PE Settlement

84995079.1

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

KIRK DAHL, et al., Individually and on Behalf of All Others Similarly Situated,

Plaintiffs,

vs.

BAIN CAPITAL PARTNERS, LLC, et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) )

Lead Case No. 1:07-cv-12388-WGY

CLASS ACTION

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF NAMED PLAINTIFFS MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENTS, INCLUDING A SETTLEMENT WITH DEFENDANTS THE BLACKSTONE GROUP L.P., KOHLBERG KRAVIS ROBERTS & CO. L.P. AND TPG CAPITAL, L.P.

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

TABLE OF CONTENTS

Page

-i-

I. Introduction ..................................................................................................................... 1

II. The factual background ................................................................................................. 2

A. The background of the litigation ...................................................................... 2

B. The settlement negotiations ............................................................................... 3

C. The settlement agreement .................................................................................. 3

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

IV. The settlement is fair, reasonable and adequate ........................................................ 5

V. Conclusion ....................................................................................................................... 7


TABLE OF AUTHORITIES

Page

84995079.1 ii

CasesAmchem Prods. v. Windsor,

521 U.S. 591 (1997) .................................................................................................................... 5

Hochstadt v. Boston Sci. Corp., 708 F. Supp. 2d 95 (D. Mass. 2010) ........................................................................................ 5

In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) ........................................................................................................ 6

In re Lupron (R) Mktg. & Sales Practices Litig., 345 F. Supp. 2d 135 (D. Mass. 2004)....................................................................................... 6

In re Relafen Antitrust Litig., 231 F.R.D. 52 (D. Mass. 2005).............................................................................................. 4, 5

RulesFed. R. Civ. P. 23 ....................................................................................................................... 2, 4

Fed. R. Civ. P. 23(a) ...................................................................................................................... 4

Fed. R. Civ. P. 23(a)(1) ................................................................................................................. 4

Fed. R. Civ. P. 23(a)(2) ................................................................................................................. 4

Fed. R. Civ. P. 23(a)(3) ................................................................................................................. 4

Fed. R. Civ. P. 23(b)(3) ............................................................................................................. 4, 5

Fed. R. Civ. P. 26(a)(4) ................................................................................................................. 4

Other AuthoritiesManual for Complex Litigation 21.632 (4th ed. 2004) ............................................................... 5


84995079.1 1

I. Introduction. Named Plaintiffs1 have signed a settlement agreement with defendants The

Blackstone Group L.P. (Blackstone), Kohlberg Kravis Roberts & Co. L.P. (KKR) and

TPG Capital, L.P. (TPG) for a cash payment of $325 million. Now, six of the seven

defendants have settled for a total of $475.5 million. The sole Remaining Defendants for

trial, scheduled for November 3, 2014, are TC Group III, L.P. and TC Group IV, L.P.

(collectively Carlyle).

Named Plaintiffs initially settled with Bain Capital Partners, LLC (Bain

Capital) and The Goldman Sachs Group, Inc. (Goldman) for $54 million and $67

million, respectively. Named Plaintiffs then reached a settlement with Silver Lake

Technology Management, L.L.C. (Silver Lake) for $29.5 million. Those settlements are

scheduled for a preliminary approval hearing on September 4, 2014.2 Named Plaintiffs

now respectfully submit this supplemental memorandum in support of preliminary

approval of their Settlement Agreement with Blackstone, KKR and TPG (attached as

Exhibit A), in conjunction with the previous settlements, at the hearing on September 4,

2014. 3

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


84995079.1 2

For the reasons set forth below, as well as in Named Plaintiffs prior submissions

in support of preliminary approval, Co-Lead Counsel and Named Plaintiffs believe this

latest Settlement, standing alone or in conjunction with the prior pending Settlements, is

well within the range of fairness, adequacy and reasonableness under Rule 23 and the

standards of the First Circuit. It should, therefore, be preliminarily approved by the

Court.4

II. The factual background.

A. The background of the litigation.

Blackstone, KKR and TPG have vigorously disputed the Named Plaintiffs

allegations over the past seven years. Named Plaintiffs have overcome defendants

attacks on multiple fronts, including early efforts to transfer the case, dozens of motions

to dismiss and for summary judgment, motions for reconsideration and a petition for

interlocutory appeal. Discovery has also been extensive. Blackstone produced

approximately 1.8 million pages of documents and five of its executives were deposed,

including principals and senior managing directors. KKR produced approximately 1.3

million pages of documents and five of its top executives were deposed, including its

Co-CEO and Co-Chairman, George Roberts. TPG produced approximately 2.4 million

pages of documents and four of its executives were deposed, including founding

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


84995079.1 3

partners David Bonderman and James Coulter. Each of these defendants was

intimately involved in all facets of the case, including the discovery of Named Plaintiffs

experts on the issue of class certification and in the presentation of defendants

opposition to class certification.

B. The settlement negotiations.

Like the litigation itself, the Settlement is the product of vigorous, hard-fought,

arms-length negotiations between experienced counsel. As with the prior Settling

Defendants, Blackstone, KKR and TPG engaged in substantial mediation efforts with

Named Plaintiffs before an experienced and respected mediator. After these global

mediation efforts faltered, it was only through extensive private negotiations that the

parties were able to achieve the Settlement now before the Court. Because the litigation

is at such an advanced stage, with trial scheduled in three-months time, Co-Lead

Counsel and the Named Plaintiffs are in a superior position to assess the relative

strengths and weaknesses of their claims and defendants defenses and conclude that

the proposed settlement, along with the previously submitted settlements, are in the

best interests of the putative class.

C. The settlement agreement.

This Settlement largely mirrors the previous Settlements. Blackstone, KKR and

TPG will make a cash payment for the benefit of Settlement Class Members in the

amount of three hundred twenty-five million dollars ($325,000,000.00), and agree to

cooperate with Named Plaintiffs in the prosecution of their claims against Carlyle with

respect to the authenticity and business record status of their documents.


84995079.1 4

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

As described in the two prior memoranda in support of preliminary approval of

earlier partial settlements, Named Plaintiffs believe that all of the requirements for

preliminarily certifying a unified settlement class are amply met. Moreover, the

adequacy of the total settlement relief to Settlement Class Members is only enhanced by

the Blackstone, KKR and TPG Settlement.

The Settlement Class should be certified because it meets the requirements of

Rule 23(a):

Numerosity The Settlement Class consists of thousands of investors who sold or exchanged shares of stock in the LBOs of the eight target companies at issue and joinder outside of Rule 23 is impracticable. Fed. R. Civ. P. 23(a)(1).

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

Typicality The Named Plaintiffs claims are typical of the claims of absent class

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

Adequacy The Named Plaintiffs will fairly and adequately protect the interest

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


84995079.1 5

The requirements of Rule 23(b)(3) also weigh in favor of certifying the Settlement

Class because common questions of law and fact predominate and a class action is the

superior method for resolving this litigation. The common questions for trial in the

absence of settlement is whether the Settling Defendants entered into unlawful

agreements not to compete for the target companies and whether share prices paid to

the Settlement Class in the LBOs would have been higher absent such agreements.

These common questions predominate over any individualized inquiries among class

members, including purported issues of trial manageability resulting from releases

obtained in prior shareholder litigation.5

Rule 23(b)(3) is further satisfied because a class action is the superior method for

resolving the present case. The Settlement Class includes thousands of individual

shareholders, many of whom individually would be unable to effectively vindicate their

rights. Amchem, 521 U.S. at 617 (1997); Relafen II at 70. Class treatment also eliminates

the risk of inconsistent adjudication.

IV. The settlement is fair, reasonable and adequate.

At this stage of consideration, the Court must first make a preliminary

determination on the fairness, reasonableness, and adequacy of the settlement terms.

Hochstadt v. Boston Sci. Corp., 708 F. Supp. 2d 95, 107 (D. Mass. 2010) (quoting the

Manual for Complex Litigation 21.632 (4th ed. 2004)). A presumption of fairness attaches

to the courts preliminary fairness determination when (1) the negotiations occurred

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


84995079.1 6

at arms length; (2) there was sufficient discovery; (3) the proponents of the settlement

are experienced in similar litigation; and (4) only a small fraction of the class objected.

In re Lupron (R) Mktg. & Sales Practices Litig., 345 F. Supp. 2d 135, 137 (D. Mass. 2004)

(quoting In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir.

1995)). For the reasons described in Named Plaintiffs previous submissions in support

of preliminary approval of the prior partial settlements, and herein with respect to the

conduct of the litigation, the intensity of the discovery efforts, and the negotiation

process, the Settlement with Blackstone, KKR and TPG easily satisfies the preliminary

approval standard in the First Circuit.

As with the prior settlements with Bain Capital, Goldman Sachs and Silver Lake,

the proposed Settlement with Blackstone, KKR and TPG confers substantial benefits

upon the Settlement Class while eliminating: (i) the uncertainty of future relief after

protracted and expensive litigation, including the difficulties of proving liability,

causation and damages under the Sherman Act and Clayton Act and the possible

defenses to such claims; and (ii) the risk that Named Plaintiffs may not ultimately

prevail and thus may not secure this significant additional relief for the Settlement

Class.


84995079.1 7

V. Conclusion.

For all of the reasons set forth above, the Settlement is well within the range of

reasonableness contemplated by courts in this Circuit, and the Court should

preliminarily approve the proposed Settlement.

Dated: August 7, 2014

Respectfully submitted, By: s/Thomas J. Undlin K. Craig Wildfang (admitted pro hac vice) Thomas J. Undlin (admitted pro hac vice) Stacey P. Slaughter (admitted pro hac vice) ROBINS, KAPLAN, MILLER & CIRESI L.L.P 2800 LaSalle Plaza 800 LaSalle Avenue South Minneapolis, MN 55402-2015 (612) 349-8500 [email protected] [email protected] [email protected] Lisa A. Furnald (BBO #631059) ROBINS, KAPLAN, MILLER & CIRESI L.L.P 800 Boylston Street, 25th Floor Boston, MA 02199 (617) 267-2300 [email protected] Christopher M. Burke (admitted pro hac vice) Walter W. Noss (admitted pro hac vice) Kristen M. Anderson (admitted pro hac vice) SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 (619) 233-4565 [email protected] [email protected] [email protected]


84995079.1 8

David R. Scott SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 (860) 537-3818 Patrick J. Coughlin (admitted pro hac vice) David W. Mitchell (admitted pro hac vice) Randi D. Bandiman (admitted pro hac vice) Phong L. Tran (admitted pro hac vice) ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 (619) 231-1058 [email protected] [email protected] [email protected] Co-Lead Class Counsel


84995079.1 9

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent

electronically to the registered participants as identified on the Notice of Electronic

Filing (NEF) and paper copies will be sent to those indicated as non-registered

participants on August 7, 2014.

s/Thomas J. Undlin Thomas J. Undlin


EXHIBIT A

Case 1:07-cv-12388-WGY Document 1018-1 Filed 08/07/14 Page 1 of 36

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

KIRK DAHL, et al., Individually and on Behalfof All Others Similarly Situated,

Plaintiffs,

vs.

BAIN CAPITAL PARTNERS, LLC, et al.,

Defendants.

)))))))))))

Lead Case No. 1:07-cv-12388-WGY

CLASS ACTION

SETTLEMENT AGREEMENT WITH THEBLACKSTONE GROUP L.P., KOHLBERGKRAVIS ROBERTS & CO. L.P. AND TPGCAPITAL, L.P.


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This Settlement Agreement, dated July 28, 2014 (the Agreement), is entered into by and

among Scott + Scott, Attorneys at Law, LLP, Robbins Geller Rudman & Dowd LLP, and Robins,

Kaplan, Miller & Ciresi L.L.P., on behalf of plaintiffs Kirk Dahl, Police and Fire Retirement System

of the City of Detroit, City of Omaha Police and Fire Retirement System, and Michael Wojno, as

executor for the estate of Robert Zimmerman (collectively, the Named Plaintiffs) and a settlement

class of all others similarly situated, as more fully defined in paragraph 6 below, on the one hand;

and defendants The Blackstone Group L.P. (including its predecessors, successors, and all past and

present directors, managing directors, partners, officers, employees, and affiliates) (Blackstone),

the Blackstone Investment Funds (defined below), Kohlberg Kravis Roberts & Co. L.P. (including

its predecessors, successors, and all past and present directors, managing directors, partners, officers,

employees, and affiliates) (KKR), the KKR Investment Funds (defined below), TPG Capital, L.P.

(including its predecessors, successors, and all past and present directors, managing directors,

partners, officers, employees, and affiliates) (TPG), the TPG Investment Funds (defined below)

(collectively with Blackstone, the Blackstone Investment Funds, KKR, the KKR Investment Funds,

TPG and the TPG Investment Funds, the Settling Entities) on the other hand. The Settling Entities

and the Named Plaintiffs are referred to herein individually as a Party and collectively as the

Parties.

WHEREAS, the Parties, by and through their undersigned counsel, have reached an

agreement-in-principle providing for the settlement and release and dismissal with prejudice of any

and all claims that were asserted, or could have been asserted, by or on behalf of the Settlement

Class against the Settling Entities in or relating to Dahl, et al. v. Bain Capital Partners, LLC, et al.,

Case No. 07-cv-12388-WGY (D. Mass.) (the Action);


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WHEREAS, the Named Plaintiffs allege that the Settling Entities and other Defendants

participated in an unlawful conspiracy to raise, fix, maintain, or stabilize the price of large leveraged

buyouts, announced between 2003 and 2007, to allocate deal outcomes and purchase target

companies at artificially suppressed prices, depriving shareholders of a true and fair market value in

violation of 1 of the Sherman Act, 15 U.S.C. 1;

WHEREAS, the Named Plaintiffs allege that theSettlingEntitiesand otherDefendantsparticipated

in an unlawful conspiracy to raise, fix, maintain, or stabilize the price of the HCA buyout,

announced in July 2006 in violation of 1 of the Sherman Act, 15 U.S.C. 1;

WHEREAS, the Settling Entities deny all of the Named Plaintiffs allegations and have

asserted defenses to Named Plaintiffs claims;

WHEREAS, the Named Plaintiffs have conducted an investigation into the facts and the law

regarding the claims in the Action and believe that their claims are valid, but nevertheless recognize

that there are material litigation risks associated with pursuing those claims and, therefore, have

concluded that resolving their claims against the Settling Entitiesaccordingto thetermsset forthbelow

is in the best interest of the Named Plaintiffs and the proposed Settlement Class;

WHEREAS, the Settling Entities, despite their beliefs that they are not liable for the claims

asserted and that they have good defenses thereto, have nevertheless agreed to enter into this

Agreement to avoid further expense, inconvenience, and the distraction of burdensome and protracted

litigation, and to obtain the releases, orders, and judgment contemplated by this Agreement, and to

put to rest with finality all claims that have been or could have been asserted against the Settling

Entities, including those arising out of the Transactions as defined below, as more particularly set

out below;


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WHEREAS, each of Blackstone, KKR and TPG is a non-discretionary advisor to their

respective Investment Funds (defined below) and the Investment Funds are the parties in interest

with respect to the LBOs (defined below), being the potential source of capital, with each of the

Investment Funds making its own decision to invest, or not invest, in the LBOs; and

WHEREAS, the Settling Entities and the Named Plaintiffs have negotiated all of the terms

and conditions of this Agreement at arms length and all terms, conditions, and exhibits in their exact

form are material and necessary to this Agreement and have been relied upon by the Parties in

entering into this Agreement.

NOW, THEREFORE, in consideration of the covenants, agreements, and releases set forth

herein and for other good and valuable consideration, it is agreed by and among the undersigned that

the Action be settled, compromised, and dismissed on the merits with prejudice as to the Settling

Entities on the following terms and conditions:

A. Definitions

1. For purposes of this Agreement, the Blackstone Investment Funds is defined as

Blackstone Capital Partners V L.P., BCP V-S L.P., Blackstone Capital Partners V-AC L.P., BCP V

Co-Investors L.P., Blackstone Management Associates V L.L.C., Blackstone Capital Partners IV,

L.P., Blackstone Capital Partners IV-A L.P., Blackstone Management Associates IV L.L.C.,

Blackstone Capital Partners III Merchant Banking Fund L.P., Blackstone Offshore Capital Partners

III L.P., Blackstone Management Associates III L.L.C., Blackstone Capital Partners II Merchant

Banking Fund L.P., Blackstone Offshore Capital Partners II L.P., Blackstone Capital Partners L.P.,

Blackstone Management Associates II L.L.C., Blackstone Management Partners L.P., Blackstone

Real Estate Partners I L.P., Blackstone Real Estate Associates L.P., Blackstone Real Estate Partners

II L.P., Blackstone Real Estate Associates II L.P., Blackstone Real Estate Partners III L.P.,

Blackstone Real Estate Associates III L.P., Blackstone Real Estate Partners IV L.P., Blackstone Real


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Estate Associates IV L.P., Blackstone Real Estate Partners V L.P., Blackstone Real Estate

Associates V L.P., Blackstone Real Estate Partners VI L.P., Blackstone Real Estate Associates IV

L.P., Blackstone Real Estate Partners International I.D L.P., Blackstone Real Estate Associates

International L.P., Blackstone Real Estate Partners International II L.P., Blackstone Real Estate

Associates International II L.P., Blackstone Real Estate Partners VI (AV) L.P., Blackstone Real

Estate Partners VI.TE.1 L.P., Blackstone Real Estate Partners VI.TE.2 L.P., Blackstone Real Estate

Holdings VI L.P., Blackstone Family Real Estate Partnership VI-SMD L.P., Blackstone

Communications Partners I L.P., Blackstone Communications Management Associates I L.L.C.,

Blackstone Family Investment Partnership V-SMD L.P., Blackstone Family Investment Partnership

V L.P., Blackstone Participation Partnership V L.P., BCP V Side-by-Side GP L.L.C., Blackstone

Family GP L.L.C., Blackstone Family Investment Partnership IV-A SMD L.P., Blackstone Family

Investment Partnership IV-A L.P., Blackstone Family Communications Partnership I-SMD L.P.,

Blackstone Family Communications Partnership I L.P., BCOM Side-by-Side GP L.L.C., Blackstone

Family Investment Partnership II L.P., Blackstone Family Investment Partnership III L.P., and, each

other current, former or future investment fund, vehicle or account advised by Blackstone, its parent

entities, or such parent entities subsidiaries, and, without limitation, (i) all parallel, alternative, side-

by-side or other investment vehicles or funds formed in connection with any of the foregoing and (ii)

all special purpose vehicles, subsidiaries and investment vehicles formed directly or indirectly by or

on behalf of any of the foregoing.

2. For purposes of this Agreement, the KKR Investment Funds is defined as KKR

Millennium Fund L.P., KKR Associates Millennium L.P., KKR 2006 Fund L.P., KKR Associates

2006 L.P., KKR European Fund, Limited Partnership, KKR Associates Europe, Limited Partnership,

KKR European Fund II, Limited Partnership, KKR Associates Europe II, Limited Partnership, KKR


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Asian Fund L.P., KKR Associates Asia L.P., KKR Partners II, L.P., KKR Associates, L.P., KKR

Partners III, L.P., KKR III GP LLC, KKR Partners (International), Limited Partnership, KKR 1996

Overseas, Limited, KKR Partners II (International), L.P., KKR PI-II GP Limited, KKR Reference

Fund Investments L.P., KKR Index Fund Investments L.P., KKR IFI GP L.P., OPERF Co-

Investment LLC, 8 North America Investor L.P., KKR Associates 8 NA L.P., KKR Financial

Holdings LLC, KKR Private Equity Investors, L.P., KKR PEI Investments, L.P., and, each other

current, former or future investment fund, vehicle or account advised by KKR, its parent entities, or

such parent entities subsidiaries, and, without limitation, (i) all parallel, alternative, side-by-side or

other investment vehicles or funds formed in connection with any of the foregoing and (ii) all special

purpose vehicles, subsidiaries and investment vehicles formed directly or indirectly by or on behalf

of any of the foregoing.

3. For purposes of this Agreement, the TPG Investment Funds is defined as TPG

Partners III, L.P., TPG Parallel III, L.P., TPG Dutch Parallel III, C.V., TPG Investors III, L.P., T3

Partners, L.P., T3 Parallel, L.P., T3 Dutch Parallel, C.V., T3 Investors, L.P., FOF Partners III, L.P.,

FOF Partners III-B, L.P., TPG Partner IV, L.P., TPG FOF IV, L.P., TPG Partners V, L.P., TPG FOF

V-A, L.P., TPG FOF V-B, L.P., TPG Partners VI, L.P., TPG FOF VI-A, L.P., TPG FOF VI-B, L.P.,

and, each other current, former or future investment fund, vehicle or account advised by TPG, its

parent entities, or such parent entities subsidiaries, and, without limitation, (i) all parallel,

alternative, side-by-side or other investment vehicles or funds formed in connection with any of the

foregoing and (ii) all special purpose vehicles, subsidiaries and investment vehicles formed directly

or indirectly by or on behalf of any of the foregoing.

4. For purposes of this Agreement, Investment Funds is defined as the Blackstone

Investment Funds, the KKR Investment Funds, and the TPG Investment Funds.


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5. For purposes of this Agreement, LBO or leveraged buyout is defined as the

acquisition of a company through a leveraged transaction, as referenced in the Fifth Amended Class

Action Complaint for Violations of the Federal Antitrust Laws filed in this Action (the

Complaint).

6. For purposes of this Agreement, and subject to paragraph 42 below, Settlement

Class is defined as Kirk Dahl, Police and Fire Retirement System of the City of Detroit, City of

Omaha Police and Fire Retirement System, and Michael Wojno as executor for the estate of Robert

Zimmerman, and all persons or entities who sold or exchanged their common stock of (1) AMC

Entertainment Inc., (2) SunGard Data Systems Inc., (3) Aramark Corporation, (4) Kinder Morgan,

Inc., (5) HCA Inc., (6) Freescale Semiconductor, Inc., (7) Harrahs Entertainment, Inc., or (8) TXU

Corp., as part of the LBO for each of the preceding target companies (as referenced in the Complaint)

(the Transactions). Excluded from the Settlement Class are the Court and any members of the

Courts immediate family; the Defendants, including their predecessors, successors, and affiliatesas

well as their current and former directors, managers, partners, officers, and employees; and the

directors and officers of each target company at the time of the leveraged buyout, provided that the

foregoing exclusion shall not cover Goldman Sachs Investment Vehicles, which for these

purposes shall mean any investment company or pooled investment fund, including, but not limited

to, mutual fund families, exchange-traded funds, fund of funds and hedge funds, in which The

Goldman Sachs Group, Inc. has or may have a direct or indirect interest, or as to which its affiliates

may act as an investment advisor, but are not managed byTheGoldmanSachsGroup, Inc.sMerchant

Banking Division and of which The Goldman Sachs Group, Inc. or any of its respective affiliates is

not a majority owner or does not hold a majority beneficial interest.


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7. For purposes of this Agreement, and subject to paragraph 42 below, Settlement

Class Member is defined as each member of the Settlement Class who has not timely elected to be

excluded from the Settlement Class. Settlement Class Members is defined as the members of the

Settlement Class who have not timely elected to be excluded from the Settlement Class. The

Settling Entities agree not to solicit or encourage membersoftheSettlementClasstoexcludethemselvesfrom

the Settlement Class.

8. For purposes of this Agreement, the terms Defendant or Defendants shall mean,

respectively, each and all named defendants in any complaint filed in this Action.

9. Non-Settling Defendants shall mean Defendants other than The Blackstone Group

L.P. (and its Investment Funds), Kohlberg Kravis Roberts & Co. L.P. (and its Investment Funds),

TPG Capital, L.P. (and its Investment Funds), Bain Capital Partners, LLC, The Goldman Sachs

Group, Inc., and Silver Lake Technology Management, L.L.C.

10. Releasors shall refer to the Named Plaintiffs and Settlement Class Members, and all

of their respective past and present, direct and indirect parent entities, subsidiaries, and affiliates;

predecessors, successors; and each and all of the present and former principals, partners, officers,

directors, investors, supervisors, employees, representatives, insurers, attorneys, heirs, executors,

administrators, and assigns of each of the foregoing.

11. Releasee or Releasees shall refer to each of the Settling Entities; the

predecessors, successors and assigns of each of the Settling Entities; and each and all of the Settling

Entities past, present, and future direct or indirect, families, parent entities, controlling persons,

associates, affiliates or subsidiaries and each and all of their respective past or present, direct or

indirect, officers, directors, stockholders, principals, representatives, employees, attorneys, financial

or investment advisors, consultants, accountants, investment bankers, commercial bankers, entities


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providing fairness opinions, advisors or agents, insurers, heirs, executors, trustees, general or limited

partners (who are not Non-Settling Defendants), or partnerships, investment funds, limited liability

companies, members, managers, joint ventures (except co-sponsors with respect to the Transactions

identified in paragraph 6), personal or legal representatives, estates, administrators, predecessors,

successors or assigns. The term Releasee or Releasees excludes any Non-Settling Defendants

ever named in this Action.

12. The Settlement Fund shall refer to the payment to be caused to be made by the

Investment Funds pursuant to paragraph 27 of this Agreement, plus all accrued interest thereon.

13. The Named Plaintiffs shall refer to Kirk Dahl, Police and Fire Retirement System of

the City of Detroit, City of Omaha Police and Fire Retirement System, and Michael Wojno, as

Executor for the Estate of Robert Zimmerman.

14. For purposes of this Agreement, Barred Claims shall refer to (i) claims and claims

over for contribution or indemnity (or any other claim or claim-over, however denominated on

whatsoever theory) arising out of or related to the claims or allegations asserted by Named Plaintiffs

in the Action on their own behalf and on behalf of the Settlement Class in the Action, or (ii) any

other claim of any type, whether arising under state, federal, common, or foreign law, for which the

injury claimed is that persons or entitys actual or threatened liability to Named Plaintiffs and/or any

Settlement Class Members in the Action.

15. Co-Lead Counsel shall refer to the following counsel:

David R. ScottChristopher M. BurkeScott + Scott, LLP707 Broadway, 10th FloorSan Diego, CA 92101

Patrick J. CoughlinDavid W. Mitchell


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Robbins Geller Rudman & Dowd LLP655 West Broadway, Suite 1900San Diego, CA 92101

K. Craig WildfangThomas J. UndlinRobins, Kaplan, Miller & Ciresi, L.L.P.2800 LaSalle Plaza800 LaSalle Avenue SouthMinneapolis, MN 55402

16. The Named Plaintiffs and the Settling Entities, and their counsel, respectively, shall

maintain the confidentiality of this Agreement and shall make no public or other disclosure of its

terms, including, but not limited to, the Settlement Amount (defined below) prior to when the

Named Plaintiffs submit this Agreement to the Court for preliminary approval of the settlement;

provided, however, that the Settling Entities may disclose this Agreement to their respective insurers

and auditors or as required by federal securities laws.

B. Approval of This Agreement and Dismissal of Claims Against theSettling Entities

17. The Named Plaintiffs and the Settling Entities, and their counsel, respectively, shall

use reasonable, good faith efforts to effectuate this Agreement and its purpose, and secure the

prompt, complete, and final dismissal with prejudice of the Action as to Releasees, but not as to any

party, person, or entity that is not a Releasee.

18. Named Plaintiffs shall submit to the Court a motion for preliminary approval of this

Agreement on or after August 7, 2014. The motion for preliminary approval shall include a

proposed plan for the sending of notice to the Settlement Class within thirty (30) days after an

order of preliminary approval is entered, and establishing a period of sixty (60) days from the giving

of such notice within which any member of the Settlement Class may: (a) object to the Agreement or

(b) request exclusion from the Settlement Class. The motion for preliminary approval shall also

request that any hearing on final approval of the settlement be set for no earlier than forty-five (45)


- 10 -

days from the final date for serving objections and that any reply briefs on such motions be filed

fourteen (14) days prior to that hearing.

19. Named Plaintiffs shall seek, and the Settling Entities will not object to, entry of an

order and final judgment, the text of which the Parties shall agree upon. The terms of that order and

final judgment will include, at a minimum, the substance of the following provisions:

(a) certifying the Settlement Class pursuant to Rule 23 of the Federal Rules of

Civil Procedure;

(b) approving finally this settlement and its terms as being a fair, reasonable and

adequate settlement as to the Named Plaintiffs and the Settlement Class within the meaningofRule 23

of the FederalRules of CivilProcedure or other applicable law, releasingReleasees inaccordance with

paragraph 22 of this Agreement, and directing consummation of this Agreement according to its

terms;

(c) providing that the Action against each of Blackstone, KKR and TPG be

dismissed with prejudice and, exceptasprovidedfor in thisAgreement,without recoveryofattorneys

fees and/or costs from any of Blackstone, KKR or TPG;

(d) reserving exclusive jurisdiction over this settlement and this Agreement,

includingtheadministrationandconsummationof thissettlement, to theUnitedStatesDistrictCourt for

the District of Massachusetts;

(e) determining under Federal Rule of Civil Procedure 54(b) that there is no just

reason for delay and directing that the judgment of dismissal as to Blackstone, KKR and TPG be

finally entered;

(f) certifying that the notification requirements of the Class Action Fairness Act,

28 U.S.C. 1715, have been met; and


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(g) providing a bar order and judgment reduction provision in accordance with

paragraph 29 of this Agreement.

20. The Parties understand and agree that this settlement is subject to (a) preliminary

approval of the settlement by the Court; (b) final approval of the settlement by the Court after notice

to the Settlement Class, and a hearing on final approval becoming final and no longer subject to

appeal as defined herein; (c) the Settling Entities not exercising any rights of termination; and (d) the

Investment Funds causing payment of the Settlement Amount. Subject to the provisions of this

paragraph, this Agreement shall become final when (i) the Court has entered an order and final

judgment, which includes the provisions described in paragraph 19, approving thisAgreement under

Federal Rule of Civil Procedure 23(e) and/or applicable state laws and a final judgment dismissing the

Action with prejudice as to all Releasees against all Settlement Class Members and (ii) either (A) the

time for appeal or to seek permission to appeal from the Courts approval of the settlement and entry

of an order and final judgment as to all Releasees has expired, or (B) if an appeal is taken, the order

and final judgment are affirmed in their entirety on appeal (or the appeal is finally dismissed in its

entirety) by the Court of last resort to which such appeal has been taken and such affirmance has

become no longer subject to further appeal or review.

21. This Agreement shall be deemed executed as of the last date of signature by any of

the Settling Entities and Co-Lead Counsel, and Co-Lead Counsel shall give notice to the Settling

Entities within three (3) business days after this Agreement is deemed executed. Neither the

provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. 1651,

shall be taken into account in determining the above-stated times. As of the date of execution of this

Agreement, the Parties shall be bound by the terms of this Agreement and this Agreement shall not

be rescinded or terminated except as set forth in this Agreement.


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C. Release, Discharge, and Covenant Not to Sue

22. In addition to the effect of any final judgment entered in accordance with the

settlement, upon the settlement becoming final as set out in paragraph 20 of this Agreement, and in

consideration of the payment specified in paragraph 27 of this Agreement, and for other valuable

consideration, Releasors fully, finally and forever settle, release, acquit, relinquish and discharge

Releasees from any legal, equitable, or other allegations, claims, causes of action, cross-claims,

counter-claims, charges, liabilities, demands, judgments, suits, obligations, debts, setoffs, rights of

recovery, or liabilities for any obligations of any kind whatsoever (however denominated), whether

based on common law, equity, or on any federal or state statute, rule, regulation, other law, contract

or other right of action, whether direct or indirect, known or unknown, suspected or unsuspected,

foreseen or not foreseen, or fixed or contingent, for any injury, damage or loss of any kind

whatsoever, including, but not limited to, compensatory damages, consequential damages, incidental

damages, special damages, statutory liquidated damages, exemplary damages, punitive damages,

costs, expenses, interest, and attorneys fees, which they ever had, now have or may in the future

have, own, or claim existing as of the date of this Agreement that were asserted or could have been

asserted in this Action or that concern the Transactions, or any other claims arising out of, relating

to, or in connection with, the defense, settlement, or resolution of the Action (the Released

Claims). Releasors shall not, after the date of this Agreement, seek to establish liability directly or

indirectly against any Releasee based, in whole or in part, upon any of the Released Claims. This

release shall not affect the rights and claims of Named Plaintiffs and the Settlement Class against

any entity or person, including any Non-Settling Defendants, other than the Releasees and shall not

affect or alter in any manner any otherwise applicable joint and several liability among persons or

entities, including any Non-Settling Defendants, other than the Releasees. The Releasors

contemplate and agree that this Agreement maybe pleaded asa bar to a lawsuit, andan injunctionmay


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be obtained, preventing any action from being initiated or maintained in any case sought to be

prosecuted with respect to the Released Claims.

23. Without limiting the foregoingrelease, Releasors covenant and agree that theyshall not

institute, bring or commence any action or use any evidence or facts in any court, arbitration, or other

forum against any Releasee with respect to the Released Claims, except (i) as necessary to enforce

this Agreement, or (ii) in connection with motions or trial against any Non-Settling Defendants in the

Action. The Releasors shall not seek to establish liability directly or indirectlyagainst anyReleasee

based, in whole or in part, upon anyof the ReleasedClaims or conduct at issue in the Released Claims.

Named Plaintiffs and the Settlement Class agree not to appeal any prior orders in this Action as to any

Releasee.

24. In addition to the effect of any final judgment entered in accordance with the

settlement, upon the settlement becoming final as set out in paragraph 20 of this Agreement, and in

consideration of the releases described in paragraph 22, and for other valuable consideration, the

Releasors shall be completely released, acquitted, and forever discharged from any and all claims,

demands, actions, suits, causes of action, whether class, individual, or otherwise in nature, whether

directly, representatively, derivatively or in any other capacity that anyof the SettlingEntitiesever had,

now has, or hereafter can, shall, or mayhave on account of, related to, or in any way arisingout of, any

act or omission of the Releasors (or any of them) concerning the institution, prosecution, assertion,

settlement or resolution of the Action or the Released Claims (the Releasee-Released Claims).

Releasees shall not, after the date of this Agreement, seek to establish liabilityagainst anyoftheNamed

Plaintiffsbased, in whole or in part, upon any of the Releasee-Released Claims, or conduct at issue in

the Releasee-Released Claims.


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25. In addition to the provisions of paragraphs 22 and 23 of this Agreement, Releasors

expressly waive and release, upon the settlement becoming final, any and all provisions, rights, and

benefits conferred by 1542 of the California Civil Code or any federal, state or foreign law, rule,

regulation or common law doctrine that is similar, comparable, equivalent or identical to, or that has

the same or similar effect of, Section 1542 of the California Civil Code, which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IFKNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HISOR HER SETTLEMENT WITH THE DEBTOR;

or by any law of any state or territory of the United States, or principle of common law, which is

similar, comparable, or equivalent to 1542 of the California Civil Code. Each Releasor and

Releasee may hereafter discover facts other than or different from those which he, she, or it knows or

believes to be true with respect to the claims which are the subject matter of the provisions of

paragraphs 22 and 23 of this Agreement, but each Releasor and Releasee hereby expressly waives

and fully, finally, and forever settles and releases, upon the settlement becoming final as set forth in

paragraph 20, any known or unknown, suspected or unsuspected, contingent or non-contingent claim

with respect to the subject matter of the provisions of paragraphs 22or 23of this Agreement, whether

or not concealed or hidden, without regard to the subsequent discovery or existence of such different

or additional facts.

26. The release, discharge, and covenant not to sue set forth in paragraphs 22 and 23 of

this Agreement do not settle or compromise claims by any of the Releasors or any of the Releasees

other than the claims set forth therein and do not include other claims, such as those solely arising

out of product liability, contract or warranty claims in the ordinary course of business.


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D. Settlement Amount

27. Subject to the provisions hereof, and in full, complete and final settlement of the

Action as provided herein, the Investment Funds will cause U.S. $325,000,000 (the Settlement

Amount) to be paid for the benefit of the Settlement Class, with the Investment Funds determining

each Investment Funds allocated portion of the $325,000,000 payment among themselves. The

Settlement Amount will be paid into the Settlement Fund, which shall be an interest-bearing escrow

account listed as Blackstone, KKR and TPG Settlement Fund controlled solely by Co-Lead

Counsel (subject to Court oversight) in accordance with paragraph 30 of this Agreement not later than

thirty (30) business days after the Courts preliminary approval of this settlement. Named Plaintiffs

and the Settlement Class shall look solely to the Settlement Fund for settlement and satisfaction

against the Releasees of all Released Claims, as well as applications for attorneys fees and costs, and

shall have no other recovery against the Releasees. Co-Lead Counsel shall provide the Settling

Entities with reasonable documentation of payment of the Settlement Amount, such as a W-9 form.

E. Bar Order and Judgment Reduction

28. The Parties agree that the final judgment shall (a) permanently bar, enjoin and restrain

any person from commencing, prosecuting, or asserting any Barred Claims against any of the

Releasees, whether as claims, cross-claims, counterclaims, third-party claims, or otherwise, and

whether asserted in the Action or any other proceeding, in this Court, in any federal or state court, or

in any other court, arbitration proceeding, administrative agency, or other forum in the United States

or elsewhere; and (b) permanently bar, enjoin and restrain the Releasees from commencing,

prosecuting, or asserting any Barred Claims against any person or entity, whether as claims, cross-

claims, counterclaims, third-party claims or otherwise, and whether asserted in the Action or any

other proceeding, in this Court, in any federal or state court, or in any other court, arbitration


- 16 -

proceeding, administrative agency or other forum in the United States or elsewhere (the Bar

Order).

29. The Parties also agree that the final judgment shall provide that any final verdict or

judgment that may be obtained by or on behalf of the Settlement Class or a member of the

Settlement Class against any person or entity subject to the Bar Order described in paragraph 28

shall be reduced as provided by applicable law.

F. Escrow Account

30. (a) The Escrow Account referenced in paragraph 27 will be established at The

Huntington National Bank, with such bank serving as escrow agent (Escrow Agent) subject to

escrow instructions as agreed by the Parties.

(b) The Escrow Agent shall invest the Settlement Fund deposited in the Escrow

Account in short term (up to one-year maturity) United States Agency or Treasury Securities or other

instruments backed by the full faith and credit of the United States Government or an Agency

thereof, or fully insured by the United States Government or an Agency thereof, and shall reinvest the

proceeds of these instruments as they mature in similar instruments at their then-current market rates.

All risks related to the investment of the Settlement Fund in accordance with the investment

guidelines set forth in this paragraph shall be borne by the Settlement Fund.

(c) TheEscrowAgent shallnotdisburse theSettlement Fundexceptasprovided in

this Agreement, byan order of the Court, or with the writtenagreementofcounsel for theSettlingEntities.

(d) Subject to further order(s) and/or directions as maybe made bythe Court, or as

provided in this Agreement, the Escrow Agent is authorized to execute such transactions as are

consistent with the terms of this Agreement.

(e) All funds held in the Escrow Account shall be deemed and considered to be in

custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as


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such funds shall be distributed or returned to the parties who deposited such funds pursuant to this

Agreement and/or further order(s) of the Court.

(f) The Parties and theEscrowAgentagree to treat theSettlementFundasbeing at

all times a qualified settlement fund within the meaning of Treas. Reg. 1.468B-1. In addition, the

Escrow Agent shall timely make such elections as necessary or advisable to carry out the

provisions of this paragraph, including the relation-back election (as defined in Treas. Reg

1.468B-1) back to the earliest permitted date. Such elections shall be made in compliance with the

procedures and requirements contained in such regulations. It shall be the responsibilityof Co-Lead

Counsel to timely and properly prepare and deliver the necessary documentation for signature by all

necessary parties, and thereafter to cause the appropriate filing to occur.

(g) For the purpose of 468B of the Internal Revenue Code of 1986, as amended,

and the regulations promulgated thereunder, the administrator shall be Co-Lead Counsel. Co-Lead

Counsel shall timely and properly file all informational and other tax returns necessary or advisable

with respect to the Settlement Fund (including, without limitation, the returns described in Treas.

Reg. 1.468B-2(k)). Such returns (as well as the election described in paragraph 30(f) hereof) shall

be consistent with this paragraph and in all events shall reflect that all Taxes (including any

estimated Taxes, interest or penalties)on theincomeearnedbytheSettlementFundshallbepaidout of

the Settlement Fund as provided herein.

(h) All (a) applicable Taxes, duties, and similar charges imposed by a

government authority (including any estimated Taxes, interest or penalties) arising with respect to

the income earned bythe Settlement Fund, includinganyTaxesor taxdetriments that may be imposed

upon the Parties or their counsel with respect to any income earned by the Settlement Fund for any

period during which the Settlement Fund does not qualify as a qualified settlement fund for


- 18 -

federal or state income tax purposes, or with respect to the income or gains earned by or in respect

of the Escrow Account, or by way of withholding as required by applicable law on any

distribution by the Escrow Agent of any portion of the Escrow Account to the Settlement

Administrator, Authorized Claimants, or other persons entitled to such distributions pursuant to

this Agreement, and (b) expenses and costs incurred in connection with the operation and

implementation of this paragraph (including, without limitation, expenses of tax attorneys and/or

accountants and mailing and distribution costs and expenses relating to filing (or failing to file) the

returns described in this paragraph) (Tax Expenses), shall be paid outof theSettlementFund; inall

events the Releasees and Releasors (Released Persons) and their counsel shall have no liability or

responsibility for anyTaxes or Tax Expenses. TheSettlement Fund shall indemnifyandholdeachof

the Released Persons and their counsel harmless for Taxes and Tax Expenses (including, without

limitation, Taxes payable by reason of any such indemnification). Further,TaxesandTaxExpenses

shall be treated as, and considered to be, a cost of administration of the Settlement Fund and shall be

timely paid by the Escrow Agent out of the Settlement Fund without prior order from the Court, and

the Escrow Agent shall be authorized (notwithstanding anything herein to the contrary) to withhold

from distribution to Authorized Claimants any funds necessary to pay such amounts, including the

establishment of adequate reserves for any Taxes and Tax Expenses (as well as any amounts that

may be required to be withheld under Treas. Reg. 1.468B-2(l)(2)). The Parties agree to

cooperate with the Escrow Agent, each other, and their tax attorneys and accountants to the extent

reasonably necessary to carry out the provisions of this paragraph.

(i) In the event that this Agreement is not approved or this Agreement is

terminated, canceled, or fails to become effective for any reason, the Settlement Fund less Notice

and Administration Expenses (as defined in paragraph 31(c) below) and Taxes or Tax Expensespaid,


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incurred, or due and owing in connection with the settlement provided for herein, shall be refunded to

the Investment Funds along with any interest accrued thereon. The refund must be made within

thirty (30) calendar days of this Agreements termination, cancellation, or failure to become

effective.

G. Settlement Administration, Costs of Notice, and Interim Expenses

31. (a) Co-Lead Counsel will select a third party to act as a qualified settlement

administrator (Settlement Administrator) to assist with the settlement claims process and

administration of notice to the Settlement Class, locating potential Settlement Class Members, and

administering and distributing the Settlement Fund.

(b) The Settling Entities agree that a portion of the Settlement Fund may be

applied to the costs of notice to the Settlement Class and administration costs related thereto, as Co-

Lead Counsel in their sole discretion deem reasonably necessary, subject to Court approval as set

forth in paragraph 36 below.

(c) Without further order of the Court, the Settlement Fund may be used by Co-

Lead Counsel to pay reasonable costs and expenses actually incurred in connection with providing

notice to the Settlement Class, locating potential Settlement Class Members, soliciting claims,

assisting with the filing of claims, administering and distributing the Settlement Fund to Authorized

Claimants, processing Proof of Claim forms, and paying escrow fees and costs, if any (Notice and

Administration Expenses). Notice and Administration Expenses paid or owing at the time of this

Agreements termination or cancellation or when it fails to become effective or final are not

recoverable by the Settling Entities.

(d) If Co-Lead Counsel enter into any other settlements on behalf of the

Settlement Class before notice of this Agreement is given to the Settlement Class (including

settlements entered into before the settlement covered by this Agreement), Co-Lead Counsel shall


- 20 -

provide a single notice to prospective class members of such settlements. Further, in the event that a

litigation class is certified before notice of this Agreement is given to the Settlement Class, Co-Lead

Counsel may, in their sole discretion, choose to consolidate the Notice of this Agreement with the

notice to the litigation class.

32. Neither the Settling Entities nor any of the other Releasees under this Agreement

shall be liable for any of the costs or expenses of the litigation of the Action, including, without

limitation, attorneys fees, fees and expenses of expert witnesses and consultants, and costs and

expenses associated with discovery, motion practice, hearings before the Court or anySpecial Master,

appeals, trials or the negotiation of other settlements, or for class administration and costs.

H. Distribution of the Settlement Fund

33. Releasors shall look solely to the Settlement Fund for settlement and satisfaction

against Releasees of all Released Claims, and shall have no other recovery against the Settling

Entities or the Releasees.

34. After the settlement becomes final within the meaning of paragraph 20, the

Settlement Fundshall be distributed onlyin accordance withplans fordirectdistributions,cypres,or as

otherwise permitted by law, all to be submitted at the appropriate time by the Named Plaintiffs and

approved by the Court. Neither the Settling Entities nor any other Releasee under this Agreement

shall have any responsibility for, or interest in, or liability whatsoever with respect to, or shall file

any opposition to, the proposed or actual plan(s) for distribution of the Settlement Fund among the

Settlement Class and/or any other person or entity who may assert some claim to the Settlement

Fund. Once the settlement becomes final within the meaning of paragraph 20, the Investment Funds

have no ability to get back any of the Settlement Fund and there shall be no revision of any portion

of the Settlement Fund to the Settling Entities on account of a decision by any Settlement Class

Member to opt-out of the settlement or based on claims made by Settlement Class Members.


- 21 -

35. It is contemplated that Named Plaintiffs counsel will seek attorneys fee award(s),

payment of costs and expenses (including expert witness fees and expenses), and service awards to the

Named Plaintiffs.

36. (a) The procedure for and the allowance or disallowance by the Court of the

petitions for awards of attorneys fees, the payment of costs and expenses and any award of service

awards to the Named Plaintiffs is to be considered by the Court separately from the Courts

consideration of the fairness, reasonableness and adequacy of the settlement, and any order or

proceeding relating to the fee application(s) or any appeal from any such order shall not operate to

terminate or cancel the settlement, or affect or delay the finality of the judgment approving the

settlement. Except as expressly provided in this Agreement, the Settling Entities, under the

settlement, shall not have any responsibility for, or interest in, or liability whatsoever with respect to

any payment to counsel for the Named Plaintiffs or the Settlement Class of any fee award in the

Action. The Settling Entities, under the settlement, shall not have any responsibility for, or interest

in, or liability whatsoever with respect to the allocation among counsel for the Named Plaintiffs,

and/or any other person or entity who may assert some claim thereto, of any fee award that the Court

may make in the Action.

(b) Attorneys fees and expenses awarded by the Court shall be payable from the

Settlement Fund upon award, notwithstanding the existence of any filed objections to the settlement,

of attorneys fees and expenses or to any service award, or to any actual, or potential for, appeal

therefrom, or collateral attack on the settlement or any part of it, subject to Co-Lead Counsels

obligation to make a full repayment to the Settlement Fund if the settlement does not become final

within the meaning of paragraph 20 of this Agreement, or if this Agreement is rescinded pursuant to

paragraphs 37, 38, or 39 of this Agreement or to make appropriate refunds or repayments to the


- 22 -

Settlement Fund, if and when, as a result of any appeal and/or further proceeding on remand, or

successful collateral attack, the fee or cost award is reduced or reversed.

I. Termination and Rescission

37. (a) Within fourteen (14) business days after the end of the period to request

exclusion from the Settlement Class, Co-Lead Counsel will cause copies of timely requests for

exclusion from the Settlement Class to be provided to counsel for the Settling Entities.

(b) The Settling Entities shall, in their sole discretion, have the option to

terminate the settlement upon the occurrence of one or more conditions relating to members of the

Settlement Class who have timely exercised their rights to be excluded from the Settlement Class

(Opt Outs), as set forth in a separate agreement (Supplemental Agreement) executed between

Co-Lead Counsel, on the one hand, and the Settling Entities, on the other. To exercise this option,

the Settling Entities by their counsel must jointly provide written notice of election to terminate the

settlement no later than ten (10) calendar days prior to the hearing for final approval of this

settlement, which the Parties agree will not go forward until the Parties have ascertained the

number and identity of Opt Outs.

(c) The right of the Settling Entities to terminate the settlement and withdraw

from the settlement is a material term of the settlement. The Parties agree to keep confidential the

Supplemental Agreement and its terms and information contained therein and agree not to file it with

the Court. Upon request by the Court, the Parties agree to submit the Supplemental Agreement to

the Court in camera unless ordered to file, in which case it shall be filed under seal.

(d) With respect to any potential member of the Settlement Class who requests

exclusion from the Settlement Class, the Settling Entities reserve all of their legal rights and

defenses.


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38. If the Court refuses to approve the settlement oranymaterial parthereof (including the

proposed Settlement Class), or if such approval is materially modified or set aside on appeal, or if the

Court does not enter the final judgment provided for in paragraph 19 of this Agreement, or if the

Court enters the final judgment and appellate review is sought, and on such review, such final

judgment is not affirmed in its entirety as to all material terms, then within 30 days thereafter, the

Settling Entities and the Named Plaintiffs shall each, in their sole discretion, have the option to

rescind the settlement in its entirety. Written notice of the exercise of any such right to rescind

shall be made by the rescinding party to counsel for all other Parties. A modification or reversal on

appeal of any amount of the fees or expenses for counsel for the Named Plaintiffs, or the plans for

direct distribution to Settlement Class Members, shall not be deemed a modification of all or a part of

the terms of the settlement or such final judgment.

39. In the event that the settlement does not become final, then this Agreement shall be of

no force or effect (except for this paragraph and paragraphs 40(b), 41, and 42) and any and all parts

of the Settlement Fund caused to be deposited in the Escrow Account(s), including all interest earned

on such accounts, shall be returned within 30 days to a bank account designated by the Investment

Funds making payment under paragraph 27 less only disbursements made in accordance with this

Agreement, including paragraph 30(i). In the event that the settlement is terminated or fails to

become effective for any reason, the Parties shall be deemed to have reverted to their respective status

in the Action as of July 13, 2014, and the Parties shall proceed in all respects as if this Agreement

and any related agreements or orders had not been executed and/or entered. The Parties expressly

reserve all of their rights if this Agreement does not become final. Further, and in any event, the

Parties agree that this Agreement, whether or not it shall become final, and any and all negotiations,

documents, and discussions associated with its negotiation, shall not be deemed or construed to be an


- 24 -

admission or evidence of any violation of any statute or law or of any liability or wrongdoing by the

Settling Entities or the Releasees, or of the truth of any of the claims or allegations contained in the

Complaint or any other pleadings filed by Named Plaintiffs in the Action, and evidence thereof shall

not be discoverable or used directly or indirectly, in any way, whether in the Action or in any other

action or proceeding.

J. Cooperation

40. In consideration for the settlement and dismissal of Named Plaintiffs and the

Settlement Classs claims in the Action, Blackstone, KKR and TPG each agree to provide Named

Plaintiffs and the Settlement Class with the following cooperation in the prosecutionof their claims in

the Action against any and all Non-Settling Defendants:

(a) In the event necessary for any briefing, hearing or trial against any

remaining Defendant regarding the claims in the Action, Blackstone, KKR and TPG each agrees to

engage in reasonable, good faith efforts to timely provide, without cost to Named Plaintiffs, a

declaration sufficient to establish, to the extent it can, the foundation, the authenticity, including

under F.R.E. 901, and admissibility, including under F.R.E. 803 or 801(d)(2), of a reasonable

number of documents that Named Plaintiffs specifically identify with reasonable advance notice.

Named Plaintiffs and the Settlement Class agree to be reasonable in their selection of documents. If

counsel for the Non-Settling Defendants object in whole or in part to the sufficiency of any of

Blackstones, KKRs, or TPGs declarations, or if the trial court determines that any of the

declarations in whole or in part are not sufficient to admit specified documents, then Blackstone,

KKR and TPG each agrees to provide without need for service of process a witness qualified to testify

as to the authenticity and admissibility of such of their respective documents produced in the Action.

In no event shall the obligations under this paragraph extend to providing substantive testimony


- 25 -

about any document, event, communication, or anything else beyond the authenticity or the business

record status of the document.

(b) In the event that the settlement fails to receive final approval bythe Court, or in

the event that it is terminated by either party under any provision herein, the Parties agree that

neither Named Plaintiffs, the Settlement Class, nor Named Plaintiffs counsel shall be permitted to

introduce into evidence, at any hearing, or in support of any motion, opposition or other pleading in

this Action or in any other federal or state action, the sworn or unsworn oral or written statements,

declarations, or certifications provided byany of the Settling Entities, their respective counsel, or any

individual made available by the Settling Entities pursuant to this paragraph.

(c) In the event Blackstone, KKR or TPG fails to perform any cooperation

obligations under this paragraph, the sole remedy shall be to seek specific performance, and this

Agreement shall be otherwise unaffected. Any dispute concerning the cooperation obligations of the

Parties shall be reduced to writing before a Party seeks relief from the Court. In addition,

Blackstone, KKR and TPG shall have the right to assert and protect, if warranted, the attorney-client

privilege, attorney-work product protection, or applicable privacy laws regardless of any cooperation

obligations. For the avoidance of doubt, nothing in this paragraph shall be construed as a waiver of

the Settling Entities attorney-client privilege, work-product protection, or any other applicable

protection from disclosure.

K. Reservation of Rights

41. Neither this Agreement (whether or not it should become final) nor the final

judgment, nor any and all negotiations, documents, and discussions associated with such negotiation,

shall be deemed or construed to be an admission by, or form the basis of an estoppel by a third party

against any of the Settling Entities or any Releasees, or evidence of any violation of any statute or

law or of any liability or wrongdoing whatsoever by any Releasee, or of the truth of any of the


- 26 -

claims or allegations contained in any complaint or any other pleading filed by the Named Plaintiffs

or Releasors, and evidence thereof shall not be discoverable, or used directly or indirectly, in anyway

against the Settling Entities, whether in the Action or in any other action or proceeding. Neither

this Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings

connected with it, nor any action taken to carry out this Agreement by any of the Named Plaintiffs or

the Settling Entities shall be referred to, offered into evidence, or received in evidence in any pending

or future civil, criminal or administrative action or proceeding against any of the Settling Entities,

except in a proceeding to enforce this Agreement, or to defend against the assertion of Released

Claims, or as otherwise required by law. All communications (whether oral or in writing) between

and/or among the Parties, their counsel, and/or their respective representatives relating to, concerning,

or in connection with this Agreement or any other related agreements, or the matters covered hereby,

shall be governed and protected in accordance with Federal Rule of Evidence 408 and to the fullest

extent permitted by law.

42. The SettlingEntitiesagreement not to object to certification of the Settlement Class is

onlyfor purposes of effectuating a settlement and for no other purpose. Blackstone, KKR and TPG

retain all of their objections, arguments, and/or defenses with respect to class certification if this

Agreement does not receive the Courts final approval or is otherwise terminated. The Parties

acknowledge that there has been no stipulation to a class or certification of a class for any purposes,

and that if this Agreement does not receive final approval or is otherwise terminated, the Settling

Entities agreement not to contest certification of the SettlementClassbecomesnull andvoidab initio

and no Party may cite this Agreement, any related agreements, or any other settlement-related

statement regarding certification of the Settlement Class in support of an argument for certifying a

class for any purposes related to this proceeding.


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L. Miscellaneous

43. This Agreement shall be construed and interpreted to effectuate the intent of the

Parties, which is to provide, through this Agreement, for a complete resolution of the relevant claims

with respect to each Releasee as provided in this Agreement.

44. The Parties to this Agreement contemplate and agree that, prior to final approval of the

settlement as provided for in paragraph 19 of this Agreement, appropriate notice (1) of the

settlement; (2) of a hearing at which the Court will consider the finalapproval of this Agreement; and

(3) that Settlement Class Members may be permitted to object to, or opt-out of, the settlement, will be

given to Settlement Class Members.

45. ThisAgreementdoesnotsettleorcompromiseanyclaimbytheNamedPlaintiffsand the

SettlementClassagainstanyDefendantorallegedco-conspiratorother thanthe Settling Entitiesandthe

Releasees. All rights against such other Defendants or alleged co-conspirators are specifically

reserved by Named Plaintiffs.

46. Neither this Agreement, nor any act performed or document executed pursuant to or in

furtherance of this Agreement is or may be deemed to be or may be used as an admission of, or

evidence of, (i) the validity of any claim or defense; or (ii) the appropriateness or inappropriateness of

anyclass or other representational capacitywhether contemporaneouslywith this Agreement orat any

time in the future.

47. Except as otherwise set forth herein, this Agreement shall not affect whatever rights

Releasors or any of them may have (i) to participate in or benefit from any relief or recovery as part of

a judgment or settlement in this Action against any other party named as a Defendant (other than the

Settling Entities or any other Releasee); or (ii) to assert any claim referred to in paragraph 26 above.

48. The United States District Court for the District of Massachusetts shall retain

jurisdiction over the implementation, enforcement, and performance of this Agreement, and shall


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have exclusive jurisdiction over any suit, action, proceeding, or dispute arising out of or relating to

this Agreement or the applicability of this Agreement that cannot be resolved by negotiation and

agreement by the Parties. This Agreement shall be construed according to the laws of the State of

Massachusetts without regard to its choice of law or conflict of laws principles.

49. This Agreement may be executed in counterparts by the Named Plaintiffs and the

Settling Entities, and a facsimile signature shall be deemed an original signature for purposes of

executing this Agreement.

50. Neither the Named Plaintiffs nor the Settling Entities shall be considered to be the

drafters of this Agreement or any of its provisions for the purpose of any statute, case law, or rule of

interpretation or construction that would or might cause any provision to be construed against the

drafters of this Agreement.

51. ThedescriptiveheadingsofanyparagraphsorsectionsofthisAgreementare inserted for

convenience only and do not constitute a part of this Agreement.

52. This Agreement, together with the Supplemental Agreement, constitute the entire,

complete, and integrated agreement among Named Plaintiffs and the Settling Entities pertaining to

the settlement of the Action against the Settling Entities, and supersedes all prior understandings of

Named Plaintiffs and any of the Settling Entities in connection herewith.

53. Where this Agreement requires either party to provide notice or any other

communication or document to the other, such notice shall be in writing, and such notice,

communication, or document shall be provided by electronic mail, facsimile or letter by overnight

delivery to the undersigned counsel of record for the party to whom notice is being provided.

54. The Parties agree that, following the filing of a motion for preliminary approval for the

settlement, the Parties shall cease work in connection with the Action as it relates to the Settling


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Entities except for work relating to the consummation and closing of this Agreement, and except as

necessary to proceed forward in litigation against any Non-Settling Defendants.

55. The Parties agree that Co-Lead Counsel have taken sufficient discovery to date to

allow them to determine that the settlement is in the best interests of the Settlement Class, and no

further discovery is necessary or will be undertaken in connection with the settlement.

56. This Agreement may be modified or amended only by a writing signed by all of the

signatories hereto.

57. Except as otherwise provided herein, this Agreement shall be binding upon and shall

inure to the benefit of the Parties and their respective agents, successors, executors, heirs and

assigns.

58. Named Plaintiffs and Co-Lead Counsel represent and warrant that none of the Named

Plaintiffs claims or causes of action referred to in thisAgreementor that couldhavebeenallegedin the

Action have been assigned, encumbered or in any manner transferred in whole or in part.

59. The Parties and their counsel agree to use reasonable, good faith efforts to do

anything reasonably necessary to effectuate the performance of, and uphold the validity and

enforceability of, this Agreement.

60. The proposed Final Judgment submitted to the Court will contain a statement that

during the course of the Action, the Parties and their respective counsel at all times complied with the

requirements of Federal Rule of Civil Procedure 11. The Parties agree that the amount paid to the

Settlement Fund and the other terms of the settlement were negotiated in good faith by the Parties

and their counsel, and reflect a settlement that was reached voluntarily after consultation with

competent legal counsel.


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61. Each of the undersigned attorneys represents that he or she is fully authorized to enter

into the terms and conditions of, and to execute, this Agreement on behalf of the Parties he or she

represents, subject to Court approval.

[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]


Dated: July 28,2014

On behalf of Named Plantiffs nd theSettlement Class:

On behalf of the Settlng Enttes:

Patrick J. Coughlin (admittedpro hac vice)David W. Mitchell (admitted pro hac vice)Randi D. Bandman (admittedpro hac vice)Phong L. Tran (admittedpro hac vice)ROBBINS GELLER RUDMAN & DOV/D LLP655 V/est Broadway, Suite 1900San Diego, CA 92101(619) 23 [email protected]@rgrdlaw,[email protected]@rgrdlaw.com

Christopher M. Burke (admittedpro hac vice)Walter W. Noss (admittedpro hac vice)Kristen M. Anderson (admitted pro hac vice)SCOTT+SCOTT, ATTORNEYS AT LAW, LLP707 Broadway, Suite 1000San Diego, CA 92101(61e) 233-4s6scburke@scott- scott. comwno ss@scott-scott, comkanderson@scott-scott. com

K. Craig Wildfang (admittedpro hac vice)Thomas J. Undlin (admittedpro hac vice)Stacey P. Slaughter (admitted pro hac vice)ROBINS, KAPLAN, MILLER & CIRESI L.L.P2800 LaSallePlaza800 LaSalle Avenue SouthMinneapolis, MN 55402-20156121349-8500

Joseph F. Tringali (admittedpro hac vice)Paul C. Gluckow (admittedpro hac vice)SIMPSON THACHER & BARTLETT LLP425 Lexington AvenueNew York, NY 10017Ryan A. Kane (admitted pro hac vice)V/OLLMUTH MAHER & DEUTSCH LLP500 5th AvenueNew York, NY 10110

Counsel for Kohlberg KravisRoberts & Co. L.P and KKR InvestmentFunds

ted pro hac vice)Kelly Fayne (admittedpro hac vice)ARNOLD & PORTER LLP555 12th Street, NWWashington, DC 20004

Mary Kathryn Sammons (admittedpro hac vice)Karen A. Oshman (admittedpro hac vice)SUSMAN GODFREY L.L.P.1000 Louisiana, Suite 5100Houston, TX77002

Counsel for TPG Capital, L.P. and TPGInvestment Funds

(

Co-Lead Class Counsel

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