Common use of Stipulation of Settlement Clause in Contracts

Stipulation of Settlement. The parties to the Actions will attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The Stipulation will expressly provide for certification of a non-opt out settlement class, and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") and their successors in interest and transferees; for entry of a judgment dismissing the Actions "with prejudice" and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement of all claims of shareholders, whether asserted directly, derivatively or otherwise, against Defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, present or future officers, directors, associates, stockholders, controlling persons, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators, which have been, or could have been, asserted, whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), relating to the Transaction, and the actions of the Comair Board (including each member of the Comair Board), Delta, or Kentucky Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the Actions) be the subject of the Actions; that defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary duty; that Defendants are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, and expense of further litigation, and is in the best interests of Comair and all its shareholders; and that any of the Defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.

Stipulation of Settlement. The parties to the Actions will attempt negotiate in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "“Stipulation"”) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Gehrer action upon the terms set forth in this Memorandum of Understanding (collectively, the "“Settlement Documents"”). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide provide, inter alia, (i) for certification by the Superior Court of the State of California for the County of San Diego (the “Court”) of a non-opt out settlement class, and the Settlement Agreement shall make clear that the right class of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") ALARIS stockholders and their successors in interest and transferees, immediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) (the “Class”); (ii) for entry dismissal of a judgment dismissing the Actions "Gehrer action with prejudice" prejudice and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement by the Class of all claims (excluding properly perfected rights of shareholdersappraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, past or present or future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administratorsadministrators (collectively, which have been, or could have been, assertedthe “Releasees”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the Transaction, and the actions of the Comair Board (including each member of the Comair Board), Delta, or Kentucky Sub, Inc. relating to the TransactionOffer, the related disclosure materialsMerger, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection withMerger Agreement, the subject matter of the Actions) be the subject of the Actions; that defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary duty; that Defendants are entering into the Stipulation solely because the proposed Settlement would eliminate the burdenSupport Agreement, inherent risk, and expense of further litigation, and is in the best interests of Comair and all its shareholders; and that any of the Defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of related disclosure materials and any related matters (the Action “Settled Claims”); (whether direct, derivative or otherwiseiii) are pending or are commenced against any person in any court prior to that upon Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any Settlement, the members of the additional conditions set forth in IV below Class shall not be deemed to have been satisfied. The parties agree to use their good faith efforts to obtain waived the dismissal or stay in contemplation provisions, rights and benefits of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.California Civil Code § 1542, which provides that:

Stipulation of Settlement. The parties to the Actions Action will attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The Stipulation will expressly provide provide, inter alia, that Plaintiff will petition the Court for certification of a non-opt out settlement class, class pursuant to Delaware Court of Chancery Rules 23(b)(1) and the Settlement Agreement shall make clear that the right (b)(2) of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair XxXxxxx shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") and their successors in interest and transferees, immediate and remote, from July 16, 1998 through and including the Effective Time (as defined in the Merger Agreement) (the "Class"); for entry of a judgment dismissing the Actions Action "with prejudice" and without attorneys fees or costs to any party except as expressly provided herein"; for a complete release and settlement of all claims of shareholdersclaims, whether asserted directly, derivatively or otherwise, against Defendants defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, present or future officers, directors, associates, stockholders, controlling persons, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators, which have been, or could have been, asserted, whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), asserted relating to the TransactionTransaction or Merger Agreement, and the actions of XxXxxxx, the Comair XxXxxxx Board (including each member of the Comair XxXxxxx Board), Delta, DLJ or Kentucky Sub, Inc. XxXxxxx Acquisition relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the ActionsAction) be the subject of the ActionsAction; that defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; that Defendants defendants are entering into the Stipulation solely because the proposed Settlement as described above would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair XxXxxxx and all its shareholders; and that any of the Defendants defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have Settlement, and such claims are not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants the defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.

Stipulation of Settlement. The parties to the Actions Action will attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The Stipulation will expressly provide provide, inter alia, for certification of a non-opt out settlement classclass of ASA shareholders and their successors in interest and transferees, immediate and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders remote, from May 19February 15, 1999 through and including the Effective Time (as defined in the Merger Agreement Agreement) (the "Class") and their successors in interest and transferees); for entry of a judgment dismissing the Actions "with prejudice" and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement of all claims of shareholdersclaims, whether asserted directly, derivatively or otherwise, against Defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, present or future officers, directors, associates, stockholders, controlling persons, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators, which have been, or could have been, asserted, whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), relating to the Transaction, and the actions of ASA, the Comair ASA Board (including each member of the Comair ASA Board), Delta, Delta or Kentucky Delta Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the ActionsAction) be the subject of the ActionsAction; that defendants Defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; that Defendants are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair ASA and all its shareholders; and that any of the Defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have Settlement, and such claims are not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.

Stipulation of Settlement. The parties to the Actions Action will attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The Stipulation will expressly provide provide, inter alia, for certification of a non-opt out settlement classclass of ASA shareholders and their successors in interest and transferees, immediate and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders remote, from May 19February 15, 1999 through and including the Effective Time (as defined in the Merger Agreement Agreement) (the "Class") and their successors in interest and transferees); for entry of a judgment dismissing the Actions "with prejudice" and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement of all claims of shareholdersclaims, whether asserted directly, derivatively or otherwise, against Defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, present or future officers, directors, associates, stockholders, controlling persons, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators, which have been, or could have been, asserted, whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), relating to the Transaction, and the actions of ASA, the Comair ASA Board (including each member of the Comair ASA Board), Delta, Delta or Kentucky Delta Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the ActionsAction) be the subject of the ActionsAction; that defendants Defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; that Defendants are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair ASA and all its shareholders; and that any of the Defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have Settlement, and such claims are not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.been

Stipulation of Settlement. The parties to the Actions will attempt negotiate in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Gehrer action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide provide, inter alia, (i) for certification by the Superior Court of the State of California for the County of San Diego (the "Court") of a non-opt out settlement class, and the Settlement Agreement shall make clear that the right class of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") ALARIS stockholders and their successors in interest and transferees, immediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) (the "Class"); (ii) for entry dismissal of a judgment dismissing the Actions "Gehrer action with prejudice" prejudice and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement by the Class of all claims (excluding properly perfected rights of shareholdersappraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, past or present or future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administratorsadministrators (collectively, which have been, or could have been, assertedthe "Releasees"), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the TransactionOffer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlement, the members of the Class shall be deemed to have waived the provisions, rights and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and the actions provisions, rights and benefits conferred by any law of any state or territory of the Comair Board (including each United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Comair Board)Class may thereafter discover facts in addition to or different from those which he, Delta, she or Kentucky Sub, Inc. relating it now knows or believes to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, be true with respect to the subject matter of the ActionsSettled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above; (iv) be the subject that each of the Actions; that defendants have and the other Releasees has denied and continue continues to deny that they have having committed or attempted to commit any violations of law or breaches of fiduciary duty; that Defendants are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, and expense any duty of further litigation, and is in the best interests of Comair and all its shareholders; and that any of the Defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.any

Stipulation of Settlement. The parties to the Actions Parties will attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(1) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the pending actions Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding MOU (collectively, the "“Settlement Documents"”). The Stipulation will expressly provide provide, inter alia, (i) for certification certification, for settlement purposes, of a non-opt out settlement class, Class of all holders of Common Shares and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") Exchangeable Preference Shares and their successors in interest and transferees, intermediate and remote (the “Settlement Class”); (ii) for entry of a judgment dismissing the Actions "Rice Consolidated Class Action and the Sxxxxxxx Action with prejudice" prejudice and without attorneys fees or costs to any party except as expressly provided herein; (iii) for a complete release and settlement of all claims (excluding claims for enforcement of shareholdersthe Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against Defendants any of the Defendants, Lafarge Canada, or Efalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, past or present or future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisorsadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administratorsadministrators of any of the foregoing (collectively, which have been, or could have been, assertedthe “Releasees”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted, directly or indirectly, derivatively or otherwise, against any of the Releasees by any member of the Settlement Class relating to the TransactionSettlement, the Tender Offer, the Revised Tender Offer, or the related Disclosure Materials and the Subsequent Disclosure Materials (the “Settled Claims”); (iv) that each of the Defendants, Lafarge Canada, and the actions of the Comair Board (including each member of the Comair Board), Delta, or Kentucky Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the Actions) be the subject of the Actions; that defendants have Efalar Canada has denied and continue continues to deny that they have having committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; (v) that Defendants Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair LSA, LNA and all its shareholdersthe Class; and (vi) that any of the Defendants Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions Other Conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain , except for the dismissal or stay Other Condition set forth in contemplation of dismissal of any action covered by clause (xParagraph 4(v) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an actionbelow.

Stipulation of Settlement. The parties to the Actions Parties will attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(l) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the pending actions Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding MOU (collectively, the "“Settlement Documents"”). The Stipulation will expressly provide provide, inter alia, (i) for certification certification, for settlement purposes, of a non-opt out settlement class, Class of all holders of Common Shares and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") Exchangeable Preference Shares and their successors in interest and transferees, intermediate and remote (the “Settlement Class”); (ii) for entry of a judgment dismissing the Actions "Rice Consolidated Class Action and the Sxxxxxxx Action with prejudice" prejudice and without attorneys fees or costs to any party except as expressly provided herein; (iii) for a complete release and settlement of all claims (excluding claims for enforcement of shareholdersthe Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against Defendants any of the Defendants, Lafarge Canada, or Efalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, past or present or future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisorsadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administratorsadministrators of any of the foregoing (collectively, which have been, or could have been, assertedthe “Releasees”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted, directly or indirectly, derivatively or otherwise, against any of the Releasees by any member of the Settlement Class relating to the TransactionSettlement, the Tender Offer, the Revised Tender Offer, or the related Disclosure Materials and the Subsequent Disclosure Materials (the “Settled Claims”); (iv) that each of the Defendants, Lafarge Canada, and the actions of the Comair Board (including each member of the Comair Board), Delta, or Kentucky Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the Actions) be the subject of the Actions; that defendants have Efalar Canada has denied and continue continues to deny that they have having committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; (v) that Defendants Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair LSA, LNA and all its shareholdersthe Class; and (vi) that any of the Defendants Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions Other Conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain , except for the dismissal or stay Other Condition set forth in contemplation of dismissal of any action covered by clause (xParagraph 4(v) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an actionbelow.

Stipulation of Settlement. The parties to the Actions Parties will attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(1) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the pending actions Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding Amended MOU (collectively, the "“Settlement Documents"”). The Stipulation will expressly provide provide, inter alia, (i) for certification certification, for settlement purposes, of a non-opt out settlement class, Class of all holders of Common Shares and the Settlement Agreement shall make clear that the right of any Comair shareholder to dissenters' statutory rights of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") Exchangeable Preference Shares and their successors in interest and transferees, intermediate and remote (the “Settlement Class”) under the captions of both the Rice Consolidated Class Action and the Sxxxxxxx Class Action; (ii) for entry of a judgment dismissing the Actions "Rice Consolidated Class Action and the Sxxxxxxx Class Action with prejudice" prejudice and without attorneys fees or costs to any party except as expressly provided herein; (iii) for a complete release and settlement of all claims (excluding claims for enforcement of shareholdersthe Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against Defendants any of the Defendants, Lafarge Canada, or Efalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, past or present or future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisorsadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administratorsadministrators of any of the foregoing (collectively, which have been, or could have been, assertedthe “Releasees”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted, directly or indirectly, derivatively or otherwise, against any of the Releasees by any member of the Settlement Class relating to the TransactionSettlement, the Tender Offer, the Revised Tender Offer, or the related Disclosure Materials and the Subsequent Disclosure Materials (the “Settled Claims”); (iv) that each of the Defendants, Lafarge Canada, and the actions of the Comair Board (including each member of the Comair Board), Delta, or Kentucky Sub, Inc. relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the Actions) be the subject of the Actions; that defendants have Efalar Canada has denied and continue continues to deny that they have having committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; (v) that Defendants Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair LSA, LNA and all its shareholdersthe Class; and (vi) that any of the Defendants Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions Other Conditions set forth in IV paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain , except for the dismissal or stay Other Condition set forth in contemplation of dismissal of any action covered by clause (xParagraph 4(v) in the foregoing sentence and further agree that Defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an actionbelow.

Stipulation of Settlement. The parties to the Actions will attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all the pending actions Actions upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The Stipulation will expressly provide provide, inter alia, for certification of a non-opt out settlement class, class pursuant to Delaware Court of Chancery Rules 23(b)(1) and the Settlement Agreement shall make clear that the right (b)(2) of any Comair shareholder to dissenters' statutory rights holders of appraisal shall be preserved. The Stipulation will also expressly provide for the settlement class to include all Comair shareholders from May 19, 1999 through and including the Effective Time as defined in the Merger Agreement (the "Class") Class A common stock of Swisher and their successors in interest and transferees, immediaxx xxx remote, from December 9, 1998 through and including the Effective Time (the "Class"); for entry of a judgment dismissing the Actions "with prejudice" and without attorneys fees or costs to any party except as expressly provided herein; for a complete release and settlement of all claims of shareholdersclaims, whether asserted directly, derivatively or otherwise, against Defendants defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past, present or future officers, directors, associates, stockholders, controlling persons, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators, which have been, or could have been, asserted, whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), asserted relating to the Transaction, and the actions of Swisher, the Comair Swisher Board (including each member of the Comair Boardherein), Delta, . Hay Island or Kentucky Sub, Inc. SIGI relating to the Transaction, the related disclosure materials, the events described in such disclosure materials, disclosures, facts and allegations that are or could (insofar as such transactions, disclosures, facts and allegations relate to, or occurred in connection with, the subject matter of the Actions) be the subject of the ActionsActions or of an action in any other forum; that defendants have denied and continue to deny that they have committed or attempted to commit any violations of law or breaches of fiduciary dutyduty of any kind; that Defendants defendants are entering into the Stipulation solely because the proposed Settlement as described above would eliminate the burden, inherent risk, risk and expense of further litigation, and is in the best interests of Comair Swisher and all its shareholders; and that any of the Defendants shall have defendants xxxxx xave the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction Transactions or the subject matter of the Action Actions (whether direct, derivative or otherwise) are pending or are commenced against any person in any court prior to Final Court Approval of the Settlement that have Settlement, and such claims are not been dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in IV paragraph 5 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that Defendants the defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.