Blaszkowski et al v. Mars Inc. et al

Filing 420

NOTICE by All Plaintiffs in Support of Motion for Stay (Attachments: # 1 Affidavit Declaration of Catherine J. MacIvor, # 2 Exhibit "A" to Declaration, # 3 Exhibit Exhibit "B" to Declaration)(MacIvor, Catherine)

Blaszkowski et al v. Mars Inc. et al

D

Doc. 420 Att.

SETTLEMENT AGREEMENT This Settlement Agreement is made and entered as of May 22, 2008, subject to approval of the MDL Court and Canadian Courts as defined below, among and between Plaintiffs (defined below as the "Class Representatives"), for themselves and on behalf of the putative Settlement Class as defined below and Menu Foods Acquisition Inc., Menu Foods Corporation, Menu Foods Finance (Poland) Sp. Zo. o., Menu Foods GenPar Limited, Menu Foods Holdings, Inc., Menu Foods Income Fund, Menu Foods Limited, Menu Foods Limited Partnership, Menu Foods Midwest Corporation, Menu Foods Operating Limited Partnership, Menu Foods South Dakota, Inc., Menu Foods, Inc., Menu Foods Operating Trust, Menu Foods Investments Ltd., Menu Foods Spain Holding, S.L., 1446431 Ontario Limited, 1446432 Ontario Limited, 3036241 Nova Scotia Company, Retex Management Associates Limited, Alexander R. Aird, Eric A. Demirian, Thomas A. Di Giacomo, Robert W. Luba, Serge K. Darkazanli, Nest lé Purina PetCare Company, Wal-Mart Stores, Inc., Wal-Mart Canada Corp., PETCO Animal Supplies, Inc., PETCO Animal Supplies Stores, Inc., Sobeys Inc., Jace Holdings, PetSmart, Inc., PETM Canada Corporation, PetSmart Charities, Inc., PetSmart Charities of Canada, Inc., Kroger Co., Kroger Supermarkets, Inc., Loblaw Companies Limited, Loblaws Inc., The Scoular Company, Target Corporation, Hill's Pet Nutrition, Inc., The Iams Company, Del Monte Foods, Co., Mars, Incorporated, Nutro Products, Inc., Royal Canin Canada Company, Royal Canin, U.S.A., Inc., ChemNutra Inc., ChemNutra LLC, Wilbur-Ellis Company, Pet Valu Canada Inc., Pet Valu, Inc., Costco Wholesale Canada Ltd. and Costco Wholesale Corporation, (collectively, "Parties"). RECITALS WHEREAS, all defined terms used herein shall have the meaning set out in Section I below;
Exhibit "A"

ockets.Justia.com

WHEREAS, between March 16, 2007 and the present, certain Defendants recalled wheat gluten and/or rice protein concentrate supplied for the manufacture of pet food and/or treat products, as well as pet food and/or treats that may have been manufactured with recalled wheat gluten and/or rice protein concentrate for sale to consumers in the United States and in Canada; WHEREAS, in connection with those recalls, individuals have brought individual and putative class Actions in local, state and federal courts in the United States, and in the Canadian Courts; WHEREAS, in the Actions, individuals have asserted various claims against Defendants based on their purchase and/or their pets' consumption of Recalled Pet Food Products (defined in § I.PP below), including that Defendants are strictly liable for alleged damages, breach of warranties, negligence, unjust enrichment, and violation of statutes prohibiting unfair or deceptive acts or practices, violation of consumer protection acts, and other theories; WHEREAS, in the Actions, individuals have claimed they sustained damages and other injuries as a result of Defendants' actions, and have sought damages and compensation, including the cost of purchasing Recalled Pet Food Products, veterinary expenses, autopsy, necropsy and burial expenses for their pets, statutory damages under consumer protection or unfair competition statutes, emotional distress, medical monitoring and punitive damages; WHEREAS, Defendants deny allegations of unlawful or improper conduct, damages, or other injuries; WHEREAS, on June 19, 2007, the Judicial Panel on Multidistrict Litigation transferred thirteen actions filed in various federal courts in the United States to In re Pet Food Products Liability Litigation, MDL No. 1850, in the United States District Court for the District of New Jersey (the "MDL") for coordinated pre-trial proceedings, and thereafter transferred approximately 100 additional actions to the MDL; 2

WHEREAS, proceedings in the MDL have been stayed to allow the Parties to engage in mediation efforts; WHEREAS, on September 26, 2007, the MDL Court issued an order appointing Amy Schulman of DLA Piper LLP; Craig Hoover of Hogan & Hartson L.L.P.; D. Jeffrey Ireland of Faruki Ireland & Cox P.L.L.; and Mark C. Goodman of Squire, Sanders & Dempsey L.L.P. as Defendants' Liaison Counsel; WHEREAS, on December 18, 2007, the MDL Court issued an order appointing Sherrie Savett of Berger & Montague, P.C.; Kenneth A. Wexler of Wexler Toriseva Wallace LLP; Steve W. Berman of Hagens Berman Sobol Shapiro LLP; William Audet of Audet & Partners, LLP; Stuart Davidson of Coughlin Stoia Geller Rudman & Robbins LLP; and Scott A. Kamber of KamberEdelson, LLC as Plaintiffs' Lead Counsel in the MDL; WHEREAS, Plaintiffs' Lead Counsel in the MDL is and has been authorized to, inter alia, conduct settlement negotiations with counsel for the Defendants, execute necessary settlement documentation, and present any formalized settlement to the MDL Court on behalf of Plaintiffs and the putative Settlement Class; WHEREAS, proposed class proceedings have been commenced in the following Canadian provinces: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland; WHEREAS, carriage of the proposed class proceeding commenced in British Columbia has been granted by court order to the Joel v. Menu Foods Genpar Limited and others action commenced by Branch MacMaster, Barristers & Solicitors; WHEREAS, carriage of the proposed class proceedings commenced in Ontario has been granted by court order to the Whiting and others v. Menu Foods Operating Limited Partnership

3

and others action commenced by Sutts, Strosberg LLP Rochon Genova LLP, Falconer Charney LLP and Himelfarb Proszanksi LLP; WHEREAS all proposed class proceedings in the province of Quebec have been stayed, except for the class proceeding filed by Chantal Des Coteaux in Court File No. 500-06-00396073 which was filed by Heenan Blaikie LLP, and an appeal by the Merchant Law Group of the order staying all other proposed class proceedings in Quebec was dismissed on March 14, 2008; WHEREAS, two proposed class proceedings have been commenced in the province of Alberta by the firms Merchant Law Group and Docken & Company LLP and no proceedings have been commenced to determine which firm shall have carriage of the proposed class proceedings in Alberta; WHEREAS, two proposed class proceedings have been commenced in the province of Manitoba by the firms Merchant Law Group and Pollock & Company LLP and no proceedings have been commenced to determine which firm shall have carriage of the proposed class proceedings in Manitoba; WHEREAS, Anthony Merchant Q.C. of the Merchant Law Group is counsel for the proposed representative plaintiff in the proposed class proceeding that has been commenced in Saskatchewan; WHEREAS, Howard Spalding Q.C. of Barry Spalding LLP is counsel for the proposed representative plaintiff in the proposed class proceeding commenced in New Brunswick; WHEREAS, Raymond Wagner of Wagners LLP is counsel for the proposed representative plaintiff in the class proceeding commenced in Nova Scotia; WHEREAS, Anthony Merchant and Gregory Pincott of the Merchant Law Group are counsel for the proposed representative plaintiff in the class proceeding commenced in Newfoundland; 4

WHEREAS, Plaintiffs' Lead Counsel, Counsel for Canadian Plaintiffs and counsel for Defendants have engaged in arm's length negotiations before an independent mediator to conclude this cross-border settlement of claims related to the Recalled Pet Food Products arising in the United States and in Canada; WHEREAS, the Parties recognize that the outcome of the Actions is uncertain, and that a final resolution through the litigation process would require several years of protracted adversarial litigation and appeals; substantial risk and expense; the distraction and diversion of the Defendants' personnel and resources; and the expense of any possible future litigation raising similar or duplicative claims; Plaintiffs' Lead Counsel, the Class Representatives in the MDL, and Counsel for Canadian Plaintiffs have concluded, after inquiry and investigation of the facts, the Settlement is fair, reasonable, adequate and in the best interests of the Class; and the Parties and their counsel have agreed to resolve the Actions as a class action settlement according to the terms of this Settlement Agreement; WHEREAS, Defendants deny wrongdoing and liability, but have concluded that they will enter into this Settlement Agreement, among other reasons, in order to avoid the further expense, inconvenience, burden, distractions, uncertainty, and risk of litigation and any other present or future litigation arising out of the facts that gave rise to the litigation in the Actions; WHEREAS, the Parties acknowledge and agree that the Parties' respective claims in and defenses to the Actions were made in good faith and in accordance with Rule 11 of the Federal Rules of Civil Procedure, and all comparable state and federal laws and rules of professional responsibility. The Final Approval Order and Judgment will contain a statement that during the course of the litigation, the Parties and their respective counsel at all times acted in good faith. NOW, THEREFORE, without (a) any admission or concession on the part of the Plaintiffs of the lack of merit of the Actions whatsoever, or (b) any admissio n or concession of 5

liabilit y or wrongdoing or the lack of merit of any defense whatsoever by any of the Defendants, it is hereby stipulated and agreed by the undersigned, on behalf of Plaintiffs, the Settlement Class, and the Defendants, that all Claims be settled, compromised, released and dismissed on the merits and with prejudice, subject to the MDL Court's approval as required by Federal Rule of Civil Procedure 23 and the approval of the Canadian Courts on the following terms and conditions: I. DEFINITIONS

Under this Settlement Agreement, the following terms shall have the meanings set forth below: A. B. "Act ions" means the U.S. Actions and Canadian Actions. "Agreement" means this Settlement Agreement, inclusive of all exhibits and the

addendum hereto. C. "Approval Hearings" means the hearings brought for the MDL Court's and the

Canadian Courts' approvals of the settlement provided for in this Settlement Agreement. D. "Approval Orders" means orders by the MDL Court or the Canadian Courts

approving or furthering approval of this Settlement Agreement. E. "CAFA Notice" means the notice of this settlement to the appropriate federal and

state officials in the United States, as provided by the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, and as further described in Section IIB. F. G. "Canadian Actions" means the actions listed on Exhibit 1. "Canadian Approval Hearings" means the hearings in each of the Canadian

Courts to obtain Final Approval Order and Judgments. H. "Canadian Courts" means the courts in Canada where the Canadian Actions have

been commenced. 6

I.

"Canadian Notice Date" shall have the meaning assigned to it in § II.E.2 of the

Settlement Agreement. J. "Claim" and "Claims" mean all claims, demands, actions, suits, causes of action,

allegations of wrongdoing, and liabilities by a Settlement Class Member against a Released Entity in the Pet Food Recall Litigation. K. "Claims Administrator" means Heffler, Radetich & Saitta L.L.P., which shall be

used for administration of claims by Settlement Class Members in the United States and in Canada. L. Agreement. M. "Claim Form" means the Court approved form to be submitted by Settlement "Claims Deadline" shall have the meaning assigned to it in § IV.E.4 of the

Class Members to the Claims Administrator in the form of Exhibit 2. N. O. "Class Member" means a person or entity belonging to the Settlement Class. "Class Notice" means the forms of notice, attached hereto as Exhibit 3A and 3B

agreed to by the Parties, or such other form as may be approved by the MDL Court or the Canadian Courts, as applicable, which, inter alia, informs the Class Members of: (i) the certification of the Actions for settlement purposes; (ii) the dates and locations of the Approval Hearings; (iii) the elements of the Settlement Agreement; and (iv) the process by which Class Members may Opt Out of the Settlement Class or object to the Settlement Agreement; and (v) the process by which Settlement Class Members may apply to obtain compensation from the Settlement Fund. P. "Class Representatives" means the individual claimants in the MDL and in the

Canadian Actions who seek to represent the Settlement Class for purposes of this Settlement Agreement, specifically 7

a.

United States: Mark Cohen, Mona Cohen, Shirley Sexton, Steve Freeman, Christina Troiano, Michelle Suggett, Don James, Nancy Guthrie, Michelle Adams, Dawn Majerczyk and Janice Bonier; Alberta: James O'Keefe, Bobby-Joe Rovensky and Charmaine McBain; Brit ish Columbia: Vicki Joel; Manitoba: Sharon Lynn Martin, Karen Harder, Barb Silva and Bobby-Joe Rovensky; New Brunswick: Georgette Fillmore; Newfoundland: Glenn M. Esau; Nova Scotia: Jackie Doucette; Ontario: Amanda Whiting, Gillian Alexander, Dina Des Roches, Hayley Boam, Robert Millette, Diana Krstic, Debbie Mullen and Karen Dayman; Quebec: Chantal Des Coteaux; and Saskatchewan: Charmaine McBain, Kate Ibbetson and Angela Kaye.

b. c. d. e. f. g. h. i. j. Q.

"Consumer Food Purchase Claims" means claims solely for reimbursement of

the costs associated with the purchase of a Recalled Pet Food Product by a Settlement Class Member who has not been reimbursed for such costs to date, including through return or exchange of the Recalled Pet Food Products. Consumer Food Purchase Claims do not include Injury Claims, Deceased Animal Claims, Healthy Screening Claims, or other claims for economic damage. R. "Counsel for Canadian Plaintiffs" means Ward Branch and Luciana Brasil of

Branch MacMaster; Darren Williams, Anthony Merchant, Evatt Merchant, Victor Olson, Jane Ann Summers, Owen Falquero and Gregory Pincott of Merchant Law; Andrew Bond of Docken & Company; Harvey Pollock of Pollock & Company; Harvey Strosberg of Sutts, Strosberg; Joel Rochon of Rochon Genova; Ted Charney of Falconer Charney; David Joanisse of Heenan Blaikie; Pierre Sylvestre and Samy Elnemr of Sylvestre Fafard Painchaud; Howard 8

Spalding of Barry Spalding; and Raymond Wagner of Wagners. S. "Deceased Animal Claims" means claims for damages by Settlement Class

Members whose pets used or consumed a Recalled Pet Food Product and allegedly died as a result of acute kidney or renal failure (exhibited by symptoms including vomiting, lethargy, decreased appetite, increased urination, and/or increased water intake) related to such use or consumption, or as a result of treatment for acute kidney or renal failure (exhibited by symptoms including vomiting, lethargy, decreased appetite, increased urination, and/or increased water intake). T. "Defendants" means Menu Foods GenPar Limited, Menu Foods Holdings, Inc.,

Menu Foods Income Fund, Menu Foods Limited, Menu Foods Operating Limited Partnership, Menu Foods Midwest Corporation, Menu Foods Limited Partnership, Menu Foods South Dakota, Inc., Menu Foods, Inc., Menu Foods Acquisition Inc., Menu Foods Operating Trust, Menu Foods Corporation, Menu Foods Investments Ltd., Alexander R. Aird, Eric A. Demirian, Thomas A. Di Giacomo, Robert W. Luba, Serge K. Darkazanli, 3036241 Nova Scotia Company, 1446431 Ontario Ltd., 144632 Ontario Ltd., Retex Management Associates Limited, Nestlé Purina PetCare Company, Nestlé USA, Inc., Wal-Mart Stores, Wal-Mart Canada Corp., PETCO Animal Supplies, Inc., PETCO Animal Supplies Stores, Inc., Kroger Co., Kroger Supermarkets, Inc., Sunshine Mills, Inc.; PetSmart, Inc., Target Corporation, Hill's Pet Nutrition, Inc., The Iams Company, The Procter & Gamble Company, Colgate-Palmolive Company, Del Monte Foods, Co., Mars, Incorporated, Nutro Products, Inc., Royal Canin Canada Company, Royal Canin, U.S.A., Inc., ChemNutra Inc., ChemNutra LLC, Wilbur-Ellis Company, Overwaitea Food Group Ltd., Overwaitea Food & Drugs Ltd., Overwaitea Foods Limited, Jace Holdings Ltd., Canada Safeway Limited, Safeway Holdings (Alberta) Ltd., Costco Wholesale Canada Ltd., Costco Wholesale Corporation, Pet Valu Canada Inc., Pet 9

Valu, Inc., Loblaw Companies Limited, Loblaws Inc., and Sobeys, Inc. The inclusion of any entity in the foregoing list of Defendants shall not constitute a waiver of any defenses any such entity has as to improper service or lack of personal jurisdiction in the event the Settlement Agreement is not granted Final Approval in the MDL Court and Canadian Courts, is not upheld on appeal, or is otherwise terminated for any reason before the Effective Date,. U. "Defendants' Liaison Counsel" means Amy W. Schulman of DLA Piper US

LLP; Craig A. Hoover of Hogan & Hartson L.L.P.; D. Jeffrey Ireland of Faruki Ireland & Cox P.L.L.; and Mark C. Goodman of Squire, Sanders & Dempsey L.L.P., who were appointed to serve as Defendants' liaison counsel in the MDL by the MDL Court. V. W. Court. X. "Final Approval Order and Judgment" shall have the meaning assigned in "Effect ive Date" shall have the meaning assigned to that term in Section II.H.3. "Final Approval Hearing Date" shall mean the hearing date set by the MDL

§ II.H.1 of the Settlement Agreement. Y. "Healthy Screening Claims" means claims for the costs incurred by a Settlement

Class Member whose animal(s) used or consumed a Recalled Pet Food Product and who took his/her animal(s) to a veterinarian for screening or testing because of the use or consumption of a Recalled Pet Food Product and the screening or testing proved negative. Z. "Historic Payments" means those amounts already paid by certain of the

Defendants, Released Entities and/or their insurers in settlement or reimbursement of claims for certain injury, death or screening expenses associated with a pet's consumption of Recalled Pet Food Products, which Defendants represent to equal at least $8,000,000. AA. "Injury Claims" means claims for damages allegedly incurred by Settlement

Class Members whose pets used or consumed any Recalled Pet Food Product and were treated 10

for symptoms or injuries of acute renal or kidney failure (exhibited by symptoms including vomiting, lethargy, decreased appetite, increased urination, and/or increased water intake) related to the use or consumption of a Recalled Pet Food Product, but which pets did not die. BB. "Lum Class" means the class certified and preliminarily approved by the Circuit

Court of Hawaii in the action Lum v. Menu Foods, Inc., Menu Foods Income Fund, and Menu Foods Holdings, Inc., formerly Ortiz v. Menu Foods, Inc., Menu Foods Income Fund, and Menu Foods Holdings, Inc., in the Circuit Court for the State of Hawai'i, Civil No. 07-1-084905 (EEH), comprised of all residents of the State of Hawai'i who purchased pet food in the State of Hawai'i that was manufactured by Menu Foods on or between November 8, 2006 and March 7, 2007 and that was recalled on or between March 16, 2007 and the present, excluding (i) Menu Foods, Inc., Menu Foods Income Fund, and Menu Foods Holdings, Inc (collectively, the "Menu Foods Lum Defendants"); (ii) the Menu Foods Lum Defendants' subsidiaries, parents, and affiliates, including all directors, officers, and employees thereof; (iii) members of the immediate family of any of the foregoing, if natural persons; (iv) the legal representatives, heirs, successors, and assigns of any of the foregoing; (v) any person in which any of the foregoing has a controlling interest; and (vi) all "Deceased Animal Claims" and/or "Injury Claims" and claims of whatever nature asserted by any person with a "Deceased Animal Claim and/or "Injury Claim," including but not limited to the persons and claims in Sylvester et al v. Menu Foods, Inc. et al., in the Circuit Court for the State of Hawai'i, Civil No. 07-1-0848-05 (as the terms "Deceased Animal Claims" and "Injury Claims" are defined in the Lum Settlement Agreement). CC. "MDL Court" means the court administering the proceeding of In re Pet Food

Products Liability Litigation, MDL No. 1850, in the United States District Court for the District of New Jersey, pending before the Honorable Noel L. Hillman. 11

DD.

"Notices" means the Class Notice, the Second Canadian Notice and any other

notice relating to the settlement which may be required by the MDL Court or the Canadian Courts. EE. "Objection Date" means the date by which Class Members must file written

notice of any objection or opposition to the Settlement Agreement or any part or provision thereof in the MDL Court or in the appropriate Canadian Court(s) as applicable. Notice of such objection shall be served pursuant to Section II.G. FF. "Ontario Action Costs" means the amount of up to $125,000 (USD), to be paid

by the Defendants directly to Counsel for the Canadian Plaintiffs for costs incurred in the Ontario Actions, subject to the approval of the MDL Court and Canadian Courts, and which costs will not be paid from the Settlement Fund. GG. HH. Agreement. II. JJ. "Part ies" shall have the meaning assigned to it in the preamble of the Agreement. "Person" or "Persons" means all persons and entities (including without "Opt Out" shall have the meaning assigned to it §II.F.1 of the Agreement. "Opt Out Deadline" shall have the meaning assigned to it in § II.F.2 of the

limitation natural persons, firms, corporations, limited liability companies, joint ventures, joint stock companies, unincorporated organizations, agencies, bodies, associations, partnerships, limited liability partnerships, trusts, and their predecessors, successors, administrators, executors, heirs and assigns). KK. LL. "Pet Food Recall Litigation" means the U.S. Actions and the Canadian Actions. "Plaint iffs' Lead Counsel" means Sherrie Savett of Berger & Montague, P.C.;

Kenneth A. Wexler of Wexler Toriseva Wallace LLP; Steve W. Berman of Hagens Berman Sobol Shapiro LLP; William Audet of Audet & Partners, LLP; Stuart Davidson of Coughlin 12

Stoia Geller Rudman & Robbins LLP; and Scott A. Kamber of KamberEdelson, LLC, who were appointed as Plaintiffs' Lead Counsel by the MDL Court. MM. "Preliminary Approval" means the entry by the MDL Court of the Preliminary Approval Order. NN. "Preliminary Approval Order" means the order to be granted by the MDL Court

in substantially the same form as Exhibit 4 hereto preliminarily approving the Settlement Agreement, certifying the Settlement Class, and approving the Class Notice, in substantially the same form as Exhibit 3A, 3B, 3C and 3D. OO. "Recall" means the recall by or for any Defendant of Recalled Pet Food Products

between March 16, 2007 and the present. PP. "Recalled Pet Food Product(s)" means any pet food product and/or treat products

or any ingredient thereof that were recalled by any Released Entity between March 16, 2007, and the present because of allegedly contaminated wheat gluten and/or rice protein concentrate, and purchased, obtained or used by, or were made available to, or intended to be purchased or obtained by Class Members in the United States or Canada, and are the subject of the Pet Food Recall Litigation. QQ. RR. "Released Claims" are defined in Section III.A below. "Released Entities" means Defendants, and any and all entities and individuals

that are alleged to have handled, distributed, purchased for resale and/or redistribution, supplied, manufactured and/or sold or offered for sale Recalled Pet Food Products, including 1446431 Ontario Limited; 1446432 Ontario Limited; 3036241 Nova Scotia Company; A&P Company; Agras; Ahold; Albertsons, Inc.; Albertsons, LLC; Aldi; American Nutrition, Inc.; Amway Canada / Quixtar; ANI; Associated Wholesale Grocers; Blue Buffalo Company; Bozzuto's; Bradley Caldwell; Canada Safeway Limited; Canada Safeway, Ltd.; Can-Pet; 13

ChemNutra Inc.; ChemNutra LLC; Chenango Valley Pet Foods; Colgate-Palmolive Company; Companion Brands; Co-Op; Costco Wholesale Canada Ltd.; Costco Who lesale Corporation; Del Monte Corporation; Del Monte Foods Company; Del Monte Foods, Inc.; Demoulas; Diamond Pet Foods; Doane Pet Care Enterprises; Drs. Foster & Smith; Eukanuba; Food Lion; Foodtown; Fry's Food Centers; Giant Eagle; Giant Tiger Stores; H.E. Butt; Hannaford; Harris Teeter; Hill's Pet Nutrition, Inc.; Hill's Pet Nutrition Canada, Inc.; Hill's Pet Nutrition Sales, Inc.; Hy-Vee; The Iams Company; Ingles; Jace Holdings Ltd.; JE Mondou; Key Foods; Kmart; The Kroger Co., The Kroger Supermarkets, Inc.; Dillon Companies, Inc.; Fred Meyer, Inc.; Food 4 Less Holdings, Inc.; LCP Products; Loblaw Companies Limited; Loblaws Inc.; Longo's; Lortscher Agribusiness, Inc.; Mars Food US, LLC; Mars, Incorporated; Mars Petcare US, Inc.; Mars Snackfood US, LLC; Marsh; Masterfoods U.S.A. ; Meijer, Inc. ; Menu Foods Acquisition Inc.; Menu Foods Corporation; Menu Foods Finance (Poland) Sp. Zo. o.; Menu Foods GenPar Limited; Menu Foods Holdings, Inc.; Menu Foods Income Fund; Menu Foods Investments Ltd.; Menu Foods Limit ed; Menu Foods Limited Partnership; Menu Foods Midwest Corporation; Menu Foods Operating Limited Partnership; Menu Foods Operating Partnership; Menu Foods Operating Trust; Menu Foods South Dakota, Inc.; Menu Foods Spain Holding, S.L.; Menu Foods, Inc.; Metro / A&P; Metro-Richelieu; MFL International Capital Management Hungary Limited Liability Company; Mills Fleet; Nash Finch; National Grocers; Natural Balance Pet Foods, Inc.; Natural Life; Nestlé Holdings, Inc.; Nestlé Canada, Inc.; Nestlé Purina PetCare Company; Nestlé S.A.; Nestlé USA, Inc.; Nestec, S.A.; New Albertsons, Inc.; Nutro Products, Inc.; Overwaitea Food & Drugs Ltd.; Overwaitea Food Group Ltd.; Overwaitea Foods Limited; Pet Supermarket, Inc.; Pet Supplies Plus/USA, Inc.; Pet Valu Canada Inc.; Pet Valu, Inc.; PETCO Animal Supplies Stores, Inc.; PETCO Animal Supplies, Inc.; PETCO Southwest, Inc.; PETCO Southwest L.P.; Petcurean; PetSmart, Inc.; PETM 14

Canada Corporation; PetSmart Charities, Inc.; PetSmart Charities of Canada, Inc.; Price Chopper; Pro Pet; The Procter & Gamble Company; Provigo; Publix Supermarkets, Inc.; Retex Management Associates Limited; Royal Canin Canada Company; Royal Canin, U.S.A., Inc.; Royal Canin Puerto Rico, Inc.; Safeway Canada; Safeway Holdings (Alberta) Ltd.; Safeway, Inc.; Sam's Mexico; Save-A-Lot; Schnucks; The Scoular Company; Shur-Gain; Smith's Food & Drug Centers, Inc.; Sobeys, Inc. / Agora; Stater Brothers; Sun Pac; Sunshine Mills, Inc.; Supervalu; Target Corporation; Topco; Trader Joe's; Unified Western Grocers; Variety Pet Foods; The Vons Companies, Inc.; Wal-Mart Canada Corp.; Wal-Mart Stores, Inc.; Wal-Mart, Inc.; Wegmans; Weis; White Rose; Wilbur-Ellis Company; Winn Dixie Stores, Inc.; Zellers; Alexander R. Aird; Eric A. Demirian; Thomas A. Di Giacomo; Gale Prince; C. Ian Ross; Robert W. Luba; Serge K. Darkazanli, as well as their respective insurers, parent companies, subsidiaries, affiliates, and all o f their respective franchisees, and the officers, directors, trustees, shareholders, unit holders, partners, governors, managers, employees, agents, assignees, successors and heirs of all of them. The inclusion of any entity that is not a Party to the Settlement Agreement in the foregoing list of Released Entities shall not constitute a waiver of any defenses any such entity has as to improper service or lack of personal jurisdiction. SS. "Releasing Parties" shall include all Settlement Class Members and their

respective heirs, executors, agents, legal representatives, professional corporations, partnerships, assigns, and successors, but only to the extent such claims are derived by contract or operation of law from the Claims of Settlement Class Members. TT. "Reso lut ion Term Sheet" means the document dated March 4, 2008, that set forth

the terms of the settlement reached by the Parties by or on behalf of all persons or entities who purchased or whose pets used or consumed pet food and/or treat products that were recalled by any Released Entity between March 16, 2007 and the present and are the subject of the Pet 15

Food Recall Litigation. The Resolution Term Sheet is superseded by this Settlement Agreement. UU. "Second Canadian Notice" means the form of notice agreed to between the

Parties or such other form as may be approved by the Canadian Courts, which informs Settlement Class Members in Canada of the final approval of the Settlement Agreement. VV. "Settlement Class" means the class to be certified by the MDL Court and

Canadian Courts pursuant to this Agreement of all persons and entities who purchased, used or obtained, or whose pets used or consumed Recalled Pet Foods Product(s), and excluding Defendants, Released Entities and the Lum Class. WW. "Settlement Class Member" is a person or entity fitting the definition of the Settlement Class and who has not validly and timely sought to Opt Out of the Settlement Class pursuant to Section II.F below. XX. "Settlement Fund" means a fund of $24,000,000.00 (USD) funded by the

Defendants as full compensation for all Released Claims, the costs of claims notice, administration, attorneys fees, costs, and expenses associated with this Settlement in both Canada and the United States. The Settlement Fund is in addition to the Historic Payments. YY. "U.S. Actions" means each of the actions that are part of, or become part of, the

coordinated proceedings of In re Pet Food Products Liability Litigation, MDL No. 1850, in the United District Court for District of New Jersey. ZZ. Agreement. AAA. "(USD)" means United States Dollars. II. A. COURT APPROVAL, CLASS NOTICE, OBJECTION PROCEDURES Reasonable Efforts 16 "U.S. Notice Date" shall have meaning assigned to it in § II.E.2 of the Settlement

Plaint iffs' Lead Counsel, Counsel for Canadian Plaintiffs and counsel for Defendants agree that they will use reasonable efforts to (i) recommend and obtain approval of this Settlement Agreement by the MDL Court and the Canadian Courts in accordance with the class proceedings legislation applicable in the relevant jurisdiction; (ii) carry out the terms of this Settlement Agreement; (iii) support this Settlement Agreement in all public statements; and (iv) secure the prompt, complete and final dismissal with prejudice of the U.S. Actions and Canadian Actions against the Released Entities. Plaintiffs' Lead Counsel and Counsel for Canadian Plaintiffs shall, consistent with their obligations to their clients and the Class, make every reasonable effort to encourage Class Members to participate in this settlement. The Parties, Plaintiffs' Lead Counsel, and Counsel for Canadian Plaintiffs agree that Defendants may communicate with putative Class Members regarding the provisions of this Agreement, so long as such communications are not inconsistent with Class Notice or other agreed upon communications concerning the Agreement. The Released Entities may refer potential Class Members to the Claims Administrator, the toll free number and the web site. Defendants will not discourage the filing of any claims allowed under Section V of this Agreement. Released Entities that have been reimbursing potential Class Members may continue to do so if necessary to complete claims and Released Entities also may encourage those persons to participate in the class settlement that is the subject of this Agreement. B. 1. Motions for Preliminary Approval United States: Following the execution of this Agreement, on May 22, 2008,

Plaintiffs' Lead Counsel shall file in the MDL Court a motion for Preliminary Approval that seeks entry of a proposed Preliminary Approval Order (substantially in the form attached hereto as Exhibit 4A) that would, for settlement purposes only: (a) preliminarily approve this Settlement Agreement; 17

(b)

certify a Settlement Class under Federal Rules of Civil Procedure 23(a)

and (b)(3) to be comprised of the Settlement Class Members; (c) approve the proposed Class Notice in the form substantially similar to the

form attached hereto as Exhibits 3A and 3B; and (d) States. Defendants in the MDL will join in this motion, will agree that the Settlement Agreement should be preliminarily approved, and will not contest certification of the Settlement Class undertaken for the sole purpose of effectuating this Settlement Agreement. 2. Canada: Following execution of this Settlement Agreement on May 22, 2008, appoint the Claims Administrator for claimants and claims in the United

Counsel for Canadian Plaintiffs shall seek orders in each Canadian Court substantially in the form attached as Exhibit 4B, that would for settlement purposes only: (a) certify a conditional Settlement Class, the certification of which would be

conditional on all requirements set out in this Agreement being met, including but not limited to Final Approval Order and Judgments being granted in the MDL Court and each of the Canadian Courts and them not having been overturned or varied by any Appellate court, and that the total number of potential Class Members who properly Opt Out of the Settlement Agreement remains below the requisite threshold set out in this Agreement; (b) approve the Class Notice in the form attached hereto as Exhibits 3C and

3D in such languages as may be required by the applicable law; and (c) appoint the Claims Administrator for Canadian claimants and claims.

Defendants in the Canadian Actions will consent to these motions and will not contest conditional certificat ion in the Canadian Courts for the sole purpose of effectuating this 18

Settlement Agreement. The motions for approval of the Class Notice and conditional certification shall be first sought in the province of Ontario. The Settlement Class to be conditionally certified in Ontario shall be comprised of Class Members resident in Canada, excluding the Class Members of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia and Newfoundland. Following the motion for approval of the Class Notice and conditional certification in Ontario, motions for approval of the Class Notice and conditional certification shall be brought in the remaining Canadian Courts in the following order: British Columbia, Quebec, Saskatchewan followed by the remaining jurisdictions in which Canadian Actions have been commenced. With the exception of Ontario, the Settlement Class to be certified in each of the remaining provinces in which Canadian Actions have been commenced shall be comprised of the Class Members resident in that province. Alternatively, instead of attending separate hearings for conditional certification and approval of the Class Notice in each of the Canadian Courts, Counsel for Canadian Plaintiffs and counsel for the Defendants named in the Canadian Actions may seek orders or directions to allow the Canadian Courts to hear motions for approval of the Class Notice and conditional certification, or any other motions relating to the approval of the settlement, jointly, either by sitting in a single location to be determined by the Canadian Courts, or by video-conference or such other means as the Canadian Courts may determine to be appropriate in the circumstances. C. 1. Stays Suspensio n of Discovery: Until Preliminary Approval in the MDL Court,

including entry of the stay of discovery in the form contained therein, and Final Approval in the Canadian Courts, the Defendants, Releasing Parties, Plaintiffs' Lead Counsel, and Counsel for 19

the Canadian Plaintiffs covenant and agree that they shall not pursue discovery (except as may be necessary with respect to matters related to retention of organized Recalled Pet Food Products, raw wheat gluten and uninventoried or inventoried product) and shall not in any way subsequently argue that another Party has failed to comply with suspended discovery obligations because of the suspension of discovery efforts following the Execution Date. 2. Stay of Lit igat ion: Plaintiffs' Lead Counsel, counsel for Canadian Plaintiffs, and

counsel for Defendants will jointly mo ve before the MDL Court and Canadian Courts to stay of all other matters in the MDL Court and Canadian Courts related to the Pet Food Recall Litigation, except matters related to retention of Recalled Pet Food Products, raw wheat gluten, organized inventory and uninventoried or inventoried product, and any other matters necessary to implement, advance, or further the Settlement Agreement or settlement process, and the proposed Preliminary Approval Order in the MDL Court and the orders in the Canadian Courts granting certification of the Settlement Class and approval of the Class Notice as contemplated in section II.B.2 above, shall provide for such a stay. 3. Obligat ion to Meet and Confer: Before filing any motion in the MDL Court or

Canadian Courts, the Parties shall consult with each other and certify to the MDL Court or the Canadian Courts, as applicable, that they have so consulted. 4. Stay of Local and State Court Actions in the United States: The proposed

Preliminary Approval Order filed in the MDL shall bar and enjoin all Class Members from commencing or prosecuting any action asserting any Released Claims, and shall stay any actions or proceedings brought by any member of the Settlement Class asserting any Released Claims as of the U.S. Notice Date. In the event the Final Approval Order and Judgment is not entered or is reversed for any reason, or this Agreement terminates for any reason, the Parties and Released Entities shall not be deemed to have waived any rights with respect to proceedings 20

in the litigation of such actions that arise during the period of the stay and shall have a full and fair opportunity to present any position in any such proceedings. D. 1. Certificat ion of Settlement Classes Class Definition: For purposes of settlement only, and upon the express terms

and conditions set forth in this Settlement Agreement, Plaintiffs' Lead Counsel and Counsel for Canadian Plaintiffs agree to seek certification of the Settlement Class in the U.S. Actions and in the Canadian Actions pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) and Canadian law, as applicable. 2. Class Certified for Settlement Purposes Only: Nothing in this Settlement

Agreement shall be construed as an admission by the Released Entities that the Pet Food Recall Litigation or any similar case is amenable to class certification for trial purposes or any purposes other than for implementation of the terms of this Settlement Agreement. Furthermore, nothing in this Settlement Agreement shall prevent Defendants from opposing class certification or seeking de-certification of the certified Settlement Classes if Final Approval of this Settlement Agreement is not obtained in the MDL Court or in any of the Canadian Courts, or not upheld on appeal, including review by any appellate court in the United States or Canada, for any reason. The certification of the Settlement Class shall not be treated as the adjudication of any fact or issue for any purpose other than this Settlement Agreement and shall not be considered as law of the case, res judicata, or collateral estoppel in any other proceeding. Until and unless the Settlement Agreement reaches the Effective Date, the certification of the Settlement Class shall not be treated as the adjudication of any fact or issue and shall not be considered as law of the case, res judicata, or collateral estoppel in this proceeding. E. Notices 21

1.

Form of Class Notice: Subject to approval of the MDL Court and Canadian

Courts, as applicable, Class Notice shall be made by publication as set forth in § II.E.2(c) below and direct mail as set forth in § II.E.2(b) below in the forms attached hereto as Exhibits 3A, 3B, 3C and 3D. 2. Disseminat ion of Notice: (a) Notice Dates: In the United States, subject to approval by the MDL

Court, the Class Notice shall be reasonably disseminated in the United States within fifteen (15) days of the entry of the Preliminary Approval Order by the MDL Court (the "U.S. Notice Date"). In Canada, subject to approval by the Canadian Courts, the Class Notice shall be reasonably disseminated in Canada within seven (7) days of the last order approving the Class Notice being granted by a Canadian Court as contemplated by § II.B.2. above ("Canadian Notice Date"). (b) Notice by Direct Mail: The Claims Administrator shall cause notice to be

disseminated by direct mail to (1) all persons who were paid as part of a Historic Payment program and (2) all persons who completed and returned a claim form to Crawford & Company and whose names and addresses are in a readily accessible database maintained by Crawford & Company. Defendants and Crawford & Company shall provide the Claims Administrator on a confidential basis the names and address of all such persons. (c) Notice By Publication: Subject to approval by the MDL Court, and the

Canadian Courts, the Class Notice shall be published in newspapers, periodicals, or other sources, including media distributed electronically on or before the Notice Date. Plaintiffs' Lead Counsel shall solicit bids from firms specializing in the design and implementation of notice intended to be the best notice practicable under Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure. Plaintiffs' Lead Counsel, Counsel for Canadian Plaintiffs, and Counsel for 22

Defendants may, at their option, cause the Class Notice to be posted on their websites as well. Subject to approval by the MDL Court, and the Canadian Courts all other Notices contemplated by this Agreement shall be made by publication and direct mail. (d) Notice to Veterinarians: Subject to approval by the MDL Court and the

Canadian Courts, the Class Notice shall be provided to national veterinary organizations including the American Veterinarian Medical Association and the Canadian Veterinary Medical Association for further dissemination at their option to their members and veterinarians. 3. Cost of Notice: Costs of the Class Notice, whether by mail as set forth in

§ II. E.2(c) above, publication as set forth in § II.E.2(b) above, website, or otherwise, shall be paid from the Settlement Fund. However, any costs associated with Plaint iffs' Lead Counsel's or Counsel for Canadian Plaintiffs' websites, any postings on those websites related to the settlement, or any separate communications or advertisements by any plaintiff, plaintiffs' counsel, or Plaintiffs' Lead Counsel shall be paid by Plaintiffs' Lead Counsel or Counsel for Canadian Plaintiffs. 4. Claims Administrator to Effect Notice: The Claims Administrator shall be

responsible for placing and mailing the Class Notice pursuant to § II.E.2(a)-(d) and the notice plan approved by the Courts. 5. Certificat ion Notice Given: Within thirty (30) days of completion of the

publication of the Class Notice in publications in the United States, the Claims Administrator shall certify to the MDL Court that it published the Class Notice pursuant to the approved notice plan. Within thirty (30) days of completion of the publication of the Class Notice and other Notices in publications in Canada, the Claims Administrator shall certify to the Canadian Courts that it published the Class Notice and any other Notice published pursuant to the approved notice plan. The Claims Administrator shall also certify the dates that Class Notices were 23

actually published by each newspaper, periodical, or other sources, in the United States and Canada, as applicable, provide a true copy of each Class Notice in each publication, and provide any other information relevant to the publication and mailing of the Class Notice and other Notices. 6. CAFA Notice: Defendants in the MDL shall serve notice of this Settlement

Agreement (via Federal Express) that meets the requirements of the Class Action Fairness Act of 1995, 28 U.S.C. § 1715, on the appropriate federal and state officials not later than 10 days after the filing of this Settlement Agreement with the MDL Court. A proposed form of the CAFA Notice, without the accompanying attachments, is attached hereto as Exhibit 5. F. 1. Voluntary Exclusio n of Class Members from Settlement Class Opt Out Rights: Class Members have the right to exclude themselves ("Opt

Out") from this Agreement and from the Settlement Class by timely submitting a request to Opt Out pursuant to § II.F.3 below. Class Members who so timely request to Opt Out shall be excluded from this Agreement and from the Settlement Class. Any Class Member who does not timely submit a request to Opt Out or does not otherwise comply with the agreed upon Opt Out procedure approved by the MDL and Canadian Courts shall be bound by the terms of this Agreement and the Final Approval Order and Judgment. Any Class Member who does not Opt Out of this Agreement shall be deemed to have taken all actions necessary to withdraw and revoke the assignment to any Person of any claim against the Released Entities. Any Class Member who timely submits a request to Opt Out shall have until seven (7) days prior to the Final Approval Hearing Date in the MDL Court or the appropriate Canadian Court to deliver to Plaintiffs' Lead Counsel and the Claims Administrator a written revocation of such Class Member's request to Opt Out. Plaintiffs' Lead Counsel shall timely apprise the MDL Court or Canadian Courts, as applicable, of such revocations. 24

Wit hin ten (10) days after the Opt Out Deadline, the Claims Administrator shall furnish Defendants with a complete list in machine-readable form of all Opt Out requests submitted by the Opt-Out Deadline and not timely revoked. 2. Deadline to Opt Out from Settlement Class: All Class Members will be given

sixty (60) days after the U.S. Notice Date or the applicable Canadian Notice Dates (the "Opt Out Deadline") to Opt Out. 3. Request to Opt Out: A Class Member must Opt Out of the Settlement Class by

notifying the Claims Administrator or such other person as may be designated by applicable legislation or court order to receive requests to Opt Out in writing postmarked on or before the Opt Out Deadline of his/her intention to exclude himself/herself from the Settlement Class. The Class Member seeking to Opt Out must include his/her name, address, telephone and signature in his/her written request to Opt Out and otherwise comply with the agreed upon Opt Out procedure approved by the MDL and, if applicable, Canadian Courts. The initial determination that each request to Opt Out by a Class Member complies with the Opt Out procedures in this Agreement will be made by the Claims Administrator and is subject to final approval by the MDL Court or the Canadian Courts, as applicable, as part of the Final Approval of the Settlement Agreement. The MDL Court or the Canadian Courts, as applicable, may disallow any request for exclusion that fails to comply with the provisions of Preliminary Approval Order or the Opt Out procedures otherwise approved by the MDL and Canadian Courts. 4. Defendants' Right to Terminate: The Defendants shall have the right to

terminate this Settlement Agreement if the number of Class Members who request to Opt Out of the Settlement Class exceeds 2,000. The Defendants must exercise their right to terminate the Settlement and the Settlement Agreement due to the number of Class Members who request to Opt Out of the Settlement Class within fourteen (14) business days from their receipt from the 25

Claims Administrator of a complete list of all Opt Out requests submitted by the Opt Out Deadline and not timely revoked. G. Procedures for Objecting to the Settlement

Any objection to this Settlement Agreement, including any of its terms or provisions, must be served on at least one of Plaintiffs' Lead Counsel (or for Canadian Class Members to Branch MacMaster) and at least one of Defendants' Liaison Counsel and filed with the MDL Court or the appropriate Canadian Court, as applicable, in writing no later than thirty (30) days prior to the Final Approval Hearing Date in the MDL Court or the appropriate Canadian Court, as set forth in the Class Notice (the "Objection Date"). Any person or entity filing an objection in the MDL Court shall, by doing so, submit himself, herself or itself to the exclusive jurisdiction and venue of the United States District Court for the District of New Jersey. H. 1. Motion for Final Approval Order and Entry of Final Judgment United States - Hearing on Motion for Final Approval: The motions for Final

Approval of this Settlement Agreement will be set for hearings by the MDL Court and the Canadian Courts as soon as is practical. The Parties shall seek entry of a "Final Approval Order and Judgment" (in substantially the same form as Exhibit 6A hereto) that, inter alia: (a) Wit h respect to settlement of Released Claims in the United States,

determines that the MDL Court has and shall retain exclusive jurisdiction over: (i) the Settlement Agreement, including its administration, consummation, claim procedures, enforcement, and any other issues or questions that may arise; (ii) the Parties and disputes for purposes of the Settlement Agreement; (iii) any applications for attorneys' fees, expenses and costs related to the Settlement Agreement; and (iv) all proceedings related to this Settlement Agreement both before and after the Final Approval becomes final and is no longer subject to appeal, and over enforcement of the Final Approval Order and Judgment; 26

(b)

Approves finally this Settlement Agreement and its terms as being a fair,

reasonable and adequate settlement as to the Class Members within the meaning of Rule 23 of the Federal Rules of Civil Procedure, the Class Action Fairness Act, and other applicable law; (c) Determines that the Class Notice, as approved by the Preliminary

Approval Order, constitutes reasonable and the best practicable notice reasonably calculated under the circumstances to apprise members of the Settlement Class of the pendency of the U.S. Actions and Canadian Actions, the terms of the Settlement Agreement, the right to object or opt-out, and the right to appear at the hearing on Final Approval, the claims procedure, that the Class Notice is adequate and sufficient to all persons entitled to receive such notices, and meets the requirements of due process and other applicable rules or laws; (d) Determines that there is no just reason for delay and that the Final

Approval Order and Judgment shall be final and entered; and (e) 2. Enters the Release and Injunction described in the §§ III.A and C.

Canada: The Canadian Approval Hearings shall be heard by the Canadian

Courts as soon as practicable and in any event no later than sixty (60) days fo llowing the Final Approval Hearing Date. The Parties shall seek entry of a Final Approval Order and Judgment (in substantially the same form as Exhibit 6B), that inter alia: (a) Wit h respect to settlement of Released Claims in Canada, determines that

each of the Canadian Courts has jurisdiction and shall retain jurisdiction with respect to (i) Released Claims in their respective jurisdictions, (ii) the Settlement Agreement, including its administration, consummation, claim procedures, enforcement, and any other issues or questions that may arise; (iii) the Parties and disputes for purposes of the Settlement Agreement; (iv) any applications for counsel fees, expenses and costs related to the Settlement Agreement brought in their respective jurisdictions; and (v) all proceedings related to this Settlement 27

Agreement both before and after any Final Approval Order and Judgment becomes final and is no longer subject to appeal, and over enforcement of the Final Approval Order and Judgment; (b) Wit h respect to Ontario, finalizes the certification of a Settlement Class

comprised of Class Members resident in Canada, excluding the residents of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia and Newfoundland and with respect to the remaining Canadian provinces in which Canadian Actions have been commenced, finalizes the certification of a Settlement Class comprised of the residents of each of those provinces, for the purposes of effectuating this settlement; (c) Approves this Settlement Agreement and its terms as being a fair,

reasonable and adequate settlement as to the Settlement Class Members; (d) Determines that the Class Notice constitutes reasonable and the best

practicable notice reasonably calculated under the circumstances to apprise members of the Settlement Class of the Canadian Approval Hearings; (e) (f) Approves the proposed Second Canadian Notice; Determines that there is no just reason for delay and that the Final

Approval Order and Judgment shall be final and entered; (g) (h) Enters the Release and injunctive relief described in § III.A and III.C; and Provides that the Court shall not make any order or give any direction in

respect of any matter of joint jurisdict ion unless that order is conditional upon a complementary order or direction being made or given by the other Canadian Courts and the MDL Courts with which it shares jurisdiction over that matter. Motions for the Canadian Approval Hearings shall be first brought and heard in Ontario, followed by the remaining provinces in Canada in which Canadian Actions have been commenced. 28

Alternat ively, instead of attending separate hearings for the Canadian Approval Hearings in each of the Canadian Courts, Counsel for Canadian Plaintiffs and counsel for the Defendants named in the Canadian Actions may seek orders or directions to allow the Canadian Courts to hear motions for the Canadian Approval Hearings, or any other motions relating to the approval of the settlement, jointly, either by sitting in a single location to be determined by the Canadian Courts, or by video-conference or such other means as the Canadian Courts may determine to be appropriate in the circumstances. 3. Effect ive Date: If the Final Approval Order and Judgment is entered by the

MDL Court and the Canadian Court(s) and the time for appeal from all such orders and judgments has elapsed (including without limitation any extension of time for the filing of any appeal that may result by operation of law or order of the MDL or Canadian Courts, as applicable), with no notice of appeal having been filed, the "Effective Date" shall be the next business day after the last date on which notice of appeal could have been timely filed. If the Final Approval Order and Judgment is entered and an appeal is filed as to any of them, the "Effective Date" shall be the next business day after the Final Order and Judgment is affirmed, all appeals are dismissed, and no further appeal to, or discretionary review in any Court, remains. 4. Effect of Entry of a Final Approval Order and Judgment: The distribution

procedures under the Settlement Agreement shall commence seven (7) business days after the Effective Date. 5. Motion to Void the Settlement Agreement: In the event that the termination right

in Section II.F.4 above is exercised, or in the event that any Canadian Court or the MDL Court refuses to enter a Final Approval Order and Judgment substantially in the form set out herein and in accordance with the provisions of this Agreement, this Agreement shall, subject to an 29

agreement by the Parties, be null and void and of no force or effect and the Parties shall bring motions before each of the Canadian Courts and the MDL Court: (i) declaring the Settlement Agreement to be null and void and of no force or effect, (ii) setting aside any order certifying a Settlement Class on the basis of the Settlement Agreement, and (iii) determining any disputes arising from any distribution of the Settlement Funds from the Escrow Account. III. A. Release RELEASE OF CLAIMS BY CLASS MEMBERS

Upon entry of the Final Approval Order and Judgment by the MDL Court and all Canadian Courts, the Releasing Parties forever release and discharge all Released Claims against all Defendants and all Released Entities. For purposes of this Settlement Agreement, "Released Claims" are all claims, demands, actions, suits, and/or causes of action that have been brought or could have been brought, are currently pending or were pending, or are ever brought in the future, by any Settlement Class Member against any Defendant or Released Entity, in any forum in Canada or the United States (including their territories and, in the case of the United States, Puerto Rico), whether known or unknown, asserted or unasserted, under or pursuant to any statute, regulation, common law or equity, that relate in any way, directly or indirectly, to facts, acts, events, transactions, occurrences, courses of conduct, representations, omissions, circumstances or other matters referenced in any claim raised (including, but not limited to, any claim that was raised against any Released Entity) in the Pet Food Recall Litigation. For purposes of this Agreement, "Released Claims" do not include any claims for breach of this Settlement Agreement, nor any claims, demands, actions, suits, or causes of action that have been brought, could have been brought, or are brought in the future by any Defendant or Released Entity against any other Defendant or Released Entity, for indemnity or any other claim. Nothing in this Agreement shall in any way be construed to limit or prevent any 30

Defendant or Released Entity from bringing any claims, demands, actions, suits, or causes of action against another Defendant or Released Entity for indemnity or any other claim related to the Recalled Pet Food Products and/or the Recall. B. Covenant Not to Sue

The Releasing Parties and each of them agree and covenant not to sue or prosecute, institute or cooperate in the institution, commencement, filing or prosecution of any suit or proceeding in any forum against any Released Entity, or against any other person or entity who may claim contribution or indemnity from or against any Released Entity, based upon or related to any Released Claim. Notwithstanding any other provision o f this Agreement (including, without limitation, this § III), nothing in this Agreement shall be deemed to in any way impair, limit, or preclude the Releasing Parties' rights to enforce any provision of this Agreement, or any court order implementing this Agreement, in a manner consistent with this Agreement. C. Injunction

It is an essential element of the Agreement that the Released Entities obtain the fullest possible release from further liability to anyone relating to the Released Claims, and it is the intention of the Parties to this Agreement that the Agreement eliminate all further risk and liability of the Released Entities relating to the Released Claims. Accordingly, the Parties agree that the MDL Court and Canadian Courts shall include in the Final Approval Order and Judgment an injunction that permanently enjoins the Releasing Parties from (i) filing, commencing, prosecuting, continuing, maintaining, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, arbitration, administrative or regulatory proceeding or order in any jurisdiction based on any or all Released Claims against one or more Released Entities or against any person or entity who may claim over against any Released Entity for contribution or indemnity; (ii) instituting, continuing, maintaining, 31

organizing class members in, or joining with class members in, any action or arbitration, including but not limited to a purported class action, in any jurisdiction, against one or more Released Entities, or against any person or entity who may claim over against any Released Entity for contribution or indemnity, based on, involving, or incorporating, directly or indirectly, any or all Released Claims; and (iii) filing, commencing, prosecuting, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, arbitration, administrative or regulatory proceeding, or order in any jurisdiction based on an allegation that an action taken by the Released Entities, which is in compliance with the provisions of the Settlement Agreement, violates any legal right of any Settlement Class Member. D. Dismissal With Prejudice

The Releasing Parties shall take all steps necessary to dismiss the U.S. Actions and Canadian Actions with prejudice. It is the Parties' intention that such dismissal shall constitute a final judgment on the merits to which the principles of res judicata shall apply to the fullest extent of the law as to the Released Entities. E. Notice Related to Section 1542 of the California Civil Code

All Parties to this Agreement specifically acknowledge that they have been informed by their legal counsel of Section 1542 of the California Civil Code and they expressly waive and relinquish any rights or benefits available to them under this statute. California Civil Code § 1542 provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Notwithstanding Section 1542 of the California Civil Code, or any other statute or rule 32

of law of similar effect, this Settlement Agreement shall be given full force and effect according to each and all of its expressed terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands, or causes of action which are based on, arise from or are in any way connected with the Actions. All Parties to the Settlement Agreement have been advised specifically by their legal counsel of the effect of this waiver, and they expressly acknowledge that they understand the significance and consequence of this expressed waiver of California Civil Code Section 1542. F. Irreparable Harm

The Parties agree that the Released Entities shall suffer irreparable harm if a Releasing Party takes action inconsistent with §§ III.A - D, and that in that event, a Released Entity may seek an injunction from the MDL or Canadian Courts as to such action without further showing of irreparable harm. IV. A. ESTABLISHMENT, ESCROW AND ADMINISTRATION OF THE SETTLEMENT FUND Establishment of the Settlement Fund

The Defendants will establish the Settlement Fund of $24,000,000 (USD) in full compensation for all Released Claims in both Canada and the United States, including costs of notice, administration, attorneys' fees, costs, and expenses. The Settlement Fund is exclusive of the Historic Payments, which are without reversion to any Defendant or Released Entity. The Settlement Fund is also exclusive of the Ontario Action Costs. B. 1. Administration of the Settlement Fund Administration by the Claims Administrator: Claims against the Settlement

Fund shall be administered by the Claims Administrator, who shall at all times act in good faith and make reasonable efforts to determine whether a Claim is valid and payable from the

33

Settlement Fund in accordance with the provisions in this Settlement Agreement before making any payment from the Settlement Fund in satisfaction of that Claim. 2. Authority o f the Claims Administrator to Adjust Claims: To assist the Claims

Administrator in some of its determinations, the Parties will provide the Claims Administrator with agreed-upon guidelines relating to the costs of new pets and the costs of various other types of economic damages, specifically necropsy/autopsy, euthanasia, cremation, burial/Specialty Services, and the number of Healthy Pet Screenings that are presumptively reasonable (Exhibit 7). Notwithstanding the foregoing, the Claims Administrator has complete and final authority to adjust Claims made as set forth in the immediately preceding paragraph. All decisions of the Claims Administrator shall be final, binding and not subject to appeal. The costs of administration of the Settlement Fund, including costs associated with Class Notice, will be paid out of the Settlement Fund. 3. Abilit y of Class Members to Contact the Claims Administrator: The Claims

Administrator will have a toll-free telephone number and website that are activated within seven (7) days of the Preliminary Approval of the Settlement, the costs of which will be paid out of the Settlement Fund. The Released Entities may refer potential Settlement Class Members to the Claims Administrator, the toll-free number and the website. 4. Authorizat ion for Crawford & Company to Release Claim Files: Upon the

request of the Claims Administrator, Crawford & Company is authorized to provide to the Claims Administrator on a confidential basis the completed claim form and accompanying documentation related to the Recall that was submitted by that individual to Crawford & Company. C. Confident ialit y: The claims process administered by the Claims Administrator,

and Claims Forms and other documentation and information the Claims Administrator receives 34

fro m claimants, shall be confidential and shall not be disclosed by the Claims Administrator to any other Settlement Class Member. D. 1. Escrow of the Settlement Fund Establishment of Escrow: Defendants will obtain an Escrow Agent and establish

an Escrow Account for the Settlement Fun