exhibit a agreement.pdf · condition and ability of thetford and dkm to loan money to norcold for...

Exhibit A

Case 8:13-cv-00081-JLS-RNB Document 412-1 Filed 09/04/15 of 79 Page ID #:14178

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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.

30-2012-00617846-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.

SACV13-00081 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


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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-06759 (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


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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,


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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


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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. SACV13-00081 JLS

(RNBx) (C.D.Cal.) and Chow et al. v. Norcold, Inc., Theford Corp., and The Dyson-Kissner-

Moran Corp., No. 2:14-cv-06759 (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


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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-06759 (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


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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, 2013. 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


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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


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Norcold, as original equipment, during the time period starting January 1, 2009, and continuing

through and including December 31, 2013.

20. “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. SACV13-00081 JLS (RNBx) (C.D.

Cal.).


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29. “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. SACV13-00081 JLS (RNBx) (C.D. Cal.) on April 15, 2013.

32. “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-06759 (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


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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.


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41. “Internet Notice” means the notice described in Section III, Paragraph (B)(3),

substantially in the form attached hereto as Exhibit 4.

42. “Long Form Notice” means the notice described in Section III, Paragraph (B)(5),

substantially in the form attached hereto as Exhibit 2.

43. “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,” “800


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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


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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, 02-021, 02E-

045, 08E-30, 09E-26, 09E-027 and 10E-049.

58. “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,


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bondholders, subsidiaries, related companies, affiliates, officers, directors, employees, associates,

dealers, representatives, suppliers, vendors, advertisers, service providers, distributors and sub-

distributors, 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


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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 5.

70. “Summary Settlement Notice” means the publication notice described in Section

III, Paragraph (B)(2), substantially in the form as attached hereto as Exhibit 3.

71. “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 (www.BBB.com) 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


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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


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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


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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, 2013.

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


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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


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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 three-

year 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


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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, 2010. 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)

767.9101 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 numbers1038000 to 1099000. 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 800.767.9101 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.


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2. 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 $11,000,000.00 for each of the first three installments and a fourth installment of

$3,000,000.00. The First Annual Installment of $11,000,000.00 shall be made 15 days after the

Effective Date, provided that $2,000,000.00 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 $11,000,000.00 shall be made 365 days after the Effective

Date. The Third Annual Installment of $11,000,000.00 shall be made 730 days after the

Effective Date. The Fourth Annual Installment of $3,000,000.00 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


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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

Advance of

First

Annual

Installment

$2,000,000

Preliminary

Approval +

30 days

Class Notice and

Claims

Administration

(Any Balance/Deficit

to revert/deduct Third

Annual Installment)

TBD

See

Proposed

Schedule

in Sec. III

Remainder

of First

Annual

Installment

$9,000,000

Effective

Date + 15

days

Class Representative

Incentive Awards TBD

ED + 45

days

First Installment of

Attorneys’

Fees/Costs

$2,750,000

maximum

ED + 45

days

Class Member Share

Distributions

Residual of

Remainder

(minimum of

$6,250,000 less

incentive awards)

ED + 45

days

Second

Annual

Installment

$11,000,000 ED + 365

days

Second Installment of

Attorneys’

Fees/Costs

$2,750,000

maximum

ED + 395

days

Class Member Share

Distributions

Residual (minimum

of $8,250,000)

ED + 395

days

Third

Annual

$11,000,000

+/- TBD

ED + 730

days

Third Installment of

Attorneys’

$2,750,000

maximum

ED + 760

days


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Installment (Advance

Balance or

Deficit)

Fees/Costs

Class Member Share

Distributions

Residual of

Installment +/-

Advance

Balance/Deficit

(minimum of

$8,250,000 if no

deficit)

ED + 760

days

Fourth

Annual

Installment

$3,000,000

+/- TBD

(Advance

Balance or

Deficit)

ED + 1,095

days

Fourth Installment of

Attorneys’

Fees/Costs

$750,000 maximum

ED +

1125

days

Class Member Share

Distributions

Residual of

Installment +/-

Advance

Balance/Deficit

(minimum of

$2,250,000 if no

deficit)

ED +

1125

days

ED + 1,305

days

Distribution to Cy

Pres Recipient and/or

Escheat to State

Amount of

Uncashed Checks TBD

Total $36,000,000

The Settlement consists of a $36,000,000.00 Monetary Fund, to be funded in three

Annual Installments, as follows:

First Annual Installment

$11,000,000.00 – payment by Defendants to Claims Administrator, as follows:

a. Advance to Claims Administrator for Notice – $2,000,000.00 - 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. 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;

iii. 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


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$11,000,000.00 – 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


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

$11,000,000.00 – payment by Defendants – paid 730 days after Effective Date, or next

business day:

a. Less distribution of third installment of Attorneys’ Fees and Expenses,



b. Remainder to Eligible Claimants in proportion to shares allocated to each


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

$3,000,000.00 – payment by Defendants – paid 1065 days after Effective Date, or next

business day:

a. Less distribution of fourth installment of Attorneys’ Fees and Expenses,



b. Remainder to Eligible Claimants in proportion to shares allocated to each


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


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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 1,025th

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 1,025th

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


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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


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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


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Americas 90768960

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, e-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


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Americas 90768960

(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, e-mail 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,


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Americas 90768960

(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


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Americas 90768960

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 email 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


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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


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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’


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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 Time Period

Court Preliminarily Approves Settlement X

Defendants Provide Class Contact Information to Claims Administrator X + 10 days

Claims Administrator / Class Counsel to Publish Settlement Website X + 7 days


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Defendants to Pay $2M Advance of First Annual Installment to Claims

Administrator

X + 30 days

Claims Administrator to Mail Short Form Notice to Known Addresses X + 30 days

Claims Administrator to Publish Summary Notice X + 30 days

Claims Administrator to Commence Publication of Internet Notice X + 30 days (continuing days

through Deadline to Submit

Claim Forms or X + 150 days)

Class Counsel to File Motion for Final Approval of Class Action

Settlement

X + 143 days

Class Counsel to File Motion for Approval of Attorneys’ Fees and

Costs

X + 143 days

Deadline to Submit Claim Form X + 150 days

Deadline to Submit Request for Exclusion X + 150 days

Deadline to Mail and File Objection X + 150 days

Claims Administrator to File List of Class Members Seeking Exclusion

(Opt Outs)

X + 158 days (10 days before

Final Fairness Hearing)

Deadline for Parties to Respond to Objections X + 164 days

Final Fairness Hearing [Minimum of X + 168]

Court Enters Final Judgment Approving Class Action Settlement Y

Effective Date of Settlement Z (Y + 61 days)

Defendants to Pay Remainder of First Annual Installment Z + 15 days

First Payments to Class Representatives, Class Counsel and Class

Members

Z + 45 days

Defendants to Pay Second Annual Installment Z + 365 days

Second Payments to Class Counsel and Class Members Z + 395 days

Claims Administration Balance/Deficit Adjustment Z + 995 days

Defendants to Pay Third Annual Installment Z + 730 days

Third Payments to Class Counsel and Class Members Z + 760 days

Defendants to Pay Fourth Annual Installment Z + 1,095 days


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Fourth and Final Payments to Class Counsel and Class Members Z + 1,125 days

Uncashed Remainder to Cy Pres Recipients/Escheat to State 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 e-mail or via a toll-free

telephone number. In addition, the Claims Administrator shall: (a) re-mail 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


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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 e-mail, 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 (www.rv.net)

RVTalk (www.rvtalk.com)


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RVForum.net (www.rvforum.net)

Escapees Forum (www.escapees.com)

RV-Dreams Community Forum (www.rv-dreams.activeboard.com)

RVLivin' (www.rvlivin.com)

iRV2 Forums (www.irv2.com)

Full Time RVers (www.ftrv.com)

4 Seasons Camping Forum (www.4scf.com)

Toy Hauler Magazine Forum (www.toyhaulermagazine.com)

Truck Camper Forums (www.truckcamperforums.com)

RV.net Blogs (www.rv.net)

RV Travel Blogs (www.rvtravel.com)

RV There Yet Blogs (www.rvthereyet.cc/blog)

Family Motor Coach Association (www.fmca.com)

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 4.

4. 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,


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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 e-mail 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 e-mail 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


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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 e-mail 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.


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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, e-mail 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

email 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


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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. § 1715 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, email 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, voicemail 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.


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2. 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


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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


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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,


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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.


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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.


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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.


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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


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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.


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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


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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


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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 $7,500.00 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 $7,500.00 (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


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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,


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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;


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5. 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


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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


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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,


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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,


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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


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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


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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


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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;


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(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


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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 e-mail and/or next-day (excluding

Saturdays, Sundays and Federal Holidays) express delivery service as follows:

ZIMMERMAN REED, LLP

Hart L. Robinovitch

14646 N. Kierland Blvd., Suite 145

Scottsdale, AZ 85254

(480) 348-6400 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,


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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


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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.


70

Americas 90768960

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.

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71 Americas 90768960

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 day of September, 2015.

Ray Burkhead

2


I agree that the settlement stated above is fair, reasonable and adequate to the Class as awhole. I support and agree to be bound by its terms.

Executed on this \y of September, 2015.

Charles Chow

Americas '•'• •


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