Common use of Proffers Clause in Contracts

Proffers. NFC agrees that, as soon as practicable after the Execution Date, NFC’s Counsel shall make themselves available to Class Counsel, in person in Seattle, Washington and/or by teleconference, at a mutually convenient date and time, to provide background information concerning: NFC, its organization, its operations, and its personnel; the identification of potential NFC witnesses with knowledge of the matters at issue in the 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 NFC’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 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 NFC Plaintiffs’ compliance with this requirement.

Proffers. NFC Midwest Poultry agrees that, as soon as practicable after the Execution Date, NFCMidwest Poultry’s Counsel shall make themselves available available, at dates, times and locations to be agreed upon by Midwest Poultry’s Counsel and Class Counsel, in person in Seattle, Washington and/or by teleconference, at a mutually convenient date and time, to meet with Class Counsel for no more than eight (8) hours total to provide background information concerning: NFC, its organization, its operationsconcerning Midwest Poultry’s knowledge, and that of its personnel; the identification of potential NFC witnesses with knowledge directors, officers, employees and agents, of the matters facts relating to documents, witnesses, meetings, communications, conduct and events at issue in the Action; and the substance of their anticipated testimony according to the best understanding of NFC’s counsel Action (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 NFCMidwest 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 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 lawinformation. 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 NFC Midwest Poultry Plaintiffs’ compliance with this requirement.

Proffers. NFC agrees that, as soon as practicable after the Execution Date, NFC’s Counsel shall make themselves available to Class Counsel, in person in Seattle, Washington and/or by teleconference, at a mutually convenient date and time, to provide background information concerning: NFC, its organization, its operations, and its personnel; the identification of potential NFC witnesses with knowledge of the matters at issue in the 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 Beginning within five (5) hours in duration; and shallbusiness days of the Execution Date of this Agreement, and, to the extent practicable, occur concurrently with any substantially similar interviews at the 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, or at a time mutually agreed to with other settling upon by the 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 , Voluntary Dismissal Defendants and Class Counsel Individual Settling Parties agree that they shall maintain all statements made by NFC’s their counsel will meet with Class Plaintiffs’ Interim Co-Lead Counsel under this paragraph as strictly confidential and to provide a general description of the polyurethane foam industry, including participation in transactions that they shall not use directly or indirectly are the information so received for any purpose other than prosecution subject matter of the Action (“Lawyers’ Proffer”).1 Within five (5) calendar days of such Proffer, 1 During the course of the 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 in shall be entitled to view these documents during the Proffer in the prosecution Lawyers’ Proffer, but are not permitted to make or retain a copy of the Action without attributing the source 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 the information or breaching the agreement regarding confidentiality of statements made under the Proffer this Agreement whatsoever, except as provided described in this paragraph unless so required by order ¶ 11(b) regarding the treatment of the Court or applicable law. 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 NFC 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.