Exhibit 10.1
KINGSLEY & KINGSLEY, APC
GEORGE R. KINGSLEY, ESQ. SBN-38022
ERIC B. KINGSLEY, ESQ. SBN-185123
16133 VENTURA BL., SUITE 700
ENCINO, CA 91436
(818) 990-8300, FAX (818) 990-2903
ATTORNEYS FOR PLAINTIFFS
NORDMAN, CORMANY, HAIR & COMPTON
JOEL MARK
1000 TOWN CENTER DRIVE, SIXTH FLOOR
OXNARD, CA 93036-1132
(805) 485-1000
ATTORNEYS FOR DEFENDANT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF VENTURA
KENNETH SCHNEBLY on behalf of
himself and on behalf of
others similarly situated, ) CASE NO.: CIV 226265
) CLASS ACTION
Plaintiffs, ) JOINT STIPULATION OF
) SETTLEMENT AND RELEASE BETWEEN
) PLAINTIFFS AND DEFENDANT
)
v )
)
CALIFORNIA AMPLIFIER, INC. )
et al., )
)
Defendants. )
__________________________________________)
This Joint Stipulation of Settlement and Release (hereinafter
"Stipulation of Settlement" or "Settlement") is made and entered into by and
between plaintiff KENNETH SCHNEBLY on behalf of himself and on behalf of
others similarly situated ("Plaintiff") and CalAmp Corp., sued herein as
California Amplifier, Inc. (collectively "Defendant" or "CalAmp.").
This Settlement shall be binding on plaintiff and the class he
purports to represent, and defendant and its present and former parent
companies, subsidiaries, related or affiliated companies, shareholders,
officers, directors, employees, agents, attorneys, insurers, successors and
assigns, and any individual or entity which could be jointly liable with
Defendant, and their respective counsel, subject to the terms and conditions
hereof and the approval of the Court.
THE PARTIES STIPULATE AND AGREE as follows:
1. Plaintiff and Defendant are collectively referred to herein as "the
parties."
2. On April 1, 2004 Plaintiff filed a proposed Class Action Complaint
against Defendant in the Ventura County Superior Court on behalf of
themselves and all other employees similarly situated. The Complaint alleged
various wage and hour violations including causes of action for time shaving,
failure to allow meal periods and rest breaks to hourly paid employees
pursuant to California Labor Code Sec. 226.7, waiting time penalties pursuant
to Labor Code Sec. 203, unfair business practices under Business & Professions
Code Sec. 17200, and penalties pursuant to Labor Code Sec. 2699. Among other
allegations, the Complaint alleged that hourly paid employees who worked one
or more shifts in Defendant's facility were not allowed to take meal periods
as required by Labor Code Sec. 226.7 and that, consequently, such employees
were entitled to be paid one hour of pay per missed meal period. The Complaint
sought recovery of compensatory damages, penalties for missed meal periods
time shaving/rounding, waiting time penalties, penalties pursuant to Labor
Code Sec. 2699, prejudgment and post-judgment interest, issuance of an
injunction, restitution, attorneys' fees and costs.
3. Plaintiffs have not filed a motion for class certification in this
action, nor has a date been set by the Court for the filing of such a motion.
4. For purposes of this Settlement, the "Settlement Class" shall
consist of all nonexempt employees who worked at any time for Defendant in
California from April 1, 2000 through August 31, 2004.
5. Solely for purposes of settling this case, the parties stipulate
and agree that the requisites for establishing class certification with
respect to the Settlement Class have been met and are met. More
specifically, the parties stipulate and agree that:
a. The Settlement Class is ascertainable and so numerous as to
make it impracticable to join all Class Members.
b. There are common questions of law and fact including, but
not limited to, the following:
i. Whether or not Defendant allowed its hourly
employees to take meal periods in accordance with California law;
ii. Whether or not Defendant improperly rounded or
shaved time that was illegal in accordance with California law;
iii. Whether or not Defendant's business practices
affecting the Settlement Class violated Business & Professions Code Sec. 17200,
et seq.;
iv. Whether or not Plaintiffs and the Class they
purport to represent are entitled to meal period premium under Labor Code
Sec. 226.7;
v. Whether or not Plaintiffs and the Class they
represent are entitled to penalties under Labor Code Sec. 2699; and
vi. Whether or not Class Members who are former
employees of defendant are entitled to waiting time penalties under Labor
Code Sec. 203.
c. Plaintiffs believe their claims are typical of the claims
of the members of the Settlement Class with respect to the foregoing claims.
d. Plaintiffs and Class Counsel will fairly and adequately
protect the interests of the Settlement Class.
e. The prosecution of separate actions by individual members
of the Settlement Class would create the risk of inconsistent or varying
adjudications, which would establish incompatible standards of conduct.
f. With respect to the Settlement Class, Plaintiffs believe
that questions of law and fact common to the members of the Settlement Class
predominate over any questions affecting any individual member in such Class,
and a class action is superior to other available means for the fair and
efficient adjudication of the controversy.
6. Defendant denies any liability or wrongdoing of any kind whatsoever
associated with the claims alleged in Plaintiff's Complaint. Defendant
denies that, for any purpose other than settling this lawsuit, this action is
appropriate for class or representative treatment. Defendant contends that,
with respect to all of its employees at all times, including with respect to
all members of the alleged class in this action, it has complied with all
applicable sections of the California Labor Code, all applicable sections of
the California Business and Professions Code, all Orders of the Industrial
Welfare Commission, and all other applicable laws and regulations. Defendant
further contends that it has meritorious defenses to each and all of the
claims asserted by plaintiff individually and on behalf of all others
allegedly similarly situated.
7. It is the desire of the parties to fully, finally, and forever
settle, compromise, and discharge all disputes and claims arising from or
related to Plaintiffs' Complaint in this case. In order to achieve a full
and complete release of Defendant, each Settlement Class Member acknowledges
that this Stipulation of Settlement is intended to include in its effect all
claims of any nature arising from or related to this case, and all wage and
hour claims of any nature including claims for alleged denial of meal periods
and time shaving/rounding under any federal, state or local law, including
any such claims which the Class Member does not know or suspect to exist in
his or her favor against Defendant as of the date of the Court's final
approval of this Settlement.
8. It is the intention of the parties that this Stipulation of
Settlement shall constitute a full and complete settlement and release of all
claims arising from or related to the allegations of this class action case
against Defendant, which release includes in its effect all present and
former parent companies, subsidiaries, related or affiliated companies,
shareholders, officers, directors, employees, agents, attorneys, insurers,
and successors and assigns of Defendant, and any individual or entity which
could be jointly liable with Defendant.
9. Counsel for the Settlement Class have conducted a thorough
investigation into the facts of this class action case, including an
extensive review of relevant documents, and have diligently pursued an
investigation of Class Members' claims against Defendant. Based on their own
independent investigation and evaluation, Class Counsel are of the opinion
that the Settlement with Defendant for the consideration and on the terms set
forth in this Stipulation of Settlement is fair, reasonable, and adequate and
is in the best interest of the Settlement Class in light of all known facts
and circumstances, including the risk of significant delay, the risk the
Settlement Class will not be certified by the Court, defenses asserted by
Defendant, and numerous potential appellate issues. Defendant and
Defendant's counsel also agree that the Settlement is fair and in the best
interest of the Settlement Class.
10. The parties agree to cooperate and take all steps necessary and
appropriate to dismiss this case with prejudice.
11. It is understood and agreed that Defendant's maximum total
liability under this Settlement shall not exceed the sum of Six hundred and
Fifty thousand Dollars ($650,000.00).
TERMS OF SETTLEMENT
12. NOW THEREFORE, in consideration of the mutual covenants, promises
and agreements set forth herein, the parties agree, subject to the Court's
approval, as follows:
a. It is agreed by and among Plaintiffs and Defendant that
this case and any claims, damages, or causes of action arising out of the
disputes which are the subject of this case, be settled and compromised as
between the Settlement Class and Defendant, subject to the terms and
conditions set forth in this Stipulation of Settlement and the approval of
the Ventura County Superior Court.
b. Settlement Date: The settlement embodied in this
Stipulation of Settlement shall become effective when all of the following
events have occurred:
(i) this Stipulation of Settlement has been executed by all parties and by
counsel for the Class and Defendant; (ii) the Court has given preliminary
approval to the settlement; (iii) notice has been given to the putative
members of the Class, providing them with an opportunity to participate in
the settlement, or to opt out of the settlement; (iv) the Court has held a
formal fairness hearing and entered a final order and judgment certifying the
Class, dismissing this case with prejudice, and approving this Stipulation of
Settlement; and (v) in the event there are written objections filed prior to
the formal fairness hearing which are not later withdrawn, the later of the
following events: when the period for filing any appeal, writ or other
appellate proceeding opposing the Settlement has elapsed without any appeal,
writ or other appellate proceeding having been filed; or any appeal, writ or
other appellate proceeding opposing the Settlement has been dismissed finally
and conclusively with no right to pursue further remedies or relief; or any
appeal, writ or other appellate proceeding has upheld the Court's final order
with no right to pursue further remedies or relief. In this regard, it is the
intention of the parties that the Settlement shall not become effective until
the Court's order approving the Settlement is completely final, and there is
no further recourse by an appellant or objector who seeks to contest the
Settlement.
c. Settlement Payments: The Net Settlement Fund shall be
calculated by deducting from Defendant's maximum liability of Six Hundred and
Fifty Thousand Dollars ($650,000.00) the sums approved by the Court under
this Settlement for attorneys' fees (not to exceed $195,000.00), attorneys'
costs (not to exceed $5,000.00), the Claims Administrator's fees (estimated
to be $25,000.00), service payments to the Class Representatives (not to
exceed $10,000.00), and Labor Code Sec. 2699 claims to be allocated to Labor
Workforce Development Agency of $20,000.00 (based on a value of $26,666.66).
Settlement awards will be calculated by the Claims Administrator and paid out
of the Net Settlement Fund as set forth below.
i. Settlement Awards to Class Members: Settlement
awards to Class Members will be based on the length of service for defendant
during the class period from April 1, 2000 until August 31, 2004. In
determining the length of service of each Class Member the Claims
Administrator shall rely on defendant's records. Defendant's data will be
presumed to be correct. The Claims Administrator will calculate the total
number of days in service of the defendant for each class member. $45,000 of
the fund will be allocated to Labor Code Sec. 203 penalties and will be
distributed to former employees on an equal basis. In order to qualify for
the award a class member had to be an employee on or after April 1, 2001 and
no longer be employed on August 31, 2004. The remaining settlement fund will
then be allocated on a pro-rata basis based upon days in service. The
parties have allocated 17% to the time shaving issues, 33% to the meal period
issues and 50% to interest and penalties.
ii. Attorneys' Fees and Attorneys' Costs: Subject to
Court approval and/or modification, Defendant further agrees to pay Class
Counsel attorneys' fees and attorneys' costs as set forth in Paragraph 14
below.
iii. Class Representatives: Subject to Court approval,
Defendant further agrees to pay Plaintiffs service payments of not more than
the following amounts for their service as Class Representatives: KENNETH
SCHNEBLY: Ten Thousand Dollars ($10,000.00). As a condition to receiving the
service payments, each Class Representative must execute a General Release,
in a form acceptable to Defendant, of all claims against Defendant.
Defendant will not object to Class Counsel's application for Court Approval
of the service payments to the Class Representatives as defined herein. It
is understood that the service payments are in addition to each Plaintiff's
claim share to which he is entitled along with other claiming Class Members.
Defendant or the Claims Administrator will issue Forms 1099 for the service
payments to the Plaintiffs for their service
as Class Representatives, and the Class Representatives will be responsible
for correctly characterizing this compensation for tax purposes and for
paying any taxes on the amounts received. The Class Representatives agree to
indemnify Defendant for any liability it incurs to any tax authority on
account of the Class Representatives' failure to pay all taxes due on the
service payments. Should the Court approve service payments to the Class
Representatives in amounts less than those set forth above, the difference
between the lesser amounts approved by the Court and the maximum service
payments set forth above shall be added to the Net Settlement Fund.
iv. Claims Administrator: The fees of the Claims
Administrator shall be paid out of the Settlement. The parties estimate the
fees of the Claims Administrator will be Twenty Thousand Dollars $20,000.00).
The Claims Administrator will be Rosenthal & Company LLC or such other claims
administrator as may be mutually agreeable to the parties. The fees of the
Claims Administrator for work done shall be paid regardless of the outcome of
this Settlement.
v. Mailing of Settlement Awards: Defendant or the
Claims Administrator shall cause the settlement awards to be mailed to the
Class Members within approximately twenty-one (21) calendar days following
the Court's final approval of the settlement or, if there is any objection to
the settlement or appeal, within approximately twenty-one (21) calendar days
after the Settlement becomes effective as defined in Paragraph 12 (b).
d. Resolution of Disputes Relating to Number of Days Worked by
a Class Member During the Class Period: If a Class Member, challenges the
accuracy of Defendant's records, and the parties' counsel cannot resolve the
dispute informally, the matter will be referred to the Claims Administrator,
who will expeditiously investigate the facts, and issue a non-appealable
decision as to the number of days the Class Member worked in an hourly
position during the Class Period.
e. Service Payments to Plaintiffs for their Service as Class
Representatives: Defendant will pay the service payments approved by the
Court to the Plaintiffs on the same date Class Counsel are paid their
attorneys' fees, provided the Plaintiffs have met the conditions set forth
above in Paragraph 12 (c) (vi).
f. Right to Rescission: If more than ten percent (10.0%) of
the putative Class Members opt out of the Settlement Class by submitting
valid and timely Request for Exclusion Forms, Defendant shall have the right
in its sole discretion to rescind and void the parties' settlement prior to
final approval by the Court by giving written notice to Class Counsel. If
Defendant exercises its right to rescission, Defendant shall be responsible
for paying the fees incurred by the Claims Administrator.
g. Residue: If for any reason , there should be a residue of
unclaimed funds after all payments provided by this Settlement have been
made, such funds will be paid to a nonprofit organization. Each side will
allocate 50% to a nonprofit of its choosing, subject to the consent of the
other that shall not be unreasonably withheld or, if the parties cannot
agree, to a nonprofit organization selected by the Court.
CLAIMS ADMINISTRATION
13. The parties have agreed to the appointment of Rosenthal & Company
LLC to perform the customary duties of Claims Administrator; provided,
however, the parties shall have the right to select or substitute a different
Claims Administrator by mutual agreement. The Claims Administrator will send
out to the Class Members the Notice of Pendency of Class Action and Proposed
Settlement. The Claims Administrator will independently review Defendant's
records, as to the number of days in service of defendant by the Class
Members and will calculate the amounts due to Class Members in accordance
with this Stipulation of Settlement. The Claims Administrator shall report,
in summary or narrative form, the substance of its findings. The Claims
Administrator shall be granted reasonable access to Defendant's records in
order to perform its duties. At the request of Defendant, and upon receipt of
funds from Defendant, the Claims Administrator will issue and send out
settlement award checks to Class Members, and will issue Forms W-2/1099 in
accordance with this Stipulation of Settlement. All disputes relating to the
Claims Administrator's performance of its duties shall be referred to the
Court, if necessary, which will have continuing jurisdiction over the terms
and conditions of this Stipulation of Settlement until all payments and
obligations contemplated by this Stipulation of Settlement have been fully
carried out.
ATTORNEYS' FEES AND COSTS
14. In consideration of this settlement, and in exchange for the
release of all claims by the Settlement Class, and subject to final approval
and/or modification by the Court, defendant agrees that Class Counsel may be
paid out of the $650,000.00 Settlement Fund attorneys' fees of up to the
total sum of One Hundred and Ninety-Five Thousand Dollars ($195,000.00) and
attorneys' costs and expenses of up to the total sum of Five Thousand Dollars
($5,000.00). Defendant will not object to Class Counsel's application for
attorneys' fees and costs up to these amounts. The amounts set forth above
will cover all work performed and all fees and costs incurred to date, and
all work to be performed and all fees and costs to be incurred in connection
with the approval by the Court of this Stipulation of Settlement, the
administration of the Settlement, and obtaining dismissal with prejudice of
this case. Should Class Counsel request a lesser amount and/or the Court
approve a lesser amount of attorneys' fees and/or attorneys' costs, the
difference between the lesser amount and the maximum amount set forth above
shall be added to the Net Settlement Fund.
15. The attorneys' fees approved by the Court shall be paid to Class
Counsel within approximately twenty-one (21) calendar days following the
Court's final approval of the settlement or, if there is any objection to the
Settlement, within approximately twenty-one (21) calendar days after the
settlement becomes effective as defined in Paragraph 12(b).
NOTICE TO THE PLAINTIFF CLASS
16. A Notice of Pendency of Class Action, Proposed Settlement and
Hearing Date for Court Approval ("Notice of Pendency of Class Action and
Proposed Settlement") in approximately the form attached hereto as Exhibit
"A," and as approved by the Court, shall be sent by the Claims Administrator
to the Class Members, by first class mail. Any returned envelopes from this
mailing with forwarding addresses will be utilized by the Claims
Administrator to forward the Notice to the Class Members.
a. Within five (5) business days following preliminary
approval of this Settlement by the Court, Defendant shall provide to the
Claims Administrator a database, which will list for each Class Member the
Class Member's name, last known address, social security number, and number
of days worked during the Class Period. This database shall be based on
Defendant's payroll, benefits, and other business records and in a format
acceptable to the Claims Administrator. Defendant agrees to consult with the
Claims Administrator prior to the production date to ensure that the format
will be acceptable to the Claims Administrator. The Claims Administrator will
run a check of the Class Members' addresses against those on file with the
U.S. Postal Service's National Change of Address List; this check will be
performed only once per Class Member by the Claims Administrator. Within ten
(10) days of receipt of the database from Defendant, the Claims Administrator
will mail the Notice, Claim Form and Exclusion Form to the Class Members.
b. Notices and Claim Forms returned to the Claims
Administrator as non-delivered during the forty-five (45) day period for the
filing of claims shall be resent to the forwarding address, if any, on the
returned envelope. A returned Notice and Claim Form will be forwarded only
once per Class Member by the Claims Administrator. If there is no forwarding
address, the Claims Administrator may do a computer search for a new address
using the Class Member's social security number; this search will be
performed only once per Class Member by the Claims Administrator. Upon
completion of these steps by the Claims Administrator, Defendant shall be
deemed to have satisfied its obligation to provide the Notice of Pendency of
Class Action and Settlement to the affected member of the Settlement Class.
The affected member of the Settlement Class shall remain a member of the
Settlement Class and shall be bound by all the terms of the Stipulation of
Settlement and the Court's Order and Final Judgment.
c. Class Counsel shall provide to the Court, at least five (5)
days prior to the final fairness hearing, a declaration by the Claims
Administrator of due diligence and proof of mailing with regard to the
mailing of the Notice of Pendency of Class Action and Proposed Settlement.
RELEASE BY THE CLASS
17. Upon the final approval by the Court of this Stipulation of
Settlement, and except as to such rights or claims as may be created by this
Stipulation of Settlement, the Settlement Class and each member of the Class
who has not submitted a valid Request for Exclusion, fully releases and
discharges Defendant, its present and former parent companies, subsidiaries,
related or affiliated companies, shareholders, officers, directors,
employees, agents, attorneys, insurers, successors and assigns, and any
individual or entity which could be jointly liable with Defendant, from any
and all claims, debts, liabilities, demands, obligations, guarantees, costs,
expenses, attorneys' fees, damages, action or causes of action which relate
to wage and hour claims including the failure of Defendant to provide Class
Members meal periods and rest breaks as required by California law, the
failure to pay compensation or penalties under the California Labor Code
including without limitation Sec. 203, 226.7 and 558, the failure to pay
compensation or penalties for split shifts, reporting time pay, uniforms,
overtime, and any other wage and hour violations, and any other claims
whatsoever alleged in this case, including without limitation all claims for
restitution and other equitable relief, liquidated damages, punitive damages,
waiting time penalties, penalties of any nature or type under the California
Labor Code and those relating to wage and hour law, whatsoever, other
compensation or benefits, including 401K benefits or matching benefits,
retirement or deferred compensation benefits, interest, attorneys' fees and
costs, whether known or unknown, from April 1, 2004 up to and including the
date of final approval of this Settlement, arising from employment by
Defendant within California. In addition, the Settlement Class and each
member of the Class who has not submitted a valid Request for Exclusion
forever agrees that it, he or she shall not institute, nor accept back pay,
penalties or compensation for failure to provide meal periods for claims
relating to rounding practices and/or penalties under the Labor Code
including without limitation penalties under Labor Code Sec. 203, 226.7 and
558, 2699 attorneys' fees and costs, or any other relief from any other suit,
class or collective action, administrative claim or other claim of any sort
or nature whatsoever against Defendant, for any period from April 1, 2000 up
to and including the date of final approval of this settlement, arising from
employment by Defendant within California.
DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL
18. The parties shall promptly submit this Stipulation of Settlement
to the Ventura County Superior Court in support of Plaintiffs' Motion for
Preliminary Approval and determination by the Court as to its fairness,
adequacy, and reasonableness. Promptly upon execution of this Stipulation of
Settlement, the parties shall apply to the Court for the entry of an order
substantially in the following form:
a. Scheduling a fairness hearing on the question of whether the
proposed settlement, including payment of attorneys' fees and costs, and the
Class Representatives' service payments, should be finally approved as fair,
reasonable and adequate as to the members of the Settlement Class;
b. Certifying a Settlement Class;
c. Approving as to form and content the proposed Notice of
Pendency of Class Action and Proposed Settlement;
d. Directing the mailing of the Notice of Pendency of Class
Action and Proposed Settlement, Claim Form and Request for Exclusion Form by
first class mail to the Class Members;
e. Preliminarily approving the settlement subject only to the
objections of Class Members and final review by the Court; and
f. Enjoining Plaintiffs and all Class Members from filing or
prosecuting any claims, suits or administrative proceedings (including filing
claims with the California Division of Labor Standards Enforcement) regarding
claims released by the Settlement unless and until such Class Members have
filed valid Exclusion Forms with the Claims Administrator and the time for
filing claims with the Claims Administrator has elapsed.
DUTIES OF THE PARTIES FOLLOWING FINAL COURT APPROVAL
19. Following final approval by the Court of the settlement provided
for in this Stipulation of Settlement, Counsel for the Class will submit a
proposed final order and judgment:
a. Approving the Settlement, adjudging the terms thereof to be
fair, reasonable and adequate, and directing consummation of its terms and
provisions;
b. Approving Class Counsel's application for an award of
attorneys' fees and costs;
c. Approving the service payments to the Class
Representatives; and
d. Dismissing this action on the merits and with prejudice and
permanently barring and enjoining all members of the Settlement Class from
prosecuting against Defendant, its present or former parent companies,
subsidiaries, related or affiliated companies, shareholders, officers,
directors, employees, agents, attorneys, insurers, and successors and
assigns, and any individual or entity which could be jointly liable with
Defendant, any individual or class or collective claims released herein
pursuant to paragraphs 19 and 20 above, upon satisfaction of all payments and
obligations hereunder.
PARTIES' AUTHORITY
20. The signatories hereto hereby represent that they are fully
authorized to enter into this Stipulation of Settlement and bind the parties
hereto to the terms and conditions thereof.
MUTUAL FULL COOPERATION
21. The parties agree to fully cooperate with each other to accomplish
the terms of this Stipulation of Settlement, including but not limited to,
execution of such documents and taking such other action as reasonably may be
necessary to implement the terms of this Stipulation of Settlement. The
parties to this Stipulation of Settlement shall use their best efforts,
including all efforts contemplated by this Stipulation of Settlement and any
other efforts that may become necessary by order of the Court, or otherwise,
to effectuate this Stipulation of Settlement and the terms set forth herein.
As soon as practicable after execution of this Stipulation of Settlement,
Class Counsel shall, with the assistance and cooperation of Defendant and its
counsel, take all necessary steps to secure the Court's final approval of
this Stipulation of Settlement.
22. Defendant and its counsel agree that they will not attempt to
encourage or discourage Class Members from filing Claim Forms or Exclusion
Forms. Plaintiffs and their counsel agree they will not attempt to encourage
or discourage Class Members from filing Claim Forms or Exclusion Forms.
NO PRIOR ASSIGNMENTS
23. The parties and their counsel represent, covenant, and warrant
that they have not directly or indirectly, assigned, transferred, encumbered,
or purported to assign, transfer, or encumber to any person or entity any
portion of any liability, claim, demand, action, cause of action or rights
herein released and discharged except as set forth herein.
NO ADMISSION
24. Nothing contained herein, nor the consummation of this Stipulation
of Settlement, is to be construed or deemed an admission of liability,
culpability, negligence, or wrongdoing on the part of Defendant. Each of the
parties hereto has entered into this Stipulation of Settlement solely with
the intention to avoid further disputes and litigation with the attendant
inconvenience and expenses.
ENFORCEMENT ACTIONS
25. In the event that one or more of the parties to this Stipulation
of Settlement institutes any legal action or other proceeding against any
other party or parties to enforce the provisions of this Stipulation of
Settlement or to declare rights and/or obligations under this Stipulation of
Settlement, the successful party or parties shall be entitled to recover from
the unsuccessful party or parties reasonable attorneys' fees and costs,
including expert witness fees incurred in connection with any enforcement
actions.
NOTICES
26. Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and shall
be deemed to have been duly given as of the third business day after mailing
by United States registered or certified mail, return receipt requested,
addressed as follows:
TO PLAINTIFFS AND THE SETTLEMENT CLASS: TO THE DEFENDANT:
Eric B. Kingsley Joel Mark
Kingsley & Kingsley, APC Nordman, Cormany, Hair &
Compton
16133 Ventura Blvd., Suite 700 1000 Town Center Drive, 6th
Floor
Encino, California 91436 Oxnard, CA 93036
CONSTRUCTION
27. The parties hereto agree that the terms and conditions of this
Stipulation of Settlement are the result of lengthy, intensive arms-length
negotiations between the parties, and this Stipulation of Settlement shall
not be construed in favor of or against any party by reason of the extent to
which any party or his, her or its counsel participated in the drafting of
this Stipulation of Settlement.
CAPTIONS AND INTERPRETATIONS
28. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend,
or describe the scope of this Stipulation of Settlement or any provision
hereof. Each term of this Stipulation of Settlement is contractual and not
merely a recital.
MODIFICATION
29. This Stipulation of Settlement may not be changed, altered, or
modified, except in writing and signed by the parties hereto, and approved by
the Court. This Stipulation of Settlement may not be discharged except by
performance in accordance with its terms or by a writing signed by the
parties hereto.
INTEGRATION CLAUSE
30. This Stipulation of Settlement contains the entire agreement
between the parties relating to the settlement and transaction contemplated
hereby, and all prior or contemporaneous agreements, understandings,
representations, and statements, whether oral or written and whether by a
party or such party's legal counsel, are merged herein. No rights hereunder
may be waived except in writing.
BINDING ON ASSIGNS
31. This Stipulation of Settlement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, trustees,
executors, administrators, successors and assigns.
CLASS COUNSEL SIGNATORIES
32. It is agreed that because the members of the Class are so
numerous, it is impossible or impractical to have each member of the Class
execute this Stipulation of Settlement. The Notice of Pendency of Class
Action and Proposed Settlement, Exhibit "A" hereto, will advise all Class
Members of the binding nature of the release, and the release shall have the
same force and effect as if this Stipulation of Settlement were executed by
each member of the Class.
COUNTERPARTS
33. This Stipulation of Settlement may be executed in counterparts,
and when each party has signed and delivered at least one such counterpart,
each counterpart shall be deemed an original, and, when taken together with
other signed counterparts, shall constitute one Stipulation of Settlement,
which shall be binding upon and effective as to all parties.
CLASS REPRESENTATIVE
DATED: 9/17/04 PLAINTIFF KENNETH SCHNEBLY
By: /s/KENNETH SCHNEBLY
KENNETH SCHNEBLY
CLASS COUNSEL
DATED: 9/29/04 KINGSLEY & KINGSLEY
By: /s/ ERIC B. KINGSLEY
ERIC B. KINGSLEY
Attorneys for Plaintiffs
and Class Counsel
DEFENDANT
DATED: 9/27/04 CALIFORNIA AMPLIFIER
By:/s/ Fred Sturm
Its:President and Chief Executive
Officer
DEFENDANT'S COUNSEL
DATED: 9/23/04 NORDMAN, CORMANY, HAIR & COMPTON
By:/s/ Joel Mark
JOEL MARK
Attorneys for Defendant