Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 1 of 79 Page ID #: Exhibit A

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1 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 1 of 79 Page ID #:14178 Exhibit A

2 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 2 of 79 Page ID #:14179 CLASS ACTION SETTLEMENT AGREEMENT WHEREAS, on December 12, 2012, certain Plaintiffs (capitalized terms are defined in the Definitions section) filed a class action complaint in the Orange County (Cal.) Superior Court captioned Etter et. al. v. Thetford Corp, Norcold, Inc. and Dyson Kissner Moran Corp., Case No CU-BT-CXC; WHEREAS, on January 16, 2013, Defendants removed the case to the United States District Court for the Central District of California pursuant to the Class Action Fairness Act and captioned, Etter et. al. v. Thetford Corp., Norcold, Inc. and Dyson Kissner Moran Corp., No. SACV JLS (RNBx) (C.D. Cal.) ( Etter ); WHEREAS, on or about April 13, 2013, pursuant to leave granted by the Court, Plaintiffs filed a First Amended Complaint in Etter adding certain parties and claims, asserting that the Litigation should proceed as a class action, and alleging, inter alia, that Defendants: (a) misrepresented and/or concealed from the general public and regulators the nature and extent of alleged defects in certain refrigerators; (b) concealed alleged defects in safety devices retrofitted into these refrigerators; (c) established an inadequate and arbitrary testing protocol for these refrigerators; (d) conducted incomplete and inadequate recall and retrofit campaigns; (e) inappropriately limited their recalls to only certain refrigerators and/or customers; and (f) misused their recall and retrofit campaigns to induce customers to purchase additional products; and that Plaintiffs sustained economic loss resulting from Defendants conduct; WHEREAS, on April 29, 2013, Defendants filed an answer to the FAC in Etter, generally denying the allegations; WHEREAS, Defendants deny all material allegations in the Litigation, deny wrongdoing of any kind, deny that they are liable on any claims asserted, and maintain that a class action cannot properly be certified for purposes of litigation and trial, as opposed to for purposes of 1

3 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 3 of 79 Page ID #:14180 settlement; WHEREAS, since Defendants filed an answer to the FAC in Etter, the Parties engaged in significant fact and expert witness discovery and motion practice related to both merits and class certification issues; WHEREAS, on August 28, 2014, a complaint ( Chow Complaint ) was filed on behalf of a national class, commencing Chow et al. v. Norcold, Inc., Thetford Corp., and The Dyson- Kissner-Moran Corp., No. 2:14-cv (C.D. Cal.) ( Chow ), as a related case to Etter; WHEREAS, certain Plaintiffs filed two motions for class certification in Etter in 2014, both of which Defendants opposed; WHEREAS, the Parties class certification briefs filed in Etter highlighted significant legal and factual disputes, which once resolved and decided by the Court would significantly alter the landscape of the case; WHEREAS, prior to the class certification hearing in Etter and any ruling on the motion, when the risks and consequences were significant for all Parties, they agreed to engage in an arm s length mediation of the dispute before the Honorable Carl West (Ret.) at JAMS in Los Angeles to determine if a fair compromise and settlement could be reached considering all applicable and relevant factors and risks; WHEREAS, the Parties, through their respective legal counsel, eventually engaged in six in-person mediation sessions between June 4, 2014, and July 18, 2014, under the supervision of Judge West at JAMS (June 4, 5, 9 and July 7, 17 and 18), as well as numerous other settlement discussions between those dates, all under the supervision of Judge West; WHEREAS, as part of the mediation process before Judge West, certain information was exchanged and considered pertaining to the financial condition, ability to pay a potential judgment, and the risk of a potential bankruptcy filing by Norcold, as well as the financial 2

4 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 4 of 79 Page ID #:14181 condition and ability of Thetford and DKM to loan money to Norcold for the purpose of enabling it to fund this class settlement, and whether Defendants insurers provided coverage for the class claims at issue in the Action, among other things; WHEREAS, as a result of extensive arm s length negotiations, Settling Plaintiffs and Settling Plaintiffs Counsel, on behalf of the Class, and Defendants entered into an Agreement to settle and resolve the class claims alleged in both Etter and Chow in September 2014; WHEREAS, by orders dated October 14, 2014 and June 15, 2015, the Court denied Plaintiffs Motion for Preliminary Approval of the Settlement without prejudice and granted permission to the Settling Plaintiffs to file a renewed Motion for Preliminary Approval of the Settlement after addressing certain issues identified by the Court; WHEREAS, following the June 15, 2015 Order and following the exchange of additional information and additional arms-length negotiations, including those supervised by Judge West, certain settlement terms have been further modified to address the issues identified by the Court, as reflected below; WHEREAS, Settling Plaintiffs and Settling Plaintiffs Counsel, on behalf of the Settlement Class, and Defendants have entered into this revised Agreement to settle and resolve the class claims alleged in both Etter and Chow, while preserving any Reserved Claims; WHEREAS, the undersigned Settling Plaintiffs counsel, have conducted substantial discovery, have investigated the facts and underlying events relating to the subject matter of the claims, have carefully analyzed the applicable legal principles, and have concluded, based upon their investigation, and taking into account the risks, uncertainties, burdens and costs of further prosecution of their claims, consideration of Thetford and DKM s alter ego liability, and Norcold s ability to pay a settlement or potential judgment, and also taking into account the substantial benefits the Class will receive pursuant to this Agreement as set forth below, which, 3

5 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 5 of 79 Page ID #:14182 in the view of the undersigned Settling Plaintiffs and undersigned Settling Plaintiffs Counsel, is designed for the purpose of putting to rest all controversies with Defendants that were or could have been alleged, except the Reserved Claims, and that a resolution and compromise on the terms set forth herein is fair, reasonable, adequate, and in the best interests of the Settling Plaintiffs and the Class; WHEREAS, persons who fall within the definition of the Settlement Class, who desire, may elect to opt out of this Settlement and the Class, or object to the final terms of the Settlement Agreement, all pursuant to their rights under this Settlement Agreement; WHEREAS, Defendants, for purposes of avoiding burden, expense, risk, and uncertainty of continuing to litigate the claims, and putting to rest all controversies with the Settling Plaintiffs, the Class, and Class Counsel, regarding the Action, and/or causes of action that were alleged, or could have been alleged, known or unknown, except the Reserved Claims, and without any admission of liability or wrongdoing, desire to enter into this Settlement Agreement; WHEREAS, the Parties agree this Agreement shall not be deemed or construed to be an admission, concession, or evidence of any violation of any federal, state, or local statute, regulation, rule, or other law, or principle of common law or equity, or of any liability or wrongdoing whatsoever, by Defendants or any of the Released Parties, or of the truth or validity of any of the claims that Plaintiffs have asserted; and, NOW, THEREFORE, without any admission or concession by the Settling Plaintiffs, the Class or the Settling Plaintiffs Counsel of any lack of merit to their allegations and claims in the Litigation, and without any admission or concession by Defendants of any liability, wrongdoing or lack of merit in their defenses in the Litigation, in consideration of the mutual covenants and terms contained herein, and subject to the final approval of the Court, the 4

6 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 6 of 79 Page ID #:14183 undersigned Settling Plaintiffs and Settling Plaintiffs Counsel, on behalf of the Settlement Class, and Defendants agree to compromise, resolve and otherwise settle the Litigation as follows: I. DEFINITIONS A. As used in this Agreement and the attached exhibits (which are an integral part of this Agreement and are incorporated in their entirety by reference), the following terms have the following meanings, unless this Agreement specifically provides otherwise. The plural of any defined term includes the singular, and the singular of any defined term includes the plural, as the case may be: 1. Action, Actions, or the Litigation means the litigation captioned Etter et. al. v. Thetford Corp., Norcold, Inc. and Dyson Kissner Moran Corp., No. SACV JLS (RNBx) (C.D.Cal.) and Chow et al. v. Norcold, Inc., Theford Corp., and The Dyson-Kissner- Moran Corp., No. 2:14-cv (C.D. Cal.). The terms Action, Actions, and Litigation are used synonymously and interchangeably and refer to Etter and Chow, collectively. 2. Administrative Expenses means the fees, costs, advances and expenses of the Claims Administrator for performance of its duties outlined below, including those incurred directly and/or paid to third parties for dissemination of the Class Notice in any form, as ordered by the Court. 3. Agreement or Settlement Agreement means this Settlement Agreement and the exhibits attached hereto or incorporated herein, including any subsequent amendments and any exhibits to such amendments, which are the Settlement. 4. Allocation Plan means the plan described in Section II, Paragraph (D)(3) below. 5. Annual Installments means the First Annual Installment from the Monetary Fund, Second Annual Installment from the Monetary Fund, Third Annual Installment from the Monetary Fund, and Fourth Annual Installment from the Monetary Fund, as described in Section 5

7 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 7 of 79 Page ID #:14184 II, Paragraphs D(1)(i) and D(2)(i) below. 6. Attorneys Fees and Expenses means such funds as may be approved and awarded by the Court after receiving duly filed petitions, to compensate any and all petitioning attorneys and law firms representing Settling Plaintiffs, the Class Representatives and the Class who claim to have assisted in conferring the benefits upon the Class under this Settlement Agreement for their professional time, fees, costs, advances and expenses incurred in connection with the Actions and the Settlement, as described in Section VII below. 7. Chow or Chow Complaint means the case captioned Chow et. al. v. Norcold, Inc., Thetford Corp., and The Dyson-Kissner-Moran Corp., No. 2:14-cv (C.D. Cal.), and filed as a related case to Etter for purposes of this Settlement. If the Court does not approve this Settlement, the Chow Complaint will be dismissed without prejudice and the Action will continue under Etter. Plaintiffs agree to serve the Chow Complaint (and any amended complaints that are filed) on Defendants only in connection with this Settlement and grant an open extension of time to respond to the Chow Complaint. When and if the Court requires Defendants to respond to the Chow Complaint, the Parties agree Defendants will have 30 days from such an order to file a response. 8. Claim means the claim of a Class Member, or his, her or its representative, submitted on a Claim Form in a timely manner as provided in this Agreement. 9. Claim Form means the document, in substantially the same form as Exhibit 1 attached to this Agreement. A Claim Form may be completed and submitted to the Claims Administrator in either hard copy form, and/or electronically by completing the interactive Claim Form on the Settlement Website. 10. Claim Period means the time period in which a Class Member may submit a Claim Form for review to the Claims Administrator. The Claim Period shall run for 120 days 6

8 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 8 of 79 Page ID #:14185 from the date of the dissemination of the Summary Settlement Notice or Short Form Notices by U.S. Mail or initial publication, whichever is later. The expiration of the Claim Period shall be specified in the Summary Settlement Notice, Short Form Notices and on the Settlement Website. 11. Claim Process or Claim Review Protocol means the process for submitting and reviewing Claims described in this Agreement and in Exhibit 6 to this Agreement. 12. Claimant means a Class Member who has submitted a Claim. 13. Claims Administrator means the third-party agent or administrator agreed to by the Parties and appointed by the Court to implement the Claims and settlement requirements of this Agreement, to disseminate the Settlement Notice and Claim Forms by mail and publication, to receive and tabulate Claim Forms returned by Class Members, and to otherwise carry out the duties described below, subject to the Court s approval. The Parties agree that KCC Class Action Services shall serve as Claims Administrator, subject to approval by the Court. 14. Claims Deadline means 120 days from the date the Class Notice was first mailed by the Claims Administrator or published in the legal notice section of USA Today, whichever is later. 15. Class or Settlement Class means, for settlement purposes only: All persons in the United States, who: (i) currently own, or formerly owned, a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit that was manufactured during the time period starting January 1, 2002, and continuing to and including October 1, 2012; and/or (ii) currently own a Norcold N6 Series Gas Absorption Refrigerator or Cooling Unit, or a Norcold N8 Series Gas Absorption Refrigerator or Cooling Unit, manufactured during the time period starting January 1, 2009, and continuing to and including December 31, Specifically excluded from the Class are: (a) any officers, directors or employees of Defendants; (b) any judge assigned to hear this case (or spouse or family member of any assigned judge); (c) any employee of the Court; (d) any 7

9 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 9 of 79 Page ID #:14186 juror selected to hear this case; (e) any person who had claims against Defendants for personal injury, wrongful death or for damage to property in relation to an alleged defective Gas Absorption Refrigerator or Cooling Unit which were fully resolved by way of settlement, dismissal or judgment prior to July 21, 2014; (f) any person who as of July 21, 2014, had a separate lawsuit pending against Defendants in any state or federal court asserting claims related to an alleged defective Gas Absorption Refrigerator or Cooling Unit; (g) any person who purchased a Norcold Gas Absorption Refrigerator as used equipment, either as a stand-alone product or as a component part of a used RV sale, that no longer had a Norcold Cooling Unit installed at the time of purchase but rather had a cooling unit manufactured by a manufacturer other than Norcold at the time of purchase; and, (h) persons who timely and properly exclude themselves from the Class as provided in this Agreement. 16. Class Counsel or Settlement Class Counsel means counsel of record for Plaintiffs who are designated Class Representatives for the Settlement Class by the Court upon the timely filing of a petition requesting to be so designated by the Court. The undersigned Settling Plaintiffs Counsel, Hart Robinovitch, Christopher Ridout, Caleb Marker and J. Gordon Rudd, Jr. of Zimmerman Reed, L.L.P., intend to petition to be designated as Class Counsel by the Court and serve as such, subject to Court approval. 17. Class Member or Settlement Class Member means a member of the Class. 18. Class Notice or Settlement Class Notice means the notice program described in Section III. 19. Class Period means with respect to (a) Class Members who purchased and/or owned a Norcold 1200 Series Gas Absorption Refrigerator, during the time period starting January 1, 2002, and continuing through and including October 1, 2012; and (b) Class Members who currently own an N6 Series or N8 Series Gas Absorption Refrigerator, manufactured by 8

10 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 10 of 79 Page ID #:14187 Norcold, as original equipment, during the time period starting January 1, 2009, and continuing through and including December 31, Class Representatives or Settlement Class Representative means the Plaintiffs who are designated class representatives for the Settlement Class by the Court upon the timely filing of a petition requesting to be so designated. The undersigned Settling Plaintiffs intend to petition to be designated as Class Representatives for the Settlement Class by the Court. 21. Cooling Unit means a cooling unit manufactured by Norcold as original equipment in a Norcold Gas Absorption Refrigerator, whether purchased new or used. 22. Common Settlement Fund or Common Fund of Benefits means the consideration described in Section II, Paragraph (D)(1)(i) herein and includes the Monetary Fund. 23. Court means the United States District Court for the Central District of California. 24. Defendants means Defendants Norcold, Inc., Thetford Corp., and The Dyson- Kissner-Moran Corp., collectively. 25. Defendants Counsel means counsel of record for Defendants: Greg Brown and Robert Bodzin of Burnham Brown and Bryan Merryman of White & Case LLP. 26. Dyson-Kissner-Moran, Dyson-Kissner-Moran Corp., or DKM all mean and refer to Defendant The Dyson-Kissner-Moran Corporation. 27. Eligible Claimant means a Claimant who submitted a Claim Form on a timely basis which is accepted as complete by the Claims Administrator. 28. Etter or Etter Complaint means the case captioned Etter, et. al. v. Thetford Corp., Norcold, Inc., and Dyson-Kissner-Moran Corp., No. SACV JLS (RNBx) (C.D. Cal.). 9

11 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 11 of 79 Page ID #: Exclusion Deadline or Opt-Out Deadline means the date ordered by the Court in the Preliminary Approval Order specifying that any Class Member who wants to be excluded from the Settlement Class and Release must expressly so indicate in the manner described in Section IV. 30. Extended Warranty means the consideration described in Section II, Paragraphs (D)(1)(ii) and (vii)-(ix). 31. FAC in Etter or First Amended Complaint in Etter means the First Amended Complaint, filed in Etter, et. al. v. Thetford Corp., Norcold, Inc. and Dyson-Kissner-Moran Corp., No. SACV JLS (RNBx) (C.D. Cal.) on April 15, FAC in Chow or First Amended Complaint in Chow means the First Amended Complaint, filed in Chow, et al. v. Norcold, Inc., Thetford Corp., and The Dyson- Kissner-Moran Corp., No. 2:14-cv (C.D. Cal.). 33. Fairness Hearing or Final Fairness Hearing means the hearing for the purpose of the Court determining whether to finally approve this Agreement as fair, reasonable, and adequate. 34. Final Effective Date, Effective Date, or ED means the latest date on which the Final Order and/or Final Judgment approving this Agreement becomes final. For purposes of this Agreement: a. if no appeal has been taken from the Final Order and/or Final Judgment, Final Effective Date means the date on which the time to appeal therefrom has expired; or, b. if any appeal has been taken from the Final Order and/or Final Judgment, Final Effective Date means the date on which all appeals therefrom, including petitions for rehearing or re-argument, petitions for rehearing en banc, and petitions for certiorari, or any other form of review, have been finally disposed of in a manner that affirms the Final Order or 10

12 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 12 of 79 Page ID #:14189 Final Judgment; or, c. if Class Counsel and Defendants agree in writing, the Final Effective Date can occur on any other agreed date. 35. Final Judgment means the Court s final judgment as described in Section VIII of this Agreement, which is to be jointly submitted to the Court by the Parties at the appropriate time. 36. Final Order means the Court s order approving the Settlement and this Agreement, as described in Section VIII of this Agreement, which is to be jointly submitted to the Court by the Parties at the appropriate time, prior to the Fairness Hearing. 37. First Annual Installment or First Annual Installment from the Monetary Fund means the first annual installment from the Monetary Fund described in Section IV, Paragraphs D(1)(i)(ii) and D(2)(i)-(iii). 38. Gas Absorption Refrigerator, Refrigerator, or Subject Refrigerator all mean Norcold manufactured as original equipment 1200 Series gas absorption refrigerator, Norcold manufactured as original equipment N8 Series gas absorption refrigerator, and/or Norcold manufactured as original equipment N6 Series gas absorption refrigerator, as those terms are defined herein, whether purchased new or used. 39. Incentive Award or Class Representative Incentive Award means that described in Section VII (E). 40. Individual Claims means the additional non-class, tort claims certain Plaintiffs have against Defendants for personal injury, wrongful death and/or for damage to property other than to the Subject Gas Absorption Refrigerator they currently own and/or previously owned, due to allegations of cooling unit boiler tube leaks or fires. All such claims are considered Reserved Claims and are not released by this Settlement. 11

13 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 13 of 79 Page ID #: Internet Notice means the notice described in Section III, Paragraph (B)(3), substantially in the form attached hereto as Exhibit Long Form Notice means the notice described in Section III, Paragraph (B)(5), substantially in the form attached hereto as Exhibit Monetary Fund means the cash fund described in Section II, Paragraph D(1)(i). 44. NHTSA means the National Highway Transportation Safety Administration. 45. Norcold or Norcold, Inc. means defendant Norcold, Inc. 46. Norcold 1200 Series Gas Absorption Refrigerator, 1200 Series and 1200 are all defined as, and limited to, the following models: 1200, including 1200AC; 1200ACIM; 1200ACIMBK; 1200ACIMBKD; 1200ACIMD; 1200ACIMSS; 1200ACIMSSD; 1200LR; 1200LRBK; 1200LRIM; 1200LRIMBK; 1200LRIMBKD; 1200LRIMD; 1200LRIMSS; 1200LRIMSSD; 1200LRIMWH; 1200LRSS; 1200LRWH; 1201LRIM; 1201LRIMBKD; 1201LRIMD; 1201LRIMSS; 1201LRIMSSD; 1201LRIMWH; 1201LRIMWPM; 1210; 1210AC; 1210ACIM; 1210ACIMBK; 1210ACIMD; 1210ACIMSS; 1210ACIMSSD; 1210ACSS; 1210BK; 1210IM; 1210IMBK; 1210IMBKD; 1210IMD; 1210IMPFS; 1210IMSS; 1210IMSSD; 1210SS; 1211IM; 1211IMSS; 1211IMWPM; and 1211WPM. 47. Norcold N6 Series Gas Absorption Refrigerator, N/6 Series, 6 Series, 600 Series, and N/6 are defined as, and limited to, the following models: N610; N611; N611C; N611F; N611V; N611VF; N615; N620; N621; N621F; N621H; N621SS; N623; N624; N640.3; N640.3F; N641; N641.3; N641.3F; N641.3SS; N641.3WH; N641BK; N641BKF; N641F; N641IM; N641IMBK; N641IMF; N641IMSS; N641IMSSF; N641SS; N641SSF; N641WH; NX611; NX611F; NX641; NX641.3; NX641.3BK; NX641.3F; NX641.3SS; NX641BK; NX641IMSS; and NX641SS. 48. Norcold N8 Series Gas Absorption Refrigerator, N/8 Series, 8 Series,

14 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 14 of 79 Page ID #:14191 Series, and N/8 are all defined as, and limited to, the following models: N810; N811; N811C; N811CF; N811F; N811V; N811VF; N814F2; N820; N821; N821BK; N821BKF; N821F; N821H; N821V; N822; N822F; N823; N824; N841; N841.3; N841.3BK; N841.3F; N841.3SS; N841.3WH; N841BK; N841BKF; N841BKV; N841F; N841IM; N841IMBK; N841IMBKF; N841IMF; N841IMSS; N841IMSSF; N841IMV; N841IMWH; N841SS; N841SSF; N842; N842F; N842IM; N842IMF; N842IMSS; N842IMSSF; N842SS; N842SSF; N843IM; N843IMF; N843IMSS; N843IMSSF; NX811; NX811F; NX841; NX841.3BKF; NX841.3SS; NX841BK; NX841IMF; NX841IMSS; NX841SS; NX841SSF; NXA641; NXA641.3; NXA641IM; NXA841; NXA841.3; NXA841F; NXA841IM; NXA841IMF; 1082; N1095; N1095BK; N1095BKV; N1095C; N1095IM; N1095IMBK; N1095IMSS; N1095IMV; N1095SS; N1095V; and N1095WH. 49. Notice Plan means that described in Section III. 50. Objection Deadline means the date ordered by the Court in the Preliminary Approval Order specifying that any Class Member who wants to object to the terms of the Settlement Agreement expressly so indicate, by filing and serving a written objection in the manner described in Section V below. 51. Parties means the Settling Plaintiffs and Defendants, collectively, as each of those terms is defined in this Agreement. 52. Payment Schedule means the schedule for Defendants to advance funds comprising the Common Settlement Fund to the Claims Administrator for distribution to Eligible Claimants, Class Counsel, the Claims Administrator, and other recipients approved by the Court, consistent with and permitted by this Agreement, as set forth in Section II, Paragraphs (D)(2)-(5) below. 53. Plaintiff or Plaintiffs means any person who appears as a named plaintiff on the 13

15 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 15 of 79 Page ID #:14192 operative complaint in Chow and/or Etter. 54. Plaintiffs Counsel means counsel of record for Plaintiffs in the Litigation, who are: Christopher Ridout, Caleb Marker, Hart Robinovitch, J. Gordon Rudd, Jr. and Bradley Buhrow of Zimmerman Reed, L.L.P., and Terrence Beard of the Law Office of Terrance A. Beard and Tom Loeser of Hagens Berman. 55. Preliminary Approval Date means the date the Court enters the Preliminary Approval Order. 56. Preliminary Approval Order means the order to be entered by the Court preliminarily approving the Settlement as outlined in Section VIII of this Agreement and to be jointly submitted to the Court by the Parties at the appropriate time. 57. Recall or Recalls mean the following recall numbers assigned by the National Highway Transportation Safety Administration ( NHTSA ): 00E-031, 02E-019, , 02E- 045, 08E-30, 09E-26, 09E-027 and 10E Release means the release and waiver set forth in Section VI of this Agreement and in the Final Order and Final Judgment, but shall expressly exclude the Reserved Claims. 59. Released Claims means any claims that were asserted, or that could reasonably have been asserted, in the Action against the Released Parties, or any of them, and that arise out of, or relate in any way to any or all of the acts, omissions, facts, matters, transactions, or occurrences that were, or could have been directly or indirectly alleged, in the Action, as more fully described in Section VI. Notwithstanding any other provision of this Agreement, Released Claims do not include any Reserved Claims. 60. Released Parties or Released Party means Defendants, and each of their past, present and future parents, predecessors, successors, spin-offs, assigns, holding companies, joint ventures and joint venturers, partnerships and partners, members, divisions, stockholders, 14

16 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 16 of 79 Page ID #:14193 bondholders, subsidiaries, related companies, affiliates, officers, directors, employees, associates, dealers, representatives, suppliers, vendors, advertisers, service providers, distributors and subdistributors, agents, attorneys, administrators and advisors. The Parties expressly acknowledge that each of the foregoing is included as a Released Party even though not identified by name herein. The Parties also expressly acknowledge that none of the Released Parties is being provided any release for any Reserved Claims through this Settlement Agreement. 61. Replacement Cooling Unit means a Norcold manufactured as original equipment cooling unit purchased to repair or replace another distinct Norcold cooling unit that was previously installed in a Gas Absorption Refrigerator. 62. Reserved Claims means claims that Class Members have against Defendants for personal injury, wrongful death or for damage to property other than to the Subject Refrigerator they currently own and/or previously owned. Such claims are not released through this Settlement Agreement, but are expressly reserved. 63. Second Annual Installment or Second Annual Installment from the Monetary Fund means the second annual installment from the Monetary Fund described in Paragraphs D(1)(i) and D(2)(i). 64. Settlement means this Class Action Settlement Agreement. 65. Settlement Special Master or Mediator means The Honorable Carl West (Ret.) of Judicial Arbitration and Mediation Services, Inc. ( JAMS ) in Los Angeles, California, or other third party that may be appointed by the Court. 66. Settlement Website means the internet website established by Class Counsel and/or the Claims Administrator, as described in Section III, Paragraph 4 below. 67. Settling Plaintiffs means Plaintiffs who execute the Settlement Agreement by affixing their signatures to this Settlement Agreement below, whether on the original or in 15

17 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 17 of 79 Page ID #:14194 counterpart, prior to the date the Court hears the Motion for Preliminary Approval of this proposed Settlement. 68. Settling Plaintiffs Counsel, Undersigned Plaintiffs Counsel, or undersigned Plaintiffs counsel means, Hart Robinovitch, Christopher Ridout, Caleb Marker, J. Gordon Rudd, Jr. and Bradley Buhrow of Zimmerman Reed, L.L.P., collectively. 69. Short Form Notices means the Short Form Notices described in Section III, Paragraph (B)(1), substantially in the form as attached hereto as Exhibit Summary Settlement Notice means the publication notice described in Section III, Paragraph (B)(2), substantially in the form as attached hereto as Exhibit Thetford or Thetford Corp. means defendant Thetford Corporation. 72. Third Annual Installment or Third Annual Installment from the Monetary Fund means the third annual installment from the Monetary Fund described in Section II, Paragraphs D(1)(i) and D(2)(i). 73. Warranty Period means the time period for which the Extended Warranty shall be in effect for Class Members receiving that Settlement benefit, as described in Section II, Paragraph D(1)(ii) and (vii)-(ix). B. Warranty Special Master means the Better Business Bureau ( or another third-party neutral mutually agreed on by Class Counsel and Defendants, and designated by the Court to administer the warranty dispute resolution process and resolve any such claims. Other capitalized terms used in this Agreement, but not defined in this Section I, shall have the meanings ascribed to them elsewhere in this Agreement. C. The terms he or she and his or her include it or its where applicable. II. TERMS OF AGREEMENT A. COMPROMISE OF HIGHLY-CONTESTED ISSUES 16

18 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 18 of 79 Page ID #:14195 This Settlement represents the compromise of highly contested issues in the Litigation. Defendants in the Litigation, inter alia, deny the material factual allegations asserted in the Litigation; deny Plaintiffs characterization of the nature and extent of Defendants alleged wrongful conduct; deny Plaintiffs characterization of the nature and extent of the alleged defects; assert that any alleged defects are properly addressed through the Recalls; that the Recalls have been approved by NHTSA; that certain class members have modified and altered retrofit devices installed as part of the Recalls, causing damage; that the class claims are barred by the prudential mootness doctrine; that certain claims asserted by Plaintiffs are barred by the economic loss doctrine; maintain that the Litigation does not qualify for class certification in a contested class certification context or for purposes of trial; that claims against them alleging that the subject refrigerators are defective and/or have caused damage have been defeated on the merits; maintain that the claims of numerous class members and Plaintiffs are untimely and barred by the applicable statutes of limitation or repose and that any type of equitable tolling of such statutes of limitation does not apply and/or cannot be established on a classwide basis, among other defenses. Plaintiffs in the Litigation disagree with Defendants positions, assertions and defenses, including those stated above; continue to assert their claims are valid both on the merits, and with regard to class certification and satisfaction of Fed. R. Civ. P. 23 in good faith. All Parties, however, recognize that there exist substantial and significant risks regarding their claims, defenses, and/or the ability of the Class to recover and/or collect any settlement or judgment from Defendants, among other things, and therefore agree to the terms of this Settlement Agreement to resolve this hard-fought, highly-disputed and significant Litigation in light of the risks and uncertainties faced by Plaintiffs and Defendants. This Settlement and compromise was reached at a point in the Litigation when the uncertainty, disputes and risks to all Parties were particularly great, and resolves and compromises the Parties disputes in a fair 17

19 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 19 of 79 Page ID #:14196 manner. B. BENEFITS OF SETTLEMENT The Settling Plaintiffs Counsel, who will seek to be appointed Class Counsel by the Court, have investigated the law and the facts and have conducted discovery on these issues. The Settling Plaintiffs and the Settling Plaintiffs Counsel recognize while greater monetary damages were initially sought, they have taken into account, inter alia, the expense and length of the Litigation that would be necessary to prosecute the Litigation through trial and appeal; the uncertain outcome and the risk of continued and protracted litigation, especially in complex actions such as the Litigation; the difficulties and delays inherent in complex litigation, including potential difficulties in certifying a class, with respect to the merits of the claims presented, establishing alter-ego liability, and/or with respect to statutes of limitations; the inherent uncertainty and problems of proof of, and available defenses to, the claims asserted in the Litigation; as well as in collecting any judgment, if in fact they were to ultimately prevail on the claim alleged at trial and on appeal. The Settling Plaintiffs and the Settling Plaintiffs Counsel believe that considering the foregoing, the Settlement set forth herein represents a reasonable compromise of highly disputed and uncertain legal, factual and procedural issues, confers substantial benefits upon the Class and provides a certain result and recovery for members of the Class, when any recovery should the Litigation continue is completely uncertain. Based on their evaluation of all of these factors, the Settling Plaintiffs and the Settling Plaintiffs Counsel have determined that the Settlement of the Litigation on the terms set forth herein is in the best interests of the Class and is a fair, adequate and reasonable result for the Class. Defendants and their counsel have also considered applicable risks and consequences to them if Plaintiffs were to certify a class and eventually, prevail on the merits of all Class claims at trial in the Litigation and through potential appeals. Defendants have considered and analyzed 18

20 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 20 of 79 Page ID #:14197 legal, factual and procedural defenses to the claims alleged, as well as other options. Defendants and their counsel have determined that the Settlement set forth herein provides a certain result, when the outcome, should the Litigation continue, is uncertain. Multiple days of arm s length settlement negotiations have taken place between the Settling Plaintiffs Counsel and Defendants counsel with the assistance of an experienced mediator, the Honorable Carl West (Ret.). As a result, this compromise and Settlement resolving highly-contested issues in the Litigation has been reached, subject to Court approval pursuant to Fed. R. Civ. P. 23(e) and other applicable law. C. CLASS CERTIFICATION FOR SETTLEMENT PURPOSES The Parties agree and stipulate that the Litigation can and should be certified as a class action for settlement purposes only pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). The Parties agree and stipulate that the Class to be certified for settlement purposes should be defined as: All persons in the United States, who: (i) currently own, or formerly owned, a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit that was manufactured during the time period starting January 1, 2002 and continuing to and including October 1, 2012; and/or (ii) currently own a Norcold N6 Series Gas Absorption Refrigerator or Cooling Unit, or a Norcold N8 Series Gas Absorption Refrigerator or Cooling Unit, manufactured during the time period starting January 1, 2009, and continuing to and including December 31, Specifically excluded from the Class are: (a) any officers, directors or employees of Defendants; (b) any judge assigned to hear this case (or spouse or family member of any assigned judge); (c) any employee of the Court; (d) any juror selected to hear this case; (e) any person who had claims against Defendants for personal injury, wrongful death or for damage to property in relation to an alleged defective Gas Absorption Refrigerator or Cooling Unit which were fully resolved by way of settlement, dismissal or judgment prior to July 21, 2014; (f) any person who as of July 21, 2014, had a separate lawsuit pending against Defendants in any state or federal court asserting claims related to an alleged defective Gas Absorption Refrigerator or 19

21 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 21 of 79 Page ID #:14198 Cooling Unit; (g) any person who purchased a Norcold Gas Absorption Refrigerator as used equipment, either as a stand-alone product or as a component part of a used RV sale, that no longer had a Norcold Cooling Unit installed at the time of purchase but rather had a cooling unit manufactured by a manufacturer other than Norcold at the time of purchase; and (h) persons who timely and properly exclude themselves from the Class as provided in this Agreement. The Parties agree and stipulate that the Settling Plaintiffs should be approved and appointed to serve as the Class Representatives for the Settlement Class, upon petition, subject to Court approval. The Parties agree and stipulate that Hart Robinovitch,. Christopher Ridout, Caleb Marker and Gordon Rudd, Jr. of Zimmerman Reed, L.L.P., upon petition, should be approved and appointed to serve as Class Counsel for the Settlement Class, subject to Court approval. The foregoing does not foreclose other Plaintiffs or counsel of record from timely petitioning to be appointed as a Class Representative or Class Counsel for the Settlement Class, upon demonstration of their qualifications and credentials to be so named, all subject to Court approval. All petitions to be named and appointed a Class Representative(s) or Class Counsel for the Settlement Class by the Court shall be filed no later than twenty-eight (28) days before the date of the hearing on the Motion for Preliminary Approval of this Settlement. Should final approval of the Settlement not be granted by the Court pursuant to Fed. R. Civ. P. 23(e), the Parties retain all rights, arguments and objections they have regarding the propriety of class certification for any purposes other than this Settlement. In such circumstances, Chow will be dismissed, without prejudice, and the FAC in Etter will again become the operative complaint. D. SETTLEMENT CONSIDERATION In consideration of the entry of the Final Judgment in the Litigation and the release of the Released Claims, Defendants will provide the following Common Fund of Benefits to the 20

22 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 22 of 79 Page ID #:14199 Class: 1. Consideration to Class: i. Monetary Fund: If the Settlement is finally approved by the Court, Defendants will pay thirty-six million dollars ($36,000,000.00) to the Class as an all-in common fund cash benefit settlement. This amount will be paid in four installments, according to the Payment Schedule described in Section II, Paragraphs D(2)(i-ii), below. The amount paid by Defendants will be distributed to Class Members who become Eligible Claimants, in four installments, pursuant to the Allocation Plan described in Section II, Paragraph D(5) below, after deduction of court-approved Administrative Expenses, Attorneys Fees and Costs, and Class Representative Incentive Awards, as described in Section II, Paragraphs D(2)-(4) below. Defendants shall have no further obligation to pay any costs, expenses, attorneys fees, incentive payments, or any other costs or expenses, associated with the Settlement. Defendants and any Class Members (including Settling Plaintiffs and Class Representatives) remain free to enter into any separate settlement for resolution and release of Reserved Claims. No portion of the payment(s) for any such separate settlement of Reserved Claims shall come from the Monetary Fund described in Section II, Paragraph D(1)(i). ii. Extended Warranties for Owners of a Norcold N6 and N8 Series Gas Absorption Refrigerators: Defendants shall also provide, at Defendants sole expense, a threeyear extended warranty to Class Members who own a Norcold manufactured as original equipment N8 Series Gas Absorption Refrigerator or Cooling Unit and/or Norcold manufactured as original equipment N6 Series Gas Absorption Refrigerator or Cooling Unit that was manufactured from January 1, 2009, to December 31, 2013, covering replacement (parts and reasonable labor costs) of any cooling unit that fails due to a leak. No warranty shall be provided to any person(s) whose Norcold N8 or N6 Series Gas Absorption Refrigerator or Cooling Unit 21

23 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 23 of 79 Page ID #:14200 was not manufactured as original equipment. iii. Warning Notice to Class Members: The Parties agree that the following warning will be given to Class Members: WARNING: Norcold has recalled all Model 1200 series refrigerators manufactured prior to October 6, The purpose of the recall is to remedy a safety related defect by installing a High Temperature Sensor (HTS). Therefore, if you own such a refrigerator and have not had the HTS installed, you should turn off your refrigerator immediately and call the Norcold Recall Department at (800) to make arrangements to have the HTS installed at no charge to you. If the HTS has been installed and it trips (red light continuously lit), the Refrigerator must always be brought in and checked by a trained technician. It is imperative that you never bypass the HTS. Norcold had previously recalled 6 cubic foot and 8 cubic foot refrigerators with serial numbers to If you own one of these refrigerators and you have not had the original cooling unit replaced you should immediately turn off your refrigerator and contact the Norcold Recall Department at to make arrangements to have your original cooling unit replaced at no cost to you. It is essential that if you are experiencing cooling performance issues with your Refrigerator you immediately take it to a dealer and have it checked by a trained Technician. FAILURE TO FOLLOW THESE INSTRUCTIONS CAN RESULT IN FIRE, CAUSING PROPERTY DAMAGE, INJURY OR DEATH. The warning will be provided in writing to Eligible Claimants at the time of the First Annual Installment from the Monetary Fund, with an instruction to maintain the warning with the RV and Refrigerator manuals and to provide it to subsequent owners/users. 22

24 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 24 of 79 Page ID #: Distribution of Common Fund of Benefits i. Payment Schedule for Monetary Fund: The Common Settlement Fund amount, totaling $36,000,000.00, shall be jointly paid by Defendants in four annual installments of $11,000, for each of the first three installments and a fourth installment of $3,000, The First Annual Installment of $11,000, shall be made 15 days after the Effective Date, provided that $2,000, of the First Annual Installment shall be paid to the Claims Administrator within thirty days of the Preliminary Approval Date for the purpose of providing initial funding for the dissemination of the Class Notice and claims administration. The Second Annual Installment of $11,000, shall be made 365 days after the Effective Date. The Third Annual Installment of $11,000, shall be made 730 days after the Effective Date. The Fourth Annual Installment of $3,000, shall be made 1,095 days after the Effective Date. All payments shall be made by Defendants via wire transfer to the Claims Administrator, who shall deposit said payments into an interest bearing bank account for the benefit of the Class. Each annual installment payment shall then be distributed to Eligible Claimants by the Claims Administrator, pursuant to the Allocation Plan. The Claims Administrator shall provide the payment due to Eligible Claimants in accordance with the Allocation Plan, by mailing a check via U.S. Mail addressed to the most current address provided on the Eligible Claimant s timely submitted Claim Form, or the address updated on the Settlement Website, as soon as practicable, but in no event later than 30 days after the Claims Administrator s receipt of each annual installment payment. Each check shall be valid for a period of no less than 180 days from the date of issuance. ii. Distribution of Monetary Fund to Class Pursuant to Allocation Plan: The Monetary Fund shall be distributed to Class Members who become Eligible Claimants by submitting timely Claim Forms that are reviewed and accepted as complete by the Claims 23

25 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 25 of 79 Page ID #:14202 Administrator in accordance with the Claim Review Protocol. Eligible Claimants shall be entitled to receive payment from the Monetary Fund pursuant to the Allocation Plan. Class Members who do not submit a Claim Form and do not become an Eligible Claimant shall not be entitled to any payment from the Monetary Fund but shall be bound by the Release. Eligible Class Members, however, shall still receive the Extended Warranty if they do not submit a Claim Form. iii. Deduction of Administrative Expenses, Attorneys Fees and Costs, and Class Representative Incentive Awards from the Monetary Fund: Court-approved Administrative Expenses, Attorneys Fees and Costs, and Class Representative Incentive Awards shall be deducted from the Monetary Fund, prior to distribution to the Class Members, in the manner and order described below. The following table is a summary of the Settlement s funding and distributions: Description Payment Date Deductions Amount Date Class Notice and Advance of Claims Preliminary First Administration Approval + Annual $2,000,000 (Any Balance/Deficit 30 days Installment to revert/deduct Third TBD Annual Installment) Remainder of First Annual Installment $9,000,000 Effective Date + 15 days Class Representative Incentive Awards First Installment of Attorneys Fees/Costs Class Member Share Distributions TBD $2,750,000 maximum Residual of Remainder (minimum of $6,250,000 less incentive awards) See Proposed Schedule in Sec. III ED + 45 days ED + 45 days ED + 45 days Second Annual Installment Third Annual $11,000,000 $11,000,000 +/- TBD ED days ED days Second Installment of Attorneys Fees/Costs Class Member Share Distributions Third Installment of Attorneys $2,750,000 maximum Residual (minimum of $8,250,000) $2,750,000 maximum ED days ED days ED days 24

26 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 26 of 79 Page ID #:14203 Installment Fourth Annual Installment (Advance Balance or Deficit) $3,000,000 +/- TBD (Advance Balance or Deficit) Total $36,000,000 ED + 1,095 days ED + 1,305 days Fees/Costs Class Member Share Distributions Fourth Installment of Attorneys Fees/Costs Class Member Share Distributions Distribution to Cy Pres Recipient and/or Escheat to State Residual of Installment +/- Advance Balance/Deficit (minimum of $8,250,000 if no deficit) $750,000 maximum Residual of Installment +/- Advance Balance/Deficit (minimum of $2,250,000 if no deficit) Amount of Uncashed Checks ED days ED days ED days TBD The Settlement consists of a $36,000, Monetary Fund, to be funded in three Annual Installments, as follows: First Annual Installment $11,000, payment by Defendants to Claims Administrator, as follows: a. Advance to Claims Administrator for Notice $2,000, paid 30 days from Preliminary Approval Order, or next business day b. Remainder of First Annual Installment - $9,000,000 paid 15 days from Effective Date, or next business day: i. Less, all Class Representative Incentive Awards paid by Claims Administrator 45 days from Effective Date, or next business day ii. iii. Less, distribution of first installment of Attorneys Fees and Expenses, awarded by Court - paid by Claims Administrator 45 days from Effective Date, or next business day; Remainder to Eligible Claimants in proportion to shares allotted to each under Allocation Plan - paid by Claims Administrator 45 days from Effective Date, or next business day; Second Annual Installment 25

27 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 27 of 79 Page ID #:14204 $11,000, payment by Defendants to Claims Administrator paid 365 days after Effective Date, or next business day; a. Less, distribution of second installment of Attorneys Fees and Expenses, awarded by Court - paid by Claims Administrator no later than 395 days from Effective Date, or next business day; b. Remainder to Eligible Claimants in proportion to shares allotted to each under Allocation Plan - paid by Claims Administrator no later than 395 days from Effective Date, or next business day. Third Annual Installment $11,000, payment by Defendants paid 730 days after Effective Date, or next business day: a. Less distribution of third installment of Attorneys Fees and Expenses, awarded by Court - paid by Claims Administrator no later than 760 days from Effective Date, or next business day; b. Remainder to Eligible Claimants in proportion to shares allocated to each under Allocation Plan - paid by Claims Administrator no later than 760 days from Effective Date, or next business day. (Subject to adjustments described in Paragraph D(2)(v) for excess or deficient funds for Claims Administration). Fourth Annual Installment $3,000, payment by Defendants paid 1065 days after Effective Date, or next business day: a. Less distribution of fourth installment of Attorneys Fees and Expenses, awarded by Court - paid by Claims Administrator no later than 1095 days from Effective Date, or next business day; b. Remainder to Eligible Claimants in proportion to shares allocated to each under Allocation Plan - paid by Claims Administrator no later than 1125 days from Effective Date, or next business day. (Subject to adjustments described in Paragraph D(2)(v) for excess or deficient funds for Claims Administration). iv. Unused or Additional Administrative Expenses. The Claims Administrator shall file with the Court an accounting of all professional fees and expenses incurred to date at least 10 days prior to the Final Fairness Hearing, which shall be updated 26

28 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 28 of 79 Page ID #:14205 periodically on a quarterly basis thereafter, starting 90 days after the Effective Date until the balance of the Monetary Fund is depleted in accordance with this Agreement and equal to $0. If on the 1,025 th day following the Effective Date, the total Administrative Expenses as calculated by the Claims Administrator, do not exceed the $2,000,000.00, or other amount agreed upon by the Parties and approved by the Court, advanced from the First Annual Installment, as described in Section II, Paragraph D(2)(i), the unused difference shall be added to the Fourth Annual Installment from the Monetary Fund, and distributed proportionally to the Eligible Claimants in proportion to their allotted shares under the Allocation Plan. If on the 1,025 th day following the Effective Date, the total Administrative Expenses as calculated by the Claims Administrator, exceed the $2,000,000.00, or other amount agreed upon by the Parties and approved by the Court, advanced from the First Annual Installment, as described in Section II, Paragraph D(2)(i), Class Counsel will petition the Court to have the difference paid to the Claims Administrator from the Third Annual Installment, and the third payment to Eligible Claimants from the Third Annual Installment will be reduced proportionally. v. No Reversion: No portion of the Monetary Fund shall revert to Defendants. vi. Cy Pres / Escheat: If any portion of the Monetary Fund goes unclaimed, or checks go uncashed for 180 days and expire, any residual funds shall be distributed by way of cy pres to Public Citizen or to an alternative charity as may otherwise be directed and approved by the Court. If for any reason, the cy pres award is rejected, disapproved by the Court, or otherwise not distributed, the residual funds from the Monetary Fund shall instead escheat to the State of California, after notice to the Court. vii. Distribution of Extended Warranty Plan to Class Members Who Currently Own N6 and N8 Gas Absorption Refrigerators. Class Members who are current 27

29 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 29 of 79 Page ID #:14206 owners of N6 and N8 Gas Absorption Refrigerators shall automatically be provided the Extended Warranty on the Effective Date for the Warranty Period. This Settlement Agreement serves as the written Extended Warranty for Class Members with N6 and N8 Gas Absorption Refrigerators entitled to receive the Extended Warranty. A Claim Form does not need to be returned for Class Members with N6 and N8 Gas Absorption Refrigerators to receive the coverage of the Extended Warranty provided. The Class Member, however, may be required to establish that he/she satisfies the criteria for membership in the Class at the time he/she makes a warranty claim. viii. Warranty Period: Extended Warranty coverage shall commence and continue, without interruption, for three years from the later of either: (a) the last day that the Class Member s current N6 or N8 Gas Absorption Refrigerator warranty is in effect: or (b) the Effective Date if no current N6 or N8 Gas Absorption Refrigerator warranty is in effect. ix. Dispute Resolution for Warranty Claims: To the extent, any warranty claim presented by a Settlement Class Member to Defendants is rejected, disputed or delayed by Defendants; the Class Member has the right to present the matter to the Warranty Special Master. Such dispute shall be decided on the written submission by each Party and/or a telephonic hearing in the Warranty Special Master s discretion. Fees of the Warranty Special Master shall be divided equally between the Class Member and Defendants, however, if the Warranty Special Master determines that the warranty claim was improperly rejected, disputed or delayed by Defendants, the Warranty Special Master s fees and applicable costs shall be assessed against Defendants. If, however, the Warranty Special Master determines that the warranty claim was properly rejected, disputed or delayed by Defendants, the Warranty Special Master s fees and applicable costs shall not be assessed against the Class Member unless the Warranty Special Master determines that the claim was frivolous or submitted for an improper purpose. The name 28

30 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 30 of 79 Page ID #:14207 and contact information of the Warranty Special Master and general dispute resolution process shall appear on the Settlement Website and remain there throughout the period in which the Extended Warranty remains in effect. 3. Claim Process and Allocation Plan The purpose of the Claim Process and Allocation Plan is to attempt to notify potential Class Members and to distribute benefits from the Common Settlement Fund to the Class in a fair and reasonable manner. The Parties recognize that the Notice Plan, as described in Section III, and the Claim Process, as described in Section II, Paragraph (D) is employed because Defendants do not have current mailing address and contact information for every person in the Class. Further, where Defendants have class member mailing addresses and contact information, they may lack information as to whether the class member still currently owns the refrigerator and/or paid for repair of a cooling unit. In turn, notice to the Class of the Settlement needs to be accomplished by means and mechanisms in addition to U.S. mail, as described in Section III, and an opportunity offered to Class Members to self-identify themselves and to be able to submit a Claim, as described in Section II, Paragraph (D). The Allocation Plan is a reasonable mechanism to allocate the Monetary Fund among Class Members, and an attempt to direct funds to Claimants with potentially larger and/or stronger claims, taking into account several relevant factors. Those factors include, but are not limited to, the lower acquisition cost or purchase price of N6 Series and N8 Series Gas Absorption Refrigerator Cooling Units, in comparison to 1200 Series Gas Absorption Refrigerator Cooling Units; the lower frequency of leak and fire claims on Cooling Units on N6 Series Gas Absorption Refrigerators and N8 Series Gas Absorption Refrigerators, in comparison to Cooling Units for 1200 Series Gas Absorption Refrigerators, as reported on Defendants incident logs; and the lower damage (and certain defenses to, including standing challenges) claims of former owners of 1200 Series Gas Absorption Refrigerators who 29

31 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 31 of 79 Page ID #:14208 never incurred a leak or fire, never paid for repair costs related to the alleged defect, and no longer face the prospect of having to replace or repair their Cooling Unit as a result of any alleged defect. 4. Claim Form Submission Process and Review. i. The Class Notice will be distributed to the Class by the Claims Administrator by U.S. mail, (if address is available), publication and online as described in the Notice Plan. The Class Notice will instruct Class Members desiring to share in the Monetary Fund, that they must submit a Claim Form to the Claims Administrator before the Claims Deadline, attesting under penalty of perjury, to certain facts which confirm their eligibility to become an Eligible Claimant and receive a payment from the Monetary Fund in accordance with the Allocation Plan. The Class Notice will direct Class Members how to obtain an original, additional or replacement copy of the Claim Form by mail, toll-free telephone number, or on the Settlement Website. The Claims Deadline shall appear on both the Long Form Notice and the Claim Form. ii. In order to be eligible for payment from the Monetary Fund pursuant to Section II, Paragraph (D), Class Members must submit a Claim Form to the Claims Administrator during the Claim Period, postmarked on or before midnight on the Claims Deadline. The Claims Administrator shall review, evaluate and approve or disapprove each Claim Form received in accordance with the Claim Review Protocol. The Claim Form shall advise Class Members that the Claims Administrator has the right to request verification of eligibility, including verification of ownership, date of manufacture and date of purchase of the subject Gas Absorption Refrigerator during the Class Period. If the Class Member does not timely comply by submitting a complete Claim Form, the Claim will not be approved, and the Claim shall be disqualified, subject to the limited right to cure described in Section II, Paragraph 30

32 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 32 of 79 Page ID #:14209 (4)(iv) below. The Claims Administrator shall administer the claim relief specified in this Settlement Agreement pursuant to the terms of the Claim Review Protocol, which is attached hereto as Exhibit 6. iii. To be eligible for payment from the Monetary Fund, Class Members must provide the following information to the Claims Administrator, as indicated on the Claim Form and Claim Review Protocol: (a) Name and confirmation of current mailing address, address and telephone number of the Class Member; (b) Identification of the type of Gas Absorption Refrigerator for which a Claim is being made by the Class Member, and to the extent possible the serial number; (c) Confirmation that if the Gas Absorption Refrigerator owned by the Class Member was a 1200 Series, that it was manufactured between January 1, 2002, and October 1, 2012, and is currently owned by the Class Member; (d) Confirmation that if the Gas Absorption Refrigerator owned by the Class Member was a 1200 Series, manufactured between January 1, 2002, and October 1, 2012, is no longer owned by the Class Member, whether to the best of the Class Member s knowledge, the Class Member incurred actual out of pocket expenses to repair and/or to replace the Refrigerator or Cooling Unit due to the alleged defect or incurred a related loss; (e) Confirmation that if the Gas Absorption Refrigerator owned was a N8 Series or N6 Series, that it was manufactured between January 1, 2009, and December 31, 2013, and is currently owned by the Class Member; and, 31

33 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 33 of 79 Page ID #:14210 (f) The following attestation, followed by a signature and date of execution: I declare under penalty of perjury that the foregoing is true and correct. iv. If the Claims Administrator rejects a Claim pursuant to the Claim Review Protocol, it shall promptly notify the Class Member and Class Counsel. If the Claims Administrator denies a Claim pursuant to the Claim Review Protocol, the Class Member or Class Counsel on behalf of the Claimant may request reconsideration and/or reasonable time to cure any perceived defect by supplying additional information. If the Claims Administrator denies a Claim, that was otherwise timely, due to incomplete information, it shall provide the Class Member a reasonable opportunity to cure the defect by resubmitting the Claim Form with corrected and/or supplemental information within 30 days of the Claimant s receipt of the notice of denial. Class Counsel shall be permitted to reasonably assist Class Members in the resubmission of Claim Forms. If corrected and/or supplemental information is not provided by the Class Member within 30 days of receiving notice of the defective or incomplete Claim, the Claim shall be denied, no shares will be allocated to that Class Member under the Allocation Plan and no payment from the Monetary Fund shall be made to that Class Member. v. A Class Member who timely submits a completed Claim Form to the Claims Administrator, which is not disapproved by the Claims Administrator pursuant to the Claim Review Protocol, will be considered to be an Eligible Claimant and will receive payment from the Monetary Fund, in four installments, in accordance with the number of shares allotted to the Class Member under the Allocation Plan. vi. The Claims Deadline shall be 120 days from the date the Class Notice was first mailed by the Claims Administrator or published in the legal notice section of USA Today, whichever is later. vii. One Claim Form per Gas Absorption Refrigerator is permitted to be 32

34 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 34 of 79 Page ID #:14211 submitted by each Class Member for each distinct Gas Absorption Refrigerator or Replacement Cooling Unit owned during the Class Period. Co-owners of each Gas Absorption Refrigerator or Replacement Cooling Unit, such as spouses, are permitted to submit one Claim Form for each distinct Gas Absorption Refrigerator or Replacement Cooling Unit owned during the Class Period. If more than one Claim Form is received from a Class Member or his/her co-owner pertaining to the same Gas Absorption Refrigerator or Replacement Cooling Unit, only the first Claim Form received by the Claims Administrator shall be recognized and accepted. Duplicative Claim Forms for the same Gas Absorption Refrigerator or Replacement Cooling Unit owned by the same Class Member during the Class Period shall be disqualified and disregarded. Class Members, however, shall be permitted to submit an additional Claim Form for each distinct Gas Absorption Refrigerator or Replacement Cooling Unit owned during the Class Period. For example, if a Class Member owned two distinct Gas Absorption Refrigerators or Cooling Units during the Class Period, he/she will be permitted to submit two distinct Claim Forms (one for each separate and distinct Gas Absorption Refrigerator or Cooling Unit) and, in turn, receive two payments from the Monetary Fund based on allotted shares, each in three installments, in accordance with the Allocation Plan and Payment Schedule. Multiple claims for the same Gas Absorption Refrigerator or Cooling Unit will not be accepted. viii. Claim Forms may be completed and submitted to the Claims Administrator in either hard copy form (by mail, facsimile, or attaching a PDF copy), and/or electronically by completing the interactive Claim Form on the Settlement Website. 5. Allocation Plan i. Shares in the Monetary Fund: The Claim Form requires the Class Member seeking to be an Eligible Claimant to declare under penalty of perjury: (a) the type of Gas Absorption Refrigerator or Cooling Unit owned, including serial number and date of 33

35 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 35 of 79 Page ID #:14212 purchase (if available); (b) whether it is currently or formerly owned and that it was manufactured during the Class Period; and (c) whether any out of pocket expenses were incurred by the Class Member to repair and/or to replace the Refrigerator or Cooling Unit, believed in good faith to result from the alleged defect (i.e., a cooling unit leak or fire). Based on the responses provided, each Eligible Claimant will fall into a distinct category and be allocated the number of shares associated with that category, by the Claims Administrator, as set forth in Section II, Paragraph (D)(5)(ii)(a)-(d). ii. Applicable Categories of Eligible Claimants: The Claims Administrator shall apply the following to each Claim Form received from an Eligible Claimant, for purposes of apportioning the Monetary Fund and determining each Eligible Claimant s share of the Monetary Fund: (a) Each Class Member who attests on a timely submitted Claim Form that he/she currently owns a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit, manufactured between January 1, 2002, and October 1, 2012, shall be allotted 25 shares of the Monetary Fund; (b) Each Class Member who attests on a timely submitted Claim Form that he/she formerly owned a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit, manufactured between January 1, 2002, and October 1, 2012, and incurred out of pocket expenses to repair and/or to replace the Gas Absorption Refrigerator or Cooling Unit, or incurred a related loss, shall be allotted 25 shares of the Monetary Fund; (c) Each Class Member who attests on a timely submitted Claim Form that he/she formerly owned a Norcold 1200 Series Gas Absorption Refrigerator or Cooling Unit, manufactured between January 1, 2002, and October 1, 2012, but has not incurred any out of pocket expenses to repair and/or to replace the Refrigerator or Cooling Unit shall be allotted 1 34

36 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 36 of 79 Page ID #:14213 share of the Monetary Fund; (d) Each Class Member who attests on a timely submitted Claim Form that he/she currently owns a Norcold N8 Series Gas Absorption Refrigerator or Cooling Unit, or a Norcold N6 Series Gas Absorption Refrigerator or Cooling Unit manufactured between January 1, 2009, and December 31, 2013, shall be allotted 5 shares of the Monetary Fund. This benefit will be provided to such Eligible Claimants in addition to the Extended Warranty. iii. Payment from Net Monetary Fund According to Allotted Shares: At the end of the Claim Period, the Claims Administrator shall tabulate the total number of timely submitted Claim Forms by all Eligible Claimants, and the total number shares that those Eligible Claimants Claim Forms represent pursuant to the categories described in Section II, Paragraph (D)(5)(ii)(a)-(d). The Monetary Fund, less any Court Awarded Attorneys Fees and Expenses, Administrative Expenses, and Class Representative Incentive Awards, shall then be divided into that number of shares and a per-share value determined. Each Eligible Claimant shall then be entitled to receive payment equal to the total number of shares he/she is allotted pursuant to the categories described in Section II, Paragraph (D)(5)(ii)(a)-(d), multiplied by the per-share amount. Payment of that amount to Eligible Claimants shall be made in four separate installments, according to the Payment Schedule described in Section II, Paragraph (D)(2). E. EFFECT ON EXISTING WARRANTIES OR CUSTOMER SATISFACTION PROGRAMS Nothing in the Settlement Agreement will be construed as adding to, diminishing or otherwise affecting any express or implied warranty, duty or contractual obligation of Defendants in connection with the Settlement Class Members refrigerators, except as it relates to the matters at issue in the Litigation. Defendants shall continue to implement any Recall they have undertaken. Nothing in this Agreement shall affect or be interpreted to release Defendants 35

37 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 37 of 79 Page ID #:14214 responsibility to report to the NHTSA under applicable law, respond to NHTSA inquiries, and/or to otherwise comply with NHTSA directives and applicable regulations. Defendants may continue to implement any customer satisfaction or goodwill policy, program or procedure in their discretion, and may extend goodwill consideration to individual Class Members on a case by case basis, without regard to their entitlement to relief under the Settlement Agreement. III. NOTICE TO THE CLASS A. PROPOSED NOTICE AND CLAIMS ADMINISTRATION SCHEDULE The Parties agree to the following schedule relating to Class Notice and the administration of the Settlement. The Parties agree that the Court has the discretion to modify this schedule as part of the preliminary and final approval process. Event Court Preliminarily Approves Settlement Defendants Provide Class Contact Information to Claims Administrator Claims Administrator / Class Counsel to Publish Settlement Website Time Period X X + 10 days X + 7 days 36

38 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 38 of 79 Page ID #:14215 Defendants to Pay $2M Advance of First Annual Installment to Claims Administrator Claims Administrator to Mail Short Form Notice to Known Addresses Claims Administrator to Publish Summary Notice Claims Administrator to Commence Publication of Internet Notice Class Counsel to File Motion for Final Approval of Class Action Settlement Class Counsel to File Motion for Approval of Attorneys Fees and Costs Deadline to Submit Claim Form Deadline to Submit Request for Exclusion Deadline to Mail and File Objection Claims Administrator to File List of Class Members Seeking Exclusion (Opt Outs) Deadline for Parties to Respond to Objections X + 30 days X + 30 days X + 30 days X + 30 days (continuing days through Deadline to Submit Claim Forms or X days) X days X days X days X days X days X days (10 days before Final Fairness Hearing) X days Final Fairness Hearing [Minimum of X + 168] Court Enters Final Judgment Approving Class Action Settlement Effective Date of Settlement Defendants to Pay Remainder of First Annual Installment First Payments to Class Representatives, Class Counsel and Class Members Defendants to Pay Second Annual Installment Second Payments to Class Counsel and Class Members Claims Administration Balance/Deficit Adjustment Defendants to Pay Third Annual Installment Third Payments to Class Counsel and Class Members Defendants to Pay Fourth Annual Installment Y Z (Y + 61 days) Z + 15 days Z + 45 days Z days Z days Z days Z days Z days Z + 1,095 days 37

39 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 39 of 79 Page ID #:14216 Fourth and Final Payments to Class Counsel and Class Members Uncashed Remainder to Cy Pres Recipients/Escheat to State Z + 1,125 days Z + 1,305 days B. COMPONENTS AND COST OF CLASS NOTICE Class Notice will be accomplished through a combination of the Short Form Notices, Summary Settlement Notice, notice through the Settlement Website, Long Form Notice, Internet Notice, and other applicable notice, each of which is described below, as specified in the Preliminary Approval Order, the declaration of the Claims Administrator, and this Agreement and in order to comply with all applicable laws, including, but not limited to, Fed. R. Civ. P. 23, the Due Process Clause of the United States Constitution, and any other applicable statute, law or rule. 1. Short Form Notices Beginning not later than 10 days after the Preliminary Approval Date, Defendants shall forward the last known names and addresses of Class Members to the Claims Administrator in Excel format, or other format as agreed. Beginning not later than 30 days after the Preliminary Approval Date, the Claims Administrator shall send the Short Form Notices, substantially in the form attached hereto as Exhibit 5, by U.S. Mail, proper postage prepaid, to the addresses of Class Members as identified by Defendants and forwarded to the Claims Administrator. This will be done as part of efforts to notify Class Members who may be eligible for the cash payment from the Monetary Fund pursuant to Section II, Paragraph (D) above. The Short Form Notices shall inform Class Members how to obtain copies of the Long Form Notice and Claim Form from the Claims Administrator via the Settlement Website, via regular mail, via or via a toll-free telephone number. In addition, the Claims Administrator shall: (a) r any notices returned by the United States Postal Service with a forwarding address within 15 days of its receipt of the returned notice; (b) by itself or using one or more address research firms, as soon as practicable following receipt of any returned notices that do not include a forwarding address, research such returned mail for better addresses and promptly mail copies of the applicable notice to any better 38

40 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 40 of 79 Page ID #:14217 addresses so found. 2. Summary Settlement Notice Beginning not later than 30 days after the Preliminary Approval Date, the Claims Administrator shall cause the publication of the Summary Settlement Notice in the following newspapers, magazines (including online versions) and/or other media outlets as agreed upon by the Parties, to the extent each publication accepts the notice for publication: USA Today (national edition) TrailerLife MotorHome COAST The Summary Settlement Notice shall be placed in no less than two editions of the listed publications following the Preliminary Approval Date. This will be done as part of efforts to notify Class Members who may be eligible for the cash payment from the Common Settlement Fund pursuant to Section II above. The Summary Settlement Notice shall inform potential Class Members how to obtain the Long Form Notice and the Claim Form via the Settlement Website, via regular mail, via , or via a toll-free telephone number. The form of Summary Settlement Notice agreed upon by the Parties is in the form substantially similar to the one attached to the Agreement as Exhibit 3. If any of the foregoing publications declines to publish the Summary Settlement Notice, the Claims Administrator shall promptly cause additional publication, of equal cost, to be made in the other publications listed above, and/or by increased publication of the Internet Notice, in the manner described in Section III, Paragraph (B)(3). 3. Internet Notice In addition, beginning not later than 30 days after the Preliminary Approval Date, the Claims Administrator shall cause the publication of the Internet Notice on the following RV-user related internet websites, as agreed upon by the Parties. The Internet Notice will be shown during the Claim Period on all or some of the following websites: RV.net ( RVTalk ( 39

41 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 41 of 79 Page ID #:14218 RVForum.net ( Escapees Forum ( RV-Dreams Community Forum ( RVLivin' ( irv2 Forums ( Full Time RVers ( 4 Seasons Camping Forum ( Toy Hauler Magazine Forum ( Truck Camper Forums ( RV.net Blogs ( RV Travel Blogs ( RV There Yet Blogs ( Family Motor Coach Association ( The Internet Notice shall be run as proposed by the Claims Administrator, including at least 50 million banner advertisement impressions and 50 million text advertisement impressions on social media sites, and/or as approved by the Court, during the Claim Period following the Preliminary Approval Date, and continuing through and including the Claims Deadline. This will be done as part of efforts to notify Class Members who may be eligible for the cash payment from the Monetary Fund pursuant to Section II above, as to how to submit a Claim. The Internet Notice shall inform Class Members of the Settlement Website, to the extent practical, by text listing of the URL and/or by hyperlink, which by clicking will enable them to access the Settlement Website and obtain copies of the Long Form Notice and Claim Form, among other documents. The form of the Internet Notice agreed upon by the Parties is in the form substantially similar to the one attached to the Agreement as Exhibit Settlement Website Beginning not later than 7 days after the Preliminary Approval Date, the Claims Administrator and Class Counsel shall establish and maintain a Settlement Website that will inform Class Members of the terms of this Agreement, their rights, dates and deadlines and related information. The Settlement Website shall include copies of relevant pleadings and documents including the operative complaint, any answers to the complaints filed by Defendants, 40

42 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 42 of 79 Page ID #:14219 the Settlement Agreement with all exhibits, the Long Form Notice and Claim Form. The Settlement Website may also have a section for frequently asked questions, as well as a portal for Class Members to submit questions via confidential to Settling Plaintiffs Counsel for a confidential response. Defendants shall have the right to review and consent to the form of the publicly available frequently asked questions and answers section, consent for which shall not be unreasonably withheld. Questions submitted to Class Counsel through the portal shall constitute confidential and privileged communication seeking legal advice, which questions and responses Defendants shall not see. The Settlement Website will also have a section whereby Class Members can register their current mailing address and/or update their address or provide optional additional contact information, such as an address or cellphone number. Address information shall be promptly provided to the Claims Administrator. 5. Long Form Notice i. Contents of Long Form Notice. The Long Form Notice shall be in a form substantially similar to the document attached to this Agreement as Exhibit 2, and shall advise Class Members of the following: a. General Terms: The Long Form Notice shall contain a plain and concise description of the nature of the Actions, the history of the Litigation, the preliminary certification of the Class for settlement purposes, the risks of continued litigation, and the proposed Settlement, including information on the identity of Class Members, how the proposed Settlement would provide relief to the Class and Class Members, what claims are released under the proposed Settlement and other relevant terms and conditions. b. Opt-Out Rights: The Long Form Notice shall inform Class Members that they have the right to opt out of the Settlement. The Long Form Notice shall provide in summary form the deadlines and procedures for exercising this right, as set forth in 41

43 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 43 of 79 Page ID #:14220 Section IV. c. Objection to Settlement: The Long Form Notice shall inform Class Members of their right to object to the proposed Settlement and appear at the Final Fairness Hearing. The Long Form Notice shall provide in summary form the deadlines and procedures for exercising these rights, as set forth in Section V. d. Appearance Through Counsel: The Long Form Notice shall inform Class Members of their right to enter an appearance through their own counsel of choice, at their own expense, and if they do not, they will be represented by Class Counsel, who will be supporting the Settlement and its approval by the Court. e. Professional Fees and Litigation Expenses: The Long Form Notice shall inform Class Members about the amounts which Class Counsel may petition for as Attorneys Fees and Expenses and the amounts which the Class Representatives may petition for as individual incentive awards. The Long Form Notice will explain that any such amounts awarded will be pursuant to the Court s discretion and approval and be deducted from the Monetary Fund, reducing the amount of each Eligible Claimant s payment. ii. Claim Forms The Long Form Notice and Settlement Website shall include the Claim Form, which shall be in a form substantially similar to the documents attached to this Agreement as Exhibit 1. The Long Form Notice and Settlement Website shall inform the Class Member that, to be considered an Eligible Claimant eligible to obtain a share of the Monetary Fund, he or she must fully complete and timely return the completed Claim Form, received by the Claims Administrator: (1) by or fax by midnight Pacific Time on the last day of the Claim Period; (2) postmarked on or before the last day of the Claim Period; or (3) by submitting the electronic Claim Form via the mechanism on the Settlement Website. 42

44 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 44 of 79 Page ID #:14221 iii. Dissemination of Long Form Notice and Claim Form. The Long Form Notice and Claim Form shall be available on the Settlement Website. In addition, the Claims Administrator shall send via first-class mail, the Long Form Notice and Claim Form to those persons who request it in writing, by electronic mail, or through the dedicated toll-free telephone number established and monitored by the Claims Administrator for purposes of this Settlement. The mailing address, and toll-free telephone number to be used to request the Long Form Notice and Claim Form from the Claims Administrator shall be printed on the Short Form Notice, Summary Notice, and Settlement Website. Additionally, the and toll-free number to be used to request the Long Form Notice and Claim Form shall be displayed, to the extent possible, on the Internet Notice. iv. Toll-Free Telephone Number The Claims Administrator shall establish a toll-free telephone number that will provide information regarding the Settlement to Class Members. The toll-free telephone number shall have a voice mailbox associated with it where Class Members can leave contact information, address updates and information, requests for the Long Form Notice and Claim Form, and requests to be called back by Class Counsel. C. SELF-IDENTIFICATION Because the list of potential Class Members and contact information possessed by Defendants may not be fully accurate in all respects and does not identify every Class Member (as well as his/her current address and contact information; whether he or she is a former or current owner of the Norcold refrigerator; and/or whether he or she incurred repair / replacement expenses with regard to the alleged defective cooling unit) eligible to submit a Claim to receive a payment under the Agreement, Class Members must complete and file a Claim Form (using the Claim Form attached as Exhibit 1, and attest to necessary information identified in the Claim 43

45 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 45 of 79 Page ID #:14222 Form timely indicating that he/she wishes to and is eligible to receive a payment, equal to his/her allocated share of the Monetary Fund, pursuant to Section II, Paragraph (D)). D. CLASS ACTION FAIRNESS ACT NOTICE Defendants shall send to each appropriate state and federal official, the materials specified in 28 U.S.C and otherwise comply with its terms and deadlines. The identities of such officials and the content of the materials shall be mutually agreeable to the Parties. E. DUTIES OF THE CLAIMS ADMINISTRATOR 1. The Claims Administrator shall be responsible for, without limitation: (a) printing, mailing or arranging for the mailing of the Short Form Notices; (b) handling returned mail not delivered to Class Members; (c) attempting to obtain updated address information for any Short Form Notices returned without a forwarding address; (d) making any additional mailings required under the terms of this Agreement; (e) responding to requests for the Long Form Notice, by mail, telephone, or otherwise; (f) receiving and maintaining on behalf of the Court any correspondence with Class Members regarding requests for exclusion and/or objections to the Settlement; (g) forwarding written inquiries to Class Counsel for a response, if warranted; (h) establishing and maintaining a post-office box, toll-free telephone number, facsimile number, voic and electronic mailboxes, as necessary for the receipt of any correspondence or Claim Forms from class members; (i) responding to requests from Class Counsel and/or Defendants Counsel; (j) fulfilling any escheatment obligations that may arise; and (k) otherwise implementing and/or assisting with the dissemination of the Notice Plan. The Claims Administrator shall also be responsible for, without limitation, implementing the terms of the Claim Process, administering and reviewing Claim Forms received from Class Members, managing the Allocation Plan, disbursing payments from the Monetary Fund to Eligible Claimants and related administrative activities. 44

46 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 46 of 79 Page ID #: If the Claims Administrator fails to perform adequately on behalf of Defendants, the Settling Plaintiffs, or the Class, the Parties may agree to remove and replace the Claims Administrator. Under such circumstances, the other Party shall not unreasonably withhold consent to remove the Claims Administrator, but this event shall occur only after Class Counsel or Defendants Counsel, have attempted to resolve any disputes regarding the retention or dismissal of the Claims Administrator in good faith, and, if they are unable to do so, after the matter has been referred to the Court for resolution. 3. The Claims Administrator may retain one or more persons to assist in the completion of his or her responsibilities. 4. Not later than 14 days before the date of the Fairness Hearing, the Claims Administrator shall file with the Court a declaration: (i) attaching a list of those persons who timely opted out or excluded themselves from the Settlement; and (ii) attaching a list of those persons who timely objected to the Settlement, along with a copy of their written objections. The Claims Administrator shall file with the Court a declaration outlining the scope, method and results of the notice program. 5. The Claims Administrator shall promptly provide copies of any requests for exclusion, objections and/or related correspondence to Class Counsel. IV. REQUESTS FOR EXCLUSION A. Any Class Member who wishes to be excluded from the Class must: (1) mail a written request for exclusion to the Claims Administrator at the address provided in the Long Form Notice, postmarked by the Exclusion Deadline ordered by the Court in the Preliminary Approval Order; or, (2) send a written request for exclusion to the Claims Administrator by e- mail or fax, at the address or numbers provided in the Long Form Notice, before midnight Pacific Time on the Exclusion Deadline, specifying that he or she wants to be excluded from the 45

47 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 47 of 79 Page ID #:14224 Class, not participate in the Settlement and not receive any Settlement benefits, and otherwise comply with the terms stated in the Long Form Notice and Preliminary Approval Order. The Exclusion Deadline shall be 150 days from the Preliminary Approval Date. The Claims Administrator shall forward copies of any written requests for exclusion to Class Counsel and Defendants Counsel. A list reflecting all requests for exclusion shall be filed with the Court by the Claims Administrator, via declaration, no later than 14 days before the Fairness Hearing. If a potential Class Member files a request for exclusion, he or she may not file an objection under Section V. If any Class Member files a timely request for exclusion, he/she will not be a member of the Settlement Class, will not release any Claims pursuant to this Settlement or be subject to the Release, and will reserve all Claims he/she may have. B. Any potential Settlement Class Member who does not file a timely written request for exclusion as provided in Section IV shall be bound by all subsequent proceedings, orders and judgments, including, but not limited to, the Release, Final Order and Final Judgment in the Action. The foregoing sentence, however, does not apply to the Reserved Claims which are not subject to the Release. V. OBJECTIONS TO SETTLEMENT A. Any Class Member (including Plaintiffs and Class Representatives) who has not filed a timely written request for exclusion and who wishes to object to the fairness, reasonableness, or adequacy of this Agreement or the proposed Settlement, or to the award of Attorneys Fees and Expenses, or the Incentive Awards to the Class Representatives, must deliver to Class Counsel identified in the Class Notice and to Defendants Counsel, and file with the Court, postmarked before midnight on the Objection Deadline ordered by the Court, a written statement describing his or her objections in the specific manner set forth in this Section. The Objection Deadline shall be 150 days from the Preliminary Approval Date. Any such objection 46

48 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 48 of 79 Page ID #:14225 shall include: (1) Full name of Objector (2) Full address of Objector (3) the specific reason(s), if any, for the objection, including any legal support the Class Member wishes to bring to the Court s attention; (4) copies of any evidence or other information the Class Member wishes to introduce in support of the objections; (5) a statement of whether the Class Member intends to appear and argue at the Fairness Hearing; and (6) the individual Class Member s written signature, with date. Class Members may do so either on their own or through an attorney retained at their own expense, however, each individual Class Member objecting to the Settlement, in whole or part, shall personally sign the objection. The objection must also include proof that he or she falls within the definition of the Class, including identification of the Gas Absorption Refrigerator owned. In addition, any Class Member objecting to the Settlement shall provide a list of all other objections submitted by the objector, or the objector s counsel, to any class action settlements submitted in any state or federal court in the United States in the previous five years. If the Settlement Class Member, or his, her or its counsel, has not objected to any other class action settlement in the United States in the previous five years, he, she or it shall affirmatively so state in the objection. Class Members who file an objection may be subject to discovery on matters related to their objection, including depositions. B. Any Class Member (including Plaintiffs and Class Representatives) who files and serves a written objection, as described in the preceding Section V(A), may appear at the Fairness Hearing, either in person or through personal counsel hired at the Class Member s own expense, to object to the fairness, reasonableness, or adequacy of this Agreement or the proposed Settlement, or to the award of Attorneys Fees and Expenses, or Incentive Awards to the individual Plaintiffs and/or the Class Representatives. Class Members or their attorneys who intend to make an appearance at the Fairness Hearing must deliver a notice of intention to appear to at least one of the Class Counsel identified in the Class Notice and to Defendants counsel, 47

49 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 49 of 79 Page ID #:14226 and file said notice with the Court, on or before the Objection Deadline ordered by the Court. The notice of intention to appear must include copies of any papers, exhibits, or other evidence that the objecting Class Member (or the objecting Class Member s counsel) will present to the Court in connection with the Fairness Hearing. C. Plaintiffs designated as Class Representatives by the Court maintain their right to support or object to the Settlement terms and may petition the Court for an Incentive Award, which is not guaranteed in any amount, but awarded, if at all, by the Court in its discretion. D. Any Class Member who fails to comply with the provisions of Sections V(A) and V(B) above shall be deemed to have waived and forfeited any and all rights he or she may have to appear separately and/or to object at or during the Final Fairness Hearing or in any other proceeding in this Litigation, and shall be bound by all terms of this Agreement and by all proceedings, orders and judgments, including, but not limited to, the Release, the Final Order, and the Final Judgment in the Action. The exclusive means for any challenge to this Settlement shall be through the provisions of this Section V. Without limiting the foregoing, any challenge to the Settlement, Final Approval Order, or Final Judgment shall be pursuant to appeal under the Federal Rules of Appellate Procedure and not through a collateral attack. E. Any Class Member (including any Plaintiff or Class Representative) who objects to the Settlement shall be entitled to all benefits of the Settlement if this Agreement and the terms contained herein are approved, as long as the objecting Class Member complies with all requirements of this Agreement applicable to Class Members, including the timely submission of Claim Forms, petitions, and other requirements and deadlines set forth herein. VI. RELEASE AND WAIVER A. The Parties agree to the following release and waiver, which shall take effect upon entry of the Final Order and Final Judgment. 48

50 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 50 of 79 Page ID #:14227 B. In consideration for the Settlement, the Settling Plaintiffs, Class Representatives, and each Class Member, on behalf of themselves and any other legal or natural persons who may claim by, through or under them, agree to fully, finally and forever release, relinquish, acquit, discharge and hold harmless the Released Parties from any and all claims, demands, suits, petitions, liabilities, causes of action, rights, and damages of any kind and/or type regarding the subject matter of the Action, including, but not limited to, compensatory, exemplary, punitive, expert, and/or attorneys fees, or by multipliers, whether past, present, or future, mature, or not yet mature, known or unknown, suspected or unsuspected, contingent or non-contingent, derivative or direct, asserted or unasserted, whether based on federal, state or local law, statute, ordinance, regulation, code, contract, common law, or any other source, or any claim of any kind related, arising from, related to, connected with, and/or in any way involving the Action, the subject Gas Absorption Refrigerators, or cooling units, that are, or could have been, defined, alleged or described in the Litigation, including, but not limited to, the design, manufacturing, advertising, testing, marketing, functionality, servicing, sale, lease or resale of the subject Gas Absorption Refrigerators, or cooling units. C. Notwithstanding the foregoing, the Settling Plaintiffs, Plaintiffs, Class Representatives, and Class Members, are not releasing claims for personal injury, wrongful death or actual physical property damage arising from a leak, fire or other accident involving any Subject Gas Absorption Refrigerator pursuant to this Settlement Agreement. Such claims are considered Reserved Claims and, as such, are expressly reserved by all Settling Plaintiffs, Plaintiffs, Class Members and Class Representatives and excluded from the Release. Defendants retain the right to assert any defense(s) they may have against any Reserved Claim presented by any Settling Plaintiff, Plaintiff, Class Representative, and/or Class Member. D. The Final Order and Final Judgment will reflect these terms. 49

51 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 51 of 79 Page ID #:14228 E. Settling Plaintiffs, Class Members and Class Representatives expressly agree that this Release, the Final Order, and/or the Final Judgment is, will be, and may be raised as a complete defense to, and will preclude any action or proceeding encompassed by, this Release. F. Settling Plaintiffs, Class Members and Class Representatives shall not, now or hereafter, institute, maintain, prosecute, and/or assert, any suit, action, and/or proceeding, against the Released Parties, either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to the claims, causes of action and/or any other matters released through this Settlement. G. In connection with this Agreement, Settling Plaintiffs, Class Members and Class Representatives acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true concerning the subject matter of the Action and/or the Release herein. Nevertheless, Settling Plaintiffs and Class Members intend to, and do hereby, fully, finally and forever settle, release, discharge, and hold harmless all such matters, and all claims relating thereto which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action or proceeding) with respect to the Action, except for the Reserved Claims. H. Settling Plaintiffs, Class Members and Class Representatives expressly understand and acknowledge, that with respect to the Released Claims only, all Settling Plaintiffs, Class Members and Class Representatives will be deemed by the Final Order and Final Judgment to acknowledge and waive Section 1542 of the Civil Code of the State of California, which provides that: 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. 50

52 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 52 of 79 Page ID #:14229 With regard to the Released Claims, Settling Plaintiffs, Class Members and Class Representatives expressly waive and relinquish any and all rights and benefits that they may have under, or that may be conferred upon them by, the provisions of Section 1542 of the California Civil Code, or any other law of any state or territory that is similar, comparable or equivalent to Section 1542, to the fullest extent they may lawfully waive such rights. The foregoing paragraph does not apply to the Reserved Claims. I. Settling Plaintiffs and Class Representatives represent and warrant that they are the sole and exclusive owners of all claims that they personally are releasing under this Agreement. Settling Plaintiffs and Class Representatives further acknowledge that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that Settling Plaintiffs and Class Representatives are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. Class Members, by submitting a Claim Form, represent and warrant therein that they are the sole and exclusive owner of all claims that they personally are releasing under the Settlement, and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of, or in any way whatsoever pertaining to, the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that such Class Member(s) are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action, or in any benefits, proceeds or values under the Action. J. Without in any way limiting its scope, and, except to the extent otherwise 51

53 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 53 of 79 Page ID #:14230 specified in the Agreement, this Release covers by example and without limitation, any and all claims for attorneys fees, costs, expert fees, consultant fees, interest, litigation fees, costs or any other fees, costs, and/or disbursements incurred by any attorneys, Class Counsel, Class Representatives, or Class Members who claim to have assisted in conferring the benefits under this Settlement upon the Class. K. In consideration for the Settlement, Defendants and their past or present officers, directors, employees, agents, attorneys, predecessors, successors, affiliates, subsidiaries, divisions, and assigns shall be deemed to have, and by operation of the Final Approval Order shall have, released the Settling Plaintiffs, Class Counsel, Class Representatives and each Class Member from any and all causes of action that were or could have been asserted pertaining solely to the conduct in filing and prosecuting the Litigation or in settling the Action. L. The Settling Plaintiffs, Class Representatives, and Settling Plaintiffs Counsel acknowledge that they have conducted sufficient independent investigation and discovery to enter into this Settlement Agreement. M. The Parties specifically understand that there may be further pleadings, discovery requests and responses, testimony, or other matters or materials owed by the Parties pursuant to existing pleading requirements, discovery requests, or pretrial rules, procedures, or orders, and that, by entering into this Agreement, the Parties expressly waive any right to compel, receive, hear, or inspect such pleadings, testimony, discovery, or other matters or materials. N. Nothing in this Release shall preclude any action to enforce the terms of the Agreement, including participation in any of the processes detailed herein. Any motion or proceeding to enforce the terms of the Settlement Agreement, in whole or in part, shall be before the United States District Court for the Central District of California, which shall retain jurisdiction over the matter for such purposes. 52

54 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 54 of 79 Page ID #:14231 O. The Settling Plaintiffs, Class Representatives and Settling Plaintiffs Counsel hereby agree and acknowledge that the provisions of this Release together constitute an essential and material term of the Agreement and shall be included in any Final Order and Final Judgment entered by the Court. P. Persons who are not within the Class definition set forth in Section II, Paragraph (C), or who timely exclude themselves from the Class in the manner set forth in Section IV, release no claims, and any and all claims of such persons are reserved and unaffected by this Settlement. Defendants reserve all claims and defenses they may have against such persons. VII. ATTORNEYS FEES AND EXPENSES AND INDIVIDUAL PLAINTIFF AND CLASS REPRESENTATIVE AWARDS A. After agreeing to the principal terms set forth in this Settlement Agreement, under Judge West s supervision, Settling Plaintiffs Counsel and Defendants Counsel negotiated the amount of Attorneys Fees and Expenses that, following application to the Court and subject to Court approval, would be paid as the fee award and costs award to Settling Plaintiffs Counsel, Class Counsel, and/or any other counsel the Court approves, for their time and effort litigating this case, funding of the Litigation, risks undertaken pursuing the Litigation on a contingent basis, and for securing the Common Fund of Benefits for the Class. B. As compensation for their professional time, expenses, costs, advances, delay, risk and all other services securing the Common Fund of Benefits for the Class in the Litigation, Class Counsel and any other counsel petitioning the Court for payment of fees and costs, shall be entitled to apply to the Court for payment of reasonable Attorneys Fees and Expenses to be paid from the Monetary Fund up to 25% of the Monetary Fund in the aggregate. Class Counsel (and other attorneys of record and law firms filing timely petitions) shall be entitled to petition the Court for an award of fees and costs pursuant to (1) the percentage of the common fund method 53

55 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 55 of 79 Page ID #:14232 of awarding attorneys fees in class actions, considering the total value of the Common Fund of Benefits created by this Settlement; (2) the lodestar, plus multiplier, method of awarding attorneys fees in class actions; and/or (3) both. Only professional time, costs, expenses and advances incurred in direct relation to the Litigation, shall be made a part of any fee petition. The Court shall make any final determination on the amount of any award of Attorneys Fees and Expenses to be paid to the petitioning attorneys / law firms, based on the timely filed petitions by each attorney of record and law firm, listing among other things, their qualifications, contributions to the Litigation, professional time devoted to the Litigation, risk, delay, costs, expenses, and out-of-pocket advances incurred in the Litigation, all as may be required by the Court. C. The Court shall be asked to make specific awards to each attorney of record and law firm filing a timely petition, provided that the aggregate award for Attorneys Fees and Expenses to all petitioning counsel shall not exceed 25% of the Monetary Fund. If the Court declines to make specific awards to each attorney of record and law firm filing a timely petition, and instead awards an aggregate amount of Attorneys Fees and Expenses to Class Counsel collectively, the total Attorneys Fees and Expenses shall be allocated by Class Counsel in a manner that Class Counsel in good faith believe reflects the relative contributions of Plaintiffs Counsel to the prosecution and settlement of the claims against Defendants in the Action, including their professional time, costs and risks undertaken. Any disputes pertaining to the allocation of the aggregate sum shall be promptly presented to and resolved by the Settlement Special Master, upon written submissions and/or a conference/hearing, whose decision will be final and binding as to the Parties, although subject to review by the Court. D. Any Attorneys Fees and Expenses finally awarded by the Court shall be paid from the Monetary Fund in four installments. The Attorneys Fees and Expenses awarded shall 54

56 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 56 of 79 Page ID #:14233 be paid by the Claims Administrator to Class Counsel in four installments at the same time the Claims Administrator distributes checks to Eligible Claimants pursuant to the Allocation Plan, under Section II, Paragraph D(2)(i), consistent with the Payment Schedule set forth in Section II, Paragraph D(4). Class Counsel shall then distribute checks to the attorneys and law firms designated by the Court in the proper amounts. The first three installment payments shall each be equal to 30.5% of the total Attorneys Fees and Expenses finally awarded by the Court, while the fourth and final installment payment shall be equal to 8.5% of the total Attorneys Fees and Expenses finally awarded by the Court. E. Class Counsel may petition the Court for Incentive Awards to be paid from the Monetary Fund of up to $7, per Settling Plaintiff and per Class Representative for his or her time, effort and risk in connection with the Actions. The purpose of such awards shall be to compensate the Settling Plaintiffs and Class Representatives for efforts reasonably undertaken by them in furtherance of securing the Common Fund of Benefits for the Class, as well as any risks undertaken in the Litigation. No amount has been guaranteed or promised to any Settling Plaintiff or Class Representative for an Incentive Award. The Court shall determine the final amount of any Incentive Award to a Settling Plaintiff or Class Representative in its discretion based on the petition or co-petition of each Settling Plaintiff and Class Representative filed. Said petition may include, but is not limited to, an estimate of the time and effort each Settling Plaintiff or Class Representative devoted to the litigation and in furtherance of securing the total pool of settlement benefits for the Class by way of a declaration by the Settling Plaintiff, Class Representative, and/or counsel. The amount ultimately awarded by the Court to a Settling Plaintiff or Class Representative may be less than $7, (or $0). Any Incentive Awards made by the Court shall be paid by the Claims Administrator from the First Annual Installment, within 45 Days of the Final Effective Date. By signing below, each Settling Plaintiff 55

57 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 57 of 79 Page ID #:14234 acknowledges that he or she supports the Settlement as fair, adequate and reasonable to the Class, whether or not the Court appoints him or her a Class Representative or awards him or her any Incentive Award. F. Each Settling Plaintiff acknowledges that they have not asserted any individual, non-class claims against any Defendant in the operative complaint. Each Settling Plaintiff acknowledges that he or she has not entered into any separate settlement agreement with any Defendant for a release of any Reserved Claims. Each Settling Plaintiff acknowledges that he or she has not received any additional consideration from any Defendant that other Class Members are not in a position to receive should this settlement be approved, other than the Incentive Award, which the Court may, in its discretion, award to Class Representatives. Each Settling Plaintiff acknowledges that he or she has read and considered this Settlement Agreement and that by signing below further acknowledges that he or she supports the Settlement set forth herein as fair, adequate and reasonable to the Class as a whole. G. Pursuant to the Court s concerns, as set forth in the October 14, 2014 and June 15, 2015 orders, the named Plaintiffs who previously presented individual, non-class claims and possessed Reserved Claims that could have been released for separate consideration, are no longer being presented by Class Counsel as candidates to be appointed Class Representatives of the Settlement Class. All such Plaintiffs reserve their rights as Class Members under this Settlement; their right to assert any individual, non-class claims they have; and their right to resolve any Reserved Claims they have on terms they see fit. H. The ability of a Class Representative to petition the Court for an Incentive Award is not conditioned on his/her support of the Settlement. I. Defendants shall not be liable for, or obligated to pay, any fees, expenses, costs, 56

58 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 58 of 79 Page ID #:14235 or disbursements to any person or entity, either directly or indirectly, in connection with the Action or the Agreement, other than as set forth in this section. J. Any petition for Attorneys Fees and Expenses or for a Class Representative Incentive Award shall be filed at least 7 days prior to the Objection Deadline and Exclusion Deadline. Updated or supplemental petition(s) by those making initial timely petitions only, limited to reporting new and additional professional time and expenses incurred in relation to the Settlement and claims administration process after the filing of the initial petition, shall be permitted to be filed after that date to ensure that the new professional time, costs and expenses on a going-forward basis in the Litigation are fairly accounted for by the Court and remain compensable, subject to the Court s approval. VIII. PRELIMINARY APPROVAL ORDER, FINAL ORDER, FINAL JUDGMENT AND RELATED ORDERS A. The Parties shall move the Court and seek, within 14 days after the execution of this Agreement, for a Preliminary Approval Order. The Preliminary Approval Order shall, among other things: 1. Certify the nationwide Settlement Class, as defined above, approve the Settling Plaintiffs and any others the court appoints as Class Representatives, and appoint Hart Robinovitch, Christopher Ridout Caleb Marker and J. Gordon Rudd, Jr. of Zimmerman Reed, L.L.P., as Class Counsel, pursuant to Fed. R. Civ. P. 23; 2. Preliminarily approve the Settlement; 3. Require the dissemination of the Class Notice in the manner described and the taking of all necessary and appropriate steps to accomplish this task; 4. Determine that the Class Notice complies with all legal requirements, including, but not limited to, the Due Process Clause of the United States Constitution; 57

59 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 59 of 79 Page ID #: Schedule a date and time for a Fairness Hearing to determine whether the Settlement should be finally approved by the Court; 6. Require Class Members who wish to exclude themselves to submit an appropriate and timely written request for exclusion as directed in this Agreement and Long Form Notice, and by the Exclusion Deadline, and that a failure to do so shall bind those Class Members; 7. Require Class Members who wish to object to this Agreement to submit an appropriate and timely written statement as directed in this Agreement and Long Form Notice, and by the Objection Deadline, and that a failure to do so shall bind those Class Members who remain in the Class; 8. Require Class Members who wish to appear to object to this Agreement to submit an appropriate and timely written statement as directed in the Agreement and Long Form Notice, and that a failure to do so shall bind those Class Members who remain in the Class; 9. Require attorneys representing Class Members, at the Class Members expense, to file a notice of appearance as directed in this Agreement and Long Form Notice; 10. Issue a preliminary injunction enjoining potential Class Members, pending the Court s determination of whether the Settlement should be given final approval, from challenging in any action or proceeding any matter covered by this Settlement, except for proceedings in this Court to determine whether the Settlement of the Action will be given final approval; 11. Appoint KCC Class Action Services as the Claims Administrator and authorize it to take all necessary and appropriate steps to establish the means necessary to implement the Agreement; 12. Authorize Defendants to take all necessary and appropriate steps to 58

60 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 60 of 79 Page ID #:14237 establish the means necessary to implement the Agreement; 13. Authorize the Parties, Class Counsel and the Claims Administrator to take all necessary and appropriate steps to establish the means necessary to implement the Agreement; 14. Adopt all deadlines set forth herein; and 15. Issue other related orders to effectuate the preliminary approval of the Agreement. B. After the Fairness Hearing, the Parties shall seek to obtain from the Court a Final Order and Final Judgment. The Final Order and Final Judgment shall, among other things: 1. Find that the Court has personal jurisdiction over all Plaintiffs and Class Members, that the Court has subject matter jurisdiction over the claims asserted in the operative complaints in the Action, and that venue is proper; 2. Finally approve the Agreement and Settlement, pursuant to Fed. R. Civ. P. 23, as fair, adequate and reasonable to the Class; 3. Finally certify the Class for settlement purposes only pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3) with the Settling Plaintiffs and any others the court appoints as Class Representatives; Hart Robinovitch, Christopher Ridout, Caleb Marker and J. Gordon Rudd, Jr. of Zimmerman Reed, L.L.P., as Class Counsel; 4. Find that the Class Notice and the Notice Plan complies with all laws, including, but not limited to, the Due Process Clause of the United States Constitution; 5. Dismiss all Released Claims of Settling Plaintiffs, Class Representatives and Class Members in the Actions, with prejudice and without costs (except as provided for herein as to costs), but preserving all Reserved Claims; 6. Preserving all claims of persons not within the Settlement Class definition 59

61 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 61 of 79 Page ID #:14238 as well as those who have timely excluded themselves from the Settlement Class; 7. Overrule any objections that have been presented to the Settlement; 8. Incorporate the Release set forth in the Agreement and make the Release effective as of the date of the Final Order and Final Judgment, recognizing the Reserved Claims; 9. Award Attorneys Fees and Expenses and Class Representative Incentive Awards in amounts deemed fair, adequate and reasonable in the circumstances; 10. Authorize the Parties to implement the terms of the Agreement; 11. Retain jurisdiction relating to the administration, consummation, enforcement, and interpretation of the Agreement, the Final Order and Final Judgment, and for any other necessary purpose; and, 12. Issue related Orders necessary to effectuate the final approval of the Agreement and its implementation. IX. MODIFICATION OR TERMINATION OF THIS AGREEMENT A. The terms and provisions of this Agreement may be amended, modified, or expanded by written agreement of the Parties and approval of the Court; provided, however, that after entry of the Final Order and Final Judgment, the Parties may by written agreement effect such amendments, modifications, or expansions of this Agreement and its implementing documents (including all exhibits hereto) without further notice to the Class or approval by the Court if such changes are consistent with the Court s Final Order and Final Judgment and do not limit the rights of Class Members under this Agreement. B. This Agreement shall terminate if the Court, or any appellate court(s), rejects or denies final approval of this Agreement and Settlement. If this Agreement is terminated pursuant to Section X(B), then: 1. This Agreement shall be null and void and shall have no force or effect, 60

62 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 62 of 79 Page ID #:14239 and no Party to this Agreement shall be bound by any of its terms; 2. The Parties will petition the Court to have any stay orders entered pursuant to this Agreement, if any, lifted and for leave to have the FAC in Etter reinstated as the operative complaint; 3. All of the Agreement s provisions, and all negotiations, statements, and proceedings relating to it shall be without prejudice to the rights of Defendants, Class Representatives, Plaintiffs or any Class Member, all of whom shall be restored to their respective positions existing immediately before the execution of this Agreement, except that the Parties shall cooperate in requesting that the Court set a new scheduling order such that no Party s substantive or procedural rights are prejudiced by the settlement negotiations and proceedings including, without limitation, Plaintiffs motion for class certification; 4. Released Parties expressly and affirmatively reserve all defenses, arguments, and motions as to all claims that have been, or might later be, asserted in the Action, including, without limitation, the argument that the Action may not be litigated as a class action; 5. The Settling Plaintiffs, Class Representatives, and all other Class Members, on behalf of themselves and their heirs, assigns, executors, administrators, predecessors, and successors, expressly and affirmatively reserve and do not waive all motions as to, and arguments in support of, all claims, causes of actions or remedies that have been or might later be asserted in the Action, including, without limitation, any argument concerning class certification, and/or with regard to any damages or penalties; 6. Defendants, and the other Released Parties, expressly and affirmatively reserve and do not waive all motions and positions as to, and arguments in support of, all defenses to the causes of action or remedies that have been sought or might later be asserted in the Action, including, without limitation, any argument or position opposing class certification, 61

63 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 63 of 79 Page ID #:14240 liability or damages; 7. Neither this Agreement, the fact of its having been made, nor the negotiations leading to it, nor any discovery or action taken by a Party or Class Member pursuant to this Agreement shall be admissible or entered into evidence for any purpose whatsoever; 8. Any Settlement-related order(s) or judgment(s) entered in this Action after the date of execution of this Agreement shall be deemed vacated and shall be without any force or effect; 9. Each party shall bear its own costs. Notwithstanding the terms of this paragraph, if the Settlement is not consummated, Settling Plaintiffs Counsel / Class Counsel may include any time spent in Settlement efforts as part of any statutory or other fee petition filed at the conclusion of the Action as valuable work done for the benefit of the Class and in furtherance of their claims, and Defendants reserve the right to object to the reasonableness of such requested fees. X. GENERAL MATTERS AND RESERVATIONS A. Defendants have denied and continue to deny each and all of the claims and contentions alleged in the Action, and have denied and continue to deny that they have committed any violation of law or engaged in any wrongful act that was alleged, or that could have been alleged, in the Action. Defendants believe that they have valid and complete defenses to the claims asserted against them in the Action and deny that they violated any law, engaged in any unlawful act or conduct, or that there is any basis for liability for any of the claims that have been, are, or might have been, alleged in the Action. Nonetheless, Defendants have concluded that it is desirable that the Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Agreement. B. The obligation of the Parties to conclude the proposed Settlement is and shall be 62

64 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 64 of 79 Page ID #:14241 contingent upon each of the following: 1. Entry by the Court of the Final Order and Final Judgment approving the Settlement, from which the time to appeal has expired or which has remained unmodified after any appeal(s); and 2. Any other conditions stated in this Agreement. C. All Class Members have the right to enter an appearance in the Action through their own counsel of choice, at their own expense. If they do not enter an appearance through their own counsel, they will be represented by Class Counsel, who will support the Settlement and argue in favor of its approval by the Court. D. The Parties and their counsel agree to keep the existence and contents of this Agreement confidential until the date on which the Motion for Preliminary Approval is filed with the Court; provided, however, that this Section X shall not prevent Defendants from disclosing such information, prior to the date on which the Motion for Preliminary Approval is filed, to state and federal agencies, independent accountants, actuaries, advisors, financial analysts, insurers or attorneys, nor shall it prevent Defendants from disclosing such information based on the substance of this Agreement. Nor shall it prevent the Parties and their counsel from disclosing such information to persons or entities (such as experts, courts, co-counsel, and/or administrators) to whom the Parties agree disclosure must be made in order to effectuate the terms and conditions of this Agreement. The Settling Plaintiffs, Class Representatives and Settling Plaintiffs Counsel agree that the confidential information made available to them solely through the mediation and settlement process was made available, as agreed to, on the condition that neither the Settling Plaintiffs, Class Representatives, nor Settling Plaintiffs Counsel may disclose it to third parties (other than to experts or consultants retained by the Settling Plaintiffs, Class Representatives or Settling Plaintiffs Counsel in connection with the Action); that it not be 63

65 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 65 of 79 Page ID #:14242 the subject of public comment; that it not be used by the Settling Plaintiffs, Class Representatives or Settling Plaintiffs Counsel in any way in this Litigation or otherwise should the Settlement not be achieved, and that it is to be returned if a Settlement is not concluded. All Confidentiality and Mediation Agreements remain in place and operative. E. Information provided by Defendants, Defendants Counsel, and/or the Mediator to the Settling Plaintiffs, Class Representatives, Plaintiffs Counsel, any individual Class Member, counsel for any individual Class Member or Plaintiff, their consultants, and/or administrators, pursuant to the negotiation and implementation of this Agreement, includes trade secrets and highly confidential, sensitive and proprietary business and financial information and shall be deemed Confidential pursuant to the protective order that has been entered in the Action, and shall be subject to all of the provisions thereof. Any materials inadvertently produced shall, upon Defendants request, be promptly returned to Defendants Counsel, and there shall be no implied or express waiver of any privileges, rights and defenses. F. The Settling Plaintiffs, Class Representatives, and Settling Plaintiffs Counsel shall not disparage Defendants or Defendants Counsel in any written, online or other publication regarding the Litigation or Settlement, including press and other media inquiries. Defendants and Defendants counsel shall not disparage the Settling Plaintiffs, Class Representatives, and Settling Plaintiffs Counsel in any written, online or other publication regarding the Litigation or Settlement, including press and other media inquiries. Nothing herein prevents Class Members or Defendants from responding to or cooperating with any inquiries from governmental agencies or regulatory bodies. G. Within 90 days after the Final Effective Date (unless the time is extended by agreement of the Parties), Settling Plaintiffs Counsel, and any expert or other consultant employed by them in such capacity or any other individual with access to documents provided 64

66 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 66 of 79 Page ID #:14243 by Defendants, and/or Defendants Counsel, and/or the Settlement Special Master to Settling Plaintiffs Counsel shall either: (i) return to Defendants Counsel, all such documents and materials (and all copies of such documents in whatever form made or maintained) produced during the settlement process by Defendants Counsel, and/or the Settlement Special Master; or, (ii) certify to Defendants that all such documents and materials (and all copies of such documents in whatever form made or maintained) produced by Defendants and Defendants Counsel, and/or the Settlement Special Master have been destroyed, provided, however, that this Section X shall not apply to any documents made part of the record in connection with a Claim, nor to any documents made part of a Court filing, nor to Plaintiffs Counsel s work product. Six months after the final distribution of the Monetary Fund to Class Members who submitted valid Claim Forms, the Claims Administrator shall return or destroy all documents and materials to Defendants or Defendants Counsel and/or Class Counsel that produced the documents and materials, except that it shall not destroy any and all Claim Forms, including any and all information and/or documentation submitted by Class Members. Nothing in this Agreement shall affect any confidentiality order or protective order in the Action. H. Settling Plaintiffs Counsel represent that: (1) they are authorized by the Settling Plaintiffs to enter into this Agreement with respect to the claims in this Action, on behalf of the Settling Plaintiffs and on behalf of the Class they seek to represent; and (2) they seek to protect the interests of the Class. I. Settling Plaintiffs Counsel further represent that the Settling Plaintiffs: (1) have agreed to serve as representatives of the Class proposed to be certified herein; (2) are willing, able, and ready to perform all of the duties and obligations of representatives of the Class, including, but not limited to, being involved in discovery and fact finding; (3) have read the relevant pleadings in the Action, or have had the contents of such pleadings described to them; 65

67 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 67 of 79 Page ID #:14244 (4) are familiar with the results of the fact-finding undertaken by Settling Plaintiffs Counsel; (5) have been kept apprised of settlement negotiations among the Parties, and have either read this Agreement, including the exhibits annexed hereto, or have received a detailed and adequate description of it from Settling Plaintiffs Counsel, and they have agreed to its terms; (6) have consulted with Settling Plaintiffs Counsel about the Action and this Agreement and the obligations imposed on representatives of the Class; (7) have authorized Settling Plaintiffs Counsel to execute this Agreement or any amendments thereto on their behalf; and, (8) shall remain and serve as representatives of the Class until the terms of this Agreement are effectuated, this Agreement is terminated in accordance with its terms, or the Court at any time determines that said Settling Plaintiffs and Class Representatives cannot represent the Class. J. The Parties acknowledge and agree that no opinion concerning the tax consequences of the proposed Settlement to Class Members is given or will be given by the Parties, nor are any representations or warranties in this regard made by virtue of this Agreement. Each Class Member s tax obligations, and the determination thereof, are the sole responsibility of the Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual Class Member. K. Defendants represent and warrant that the individual(s) executing this Agreement is authorized to enter into this Agreement on behalf of Defendants. L. This Agreement, complete with its exhibits, sets forth the sole and entire agreement among the Parties with respect to its subject matter, and it may not be altered, amended, or modified except by written instrument executed by Settling Plaintiffs Counsel and Defendants Counsel on behalf of Defendants. The Parties expressly acknowledge that no other agreements, arrangements, or understandings not expressed in this Agreement exist among or between them, and that in deciding to enter into this Agreement, they rely solely upon their 66

68 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 68 of 79 Page ID #:14245 judgment and knowledge. This Agreement supersedes any prior agreements, understandings, or undertakings (written or oral) by and between the Parties regarding the subject matter of this Agreement. M. This Agreement and any amendments thereto shall be governed by and interpreted according to the law of the State of California notwithstanding any conflict of laws issues. N. Any disagreement and/or action to enforce this Agreement shall be commenced and maintained only in the United States District Court for the Central District of California. O. Whenever this Agreement requires or contemplates that one of the Parties shall or may give notice to the other, notice shall be provided by and/or next-day (excluding Saturdays, Sundays and Federal Holidays) express delivery service as follows: ZIMMERMAN REED, LLP Hart L. Robinovitch N. Kierland Blvd., Suite 145 Scottsdale, AZ (480) Telephone P. All time periods set forth herein shall be computed in calendar days unless otherwise expressly provided. In computing any period of time prescribed or allowed by this Agreement or by order of the Court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a Federal Holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period shall run until the end of the next day that is not one of the aforementioned days. As used in this section, Federal Holiday includes New Year s Day, Birthday of Martin Luther King, Jr., Presidents Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Patriot s Day, 67

69 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 69 of 79 Page ID #:14246 Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President, the Congress of the United States, or the Clerk of the United States District Court for the Central District of California. Q. The Parties reserve the right, subject to the Court s approval, to agree to any reasonable extensions of time that might be necessary to carry out any of the provisions of this Agreement. R. The Class, Settling Plaintiffs, Class Representatives, Settling Plaintiffs Counsel, Defendants and/or Defendants Counsel shall not be deemed to be the drafter of this Agreement or of any particular provision, nor shall they argue that any particular provision should be construed against its drafter. All Parties agree that this Agreement was drafted by counsel for the Parties during extensive arm s length negotiations. No parol or other evidence may be offered to explain, construe, contradict, or clarify its terms, the intent of the Parties or their counsel, or the circumstances under which this Agreement was made or executed. S. The Parties expressly acknowledge and agree that this Agreement and its exhibits, along with all related drafts, motions, pleadings, conversations, negotiations, and correspondence, constitute an offer of compromise and a compromise within the meaning of Federal Rule of Evidence 408 and any equivalent rule of evidence in any state. In no event shall this Agreement, any of its provisions or any negotiations, statements or court proceedings relating to its provisions in any way be construed as, offered as, received as, used as, or deemed to be evidence of any kind in the Action, any other action, or in any judicial, administrative, regulatory or other proceeding, except in a proceeding to enforce this Agreement or the rights of the Parties or their counsel. Without limiting the foregoing, neither this Agreement nor any related negotiations, statements, or court proceedings shall be construed as, offered as, received as, used as, or deemed to be evidence of, an admission or concession of any liability or 68

70 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 70 of 79 Page ID #:14247 wrongdoing whatsoever on the part of any person or entity, including, but not limited to, the Released Parties, Settling Plaintiffs, or the Class or as a waiver by the Released Parties, Plaintiffs or the Class of any applicable privileges, claims or defenses. T. Settling Plaintiffs expressly affirm that the allegations contained in the complaints filed were made in good faith, but consider it desirable for the Action to be settled and dismissed because of the substantial benefits that the proposed Settlement will provide to Class Members. U. The Parties stipulate to the filing of the Chow Complaint as a related case. The Parties also stipulate that if the Settlement is not granted final approval by the Court, the Chow Complaint shall be dismissed, without prejudice, and the FAC in Etter will again become the operative complaint, unless otherwise agreed in writing. Any new plaintiffs added to the Chow Complaint may then move to intervene, join and/or to otherwise assert their rights, as necessary and proper in the circumstances. V. The Parties, their successors and assigns, and their counsel undertake to implement the terms of this Agreement in good faith, and to use good faith in resolving any disputes that may arise in the implementation of the terms of this Agreement. W. The waiver by one Party of any breach of this Agreement by another Party shall not be deemed a waiver of any prior or subsequent breach of this Agreement. X. If one Party to this Agreement considers another Party to be in breach of its obligations under this Agreement, that Party must provide the breaching Party with written notice of the alleged breach and provide a reasonable opportunity to cure the breach before taking any action to enforce any rights under this Agreement. Y. The Parties, their successors and assigns, and their counsel agree to cooperate fully with one another in seeking Court approval of this Agreement and to use their best efforts to effect the prompt consummation of this Agreement and the proposed Settlement. 69

71 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 71 of 79 Page ID #:14248 Z. This Agreement may be signed with a facsimile or PDF signature and in counterparts, each of which shall constitute a duplicate original. AA. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision if Defendants Counsel, on behalf of Defendants, and Settling Plaintiffs Counsel, on behalf of the Settling Plaintiffs, Class Representatives and Class Members, mutually agree in writing to proceed as if such invalid, illegal, or unenforceable provision had never been included in this Agreement. Any such agreement shall be reviewed and approved by the Court before it becomes effective. -- THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK -- 70

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74 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 74 of 79 Page ID #:14251 I agree that the settlement stated above is fair, reasonable and adequate to the Class as a whole. I support and agree to be bound by its terms. Executed on this 2 day of September, Ray Burkhead 71

75 Case 8:13-cv JLS-RNB Document Filed 09/04/15 Page 75 of 79 Page ID #:14252 I agree that the settlement stated above is fair, reasonable and adequate to the Class as a whole. I support and agree to be bound by its terms. Executed on this \y of September, Charles Chow Americas ' '

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