Release of Released Parties. The Parties agree to the following release which shall be included in the Second Order and which shall take effect upon the date the Court’s approval of the Settlement Agreement becomes a Final Order. (a) In exchange for the settlement benefits hereunder and for other valuable consideration set forth in the Settlement Agreement, the Plaintiff and each Class Member, including their heirs, successors and assigns, on behalf of themselves and any other legal or natural persons who may claim by, through or under them, expressly and irrevocably waives and fully, finally and forever settles and releases all claims, demands, actions, suits and causes of action against the Defendants and/or their directors, officers, employees, lawyers, insurers or agents, whether known or unknown, asserted or unasserted, that any Class Member ever had, could have had, now has or hereafter can, shall or may have, relating in any way to any conduct, act or omission which was or could have been alleged in the Action which arise from or relate to the use of shingled magnetic recording technology in the WD RED NAS Drives during the Class Period, excluding claims for personal injury that may arise from use of the WD RED NAS Drives. (b) The Plaintiff and Class Members expressly agree that this Release and the Second Order is, will be, and may be raised as a complete defence to, and will preclude any action or proceeding encompassed by this Release. (c) The Plaintiff and Class Members shall not now or hereafter institute, maintain, prosecute, assert and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action and/or proceeding, against the Released Parties, either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to the claims, cause of action and/or any other matters released through this Settlement. (d) In connection with the Settlement Agreement, the Plaintiff and Class Members acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true concerning the subject matter of the Action and/or the Release herein. Nevertheless, it is the intention of the Plaintiff and Class Members in executing this Settlement Agreement fully, finally and forever to settle, release, discharge, and hold harmless all such matters, and all claims relating thereto which exist, hereafter may exist, or may have existed (whether or not previously or currently asserted in any action or proceeding) with respect to the subject matter of the Action, except as otherwise stated in this Settlement Agreement. (e) Releasors represent and warrant that they are the sole and exclusive owners of all claims that they personally are releasing under this Settlement Agreement. Releasors further acknowledge that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that Releasors are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. Class Members submitting a Claim Form shall represent and warrant therein that they are the sole and exclusive owner of all claims that they personally are releasing under the Settlement and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that such Class Member(s) are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. (f) Without in any way limiting its scope, and except to the extent otherwise specified in this Settlement Agreement, this Release covers without limitation, any and all claims for legal fees, taxes, costs, expert fees or consultant fees, interest, or litigation fees, costs or any other fees, costs and/or disbursements incurred by legal counsel, Class Counsel, any other legal counsel, the Plaintiff, Class Members or any other person who claim to have assisted in conferring the benefits under this Settlement upon the Class. (g) The Plaintiff, Class Counsel and/or any other legal counsel who receives legal fees and disbursements from this Settlement acknowledge that they have conducted sufficient independent investigation to enter into this Settlement Agreement and, by executing this Settlement Agreement, state that they have not relied upon any statements or representations made by the Released Parties or any person or entity representing the Released Parties, other than as set forth in this Settlement Agreement. (h) Nothing in this Release shall preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed herein. (i) Releasors hereby agree and acknowledge that the provisions of this Release together constitute an essential and material term of the Settlement Agreement and shall be included in the Second Order. (j) Without limiting any other provisions herein, each Class Member who does not opt-out will be deemed by the Settlement Agreement to have completely and unconditionally released and forever discharged the Released Parties from any and all Released Claims, including all claims, actions, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, and demands whatsoever, whether known or unknown, that were asserted or could have been asserted in the litigation that is the subject of this Settlement Agreement. (k) The Parties agree that each Class Member who does not opt-out will be forever barred and enjoined from continuing, commencing, instituting, or prosecuting any action, litigation, investigation or other proceeding in any court of law or equity, arbitration, tribunal, proceeding, governmental forum, administrative forum, or any other forum, directly, representatively, or derivatively, asserting against any of the Defendants, the Released Parties, and/or third-party any claims that relate to or constitute any Released Claims covered by the Settlement Agreement.
Appears in 1 contract
Samples: Settlement Agreement
Release of Released Parties. The Parties agree to the following release which shall be included in the Second Order and which shall take effect upon the date the Court’s approval of the Settlement Agreement becomes a Final Order.
(a) In exchange for On the settlement benefits hereunder and for other valuable consideration set forth in the Settlement AgreementEffective Date, the Plaintiff Lender Agent, the Lenders, the Noteholders, the Shareholders, the Optionholders and the Incentiveholders shall, and hereby do, forever and irrevocably release and discharge Pengrowth, Cona and each Class Member, including of the WEF Parties and each of their heirs, successors respective present and assigns, on behalf of themselves and any other legal or natural persons who may claim by, through or under them, expressly and irrevocably waives and fully, finally and forever settles and releases all claims, demands, actions, suits and causes of action against the Defendants and/or their former directors, officers, employees, lawyersrepresentatives, insurers or agents, whether known or unknown, asserted or unasserted, that any Class Member ever had, could have had, now has or hereafter can, shall or may have, relating in any way to any conduct, act or omission which was or could have been alleged in the Action which arise advisors (including legal and financial advisors) and agents (each a “Pengrowth Released Party”) from or relate to the use of shingled magnetic recording technology in the WD RED NAS Drives during the Class Period, excluding claims for personal injury that may arise from use of the WD RED NAS Drives.
(b) The Plaintiff all present and Class Members expressly agree that this Release and the Second Order is, will be, and may be raised as a complete defence to, and will preclude any action or proceeding encompassed by this Release.
(c) The Plaintiff and Class Members shall not now or hereafter institute, maintain, prosecute, assert and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action and/or proceeding, against the Released Parties, either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to the claims, cause of action and/or any other matters released through this Settlement.
(d) In connection with the Settlement Agreement, the Plaintiff and Class Members acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true concerning the subject matter of the Action and/or the Release herein. Nevertheless, it is the intention of the Plaintiff and Class Members in executing this Settlement Agreement fully, finally and forever to settle, release, discharge, and hold harmless all such matters, and all claims relating thereto which exist, hereafter may exist, or may have existed (whether or not previously or currently asserted in any action or proceeding) with respect to the subject matter of the Action, except as otherwise stated in this Settlement Agreement.
(e) Releasors represent and warrant that they are the sole and exclusive owners of all claims that they personally are releasing under this Settlement Agreement. Releasors further acknowledge that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that Releasors are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. Class Members submitting a Claim Form shall represent and warrant therein that they are the sole and exclusive owner of all claims that they personally are releasing under the Settlement and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that such Class Member(s) are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action.
(f) Without in any way limiting its scope, and except to the extent otherwise specified in this Settlement Agreement, this Release covers without limitation, any and all claims for legal fees, taxes, costs, expert fees or consultant fees, interest, or litigation fees, costs or any other fees, costs and/or disbursements incurred by legal counsel, Class Counsel, any other legal counsel, the Plaintiff, Class Members or any other person who claim to have assisted in conferring the benefits under this Settlement upon the Class.
(g) The Plaintiff, Class Counsel and/or any other legal counsel who receives legal fees and disbursements from this Settlement acknowledge that they have conducted sufficient independent investigation to enter into this Settlement Agreement and, by executing this Settlement Agreement, state that they have not relied upon any statements or representations made by the Released Parties or any person or entity representing the Released Parties, other than as set forth in this Settlement Agreement.
(h) Nothing in this Release shall preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed herein.
(i) Releasors hereby agree and acknowledge that the provisions of this Release together constitute an essential and material term of the Settlement Agreement and shall be included in the Second Order.
(j) Without limiting any other provisions herein, each Class Member who does not opt-out will be deemed by the Settlement Agreement to have completely and unconditionally released and forever discharged the Released Parties from any and all Released Claims, including all claimsfuture demands, actions, causes of action, suits, debtsdamages, dutiesjudgments, accountsexecutions, bondsexpenses, covenantsobligations, contractsliabilities and claims of any kind or nature whatsoever (other than liabilities or claims attributable to the gross negligence, and demands whatsoeverfraud or willful misconduct of the applicable Pengrowth Released Party as determined by the final non-appealable judgment of a court of competent jurisdiction), whether known or unknown, matured or unmatured, or foreseen or unforeseen, based in whole or in part on any act, omission, transaction, duty, responsibility, liability, obligation, dealing or other occurrence, arising on or prior to the Effective Date in connection with the Secured Indebtedness, the Secured Debt Documents, the Shares, the Options, the Option Plan, the Incentives, the Arrangement proceedings, the Arrangement Agreement, this Plan, the transactions contemplated hereunder, the business, affairs, administration and management of Pengrowth, and any other actions or matters related directly or indirectly to the foregoing, provided that were asserted nothing in this Section 8.1(a) shall release or could have been asserted discharge any Pengrowth Released Party from or in the litigation that is the subject respect of its obligations under this Settlement AgreementPlan.
(kb) The On the Effective Date, Pengrowth, the Shareholders, the Optionholders, the Incentiveholders, Cona and each of the WEF Parties agree that shall, and hereby do, forever and irrevocably release and discharge each Class Member who does not optSecured Debtholder and each present and former director, officer, employee, representative, advisor (including legal and financial advisors) and agent of such Secured Debtholder (each a “Secured Debtholder Released Party”) from all present and future demands, actions, causes of action, suits, damages, judgments, executions, expenses, obligations, liabilities and claims of any kind or nature whatsoever (other than liabilities or claims attributable to the gross negligence, fraud or willful misconduct of the applicable Secured Debtholder Released Party as determined by the final non-out will be forever barred and enjoined from continuingappealable judgment of a court of competent jurisdiction), commencingwhether known or unknown, institutingmatured or unmatured, or prosecuting foreseen or unforeseen, based in whole or in part on any actionact, litigationomission, investigation transaction, duty, responsibility, liability, obligation, dealing or other proceeding occurrence, arising on or prior to the Effective Date in any court of law or equityconnection with the Secured Indebtedness, arbitrationthe Secured Debt Documents, tribunalthe Shares, proceedingthe Options, governmental forumthe Option Plan, administrative forumthe Incentives, or the Arrangement proceedings, the Arrangement Agreement, this Plan, the transactions contemplated hereunder, and any other forumactions or matters related directly or indirectly to the foregoing, directly, representatively, provided that nothing in this Section 8.1(b) shall release or derivatively, asserting against discharge any Secured Debtholder Released Party from or in respect of the Defendants, the Released Parties, and/or third-party any claims that relate to or constitute any Released Claims covered by the Settlement Agreementits obligations under this Plan.
Appears in 1 contract
Release of Released Parties. 9.1.1 The Plaintiff and each and every Releasor, regardless of whether any Releasor executes and delivers a written release, fully and forever release, remise, acquit and discharge the Released Parties agree to from the following release which shall be included in the Second Order and which shall take effect upon the date the Court’s approval of the Settlement Agreement becomes a Final Order.
(a) In exchange for the settlement benefits hereunder and for other valuable consideration set forth in the Released Claims. By executing this Settlement Agreement, the Plaintiff and each Class Member, including their heirs, successors and assigns, on behalf of themselves and any other legal or natural persons who may claim by, through or under them, expressly and irrevocably waives and fully, finally and forever settles and releases all claims, demands, actions, suits and causes of action against the Defendants and/or their directors, officers, employees, lawyers, insurers or agents, whether known or unknown, asserted or unasserted, Parties acknowledge that any Class Member ever had, could have had, now has or hereafter can, shall or may have, relating in any way to any conduct, act or omission which was or could have been alleged in the Action which arise from or relate shall be dismissed pursuant to the use of shingled magnetic recording technology in the WD RED NAS Drives during the Class Period, excluding claims for personal injury that may arise from use terms of the WD RED NAS Drives.
(b) The Plaintiff and Class Members expressly agree that this Release and the Second Order is, will beOrder, and may all Released Claims shall thereby be raised as a complete defence toconclusively settled, compromised, satisfied, and will preclude any action or proceeding encompassed by this Release.
(c) The Plaintiff and Class Members shall not now or hereafter institute, maintain, prosecute, assert and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action and/or proceeding, against released as to the Released Parties. The Second Order shall provide for and effect the full and final release, either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to the claims, cause of action and/or any other matters released through this Settlement.
(d) In connection with the Settlement Agreement, by the Plaintiff and all Releasors, of all Released Claims.
9.1.2 The Settlement Class Members hereby acknowledge that they are aware that they or their legal counsel may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that which they now know or believe to be true concerning exist with respect to the subject matter of the Action and/or the Release herein. NeverthelessReleased Claims, but that it is still their intention that the intention of the Plaintiff and Class Members in executing this Settlement Agreement Releasors hereby fully, finally finally, and forever to settle, release, discharge, extinguish and hold harmless waive all such matters, and all claims relating thereto which exist, hereafter may exist, or may have existed (whether or not previously or currently asserted in any action or proceeding) with respect to the subject matter of the ActionReleased Claims, except as otherwise stated in this Settlement Agreement.
(e) Releasors represent and warrant known or unknown, suspected or unsuspected, that they are the sole and exclusive owners of all claims that they personally are releasing under this Settlement Agreement. Releasors further acknowledge that they had, now have not assignedor, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that Releasors are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. Class Members submitting a Claim Form shall represent and warrant therein that they are the sole and exclusive owner of all claims that they personally are releasing under the Settlement and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that such Class Member(s) are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action.
(f) Without in any way limiting its scope, and except to the extent otherwise specified in absent this Settlement Agreement, this Release covers without limitationmay in the future have had against Released Parties. In furtherance of such intention, the release herein given by the Releasors to the Released Parties shall be, and remain in effect as, a full and complete general release of the Released Claims notwithstanding any and all discovery of the existence of any such additional or different claims for legal feesor facts.
9.1.3 No Settlement Class Member shall, taxesnow or hereafter, costsinstitute, expert fees continue, maintain or consultant feesassert, interesteither directly or indirectly, whether in Canada or litigation feeselsewhere, costs on their own behalf or on behalf of any class or any other fees, costs and/or disbursements incurred by legal counsel, Class Counselperson, any other legal counselaction, suit, cause of action, claim or demand against any of the Plaintiff, Class Members Released Parties or any other person who may claim to have assisted contribution or indemnity from any of the Released Parties in conferring the benefits under this Settlement upon the Classrespect of any Released Claim or any matter related directly or indirectly thereto.
(g) The Plaintiff, 9.1.4 If any Settlement Class Counsel and/or Member brings an action or asserts a claim against any other legal counsel who receives legal fees and disbursements from this Settlement acknowledge that they have conducted sufficient independent investigation of the Released Parties contrary to enter into this Settlement Agreement and, by executing the terms of this Settlement Agreement, state that they have the counsel of record for such Settlement Class Member shall be provided with a copy of this Settlement Agreement. If the Settlement Class Member does not relied upon any statements within twenty (20) days thereafter dismiss his or representations made her action and the action or claim is subsequently dismissed or decided in favor of the Released Parties, the Settlement Class Member who brought such action or claim shall pay the Released Parties’ reasonable counsel fees and disbursements incurred by the Released Parties in the defence of such action or claim.
9.1.5 Except as otherwise provided, nothing in this Settlement Agreement shall be construed in any way to prejudice or impair the right of the Defendants or the Defendants’ insurers to pursue such rights and remedies as they may have against any other person or entity representing including but not limited to the Released Parties, other than as set forth in this Settlement Agreement.
(h) Nothing in this Release shall preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed herein.
(i) Releasors hereby agree and acknowledge that the provisions of this Release together constitute an essential and material term of the Settlement Agreement and shall be included Defendants’ claims in the Second OrderIndemnity Action.
(j) Without limiting any other provisions herein, each Class Member who does not opt-out will be deemed by the Settlement Agreement to have completely and unconditionally released and forever discharged the Released Parties from any and all Released Claims, including all claims, actions, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, and demands whatsoever, whether known or unknown, that were asserted or could have been asserted in the litigation that is the subject of this Settlement Agreement.
(k) The Parties agree that each Class Member who does not opt-out will be forever barred and enjoined from continuing, commencing, instituting, or prosecuting any action, litigation, investigation or other proceeding in any court of law or equity, arbitration, tribunal, proceeding, governmental forum, administrative forum, or any other forum, directly, representatively, or derivatively, asserting against any of the Defendants, the Released Parties, and/or third-party any claims that relate to or constitute any Released Claims covered by the Settlement Agreement.
Appears in 1 contract
Samples: Settlement Agreement
Release of Released Parties. The Parties agree to the following release which shall be included in the Second Order and which shall take effect upon the date the Court’s approval of the Settlement Agreement becomes a Final Order.
(a) In exchange for the settlement benefits hereunder and for other valuable consideration set forth in the Settlement Agreement, the Plaintiff Plaintiffs and each Class Member, including their heirs, successors and assigns, on behalf of themselves and any other legal or natural persons who may claim by, through or under them, expressly and irrevocably waives and fully, finally and forever settles settles, releases and releases discharges all claims, demands, actions, suits and causes of action against the Defendants and/or their directors, officers, employees, lawyers, insurers or agents, whether known or unknown, asserted or unasserted, that any Class Member ever had, could have had, now has or hereafter can, shall or may have, relating in any way to any conduct, act or omission which was or could have been alleged in the Action which arise from from, in connection with, or relate to the use of shingled magnetic recording technology in the WD RED NAS Drives during the Class Period, excluding claims for personal injury that may arise from use of the WD RED NAS DrivesData Breach.
(b) The Plaintiff Plaintiffs and Class Members expressly agree that this Release and the Second Order is, will be, and may be raised as a complete defence to, and will preclude any action or proceeding encompassed by this Release.
(c) The Plaintiff Plaintiffs and Class Members shall not now or hereafter institute, maintain, prosecute, assert and/or cooperate in the institution, commencement, filing, or prosecution of any suit, action and/or proceeding, against the Released Parties, either directly or indirectly, on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to the claims, cause of action and/or any other matters released through this Settlement.
(d) In connection with the Settlement Agreement, the Plaintiff Plaintiffs and Class Members acknowledge that they may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that they now know or believe to be true concerning the subject matter of the Action and/or the Release herein. Nevertheless, it is the intention of the Plaintiff Plaintiffs and Class Members in executing this Settlement Agreement fully, finally and forever to settle, release, discharge, and hold harmless all such matters, and all claims relating thereto which exist, hereafter may exist, or may have existed (whether or not previously or currently asserted in any action or proceeding) with respect to the subject matter of the Action, even if such matters and claims if known would have materially affected the Settlement, except as otherwise stated in this Settlement Agreement.
(e) Releasors represent and warrant that they are the sole and exclusive owners of all claims that they personally are releasing under this Settlement Agreement. Releasors further acknowledge that they have not assigned, pledged, or in any manner whatsoever, sold, transferred, assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that Releasors are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action. Class Members submitting a Claim Form shall represent and warrant therein that they are the sole and exclusive owner of all claims that they personally are releasing under the Settlement and that they have not assigned, pledged, or in any manner whatsoever, sold, transferred assigned or encumbered any right, title, interest or claim arising out of or in any way whatsoever pertaining to the Action, including without limitation, any claim for benefits, proceeds or value under the Action, and that such Class Member(s) are not aware of anyone other than themselves claiming any interest, in whole or in part, in the Action or in any benefits, proceeds or values under the Action.
(f) Without in any way limiting its scope, and except to the extent otherwise specified in this Settlement Agreement, this Release release under this Section 6 covers without limitation, any and all claims for legal fees, taxes, costs, expert fees or consultant fees, interest, or litigation fees, costs or any other fees, costs and/or disbursements incurred by legal counsel, Class Counsel, any other legal counsel, the PlaintiffPlaintiffs, Class Members or any other person who claim to have assisted in conferring the benefits under this Settlement upon the Class.
(g) The PlaintiffPlaintiffs, Class Counsel and/or any other legal counsel who receives legal fees and disbursements from this Settlement acknowledge that they have conducted sufficient independent investigation to enter into this Settlement Agreement and, by executing this Settlement Agreement, state that they have not relied upon any statements or representations made by the Released Parties or any person or entity representing the Released Parties, other than as set forth in this Settlement Agreement.
(h) Nothing in this Release shall preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed herein.
(i) Releasors hereby agree and acknowledge that the provisions of this Release together constitute an essential and material term of the Settlement Agreement and shall be included in the Second Order.
(j) Without limiting any other provisions herein, each Class Member who does not opt-out will be deemed by the Settlement Agreement to have completely and unconditionally released and forever discharged the Released Parties from any and all Released Claims, including all claims, actions, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, and demands whatsoever, whether known or unknown, that were asserted or could have been asserted in the litigation that is the subject of this Settlement Agreement.
(k) The Parties agree that each Class Member who does not opt-out will be forever barred and enjoined from continuing, commencing, instituting, or prosecuting any action, litigation, investigation or other proceeding in any court of law or equity, arbitration, tribunal, proceeding, governmental forum, administrative forum, or any other forum, directly, representatively, or derivatively, asserting against any of the Defendants, the Released Parties, and/or third-party any claims that relate to or constitute any Released Claims covered by the Settlement Agreement.
Appears in 1 contract
Samples: Settlement Agreement
