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AMENDED CLASS ACTION SETTLEMENT AGREEMENT


          This Amended Class Action Settlement Agreement (“Agreement”) is ente...
by Antonio Piazza (the “Mediation”).

          1.7.    Each of the terms herein set forth was reached through arms-length...
the truth of any of the allegations in this Litigation.

3.        PLAINTIFFS’ CLAIMS AND THE BENEFITS OF SETTLEMENT

    ...
4.5.    “Claims Period” means the period beginning on the Notice Date and running until

one hundred fifty (150) days afte...
PNY:           http://pnyestore.pny.com

                  SanDisk:       http://www.esend.com/sandisk

          4.14.   ...
and all persons who timely and validly request exclusion from the Class in compliance with the

requirements of the Long F...
4.28.   “Preliminary Approval” means the preliminary approval of this Class Action

Settlement.

          4.29.   “Refund...
“Reported capacity varies,” “Reported capacity may vary,” “Operating system may report less,”

“Available storage capacity...
million bytes,” “1 megabyte = 1,000,000 bytes,” or “1 MB = 1,000,000

                         bytes,” and

              ...
(b)      shall contain the disclosure described in Section 5.2.1(b).

                  5.2.3.   If Defendant’s Flash Memo...
ActiveMemory flash memory cards, and Lexar’s Professional Series flash memory cards. This

Discount shall only be availabl...
substantially resemble the Short Form Settlement Notice attached hereto as Exhibit 2. The date

of circulation of the adve...
(30) days after the Effective Date, whichever is later, the Claims Administrator shall pay the

Refund(s) for all portions...
Product at Defendants’ Online Stores, and cannot be combined with any other offer. The

Discount code will expire one year...
9.2.    Any opt-out letter must be postmarked on or before May 23, 2006.

10.       RELEASES

          10.1.   Class Repr...
capacity of any Flash Memory Device, or any use of the binary or decimal system in making

claims or representations relat...
costs attendant upon notice and administration of this Settlement. Defendants shall not be liable

for any other costs in ...
course of Defendants’ business and to answer Class Members’ questions about the Litigation and

this Settlement Agreement....
remand, nothing herein shall be deemed to prejudice the position of any of the Parties with

respect to the Litigation or ...
period, no action to enforce the Settlement Agreement may be brought. As used in this Section

13.5, notice shall be made ...
15.4.   The exhibits to this Agreement are integral parts of the Agreement and Settlement

and are hereby incorporated and...
and that Defendants deny any liability or wrongdoing.

          15.10. During the Litigation, Defendants have shared with...
EXHIBIT 1
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT (“NOTICE”)

TO:       All persons who purchased within the United States a ...
Judge Richard A. Kramer of the Superior Court of the City and County of San Francisco (also referred to as
the “Court”) ha...
1.        To receive the Refund, each Class Member must accurately complete and submit the
                            Dow...
All Class Members expressly acknowledge that they are waiving the protections of Section 1542 and of any
comparable statut...
GUTRIDE SAFIER LLP                                        WINSTON & STRAWN, LLP
 Adam Gutride, Esq.                       ...
C.        Intervene In The Litigation And/Or Object to the Settlement. You have the right to intervene
in the Litigation a...
•   May 23, 2006 is the deadline to Opt-Out of the settlement.

                  •   May 30, 2006 is the deadline for Int...
EXHIBIT 2
Attention all persons who purchased within the United States a
                          Flash Memory Device
             ...
EXHIBIT 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA

                                     COUNTY OF SAN FRANCISCO

WILLEM VROEGH, an...
Parties appeared and were heard by the Court, and after reading and considering the Agreement and

related exhibits, preli...
settlement; (3) that any Judgment will bind all Class Members who do not request exclusion; and (4) that

any Class Member...
GUTRIDE SAFIER LLP                                   WINSTON & STRAWN, LLP
 Adam Gutride, Esq.                            ...
11.     No later than June 14, 2006, counsel for Plaintiffs shall file a status report on the number

of opt-outs. The Par...
EXHIBIT 4
SUPERIOR COURT OF THE STATE OF CALIFORNIA

                                  COUNTY OF SAN FRANCISCO

WILLEM VROEGH, an in...
support of the proposed settlement, and all comments and objections received regarding the

proposed settlement, and has r...
adjudication of the Litigation, and that the proposed settlement provides

                  substantial benefits to the P...
shall apply not against the purchase price of the digital camera but only against

                  the value of the Digi...
Claims Administrator will within thirty (30) days after the end of the Claim

                  Period or thirty (30) days...
Claim Form must be completed no later than one hundred and fifty (150) days

                  after the Notice Date or th...
administrators, successors, and assigns, and those terms shall have res judicata, collateral

estoppel, and all other prec...
order preliminarily approving settlement, and this Judgment.

          12.     The Agreement and this Judgment are not ad...
EXHIBIT 5
Flash Memory Settlement Downloadable Claim Form*
      * Information required here is for purposes of this settlement only...
Street Address or PO Box:

City, State ZIP:

Manufacturer of Product Purchased:

Product Name, Type and Capacity (e.g. 64 ...
EXHIBIT 6
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
AMENDED CLASS ACTION SETTLEMENT AGREEMENT
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Transcript of "AMENDED CLASS ACTION SETTLEMENT AGREEMENT"

  1. 1. AMENDED CLASS ACTION SETTLEMENT AGREEMENT This Amended Class Action Settlement Agreement (“Agreement”) is entered into between plaintiffs Willem Vroegh (“Vroegh”) and Scott Witthoff (“Witthoff”) (collectively “Class Representatives” or “Plaintiffs”) on behalf of themselves, the Settlement Class defined below, and the general public, on the one hand, and defendants Eastman Kodak Company (“Kodak”), Fuji Photo Film U.S.A., Inc. (“FujiFilm”), Lexar Media, Inc. (“Lexar”), PNY Technologies, Inc. (“PNY”), SanDisk Corporation (“SanDisk”) (collectively, “Defendants”), on the other hand. 1. RECITALS 1.1. Vroegh filed a class action complaint, on February 20, 2004, in the Superior Court for the City and County of San Francisco, Case No. CGC-04-428953. 1.2. On March 3 and again on April 21, 2004, Vroegh amended his complaint. 1.3. On March 15, 2005, Vroegh filed a third amended complaint and complaint in intervention whereby Witthoff joined the Litigation. 1.4. Defendants denied all the allegations and claims. Defendants also asserted affirmative defenses. 1.5. Commencing in or around October, 2004, Defendants added to their product packaging for certain Flash Memory Products additional disclosures about the amount of memory contained in the devices (the “Disclosures”). Defendants acknowledge that they initiated their use of those disclosures as a result of the Litigation. 1.6. On December 5-6, 2005, the Parties engaged in arms-length mediation conducted 05478/1826205.1 1
  2. 2. by Antonio Piazza (the “Mediation”). 1.7. Each of the terms herein set forth was reached through arms-length negotiations, including without limitation, the Mediation. It is agreed by and among the undersigned, subject to the approval of the Court, on behalf of Defendants, Class Representatives, and the Settlement Class, that the Litigation and the Released Claims shall be fully and finally compromised, settled, and released, and that the Litigation shall be dismissed on the merits and with prejudice, on the terms and conditions set forth herein. 1.8. Nothing in this Settlement Agreement shall constitute an admission of liability or be used as evidence of liability. 2. DEFENDANTS’ DENIAL OF WRONGDOING AND LIABILITY Defendants have denied and continue to deny each and all of the claims and contentions alleged by the Class Representatives. Defendants expressly have denied and continue to deny all charges of wrongdoing or liability against them arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Litigation. Defendants also have denied and continue to deny, inter alia, the allegation that the Class Representatives, the Class, or any other member of the public has suffered damage or harm by reason of any conduct, statement, act or omission of Defendants. Nonetheless, Defendants have concluded that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in this Agreement. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Defendants of liability or 05478/1826205.1 2
  3. 3. the truth of any of the allegations in this Litigation. 3. PLAINTIFFS’ CLAIMS AND THE BENEFITS OF SETTLEMENT Class Counsel and the Class Representatives believe that the claims asserted in the Litigation have merit. Class Counsel and the Class Representative nevertheless have concluded, after due investigation and after carefully considering the relevant circumstances and the applicable law, that it would be in the best interests of the Class to enter into this Settlement Agreement in order to avoid the uncertainties of litigation and to assure that the benefits reflected herein are obtained for the Class. Class Counsel and the Class Representatives consider the settlement set forth herein to be fair, reasonable, adequate, and in the best interests of the Class. 4. DEFINED TERMS The following shall be defined terms for purpose of this Agreement: 4.1. “Agreement” or “Settlement Agreement” means this Settlement Agreement, including all exhibits thereto. 4.2. “Class” or “Class Members” or “Settlement Class” means all persons who purchased within the United States a Flash Memory Device manufactured, branded, and/or sold by one of the Defendants between February 1, 2000 and February 7, 2006, except Excluded Class Members. Such persons must be the original purchaser for his/her own personal use and not for business use. 4.3. “Class Benefit” means the benefit provided to Class Members that is set forth in Sections 6.1.1 and 6.1.2 of this Agreement. 4.4. “Claims Administrator” means an entity experienced in the processing and payment of claims for class action settlements, which is not an affiliate of any of the Parties. 05478/1826205.1 3
  4. 4. 4.5. “Claims Period” means the period beginning on the Notice Date and running until one hundred fifty (150) days after the Notice Date or thirty (30) days after Final Approval, whichever is later. 4.6. “Class Action Complaint” means the Third Amended Complaint filed on March 15, 2005. 4.7. “Class Action Settlement” or “Settlement” means the resolution of the Litigation pursuant to the terms of this Agreement. 4.8. “Class Representatives” and “Plaintiffs” means Willem Vroegh and Scott Witthoff. 4.9. “Disclosures” means the disclosures described in paragraph 1.5. 4.10. “Discount Class Period” means February 1, 2000 until February 7, 2006. 4.11. “Defendants” means Eastman Kodak Company, Fuji Photo Film U.S.A., Inc., Lexar Media, Inc., PNY Technologies, Inc., and SanDisk Corporation. 4.12. “Defendants’ Counsel” for each Defendant means the following law firms: Kodak: Winston & Strawn LLP FujiFilm: Pachulski, Stang, Ziehl, Young, Jones & Weintraub LLP Lexar: Quinn Emanuel Urquhart Oliver & Hedges, LLP PNY: McCarter & English, LLP SanDisk: Wilson Sonsini Goodrich & Rosati PC 4.13. “Defendants’ Online Stores” for each Defendant means that Internet web site located at the following: Lexar: http://store.lexar.com 05478/1826205.1 4
  5. 5. PNY: http://pnyestore.pny.com SanDisk: http://www.esend.com/sandisk 4.14. “Defendants’ Web Site” or “Website” for each Defendant means that Internet web site located at the following: Kodak: http://www.kodak.com FujiFilm: http://www.fujifilm.com Lexar: http://www.lexar.com PNY: http://www.pny.com SanDisk: http://www.sandisk.com 4.15. “Digital Camera Bundled Flash Memory” means any Flash Memory Device that was integrated into or packaged with a digital camera. 4.16. “Discount” means the Class Benefit set forth in Section 6.1.2, below. 4.17. “Downloadable Claim Form” means the written claim form, which will be downloadable and printable from the Settlement Website, which is required to be filled out by Class Members who wish to redeem the Refund, as set forth in Section 8 of this Agreement. 4.18. “Effective Date” means the latest of: (i) the date of final affirmance on an appeal, the expiration of the time for a petition for review, or if review be granted, the date of final affirmance following review pursuant to that grant; (ii) the date of final dismissal of any appeal or the final dismissal of any proceeding on review; or (iii) if no appeal is filed, the expiration date of the time for the filing or noticing of any appeal from the Final Approval. 4.19. “Excluded Class Members” means Defendants, their directors, officers, and employees; Judge Kramer and his immediate family; Antonio Piazza and his immediate family; 05478/1826205.1 5
  6. 6. and all persons who timely and validly request exclusion from the Class in compliance with the requirements of the Long Form Settlement Notice. 4.20. “Final Approval” means issuance of judgment granting final approval of this Class Action Settlement. 4.21. “Flash Memory Device(s)” or “Flash Memory Product(s)” means any removable digital storage media or integrated digital storage devices that incorporate flash memory technology, including without limitation flash memory cards, CompactFlash cards, SmartMedia cards, MultiMedia cards, SecureDigital (or SD) cards, xD-picture cards, Memory Stick®, or USB memory, USB drives, thumb drives, JumpDrives™, flash drives or digital cameras that contain integrated flash memory cards or come bundled with such flash memory cards. 4.22. “Litigation” means Vroegh, et al v. Eastman Kodak Company, et al., Superior Court for the City and County of San Francisco, Case No. CGC-04-428953. 4.23. “Long Form Settlement Notice” means the Notice attached hereto as Exhibit 1. 4.24. “Notice Date” means the first day on which the Defendants publish notice pursuant to Section 7 of this Agreement. 4.25. “Online Claim Form” means the online form required to be filled out by Class Members who wish to redeem the Discount, as set forth in Section 8 of this Agreement (together with the Downloadable Claim Form, the “Claim Forms”). 4.26. “Parties” means Plaintiffs and Defendants, collectively. 4.27. “Preliminary Approval Date” means the date upon which the Court issues an order granting Preliminary Approval. 05478/1826205.1 6
  7. 7. 4.28. “Preliminary Approval” means the preliminary approval of this Class Action Settlement. 4.29. “Refund” means the Class Benefit set forth in Section 6 below. 4.30. “Refund Class Period” means February 1, 2000 until January 1, 2005. 4.31. “Released Claims” means the claims released as set forth in Section 10 of this Agreement. 4.32. “Released Parties” means the Parties and the Class Members and all of their past and present officers, directors, agents, designees, servants, sureties, attorneys, employees, parents, associates, controlling or principal shareholders, general or limited partners or partnerships, subsidiaries, divisions, affiliates, insurers, heirs, and all successors or predecessors in interest, assigns, or legal representatives. 4.33. “Settlement Class Counsel,” “Class Counsel” or “Plaintiffs’ Counsel” means Gutride Safier LLP and Milberg Weiss Bershad & Schulman LLP. 4.34. “Settlement Website” means that Internet web site located at www.flashsettlement.com or www.flash-settlement.com. 4.35. “Short Form Settlement Notice” means the Notice attached hereto as Exhibit 2. 5. DISCLOSURES ON PACKAGING 5.1. Use of Current Disclosure. For at least two (2) years following the Effective Date, Defendants shall maintain the Disclosures currently in use on their packaging for Flash Memory Devices or substantially similar language such as any of the following phrases: “Actual capacity less,” “Actual capacity varies,” “Actual capacity may vary,” “Formatted capacity less,” “Formatted capacity varies,” “Formatted capacity may vary,” “Reported capacity less,” 05478/1826205.1 7
  8. 8. “Reported capacity varies,” “Reported capacity may vary,” “Operating system may report less,” “Available storage capacity less,” “Available storage capacity varies,” “Available storage capacity may vary,” “Some of the listed capacity is used for formatting and other functions, and thus is not available for data storage.” Such Disclosures also shall appear in the product descriptions for Flash Memory Devices on Defendants’ Websites and Defendants’ Online Stores. This requirement shall not apply to any packaging which was manufactured prior to Final Approval but which does not already contain such disclaimer language. 5.2. Alternate Disclosure. As an alternative to section 5.1, Defendants may elect to comply with Section 5.2 for at least two (2) years following the Effective Date. The language set forth in this section shall appear on packaging for Flash Memory Devices and in the product descriptions for Flash Memory Devices on Defendants’ Websites and Defendants’ Online Stores. This requirement shall not apply to any packaging which was manufactured prior to Final Approval but which does not already contain such disclaimer language. 5.2.1. If the product description states a number of “megabytes” (or “MB”) as the storage capacity or memory size of the Flash Memory Device and the stated number is greater than the number of bytes of storage available to the end user divided by 1,048,756, the product description shall: (a) contain a disclosure that is reasonably calculated to inform consumers of the actual number of bytes of storage capacity in the Flash Memory Device. The following statements are non-exclusive examples that satisfy the disclosure obligations set forth in this paragraph: a statement of the actual number of bytes, “1 megabyte = 1 million bytes,” “1 MB = 1 05478/1826205.1 8
  9. 9. million bytes,” “1 megabyte = 1,000,000 bytes,” or “1 MB = 1,000,000 bytes,” and (b) shall include the following or similar list of non-exclusive disclaimers on their packaging: “Actual capacity less,” “Actual capacity varies,” “Actual capacity may vary,” “Formatted capacity less,” “Formatted capacity varies,” “Formatted capacity may vary,” “Reported capacity less,” “Reported capacity varies,” “Reported capacity may vary,” “Operating system may report less,” “Available storage capacity less,” “Available storage capacity varies,” “Available storage capacity may vary,” “Some of the listed capacity is used for formatting and other functions, and thus is not available for data storage.” 5.2.2. If the product description states a number of “gigabytes” (or “GB”) as the storage capacity or memory size of the Flash Memory Device, and the stated number is greater than the number of bytes of storage available to the end user divided by 1,073,741,824, the product description shall: (a) contain a disclosure that is reasonably calculated to inform consumers of the actual number of bytes of storage capacity in the Flash Memory Device. The following statements are non-exclusive examples that satisfy the disclosure obligations set forth in this paragraph: a statement of the actual number of bytes, “1 gigabyte = 1 billion bytes,” “1 GB = 1 billion bytes,” “1 gigabyte = 1,000,000,000 bytes,” or “1 GB = 1,000,000,000 bytes,” and 05478/1826205.1 9
  10. 10. (b) shall contain the disclosure described in Section 5.2.1(b). 5.2.3. If Defendant’s Flash Memory Devices incorporate flash memory chips provided by a third party, and if that third party has informed Defendant in writing that the total listed unformatted storage capacity of the flash memory chips, assuming that one megabyte equals 1,048,576 bytes and one gigabyte equals 1,073,741,824 bytes, is equal or greater than the number of megabytes or gigabytes that Defendant states in the Flash Memory Device product description, then the requirements of Section 5.2 shall be satisfied by a statement in the product description to the effect that some of the stated capacity is used for formatting and other functions and thus is not available for data storage. 6. CLASS BENEFIT 6.1. Subject to the claims process and limitations set forth in this Agreement, for one hundred and fifty (150) days following the Notice Date, or thirty (30) days following Final Approval, whichever is longer, Class Members will be entitled to receive one of the following for each Flash Memory Device purchased: 6.1.1. A cash refund equal to five percent (5%) of the purchase price of each Flash Memory Device purchased during the Refund Class Period (“Refund”). Such Refund shall be paid by the Defendant whose Flash Memory Product was purchased. 6.1.2. A discount of ten percent (10%) off a future purchase of any Lexar, PNY or SanDisk Flash Memory Device from Defendants’ Online Stores (“Discount”). The Discount need not be provided on purchases of Flash Memory Devices as to which Lexar, PNY and SanDisk were contractually or legally prohibited from providing such discounts as of December 6, 2005, which are the following: Lexar’s LockTight flash memory cards, Lexar’s 05478/1826205.1 10
  11. 11. ActiveMemory flash memory cards, and Lexar’s Professional Series flash memory cards. This Discount shall only be available to a Class Member who fills out a claim form under penalty of perjury specifying the Flash Memory Product purchased, the price paid, the date of purchase and the merchant from whom the product was purchased. Each Class Member may receive one Discount for each Flash Memory Device purchased during the Discount Class Period up to one Flash Memory Device per Defendant. Discounts shall not be combined with any other offer. 6.2. For any digital camera purchased from Defendants FujiFilm or Kodak during the Refund Class Period that included Digital Camera Bundled Flash Memory, the Refund shall apply not against the purchase price of the digital camera but only against the value of the Digital Camera Bundled Flash Memory. Exclusively for purposes of this Class Action Settlement, each Digital Camera Bundled Flash Memory is deemed to have had a purchase price of $20.00. 7. NOTICE 7.1. The Settlement Website shall have the structure and text per the mutual agreement of the Parties and shall contain the Long-Form Settlement Notice attached hereto as Exhibit 1, a copy of this Settlement Agreement, and the Claim Form, all in the .html and .pdf formats. 7.2. From no more than forty-five (45) days following Preliminary Approval until one hundred and fifty (150) days thereafter or thirty (30) days after Final Approval, whichever is later, Defendants shall post a hyperlink on the bottom of the home page of their Website that links the home page to the Settlement Website. 7.3. No more than forty-five (45) days following Preliminary Approval, Defendants will place two (2) advertisements in the U.S.A. Today and two (2) advertisements in the Wall Street Journal notifying the public of the proposed and final settlement. The advertisements shall 05478/1826205.1 11
  12. 12. substantially resemble the Short Form Settlement Notice attached hereto as Exhibit 2. The date of circulation of the advertisements will be by the mutual agreement of the Parties. 7.4. Defendants shall be responsible for making all arrangements necessary to effectuate the Notices described herein and for payment of the costs of such Notices. 8. ELIGIBILITY FOR AND ADMINISTRATION OF CLASS BENEFIT 8.1. To receive the Refund, each Class Member must accurately complete the Downloadable Claim Form available on the Settlement Website, an example of which is attached as Exhibit 5. Class Members shall submit their completed Downloadable Claim Form online, and then print and send the completed Downloadable Claim Form to the Claims Administrator along with an original or copy of a valid receipt or equivalent proof of purchase from a merchant or financial institution. Each such receipt or equivalent proof of purchase must specify the Flash Memory Device that was purchased, the brand (i.e., Defendant), the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. The Claims Administrator shall have the right, in its good faith judgment, to require additional proof of purchase if the Claims Administrator identifies potential fraud. Class Counsel shall be informed of any significant fraud issues and, if the Parties cannot resolve a dispute regarding the additional requirements informally, shall have the right to present any reasonable dispute to the Court for review. Class Members may complete multiple Downloadable Claim Forms if the Class Member has purchased multiple Flash Memory Devices eligible for the Refund. The envelope containing the Downloadable Claim Forms and supporting documentation must be postmarked no later than one hundred and fifty (150) days after the Notice Date or thirty (30) days after Final Approval, whichever is later. Within thirty (30) days after the end of the Claim Period or thirty 05478/1826205.1 12
  13. 13. (30) days after the Effective Date, whichever is later, the Claims Administrator shall pay the Refund(s) for all portions of the claim that are valid, on behalf of the Defendant(s) whose product(s) were purchased. If the claim is rejected in whole or in part, the Claims Administrator will within thirty (30) days after the end of the Claim Period or thirty (30) days after the Effective Date, whichever is later, inform the Class Member in writing of the reasons for rejection. If the claim is rejected on the grounds that the Class Member’s receipt or other proof of purchase is insufficient, but the Class Member would have been entitled to receive one or more Discount codes had the Class Member elected to make a claim under Section 8.2, the Claims Administrator shall provide the Class Member with the number of Discount codes to which the Class Member would have been entitled had the Class Member elected to make a claim under Section 8.2, along with written instructions as to how to use the Discount codes. The Claims Administrator shall not be obligated to return original receipts or proofs of purchase. 8.2. To receive the Discount, Class Members must complete the Online Claim Form on the Settlement Website, an example of which is attached as Exhibit 6. The Online Claim Form will require the Class Member, under penalty of perjury, to specify the Flash Memory Device purchased, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. The Online Claim Form must be completed no later than one hundred and fifty (150) days after Notice Date or thirty (30) days after Final Approval, whichever is later. Upon completing the Online Claim Form, the Class Member will receive one Discount code for each prior purchase of a Flash Memory Product during the claim period, limited to one Discount code per Defendant whose Flash Memory Products were purchased. Each Discount code can be used only once, towards a single purchase of a Flash Memory 05478/1826205.1 13
  14. 14. Product at Defendants’ Online Stores, and cannot be combined with any other offer. The Discount code will expire one year after the Effective Date, or one year after the date that it is sent to Class Members, whichever is later. 8.3. Defendants shall be responsible for processing the Claim Form and administering the Class Benefit redemption process described herein; shall ensure the operability of the Settlement Website; shall provide online instructions and telephone assistance to Class Members who have technical difficulties with the Online Claim Form or the Discount codes; shall update the online instructions to reflect frequently asked questions; and shall bear all reasonable costs associated therewith, including all costs, fees or expenses incurred by the Claims Administrator. Defendants shall use personal identifying information collected through the Online Claim Form and the Downloadable Claim Form only for the purpose of fulfilling the terms of this Settlement Agreement and shall so inform Class Members on the Settlement Website, the Online Claim Form and the Downloadable Claim Form. 9. OPTING OUT OF CLASS 9.1. Any Class Member may opt-out of the Settlement Class by submitting a written, signed request to opt-out, by postage-paid, first class mail, with the following: (1) their name, address, and telephone number, (2) reference to this Litigation (i.e., Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04-428953), (3) identify the Flash Memory Device(s) purchased, including the brand, (4) identify the approximate date of purchase and (5) a statement that they wish to opt-out of the Class to: Flash Memory Settlement Opt Out 5654 Geary Blvd., #210511 San Francisco, CA 94121 05478/1826205.1 14
  15. 15. 9.2. Any opt-out letter must be postmarked on or before May 23, 2006. 10. RELEASES 10.1. Class Representatives (for themselves and as representatives of the Settlement Class, and on behalf of each Class Member), Defendants, and their respective agents, successors, heirs, or assigns, shall be deemed to have, and by operation of the Final Approval, shall have fully, finally, and forever irrevocably released, relinquished, and discharged with prejudice the Released Parties (including their past and present officers, directors, agents, designees, servants, sureties, attorneys, employees, parents, associates, controlling or principal shareholders, general or limited partners or partnerships, subsidiaries, divisions, affiliates, insurers, heirs, and all successors or predecessors in interest, assigns, or legal representatives) from any and all liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, restitution, disgorgement, costs, attorneys’ fees, losses, expenses, obligations or demands, of any kind whatsoever, whether in arbitration, administrative, or judicial proceedings, whether as individual claims or as claims asserted on a class basis or on behalf of the general public, whether known or unknown, suspected or unsuspected, threatened, asserted or unasserted, actual or contingent, liquidated or unliquidated, whether under federal statutory law, federal common law or federal regulation, or the statutory or common laws or regulations of any and all states or subdivisions, which are based upon, arising out of, or in any way relating to any of the acts, omissions or other conduct that has been alleged, could have been alleged, or is otherwise referred to in the Litigation, including, but not limited to all claims relating to any advertisement, promotion, packaging, labeling, or other communication of the 05478/1826205.1 15
  16. 16. capacity of any Flash Memory Device, or any use of the binary or decimal system in making claims or representations related to any Flash Memory Device (including by way of illustration and not by limitation references to capacity, useable space, or quantities of pictures or other data that can be stored on Flash Memory Devices), and any claims for malicious prosecution or sanctions (“Released Claims”). By operation of the Final Approval, all Class Members shall be deemed to have waived any and all provisions, rights, and benefits conferred by section 1542 of the California Civil Code or any comparable statutory or common law provision of any other jurisdiction with respect to the Released Claims. Section 1542 reads as follows: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 10.2. The Parties acknowledge, and the Class Members shall be deemed by operation of the Court’s entry of Final Approval to have acknowledged, that the foregoing waiver was separately bargained for and a key element of this Settlement Agreement. 11. PAYMENTS TO CLASS REPRESENTATIVE AND COUNSEL 11.1. Subject to Court approval, Defendants shall pay, and will not contest the reasonableness of, a $1,000.00 incentive award to each named Class Representative, to compensate them for the risks undertaken and time spent in litigating this case. Each Class Representative shall not seek an incentive award greater than $1,000.00. 11.2. Subject to Court approval, Defendants agree to pay, and not contest the reasonableness of, an award of fees and costs of up to $2,400,000. Defendants shall bear the 05478/1826205.1 16
  17. 17. costs attendant upon notice and administration of this Settlement. Defendants shall not be liable for any other costs in connection with this matter. Class Counsel and the Class Representatives agree that the denial, downward modification, or failure to grant the request for attorneys’ fees and costs shall not constitute grounds for termination of the settlement. 11.3. Said awards, attorneys’ fees, and costs will be paid within seven (7) days of the Effective Date. 12. PROCEDURE FOR CLASS CERTIFICATION AND APPROVAL, SEVERANCE, AND APPOINTMENT OF COUNSEL 12.1. Class Representatives will prepare and submit to the Court motions for Preliminary and Final Approval consistent with the terms of this Agreement. 12.2. The Parties agree to jointly request that the Court enter an order in the form attached as Exhibit 3 (the “Preliminary Approval Order”) and a judgment in the form attached as Exhibit 4. 12.3. Plaintiffs, Defendants, Settlement Class Counsel, and Defendants' Counsel agree to recommend approval of and to support this Settlement Agreement to the Court and to the Class Members and to undertake their best efforts, including all reasonable steps and efforts contemplated by this Settlement Agreement and any other reasonable steps and efforts that may be necessary or appropriate, by order of the Court or otherwise, to carry out the terms of this Settlement Agreement. The Parties shall aggressively cooperate, assist, and undertake all reasonable actions in order to accomplish the above on a timely basis in accordance with the schedule established by the Court. 12.4. Defendants are entitled to communicate with the Class Members in the ordinary 05478/1826205.1 17
  18. 18. course of Defendants’ business and to answer Class Members’ questions about the Litigation and this Settlement Agreement. However, Defendants will not aid or encourage any objections to this Settlement Agreement (or any of its terms or provisions) nor to final certification of the Settlement Class, nor encourage any Class Members to elect to opt-out. 12.5. Class Counsel shall make all reasonable efforts to enforce the jurisdictional and injunctive provisions of this Settlement Agreement. Any time and expense incurred by Plaintiffs and Settlement Class Counsel to enforce the jurisdictional and injunctive provisions shall be deemed to be within the awards, attorneys’ fees and costs awarded by the Court pursuant to Sections 11.1 and 11.2 of this Agreement. 12.6. Upon the Court's final approval of this Agreement and the Settlement set forth herein, a judgment in the form attached hereto as Exhibit 4 shall be entered (“Final Approval Order.”). 12.7. If any proceeding or action is commenced by any federal, state, or local governmental authority in a parens patriae function (and not in its capacity as a Class Member that has opted-out of the Settlement Class), Defendants shall have the option, in its sole discretion, to immediately suspend relief to citizens of that jurisdiction pending the outcome of the action brought by the governmental authority. 13. TERMINATION OF AGREEMENT 13.1. If the Court does not enter the Preliminary Approval Order that is substantially similar to the order attached hereto as Exhibit 3, if the Court does not enter a Final Approval Order that is substantially similar to the order attached hereto as Exhibit 4, or if the Court’s Final Approval Order does not become final as a result of an appeal or subsequent proceedings on 05478/1826205.1 18
  19. 19. remand, nothing herein shall be deemed to prejudice the position of any of the Parties with respect to the Litigation or otherwise, and neither the existence of this Agreement nor its contents shall be admissible in evidence, referred to for any purpose in the Litigation or in any other litigation or proceeding, or be deemed a presumption, concession or admission by Defendants of any fault, liability or wrongdoing, or of the existence of a certifiable class. 13.2. Notwithstanding Section 13.1, the Parties retain any and all rights to assert a breach of the Agreement and to use this Agreement in connection with such a claim. Further, notwithstanding the foregoing or any other provision herein to the contrary, the Court may reduce the amount of attorneys' fees and costs to be awarded to Settlement Class Counsel or incentive award to the Class Representatives without any further action or agreement by the Parties and without any impact on the remainder of this Agreement. 13.3. The certification of the Class shall be effective only with respect to this Settlement of the Litigation. In the event that the Agreement is terminated pursuant to its terms or the Effective Date does not occur for any reason, the certification of the Class shall be vacated, and the Litigation shall proceed as though this Settlement had not been reached and the Class had never been certified. 13.4. In the event that the Agreement is terminated pursuant to its terms or the Effective Date does not occur for any reasons, the Parties will be restored to their respective positions in the Litigation as of December 5, 2005. 13.5. At least fifteen (15) business days before initiating an action against any Party for breach of this Agreement, notice of the breach must be provided to the allegedly breaching Party to provide an opportunity to cure. If the breach is cured within the fifteen (15) business day time 05478/1826205.1 19
  20. 20. period, no action to enforce the Settlement Agreement may be brought. As used in this Section 13.5, notice shall be made in writing and shall be deemed to have been duly given if hand delivered, mailed US Post return receipt requested, by overnight delivery or facsimile, independently documented, to the Party at the law firm(s) set forth in Section 4.12 above. If notice is sent to any Defendant an additional copy shall also be sent to that Defendant’s corporate headquarters, “Attention: Legal Department.” 14. STAY OF PROCEEDINGS All proceedings in the Litigation, except as set forth herein or as necessary to consummate the settlement for which this Agreement provides, will be stayed, unless otherwise ordered by the Court. 15. ADDITIONAL PROVISIONS 15.1. This Agreement contains the entire agreement among the parties hereto and supersedes any prior agreements or understandings between them. All terms of this Agreement are contractual and not mere recitals. The terms are and shall be binding upon each of the parties hereto, their agents, attorneys, employees, successors, and assigns, and upon all other persons claiming any interest in the subject matter hereto through any of the parties hereto, including any Class Member. 15.2. This Agreement may be amended or modified only by a written instrument signed by counsel for all parties. Amendments and modifications may be made without notice to the Class Members unless the Court requires notice. 15.3. This Agreement shall be subject to, governed by, construed, and enforced pursuant to the laws of the State of California. 05478/1826205.1 20
  21. 21. 15.4. The exhibits to this Agreement are integral parts of the Agreement and Settlement and are hereby incorporated and made a part of this Agreement. 15.5. To the extent permitted by law, this Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding that may be instituted, prosecuted or attempted in breach of this Agreement. 15.6. This Agreement shall be deemed executed upon the last date of execution by all of the undersigned counsel. 15.7. This Agreement may be executed in counterparts, each of which shall constitute an original. The several signature pages may be collected and annexed to one or more documents to form a complete counterpart. Photocopies or .pdf files of executed copies of this Agreement may be treated as originals. 15.8. All time periods and dates relating to the approval of this Agreement and the notification of the Class (but not those relating to the substantive rights of the parties and Class Members, such as those that are part of the class definition) are subject to approval and change by the Court. 15.9. With the exception of any statements Defendants may need to issue for S.E.C., public company reporting or auditing, or other regulatory purposes, in any press announcement, press release, or other public statement concerning the Litigation or the settlement thereof, each Party’s statements shall be limited to the information contained in the Long Form Notice, unless the Party receives permission from all other Parties to make a different statement, which permission shall not be unreasonably withheld. In addition, the press announcement, press release or other public statement shall state that the settlement is not an admission of misconduct 05478/1826205.1 21
  22. 22. and that Defendants deny any liability or wrongdoing. 15.10. During the Litigation, Defendants have shared with Class Counsel certain confidential documents, including but not limited to, historical sales data. Consistent with Paragraph 21 of the Protective Order dated August 10, 2004, no later than ten (10) days after the Effective Date, Class Counsel shall return to Defendants or destroy all copies of such confidential documents, and shall certify in writing that they have done so. 15.11. No part of this Agreement shall be admissible against the Parties in this or any court, administrative or other proceeding, except for a proceeding to enforce the terms of this Agreement in this Court and except as set forth in Section 15.5. 05478/1826205.1 22
  23. 23. EXHIBIT 1
  24. 24. NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT (“NOTICE”) TO: All persons who purchased within the United States a Flash Memory Device manufactured, branded, and/or sold by one of the Defendants between February 1, 2000 and February 7, 2006. THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ THE COMPLETE NOTICE CAREFULLY. I. Purpose of this Notice. There is now pending in the Superior Court of the City and County of San Francisco a class action lawsuit entitled Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04-428953 (the “Litigation”). This Notice explains the nature of the Litigation, general terms of a proposed settlement, and informs you of your legal rights and obligations. Unless otherwise set forth, this Notice incorporates by reference the definitions set forth in the Class Action Settlement Agreement. Plaintiffs Vroegh and Witthoff (“Plaintiffs”) filed a class action lawsuit against Eastman Kodak Company, Fuji Photo Film U.S.A., Inc., Lexar Media, Inc., PNY Technologies, Inc. and SanDisk Corporation (“Defendants”) on behalf of the Class described above. Plaintiffs allege that in the sale and marketing of the Flash Memory Devices, Defendants overstate the useable storage capacity by approximately 4%. For example, Plaintiffs allege that a 256MB Flash Memory Device had only 244MB of accessible memory. Plaintiffs allege that Defendants marketed the memory capacity of their products by assuming that one megabyte equals one million bytes and one gigabyte equals one billion bytes. Plaintiffs further allege that these assumptions are incorrect, that Defendants failed to inform consumers of their assumptions, and that certain Defendants’ websites expressly told consumers that they were defining megabyte to equal 1,048,576 bytes and gigabyte to equal 1,073,741,824 bytes. Plaintiffs also allege that, undisclosed to consumers, a portion of the represented storage capacity of the Flash Memory Devices was used for formatting or operating the devices. Class Counsel believes that at least eighty million Flash Memory Devices were sold during the Class Period at an average price in excess of $40.00. Plaintiffs claim that Defendants’ actions constituted false advertising, unfair business practices, breach of contract, fraud, and violations of the California Consumers Legal Remedy Act. Plaintiffs sought restitution, damages, punitive damages, and injunctive relief. Defendants deny all of Plaintiffs’ allegations; that they engaged in any wrongful, deceptive, or misleading practice; or that they are liable in any manner for the claims alleged in the Litigation. To the contrary, Defendants assert that their marketing and advertising complied in all respects with the law and that no Class Members, including the Plaintiffs, were deceived or have sustained any damages or injuries related to Defendants’ marketing or advertising practices. Defendants contend that, at all times, they have labeled their flash memory storage devices consistent with both industry practice as well as the standards officially sanctioned by the International Electrotechnical Commission (“IEC”) and the Institute for Electrical and Electronics Engineers (“IEEE”). Nonetheless, Defendants have concluded that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions of the proposed settlement. Plaintiffs and Plaintiffs’ Counsel have investigated and evaluated the claims asserted in the Litigation and have determined that the proposed settlement is fair, reasonable and adequate. The proposed Settlement does not call for memory to be added to Class Member’s Flash Memory Devices as this is not technologically possible. The proposed settlement, however, will provide each eligible Class Member with a refund of a portion of the original purchase price equal to or greater than the percentage of allegedly “missing” storage capacity. Alternatively, Class Members will be able to receive a discount on the purchase of new flash storage capacity, where the discounted percentage is generally in excess of twice the percentage of the allegedly “missing” storage capacity. The settlement also requires Defendants to make disclosures in future packaging about the useable capacity of the Flash Memory Devices. Plaintiffs believe that by providing the Class Benefits and changing their practices as set forth in this Agreement, Class Members are made whole for any loss they allegedly suffered in not receiving the memory allegedly promised. Plaintiffs believe that there are many risks to going forward with the Litigation, including the risks of not being able to certify the case as a class action, or of certifying a class but failing to prove liability or damages. 05478/1826177.1 1
  25. 25. Judge Richard A. Kramer of the Superior Court of the City and County of San Francisco (also referred to as the “Court”) has determined that this Litigation should proceed as a class action, for purposes of settlement only, with Plaintiffs as the representatives of the Class, and has granted preliminary approval of the settlement. II. Class Members. The Court has conditionally ruled that the Litigation may be maintained on behalf of the following: All persons who purchased within the United States a Flash Memory Device or Flash Memory Products manufactured, branded, and/or sold by one of the Defendants between February 1, 2000 and February 7, 2006, except Excluded Class Members. Such persons must be the original purchaser for his/her own personal use and not for business use. “Flash Memory Device(s)” or “Flash Memory Product(s)” mean any removable digital storage media or integrated digital storage devices that incorporate flash memory technology, including without limitation flash memory cards, CompactFlash cards, SmartMedia cards, MultiMedia cards, SecureDigital (or SD) cards, xD-picture cards or USB memory, Memory Sticks®, USB drives, thumb drives, JumpDrives™, flash drives, or digital cameras that contain integrated flash memory cards or come bundled with such flash memory cards. Excluded from the Class are Defendants, their directors, officers, and employees; Judge Kramer and his immediate family; Antonio Piazza and his immediate family; and all persons who timely and validly request exclusion from the Class in compliance with the requirements of this Notice. Non-excluded persons and entities that fall within the above definition are referred to as “Class Members.” III. Settlement Benefit For Class Members. A. If this settlement is finally approved by the Court, Defendants will include language that is reasonably calculated to inform consumers that the useable storage capacity of their Flash Memory Devices may be less than the stated amount of storage on the packaging of their Flash Memory Devices. Such language also shall appear in the product descriptions for Flash Memory Devices on Defendants’ Websites and Defendants’ Online Stores. Suggested examples of that language and a more detailed description of the disclosure requirements dictated by this settlement can be found in Section 5 of the Settlement Agreement. B. Subject to the claims process and limitations set forth in the Agreement, if this settlement is finally approved by the Court, Defendants will provide to Class Members one of the following (“Class Benefit”) for each Flash Memory Device purchased: 1. A cash refund equal to five percent (5%) of the purchase price of each Flash Memory Device purchased during the Refund Class Period (“Refund”); or 2. For up to one Flash Memory Device purchased during the Discount Class Period from each Defendant, a discount of ten percent (10%) off a future online purchase from Defendants’ Online Stores Flash Memory Device (“Discount”). Please note the following: (i) The Discount need not be provided on purchases of Flash Memory Devices as to which Lexar, PNY and SanDisk were contractually or legally prohibited from providing such discounts as of December 6, 2005, which are: Lexar’s LockTight flash memory cards, Lexar’s ActiveMemory flash memory cards, and Lexar’s Professional Series flash memory cards. (ii) For any digital camera purchased from Defendants FujiFilm or Kodak during the Refund Purchase Period that included Digital Camera Bundled Flash Memory, the Refund shall apply not against the purchase price of the digital camera but only against the value of the Digital Camera Bundled Flash Memory. Exclusively for purposes of this Settlement, each Digital Camera Bundled Flash Memory is deemed to have had a purchase price of $20.00. IV. Claims Process and Deadline. A. Claims Process. 05478/1826177.1 2
  26. 26. 1. To receive the Refund, each Class Member must accurately complete and submit the Downloadable Claim Form available on http://www.flash-settlement.com (“Settlement Website”). Class Members must then print and mail the completed Downloadable Claim Form to the Claims Administrator, along with an original or copy of a valid receipt or the equivalent proof of purchase from a merchant or financial institution specifying the Flash Memory Device purchased, brand, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. 2. To receive the Discount, Class Members must complete the Online Claim Form on the Settlement Website. The Online Claim Form will require the Class Member, under penalty of perjury, to specify the Flash Memory Device purchased, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. Upon completing the Online Claim Form, the Class Member will receive one Discount code for each prior purchase of a Flash Memory Device during the Discount Purchase Period, limited to one Discount code per Defendant whose Flash Memory Devices were purchased. Each Discount code can be used only once, towards a single purchase of a Flash Memory Device at Defendants’ Online Stores, and cannot be combined with any other offer. The Discount and the Refund are mutually exclusive. B. Claims Deadline. The Downloadable Claim Form and/or Online Claim Form must be completed no later than one hundred and fifty (150) days after Notice Date or thirty (30) days after Final Approval, whichever is later. Class Members who do not complete a Claim Form by that date will not be eligible to receive the Class Benefit. V. Dismissal of Litigation, Entry of Judgment and Release of Claims. If the Court approves the proposed settlement, it will enter a judgment that will dismiss the Litigation on the merits and with prejudice as to all Class Members. All Class Members who do not validly and timely request to be excluded from the proposed settlement shall be forever barred from prosecuting their own lawsuits and shall be deemed to have fully, finally and forever irrevocably released Defendants and each of their past or present officers, directors, employees, agents, designees, servants, sureties, attorneys, parents, associates, controlling or principal shareholders, general or limited partnerships, subsidiaries, divisions, affiliates, insurers, heirs, and all successors or predecessors in interest, assigns or legal representatives from any and all liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, restitution, disgorgement, costs, attorneys’ fees, losses, expenses, obligations or demands, of any kind whatsoever, whether in arbitration, administrative, or judicial proceedings, whether as individual claims or as claims asserted on a class basis or on behalf of the general public, whether known or unknown, suspected or unsuspected, threatened, asserted or unasserted, actual or contingent, liquidated or unliquidated, whether under federal statutory law, federal common law or federal regulation, or the statutory or common laws or regulations of any and all states or subdivisions, that any Class Member has or may claim to have against such persons which are based upon, arise out of, or in any way relate to any of the acts, omissions or other conduct that has been alleged or could have been alleged or is otherwise referred to in the Litigation, including, but not limited to all claims relating to any advertisement, promotion, packaging, labeling, or other communication of the capacity of any Flash Memory Device, or any use of the binary or decimal system in making claims or representations related to any Flash Memory Device (including, by way of illustration and not by limitation, references to capacity, useable space, or quantities of pictures or other data that can be stored on Flash Memory Devices). All Class Members shall be deemed to have waived any and all provisions, rights, and benefits conferred by section 1542 of the California Civil Code or any comparable statutory or common law provision of any other jurisdiction with respect to the Released Claims. Section 1542 reads as follows: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 05478/1826177.1 3
  27. 27. All Class Members expressly acknowledge that they are waiving the protections of Section 1542 and of any comparable statutory or common law provision of any jurisdiction. VI. Attorneys’ Fees and Costs. From the inception of this lawsuit, Plaintiffs’ Counsel have not received payments for their services, nor have they been reimbursed for any out-of-pocket expenses. If the Court approves the settlement, Plaintiffs’ Counsel will ask the Court to award, and Defendants have agreed to pay, and not contest the reasonableness of, an award of fees and costs up to $2,400,000. Additionally, Plaintiffs’ Counsel will ask the Court to award Plaintiffs Vroegh and Witthoff $1,000 each for their time and effort related to the Litigation, and Defendants have agreed not to contest the reasonableness of the award. Finally, Defendants have agreed to administer the settlement including the class notice, claim forms, and provisions of the Class Benefit, and have agreed to bear their own costs associated therewith. Any award of attorneys’ fees, costs, and any payment to the Plaintiffs will be paid separately from, and will not reduce, the Class Benefit provided under the settlement. Class Members will not be personally liable for any attorneys’ fees, costs or payment to the Plaintiffs. VII. Rights and Options of Class Members. A. Remain a Class Member. 1. If you do not request exclusion from the Class, you will remain a Class Member. Your interests in connection with the proposed settlement will be represented by Plaintiffs and Plaintiffs’ Counsel. You will not be charged for the services or expenses of Plaintiff’s Counsel. You must comply with the Claims Process and Deadline requirements described above in Section VI in order to receive the Class Benefit. Plaintiffs’ and Defendants’ Counsel include the following attorneys and law firms: 05478/1826177.1 4
  28. 28. GUTRIDE SAFIER LLP WINSTON & STRAWN, LLP Adam Gutride, Esq. Ronald Y. Rothstein, Esq. Seth A. Safier, Esq. 101 California Street, Suite 3900 835 Douglass Street San Francisco, CA 94111 San Francisco, CA 94114 (Eastman Kodak Company) MILBERG WEISS BERSHAD PACHULSKI, STANG, ZIEHL, YOUNG, JONES & SCHULMAN LLP & WEINTRAUB Michael R. Reese, Esq. Ellen Bender, Esq. One Pennsylvania Plaza 10100 Santa Monica Blvd., 11th Floor New York, NY 10119-0165 Los Angeles, CA 90067 (Fuji Photo Film U.S.A., Inc.) Counsel for Plaintiffs QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Jeff McFarland, Esq. 865 South Figueroa Street,10th Floor Los Angeles, CA 90017 (Lexar Media, Inc.) McCARTER & ENGLISH LLP William J. Heller, Esq. Four Gateway Center 100 Mulberry St. Newark, NJ 07102 (PNY Technologies, Inc.) WILSON SONSINI GOODRICH & ROSATI, PC Keith E. Eggleton, Esq. 650 Page Mill Road Palo Alto, CA 94304 (SanDisk Corporation) Counsel for Defendants 2. If the settlement is approved by the Court and the judgment becomes final, you will be entitled to the Class Benefits described in Section III, above. If the settlement is not granted final approval or the judgment does not become final, the certification of the Class will be vacated and the Litigation will continue as if no proposed settlement has been reached. 3. As a Class Member, you will be bound by any judgment or other disposition of the Litigation, even if you do not submit a claim or take advantage of any of the Class Benefit. Furthermore, you and your heirs, executors, administrators, representatives, agents, partners, successors, and assigns will be deemed to have agreed to the terms of the settlement and the release set forth in Section V, above. B. Opt-Out of the Settlement. You have the right to opt-out of the settlement. If you opt-out of the settlement, you will not be bound by or subject to any judgment or settlement of the Litigation. If you opt-out, however, you will also not be entitled to receive the Class Benefit. If you wish to opt-out, you must, submit a written, signed request to opt-out, by postage-paid, first class mail, stating (1) your name, address, and telephone number, (2) a reference to this Litigation (i.e., Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04- 428953), (3) a statement that you purchased one or more Flash Memory Device(s), including the brand, (4) identify the approximate date of purchase during the Class Period and (5) a statement that you wish to opt-out of the Class. Requests to opt-out must be sent to Flash Memory Opt-Out, 5654 Geary Blvd., #210511, San Francisco, CA 94121 and post-marked no later than May 23, 2006. If you do not submit a timely opt-out request that complies with these requirements, your opt-out request will be deemed invalid and you will not be excluded from the Class. 05478/1826177.1 5
  29. 29. C. Intervene In The Litigation And/Or Object to the Settlement. You have the right to intervene in the Litigation and/or object to, or comment on, the proposed settlement, award of attorneys’ fees, cost or payment to the Plaintiffs as set forth in Section IX, below. IX. Final Settlement Hearing and Settlement Objections. A. On June 21, 2006 at 10:30 a.m., a public hearing will be held before Judge Richard A. Kramer of the Superior Court of California, County of San Francisco, located at 400 McAllister Street, San Francisco, CA 94102, Department 304 (“Settlement Hearing”). The Settlement Hearing will determine: (1) whether the proposed settlement of the Litigation as set forth in the Class Action Settlement Agreement is just, fair, reasonable, and adequate for the Class and should be granted final approval; (2) whether certification of the Class should be made final; (3) whether the Court should enter the proposed judgment dismissing the Litigation with prejudice; (4) whether the Court should award Plaintiffs’ Counsel attorneys’ fees and costs in the amount set forth in the Class Action Settlement Agreement; and (5) whether the Court should award each Plaintiff $1,000 for their time and effort in the Litigation. You are not required to attend the Settlement Hearing. B. Objection Procedure and Deadline. 1. If you are a Class Member, you have the right to intervene in or object to the settlement. To do so, you must submit a written statement setting forth: (1) your name, address, and telephone number, (2) reference to this Litigation (i.e., Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04-428953), (3) identify the Flash Memory Device(s) that you purchased, including the brand, (4) identify the approximate date of purchase, and (5) your objection/intervention, notice of intent to appear, and comments and supporting arguments to: Clerk of the Court Superior Court of California, County of San Francisco Room 103 400 McAllister Street San Francisco, CA 94102 You must also deliver identical copies of your written submission to Plaintiffs’ Counsel and all of Defendants’ Counsel at the addresses set forth above. Your written objection or request to intervene must be received by the Court and by Plaintiffs’ Counsel and Defendants’ Counsel (and not merely postmarked) by May 30, 2006. Your submission to the Court must include a certification that you have personally delivered identical copies to Plaintiffs’ Counsel and all of Defendants’ Counsel, or that you have mailed such copies by postage prepaid first-class mail to Plaintiffs’ Counsel and all of Defendants’ Counsel on or before May 23, 2006. You cannot object or request to intervene if you have opted out of the class. Only those that remain in the Class may object to the settlement or request to intervene. You also have a right to hire an attorney at your own expense to assist you or to represent you. 2. You may also attend the Final Settlement Hearing either in person or through an attorney retained by you at your own expense. X. Additional Information and Important Dates. A. Additional Information. The description of the Litigation set forth in this Notice is general and does not cover all of the issues and proceedings thus far. If you have additional questions you can contact Plaintiff’s Counsel. To see the complete file including the individual terms of the settlement in the Litigation, you should visit the Clerk of the San Francisco Superior Court, Room 103, 400 McAllister Street, San Francisco, California 94102. The Clerk will make the file relating to the Litigation available to you for inspection and copying at your own expense. B. Deadlines and Dates to Remember. 05478/1826177.1 6
  30. 30. • May 23, 2006 is the deadline to Opt-Out of the settlement. • May 30, 2006 is the deadline for Intervention/Objection. • June 21, 2006 at 10:30 a.m. is the Settlement Hearing Date. • September 14, 2006, or 30 days after Final Approval, whichever is later, is the deadline to complete the Class Benefit Claim Process. Dated: By: _____________________________ HONORABLE JUDGE RICHARD A. KRAMER 05478/1826177.1 7
  31. 31. EXHIBIT 2
  32. 32. Attention all persons who purchased within the United States a Flash Memory Device from SanDisk, Kodak, Fuji, PNY or Lexar between February 1, 2000 and February 7, 2006: A class action lawsuit may affect your rights. The lawsuit claims that SanDisk, Kodak, Fuji, PNY and Lexar (“Defendants”) overstated the memory capacity of their Flash Memory Devices. Flash Memory Devices includes flash memory cards (typically used in digital cameras), USB flash drives and other devices incorporating flash memory. The settlement will affect all persons who purchased within the United States a Flash Memory Device manufactured, branded, and/or sold by SanDisk, Kodak, Fuji, PNY or Lexar between February 1, 2000 and February 7, 2006. Under the settlement, Class Members will receive one of the following for each Flash Memory Device purchased: • 5% refund of your purchase price; or • 10% discount towards a new Flash Memory Device. To receive these benefits, you must fill out the form at www.flash-settlement.com by September 14, 2006. If the settlement is approved, class members will be barred from bringing other lawsuits about advertising and marketing of Flash Memory Devices. In addition, Defendants will agree to pay up to $2,400,000 in attorneys’ fees and expenses to Class Counsel. You will not be responsible to pay these fees or expenses. Class Counsel is Gutride Safier LLP (www.gutridesafier.com) and Milberg, Weiss, Bershad and Schulman LLP (www.milbergweiss.com). You have the right to object to the settlement, or to opt-out of the settlement and retain your right to bring a separate lawsuit. The deadline to opt-out is May 23, 2006 and the deadline to object is May 30, 2006. For important additional information and instructions visit www.flash-settlement.com. 05478/1826216.1 1
  33. 33. EXHIBIT 3
  34. 34. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WILLEM VROEGH, an individual, and California resident, on behalf of himself, the CASE NO. CGC-04-428953 general public and one or more classes of similarly situated persons; ET AL CLASS ACTION Plaintiffs, Action Filed: February 20, 2004 v. [PROPOSED] PRELIMINARY APPROVAL Date: February 23, 2006 EASTMAN KODAK COMPANY, a foreign Time: 2:00 p.m. corporation; ET AL Dept.: 304 Defendants WHEREAS, a class action lawsuit is pending before this Court entitled Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04-428953 (the “Litigation”); and WHEREAS, the Parties have applied to the Court for an Order approving a settlement of the Litigation in accordance with a Settlement Agreement dated February 2, 2006 (the “Agreement”), which has been entered into by Plaintiffs, on behalf of himself and the Settlement Class defined therein, and Defendants; and WHEREAS, the Court has read and considered the Agreement and its attached exhibits, and has listened to and considered the arguments of counsel for the Parties at a hearing held on February 7 and 23, 2006, in this matter and, good cause appearing, IT IS HEREBY ORDERED AS FOLLOWS: 1. The Court preliminarily certifies the Settlement Class, for settlement purposes only, consisting of: All persons who purchased within the United States a Flash Memory Device manufactured, branded, and/or sold by one of the Defendants between February 1, 2000 and February 7, 2006, except Excluded Class Members. Such persons must be the original purchaser for his/her own personal use and not for business use. Excluded from the Class are Defendants, their directors, officers, and employees; Judge Kramer and his immediate family; Antonio Piazza and his immediate family; and all persons who timely and validly request exclusion from the Class in compliance with the requirements of the Long Form Settlement Notice. 2. The Court, following hearings held on February 7 and 23, 2006, in which counsel for the 05478/1826199.1 1
  35. 35. Parties appeared and were heard by the Court, and after reading and considering the Agreement and related exhibits, preliminarily approves the Agreement and the settlement terms described therein. As there are no grounds to doubt its fairness and the settlement appears to fall within the range of possible approval, it merits submission to the Settlement Class for consideration. The Court finds that the proposed settlement results from extensive arms-length negotiations, including mediation before Antonio Piazza, between counsel for the Parties and only after counsel conducted a thorough examination and review of the relevant law, facts, and allegations to assess the merits of Plaintiffs’ claims. 3. The Court preliminarily approves Plaintiffs Willem Vroegh and Scott Witthoff as class representatives, and preliminarily approves Plaintiffs’ attorneys, Gutride Safier LLP and Milberg Weiss Bershad & Schulman LLP, as Settlement Class Counsel in this Litigation. 4. A final hearing (the “Settlement Hearing”) shall be held before this Court on June 21, 2006, at 10:30 a.m. to determine: (1) whether the proposed settlement of the Litigation as set forth in the Settlement Agreement is just, fair, reasonable, and adequate for the Class and should be granted final approval; (2) whether certification of the Class should be made final; (3) whether the Court should enter the proposed judgment dismissing the Litigation with prejudice; (4) whether the Court should award Class Counsel’s attorneys’ fees and costs in the amount set forth in the Settlement Agreement; and (5) whether the Court should award Plaintiffs $1,000 each for their time and effort in the Litigation. The Settlement Hearing may be postponed, adjourned, or rescheduled by the Court without further notice to the Settlement Class. 5. The Court approves as to form and content the Notice of Class Litigation and Proposed Settlement (the “Long Form Notice”), in the form of Exhibit 1 to the Settlement Agreement, and the Summary Notice of Class Litigation and Proposed Settlement (collectively, the “Summary Notice”), in the form of Exhibit 2 to the Settlement Agreement. The Court finds that the Long Form Notice and Summary Notice are written in plain English and are readily understandable by Class Members. The Court finds that the Long Form Notice and Summary Notice fairly apprise the Class Members: (1) of the pendency of the Litigation; (2) of their right to exclude themselves from the Class and the proposed 05478/1826199.1 2
  36. 36. settlement; (3) that any Judgment will bind all Class Members who do not request exclusion; and (4) that any Class Member may object to the settlement. 6. The Court finds that the method of publication for the Notice to the Settlement Class as set forth in the Agreement is the best notice practicable under the circumstances, and shall constitute valid, due, and sufficient notice to all Class Members in the Settlement Class, and that such Notice complies with California Code of Civil Procedure § 382, the Federal Rules of Civil Procedure, the Constitution of the State of California, the Constitution of the United States, and all other applicable laws. 7. The Court approves the Claim Forms, attached to the Settlement Agreement as Exhibits 5 and 6, for submission to the Settlement Class. 8. Defendants are ordered to publish Notice to Class Members, as set forth in the Agreement, no later than forty-five (45) days following entry of this Order. 9. Any person may appear at the Settlement Hearing and object to the proposed settlement or any part thereof or request to intervene. However, objections to the proposed settlement and requests to intervene shall be heard, and any papers or briefs submitted in support of said objections/intervention shall be considered by the Court (unless the Court in its discretion shall otherwise direct), only if, on or before May 30, 2006, said objectors have filed with the Court written notice of their intention to appear and all papers and briefs they propose to discuss at the Settlement Hearing. Such written notices must be received by the Court (not merely postmarked) by May 30, 2006 and must include a certification that identical copies thereof have been actually delivered, or if mailed, post-marked, on or before May 23, 2006 to the following: 05478/1826199.1 3
  37. 37. GUTRIDE SAFIER LLP WINSTON & STRAWN, LLP Adam Gutride, Esq. Ronald Y. Rothstein, Esq. Seth A. Safier, Esq. 101 California Street, Suite 3900 835 Douglass Street San Francisco, CA 94111 San Francisco, CA 94114 (Eastman Kodak Company) MILBERG WEISS BERSHAD PACHULSKI, STANG, ZIEHL, YOUNG, JONES & & SCHULMAN LLP WEINTRAUB Michael R. Reese, Esq. Ellen Bender, Esq. One Pennsylvania Plaza 10100 Santa Monica Blvd., 11th Floor New York, NY 10119-0165 Los Angeles, CA 90067 Counsel for Plaintiffs (Fuji Photo Film USA, Inc.) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Jeff McFarland, Esq. 865 South Figueroa Street,10th Floor Los Angeles, CA 90017 (Lexar Media, Inc.) McCARTER & ENGLISH, LLP William J. Heller, Esq. Four Gateway Center 100 Mulberry St. Newark, NJ 07102 (PNY Technologies, Inc.) WILSON SONSINI GOODRICH & ROSATI, PC Keith E. Eggleton 650 Page Mill Road Palo Alto, CA 94304 (SanDisk Corporation) Counsel for Defendants 10. All requests for exclusion from the Settlement Class must be sent, by postage-paid, first class mail to: Flash Memory Settlement Opt Out 5654 Geary Blvd., #210511 San Francisco, CA 94121 A request for exclusion must contain all the following: (1) the name, address, and telephone number of the person requesting exclusion, a (2) reference to this Litigation (i.e., Vroegh, et al v. Eastman Kodak Company, et al., Case No. CGC-04-428953), (3) identification of the Flash Memory Device(s) purchased, including the brand, (4) identification of the approximate date of purchase and (5) a statement that they wish to opt-out of the Class Any opt-out letter must be postmarked on or before May 23, 2006. 05478/1826199.1 4
  38. 38. 11. No later than June 14, 2006, counsel for Plaintiffs shall file a status report on the number of opt-outs. The Parties’ counsel shall also file any supplemental briefs in support of the settlement by that date. 12. To the extent permitted by law, pending final determination of whether the settlement contained in the Agreement should be approved, neither Plaintiffs nor any member of the Settlement Class either directly, indirectly, representatively, or in any other capacity shall commence or prosecute, or cause to be commenced or prosecuted, any Litigation or proceeding in any court or tribunal asserting any of the Released Claims against Defendants, or any of them, unless such member of the Settlement Class shall have sought and received leave from this Court on such terms as are just, including, without limitation, being required to file a request for exclusion from the Settlement Class. 13. The Agreement and settlement are not to be deemed admissions of liability or fault by Defendants, or a finding of the validity of any claims in the Litigation. The Agreement and settlement are not a concession by the Parties. Neither the Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be offered as evidence or received in evidence in any pending or future civil, criminal, or administrative Litigation or proceeding, except in a proceeding to enforce the Agreement or Final Judgment, or to defend against the assertion of the Released Claims, or as otherwise required by law. 14. This Order shall be without prejudice to the rights of the parties, all of whom shall be restored to their respective positions existing as of December 5, 2005, if, for any reason, the Agreement is terminated or the Effective Date does not occur. In such event, as set forth in the Agreement, the Litigation shall proceed as though the Settlement Class had never been certified and the Agreement never had been executed and the Defendants will not be deemed to have consented to certification of any class and will retain all rights to fully object to or oppose any motion for class certification. IT IS SO ORDERED. Dated: February ____, 2006 Honorable Judge Richard A. Kramer 05478/1826199.1 5
  39. 39. EXHIBIT 4
  40. 40. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WILLEM VROEGH, an individual, and California resident, on behalf of himself, CASE NO. CGC-04-428953 the general public and one or more classes of similarly situated persons; ET CLASS ACTION AL Action Filed: February 20, 2004 Plaintiffs, [PROPOSED] FINAL JUDGMENT v. Date: June 21, 2006 Time: 10:30 a.m. EASTMAN KODAK COMPANY, a Dept.: 304 foreign corporation; ET AL Defendants WHEREAS, proceedings regarding the proposed settlement of the above-referenced case (“Litigation”) have been regularly conducted before this Court, the Honorable Richard A. Kramer presiding; and WHEREAS, on February ___, 2006, this Court, following a public hearing and after reading and considering the proposed Settlement Agreement and listening to and considering the arguments of counsel for the Parties, preliminarily approved the Class for purposes of settlement and directed that notice of the proposed settlement be directed to Class Members; and WHEREAS, on June 23, 2006 a Settlement Hearing was held in this Court to consider the fairness, reasonableness, and adequacy of the proposed settlement, and to consider any objections to the settlement; and WHEREAS, the Court has reviewed and considered the executed Settlement Agreement and its related exhibits (“Agreement”) between the Parties, argument of counsel for the Parties in 05478/1826173.1 1
  41. 41. support of the proposed settlement, and all comments and objections received regarding the proposed settlement, and has reviewed the entire record in the Litigation. Good cause appearing, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. The Court has subject matter jurisdiction over all claims of all Class Members asserted in the Litigation and personal jurisdiction over the Plaintiffs, the Class Members, and Defendants. 2. The Court finds that the requirements for class certification under California and Federal law have been met in that: a. Plaintiffs have alleged questions of fact and law common to the Class, including whether Defendants engaged in a nationwide common course of conduct whereby Defendants represented that Class Members would received a certain amount of useable storage capacity on the Flash Memory Devices that they purchased from Defendants, but Class Members in fact received less than represented. The Court finds these common questions of fact and law predominate over questions of fact and law affecting only individual Class Members. b. The Court finds that the claims of the Class Representatives, as purchasers of one or more of the Defendants’ Flash Memory Devices during the Refund Class Period and the Discount Class Period, are typical of the claims of the Class, that there appear to be no conflicts between the interests of the Class Representatives and the Class, and that the Class Representatives and Class Counsel will fairly and adequately protect the interests of the Class. c. The Class comprises more than 80,000,000 Flash Memory Device purchases. The Court finds that the resolution of the Litigation in the manner proposed by the Agreement is superior to all other available methods for a fair and efficient 05478/1826173.1 2
  42. 42. adjudication of the Litigation, and that the proposed settlement provides substantial benefits to the Plaintiffs, the Class, and the Court. 3. Based on the foregoing findings, the Court finds that there is a well-defined community of interests among the Class Members and certifies the following Class: All persons who purchased within the United States a Flash Memory Device manufactured, branded, and/or sold by one of the Defendants between February 1, 2000 and February 7, 2006, except Excluded Class Members. Such persons must be the original purchaser for his/her own personal use and not for business use. Excluded from the Class are Defendants, their directors, officers, and employees; Judge Kramer and his immediate family; Antonio Piazza and his immediate family; and all persons who timely and validly request exclusion from the Class in compliance with the requirements of the Long Form Settlement Notice. 4. The Court reaffirms its Order of February __, 2006 and finds that the Notice to the Settlement Class of the pendency of this Litigation and of this settlement constituted the best notice practicable under the circumstances to all persons within the definition of the Settlement Class, and fully complied with the requirements of due process and all other applicable laws. 5. The Court approves the settlement as set forth in the Agreement as fair, reasonable, and adequate to the Class Members. The Court finds that the consideration to be provided by Defendants as set forth in Section 6 of the Agreement is fair, reasonable, and adequate. 6. For one hundred and fifty (150) days following the Notice Date, or thirty (30) days following Final Approval, whichever is longer, as set forth in the Settlement Agreement, Defendants shall provide one of the following to Class Members who have completed a Claim Form: (i) A cash refund equal to five percent (5%) of the purchase price of each Flash Memory Device purchased during the Refund Class Period (“Refund”). For any digital camera purchased from Defendants FujiFilm or Kodak during the Refund Purchase Period that included Digital Camera Bundled Flash Memory, the Refund 05478/1826173.1 3
  43. 43. shall apply not against the purchase price of the digital camera but only against the value of the Digital Camera Bundled Flash Memory. Exclusively for purposes of this Class Action Settlement, each Digital Camera Bundled Flash Memory is deemed to have had a purchase price of $20.00. To receive the Refund, each Class Member must complete the Downloadable Claim Form available on the Settlement Website, an example of which is attached to the Settlement Agreement as Exhibit 5. Class Members shall submit their completed Downloadable Claim Form online, and then print and send the completed Downloadable Claim Form to the Claims Administrator along with an original or copy of a valid receipt or equivalent proof of purchase from a merchant or financial institution. Each such receipt or equivalent proof of purchase must specify the Flash Memory Device that was purchased, the brand (i.e., Defendant), the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. A Class Member may complete multiple Downloadable Claim Forms if the Class Member has purchased multiple Flash Memory Devices eligible for the Refund. The envelope containing the Downloadable Claim Forms and supporting documentation must be postmarked no later than one hundred and fifty (150) days after the Notice Date or thirty (30) days after Final Approval, whichever is later. Within thirty (30) days after the end of the Claim Period or thirty (30) days after the Effective Date, whichever is later, the Claims Administrator shall pay the Refund(s) for all portions of the claim that are valid, on behalf of the Defendant(s) whose product(s) were purchased. If the claim is rejected in whole or in part, the 05478/1826173.1 4
  44. 44. Claims Administrator will within thirty (30) days after the end of the Claim Period or thirty (30) days after the Effective Date, whichever is later, inform the Class Member in writing of the reasons for rejection. If the claim is rejected on the grounds that the Class Member’s receipt or other proof of purchase is insufficient, but the Class Member would have been entitled to receive one or more Discount codes had the Class Member elected to make a claim under Section 8.2, the Claims Administrator shall provide the Class Member with the number of Discount codes to which the Class Member would have been entitled had the Class Member elected to make a claim under Section 8.2, along with written instructions as to how to use the Discount codes. Claims Administrator shall not be obligated to return original receipts or proofs of purchase. (ii) A discount of ten percent (10%) off a future purchase of a Lexar, PNY or SanDisk Flash Memory Device from Defendants’ Online Stores (“Discount”). The Discount shall not be provided on purchases of Flash Memory Devices as to which Lexar, PNY and SanDisk were contractually or legally prohibited from providing such discounts as of December 6, 2005, which are: Lexar’s LockTight flash memory cards, Lexar’s ActiveMemory flash memory cards, and Lexar’s Professional Series flash memory cards. To receive the Discount, Class Members must accurately complete the Online Claim Form on the Settlement Website, an example of which is attached to the Settlement Agreement as Exhibit 6. The Online Claim Form will require the Class Member, under penalty of perjury, to specify the Flash Memory Device purchased, the price paid, date of purchase and the merchant from whom the Flash Memory Device was purchased. The Online 05478/1826173.1 5
  45. 45. Claim Form must be completed no later than one hundred and fifty (150) days after the Notice Date or thirty (30) days after Final Approval, whichever is later. Upon completing the Online Claim Form, the Class Member will receive one Discount code for each prior purchase of a Flash Memory Product during the claim period, limited to one Discount code per Defendant whose Flash Memory Products were purchased. Each Discount code may be limited to a single use towards a single purchase of a Flash Memory Product at Defendants’ Online Stores, and may not be able to be combined with any other offer. The Discount code will expire one year after the Effective Date, or one year after the date that it is sent to Class Members, whichever is later. 7. Defendants shall be responsible for processing the Claim Form and administering the Class Benefit redemption process described herein; shall ensure the operability of the Settlement Website; shall provide online instructions and telephone assistance to Class Members who have technical difficulties with the Online Claim Form or the Discount codes; shall update the online instructions to reflect frequently asked questions; and shall bear all costs associated therewith, including all costs, fees or expenses incurred by the Claims Administrator. Defendants shall use personal identifying information collected through the Online Claim Form and the Downloadable Claim Form only for the purpose of fulfilling the terms of the Settlement Agreement and shall so inform Class Members on the Settlement Website, the Online Claim Form and the Downloadable Claim Form. 8. The terms of the Settlement Agreement and of this Final Judgment shall be forever binding on Plaintiffs and all Class Members (except those persons who have timely and validly elected to be excluded from the Class) as well as their heirs, executors, and 05478/1826173.1 6
  46. 46. administrators, successors, and assigns, and those terms shall have res judicata, collateral estoppel, and all other preclusive effect in all pending and future claims, lawsuits or other proceedings maintained by or on behalf of any such persons, to the extent those claims, lawsuits or other proceedings involve matters that were or could have been raised in the Litigation or are otherwise encompassed by the Released Claims set forth in the Settlement Agreement. Any persons who have validly and timely requested exclusion from the Settlement Class are identified in the Exclusions from Settlement Class filed by Class Counsel in this Litigation. 9. The Parties shall, as of the Effective Date, be deemed conclusively to have fully, finally, and forever irrevocably settled and released any and all of the Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether concealed or hidden, which now exist, may hereafter exist, or heretofore have existed, upon any theory of law or equity including, but not limited to, conduct which is negligent, intentional, with or without malice, or breach of any duty of law or rule, without regard to the subsequent discovery or existence of such different or additional facts, and to have forever discharged the Released Persons from all such Released Claims. 10. The Parties, as well as their counsel and all others acting in concert with them, are permanently barred and enjoined from commencing, instituting or prosecuting, in any capacity, or causing to be commenced, instituted or prosecuted, any action or proceeding in any court or tribunal that involves or asserts any of the Released Claims against the Released Persons, or any of them. 11. The Court reserves exclusive and continuing jurisdiction over the Litigation, the Plaintiffs, the Settlement Class, and the Defendants for the purposes of supervising the implementation, enforcement, construction, and interpretation of the Settlement Agreement, the 05478/1826173.1 7
  47. 47. order preliminarily approving settlement, and this Judgment. 12. The Agreement and this Judgment are not admissions of liability or fault by the Defendants, or a finding of the validity of any claims in the Litigation or any wrongdoing or violation of law by Defendants. The Agreement and settlement are not a concession by the Parties. Neither this Judgment, nor the Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, nor any actions required to be performed by this Judgment or the Agreement, shall be offered as evidence or received in evidence in any pending or future civil, criminal, or administrative action or proceeding, except in a proceeding before this Court to consummate or to enforce the Agreement or Judgment, or defend against the assertion of the Released Claims, or as otherwise required by law. 13. The Litigation, and all claims contained therein, as against all Defendants is dismissed on the merits and with prejudice to the Plaintiffs and all Class Members. IT IS SO ORDERED. Dated: ________, 2006 Honorable Judge Richard A. Kramer 05478/1826173.1 8
  48. 48. EXHIBIT 5
  49. 49. Flash Memory Settlement Downloadable Claim Form* * Information required here is for purposes of this settlement only and will not be used for any other purpose Name: Email Address: Street Address or PO Box: City, State ZIP: Manufacturer of Product Purchased: (checkboxes for Fuji, Kodak, Lexar, PNY and SanDisk) Product Name, Type and Capacity (e.g. 64 MB Compact Flash Card) Date of Purchase: Merchant Where Purchased: Price Paid: Instructions: 1. Fill out this form to receive a Refund of five (5) percent of the purchase price of your Flash Memory Device. 2. You must be a Class Member and have an original or copy of a valid receipt or equivalent proof of purchase. The receipt or proof of purchase must be from a merchant or a financial institution. Each receipt or equivalent proof of purchase must specify the Flash Memory Device that was purchased, the brand, the price paid, date of purchase and the merchant name. 3. If you do not have an original or copy of a valid receipt or proof of purchase, please visit www.flash-settlement.com and fill out a claim for a Discount off future purchases of flash memory devices. SUBMIT [Validate for errors and missing fields, then next page with Print option] CONFIRMATION PAGE Here is the information you have submitted: Name: Email Address: 05478/1826168.1
  50. 50. Street Address or PO Box: City, State ZIP: Manufacturer of Product Purchased: Product Name, Type and Capacity (e.g. 64 MB Compact Flash Card) Date of Purchase: Merchant Where Purchased: Price Paid: Instructions: 1. Print and mail this page with your original or copy of a valid receipt or proof of purchase to the address below by [date]. [address of claims administrator] 2. Remember that the receipt or proof of purchase must be from a merchant or a financial institution. The receipt or equivalent proof of purchase must specify the Flash Memory Device that was purchased, the brand, the price paid, date of purchase and the merchant name. Please note that original receipts and proofs of purchase will NOT be returned. 3. If you would like to make claims for more than one Flash Memory Device, please complete, print and mail one form for each Flash Memory Device. You may place multiple forms in the same envelope. To fill out another form, click here <link>. Make sure to include an original or copy of a valid receipt or equivalent original proof of purchase for each Flash Memory Device claimed. 4. A Refund check will be sent to you by mail when the settlement becomes effective. 05478/1826168.1 (0) -2-
  51. 51. EXHIBIT 6

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