PE Settlement

84995079.
1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

KIRK DAHL, et al., Individually and on
Behalf of All Others Similarly Situated,
Plaintiffs,
vs.
BAIN CAPITAL PARTNERS, LLC, et al.,
Defendants.

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Lead Case No. 1:07-cv-12388-WGY
CLASS ACTION
SUPPLEMENTAL MEMORANDUM OF
LAW IN SUPPORT OF NAMED
PLAINTIFFS MOTION FOR
PRELIMINARY APPROVAL OF
SETTLEMENTS, INCLUDING A
SETTLEMENT WITH DEFENDANTS
THE BLACKSTONE GROUP L.P.,
KOHLBERG KRAVIS ROBERTS & CO.
L.P. AND TPG CAPITAL, L.P.

Case 1:07-cv-12388-WGY Document 1018 Filed 08/07/14 Page 1 of 12
TABLE OF CONTENTS

Page
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I. Introduction ..................................................................................................................... 1
II. The factual background ................................................................................................. 2
A. The background of the litigation ...................................................................... 2
B. The settlement negotiations ............................................................................... 3
C. The settlement agreement .................................................................................. 3
III. The proposed settlement class should be certified for settlement purposes
under Rules 23(a) and (b)(3) .......................................................................................... 4
IV. The settlement is fair, reasonable and adequate ........................................................ 5
V. Conclusion ....................................................................................................................... 7
TABLE OF AUTHORITIES

Page
84995079.1 ii
Cases
Amchem Prods. v. Windsor,
521 U.S. 591 (1997) .................................................................................................................... 5
Hochstadt v. Boston Sci. Corp.,
708 F. Supp. 2d 95 (D. Mass. 2010) ........................................................................................ 5
In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
55 F.3d 768 (3d Cir. 1995) ........................................................................................................ 6
In re Lupron (R) Mktg. & Sales Practices Litig.,
345 F. Supp. 2d 135 (D. Mass. 2004)....................................................................................... 6
In re Relafen Antitrust Litig.,
231 F.R.D. 52 (D. Mass. 2005).............................................................................................. 4, 5
Rules
Fed. R. Civ. P. 23 ....................................................................................................................... 2, 4
Fed. R. Civ. P. 23(a) ...................................................................................................................... 4
Fed. R. Civ. P. 23(a)(1) ................................................................................................................. 4
Fed. R. Civ. P. 23(a)(2) ................................................................................................................. 4
Fed. R. Civ. P. 23(a)(3) ................................................................................................................. 4
Fed. R. Civ. P. 23(b)(3) ............................................................................................................. 4, 5
Fed. R. Civ. P. 26(a)(4) ................................................................................................................. 4
Other Authorities
Manual for Complex Litigation 21.632 (4th ed. 2004) ............................................................... 5


84995079.1 1
I. Introduction.

Named Plaintiffs
1
have signed a settlement agreement with defendants The
Blackstone Group L.P. (Blackstone), Kohlberg Kravis Roberts & Co. L.P. (KKR) and
TPG Capital, L.P. (TPG) for a cash payment of $325 million. Now, six of the seven
defendants have settled for a total of $475.5 million. The sole Remaining Defendants for
trial, scheduled for November 3, 2014, are TC Group III, L.P. and TC Group IV, L.P.
(collectively Carlyle).
Named Plaintiffs initially settled with Bain Capital Partners, LLC (Bain
Capital) and The Goldman Sachs Group, Inc. (Goldman) for $54 million and $67
million, respectively. Named Plaintiffs then reached a settlement with Silver Lake
Technology Management, L.L.C. (Silver Lake) for $29.5 million. Those settlements are
scheduled for a preliminary approval hearing on September 4, 2014.
2
Named Plaintiffs
now respectfully submit this supplemental memorandum in support of preliminary
approval of their Settlement Agreement with Blackstone, KKR and TPG (attached as
Exhibit A), in conjunction with the previous settlements, at the hearing on September 4,
2014.
3

1
Named Plaintiffs include Kirk Dahl, Police and Fire Retirement System of the City of Detroit, City
of Omaha Police and Fire Retirement System, and Michael Wojno as Executor for the Estate of Robert
Zimmerman.
2
Named Plaintiffs filed their Unopposed Motion for Preliminary Approval of Settlements with
Defendants Bain Capital and Goldman Sachs and memorandum in support thereof (Preliminary
Approval Motion) on June 11, 2014. Named Plaintiffs filed their Supplemental Motion and supporting
memorandum for the Silver Lake settlement on July 10, 2014.
3
Named Plaintiffs incorporate herein by reference all arguments in support of preliminary
approval of the Bain Capital, Goldman Sachs and Silver Lake settlements, which apply with equal force
to the Blackstone, KKR and TPG Settlement (the Settlement or Settlement Agreement; together with
the Bain Capital, Goldman Sachs and Silver Lake settlement agreements, the Settlement Agreements or
Settlements).

84995079.1 2
For the reasons set forth below, as well as in Named Plaintiffs prior submissions
in support of preliminary approval, Co-Lead Counsel and Named Plaintiffs believe this
latest Settlement, standing alone or in conjunction with the prior pending Settlements, is
well within the range of fairness, adequacy and reasonableness under Rule 23 and the
standards of the First Circuit. It should, therefore, be preliminarily approved by the
Court.
4

II. The factual background.
A. The background of the litigation.
Blackstone, KKR and TPG have vigorously disputed the Named Plaintiffs
allegations over the past seven years. Named Plaintiffs have overcome defendants
attacks on multiple fronts, including early efforts to transfer the case, dozens of motions
to dismiss and for summary judgment, motions for reconsideration and a petition for
interlocutory appeal. Discovery has also been extensive. Blackstone produced
approximately 1.8 million pages of documents and five of its executives were deposed,
including principals and senior managing directors. KKR produced approximately 1.3
million pages of documents and five of its top executives were deposed, including its
Co-CEO and Co-Chairman, George Roberts. TPG produced approximately 2.4 million
pages of documents and four of its executives were deposed, including founding

4
Named Plaintiffs, with the consent of counsel for the Settling Defendants, will address at the September 4,
2014 hearing the submission of an amended proposed order preliminarily approving the four pending Settlements,
amended long-form and summary notices to incorporate the pending Settlements and a proposed Rule 54(b) Final
J udgment Order as to Silver Lake, Blackstone, KKR and TPG. These documents will be substantially similar to
those filed in connection with Named Plaintiffs Preliminary Approval Motion of J une 11, 2014. Named Plaintiffs
incorporate the schedule of events governing the remaining procedural aspects of the proposed Settlements
previously suggested to the Court, along with their request for appointment of Co-Lead Counsel and the parameters
of their fee and expense applications, as set forth in Named Plaintiffs Preliminary Approval Motion. See Dkt. No.
985 at 9, 19-20.

84995079.1 3
partners David Bonderman and James Coulter. Each of these defendants was
intimately involved in all facets of the case, including the discovery of Named Plaintiffs
experts on the issue of class certification and in the presentation of defendants
opposition to class certification.
B. The settlement negotiations.
Like the litigation itself, the Settlement is the product of vigorous, hard-fought,
arms-length negotiations between experienced counsel. As with the prior Settling
Defendants, Blackstone, KKR and TPG engaged in substantial mediation efforts with
Named Plaintiffs before an experienced and respected mediator. After these global
mediation efforts faltered, it was only through extensive private negotiations that the
parties were able to achieve the Settlement now before the Court. Because the litigation
is at such an advanced stage, with trial scheduled in three-months time, Co-Lead
Counsel and the Named Plaintiffs are in a superior position to assess the relative
strengths and weaknesses of their claims and defendants defenses and conclude that
the proposed settlement, along with the previously submitted settlements, are in the
best interests of the putative class.
C. The settlement agreement.
This Settlement largely mirrors the previous Settlements. Blackstone, KKR and
TPG will make a cash payment for the benefit of Settlement Class Members in the
amount of three hundred twenty-five million dollars ($325,000,000.00), and agree to
cooperate with Named Plaintiffs in the prosecution of their claims against Carlyle with
respect to the authenticity and business record status of their documents.

84995079.1 4
III. The proposed settlement class should be certified for settlement purposes
under Rules 23(a) and (b)(3).

As described in the two prior memoranda in support of preliminary approval of
earlier partial settlements, Named Plaintiffs believe that all of the requirements for
preliminarily certifying a unified settlement class are amply met. Moreover, the
adequacy of the total settlement relief to Settlement Class Members is only enhanced by
the Blackstone, KKR and TPG Settlement.
The Settlement Class should be certified because it meets the requirements of
Rule 23(a):
Numerosity The Settlement Class consists of thousands of investors who sold
or exchanged shares of stock in the LBOs of the eight target companies at issue
and joinder outside of Rule 23 is impracticable. Fed. R. Civ. P. 23(a)(1).

Commonality There are numerous common issues of fact and law that affect all
or a substantial number of the class members on the issue of liability and
damages, including, inter alia, whether Settling Defendants engaged in the
alleged anticompetitive conduct. Fed. R. Civ. P. 23(a)(2); In re Relafen Antitrust
Litig., 231 F.R.D. 52, 69 (D. Mass. 2005)(Relafen II).

Typicality The Named Plaintiffs claims are typical of the claims of absent class
members as they arise from the same event or pattern or practice and are based
on the same legal theory. Relafen II at 69; Fed. R. Civ. P. 23(a)(3). Here, the
nexus among all class members, based on evidence sufficient for trial, is an
overarching agreement between the Defendants to refrain from jumping each
others announced proprietary deals. Mar. 13, 2013 Memorandum and Order at
30 (Dkt. No. 763).

Adequacy The Named Plaintiffs will fairly and adequately protect the interest
of the class because their interests do not conflict and they are represented by
counsel with extensive experience in antitrust cases who have vigorously
prosecuted the case. Fed. R. Civ. P. 26(a)(4); Relafen II at 69. All members of the
putative class are aligned in an identical goal of seeking damages for artificially
depressed share prices resulting from the same conspiracy.


84995079.1 5
The requirements of Rule 23(b)(3) also weigh in favor of certifying the Settlement
Class because common questions of law and fact predominate and a class action is the
superior method for resolving this litigation. The common questions for trial in the
absence of settlement is whether the Settling Defendants entered into unlawful
agreements not to compete for the target companies and whether share prices paid to
the Settlement Class in the LBOs would have been higher absent such agreements.
These common questions predominate over any individualized inquiries among class
members, including purported issues of trial manageability resulting from releases
obtained in prior shareholder litigation.
5

Rule 23(b)(3) is further satisfied because a class action is the superior method for
resolving the present case. The Settlement Class includes thousands of individual
shareholders, many of whom individually would be unable to effectively vindicate their
rights. Amchem, 521 U.S. at 617 (1997); Relafen II at 70. Class treatment also eliminates
the risk of inconsistent adjudication.
IV. The settlement is fair, reasonable and adequate.
At this stage of consideration, the Court must first make a preliminary
determination on the fairness, reasonableness, and adequacy of the settlement terms.
Hochstadt v. Boston Sci. Corp., 708 F. Supp. 2d 95, 107 (D. Mass. 2010) (quoting the
Manual for Complex Litigation 21.632 (4th ed. 2004)). A presumption of fairness attaches
to the courts preliminary fairness determination when (1) the negotiations occurred

5
Manageability of a class trial is not a relevant consideration in the settlement context. As the
Supreme Court noted, a trial court need not inquire whether the case, if tried, would present intractable
management problems. Amchem Prods. v. Windsor, 521 U.S. 591, 620 (1997); Relafen II at 69.

84995079.1 6
at arms length; (2) there was sufficient discovery; (3) the proponents of the settlement
are experienced in similar litigation; and (4) only a small fraction of the class objected.
In re Lupron (R) Mktg. & Sales Practices Litig., 345 F. Supp. 2d 135, 137 (D. Mass. 2004)
(quoting In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir.
1995)). For the reasons described in Named Plaintiffs previous submissions in support
of preliminary approval of the prior partial settlements, and herein with respect to the
conduct of the litigation, the intensity of the discovery efforts, and the negotiation
process, the Settlement with Blackstone, KKR and TPG easily satisfies the preliminary
approval standard in the First Circuit.
As with the prior settlements with Bain Capital, Goldman Sachs and Silver Lake,
the proposed Settlement with Blackstone, KKR and TPG confers substantial benefits
upon the Settlement Class while eliminating: (i) the uncertainty of future relief after
protracted and expensive litigation, including the difficulties of proving liability,
causation and damages under the Sherman Act and Clayton Act and the possible
defenses to such claims; and (ii) the risk that Named Plaintiffs may not ultimately
prevail and thus may not secure this significant additional relief for the Settlement
Class.


84995079.1 7
V. Conclusion.
For all of the reasons set forth above, the Settlement is well within the range of
reasonableness contemplated by courts in this Circuit, and the Court should
preliminarily approve the proposed Settlement.
Dated: August 7, 2014
Respectfully submitted,

By: s/Thomas J. Undlin

K. Craig Wildfang (admitted pro hac vice)
Thomas J. Undlin (admitted pro hac vice)
Stacey P. Slaughter (admitted pro hac vice)
ROBINS, KAPLAN, MILLER & CIRESI L.L.P
2800 LaSalle Plaza
800 LaSalle Avenue South
Minneapolis, MN 55402-2015
(612) 349-8500
kcwildfang@rkmc.com
tjundlin@rkmc.com
spslaughter@rkmc.com

Lisa A. Furnald (BBO #631059)
800 Boylston Street, 25th Floor
Boston, MA 02199
(617) 267-2300
lafurnald@rkmc.com

Christopher M. Burke (admitted pro hac vice)
Walter W. Noss (admitted pro hac vice)
Kristen M. Anderson (admitted pro hac vice)
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
707 Broadway, Suite 1000
San Diego, CA 92101
(619) 233-4565
cburke@scott-scott.com
wnoss@scott-scott.com
kanderson@scott-scott.com

84995079.1 8

David R. Scott
156 South Main Street
P.O. Box 192
Colchester, CT 06415
(860) 537-3818

Patrick J. Coughlin (admitted pro hac vice)
David W. Mitchell (admitted pro hac vice)
Randi D. Bandiman (admitted pro hac vice)
Phong L. Tran (admitted pro hac vice)
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
(619) 231-1058
patc@rgrdlaw.com
davidm@rdrdlaw.com
ptran@rdrglaw.com

Co-Lead Class Counsel


84995079.1 9
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic
Filing (NEF) and paper copies will be sent to those indicated as non-registered
participants on August 7, 2014.
s/Thomas J. Undlin
Thomas J. Undlin
EXHIBIT A
Case 1:07-cv-12388-WGY Document 1018-1 Filed 08/07/14 Page 1 of 36
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KIRK DAHL, et al., Individually and on Behalf
of All Others Similarly Situated,
Plaintiffs,
vs.
BAIN CAPITAL PARTNERS, LLC, et al.,
Defendants.
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Lead Case No. 1:07-cv-12388-WGY
CLASS ACTION
SETTLEMENT AGREEMENT WITH THE
BLACKSTONE GROUP L.P., KOHLBERG
KRAVIS ROBERTS & CO. L.P. AND TPG
CAPITAL, L.P.
- 1 -
This Settlement Agreement, dated July 28, 2014 (the Agreement), is entered into by and
among Scott + Scott, Attorneys at Law, LLP, Robbins Geller Rudman & Dowd LLP, and Robins,
Kaplan, Miller &Ciresi L.L.P., on behalf of plaintiffs Kirk Dahl, Police and Fire Retirement System
of the City of Detroit, City of Omaha Police and Fire Retirement System, and Michael Wojno, as
executor for the estate of Robert Zimmerman (collectively, the Named Plaintiffs) and a settlement
class of all others similarly situated, as more fully defined in paragraph 6 below, on the one hand;
and defendants The Blackstone Group L.P. (including its predecessors, successors, and all past and
present directors, managing directors, partners, officers, employees, and affiliates) (Blackstone),
the Blackstone Investment Funds (defined below), Kohlberg Kravis Roberts & Co. L.P. (including
its predecessors, successors, and all past and present directors, managing directors, partners, officers,
employees, and affiliates) (KKR), the KKR Investment Funds (defined below), TPGCapital, L.P.
(including its predecessors, successors, and all past and present directors, managing directors,
partners, officers, employees, and affiliates) (TPG), the TPG Investment Funds (defined below)
(collectively with Blackstone, the Blackstone Investment Funds, KKR, the KKR Investment Funds,
TPGand the TPGInvestment Funds, the Settling Entities) on the other hand. The Settling Entities
and the Named Plaintiffs are referred to herein individually as a Party and collectively as the
Parties.
WHEREAS, the Parties, by and through their undersigned counsel, have reached an
agreement-in-principle providing for the settlement and release and dismissal with prejudice of any
and all claims that were asserted, or could have been asserted, by or on behalf of the Settlement
Class against the Settling Entities in or relating to Dahl, et al. v. Bain Capital Partners, LLC, et al.,
Case No. 07-cv-12388-WGY (D. Mass.) (the Action);
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WHEREAS, the Named Plaintiffs allege that the Settling Entities and other Defendants
participatedinan unlawful conspiracy to raise, fix, maintain, or stabilize the price of large leveraged
buyouts, announced between 2003 and 2007, to allocate deal outcomes and purchase target
companies at artificially suppressed prices, depriving shareholders of a true and fair market value in
violation of 1 of the Sherman Act, 15 U.S.C. 1;
WHEREAS, the NamedPlaintiffs allege that theSettlingEntitiesandotherDefendantsparticipated
in an unlawful conspiracy to raise, fix, maintain, or stabilize the price of the HCA buyout,
announced in July 2006 in violation of 1 of the Sherman Act, 15 U.S.C. 1;
WHEREAS, the Settling Entities deny all of the Named Plaintiffs allegations and have
asserted defenses to Named Plaintiffs claims;
WHEREAS, the Named Plaintiffs have conducted an investigation into the facts and the law
regarding the claims in the Action and believe that their claims are valid, but nevertheless recognize
that there are material litigation risks associated with pursuing those claims and, therefore, have
concludedthat resolvingtheir claims against the Settling Entitiesaccordingtothetermsset forthbelow
is in the best interest of the Named Plaintiffs and the proposed Settlement Class;
WHEREAS, the Settling Entities, despite their beliefs that they are not liable for the claims
asserted and that they have good defenses thereto, have nevertheless agreed to enter into this
Agreement to avoid further expense, inconvenience, andthe distractionof burdensome andprotracted
litigation, and to obtain the releases, orders, and judgment contemplated by this Agreement, and to
put to rest with finality all claims that have been or could have been asserted against the Settling
Entities, including those arising out of the Transactions as defined below, as more particularly set
out below;
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WHEREAS, each of Blackstone, KKR and TPG is a non-discretionary advisor to their
respective Investment Funds (defined below) and the Investment Funds are the parties in interest
with respect to the LBOs (defined below), being the potential source of capital, with each of the
Investment Funds making its own decision to invest, or not invest, in the LBOs; and
WHEREAS, the Settling Entities and the Named Plaintiffs have negotiated all of the terms
and conditions of this Agreement at arms length and all terms, conditions, and exhibits in their exact
form are material and necessary to this Agreement and have been relied upon by the Parties in
entering into this Agreement.
NOW, THEREFORE, in consideration of the covenants, agreements, and releases set forth
herein and for other good and valuable consideration, it is agreed by and among the undersigned that
the Action be settled, compromised, and dismissed on the merits with prejudice as to the Settling
Entities on the following terms and conditions:
A. Definitions
1. For purposes of this Agreement, the Blackstone Investment Funds is defined as
Blackstone Capital Partners V L.P., BCP V-S L.P., Blackstone Capital Partners V-AC L.P., BCP V
Co-Investors L.P., Blackstone Management Associates V L.L.C., Blackstone Capital Partners IV,
L.P., Blackstone Capital Partners IV-A L.P., Blackstone Management Associates IV L.L.C.,
Blackstone Capital Partners III Merchant Banking Fund L.P., Blackstone Offshore Capital Partners
III L.P., Blackstone Management Associates III L.L.C., Blackstone Capital Partners II Merchant
Banking Fund L.P., Blackstone Offshore Capital Partners II L.P., Blackstone Capital Partners L.P.,
Blackstone Management Associates II L.L.C., Blackstone Management Partners L.P., Blackstone
Real Estate Partners I L.P., Blackstone Real Estate Associates L.P., Blackstone Real Estate Partners
II L.P., Blackstone Real Estate Associates II L.P., Blackstone Real Estate Partners III L.P.,
Blackstone Real Estate Associates III L.P., Blackstone Real Estate Partners IVL.P., Blackstone Real
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Estate Associates IV L.P., Blackstone Real Estate Partners V L.P., Blackstone Real Estate
Associates V L.P., Blackstone Real Estate Partners VI L.P., Blackstone Real Estate Associates IV
L.P., Blackstone Real Estate Partners International I.D L.P., Blackstone Real Estate Associates
International L.P., Blackstone Real Estate Partners International II L.P., Blackstone Real Estate
Associates International II L.P., Blackstone Real Estate Partners VI (AV) L.P., Blackstone Real
Estate Partners VI.TE.1 L.P., Blackstone Real Estate Partners VI.TE.2 L.P., Blackstone Real Estate
Holdings VI L.P., Blackstone Family Real Estate Partnership VI-SMD L.P., Blackstone
Communications Partners I L.P., Blackstone Communications Management Associates I L.L.C.,
Blackstone Family Investment Partnership V-SMDL.P., Blackstone Family Investment Partnership
V L.P., Blackstone Participation Partnership V L.P., BCP V Side-by-Side GP L.L.C., Blackstone
Family GP L.L.C., Blackstone Family Investment Partnership IV-A SMD L.P., Blackstone Family
Investment Partnership IV-A L.P., Blackstone Family Communications Partnership I-SMD L.P.,
Blackstone Family Communications Partnership I L.P., BCOMSide-by-Side GP L.L.C., Blackstone
Family Investment Partnership II L.P., Blackstone Family Investment Partnership III L.P., and, each
other current, former or future investment fund, vehicle or account advised by Blackstone, its parent
entities, or such parent entities subsidiaries, and, without limitation, (i) all parallel, alternative, side-
by-side or other investment vehicles or funds formed in connection with any of the foregoing and (ii)
all special purpose vehicles, subsidiaries and investment vehicles formed directly or indirectlybyor
on behalf of any of the foregoing.
2. For purposes of this Agreement, the KKR Investment Funds is defined as KKR
Millennium Fund L.P., KKR Associates Millennium L.P., KKR 2006 Fund L.P., KKR Associates
2006 L.P., KKREuropean Fund, Limited Partnership, KKRAssociates Europe, Limited Partnership,
KKREuropean Fund II, Limited Partnership, KKRAssociates Europe II, Limited Partnership, KKR
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Asian Fund L.P., KKR Associates Asia L.P., KKR Partners II, L.P., KKR Associates, L.P., KKR
Partners III, L.P., KKR III GP LLC, KKRPartners (International), Limited Partnership, KKR1996
Overseas, Limited, KKR Partners II (International), L.P., KKR PI-II GP Limited, KKR Reference
Fund Investments L.P., KKR Index Fund Investments L.P., KKR IFI GP L.P., OPERF Co-
Investment LLC, 8 North America Investor L.P., KKR Associates 8 NA L.P., KKR Financial
Holdings LLC, KKR Private Equity Investors, L.P., KKR PEI Investments, L.P., and, each other
current, former or future investment fund, vehicle or account advised by KKR, its parent entities, or
such parent entities subsidiaries, and, without limitation, (i) all parallel, alternative, side-by-side or
other investment vehicles or funds formed in connection with anyof the foregoing and (ii) all special
purpose vehicles, subsidiaries and investment vehicles formed directly or indirectly by or on behalf
of any of the foregoing.
3. For purposes of this Agreement, the TPG Investment Funds is defined as TPG
Partners III, L.P., TPG Parallel III, L.P., TPG Dutch Parallel III, C.V., TPG Investors III, L.P., T3
Partners, L.P., T3 Parallel, L.P., T3 Dutch Parallel, C.V., T3 Investors, L.P., FOF Partners III, L.P.,
FOF Partners III-B, L.P., TPGPartner IV, L.P., TPGFOF IV, L.P., TPGPartners V, L.P., TPGFOF
V-A, L.P., TPGFOF V-B, L.P., TPGPartners VI, L.P., TPGFOF VI-A, L.P., TPGFOF VI-B, L.P.,
and, each other current, former or future investment fund, vehicle or account advised by TPG, its
parent entities, or such parent entities subsidiaries, and, without limitation, (i) all parallel,
alternative, side-by-side or other investment vehicles or funds formed in connection with any of the
foregoing and (ii) all special purpose vehicles, subsidiaries and investment vehicles formed directly
or indirectly by or on behalf of any of the foregoing.
4. For purposes of this Agreement, Investment Funds is defined as the Blackstone
Investment Funds, the KKR Investment Funds, and the TPG Investment Funds.
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5. For purposes of this Agreement, LBO or leveraged buyout is defined as the
acquisition of a company through a leveraged transaction, as referenced in the Fifth Amended Class
Action Complaint for Violations of the Federal Antitrust Laws filed in this Action (the
Complaint).
6. For purposes of this Agreement, and subject to paragraph 42 below, Settlement
Class is defined as Kirk Dahl, Police and Fire Retirement System of the City of Detroit, City of
Omaha Police and Fire Retirement System, and Michael Wojno as executor for the estate of Robert
Zimmerman, and all persons or entities who sold or exchanged their common stock of (1) AMC
Entertainment Inc., (2) SunGard Data Systems Inc., (3) Aramark Corporation, (4) Kinder Morgan,
Inc., (5) HCAInc., (6) Freescale Semiconductor, Inc., (7) Harrahs Entertainment, Inc., or (8) TXU
Corp., as part of the LBOfor eachof the precedingtarget companies (as referenced in the Complaint)
(the Transactions). Excluded from the Settlement Class are the Court and any members of the
Courts immediate family; the Defendants, including their predecessors, successors, andaffiliates as
well as their current and former directors, managers, partners, officers, and employees; and the
directors and officers of each target company at the time of the leveraged buyout, provided that the
foregoing exclusion shall not cover Goldman Sachs Investment Vehicles, which for these
purposes shall mean any investment company or pooled investment fund, including, but not limited
to, mutual fund families, exchange-traded funds, fund of funds and hedge funds, in which The
Goldman Sachs Group, Inc. has or may have a direct or indirect interest, or as to which its affiliates
mayact as an investment advisor, but are not managed byTheGoldmanSachs Group, Inc.sMerchant
Banking Division and of which The Goldman Sachs Group, Inc. or any of its respective affiliates is
not a majority owner or does not hold a majority beneficial interest.
- 7 -
7. For purposes of this Agreement, and subject to paragraph 42 below, Settlement
Class Member is defined as each member of the Settlement Class who has not timely elected to be
excluded fromthe Settlement Class. Settlement Class Members is defined as the members of the
Settlement Class who have not timely elected to be excluded from the Settlement Class. The
Settling Entities agree not tosolicit or encourage membersoftheSettlementClasstoexcludethemselvesfrom
the Settlement Class.
8. For purposes of this Agreement, the terms Defendant or Defendants shall mean,
respectively, each and all named defendants in any complaint filed in this Action.
9. Non-Settling Defendants shall mean Defendants other than The Blackstone Group
L.P. (and its Investment Funds), Kohlberg Kravis Roberts & Co. L.P. (and its Investment Funds),
TPG Capital, L.P. (and its Investment Funds), Bain Capital Partners, LLC, The Goldman Sachs
Group, Inc., and Silver Lake Technology Management, L.L.C.
10. Releasors shall refer to the Named Plaintiffs and Settlement Class Members, and all
of their respective past and present, direct and indirect parent entities, subsidiaries, and affiliates;
predecessors, successors; and each and all of the present and former principals, partners, officers,
directors, investors, supervisors, employees, representatives, insurers, attorneys, heirs, executors,
administrators, and assigns of each of the foregoing.
11. Releasee or Releasees shall refer to each of the Settling Entities; the
predecessors, successors and assigns of each of the Settling Entities; and each and all of the Settling
Entities past, present, and future direct or indirect, families, parent entities, controlling persons,
associates, affiliates or subsidiaries and each and all of their respective past or present, direct or
indirect, officers, directors, stockholders, principals, representatives, employees, attorneys, financial
or investment advisors, consultants, accountants, investment bankers, commercial bankers, entities
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providing fairness opinions, advisors or agents, insurers, heirs, executors, trustees, general or limited
partners (who are not Non-Settling Defendants), or partnerships, investment funds, limited liability
companies, members, managers, joint ventures (except co-sponsors with respect to the Transactions
identified in paragraph 6), personal or legal representatives, estates, administrators, predecessors,
successors or assigns. The term Releasee or Releasees excludes any Non-Settling Defendants
ever named in this Action.
12. The Settlement Fund shall refer to the payment to be caused to be made by the
Investment Funds pursuant to paragraph 27 of this Agreement, plus all accrued interest thereon.
13. The Named Plaintiffs shall refer to Kirk Dahl, PoliceandFire Retirement Systemof
the City of Detroit, City of Omaha Police and Fire Retirement System, and Michael Wojno, as
Executor for the Estate of Robert Zimmerman.
14. For purposes of this Agreement, Barred Claims shall refer to (i) claims and claims
over for contribution or indemnity (or any other claim or claim-over, however denominated on
whatsoever theory) arising out of or related to the claims or allegations asserted by Named Plaintiffs
in the Action on their own behalf and on behalf of the Settlement Class in the Action, or (ii) any
other claim of any type, whether arising under state, federal, common, or foreign law, for which the
injury claimed is that persons or entitys actual or threatened liabilityto Named Plaintiffs and/or any
Settlement Class Members in the Action.
15. Co-Lead Counsel shall refer to the following counsel:
David R. Scott
Christopher M. Burke
Scott + Scott, LLP
707 Broadway, 10th Floor
San Diego, CA 92101
Patrick J. Coughlin
David W. Mitchell
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Robbins Geller Rudman & Dowd LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
K. Craig Wildfang
Thomas J. Undlin
Robins, Kaplan, Miller & Ciresi, L.L.P.
2800 LaSalle Plaza
Minneapolis, MN 55402
16. The Named Plaintiffs and the Settling Entities, and their counsel, respectively, shall
maintain the confidentiality of this Agreement and shall make no public or other disclosure of its
terms, including, but not limited to, the Settlement Amount (defined below) prior to when the
Named Plaintiffs submit this Agreement to the Court for preliminary approval of the settlement;
provided, however, that the Settling Entities may disclose this Agreement to their respective insurers
and auditors or as required by federal securities laws.
B. Approval of This Agreement and Dismissal of Claims Against the
Settling Entities
17. The Named Plaintiffs and the Settling Entities, and their counsel, respectively, shall
use reasonable, good faith efforts to effectuate this Agreement and its purpose, and secure the
prompt, complete, and final dismissal with prejudice of the Action as to Releasees, but not as to any
party, person, or entity that is not a Releasee.
18. Named Plaintiffs shall submit to the Court a motion for preliminary approval of this
Agreement on or after August 7, 2014. The motion for preliminary approval shall include a
proposed plan for the sending of notice to the Settlement Class within thirty (30) days after an
order of preliminary approval is entered, andestablishinga periodof sixty(60) days fromthe giving
of suchnotice withinwhichany member of the Settlement Class may: (a) object to the Agreement or
(b) request exclusion from the Settlement Class. The motion for preliminary approval shall also
request that any hearing on final approval of the settlement be set for no earlier than forty-five (45)
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days from the final date for serving objections and that any reply briefs on such motions be filed
fourteen (14) days prior to that hearing.
19. Named Plaintiffs shall seek, and the Settling Entities will not object to, entry of an
order and final judgment, the text of which the Parties shall agree upon. The terms of that order and
final judgment will include, at a minimum, the substance of the following provisions:
(a) certifying the Settlement Class pursuant to Rule 23 of the Federal Rules of
Civil Procedure;
(b) approving finally this settlement and its terms as being a fair, reasonable and
adequate settlement as tothe Named Plaintiffs andthe Settlement Class withinthemeaningof Rule 23
of theFederal Rules of Civil Procedureor other applicablelaw, releasingReleaseesinaccordance with
paragraph 22 of this Agreement, and directing consummation of this Agreement according to its
terms;
(c) providing that the Action against each of Blackstone, KKR and TPG be
dismissed with prejudice and, except as providedfor inthis Agreement, without recoveryof attorneys
fees and/or costs from any of Blackstone, KKR or TPG;
(d) reserving exclusive jurisdiction over this settlement and this Agreement,
includingtheadministrationandconsummationof thissettlement, totheUnitedStatesDistrict Court for
the District of Massachusetts;
(e) determining under Federal Rule of Civil Procedure 54(b) that there is no just
reason for delay and directing that the judgment of dismissal as to Blackstone, KKR and TPG be
finally entered;
(f) certifying that the notification requirements of the Class Action Fairness Act,
28 U.S.C. 1715, have been met; and
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(g) providing a bar order and judgment reduction provision in accordance with
paragraph 29 of this Agreement.
20. The Parties understand and agree that this settlement is subject to (a) preliminary
approval of the settlement by the Court; (b) final approval of the settlement by the Court after notice
to the Settlement Class, and a hearing on final approval becoming final and no longer subject to
appeal as defined herein; (c) the Settling Entities not exercising anyrights of termination; and (d) the
Investment Funds causing payment of the Settlement Amount. Subject to the provisions of this
paragraph, this Agreement shall become final when (i) the Court has entered an order and final
judgment, which includes the provisions described in paragraph 19, approving thisAgreement under
Federal Rule of Civil Procedure 23(e) and/or applicable state laws and a final judgment dismissingthe
Action with prejudice as to all Releasees against all Settlement Class Members and (ii) either (A) the
time for appeal or to seek permission to appeal fromthe Courts approval of the settlement and entry
of an order and final judgment as to all Releasees has expired, or (B) if an appeal is taken, the order
and final judgment are affirmed in their entirety on appeal (or the appeal is finally dismissed in its
entirety) by the Court of last resort to which such appeal has been taken and such affirmance has
become no longer subject to further appeal or review.
21. This Agreement shall be deemed executed as of the last date of signature by any of
the Settling Entities and Co-Lead Counsel, and Co-Lead Counsel shall give notice to the Settling
Entities within three (3) business days after this Agreement is deemed executed. Neither the
provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651,
shall betakenintoaccount in determining the above-stated times. As of the date of execution of this
Agreement, the Parties shall be bound by the terms of this Agreement and this Agreement shall not
be rescinded or terminated except as set forth in this Agreement.
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C. Release, Discharge, and Covenant Not to Sue
22. In addition to the effect of any final judgment entered in accordance with the
settlement, upon the settlement becoming final as set out in paragraph 20 of this Agreement, and in
consideration of the payment specified in paragraph 27 of this Agreement, and for other valuable
consideration, Releasors fully, finally and forever settle, release, acquit, relinquish and discharge
Releasees from any legal, equitable, or other allegations, claims, causes of action, cross-claims,
counter-claims, charges, liabilities, demands, judgments, suits, obligations, debts, setoffs, rights of
recovery, or liabilities for any obligations of any kind whatsoever (however denominated), whether
based on common law, equity, or on any federal or state statute, rule, regulation, other law, contract
or other right of action, whether direct or indirect, known or unknown, suspected or unsuspected,
foreseen or not foreseen, or fixed or contingent, for any injury, damage or loss of any kind
whatsoever, including, but not limited to, compensatory damages, consequential damages, incidental
damages, special damages, statutory liquidated damages, exemplary damages, punitive damages,
costs, expenses, interest, and attorneys fees, which they ever had, now have or may in the future
have, own, or claim existing as of the date of this Agreement that were asserted or could have been
asserted in this Action or that concern the Transactions, or any other claims arising out of, relating
to, or in connection with, the defense, settlement, or resolution of the Action (the Released
Claims). Releasors shall not, after the date of this Agreement, seek to establish liability directly or
indirectly against any Releasee based, in whole or in part, upon any of the Released Claims. This
release shall not affect the rights and claims of Named Plaintiffs and the Settlement Class against
any entity or person, including any Non-Settling Defendants, other than the Releasees and shall not
affect or alter in any manner any otherwise applicable joint and several liability among persons or
entities, including any Non-Settling Defendants, other than the Releasees. The Releasors
contemplate and agree that this Agreement maybe pleadedas abar toalawsuit, andaninjunctionmay
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be obtained, preventing any action from being initiated or maintained in any case sought to be
prosecuted with respect to the Released Claims.
23. Without limitingtheforegoingrelease, Releasors covenant andagreethat theyshall not
institute, bringor commence anyaction or use any evidence or facts in anycourt, arbitration, or other
forum against any Releasee with respect to the Released Claims, except (i) as necessary to enforce
this Agreement, or (ii) in connection with motions or trial against any Non-Settling Defendants in the
Action. The Releasors shall not seek to establish liability directly or indirectlyagainst anyReleasee
based, inwhole or inpart, uponanyof theReleasedClaims or conduct at issue in the ReleasedClaims.
Named Plaintiffs and the Settlement Class agree not to appeal anyprior orders in this Action as to any
Releasee.
24. In addition to the effect of any final judgment entered in accordance with the
settlement, upon the settlement becoming final as set out in paragraph 20 of this Agreement, and in
consideration of the releases described in paragraph 22, and for other valuable consideration, the
Releasors shall be completely released, acquitted, and forever discharged from any and all claims,
demands, actions, suits, causes of action, whether class, individual, or otherwise in nature, whether
directly, representatively, derivatively or in any other capacity that anyof theSettlingEntities ever had,
nowhas, or hereafter can, shall, or mayhave on account of, relatedto, or inanywayarisingout of, any
act or omission of the Releasors (or any of them) concerning the institution, prosecution, assertion,
settlement or resolution of the Action or the Released Claims (the Releasee-Released Claims).
Releasees shall not, after the date of this Agreement, seektoestablishliabilityagainst anyoftheNamed
Plaintiffsbased, in whole or in part, upon any of the Releasee-Released Claims, or conduct at issue in
the Releasee-Released Claims.
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25. In addition to the provisions of paragraphs 22 and 23 of this Agreement, Releasors
expressly waive and release, upon the settlement becoming final, any and all provisions, rights, and
benefits conferred by 1542 of the California Civil Code or any federal, state or foreign law, rule,
regulation or common lawdoctrine that is similar, comparable, equivalent or identical to, or that has
the same or similar effect of, Section 1542 of the California Civil Code, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOWOR SUSPECT TOEXIST 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;
or by any law of any state or territory of the United States, or principle of common law, which is
similar, comparable, or equivalent to 1542 of the California Civil Code. Each Releasor and
Releasee may hereafter discover facts other than or different fromthose which he, she, or it knows or
believes to be true with respect to the claims which are the subject matter of the provisions of
paragraphs 22 and 23 of this Agreement, but each Releasor and Releasee hereby expressly waives
and fully, finally, and forever settles and releases, upon the settlement becoming final as set forth in
paragraph 20, anyknown or unknown, suspected or unsuspected, contingent or non-contingent claim
with respect to the subject matter of the provisions of paragraphs 22or 23of this Agreement, whether
or not concealed or hidden, without regard to the subsequent discovery or existence of such different
or additional facts.
26. The release, discharge, and covenant not to sue set forth in paragraphs 22 and 23 of
this Agreement do not settle or compromise claims by any of the Releasors or any of the Releasees
other than the claims set forth therein and do not include other claims, such as those solely arising
out of product liability, contract or warranty claims in the ordinary course of business.
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D. Settlement Amount
27. Subject to the provisions hereof, and in full, complete and final settlement of the
Action as provided herein, the Investment Funds will cause U.S. $325,000,000 (the Settlement
Amount) to be paid for the benefit of the Settlement Class, with the Investment Funds determining
each Investment Funds allocated portion of the $325,000,000 payment among themselves. The
Settlement Amount will be paid into the Settlement Fund, which shall be an interest-bearing escrow
account listed as Blackstone, KKR and TPG Settlement Fund controlled solely by Co-Lead
Counsel (subject toCourt oversight) inaccordance withparagraph30of this Agreement not later than
thirty(30) business days after the Courts preliminary approval of this settlement. Named Plaintiffs
and the Settlement Class shall look solely to the Settlement Fund for settlement and satisfaction
against the Releasees of all Released Claims, as well as applications for attorneys fees and costs, and
shall have no other recovery against the Releasees. Co-Lead Counsel shall provide the Settling
Entities with reasonable documentation of payment of the Settlement Amount, such as a W-9 form.
E. Bar Order and Judgment Reduction
28. The Parties agree that the final judgment shall (a) permanently bar, enjoin and restrain
any person from commencing, prosecuting, or asserting any Barred Claims against any of the
Releasees, whether as claims, cross-claims, counterclaims, third-party claims, or otherwise, and
whether asserted in the Action or any other proceeding, in this Court, in any federal or state court, or
in any other court, arbitration proceeding, administrative agency, or other forumin the United States
or elsewhere; and (b) permanently bar, enjoin and restrain the Releasees from commencing,
prosecuting, or asserting any Barred Claims against any person or entity, whether as claims, cross-
claims, counterclaims, third-party claims or otherwise, and whether asserted in the Action or any
other proceeding, in this Court, in any federal or state court, or in any other court, arbitration
- 16 -
proceeding, administrative agency or other forum in the United States or elsewhere (the Bar
Order).
29. The Parties also agree that the final judgment shall provide that any final verdict or
judgment that may be obtained by or on behalf of the Settlement Class or a member of the
Settlement Class against any person or entity subject to the Bar Order described in paragraph 28
shall be reduced as provided by applicable law.
F. Escrow Account
30. (a) The Escrow Account referenced in paragraph 27 will be established at The
Huntington National Bank, with such bank serving as escrow agent (Escrow Agent) subject to
escrow instructions as agreed by the Parties.
(b) The EscrowAgent shall invest the Settlement Fund deposited in the Escrow
Account in short term(up to one-year maturity) United States Agencyor TreasurySecurities or other
instruments backed by the full faith and credit of the United States Government or an Agency
thereof, or fullyinsuredbythe UnitedStates Government or anAgencythereof, andshall reinvest the
proceeds of these instruments as theymature in similar instruments at their then-current market rates.
All risks related to the investment of the Settlement Fund in accordance with the investment
guidelines set forth in this paragraph shall be borne by the Settlement Fund.
(c) TheEscrowAgent shall not disbursetheSettlement Fundexcept as provided in
this Agreement, byanorder of the Court, or withthe writtenagreement of counsel for theSettlingEntities.
(d) Subject to further order(s) and/or directions as maybemadebytheCourt, or as
provided in this Agreement, the Escrow Agent is authorized to execute such transactions as are
consistent with the terms of this Agreement.
(e) All funds held in the EscrowAccount shall be deemed and considered to be in
custodia legis of the Court, and shall remain subject to the jurisdictionof the Court, until suchtime as
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such funds shall be distributed or returned to the parties who deposited such funds pursuant to this
Agreement and/or further order(s) of the Court.
(f) The Parties andtheEscrowAgent agreetotreat theSettlement Fundasbeing at
all times a qualifiedsettlement fund withinthe meaningof Treas. Reg. 1.468B-1. Inaddition, the
Escrow Agent shall timely make such elections as necessary or advisable to carry out the
provisions of this paragraph, including the relation-back election (as defined in Treas. Reg
1.468B-1) back to the earliest permitted date. Such elections shall be made in compliance withthe
procedures andrequirements containedinsuchregulations. It shall bethe responsibilityof Co-Lead
Counsel to timely and properly prepare and deliver the necessarydocumentation for signature byall
necessary parties, and thereafter to cause the appropriate filing to occur.
(g) For the purpose of 468Bof the Internal Revenue Code of 1986, as amended,
andtheregulations promulgatedthereunder, theadministratorshall beCo-LeadCounsel. Co-Lead
Counsel shall timely and properly file all informational and other tax returns necessary or advisable
with respect to the Settlement Fund (including, without limitation, the returns described in Treas.
Reg. 1.468B-2(k)). Such returns (as well as the election described in paragraph 30(f) hereof) shall
be consistent with this paragraph and in all events shall reflect that all Taxes (including any
estimatedTaxes, interest or penalties) ontheincomeearnedbytheSettlement Fundshall bepaidout of
the Settlement Fund as provided herein.
(h) All (a) applicable Taxes, duties, and similar charges imposed by a
government authority (including any estimated Taxes, interest or penalties) arising with respect to
theincome earnedbythe Settlement Fund, includinganyTaxesor taxdetrimentsthat may be imposed
upon the Parties or their counsel with respect to any income earned by the Settlement Fund for any
period during which the Settlement Fund does not qualify as a qualified settlement fund for
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federal or state income tax purposes, or with respect to the income or gains earned by or in respect
of the Escrow Account, or by way of withholding as required by applicable law on any
distribution by the Escrow Agent of any portion of the Escrow Account to the Settlement
Administrator, Authorized Claimants, or other persons entitled to such distributions pursuant to
this Agreement, and (b) expenses and costs incurred in connection with the operation and
implementation of this paragraph (including, without limitation, expenses of tax attorneys and/or
accountants and mailing and distribution costs and expenses relating to filing (or failing to file) the
returns described in this paragraph) (Tax Expenses), shall be paid out of theSettlement Fund; inall
events the Releasees and Releasors (Released Persons) and their counsel shall have no liabilityor
responsibilityfor anyTaxes or TaxExpenses. TheSettlement Fund shall indemnifyandholdeachof
the Released Persons and their counsel harmless for Taxes and Tax Expenses (including, without
limitation, Taxes payable by reason of any such indemnification). Further, TaxesandTaxExpenses
shall be treated as, and considered to be, a cost of administration of the Settlement Fund and shall be
timely paid by the EscrowAgent out of the Settlement Fund without prior order fromthe Court, and
the EscrowAgent shall be authorized (notwithstanding anything herein to the contrary) to withhold
from distribution to Authorized Claimants any funds necessary to pay such amounts, including the
establishment of adequate reserves for any Taxes and Tax Expenses (as well as any amounts that
may be required to be withheld under Treas. Reg. 1.468B-2(l)(2)). The Parties agree to
cooperate with the Escrow Agent, each other, and their tax attorneys and accountants to the extent
reasonably necessary to carry out the provisions of this paragraph.
(i) In the event that this Agreement is not approved or this Agreement is
terminated, canceled, or fails to become effective for any reason, the Settlement Fund less Notice
andAdministrationExpenses (as definedinparagraph31(c) below) andTaxes or Tax Expensespaid,
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incurred, or due and owingin connection with the settlement providedfor herein, shall berefunded to
the Investment Funds along with any interest accrued thereon. The refund must be made within
thirty (30) calendar days of this Agreements termination, cancellation, or failure to become
effective.
G. Settlement Administration, Costs of Notice, and Interim Expenses
31. (a) Co-Lead Counsel will select a third party to act as a qualified settlement
administrator (Settlement Administrator) to assist with the settlement claims process and
administration of notice to the Settlement Class, locating potential Settlement Class Members, and
administering and distributing the Settlement Fund.
(b) The Settling Entities agree that a portion of the Settlement Fund may be
applied to the costs of notice to the Settlement Class and administration costs related thereto, as Co-
Lead Counsel in their sole discretion deem reasonably necessary, subject to Court approval as set
forth in paragraph 36 below.
(c) Without further order of the Court, the Settlement Fund may be used by Co-
Lead Counsel to pay reasonable costs and expenses actually incurred in connection with providing
notice to the Settlement Class, locating potential Settlement Class Members, soliciting claims,
assisting with the filing of claims, administering and distributing the Settlement Fund to Authorized
Claimants, processing Proof of Claimforms, and paying escrowfees and costs, if any (Notice and
Administration Expenses). Notice and Administration Expenses paid or owing at the time of this
Agreements termination or cancellation or when it fails to become effective or final are not
recoverable by the Settling Entities.
(d) If Co-Lead Counsel enter into any other settlements on behalf of the
Settlement Class before notice of this Agreement is given to the Settlement Class (including
settlements entered into before the settlement covered by this Agreement), Co-Lead Counsel shall
- 20 -
provide a single notice toprospective class members of suchsettlements. Further, inthe event that a
litigation class is certified before notice of this Agreement is given to the Settlement Class, Co-Lead
Counsel may, in their sole discretion, choose to consolidate the Notice of this Agreement with the
notice to the litigation class.
32. Neither the Settling Entities nor any of the other Releasees under this Agreement
shall be liable for any of the costs or expenses of the litigation of the Action, including, without
limitation, attorneys fees, fees and expenses of expert witnesses and consultants, and costs and
expenses associatedwithdiscovery, motionpractice, hearings before the Court or anySpecial Master,
appeals, trials or the negotiation of other settlements, or for class administration and costs.
H. Distribution of the Settlement Fund
33. Releasors shall look solely to the Settlement Fund for settlement and satisfaction
against Releasees of all Released Claims, and shall have no other recovery against the Settling
Entities or the Releasees.
34. After the settlement becomes final within the meaning of paragraph 20, the
Settlement Fundshall bedistributedonlyinaccordancewithplans for direct distributions, cypres, or as
otherwise permitted by law, all to be submitted at the appropriate time by the Named Plaintiffs and
approved by the Court. Neither the Settling Entities nor any other Releasee under this Agreement
shall have any responsibility for, or interest in, or liability whatsoever with respect to, or shall file
any opposition to, the proposed or actual plan(s) for distribution of the Settlement Fund among the
Settlement Class and/or any other person or entity who may assert some claim to the Settlement
Fund. Once the settlement becomes final within the meaningof paragraph 20, the Investment Funds
have no ability to get back any of the Settlement Fund and there shall be no revision of any portion
of the Settlement Fund to the Settling Entities on account of a decision by any Settlement Class
Member to opt-out of the settlement or based on claims made by Settlement Class Members.
- 21 -
35. It is contemplated that Named Plaintiffs counsel will seek attorneys fee award(s),
payment of costs and expenses (includingexpert witness fees andexpenses), andservice awards to the
Named Plaintiffs.
36. (a) The procedure for and the allowance or disallowance by the Court of the
petitions for awards of attorneys fees, the payment of costs and expenses and any award of service
awards to the Named Plaintiffs is to be considered by the Court separately from the Courts
consideration of the fairness, reasonableness and adequacy of the settlement, and any order or
proceeding relating to the fee application(s) or any appeal from any such order shall not operate to
terminate or cancel the settlement, or affect or delay the finality of the judgment approving the
settlement. Except as expressly provided in this Agreement, the Settling Entities, under the
settlement, shall not have any responsibility for, or interest in, or liability whatsoever with respect to
any payment to counsel for the Named Plaintiffs or the Settlement Class of any fee award in the
Action. The Settling Entities, under the settlement, shall not have any responsibility for, or interest
in, or liability whatsoever with respect to the allocation among counsel for the Named Plaintiffs,
and/or any other person or entity who may assert some claimthereto, of any fee award that the Court
maymake in the Action.
(b) Attorneys fees and expenses awarded by the Court shall be payable fromthe
Settlement Fund upon award, notwithstanding the existence of any filed objections to the settlement,
of attorneys fees and expenses or to any service award, or to any actual, or potential for, appeal
therefrom, or collateral attack on the settlement or any part of it, subject to Co-Lead Counsels
obligation to make a full repayment to the Settlement Fund if the settlement does not become final
within the meaning of paragraph 20 of this Agreement, or if this Agreement is rescinded pursuant to
paragraphs 37, 38, or 39 of this Agreement or to make appropriate refunds or repayments to the
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Settlement Fund, if and when, as a result of any appeal and/or further proceeding on remand, or
successful collateral attack, the fee or cost award is reduced or reversed.
I. Termination and Rescission
37. (a) Within fourteen (14) business days after the end of the period to request
exclusion from the Settlement Class, Co-Lead Counsel will cause copies of timely requests for
exclusion from the Settlement Class to be provided to counsel for the Settling Entities.
(b) The Settling Entities shall, in their sole discretion, have the option to
terminate the settlement upon the occurrence of one or more conditions relating to members of the
Settlement Class who have timely exercised their rights to be excluded from the Settlement Class
(Opt Outs), as set forth in a separate agreement (Supplemental Agreement) executed between
Co-Lead Counsel, on the one hand, and the Settling Entities, on the other. To exercise this option,
the Settling Entities by their counsel must jointly provide written notice of election to terminate the
settlement no later than ten (10) calendar days prior to the hearing for final approval of this
settlement, which the Parties agree will not go forward until the Parties have ascertained the
number and identity of Opt Outs.
(c) The right of the Settling Entities to terminate the settlement and withdraw
from the settlement is a material term of the settlement. The Parties agree to keep confidential the
Supplemental Agreement and its terms and information contained therein and agree not to file it with
the Court. Upon request by the Court, the Parties agree to submit the Supplemental Agreement to
the Court in camera unless ordered to file, in which case it shall be filed under seal.
(d) With respect to any potential member of the Settlement Class who requests
exclusion from the Settlement Class, the Settling Entities reserve all of their legal rights and
defenses.
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38. If the Court refuses to approve the settlement or anymaterial part hereof (including the
proposed Settlement Class), or if such approval is materially modified or set aside on appeal, or if the
Court does not enter the final judgment provided for in paragraph 19 of this Agreement, or if the
Court enters the final judgment and appellate review is sought, and on such review, such final
judgment is not affirmed in its entirety as to all material terms, then within 30 days thereafter, the
Settling Entities and the Named Plaintiffs shall each, in their sole discretion, have the option to
rescind the settlement in its entirety. Written notice of the exercise of any such right to rescind
shall be made by the rescinding party to counsel for all other Parties. Amodification or reversal on
appeal of any amount of the fees or expenses for counsel for the Named Plaintiffs, or the plans for
direct distribution to Settlement Class Members, shall not be deemed a modification of all or a part of
the terms of the settlement or such final judgment.
39. In the event that the settlement does not become final, then this Agreement shall be of
no force or effect (except for this paragraph and paragraphs 40(b), 41, and 42) and any and all parts
of the Settlement Fund caused to be deposited in the EscrowAccount(s), including all interest earned
on such accounts, shall be returned within 30 days to a bank account designated by the Investment
Funds making payment under paragraph 27 less only disbursements made in accordance with this
Agreement, including paragraph 30(i). In the event that the settlement is terminated or fails to
become effective for any reason, the Parties shall be deemed tohave reverted to their respective status
in the Action as of July 13, 2014, and the Parties shall proceed in all respects as if this Agreement
and any related agreements or orders had not been executed and/or entered. The Parties expressly
reserve all of their rights if this Agreement does not become final. Further, and in any event, the
Parties agree that this Agreement, whether or not it shall become final, and any and all negotiations,
documents, and discussions associated with its negotiation, shall not be deemed or construed to be an
- 24 -
admission or evidence of any violation of any statute or lawor of any liability or wrongdoing by the
Settling Entities or the Releasees, or of the truth of any of the claims or allegations contained in the
Complaint or any other pleadings filed by Named Plaintiffs in the Action, and evidence thereof shall
not be discoverable or used directly or indirectly, in any way, whether in the Action or in any other
action or proceeding.
J. Cooperation
40. In consideration for the settlement and dismissal of Named Plaintiffs and the
Settlement Classs claims in the Action, Blackstone, KKR and TPG each agree to provide Named
Plaintiffs andthe Settlement Class withthe followingcooperationinthe prosecutionof their claims in
the Action against any and all Non-Settling Defendants:
(a) In the event necessary for any briefing, hearing or trial against any
remai ni ng Defendant regarding the claims in the Action, Blackstone, KKRand TPGeachagrees to
engage in reasonable, good faith efforts to timely provide, without cost to Named Plaintiffs, a
declaration sufficient to establish, to the extent it can, the foundation, the authenticity, including
under F.R.E. 901, and admissibility, including under F.R.E. 803 or 801(d)(2), of a reasonable
number of documents that Named Plaintiffs specifically identify with reasonable advance notice.
Named Plaintiffs and the Settlement Class agree to be reasonable in their selection of documents. If
counsel for the Non-Settling Defendants object in whole or in part to the sufficiency of any of
Blackstones, KKRs, or TPGs declarations, or if the trial court determines that any of the
declarations in whole or in part are not sufficient to admit specified documents, then Blackstone,
KKRand TPGeach agrees toprovidewithout needfor serviceof process a witness qualified to testify
as to the authenticity and admissibility of such of their respective documents produced in the Action.
In no event shall the obligations under this paragraph extend to providing substantive testimony
- 25 -
about any document, event, communication, or anything else beyond the authenticityor the business
record status of the document.
(b) Inthe event that the settlement fails toreceivefinal approval bytheCourt, or in
the event that it is terminated by either party under any provision herein, the Parties agree that
neither Named Plaintiffs, the Settlement Class, nor Named Plaintiffs counsel shall be permitted to
introduce into evidence, at any hearing, or in support of any motion, opposition or other pleading in
this Action or in any other federal or state action, the sworn or unsworn oral or written statements,
declarations, or certifications providedbyany of the Settling Entities, their respective counsel, or any
individual made available by the Settling Entities pursuant to this paragraph.
(c) In the event Blackstone, KKR or TPG fails to perform any cooperation
obligations under this paragraph, the sole remedy shall be to seek specific performance, and this
Agreement shall be otherwise unaffected. Anydispute concerning the cooperation obligations of the
Parties shall be reduced to writing before a Party seeks relief from the Court. In addition,
Blackstone, KKRand TPGshall have the right to assert and protect, if warranted, the attorney-client
privilege, attorney-work product protection, or applicable privacylaws regardless of any cooperation
obligations. For the avoidance of doubt, nothing in this paragraph shall be construed as a waiver of
the Settling Entities attorney-client privilege, work-product protection, or any other applicable
protection from disclosure.
K. Reservation of Rights
41. Neither this Agreement (whether or not it should become final) nor the final
judgment, nor any and all negotiations, documents, and discussions associated with such negotiation,
shall be deemed or construed to be an admission by, or formthe basis of an estoppel by a third party
against any of the Settling Entities or any Releasees, or evidence of any violation of any statute or
law or of any liability or wrongdoing whatsoever by any Releasee, or of the truth of any of the
- 26 -
claims or allegations contained in any complaint or any other pleading filed by the Named Plaintiffs
or Releasors, and evidence thereof shall not be discoverable, or used directly or indirectly, inanyway
against the Settling Entities, whether in the Action or in any other action or proceeding. Neither
this Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings
connected with it, nor any action taken to carry out this Agreement by any of the Named Plaintiffs or
the Settling Entities shall be referred to, offered into evidence, or received in evidence in anypending
or future civil, criminal or administrative action or proceeding against any of the Settling Entities,
except in a proceeding to enforce this Agreement, or to defend against the assertion of Released
Claims, or as otherwise required by law. All communications (whether oral or in writing) between
and/or amongtheParties, their counsel, and/or their respective representatives relating to, concerning,
or in connection with this Agreement or any other related agreements, or the matters covered hereby,
shall be governed and protected in accordance with Federal Rule of Evidence 408 and to the fullest
extent permitted by law.
42. The SettlingEntities agreement not to object to certification of the Settlement Class is
onlyfor purposes of effectuating a settlement and for no other purpose. Blackstone, KKRand TPG
retain all of their objections, arguments, and/or defenses with respect to class certification if this
Agreement does not receive the Courts final approval or is otherwise terminated. The Parties
acknowledge that there has been no stipulation to a class or certification of a class for any purposes,
and that if this Agreement does not receive final approval or is otherwise terminated, the Settling
Entities agreement not to contest certificationof the Settlement Class becomes null andvoidabinitio
and no Party may cite this Agreement, any related agreements, or any other settlement-related
statement regarding certification of the Settlement Class in support of an argument for certifying a
class for any purposes related to this proceeding.
- 27 -
L. Miscellaneous
43. This Agreement shall be construed and interpreted to effectuate the intent of the
Parties, which is to provide, through this Agreement, for a complete resolution of the relevant claims
with respect to each Releasee as provided in this Agreement.
44. The Parties to this Agreement contemplate and agree that, prior to final approval of the
settlement as provided for in paragraph 19 of this Agreement, appropriate notice (1) of the
settlement; (2) of a hearing at which the Court will consider the final approval of this Agreement; and
(3) that Settlement Class Members may be permitted to object to, or opt-out of, the settlement, will be
given to Settlement Class Members.
45. ThisAgreement doesnot settleor compromiseanyclaimbytheNamedPlaintiffsandthe
Settlement Classagainst anyDefendant or allegedco-conspirator other thanthe Settling Entitiesandthe
Releasees. All rights against such other Defendants or alleged co-conspirators are specifically
reserved by Named Plaintiffs.
46. Neither this Agreement, nor anyact performed or document executedpursuant toor in
furtherance of this Agreement is or may be deemed to be or may be used as an admission of, or
evidence of, (i) the validityof anyclaimor defense; or (ii) the appropriateness or inappropriateness of
anyclass or other representational capacitywhether contemporaneouslywiththis Agreement or at any
time in the future.
47. Except as otherwise set forth herein, this Agreement shall not affect whatever rights
Releasors or anyof themmayhave (i) to participate in or benefit fromanyrelief or recoveryas part of
a judgment or settlement in this Action against any other party named as a Defendant (other than the
Settling Entities or any other Releasee); or (ii) to assert any claimreferred to in paragraph 26 above.
48. The United States District Court for the District of Massachusetts shall retain
jurisdiction over the implementation, enforcement, and performance of this Agreement, and shall
- 28 -
have exclusive jurisdiction over any suit, action, proceeding, or dispute arising out of or relating to
this Agreement or the applicability of this Agreement that cannot be resolved by negotiation and
agreement by the Parties. This Agreement shall be construed according to the laws of the State of
Massachusetts without regard to its choice of law or conflict of laws principles.
49. This Agreement may be executed in counterparts by the Named Plaintiffs and the
Settling Entities, and a facsimile signature shall be deemed an original signature for purposes of
executing this Agreement.
50. Neither the Named Plaintiffs nor the Settling Entities shall be considered to be the
drafters of this Agreement or any of its provisions for the purpose of any statute, case law, or rule of
interpretation or construction that would or might cause any provision to be construed against the
drafters of this Agreement.
51. Thedescriptiveheadingsof anyparagraphsor sectionsofthisAgreement areinserted for
convenience only and do not constitute a part of this Agreement.
52. This Agreement, together with the Supplemental Agreement, constitute the entire,
complete, and integrated agreement among Named Plaintiffs and the Settling Entities pertaining to
the settlement of the Action against the Settling Entities, and supersedes all prior understandings of
Named Plaintiffs and any of the Settling Entities in connection herewith.
53. Where this Agreement requires either party to provide notice or any other
communication or document to the other, such notice shall be in writing, and such notice,
communication, or document shall be provided by electronic mail, facsimile or letter by overnight
delivery to the undersigned counsel of record for the party to whom notice is being provided.
54. The Parties agree that, followingthe filingof a motion for preliminaryapproval for the
settlement, the Parties shall cease work in connection with the Action as it relates to the Settling
- 29 -
Entities except for work relating to the consummation and closing of this Agreement, and except as
necessary to proceed forward in litigation against any Non-Settling Defendants.
55. The Parties agree that Co-Lead Counsel have taken sufficient discovery to date to
allow them to determine that the settlement is in the best interests of the Settlement Class, and no
further discovery is necessary or will be undertaken in connection with the settlement.
56. This Agreement may be modified or amended only by a writing signed by all of the
signatories hereto.
57. Except as otherwise provided herein, this Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective agents, successors, executors, heirs and
assigns.
58. Named Plaintiffs and Co-Lead Counsel represent and warrant that none of the Named
Plaintiffs claims or causes of actionreferredtointhis Agreement or that couldhavebeenallegedin the
Action have been assigned, encumbered or in any manner transferred in whole or in part.
59. The Parties and their counsel agree to use reasonable, good faith efforts to do
anything reasonably necessary to effectuate the performance of, and uphold the validity and
enforceability of, this Agreement.
60. The proposed Final Judgment submitted to the Court will contain a statement that
during the course of the Action, the Parties and their respective counsel at all times complied with the
requirements of Federal Rule of Civil Procedure 11. The Parties agree that the amount paid to the
Settlement Fund and the other terms of the settlement were negotiated in good faith by the Parties
and their counsel, and reflect a settlement that was reached voluntarily after consultation with
competent legal counsel.
- 30 -
61. Each of the undersigned attorneys represents that he or she is fullyauthorized to enter
into the terms and conditions of, and to execute, this Agreement on behalf of the Parties he or she
represents, subject to Court approval.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
Dated: July 28,2014
On behalf of Named Plantiffs nd the
Settlement Class:
On behalf of the Settlng Enttes:
Patrick J. Coughlin (admittedpro hac vice)
David W. Mitchell (admitted pro hac vice)
Randi D. Bandman (admittedpro hac vice)
Phong L. Tran (admittedpro hac vice)
ROBBINS GELLER RUDMAN & DOV/D LLP
655 V/est Broadway, Suite 1900
San Diego, CA 92101
(619) 23 1-10s8
patc@rgrdlaw.com
davidm@rgrdlaw,com
randib@rgrdlaw.com
ptran@rgrdlaw.com
Christopher M. Burke (admittedpro hac vice)
Walter W. Noss (admittedpro hac vice)
Kristen M. Anderson (admitted pro hac vice)
707 Broadway, Suite 1000
San Diego, CA 92101
(61e) 233-4s6s
cburke@scott- scott. com
wno ss@scott-scott, com
kanderson@scott-scott. com
K. Craig Wildfang (admittedpro hac vice)
Thomas J. Undlin (admittedpro hac vice)
Stacey P. Slaughter (admitted pro hac vice)
2800 LaSallePlaza
Minneapolis, MN 55402-2015
6121349-8500
Joseph F. Tringali (admittedpro hac vice)
Paul C. Gluckow (admittedpro hac vice)
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017
Ryan A. Kane (admitted pro hac vice)
V/OLLMUTH MAHER & DEUTSCH LLP
500 5th Avenue
New York, NY 10110
Counsel for Kohlberg Kravis
Roberts & Co. L.P and KKR Investment
Funds
ted pro hac vice)
Kelly Fayne (admittedpro hac vice)
ARNOLD & PORTER LLP
555 12th Street, NW
Washington, DC 20004
Mary Kathryn Sammons (admittedpro hac vice)
Karen A. Oshman (admittedpro hac vice)
SUSMAN GODFREY L.L.P.
1000 Louisiana, Suite 5100
Houston, TX77002
Counsel for TPG Capital, L.P. and TPG
Investment Funds
(
Co-Lead Class Counsel
- 31 -

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