Common use of Proffers Clause in Contracts

Proffers. Midwest Poultry agrees that, as soon as practicable after the Execution Date, Midwest Poultry’s Counsel shall make themselves available, at dates, times and locations to be agreed upon by Midwest Poultry’s Counsel and Class Counsel, to meet with Class Counsel for no more than eight (8) hours total to provide information concerning Midwest Poultry’s knowledge, and that of its directors, officers, employees and agents, of the facts relating to documents, witnesses, meetings, communications, conduct and events at issue in the Action (the “Proffer”). Plaintiffs and Class Counsel agree that they shall maintain all statements made by Midwest Xxxxxxx’s Counsel under this paragraph as strictly confidential and that they shall not use directly or indirectly the information so received for any purpose other than prosecution of the Action and that such information may not be used to prosecute any claim or action against Releasees. Class Counsel may use information contained in the Proffer in the prosecution of the Action without attributing the source of the information. Class Counsel agree, unless ordered by a court and consistent with due process, that under no circumstances shall information or documents obtained from the Proffer be shared with any person, counsel, Class Counsel or Plaintiffs’ Counsel who is also (i) counsel for any plaintiff in any state or federal action against one or more of the Releasees, (ii) counsel for any plaintiff or Class Member that elects to opt out of the proposed class for settlement purposes under this Agreement or from a litigation class that may be certified, (iii) any counsel representing or advising indirect purchasers of Shell Eggs or Processed Eggs, or (iv) any third party not associated with Class Counsel in this Action except in connection with prosecution of this Action. At the conclusion of the Action, Class Counsel shall destroy all notes, memoranda, or records related to the Proffer, and any copies thereof, and shall certify in writing to Midwest Poultry Plaintiffs’ compliance with this requirement.

Proffers. Midwest Poultry NFC agrees that, as soon as practicable after the Execution Date, Midwest PoultryNFC’s Counsel shall make themselves available, at dates, times and locations available to be agreed upon by Midwest Poultry’s Counsel and Class Counsel, to meet with Class Counsel for no more than eight (8) hours total in person in Seattle, Washington and/or by teleconference, at a mutually convenient date and time, to provide background information concerning Midwest Poultry’s knowledgeconcerning: NFC, its organization, its operations, and that its personnel; the identification of its directors, officers, employees and agents, potential NFC witnesses with knowledge of the facts relating to documents, witnesses, meetings, communications, conduct and events matters at issue in the Action Action; and the substance of their anticipated testimony according to the best understanding of NFC’s counsel (the “Proffer”). The Proffer shall not extend for more than five (5) hours in duration; and shall, to the extent practicable, occur concurrently with any substantially similar interviews agreed to with other settling parties. NFC’s Counsel will not be required or expected to disclose any matters that any other present or former Party to the Action asserts to be privileged material or work product (see subparagraph f below). Plaintiffs and Class Counsel agree that they shall maintain all statements made by Midwest XxxxxxxNFC’s Counsel under this paragraph as strictly confidential and that they shall not use directly or indirectly the information so received for any purpose other than prosecution of the Action and that such information may not be used to prosecute any claim or action against Releasees. Class Counsel may use information contained in the Proffer in the prosecution of the Action without attributing the source of the informationinformation or breaching the agreement regarding confidentiality of statements made under the Proffer as provided in this paragraph unless so required by order of the Court or applicable law. Class Counsel agree, unless ordered by a court and consistent with due process, that under no circumstances shall information or documents obtained from the Proffer be shared with any person, counsel, Class Counsel or Plaintiffs’ Counsel who is also (i) counsel for any plaintiff in any state or federal action against one or more of the Releasees, (ii) counsel for any plaintiff or Class Member that elects to opt out of the proposed class for settlement purposes under this Agreement or from a litigation class that may be certified, (iii) any counsel representing or advising indirect purchasers of Shell Eggs or Processed Eggs, or (iv) any third party not associated with Class Counsel in this Action except in connection with prosecution of this Action. At the conclusion of the Action, Class Counsel shall destroy all notes, memoranda, or records related to the Proffer, and any copies thereof, and shall certify in writing to Midwest Poultry NFC Plaintiffs’ compliance with this requirement.

Proffers. Midwest Poultry agrees that, as soon as practicable after Beginning within five (5) business days of the Execution DateDate of this Agreement, Midwest Poultry’s Counsel shall make themselves availableand, to the extent practicable, at datesthe same time as such a Lawyers’ Proffer is made to Indirect Purchaser Class Plaintiffs’ Interim Lead Counsel and counsel for one or more “Direct Action” Plaintiffs, times and locations to be or at a time mutually agreed upon by Midwest Poultry’s Counsel the parties, Voluntary Dismissal Defendants and Class Counsel, to Individual Settling Parties agree that their counsel will meet with Class Plaintiffs’ Interim Co-Lead Counsel for no more than eight (8) hours total to provide information concerning Midwest Poultry’s knowledge, and that of its directors, officers, employees and agents, a general description of the facts relating to documentspolyurethane foam industry, witnesses, meetings, communications, conduct and events at issue including participation in transactions that are the subject matter of the Action (“Lawyers’ Proffer”).1 Within five (5) calendar days of such Proffer, 1 During the “Proffer”). Plaintiffs and Class Counsel agree that they shall maintain all statements made by Midwest Xxxxxxx’s Counsel under this paragraph as strictly confidential and that they shall not use directly or indirectly the information so received for any purpose other than prosecution course of the Action Lawyers’ Proffer, counsel for the Voluntary Dismissal Defendants and that such information Individual Settling Parties may not be used use or refer to prosecute any claim or action against Releaseescertain documents. Class Plaintiffs’ Interim Co-Lead Counsel may use information contained shall be entitled to view these documents during the Lawyers’ Proffer, but are not permitted to make or retain a copy of such Class Plaintiffs’ Interim Co-Lead Counsel may, at their option, elect to terminate this Agreement with no further obligation to proceed under any terms of this Agreement whatsoever, except as described in this ¶ 11(b) regarding the Proffer in the prosecution treatment of the Action without attributing the source of the information. Class Counsel agree, unless ordered by a court and consistent with due process, that under no circumstances shall any information or documents obtained from the Proffer be shared with any person, counsel, provided to Class Counsel or Plaintiffs’ Interim Co-Lead Counsel who is also (i) counsel for any plaintiff in any state or federal action against one or more of the Releasees, (ii) counsel for any plaintiff or Class Member that elects to opt out of the proposed class for settlement purposes under this Agreement or from a litigation class that may be certified, (iii) any counsel representing or advising indirect purchasers of Shell Eggs or Processed Eggs, or (iv) any third party not associated with Class Counsel in this Action except in connection with prosecution the Lawyers’ Proffer. Class Plaintiffs’ Interim Co- Lead Counsel will, in any event, provide written notice to counsel for Voluntary Dismissal Defendants and Individual Settling Parties of their decision. In the period from the making of the Lawyers’ Proffer through the election (in either case) by Class Plaintiffs’ Interim Co-Lead Counsel described above, any information or document provided to Class Plaintiffs’ Interim Co-Lead Counsel during the Lawyers’ Proffer shall be covered and protected from disclosure pursuant to Rule 408 of the Federal Rules of Evidence. In the event that Class Plaintiffs’ Interim Co-Lead Counsel elect to terminate this Agreement following the Lawyers’ Proffer, upon notice of termination of this Action. At Agreement, any and all information provided to Class Plaintiffs’ Interim Co-Lead Counsel prior to or during the conclusion of the Action, Class Counsel shall destroy all notes, memoranda, or records related to the Lawyers’ Proffer, and any copies thereof, and shall certify in writing to Midwest Poultry notes taken by Class Plaintiffs’ compliance with Interim Co- Lead Counsel during the Lawyers’ Proffer, shall be promptly returned to Voluntary Dismissal Defendants or otherwise destroyed and Class Plaintiffs’ Interim Co-Lead Counsel shall provide a letter to Voluntary Dismissal Defendants so stating; provided, however, that in the event of such termination, nothing in this requirementparagraph or in this Agreement shall preclude Class Plaintiffs’ Interim Co- Lead Counsel or other counsel for the Class from seeking and obtaining in discovery any document, materials, data or other information that is independently discoverable under the Federal Rules of Civil Procedure.