CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE 1. Parties. This Class Action Settlement Agreement and Release ("Settlement Agreement" or "Agreement") is entered into between Plaintiff THUNDER STUDIOS, INC., a California corporation, individually and on behalf of the Settlement Class Members defined below ("Plaintiff'), on the one hand, and Defendant BOBCO METALS, LLC, a California limited liability company ("Defendant"), on the other. Plaintiff and Defendant are each separately referred to herein as a "Party" and are referred to collectively as the "Parties." 2.
Recitals. This Agreement is entered into with reference to the following
facts: 2.1 On November 21, 2013, Plaintiff commenced this class action ("Action") against Defendant in the Superior Court of California, Los Angeles- Case No. BC528359; 2.2 Plaintiff alleges in the Action that Defendant violated the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act, 47 U.S.C. § 227, and regulations of the Federal Communications Commission promulgated thereunder (collectively, "TCPA") and California's parallel law, Cal. Bus. and Prof. Code § 17538.43, by sending, via facsimile transmission, unsolicited advertisements and advertisements that do not comply with the law's requirements. Plaintiff also asserts an unfair business practices claim under California Business and Professions Code § 17200 ("UCL"), which mirrors its other claims, and a conversion claim; 2.3 On or around January 31, 2014, Defendant filed its Answer to the Complaint, denying generally each and every allegation asserted by Plaintiff and setting forth affirmative defenses; 2.4 Plaintifftook the deposition of Defendant's person most knowledgeable, served subpoenas on and took the deposition of third parties; reviewed voluminous document productions by Defendant, including, but not limited to, the production of detail, exception, and summary transmission reports and fax lists for the faxes giving rise to the Action; and reviewed Defendant's responses and/or supplemental responses to several sets of written discovery. Defendant took the deposition of Plaintiff's person most knowledgeable and reviewed document productions by Plaintiff; 2.5 Defendant likewise took the deposition of Plaintiffs person most knowledgeable and also propounded additional voluminous written discovery to Plaintiff, including Form Interrogatories, Special Interrogatories, Requests for Admissions, and Requests for Production of Documents. Defendant also noticed the deposition of Plaintiff's Chairman and Chief Executive Officer; 2.6
Plaintiff has not yet filed its motion for class certification;
Page I of 13
2. 7 The issues in the Action would, if fully litigated, likely result in protracted litigation, multiple appeals, and continued uncertainty as to the outcome as both Parties would aggressively and vigorously litigate this case; 2.8 This Settlement Agreement resulted from daylong, good faith, arm's-length settlement negotiations before the Honorable John Leo Wagner (Ret.) of Judicate West in Los Angeles, in connection with which Plaintiff and Defendant submitted detailed written and oral mediation submissions, setting forth their respective views about strengths and weaknesses of each other's positions; Plaintiff, Settlement Class Counsel (as defined in Paragraph 3 2. 9 hereof), Defendant, and Defendant's counsel have settled because they consider it to be in their best interests to settle and dispose of, fully and completely, any and all claims, demands and causes of action heretofore or hereafter arising out of, connected with, or incidental to the Action, including, without limitation on the generality of the foregoing, any and all claims, demands, and causes of action reflected in the Action, to the extent such claims, demands, and causes of action are held by the Settlement Class (as defined below) for the Class Period (as defined below); 2.1 0 After the commencement of this Action, Defendant ceased all organized facsimile advertising campaigns because of this Action, and intends to comply with the TCP A and all associated regulations governing any facsimile advertising in the future; and 2.11 Plaintiff and Settlement Class Counsel recognize the uncertainties, risks and difficulties involved in successfully concluding the Action on behalf of the Settlement Class, and believe that this Settlement Agreement confers substantial benefits upon the Settlement Class and that the Settlement Agreement is fair, reasonable, adequate, and in the best interests of the Settlement Class. 3.
Definitions.
3.1 "Settlement Class," "Settlement Class Members," or "Class Members" means all persons and entities that were subscribers - i.e., the billing parties on record with the telephone company - of facsimile telephone numbers and that received an advertisement (as defined under the Telephone Consumer Protection Act) at those facsimile telephone numbers during the period ofNovember 21,2009, to November 21, 2013 (the "Class Period"), via facsimile ("Fax" and, collectively, the "Faxes") from or on behalf of Defendant in this Action. Excluded from the Settlement Class are ( 1) the officers, directors,. and employees of (a) Defendant, (b) the parents, subsidiaries, and affiliates of Defendant, and (c) any entity in which Defendant has a controlling interest, (2) the legal representatives, successors, and assigns of any such excluded persons, and (3) each judge assigned to the Action, and each such judge's family. 3.2 "Class Period" means the period ofNovember 21,2009, through November 21, 2013, dates inclusive. Page 2 of 13
3.3
"Claims Administrator" means Angeion Group.
3.4
"Claim Form" means the form attached hereto as Exhibit A.
3.5
"Claims Period" means thirty (30) calendar days following the date
of the Fax Notice. 3.6 "Settlement Class Counsel" or "Class Counsel" means the Nami Law Firm and Hersh & Hersh. 3.7
"Class Notices" means the Fax Notice and Detailed Notice.
3.8
"Class Representative" means Thunder Studios, Inc.
3.9
"Detailed Notice" means the form attached hereto as Exhibit B.
3 .I 0 "Final Judicial Approval" means the expiration of time within which to appeal any final order of the Court regarding the settlement, including, but not limited to, any order approving the settlement or an award of attorneys' fees and costs or an incentive award. If any appeal is taken, "Final Judicial Approval" shall be when the appeal has been finally resolved and remittitur has taken place. 3.11 "Final Settlement Hearing" or "Final Approval Hearing" means a hearing before the Court for final approval of this Agreement. 3.12 "Opt-Out and Objection Date" means thirty (30) calendar days after the first issuance of the Class Notices, during which time Class Members may opt out of the settlement or submit written objections to the settlement. 3.13 "Preliminary Approval Date" means the date on which the Court enters an order preliminarily approving this Agreement. 3.14 "Fax Notice" means the language informing Class Members of the settlement and directing Class Members to the settlement website, which will be sent via facsimile to the Settlement Class in accordance with Paragraph 7.2 below. An exemplar of the Fax Notice is attached hereto as Exhibit C. 4. Terms and Conditions. In consideration of the terms, conditions, and provisions of this Agreement, the Parties agree that: 4.1 The Parties stipulate that the Settlement Class qualifies for class treatment, to the appointment of Plaintiff as Class Representative, and to the appointment of attorneys Nima Nami of the Nami Law Firm and Mark Burton of Hersh & Hersh as lead Settlement Class counsel. The stipulation and certification of the Settlement Class as provided in this paragraph shall be binding only with respect to settlement of the Action and shall not be cited or relied on by any Party in the event that this Settlement Agreement, the Preliminary Approval Order and the Judgment and Order do not receive full and final judicial approval in all material respects, or are reversed, vacated, or Page 3 of 13
modified in any material respect. In any such event, this Settlement Agreement shall have no force or effect; the Parties shall be restored, without waiver, to their respective positions immediately prior to entering into of the Settlement Agreement. 4.2 If this Agreement is finally approved by the Court, then as soon as is reasonably practicable after Final Judicial Approval, and in no event later than thirty (30) calendar days after Final Judicial Approval, Defendant shall cause the Claims Administrator to commence distribution of a $35 check as set forth in paragraph 4.4 to each member of the Settlement Class who timely submits a valid Claim Form, as follows: A $35 payment check will be distributed to each Class Member submitting a valid Claim Form showing that such Class Member was a subscriber- i.e., the billing party on record with the telephone company -of a fax telephone number and that such Class Member received an advertisement at that fax number during the Class Period from Defendant. Each Class Member may only submit one Claim Form and may only receive one payment check of $35. Claim Forms will be made available on a settlement website maintained by the Claims Administrator. Claim Forms will require the claimant's name, address, telephone number, fax number, and an affirmation under oath that the person was the subscriber, as defined above, of the fax number and that the person received an advertisement at that fax number during the Class Period from Defendant. Claim Forms must either be submitted electronically through the settlement website to the Claims Administrator during the Claims Period or be printed from the settlement website and mailed to the Claims Administrator during the Claims Period. 4.3 The maximum value of claims submitted shall not exceed $225,000. In the unlikely event the aggregate value of submitted claims exceeds this maximum amount, each Settlement Class Member's $3 5 payment shall be reduced pro rata. No minimum number of claims is required for settlement. 4.4 Distribution of payments may be spaced over the term of three weeks commencing the first Monday following the time to commence distribution and continuing for each of the following three (3) Mondays or may occur all at once. The Claims Administrator shall send the payments via first-class mail to the address identified on the timely submitted Claim Form once all funds are received. Each payment check shall be valid for 120 days from the date it is issued. If the payment check is not cashed within 120 days of issuance, the check shall be voided, and funds from the uncashed check shall revert to Defendant. 4.5 No Cy Pres. By this agreement, no settlement fund or common fund is created or implied, and there shall be no unpaid residual whether under California Code of Civil Procedure Section 384 or any other statutory or case authority. Any amounts not provided to Class Members due to failure to submit a Claim Form will not be provided to any third party. If, for any reason, a court determines that this provision is unfair or unreasonable, this Agreement shall be null and void.
Page 4 of 13
4.6 The Claims Administrator will file a declaration with the Court (concurrent with Settlement Class Counsel's Motion for Final Approval of the Settlement) at least sixteen (16) court days prior to the Final Settlement Hearing certifying that notice was provided in accordance with the terms of the Agreement and any applicable court order. 4.7 Upon the Court's final approval ofthis Agreement, the Parties shall jointly request that the Court enter a judgment pursuant to California Rule of Court 3.769(h), with the Court retaining jurisdiction to enforce this Agreement under California Civil Procedure Code Section 664.6. 4.8 Defendant will pay its own attorneys' fees and costs and all costs incurred in administering the settlement. The estimated cost of the administration of claims is $18,750, and the total cost of administration shall not exceed this amount presuming the class size is 26,000 members or less. 4.9 Defendant and Plaintiff have, through arm's-length negotiations, agreed that an award of attorneys' fees inclusive of costs in the total amount of no more than $89,000 to Settlement Class Counsel is fair and reasonable, in light of the nature and circumstances of the Action. At the Final Settlement Hearing, Class Counsel will request that the Court approve an award of attorneys' fees and costs to be paid to Class Counsel in the total amount of no more than $89,000, and the Defendant will not oppose such a request. If such an award is approved by the Court, then as soon as is reasonably practicable after Final Judicial Approval, and in no event later than seven (7) days after Final Judicial Approval, Defendant will pay Class Counsel no more than $89,000, separate and apart from any benefits to be paid to the Settlement Class. Class Counsel will neither request nor accept an award of attorneys' fees and costs in excess of$89,000. As a condition of payment, Class Counsel shall provide Defendant with a properly completed W-9. The settlement of the claims contained in this Agreement is not conditioned upon the Court's approval of fees to Class Counsel in any given amount. 4.10 Defendant and Plaintiffhave, through arm's-length negotiations, agreed that an incentive award to the Class Representative in the total amount of $1,000 is fair and reasonable, in light of the nature and circumstances of the Action. At the Final Settlement Hearing, Class Counsel will request that the Court approve an incentive award to be paid to Plaintiff in the amount of $1 ,000, and Defendant will not oppose such a request. If such an award is approved by the Court, then as soon as is reasonably practicable after Final Judicial Approval, and in no event later than seven (7) days after Final Judicial Approval, Defendant will pay to Plaintiff the amount of $1,000, and no more, separate and apart from any benefits to be paid to the Settlement Class. Plaintiff will neither request nor accept an incentive award in excess of $1,000. The settlement of the claims contained in this Agreement is not conditioned upon the Court's approval of an incentive award to Plaintiff in any given amount. 4.11
Claims Administration.
Page 5 of 13
. (a) The Claims Administrator shall be Angeion Group. By agreemg to act as the Claims Administrator, the Claims Administrator shall administer the settlement in good faith and in accordance with the terms of this Settlement Agreement. Within 5 business days ofthe entry ofthe Preliminary Approval Order, Defendant shall pay all costs required by the Claims Administrator and shall deposit additional necessary amounts as reasonably estimated by the Claims Administrator within seven (7) days of the provision of the calculations for settlement administration. The Claims Administrator shall be responsible for compliance with all federal and state tax laws regarding the Settlement Fund and any interest earned thereon, and payment and notice to Settlement Class Members. (b) The Claims Administrator shall establish a settlement website. The website shall provide hypertext links to the long-form version of the Notice; the Complaint; the Settlement Agreement; the Motion for Preliminary Approval of Settlement; the Preliminary Approval Order; the Motion for Fees; the Motion for Final Approval of the Settlement and the Judgment and Order. The settlement website shall include the deadlines for the submission of Class Member Information Forms, opt-out forms for exclusion from the Settlement Class, objections and final approval and other information pertaining to the settlement and how to submit a Claim Form. The settlement website to be established by the Claims Administrator will use the URL www.bobcofaxsettlement.com or a similar domain name referencing Defendant. The settlement website shall be operational up to and until Entry of Final Judgment by the Court. The settlement website and Claims Administrator shall, however, stop accepting Claim Forms at the expiration of the Claims Period. Any disagreement between the Parties regarding the administration of the settlement or the form and content of the settlement website shall not affect the Settlement Agreement; all such disagreements will be finally and conclusively determined by the Court without appeal or other challenge by the Parties. (c) The Claims Administrator shall be obliged to employ reasonable procedures to screen payments to Settlement Class Members for fraud, waste, or abuse, and no payment shall be made to a Settlement Class Member where the Claims Administrator determines that there is evidence of fraud, waste, or abuse. 4.12 Plaintiff and Defendant will not issue press releases, contact the media, or make any public announcements concerning this settlement or the Parties and their counsel, with the exception of the Class Notices required under this Settlement Agreement. Plaintiff and its counsel agree to refrain from disparaging Defendant publicly or in the media, including online media, regarding any issue related to this case. 4.13 The amount ofthe check was chosen by the Parties as an appropriate settlement amount to pay each qualifYing Class Member, without admission of liability by any party. Further, the amount of the check contemplated herein is intended to represent and include all other damages claimed or owed to all Class Members related to the settled claims including, but not limited to, interest charges, general damages, and punitive damages.
Page 6 of 13
5. Release. In further consideration of the terms and provisions of this Agreement, the Parties hereto promise and agree as follows. 5.1 Excepting only the obligations imposed by this Agreement Plaintiff and Settlement Class Members shall and hereby do forever relieve, rele~e, and discharge Defendant and its affiliated entities (including, without limitation, parents and subsidiaries), and their investors, members, managers, owners, predecessors, successors, assigns, attorneys, accountants, insurers, representatives, parents, partners, officers, directors, stockholders, employees, and agents, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs, and expenses (including but not limited to attorneys' fees), damages, actions, causes of action and claims for relief (referred to hereafter collectively as "claims") of whatever kind or nature, under any theory, whether legal, equitable or other, under the law, either common, constitutional, statutory, administrative, regulatory, or other, of any jurisdiction, foreign or domestic, whether such claims are known or unknown, suspected or unsuspected, arising out of, or in connection with the matters or facts alleged or set forth in the Action. 5.2 Plaintiff acknowledges that it is aware that it may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which it now knows or believes to be true, with respect to the matters released herein. Nevertheless, it is the intention ofPlaintiffby this Agreement fully, finally, and forever to settle and release all such matters, and all claims relative thereto, which do now exist, may exist, or heretofore have existed between the parties, to the extent set forth within this Agreement. In furtherance of such intention, the release herein given shall be and remain in effect as a full and complete release of such matters notwithstanding the discovery or existence of any such additional different claims or facts relative to the matters released. This is an essential term of this Agreement without which there would have been no settlement. 6. Representations and Warranties. Plaintiff, on the one hand, and Defendant, on the other hand, and each of them represent and warrant to, and agree with, each other as follows: 6.1 All Parties have each received independent legal advice from attorneys of their choice with respect to the advisability of making the settlement and release provided herein, and with respect to the advisability of executing this Agreement, and prior to the execution of this Agreement by each Party, that Party's attorney reviewed this Agreement at length, made negotiated changes, and signed this Agreement to indicate that the attorney approved this Agreement as to form and substance. 6.2 Defendant represents and warrants that it has discontinued sending the unsolicited fax advertisements that Plaintiff alleges violated the TCP A. 6.3 Except as expressly stated in this Agreement, no party has made any statement or representation to any other party regarding any fact relied upon by any other party in entering into this Agreement, and each party specifically does not rely upon any statement, representation, or promise of any other party in executing this Agreement, Page 7 of 13
or in making the settlement provided for herein, except as expressly stated in this Agreement. . 6.4 There have been no other agreements or understandings between the parties hereto, or any of them, relating to the disputes referred to in this Agreement, except as expressly stated in this Agreement. 6.5 Each party has made such investigation of the facts pertaining to this settlement and this Agreement, and all of the matters pertaining thereto, as it deems necessary. 6.6 Settlement Class Counsel recognizes the expense and duration of continued proceedings necessary to continue the litigation against Defendant through trial and possible appeals. Settlement Class Counsel also have taken into account the uncertainty and risk of the outcome of the litigation and the difficulties and delays inherent in such litigation. Settlement Class Counsel are aware of the burden of proof necessary to establish liability for the alleged claims and of Defendant's defenses thereto. Settlement Class Counsel also have considered the arm's-length settlement negotiations conducted by the parties. Based upon their investigation, their understanding of the law, and an analysis of the benefits which this Agreement affords to the Settlement Class Members, Settlement Class Counsel have determined that the settlement set forth in this Agreement is in the best interest of the Settlement Class Members. 6.7 The terms of this Agreement are, without limitation, contractual, not a mere recital, and are the results of fair negotiation among all Parties. 6.8 This Agreement has been carefully read by, the contents hereof are known and understood by, and it is signed freely by each person executing this Agreement. 6.9 Each person executing this Agreement in a representative capacity warrants that he, she, or it is fully authorized and empowered to do so. 6.1 0 Except for those representations and promises that form this Agreement, in entering into this Agreement and the settlement provided for herein, the Parties, and each of them, recognize that no facts or representations are ever absolutely certain; accordingly, each party hereto assumes the risk of any misrepresentation, concealment or mistake, and if any party should subsequently discover that any fact it relied upon in entering into this Agreement was untrue, or that any fact was concealed from any party hereto, or that any understanding of the facts or of the law was incorrect, such party shall not be entitled to set aside this Agreement, or any of the releases contained herein, by reason thereof. Nor shall it affect the releases. Each party relies on the finality of this Agreement as a material factor inducing that party's execution of this Agreement. 6.11 Each party hereto agrees that such party will not take any action which would interfere with the performance of this Agreement by any of the Parties hereto or which would adversely affect any of the rights provided for herein. Page 8 of 13
6.12 The Parties hereto covenant and agree not to bring any claim, action, suit, or proceeding against any party hereto, directly or indirectly, regarding or related in any manner to the matters released hereby, and they further covenant and agree that this Agreement is a bar to any such claim, action, suit, or proceeding. 7. Court Approval of Settlement. Preliminary and final Court approval of this Agreement are contemplated by the Parties and are express conditions precedent to this Agreement. If such approvals are not given, this Agreement shall be null and void. As part of this settlement, the Parties agree to the following procedures for obtaining preliminary approval of the settlement from the Court, notifying the Class Members and obtaining final Court approval of the settlement: 7.1 Preliminary Approval Hearing. Plaintiff will move the Court for an order preliminarily approving the Settlement Agreement (the "Preliminary Approval Order") as promptly as reasonably practicable. If the Preliminary Approval Order is granted, the hearing for final approval of the Settlement Agreement (hereinafter, "Final Settlement Hearing") shall occur as early as practicable given the Court's calendar and the claims and settlement administration. Plaintiff shall move for Final Approval of the Settlement prior to the Final Approval Hearing. 7.2
Notice to Class Members.
(a) Settlement Website. Within thirty (30) calendar days of the Court's preliminary approval order, the Claims Administrator shall post the Detailed Notice on the settlement website. The settlement website shall be maintained through the Claims Period and until Final Entry of Judgment by the Court. (b) Fax Notice. The Settlement Class consists of approximately 25,000 members. Defendant will provide a complete list of fax numbers to the Claims Administrator who will serve notice to the Settlement Class via facsimile. (i) Master Facsimile Transmission Database ("MFTD"). To facilitate the Fax Notice and settlement administration process, Defendant shall, at its sole cost, provide within 30 days, to the Claims Administrator and to Settlement Class Counsel, in an electronically searchable and readable format the MFfD. The MFfD shall include the unique facsimile numbers of all Settlement Class Members, as such information is contained in the reasonably available computerized records of Defendant. The MFfD shall be subject to review and reasonable approval by Settlement Class Counsel. (ii) Determination of Facsimile Transmissions. Each settlement Class Member who timely submits a valid Claim Form shall be compensated $35. Each settlement Class Member may only submit one Claim Form and receive one payment of$35. (iii) Within thirty (30) calendar days of the Court's preliminary approval order, the Claims Administrator will send the Fax Notice via Page 9 of 13
facsimile transmission to each of the unique facsimile numbers contained in the MFTD. The Claims Period shall begin on the date that the Fax Notice is sent to all Settlement Class Members. Whether such transmissions of the Fax Notice are ultimately successful or not shall not toll the date on which the Claims Period begins. Procedure for Opting Out. All individuals who qualify as 7.3 Settlement Class Members but who intend to opt out of the settlement must do so by sending a written request for exclusion from the class to the Claims Administrator. Any Settlement Class Member who properly files a timely written request for exclusion from the Settlement Class shall be excluded from the Settlement Class and shall have no other rights or obligations as a Settlement Class Member pursuant to this Settlement Agreement. A request for exclusion must be in writing and state the name, address, current telephone number and facsimile telephone number(s) during the Class Period, of the person or entity seeking exclusion, and be signed by the Settlement Class Member or an authorized representative of the Settlement Class Member. Each request must also contain a statement requesting that the Settlement Class Member be excluded from the Settlement Class. The request must be mailed to the Claims Administrator at the street address provided in the Class Notice, or found on the settlement website, and postmarked on or before the expiration of the exclusion period, or such other date set by the Court. Anyone who desires to be excluded but who fails to comply with the opt-out procedure set forth herein shall not be excluded from the class and shall be deemed to have waived his, her, or its objections and shall be forever barred from making any such objections in the Action or in any other proceeding or from challenging or opposing, or seeking to reverse, vacate or modify any approval of the Settlement Agreement, the Judgment and Order and any attorneys' fee or costs or incentive award approved by the Court. The Claims Administrator shall compile a list of all individuals who timely send such a written request for exclusion and provide a copy of that list to the Clerk of the Court seven (7) calendar days before the Final Settlement Hearing. Each Settlement Class Member must provide his or her own exclusion request. Exclusion requests for multiple Settlement Class Members shall not be valid. 7.4
Procedure for Objecting to Class Action Settlement.
(a) Procedure for Objecting. Any Settlement Class Member who timely objects to the Agreement, the Motion for Fees, and/or Motion for Incentive A ward may appear in person or through counsel, at his or her own expense, at the Final Approval Hearing to present any evidence or argument that may be proper and relevant provided they follow the procedures as set forth in paragraph 7.4(b). Settlement Class Members who wish to object to the Agreement, the Motion for Fees, and/or Motion for Incentive Award must submit to the Claims Administrator via first class mail, at the street address provided in the Fax Notice, or found on the settlement website, a written statement of objection no later than the Objection Date. The written statement of objection must include (a) a Notice oflntention to Appear, if applicable; (b) the full name, address and telephone number of the person objecting; (c) a statement of membership in the Settlement Class- including his, her, or its facsimile number(s) during the Class Period and the name of the person or business subscribing to that fax number(s) with evidence ofthe same; (d) a statement of each objection. Settlement Class Members who Page 10 of 13
fail to submit timely written objections in the manner specified above shall be deemed to have waived any objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the settlement. (b) Appearance at Final Settlement Hearing. A Settlement Class Member who wishes to be heard at the Final Settlement Hearing shall file with the Court and submit to the Claims Administrator a written notice of the Settlement Class Member's intention to appear at the Final Settlement Hearing, along with the written statement objecting to the settlement, on or before the Opt-Out and Objection Date. No Class Member objecting to the settlement shall be entitled to be heard at the Final Settlement Hearing (whether individually or through separate counsel) unless written notice of the Class Member's intention to appear at the Final Settlement Hearing and copies of the written statement objecting to the settlement have been filed with the Court and submitted to the Claims Administrator. Appearance at the Final Approval Hearing is not required for the Court to consider any timely and proper objection. In the event that any Settlement Class Member objects in the manner prescribed herein, Plaintiff and Defendant shall be afforded full opportunity to respond to such objections. (c) No Solicitation of Settlement Objections. At no time shall any of the Parties or their counsel seek to solicit or otherwise encourage Settlement Class Members to submit written objections to the settlement or to appeal from any of the Court's orders in the Action. 8. Nonassignment of Claims. Plaintiff and Settlement Class Members represent and warrant that they are the sole and lawful owners of all rights, title, and interest in and to every claim and other matter that they purport to release herein, and that they have not heretofore assigned or transferred, or purported to assign or transfer, to any person or entity any claim or other matters herein released. 9. Settlement. This Agreement affects the settlement of claims which are denied and contested, and nothing contained herein shall be construed as an admission by either party of any liability of any kind to each other or to any other party, all such liability being expressly denied. 10. Successors and Assigns. This Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Plaintiff and all Settlement Class Members, and Defendant, and each of them. 11. Modification of Agreement. This Agreement may only be amended or modified by a written instrument signed by the Parties and their counsel, and approved by the Court. 12. Integration. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties hereto relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any party hereto, except as specifically set forth in this
Page I I of 13
Agreement. All prior discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. 13. Construction of Agreement. This Agreement is the product of negotiation and preparation by and among each party and the parties' respective attorneys. In the event any court should find any provision of this Agreement to be ambiguous, such terms shall not be construed against any party. Before declaring any provision of this Agreement invalid, the Court shall first attempt to construe the provisions valid to the fullest extent possible consistent with applicable precedents so as to define all provisions of this Agreement valid and enforceable. Defendant and Plaintiff (on behalf of the Settlement Class Members) agree that each has the right to set aside or rescind this Agreement if modifications to it are required by the Court or by any appellate court, which are determined by them in their sole discretion to be material. 14. Governing Law. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of California. 15. Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one and the same instrument. It shall not be necessary for the proof of this Agreement that any Party produce or account for more than one such counterpart. This Agreement may be signed and delivered by facsimile transmission or electronic transmission (PDF file format), and such facsimile or electronic signature shall be afforded the same force and effect as original signatures for all purposes. 16. Survival of Warranties and Representations. The warranties and representations of this Agreement are deemed to survive the closing hereof. 17. Signatures Necessary. This Agreement and the terms and conditions hereof shall not become effective and shall have no force or effect whatever until executed by the parties and their attorneys and exchanged by and between all parties. 18. Notices. All demands, notices, requests, consents, and other communications hereunder shall be in writing and shall be deemed to have been duly given (1) when delivered by courier service or messenger, or (2) upon the date of actual transmission if transmitted by facsimile or email, to the following addresses, or such other addresses as may be furnished hereafter by notice in writing, to the following Parties: In the case of notice to Plaintiff and/or the Settlement Class to:
In the case of notice to Defendant to:
Nima Nami Nami Law Firm 20434 S. Santa Fe A venue Long Beach, CA 90810 Tele: 949-610-8535
Christine M. Reilly, Esq. Manatt, Phelps & Phillips, LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 Tele: 310-312-4000 Page 12 of13
19. Additional Documents and Actions. Each of the Parties shall execute and deliver such further documents, and shall take or cause to be taken such other and further action, from time to time necessary or desirable, to order to effectuate the terms and provisions of this Settlement Agreement.
IN WITNESS WHEREOF, the Parties hereto and their respective attorneys have approved and executed this Agreement on the date set forth opposite their respective signatures. Date: November 23,2016
DEFENDANT BOBCO METALS, LLC By: Name: ____________________ Title:
Page 13 ofl3
19. Additional Documents and Actions. Each of the Parties shall execute and deliver such fluiher documents, and shall take or cause to be taken such other and further action, Crom time to time necessary or desirable, to order to effectuate the terms and provisions of this Settlement Agreement.
IN WITNESS WHEREOF, the Parties hereto and their respective attorneys have approved and executed this Agreement on the date set forth opposite their respective· signatures.
Date: December 5, 2016
J>LAINTIFF
DEFENDANT
THUNDER STUDIOS, INC.
By: Name: Title:
By: Name: -t--=:J'"'""r-t\----:-r-P~r-l"t~- Titlc:
Page 13 of 13
