UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

Transcription

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION HENRY LACE on behalf of himself ) and all others similarly situated, ) ) Plaintiffs, ) Case No. 3:12-CV JD-CAN ) v. ) ) FORTIS PLASTICS LLC and ) MONOMOY CAPITAL PARTNERS, L.P., ) ) Defendants. ) JIM YOUNG on behalf of himself ) and all others similarly situated, ) ) Plaintiffs, ) Case No. 3:12-CV JD-CAN ) v. ) ) FORTIS PLASTICS LLC and ) MONOMOY CAPITAL PARTNERS, L.P., ) ) Defendants. ) SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ( Settlement Agreement or Agreement ) is entered into by and between Henry Lace ( Lace ), on behalf of himself and on behalf of all similarly situated individuals (the Indiana Class ), and Jim Young ( Young, together with Lace, Plaintiffs ), on behalf of himself and on behalf of all similarly situated individuals (the Arkansas Class, together with the Indiana Class, the Settlement Class, as further described below), on the one hand, and Defendant Monomoy Capital Partners, L.P. ( Monomoy ), on the other hand. Monomoy and all members of the Settlement Class (the Class Members ), including Plaintiffs, will collectively be referred to hereafter as the Settling Parties.

2 RECITALS A. The above-captioned actions were brought against Defendant Fortis Plastics LLC ( Fortis ) in the United States District Court for the Northern District of Indiana (the District Court ). 1 The complaints in both cases were filed simultaneously on June 29, 2012, by Plaintiffs, who are both former employees of Fortis. Doc. 1, Case No. 3:12-CV JD-CAN (the Lace Action ); Doc. 1, Case No. 3:12-CV JD-CAN (the Young Action, together with the Lace Action, the Actions ). B. The complaints were subsequently amended on November 9, 2012 to add claims against Monomoy, alleging that Monomoy and Fortis were each liable to Plaintiffs under a single-employer theory. Lace Action Doc. 24 (the Lace Complaint ); Young Action Doc. 22 (the Young Complaint, together with the Lace Complaint, the Complaints ). In both Complaints, Plaintiffs asserted causes of action pursuant to the Worker Adjustment and Retraining Notification ( WARN ) Act, 29 U.S.C et seq., seeking damages for up to 60- days pay, including unpaid accrued vacation time and other benefits on behalf of the Class Members for the defendants alleged failure to provide adequate notice concerning the terminations of their employment at Fortis. Lace also asserted a claim under the Indiana Wage Payment Statute, Ind. Code (the Wage Payment Law ) seeking reimbursement for accrued vacation time. The Complaints also seek attorneys fees pursuant to the WARN Act. C. Monomoy filed Motions to Dismiss the Complaints (Lace Action Doc. 37; Young Action Doc. 35), arguing that Plaintiffs failed to plead adequate facts concerning Monomoy s alleged status as a single employer with Fortis for purposes of holding Monomoy liable on Plaintiffs claims. The District Court denied Monomoy s Motions to Dismiss by orders dated 2

3 September 24, 2013 (Lace Action Doc. 63; Young Action Doc. 61). Monomoy denies any and all liability in these Actions. D. By Order dated September 24, 2013, the District Court certified the Indiana Class to include the following class of individuals: Any and all persons who worked at or reported to the [Fortis] facility located at 3615 Voorde Drive, South Bend, Indiana, on the date 60 days prior to the closing of that facility. Lace Action Doc. 62, p. 23. The District Court, however, denied Lace s request for class certification with respect to the Wage Payment Law claim in the Lace Action. Id. By Order dated September 24, 2013, the District Court certified the Arkansas Class to include the following class of individuals: Any and all persons who worked at or reported to the [Fortis] facility located at 428 South U Street, Fort Smith, Arkansas, on the date 60 days prior to the closing of that facility. Young Action Doc. 60, p. 20. By the same Orders, the District Court appointed Harwood Feffer LLP as counsel for the Settlement Class ( Class Counsel ) and Anderson, Agostino & Keller, P.C. as liaison counsel for the Settlement Class ( Liaison Counsel ). E. The Settling Parties seek to settle the Actions on behalf of the Settlement Class defined as (1) all persons who worked at or reported to the Fortis facility located at 3615 Voorde Drive, South Bend, Indiana up to 60 days prior to its closing, and (2) all persons who worked at or reported to the Fortis facility located at 428 South U Street, Fort Smith, Arkansas up to 60 days prior to its closing. F. Monomoy vigorously denies each and every allegation of wrongdoing made in 1 On December 28, 2013, Fortis filed a voluntary petition under chapter 7 of the United States Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware, Case No BLS. 3

4 the Complaints and contends that it has no liability in either of the Actions. In answering the Complaints, Monomoy asserted numerous defenses to the Plaintiffs claims, including, but not limited to, the following: 1) Monomoy is not liable to Plaintiffs because Monomoy and Fortis did not constitute a single employer under the WARN Act or the Wage Payment Law; 2) the faltering company and unforeseeable business circumstances exceptions preclude liability of either of the defendants; and 3) the defendants acted in good faith. See Lace Action Doc. 66; Young Action Doc. 65. G. On January 6, 2014, the Settling Parties, by and through their respective counsel, reached an agreement in principle to the terms of the proposed settlement (the Settlement ). H. Class Counsel has conducted an investigation into the facts, circumstances, and legal issues associated with the Actions. This investigation included inspecting, reviewing, and analyzing over 50,000 pages of documents produced by Fortis in response to Plaintiffs requests therefor and additional documentation provided by Monomoy on a confidential basis during settlement discussions. I. Monomoy s counsel also has conducted an investigation into Plaintiffs claims and the underlying facts, events and transactions alleged in the Complaints. Monomoy s counsel has reviewed numerous documents, conferred extensively with its client and with Fortis representatives, and diligently examined the legal principles applicable to Plaintiffs actual and potential claims in the Actions. J. The Settling Parties have reached this Settlement at arm s length, by and through their respective undersigned counsel, on the terms and conditions set forth in this Agreement. K. The resolution of these Actions will save the resources of the Settling Parties and the District Court and is in the Settling Parties best interests. 4

5 L. Monomoy, by entering into this Agreement, does not admit to the truth of any allegation contained in the Complaints or to any fault, liability, or wrongdoing whatsoever. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the Settling Parties, in consideration of the promises, covenants, and agreements herein described, and the Settling Parties, intending to be legally bound, do hereby mutually agree as follows, subject to the approval of the District Court: Material Terms of the Settlement 1. Plaintiffs, on behalf of themselves and all other Class Members, agree to settle and resolve fully the claims asserted in the Actions against the Releasees (defined below in Paragraph 7), including the Released Claims (defined below in Paragraph 7), for [REDACTED] (the Settlement Amount ). Thus, in full settlement of the claims asserted in these Actions against Monomoy and in consideration of the releases specified in Paragraphs 7-10 below, Monomoy shall pay the Settlement Amount in accordance with this Agreement. Preliminary Approval 2. Promptly after execution of this Agreement by the Settling Parties, but not before the District Court enters an order on the joint motion referenced below in Paragraph 28, counsel for the Settling Parties shall cause a joint motion, reasonably acceptable to all Settling Parties, to be filed with the District Court. Such motion (the Motion for Preliminary Approval of Settlement ) shall seek entry of an order substantially in the form attached hereto as Exhibit 1 (the Preliminary Approval Order ) and approval of the notice to the Class Members, substantially in the forms attached as Exhibit A to the Preliminary Approval Order (together, Class Notice ). The Motion for Preliminary Approval shall request that a final fairness hearing be held at least one hundred (100) days after the date of the entry of the Preliminary Approval Order for the District Court to consider whether the terms of this Settlement are fair, reasonable, 5

6 and adequate and thus should be finally approved and implemented by the District Court pursuant to Federal Rule of Civil Procedure 23(e). Pursuant to the Class Action Fairness Act of 2005 ( CAFA ), Monomoy shall, at its own expense, cause to be prepared and provided the notices required by CAFA, as specified by 28 U.S.C. 1715, within ten (10) calendar days after the filing of the Motion for Preliminary Approval of Settlement. Class Counsel will be provided with copies of any and all notices provided by Monomoy pursuant to this Paragraph. 3. If the Settlement (including any modification thereto made with the consent of the Settling Parties as provided for herein) is approved preliminarily by the District Court, Class Counsel shall retain at their discretion, subject to Monomoy s reasonable approval, a person or firm to administer Class Notice to each of the Class Members (the Settlement Administrator ). The Settlement Administrator shall cause the Class Notice to be disseminated in the manner and on the dates set in the Preliminary Approval Order to each of the Class Members. Class Notice will be sent by first class or other bulk mail as determined by the Settlement Administrator ( First Class Mail ) to the most recent address known to Monomoy for each of the Class Members. Costs associated with the Class Notice sent by First Class Mail only shall be paid by Class Counsel but reimbursed by the Settlement Fund (defined below in Paragraph 13). Class Counsel shall not be responsible for the cost of any other type of Class Notice ordered by the Court and any such additional costs may render this Settlement Agreement null and void pursuant to Paragraph 23 below. Monomoy, at its own cost, has already provided Class Counsel with all relevant information in its possession to assist the Settlement Administrator in identifying the Class Members, the last-known address for each of the Class Members, and the amount of each of the Class Members individual recovery from the Settlement Fund in accordance with the Plan of Allocation (defined below). Monomoy agrees to continue to work in 6

7 good faith with Class Counsel and the Settlement Administrator to determine the correct address for each Class Member, but only to the extent Monomoy has possession or control of any information relevant to such efforts. Final Approval 4. If the Settlement (including any modification thereto made with the consent of the Settling Parties as provided for herein) is preliminarily approved by the District Court, and after complying with the notice requirements set forth in preceding Paragraphs 2 and 3, Class Counsel shall move the District Court to enter an Order and Final Judgment, subject to Monomoy s reasonable approval, and substantially in the form attached hereto as Exhibit 2 (the Final Approval Order ), which among other things: (a) approves this Settlement, adjudges the terms thereof to be fair, reasonable, adequate, and in the best interests of the Settlement Class, and directs consummation of the Settlement in accordance with the terms and conditions of this Agreement; (b) certifies the Settlement Class as an opt-out class meeting the applicable requirements for a class imposed by Federal Rule of Civil Procedure 23; (c) determines that the requirements of Federal Rule of Civil Procedure 23 and due process have been satisfied in connection with the distribution of the Class Notice to the Class Members; (d) approves a Plan of Allocation consistent with Paragraph 19 of this Agreement; (e) approves the fees and expenses sought by Plaintiffs and their counsel as contemplated by Paragraphs of this Agreement; (f) determines what amount, if any, should be awarded to Plaintiffs for their participation in these actions as contemplated by Paragraph 18 of this Agreement; 7

8 (g) dismisses the Actions with prejudice as to Monomoy and operates to extinguish, discharge, and release any and all Released Claims against the Releasees (as both terms are defined below in Paragraph 7), with each of the Settling Parties to pay its own attorney fees, and with each of the Settling Parties to pay its own costs unless otherwise herein provided, said dismissal being subject only to compliance by the Settling Parties with the terms of this Agreement and any order of the District Court concerning this Agreement; (h) bars and enjoins each of the Class Members from the institution and prosecution, either directly or indirectly, of any other actions in any court asserting any and all Released Claims against any and all Releasees (as both terms are defined below in Paragraph 7); and (i) permanently enjoins Plaintiffs and all other Class Members from asserting, commencing, prosecuting or continuing, either directly, individually, representatively, derivatively or in any other capacity, any other actions in any court asserting such Released Claims or from receiving any additional recovery or relief from any Releasees with respect thereto (as both terms are defined below in Paragraph 7). 5. Class Counsel shall file with the District Court the motion for entry of the Final Approval Order and Judgment no later than twenty-eight (28) calendar days before the final fairness hearing. The Settling Parties will each support final approval of the Settlement in accordance with this Agreement at the final fairness hearing. Date of Complete Settlement Approval 6. For purposes of this Agreement, Complete Settlement Approval shall occur when all of the following have taken place: (a) entry of the Final Approval Order approving the Settlement; and (b) the expiration of all applicable appeal periods for any appeals of the Final 8

9 Approval Order, without any appeal having been filed or, if an appeal is taken, upon entry of an order affirming the Final Approval Order, and the expiration of any applicable period for the reconsideration, rehearing, or appeal of such affirmance without any motion for reconsideration, rehearing, or further appeal having been filed. Upon Complete Settlement Approval, the Settlement shall become Final. The pendency of unresolved issues regarding the Plan of Allocation (defined below in Paragraph 19) and/or Class Counsel s recovery of attorneys fees/expenses from the Settlement Fund shall not affect the finality of the Settlement. Release 7. Except for the rights arising out of, provided for, or reserved in this Settlement, the Class Members who do not opt-out of the Settlement, for and on behalf of themselves, and each of their respective partners, spouses, children, heirs, agents, representatives, legatees, predecessors, successors, attorneys, and assigns (collectively, the Releasing Parties ), do, contingent upon entry of the Final Approval Order and Judgment, fully and forever release and discharge any and all claims of any nature whatsoever (including claims for any and all losses, damages, unjust enrichment, attorney s fees, disgorgement of fees, litigation costs, injunction, declaration, contribution, indemnification or any other type or nature of legal or equitable relief), including, for the avoidance of any doubt, all claims asserted in the Actions, for losses suffered by any of the Plaintiffs or other Class Members, whether accrued or not, whether already acquired or acquired in the future, whether known or unknown, in law or equity, brought by way of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise, arising out of any or all of the acts, omissions, facts, matters, transactions or occurrences that are, were or could have been alleged, asserted, or set forth in either of the Actions or would be barred by principles of res judicata had the claims asserted in the Actions been fully litigated and resulted 9

10 in a final judgment or order, including but not limited to any claim that Monomoy violated the WARN Act by not providing 60-days notice of employment termination and that Monomoy violated the Wage Payment Law by not paying Indiana Class Members accrued vacation time at the time of their termination, and also including but not limited to, any claim under any other statute, regulation, ordinance, or common law requiring an employer to provide advance notice prior to laying off or terminating any employee or closing any of the employer s facilities ( Released Claims ). Such release, as circumscribed by the Released Claims, shall extend to Monomoy and each of its partners, affiliates, officers, directors, shareholders, committees, heirs, agents, representatives, legatees, predecessors, successors, attorneys, fiduciaries, insurers, reinsurers, assigns, and co-investors, including any individual, investor, company, trust, fund, or other entity having or having had any direct or indirect ownership interest in Fortis through Monomoy (collectively, the Releasees ). 8. Plaintiffs or any other of the Class Members may hereafter discover facts other than or different from those that they know or believe to be true with respect to the subject matter of the Released Claims with respect to any Releasees, but Plaintiffs and all other Class Members hereby expressly waive and fully, finally and forever settle and release all Releasees from any and all liability incident to any known or unknown, suspected or unsuspected, asserted or unasserted, contingent or non-contingent claim with respect to the Released Claims, without regard to the subsequent discovery or existence of such other or different facts. 9. As part of the release described above in Paragraphs 7 and 8, the Releasing Parties shall not assign, sell, or otherwise transfer to any third party their claims under the WARN Act, the Indiana Wage Law, or any other statute, regulation, ordinance or common law requiring an employer to provide advance notice prior to laying off or terminating an employee 10

11 or closing a facility. It is further understood and agreed that consummation of this Settlement is conditioned upon not more than 18% of the Class Members opting out of the Settlement. 10. Upon Complete Settlement Approval, Monomoy absolutely and unconditionally releases and forever discharges all Class Members, including Plaintiffs, who do not opt out of this Settlement pursuant to its terms, Class Counsel, and Liaison Counsel (collectively, the Plaintiff Released Parties ) from any and all claims relating to the institution or prosecution of the Actions or the settlement of any Released Claims, except that such release shall not include claims relating to the covenants or obligations set forth in this Settlement Agreement. 11. The Settling Parties intend this Settlement to be a final and complete resolution of all disputes asserted or which could have been asserted by any of the Plaintiff Released Parties against any of the Releasees with respect to the Released Claims. Accordingly, the Plaintiff Released Parties and Monomoy agree not to assert in any forum that the claims asserted in the Actions were brought or defended in bad faith or without a reasonable basis. The Settling Parties shall not assert any contention regarding a violation of Rule 11 of the Federal Rules of Civil Procedure relating to the prosecution, defense, or settlement of the Actions and agree that each party shall bear his, her, or its own attorneys fees and, except as provided for herein, costs and expenses. Payment of Settlement Amount 12. No later than five (5) calendar days following Complete Settlement Approval, Class Counsel shall identify to Monomoy the payee of the Settlement Amount and provide Monomoy with an IRS Form W-9 for such payee and all necessary bank account information to make a wire payment of the Settlement Amount to the payee. Within ten (10) calendar days after Monomoy receives such information from Class Counsel or Complete Settlement Approval, whichever is later, Monomoy shall deliver the Settlement Amount to the designated account (the 11

12 Settlement Account ). Except as otherwise provided herein, under no circumstances shall Monomoy be required to pay, or cause to be paid, more than the Settlement Amount, and upon payment of the Settlement Amount, all of Monomoy s payment obligations under this Agreement shall be satisfied and discharged in full. 13. The Settlement Amount delivered to the Settlement Account shall constitute the Settlement Fund, which shall be governed by the terms of this Agreement. Payment of Attorneys Fees and Expenses and Plaintiff Awards 14. Class Counsel s attorneys fees and expenses will be subject to the District Court s approval and shall be paid out of the Settlement Fund. Monomoy shall take no position directly or indirectly on Class Counsel s application for attorneys fees and expenses, provided that Class Counsel do not request an award of attorneys fees higher than 33% of the Settlement Amount plus expenses. 15. The District Court s consideration of requests for Class Counsel s fees and expenses are matters separate and apart from the Settlement between the Settling Parties, and the District Court s decision concerning distribution from the Settlement Fund of the attorneys fees and expenses of Class Counsel shall not affect the validity of this Agreement or finality of this Settlement in any manner. 16. Class Counsel shall be solely responsible for allocating its fees and expenses among Plaintiffs counsel. All attorneys fees approved by the Court for reimbursement from the Settlement Fund shall be allocated among Plaintiffs counsel in a fashion which, in the opinion of Class Counsel, fairly compensates Plaintiffs counsel for their respective contributions in the prosecution of the Actions. Monomoy shall bear no responsibility for this allocation or be subject to any claims or suit under this Agreement or otherwise. 12

13 17. No later than twenty-eight (28) calendar days prior to the final fairness hearing, Class Counsel will apply to the District Court for a collective award of attorneys fees and reimbursement of litigation expenses. Upon funding of the Settlement Fund following Complete Settlement Approval, as contemplated above in Paragraph 12, Class Counsel may instruct the Settlement Administrator in writing to disburse such payments immediately from the Settlement Account in accordance with the Final Approval Order. 18. Class Counsel may also apply to the District Court for case contribution awards to Plaintiffs named in the Complaints in an amount not to exceed $1,500 per Plaintiff. Monomoy will take no position with respect to any such applications for Plaintiffs case contribution awards. Monomoy shall have no obligations whatsoever with respect to any case contribution awards, which shall be payable solely from the Settlement Fund. Plan of Allocation 19. A Plan of Allocation shall be prepared by Class Counsel and submitted to the District Court for approval in connection with final approval of the Settlement. The parties agree that such Plan of Allocation should serve to distribute funds remaining in the Settlement Fund pro rata among the Class Members according to the amount of wages and vacation pay they would have been entitled under the WARN Act and, as to Lace himself, the Wage Payment Law had these Actions resulted in full recovery therefor. The District Court s approval of the Plan of Allocation is not a material or integral part of or condition to the Settlement, and the District Court s rejection or modification of the Plan of Allocation shall entitle neither Plaintiffs nor Monomoy to withdraw from or terminate the Settlement, nor affect the finality of the Settlement or final approval thereof. 13

14 20. Class Counsel shall retain the Settlement Administrator to calculate the amounts payable to the Class Members in accordance with the District Court-approved Plan of Allocation. Class Counsel, Plaintiffs, and Monomoy shall have no responsibility or liability for the Plan of Allocation calculations or the expenses incurred in connection with the calculations. None of the Plaintiffs, their respective counsel, nor Monomoy shall have any responsibility or liability with respect to any act, omission, or determination of the Settlement Administrator or any of its designees or agents, in connection with the calculations of the distribution and administration of the Settlement Fund or the determination, administration, calculation, or payment of any claims asserted against the Settlement Fund. 21. The Settlement Administrator shall cause the Settlement Fund to be distributed by individual payments to Class Members pursuant to the calculations made by the Settlement Administrator. Class Counsel, Plaintiffs, and Monomoy shall have no responsibility or liability for the distribution of the Settlement Fund to Class Members. 22. The Settlement Administrator shall prepare and distribute IRS FORMS 1099 to each member of the Settlement Class. All reimbursement of the Settlement Administrator s costs for creating and distributing the IRS FORMS 1099 to the Class Members shall come from the Settlement Fund. Right to Withdraw from the Settlement 23. Each of the Settling Parties shall have the option to withdraw unilaterally from and terminate this Settlement in the event that: (a) either the Preliminary Approval Order or the Final Approval Order referred to above is not entered substantially in the forms specified herein, including such modifications thereto as may be ordered by the District Court with the consent of the Settling Parties; (b) the Settlement is not approved by the District Court or is disapproved or 14

15 materially modified upon appeal; (c) more than 18% of the Class Members opt out of the Settlement; or (d) the Court substantially changes the form or orders dissemination of notice to the Class Members in a manner other than as expressly provided in Paragraph In the event that the Settlement is terminated pursuant to Paragraph 23 of this Agreement, (a) the Settlement proposed herein shall be of no further force and effect, and (b) this Agreement and all negotiations, proceedings, and statements relating thereto, and any amendment thereof, shall be null and void, shall not be submitted or admitted in the Actions or any other proceeding, and shall be without prejudice to any party hereto, and each of the Settling Parties shall be restored to his, her, or its respective position as it existed prior to the execution of this Agreement. In particular, should any funds remain in the Settlement Account as of the date of termination of this Settlement, all such funds shall be returned to the payor (whether Monomoy or its insurance carrier) within five (5) business days after such termination, along with an accounting of all funds previously disbursed from the Settlement Account. Severability 25. The provisions of this Agreement are not severable. Authority 26. Each of the individuals executing the Agreement on behalf of one or more of the Settling Parties warrants and represents that he or she has been duly authorized and empowered to so execute this Agreement. Settlement Not an Admission 27. The provisions contained in this Agreement and all negotiations, statements and proceedings in connection herewith shall not be deemed a presumption, a concession, or an admission by Monomoy of any fault, liability, or wrongdoing as to any fact or claim alleged or 15

16 asserted in the Actions or any other actions or proceedings and shall not be interpreted, construed, deemed, invoked, offered, or received in evidence or otherwise used by any person in these Actions or any other actions or proceedings, whether civil, criminal or administrative, except in a proceeding to enforce the terms or conditions of this Agreement. Monomoy has denied and continues to deny each and every claim alleged in the Actions. Furthermore, this Agreement shall not be construed as or received in evidence as an admission, concession, or presumption against either of the Plaintiffs or any of the Class Members that any of their respective claims are without merit, or that any defenses asserted by Monomoy has any merit, or that damages recoverable in the Actions would not have exceeded the Settlement Amount. Accordingly, neither this Agreement nor the Settlement nor any act performed or document executed pursuant to or in furtherance of this Agreement or the Settlement (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity or invalidity of any of the Released Claims, or of any wrongdoing or liability or lack thereof of any of the Releasees, or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission or lack thereof of any of the Releasees in any civil, criminal, or administrative proceeding in any court, administrative agency or other tribunal. The Releasees may file this Agreement and/or any Settlement-related papers or orders in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, claim or issue preclusion, release, good-faith settlement, judgment bar, or reduction or any other similar defense or counterclaim. The Settling Parties and their counsel, and each of them, agree, to the extent permitted by law, that all agreements made relating to the confidentiality of information shall survive and be unaffected by this Agreement. Non-Publication 16

17 28. Neither Class Counsel nor Liaison Counsel may utilize the terms of this Agreement or any other information or materials related to this Settlement in any way as promotional material, or otherwise publish or post such information or material other than as necessary to communicate or finalize this Settlement with Plaintiffs, the Class members, and the District Court pursuant to this Agreement. Neither Class Counsel nor Liaison Counsel may post, or directly cause to be posted, or otherwise publish, or directly cause to be published, the terms of this Settlement on any website or anywhere else. Class Counsel, on behalf of Plaintiffs and all other Class Members, shall sign a joint motion, the form of which shall be subject to Class Counsel s reasonable approval, which Monomoy shall file seeking the District Court s approval to redact both the Settlement Amount and any other information that may be used to calculate the Settlement Amount from this Agreement and any other paper to be filed with the District Court in furtherance of this Settlement. Counterparts 29. This Agreement may be executed in any number of actual or telecopied (including without limitation, by pdf) counterparts, each of which when so executed and delivered shall be an original. The executed signature page(s) from each actual or telecopied counterpart may be joined together and attached to one such original and shall constitute one and the same instrument. Waiver 30. The waiver by any of the Settling Parties of any breach of this Agreement shall not be deemed or construed as a waiver of any other breach whether prior, subsequent, or contemporaneous of this Agreement. 17

18 Entire Agreement; Amendments 31. This Agreement and the attached Exhibits, incorporated herein by reference, constitute the entire agreement of the Settling Parties with respect to the subject matter hereof, and may not be amended, nor may any of their provisions be waived, except by a writing executed by all Settling Parties. The Settling Parties (a) acknowledge that it is their intent to consummate this Agreement, and (b) agree to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Agreement and to exercise their best efforts to accomplish the foregoing terms and conditions of this Agreement. The Settling Parties intend this Agreement to be a final and complete resolution of all disputes between them, relating to or arising out of the subject matter of these Actions, or which otherwise constitute Released Claims. Accordingly, the Settling Parties agree that the terms of this Agreement represent a good-faith settlement of the Released Claims, reached voluntarily after consultation with experienced counsel. Successors and Assigns 32. This Agreement, upon becoming operative, shall be binding upon and inure to the benefit of the Settling Parties, Releasees, Plaintiff Released Parties and all of their respective successors, assigns, heirs, estates, executors and administrators, as well as any corporation, partnership or entity into or with which any such person or entity may merge or consolidate. Governing Law 33. This Agreement shall be governed by the laws of the United States, including federal common law, except to the extent that, as a matter of federal law, state law controls, in which case New York law will apply without regard to conflict of law principles. 18

19 Continuing Jurisdiction 34. The administration, effectuation, and enforcement of this Agreement, as provided for herein, will be under the authority of the District Court. The District Court will retain continuing and exclusive jurisdiction over the Settling Parties, including all of the Class Members, and over the administration, effectuation, and enforcement of the terms of this Agreement and the benefits to the Class Members, and for such other matters that may properly come before the District Court, including any dispute or controversy arising with respect to the interpretation, enforcement, or implementation of this Agreement or any of its terms. Any such dispute or controversy must be brought to the attention of the District Court by written motion. The Settling Parties and each of the Class Members consent to the jurisdiction of the District Court with respect to any proceedings brought to enforce or interpret this Agreement, and they hereby waive all objections to venue and personal and subject matter jurisdiction in that regard. Best Efforts 35. The Settling Parties and their attorneys agree to cooperate fully with each other in seeking the District Court s approval of this Agreement and the Settlement and to use their best efforts to obtain such approval. Dismissal 19

20 36. Upon entry of a final and non-appealable order of the District Court approving this Settlement, the Settling Parties shall execute a stipulation of dismissal of each of these Actions with prejudice as to Monomoy, and Class Counsel shall promptly file the same with the District Court in each of these Actions. [Signature page follows.] 20

21 [Signature page for Settlement Agreement and Release by and between Plaintiffs Henry Lace, on behalf of himself and all others similarly situated, and Jim Young, on behalf of himself and all others similarly situated, on the one hand, and Defendant Monomoy Capital Partners, L.P., on the other hand, in the District Court for the Northern District of Indiana, Case Nos. 3:12-CV JD-CAN and 3:12-CV JD-CAN.] This day of, BY PLAINTIFFS: JIM YOUNG, on behalf of himself and the Arkansas Class, Jim Young BY SETTLING DEFENDANT: MONOMOY CAPITAL PARTNERS, L.P. By: HENRY LACE, on behalf of himself and the Indiana Class, Henry Lace BY CLASS COUNSEL: HARWOOD FEFFER, LLP Robert I. Harwood, Esq. BY LIAISON COUNSEL: ANDERSON AGOSTINO & KELLER, P.C. [Name] 21

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