised in the Class Action. NOW, THEREFORE, in consideration ofthe covenants, terms, and releases in this Settlement Agreement and for other good and valuable consideration, it is by and among the undersigned agreed that the Class Action be settled, compromised, and fully resolved as to the Releasees, without costs as to Plaintiffs, the Class, Kason, or Katz, including all such costs that the Parties would have otherwise been entitled to recover, such as costs related to electronic discovery, all subject to the approval of the Court and the following terms and conditions: A. Definitions The following terms, as used in this Settlement Agreement, have the following meanings. The definitions herein are solely for purposes ofthis Agreement and do not constitute an admission by any party with respect to the underlying facts as they may be relevant to the Plaintiffs' claims: 1. "Action" or "Class Action" means the pending litigation among the parties captioned In re Food Service Equipment Hardware Antitrust Litigation (No. 1:1O-cv WSD), ("FSEH'), which is currently pending in the Northern District of Georgia, and includes 3

144 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 4 5 of of 2728 all cases that have been consolidated or coordinated with FSEH, may be consolidated or coordinated with FSEH, or which raise allegations related or similar to the allegations raised or that could have been raised in FSEH, and includes all actions based on the same conduct at issue in FSEH. 2. "CHG" means Component Hardware Group, Inc., and all of its successors. 3. "CHG Settlement Agreement" means the settlement agreement dated September 17,2010, between Plaintiffs and CHG relating to the claims in this Action. 4. "Claims" means any and all suits, claims, rights, demands, assertions, allegations, causes of action, controversies, proceedings, losses, damages, injuries, attorneys' fees, costs, expenses, debts, liabilities, judgments, or remedies, which are related to the subject matter of the Class Action, whether arising under federal or state or any other law, including all claims that were or could have been brought in the Class Action. 5. "Claims Administrator" means an independent professional service to be selected by Class Counsel and charged with administering the claims process and distribution of the settlement. 6. "Class Counsel" means the law firms of Labaton Sucharow LLP, 140 Broadway, New York, NY, 10005, and Hausfeld LLP, 1700 K Street, NW, Suite 650, Washington, D.C., "Class Member" or "Settlement Class Member" or "Class" means each member of the proposed Settlement Class. 8. "Class Period" means the period from and including February I, 2004, up to and including February 11,

145 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 5 6 of of "Complaint" means the Consolidated Class Action Complaint filed in the Action on September 17, 2010 (the "Complaint"). 10. "Court" means the U.S. District for the Northern District of Georgia, Atlanta Division. 11. "Defendants" means the Defendants to this Action: Kason Industries, Inc., Peter A. Katz, CHG, and Thomas Carr. 12. "Kason Defendants" means Defendants Kason Industries, Inc. and Peter A. Katz. 13. "Effective Date" means the date on which the Settlement Agreement becomes final in accordance with the terms of paragraph 34 hereof. 14. "Execution Date" means the date ofthe execution of this Settlement Agreement by counsel for the Plaintiffs and each of the Kason Defendants. 15. "Food Service Equipment Hardware" means any type of food service equipment component hardware products, as defined by paragraph 17 of the Complaint, sold by Defendants in the Class Action, or any alleged co-conspirators during the Class Period, together with oven canopy hoods and all plumbing products sold by Defendants Kason or CHG during such time period. 16. "Kason" means Kason Industries, Inc. and all of its successors. 17. "Opt Out" means a Class Member who has submitted a timely and valid request for exclusion from the Settlement Class pursuant to the opt -out procedure adopted by the Court. 18. "Participating Class Member" means every entity and person falling within the definition of the Settlement Class defined herein that is not an Opt-Out (i.e., has not made a timely and valid request for exclusion from the Settlement Class pursuant to the opt-out procedure approved by the Court). 5

146 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 6 7 of of "Releasees" means, jointly and severally, individually and collectively, Kason and Peter A. Katz and Kason's past, present and future parents, subsidiaries, divisions, affiliates, stockholders, investors, equity holders, parent entities, owners, members, officers, advisors, investors, and each and any of its past, present, and future respective members, officers, directors, insurers, general or limited partners, employees, agents, legal representatives, together with the predecessors, heirs, attorneys and executors, administrators, successors and assigns of of the foregoing. Notwithstanding the foregoing, "Releasees" does not include (i) any Defendant formerly or currently named in the Action, other than Kason, Katz, and those others included in the definition of Releasees above; (ii) any Defendant (other than Kason, Katz, and those others included in the definition of Releasees above) subsequently added or joined in the Action; or (iii) any other co-conspirator of Defendants in the Action (other than Kason, Katz, and those others included in the definition of Releasees above). 20. "Releasors" means, jointly and severally, individually and collectively, each and every Plaintiff and Participating Class Member, including any of his, her or its past, present or future parents, subsidiaries, divisions, affiliates, stockholders, and each and any of their respective past, present, and future stockholders, officers, directors, insurers, general or limited partners, agents, attorneys, employees, legal representatives, trustees, associates, heirs, executors, administrators, purchasers, predecessors, successors and assigns, acting in their capacity as such, and anyone claiming by or through them. 21. "Cash Settlement Amount" means one million and dollars ($1,000,000). 22. "Settlement Rebate" means the rebates discussed and defined in Section F of this Settlement Agreement. 6

147 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 7 8 of of "Settlement Class" means the following: All persons and entities that purchased Food Service Equipment Hardware within the United States, directly from Defendants in the Class Action or any oftheir affiliates, or from any alleged co-conspirators or any of their affiliates, during the Class Period or such later date through which the anticompetitive effects of the conspiracy continued, as may be determined in the Class Action. Excluded from the Settlement Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 24. "Kason-Settled Class Members" means Class Members that have previously entered into a settlement agreement with the Kason Defendants. 25. "Settlement Fund" means the Cash Settlement Amount and any interest earned on that amount. 26. "Taxes" means any sums due to be paid to governmental taxing authorities from, or as a consequence of, the Cash Settlement Amount, paymentfor attorneys' fees, and payment for notice and administration costs, including taxes, estimated taxes, interest and penalties. 27. "Tax Expenses" means any and all reasonable fees and costs due to be paid to tax preparers, tax consultants or others for determining the tax liability ofthe Cash Settlement Amount, payment for attorneys' fees, and payment for notice and administration costs and otherwise assisting Class Counsel in carrying out their responsibilities under this Settlement Agreement. B. Stipulation to Class Certificatiou 28. The Parties hereby stipulate for the purposes of this Settlement Agreement that the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied in this 7

148 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 8 9 of of 2728 case, and, subject to Court approval, the following Settlement Class shall be certified for settlement purposes as to the Releasees: All persons and entities that purchased Food Service Equipment Hardware within the United States, directly from Kason or CHG or any of their respective affiliates, or any other Defendants or any of their affiliates, or from any alleged co-conspirators or any of their affiliates, during the period from February 1,2004 through February 11,2009. Excluded from the Settlement Class are Defendants, their respective parents, employees, subsidiaries, and affiliates, their alleged co-conspirators, and all government entities. 29. The Parties' agreement as to certification of the Settlement Class is only for purposes of effectuating this settlement and for no other purpose. The Parties retain all of their respective objections, arguments and/or defenses with respect to class certification ifthe Settlement Agreement is rescinded or otherwise does not receive Final Approval as defined herein. The Parties acknowledge that there has been no stipulation to a class or certification of a class for any purposes other than effectuating the Settlement Agreement, and that if the Settlement Agreement does not receive Final Approval as defined herein, this agreement as to certification of the Settlement Class becomes null and void ab initio and no party may cite to this Settlement Agreement or certification of the Settlement Class in support of an argument for certifying a class. C. Approval of this Settlement Agreement and Dismissal of Claims 30. Plaintiffs, Class Counsel, Kason, Katz, and their counsel agree to use their reasonable best efforts to effectuate this Settlement Agreement, including, but not limited to, cooperating in promptly seeking both preliminary and final approval of this Settlement Agreement (including the giving of class notice under Federal Rules of Civil Procedure 23( c) and (e) to secure certification of the Settlement Class), and the prompt, complete, and final dismissal with prejudice ofthe Action as to all Releasees. 8

149 Case Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 910 of of By the court-ordered deadline, Plaintiffs shall submit to the Court a motion for preliminary approval of this Settlement Agreement, for authorization to disseminate notice to the Settlement Class, and for a stay of all proceedings against the Releasees in the Class Action or in any action asserting claims based on the facts alleged in the Action brought by or on behalf of any members of the proposed Settlement Class (the "Motion"). The Motion shall include: (a) the definition of the Settlement Class to be certified by the Court pursuant to this Settlement Agreement; (b) the proposed form of, method for, and date of dissemination of notice to the Settlement Class; (c) a proposed form of preliminary approval order; and (d) a proposed form of final judgment order. 32. Within ten (10) days ofthe filing of the Motion, Class Counsel shall, on behalf of all Parties to this Settlement Agreement, notify federal and state officials as specified in 28 U.S.C. 1715(a) & (b). 33. Upon preliminary approval of the Settlement Agreement, Class Counsel shall, in accordance with Fed. R. Civ. P. 23 and the Court's order, provide Settlement Class Members who have been identified by reasonable means with notice by first class mail of the Settlement Agreement and the date of the hearing scheduled by the Court to consider the fairness, adequacy, and reasonableness of the proposed Settlement Agreement (the "Settlement Hearing"). Individual notice ofthe settlement shall be mailed to persons and entities who have been identified by Kason and Katz, and any other person or entity identified by Defendants, whether provided voluntarily or ordered by a Court, as direct purchasers of Food Service Equipment Hardware in the United States from Kason or any of its affiliates, from Defendants in the Class Action, or from any alleged co-conspirators of Defendants during the Class Period, and notice of the settlement shall be published once in accord with the notice plan described in 9

150 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1011 of of 2728 the motion for preliminary approval. The failure of any Class Member to receive notice or any other document as described in this Settlement Agreement shall not be a basis for invalidating this Settlement Agreement or any order entered pursuant thereto, and the Settlement Agreement, Release, and covenants not to sue shall nevertheless be binding and the fmal judgment approving the Settlement Agreement effective, in accordance with each of their respective terms. 34. Class Counsel shall promptly submit a motion for final approval of the Settlement Agreement by the Court after notice is given to the members of the Settlement Class of the Settlement Hearing. lfthe Court approves the Settlement Agreement, Class Counsel shall seek entry of an order and final judgment, which includes the following findings and orders: a) Approving finally this Settlement Agreement and its terms as a fair, reasonable, and adequate settlement as to the Participating Class Members within the meaning of Rule 23 ofthe Federal Rules of Civil Procedure and directing its consummation according to its terms; b) Ordering that, as to the Releasees, the Action be dismissed with prejudice and, except as specifically provided for in this Settlement Agreement, without costs; c) Discharging and releasing the Releasees from all Released Claims, in conformance with this Settlement Agreement; d) Reserving exclusive jurisdiction over the Settlement and this Settlement Agreement, including the administration and consummation of this settlement; e) Determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to the Releasees shall be final and entered forthwith; and f) Requiring Class Counsel to file with the Clerk of the Court a record of Opt-Outs, and to provide a copy of the record to counsel for Kason and Katz. 35. This Settlement Agreement shall become final and shall be deemed to have received fmal approval ("Final Approval") on the date that: (a) the Court has entered a fmal order approving this Settlement Agreement under Rule 23( e) of the Federal Rules of Civil 10

151 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1112 of of 2728 Procedure and a final judgment dismissing the Action as against Kason, Peter A. Katz, and the Releasees with prejudice as to all Participating Class Members and without costs; and (b) the time for appeal or to seek permission to appeal from the Court's approval of this Settlement Agreement and entry of a final judgment as described in clause (a) above has expired or, if appealed, approval of this Settlement Agreement and the final judgment has been affirmed in its entirety by the court of last resort to which such appeal has been taken and such affirmation has become no longer subject to further appeal or review. The Parties agree that neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651, shall be taken into account in determining the time of finality of the judgment. On the Execution Date of this Settlement Agreement, the Parties shall be bound by its terms, and this Settlement Agreement shall not be rescinded unless in accordance with terms provided herein. Appeals relating solely to attorneys' fees, costs, or the plan of distribution shall not delay the Final Approval of this Settlement Agreement and shall not delay the entry of final judgment, or the finality of the judgment, as to the claims against any of the Releasees. In the event that Final Approval is not received or this Settlement Agreement is rescinded as provided herein, (i) this Settlement Agreement becomes null and void, (ii) any and all funds in the Settlement Fund shall be returned to Kason in accordance with the terms below, and (iii) the Parties retain all of their respective objections, arguments, and defenses with respect to class certification or any of the Claims asserted by Plaintiffs in the Action. 36. The Parties acknowledge that Kason and Katz are entering into this Settlement Agreement to eliminate the uncertainty, burden, and expense oflitigation without any presumption or inference of admission of liability or wrongdoing or bad faith on the part of the Releasees, and without any inference of admission of any impact, losses, or damages to 11

152 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1213 of of 2728 Plaintiffs or to the Settlement Class. The terms of this Settlement Agreement, the negotiations leading up to this Settlement Agreement, performance in accordance with this Settlement Agreement, and the data, documents, or information exchanged between the Parties in connection with, or pursuant to, this Settlement Agreement, may not be offered, taken, construed, or introduced as evidence ofliability or as an admission or statement of wrongdoing by the Releasees, either in this Class Action, or in any pending or future civil or criminal proceeding in any court of law or equity or before any government, administrative, or regulatory agency or other tribunal in the United States or elsewhere in the world, except in a proceeding to enforce this Settlement Agreement or to defend against the assertion of the claims in this Class Action by Releasees or as otherwise required by law. D. Release and Discharge 37. Upon the occurrence ofthe Final Approval, and in consideration of payment of the Cash Settlement Amount and the offering ofthe Settlement Rebates, as specified in Sections E and F ofthis Settlement Agreement, and for other valuable consideration recited herein, the Releasees shall be completely released, acquitted, and forever discharged to the fullest extent permitted by law from and against any and all Claims, demands, actions, suits, and causes of action, whether class, individual, or otherwise in nature, damages of any nature whatsoever, liabilities of any nature whatsoever, including costs, expenses, penalties, and attorneys fees, that Releasors, or anyone of them, whether directly, indirectly, derivatively, or in any capacity whatsoever, ever had, now has, or hereafter can, shall, or may have against the Releasees, whether known or unknown, suspected or unsuspected, in law or equity, relating in any way to or on account of or arising out of the facts, occurrences, transactions, or other matters alleged in the Complaint in the Action, or contained in complaints containing the same or similar allegations of conspiracy or collusion or aiding and abetting or other wrongful conduct between 12

153 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1314 of of 2728 or among Defendants, Kason, Katz, or any co-conspirators of Defendants, including any conduct that could have been alleged in this Action based on conduct or events from the beginning of time through the Effective Date of this Settlement Agreement, with respect to the product and geographic markets in the Action, which arise under any federal, state, or common law or the law of any nation or domestic or foreign or governmental entity, including antitrust, unfair competition, unfair practices, price discrimination, unitary pricing, trade practice, unjust enrichment, or civil conspiracy law, including, without limitation, the Sherman Antitrust Act, 15 U.S.C. 1 et seq. (all of the foregoing collectively the "Released Claims"). 38. Each Releasor waives California Civil Code Section 1542 and similar provisions in other states. Each Releasor hereby certifies that he, she, or it is aware of and has read and reviewed the following provision of California Civil Code Section 1542 ("Section 1542"): "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." The provisions ofthe release set forth above shall apply according to their terms, regardless of the provisions of Section 1542 or any equivalent, similar, or comparable present or future law or principle of law of any jurisdiction. Each Releasor may hereafter discover facts other than or different from those which he, she, or it knows or believes to be true with respect to the Claims that are the subj ect matter of this Settlement Agreement, but each Releasor hereby expressly and fully, finally and forever waives and relinquishes, and forever settles and releases any known or unknown, suspected or unsuspected, contingent or non-contingent, Claim, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts, as well as any and all rights and benefits existing under (i) Section 1542 or any equivalent, similar or 13

154 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1415 of of 2728 comparable present or future law or principle of law of any jurisdiction and (ii) any law or principle of law of any jurisdiction that would limit or restrict the effect or scope of the provisions of the release set forth above, without regard to the subsequent discovery or existence of such other or different facts. 39. This Settlement Agreement is intended to fully and finally release all claims against the Releasees that have been brought or could have been brought by the Settlement Class. Each Releasor hereby covenants and agrees that he, she, or it shall not sue or otherwise seek to establish or impose liability against any Releasee based, in whole or in part, on any of the Released Claims. Nothing herein shall be construed to release any Claims relating to geographic markets outside the United States or products other than Food Service Equipment Hardware; however Releasees do not agree or admit, and nothing in this Settlement Agreement establishes, implies, or can be used to suggest, that Plaintiffs, the Class Members, or any other persons or entities have any valid claims against the Releasees. The release and discharge set forth herein do not include Claims relating solely to payment disputes, physical harm, defective product, breach of contract claims that did not arise from Released Claims, or bodily injury (the "Excepted Claims"); provided that any claims that the violations oflaw alleged in this Action constitute a breach of contract or an excuse for non-payment are not excluded claims and are intended to be covered by the release and discharge set forth herein. 40. The Releasors covenant that, after the Execution Date ofthis Settlement Agreement, they shall not seek to recover against any ofthe Releasees for any of the Released Claims. E. Cash Settlement 41. Kason shall payor cause to be paid the Cash Settlement Amount of$i,ooo,ooo in settlement of the Action. The Cash Settlement Amount is the total and exclusive amount that 14

155 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1516 of of 2728 Kason will pay under this Settlement Agreement for the benefit of the Released Claims, including without limitation funds to satisfy claims by any Participating Class Member, attorneys' fees and costs, any Court-approved incentive awards to the Class Representative(s), payment of any and all estimated taxes, Taxes, Tax Expenses, tax preparations fees, and payment of any and all administrative and notice expenses associated with the Action or this Settlement Agreement. 42. Kason shall pay the Cash Settlement Amount in two installments. The first installment, for $500,000, shall be wire transferred by Kason or its designee within ten (10) business days of the preliminary approval of the Settlement Agreement by the Court (the "First Settlement Installment"). The First Settlement Installment shall be paid into an escrow account identified by Class Counsel (the "Escrow Account") and administered in accordance with the provisions ofthis Settlement Agreement. Kason or its designee shall wire transfer the second installment of the Cash Settlement Amount, for $500,000, (the "Second Settlement Installment") to the Escrow Account ten (10) days after the one-year anniversary of payment of the First Settlement Installment into the Escrow Account, unless such date falls on a weekend or bank holiday, in which case Kason shall wire the Second Settlement Installment on the first day American banks are open for business following ten (10) days after the one-year anniversary of payment of the First Settlement Installment into the Escrow Account. Kason shall not make any contributions to the Settlement Fund other than the First Settlement Installment and the Second Settlement Installment. Interest earned by the Settlement Fund shall be for the benefit ofthe Participating Class Members. 43. Notwithstanding the foregoing, in the event that certain Class Members that have not settled with Kason ("Non-Kason-Settled Class Members") submit timely and valid requests 15

156 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1617 of of 2728 for exclusion from the Settlement Class pursuant to the opt-out procedure adopted by the Court, and such Class Members' purchases exceed an agreed upon amount, submitted to this Court in camera, then Kason, at their option, may opt to withdraw from the settlement, in which event the Plaintiffs and the Kason defendants would return to their respective positions immediately prior to signing this agreement. F. The Settlement Rebate 44. As further consideration for this settlement, Kason shall offer to all Participating Class Members a 2.75% rebate off the purchase price for all purchases of Food Service Equipment Hardware from Kason made in the U.S. during the thirty (30) month period starting the first day of the month most immediately following the month in which Final Approval occurs (the "Settlement Rebate"). The Settlement Rebate will be earned upon each eligible customer purchase. If annual purchases during this 30-month period were to occur at the level of annual s.ales of Food Service Equipment Hardware conservatively projected by Kason for the period in which the rebates would be effective and if all Kason-Settled Class Members elect to rescind their existing settlement agreements with Kason and participate in this settlement pursuant to Section G of this Settlement Agreement, Kason estimates that based on its projected sales that the total Settlement Rebate would represent an approximate value of $3,437,000 over the 30-month period, and the overall settlement would have a value of $4,437,500. G. Treatment of Kason-Settled Class Members 45. Pursuant to the terms of the individual settlement agreements between Kason and Kason-Settled Customers, Kason represents that such customers have released all Claims and are otherwise not entitled to participate in the distributions and rebates established by this Settlement Agreement. Notwithstanding the foregoing, the Parties agree that each Kason- Settled Participating Class Member shall have the option, in its sole discretion, to refund the 16

157 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1718 of of 2728 value of all cash consideration (including discounts and rebates) and non-cash consideration paid or granted to such Kason-Settled Participating Class Member and forego any future consideration under the terms of that agreement and elect instead to receive the benefits of this Settlement. Any Kason-Settled Class Member that becomes a Participating Class Member and that makes such an election shall be referred to herein as a "Kason Class Settlement Recipient." 46. If a Kason-Settled Participating Class Member wishes to make the foregoing election and become a Kason Class Settlement Recipient, it must give notice of such election on or before the date specified in the Notice. Within 10 calendar days after such election, each electing Kason Settlement Class Recipient shall refund to Kason (i) the amount of all cash consideration (including discounts and rebates) previously received from Kason pursuant to an individual settlement agreement with Kason, and (ii) the fair value of any non-cash consideration received by such Kason Class Settlement Recipient under such individual settlement agreement. The return of all such consideration shall be a prerequisite to participate in the benefits of the Settlement Agreement. Any dispute about such refund or the amount thereof shall be subject to the jurisdiction of the Court. Plaintiffs take no position on the fair value of any non-cash consideration received by any Kason-Settled Class Members in any settlement previously agreed by such Class Member and Kason. The parties agree that any unresolved conflicts regarding this provision shall not delay the proceeding, related to Final Approval and distribution of the Settlement Fund to the Class. If such matters cannot be resolved within 10 calendar days after the above referenced election, such Kason-Settled Participating Class Members may not participate in this Settlement. 47. No Kason-Settled Class Member other than a Kason Class Settlement Recipient will be entitled to participate in any distributions from Kason's Settlement Fund or to receive 17

158 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1819 of of 2728 any Settlement Rebate hereunder. Nothing in this Settlement Agreement, however, shall be construed as limiting or preventing any Participating Class Member from participating in the settlement described in the CHG Settlement Agreement, including without limitation distributions from the CHG Settlement Fund (as defined below). 48. Nothing in this Agreement will affect or impair the validity or enforceability of any individual settlement agreement between Kason and any Kason-Settled Class Member or any release set forth therein in the event that such Kason-Settled Class Member (i) opts out of the Settlement Class or (ii) becomes a Participating Class Member but does not elect to become a Kason Class Settlement Recipient. H. The Settlement Fund 49. Kason, Katz, and the Releasees shall have no liability or responsibility for disbursements from, or administration of, the Settlement Fund. Kason, Katz, and the Releasees shall not be liable for any costs or attorneys' fees of Plaintiffs or the Participating Class Members, including but not limited to costs or expenses of Plaintiffs' counsel, experts, consultants, agents or representatives. Such costs and attorneys' fees as approved by the Court shall be paid out ofthe Settlement Fund. Kason, Katz, and the Releasees further shall not be liable for any of the expenses of notice to the Class or administration of the Settlement Fund, except that all such expenses shall be paid out of the Settlement Fund. 50. Class Counsel may at an appropriate time, determined in their sole discretion, submit a motion seeking approval of the payment of attorneys' fees and expenses from the Settlement Fund. Kason and Katz shall have no obligation to pay any amount of Class Counsel's attorneys' fees or the costs or expenses of litigation for the Settlement Class. 51. Subject to Court approval, Plaintiffs and Class Counsel shall be reimbursed and paid solely out ofthe Settlement Fund for all expenses including, but not limited to, attorneys' 18

159 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 1920 of of 2728 fees, expert fees, costs, and past, current, or future litigation expenses. Attorneys' fees and expenses awarded by the Court shall be payable from the Settlement Fund upon award, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the settlement or any part thereof, subject to Class Counsel's obligation to make appropriate refunds or repayments to the Settlement Fund, if and when, as a result of any appeal andlor further proceedings on remand, or successful collateral attack, the fee or cost award is reduced or reversed. Kason and Katz shall not be liable for any costs, fees, or expenses of any of Plaintiffs' respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court may be paid out of the Settlement Fund. In the event that attorneys' fees or costs are paid out of the Settlement Fund and Final Approval is not subsequently received, Class Counsel shall reimburse all withdrawn attorneys' fees and costs, except for the costs of notice, to the Settlement Fund prior to the return ofthe Settlement Fund to Kason. 52. Except as provided for herein, Kason, Katz, and the Releasees agree not to object, subject to an order of the Court in the Action, to the payment to Class Counsel of approved attorneys' fees, costs, and expenses out of the Settlement Fund. Disbursement of such fees, costs, and expenses shall not be delayed by reason of any appeal of the Final Judgment in the Action; provided, however, that if the Court's award of fees, costs, and expenses is vacated, reversed, or reduced on or as a result of an appeal, Class Counsel shall within ten (10) business days after receiving written notice from the Court inform Kason and Katz of such vacatur, reversal, or reduction, and make a refund to the Escrow Account in the amount of such vacatur, reversal, or reduction. 19

160 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2021 of of Any Escrow Accounts shall be invested in United States Government Treasury Bills or Notes of no more than six (6) month's duration (provided, however, that such portions of the Settlement Fund as may reasonably be needed to pay current expenses associated with providing notice to the Class, administering the Settlement Fund and the settlement may be deposited in a federally insured bank account in an amount not exceeding $40,000.) Any escrow fees or charges shall be deducted from the Settlement Fund. Kason and Katz will not be responsible for any escrow fees or charges incurred beyond Kason's payment of the Cash Settlement Amount. All interest earned on the Settlement Fund shall become and remain part of the Settlement Fund. In the event that Final Approval is not received on the Settlement Agreement or in the event that the Settlement Agreement is rescinded, the Settlement Fund shall be immediately returned, in its entirety, to Kason, including any and all interest that has accrued. I. Taxes 54. Class Counsel shall be solely responsible for filing all informational and other tax returns necessary to report any net taxable income earned by the Settlement Fund and shall file all informational and other tax returns necessary to report any income earned by the Settlement Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally required, any tax payments, including interest and penalties due on income earned by the Settlement Fund. All taxes (including any interest and penalties) due with respect to the income earned by the Settlement Fund shall be paid from the Settlement Fund. Kason and Katz shall have no responsibility to make any filings relating to the Settlement Fund and will have to responsibility to pay tax on any income earned by the Settlement Fund or to pay any taxes on the Settlement Fund unless the settlement is not consummated, and the Settlement Fund is returned to Kason. In the event the settlement is not consummated and the Settlement Fund is 20

161 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2122 of of 2728 returned to Kason, Kason shall be responsible for the payment of all taxes (including any interest or penalties), if any, of on said income. 55. The Parties to this Settlement Agreement and their counsel shall treat, and shall cause the Claims Administrator to treat, the Escrow Accounts as being at all times a "qualified settlement fund" within the meaning of Treas. Reg B 1. The Parties, their counsel, the Claims Administrator, and the Escrow Agent agree that they will not ask the Court to take any action inconsistent with the treatment of the Escrow Accounts in such manner. In addition, the Claims Administrator and, as required, the Parties shall timely make such elections as necessary or advisable to carry out the provisions of this paragraph, including the "relation-back election" (as defined in Treas. Reg B 10)) back to the earliest permitted date. Such elections shall be made in compliance with the procedures and requirements contained in such regulations. It shall be the responsibility of the Claims Administrator timely and properly to prepare and deliver the necessary documentation for signature by all necessary parties and thereafter to cause the appropriate filing to occur. All provisions of this Settlement Agreement shall be interpreted in a manner that is consistent with the Escrow Accounts being a "qualified settlement fund" within the meaning of Treas. Reg B 1. J. Miscellaneous 56. Kason shall restore the credit terms for Kohlder Manufacturing Co., Inc. and Qualserv Corporation that existed prior to the filing of this Class Action. 57. This Settlement Agreement does not settle or compromise any claim by Plaintiffs or any Class Member against any Defendant or alleged co-conspirator or any other person or entity other than the Releasees. All rights of any Class Member against a Defendant or coconspirator or any other person or entity other than the Releasees are specifically reserved by Plaintiffs and the Class Members. 21

162 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2223 of of Class Counsel and Plaintiffs shall not assist any person or entity that timely opted out of the Settlement Class, or their counsel, in any way in litigation or preparation for litigation concerning the subject matter of the Class Action. 59. Class Counsel and Plaintiffs agree that immediately following the Execution Date, Kason, Katz, and their counsel may contact and communicate directly or indirectly with, in person or otherwise at Kason's or Katz's discretion, any members of the putative Settlement Class for the purpose of describing and explaining the Settlement Agreement and the basis for the Settlement Agreement. Class Counsel agree to make themselves available on reasonable notice to participate in any such contact or communication, if requested to do so by Kason or Katz. 60. Kason, Katz, and Plaintiffs expressly reserve all of their respective rights, defenses, and positions in the Class Action, without prejudice, to the extent that the Settlement Agreement does not receive Final Approval from the Court or, if appealed, from the Appellate Court or if the Settlement Agreement is rescinded by any party to this Settlement Agreement or otherwise becomes null and void. 61. For the purpose of construing or interpreting this Settlement Agreement, Plaintiffs, Kason, and Katz agree that it is to be deemed to have been drafted equally by all parties hereto and shall not be construed strictly for or against any party. 62. Should any of the Cash Settlement Amount remain in the Settlement Fund after the distribution of all payments to Participating Class Members and the distribution of other funds as authorized by the Court, including the distribution of funds to Plaintiffs' Class Counsel but excluding any cy pres award, all such remaining funds shall be returned to Kason within 22

163 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2324 of of 2728 thirty (30) days offinal distribution of all other funds. Plaintiffs agree not to seek cy pres or fluid distribution of any portion of the Settlement Fund. 63. The Parties acknowledge and agree that this Settlement Agreement contains the entire understanding between the parties with respect to the subject matter hereof, that there is no representation, agreement, or obligation regarding the settlement which is not expressly set forth in this Settlement Agreement, and that no representation, inducement, promise, or agreement not expressly set forth in the text of this Agreement shall be of any force or effect. 64. The Parties agree to execute and deliver to each other party from time-to-time such reasonable additional instruments or documents and to perform such other reasonable acts as may be necessary or desirable to effectuate this Settlement Agreement. 65. All terms of the Settlement Agreement are contractual and not mere recitals. This Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of Releasors and Releasees. Without limiting the generality of the foregoing each and every covenant and agreement made herein by Plaintiffs shall be binding upon all Participating Class Members and Releasors. 66. Nothing expressed or implied in this Settlement Agreement is intended to or shall be construed to confer upon or give any person or entity other than Plaintiffs, Participating Class Members, Kason, Katz, Releasors, and Releasees any right or remedy under or by reason of this Settlement Agreement. 67. This Settlement Agreement may be modified or amended only by a writing jointly executed by Class Counsel and counsel for Kason and Katz, subject (if after preliminary or final approval by any court) to approval by the Court. Amendments and modifications may be made without notice to the Settlement Class unless notice is required by law or by the Court. 23

164 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2425 of of All tenns ofthis Settlement Agreement shall be governed by and interpreted according to the substantive laws of the State of Georgia without regard to its choice of law or conflict of law principles. 69. Kason, Katz, the Releasors, and each Participating Class Member hereby irrevocably submit to the exclusive jurisdiction of the Court for any suit, action, proceeding or dispute arising out of or relating to this Settlement Agreement or the applicability of this Settlement Agreement. Nothing herein shall be construed as a submission to jurisdiction for any purpose other than enforcement of the Settlement Agreement. 70. Any disputes between or among Kason, Katz, and any Participating Class Member or Settlement Class Members concerning matters contained in this Settlement Agreement shall, if they cannot be resolved by negotiation and agreement, be submitted to the Court. The Court shall retain jurisdiction over the implementation and enforcement of this Settlement Agreement. 71. The headings used in this Settlement Agreement are intended for convenience of the reader only and shall not affect the meaning or interpretation of this Settlement Agreement. 72. This Settlement Agreement contains an entire, complete and integrated statement of each and every tenn and provision agreed to by and among the parties, and it is not subject to any condition not provided for herein. 73. This Settlement Agreement may be executed in counterparts by Class Counsel, Kason, Katz, and their counsel, and a facsimile or pdf signature shall be deemed an original signature for purposes of executing this Settlement Agreement. 74. Each of the undersigned attorneys and parties represents that they are fully authorized to enter into the tenns and conditions of, and to execute, this Settlement Agreement, 24

165 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2526 of of 2728 subject to Court approval; and the undersigned Plaintiffs' counsel represents that they are authorized to execute this Settlement Agreement on behalf of Plaintiffs and the Settlement Class. All of the undersigned attorneys shall use their best efforts to effectuate this Settlement Agreement. The Settlement Agreement shall be deemed executed on the date of signature for Class Counsel, Kason, Katz, and their counsel. 75. Where this Settlement Agreement requires any party to provide notice or any other communication or document to any other party, such notice, communication, or document shall be provided by letter transmitted by overnight delivery at the address( es) reflected on the signature pages, and shall be deemed effective upon receipt. Dated: March 1,2011 IA : ' ". " Wiliiam. Carr CARR & PALMER, LLP 10 North Parkway Square 4200 Northside Parkway Atlanta, GA Tel: (404) Fax: (404) TON SUCHAROW LLP 140 Broadway New York, NY Tel: (212) Fax: (212) hsalzman@labaton.com Megan Jone HAUSFELD LLP 1700 K Street, NW 25

166 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2627 of of 2728 Suite 650 Washington, D.C Co-Counsel for the Settlement Class Dated: ( Georgia Bar No. SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia Tel: (404) jim.mcgibbon@sutherland.com Counsel for Kason Industries, Inc. and Peter A. Katz 26

167 Case 3:11-cv MMA-DHB 1:10-cv WSD Document Filed 04/08/11 01/10/13 Page 2728 of of 2728 Michael Hausfeld Megan Jones HAUSFELD LLP 1700 K Street, NW Suite 650 Washington, D.C rnhausfeld@hausfeldllp.com mjones@hausfeldllp.com Co-Counsel for the Settlement Class Dated: March 1,2011 Georgia Bar No. SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, Georgia Tel: (404) jim.mcgibbon@sutherland.com Counsel for Kason Industries, Inc. and Peter A. Katz 3

168 Case 3:11-cv MMA-DHB Document 91-8 Filed 01/10/13 Page 1 of 36 EXHIBIT 6

169 Case 3:11-cv MMA-DHB Document 91-8 Filed 01/10/13 Page 2 of 36 AAI Working Paper No ABSTRACT: Indirect Purchaser Class Action Settlements Author: Patrick E. Cafferty, Cafferty Faucher LLP Consumers and business entities at the bottom of a chain of distribution i.e., those who cannot pass on overcharges often bear the full financial brunt of antitcompetitive activity. Unless they purchased goods or services directly from the alleged antitrust violators, however, they are indirect purchasers who lack standing to bring suit for damages under the federal antitrust laws. Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). In California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that Illinois Brick interpreted federal antitrust law only and states could allow indirect purchasers to seek damages under state law. Several states and the District of Columbia reaffirmed an indirect purchaser s right to recover damages by passing Illinois Brick repealer statutes that expressly allow for indirect purchaser actions. Even where no repealer statute has been enacted, some state courts have interpreted their state s antitrust laws to allow for indirect purchaser standing. See, e.g., Comes v. Microsoft Corp., 646 N.W.2d 440 (Iowa 2002); Bunker's Glass Co. v. Pilkington PLC, 75 P.3d 99 (Ariz. 2003). State law indirect purchaser actions are an important component of antitrust enforcement, especially in cases where direct purchasers continuing business relationship with the antitrust violators blunts any incentive to bring suit. Moreover, utilizing class action procedures, indirect purchaser class actions can provide redress to the targeted victims of unlawful conduct. The purpose of this paper is to compile a comprehensive list of indirect purchaser class action settlements, including the amount of money (or other consideration) recovered for classes. This project began in 2005 at the request of counsel for the Antitrust Modernization Commission and was intended to respond to the contentions made by corporate interests that indirect purchaser antitrust actions benefitted only plaintiffs attorneys and resulted in, at best, cy pres recoveries for the indirect benefit of the class members. Accordingly, this listing attempts to include both the method of distribution of settlement proceeds and the amount of attorneys fees awarded. While cy pres distributions are sometimes necessary, many cases (especially in the area of pharmaceuticals) provide for cash distributions to class members. The settlements listed below have recovered an aggregate value $4,363,237,265 since the mid-1990s. This total consists of $2,069,252,500 in cash, $163,464,000 worth of product (i.e., infant formula and prescription drugs) and $2,130,520,765 in Microsoft vouchers. One development since 2005 is worthy of comment: the Class Action Fairness Act of 2005, Pub. L. No , 119 Stat. 4 (2005), which became effective February 18, 2005, greatly 1 Electronic copy available at: