Common use of Stipulation of Settlement Clause in Contracts

Stipulation of Settlement. The parties will negotiate in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of the Gehrer action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California for the County of San Diego (the "Court") of a non-opt out settlement class of ALARIS stockholders and their successors in interest and transferees, immediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) (the "Class"); (ii) for dismissal of the Gehrer action with prejudice and a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past or present officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators (collectively, the "Releasees"), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the Offer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlement, the members of the Class shall be deemed to have waived the provisions, rights and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and the provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Settled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above; (iv) that each of the defendants and the other Releasees has denied and continues to deny having committed or attempted to commit any violations of law or breaches of any duty of any

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

Stipulation of Settlement. The parties to the Action will negotiate attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of the Gehrer action Action upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) that Plaintiff will petition the Court for certification by the Superior Court of the State of California for the County of San Diego (the "Court") of a non-opt out settlement class pursuant to Delaware Court of ALARIS stockholders Chancery Rules 23(b)(1) and (b)(2) of XxXxxxx shareholders and their successors in interest and transferees, immediate and remote, from May 18July 16, 2004, 1998 through and including the date of the consummation of Effective Time (as defined in the Merger (other than defendantsAgreement) (the "Class"); (ii) for dismissal entry of a judgment dismissing the Gehrer action Action "with prejudice and prejudice"; for a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement)claims, whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past past, present or present future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators (collectively, the "Releasees"), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws)administrators, which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the Offer, the Merger, the Transaction or Merger Agreement, the Support Agreementactions of XxXxxxx, the Transaction XxXxxxx Board (including each member of the XxXxxxx Board), DLJ or XxXxxxx Acquisition relating to the Transaction, the related disclosure materials materials, disclosures, facts and any related matters allegations that are or could (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlementinsofar as such transactions, the members of the Class shall be deemed to have waived the provisionsdisclosures, rights facts and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and the provisions, rights and benefits conferred by any law of any state or territory of the United Statesallegations relate to, or principle of common lawoccurred in connection with, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Settled Claims, but each shall Action) be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above; (iv) that each the subject of the Action; that defendants and the other Releasees has have denied and continues continue to deny having that they have committed or attempted to commit any violations of law or breaches of any duty of anyany kind; that defendants are entering into the Stipulation solely because the proposed Settlement as described above would eliminate the burden, risk and expense of further litigation, and is in the best interests of XxXxxxx and all its shareholders; and that any of the defendants shall have the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transaction or the subject matter of the Action (whether direct, derivative or otherwise) are commenced against any person in any court prior to Final Court Approval of the Settlement, and such claims are not dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in paragraph 4 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that the defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.

Stipulation of Settlement. The parties Parties will negotiate attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(1) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the Gehrer action Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding MOU (collectively, the "“Settlement Documents"”). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California certification, for the County of San Diego (the "Court") settlement purposes, of a non-opt out settlement class Class of ALARIS stockholders all holders of Common Shares and Exchangeable Preference Shares and their successors in interest and transferees, immediate intermediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) remote (the "“Settlement Class"”); (ii) for dismissal entry of a judgment dismissing the Gehrer action Rice Consolidated Class Action and the Sxxxxxxx Action with prejudice and without costs to any party except as expressly provided herein; (iii) for a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal Defendants, Lafarge Canada, or representative capacities), Cardinal Health, PicowerEfalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past or present officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managersadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators of any of the foregoing (collectively, the "“Releasees"”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court asserted, directly or forum indirectly, derivatively or otherwise, against any of the Releasees and by any member of the Settlement Class relating to the Offer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlement, the members of Tender Offer, the Class shall be deemed to have waived Revised Tender Offer, or the provisions, rights and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, related Disclosure Materials and the provisions, rights and benefits conferred by any law of any state or territory of Subsequent Disclosure Materials (the United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the “Settled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above”); (iv) that each of the defendants Defendants, Lafarge Canada, and the other Releasees Efalar Canada has denied and continues to deny having committed or attempted to commit any violations of law or breaches of any duty of anyany kind; (v) that Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, risk and expense of further litigation, and is in the best interests of LSA, LNA and the Class; and (vi) that any of the Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that any of the Other Conditions set forth in paragraph 4 below shall not have been satisfied, except for the Other Condition set forth in Paragraph 4(v) below.

Stipulation of Settlement. The parties Parties will negotiate attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(1) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the Gehrer action Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding Amended MOU (collectively, the "“Settlement Documents"”). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California certification, for the County of San Diego (the "Court") settlement purposes, of a non-opt out settlement class Class of ALARIS stockholders all holders of Common Shares and Exchangeable Preference Shares and their successors in interest and transferees, immediate intermediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) remote (the "“Settlement Class")”) under the captions of both the Rice Consolidated Class Action and the Sxxxxxxx Class Action; (ii) for dismissal entry of a judgment dismissing the Gehrer action Rice Consolidated Class Action and the Sxxxxxxx Class Action with prejudice and without costs to any party except as expressly provided herein; (iii) for a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal Defendants, Lafarge Canada, or representative capacities), Cardinal Health, PicowerEfalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past or present officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managersadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators of any of the foregoing (collectively, the "“Releasees"”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court asserted, directly or forum indirectly, derivatively or otherwise, against any of the Releasees and by any member of the Settlement Class relating to the Offer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlement, the members of Tender Offer, the Class shall be deemed to have waived Revised Tender Offer, or the provisions, rights and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, related Disclosure Materials and the provisions, rights and benefits conferred by any law of any state or territory of Subsequent Disclosure Materials (the United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the “Settled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above”); (iv) that each of the defendants Defendants, Lafarge Canada, and the other Releasees Efalar Canada has denied and continues to deny having committed or attempted to commit any violations of law or breaches of any duty of anyany kind; (v) that Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, risk and expense of further litigation, and is in the best interests of LSA, LNA and the Class; and (vi) that any of the Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that any of the Other Conditions set forth in paragraph 4 below shall not have been satisfied, except for the Other Condition set forth in Paragraph 4(v) below.

Stipulation of Settlement. The parties Parties will negotiate attempt in good faith and use their best efforts to agree upon and execute no later than 30 days from the date hereof, an appropriate Stipulation of Settlement (the "“Stipulation"”) pursuant to Maryland Rule 2-231(b)(l) and/or (2) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of all claims asserted by, or that could have been asserted by, the Gehrer action Class arising out of the Tender Offer, as amended, including the Disclosure Materials and the Subsequent Disclosure Materials, upon the terms set forth in this Memorandum of Understanding MOU (collectively, the "“Settlement Documents"”). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California certification, for the County of San Diego (the "Court") settlement purposes, of a non-opt out settlement class Class of ALARIS stockholders all holders of Common Shares and Exchangeable Preference Shares and their successors in interest and transferees, immediate intermediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) remote (the "“Settlement Class"”); (ii) for dismissal entry of a judgment dismissing the Gehrer action Rice Consolidated Class Action and the Sxxxxxxx Action with prejudice and without costs to any party except as expressly provided herein; (iii) for a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directlydirectly or indirectly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal Defendants, Lafarge Canada, or representative capacities), Cardinal Health, PicowerEfalar Canada, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past or present officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managersadvisers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors advisers or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators of any of the foregoing (collectively, the "“Releasees"”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court asserted, directly or forum indirectly, derivatively or otherwise, against any of the Releasees and by any member of the Settlement Class relating to the Offer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlement, the members of Tender Offer, the Class shall be deemed to have waived Revised Tender Offer, or the provisions, rights and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, related Disclosure Materials and the provisions, rights and benefits conferred by any law of any state or territory of Subsequent Disclosure Materials (the United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the “Settled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above”); (iv) that each of the defendants Defendants, Lafarge Canada, and the other Releasees Efalar Canada has denied and continues to deny having committed or attempted to commit any violations of law or breaches of any duty of anyany kind; (v) that Defendants, Lafarge Canada and Efalar Canada are entering into the Stipulation solely because the proposed Settlement would eliminate the burden, risk and expense of further litigation, and is in the best interests of LSA, LNA and the Class; and (vi) that any of the Defendants, Lafarge Canada and Efalar Canada shall have the right to withdraw from the proposed Settlement in the event that any of the Other Conditions set forth in paragraph 4 below shall not have been satisfied, except for the Other Condition set forth in Paragraph 4(v) below.

Stipulation of Settlement. The parties will negotiate in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "“Stipulation"”) and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of the Gehrer action upon the terms set forth in this Memorandum of Understanding (collectively, the "“Settlement Documents"”). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California for the County of San Diego (the "“Court"”) of a non-opt out settlement class of ALARIS stockholders and their successors in interest and transferees, immediate and remote, from May 18, 2004, through and including the date of the consummation of the Merger (other than defendants) (the "“Class"”); (ii) for dismissal of the Gehrer action with prejudice and a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement), whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past or present officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators (collectively, the "“Releasees"”), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws), which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the Offer, the Merger, the Merger Agreement, the Support Agreement, the Transaction or the related disclosure materials and any related matters (the "“Settled Claims"”); (iii) that upon Final Court Approval of the Settlement, the members of the Class shall be deemed to have waived the provisions, rights and benefits of California Civil Code ss. § 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and the provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Settled Claims, but each shall be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above; (iv) that each of the defendants and the other Releasees has denied and continues to deny having committed or attempted to commit any violations of law or breaches of any duty of any:

Stipulation of Settlement. The parties to the Actions will negotiate attempt in good faith to agree upon and execute an appropriate Stipulation of Settlement (the "Stipulation") and such other documentation as may be required in order to obtain Final Court Approval (as defined below) of the Settlement and the dismissal of the Gehrer action Actions upon the terms set forth in this Memorandum of Understanding (collectively, the "Settlement Documents"). The parties will use their best efforts to agree upon and execute the Settlement Documents within 60 days of the execution of this Memorandum of Understanding. The Stipulation will expressly provide, inter alia, (i) for certification by the Superior Court of the State of California for the County of San Diego (the "Court") of a non-opt out settlement class pursuant to Delaware Court of ALARIS stockholders Chancery Rules 23(b)(1) and (b)(2) of holders of Class A common stock of Swisher and their successors in interest and transferees, immediate and immediaxx xxx remote, from May 18December 9, 2004, 1998 through and including the date of the consummation of the Merger (other than defendants) Effective Time (the "Class"); (ii) for dismissal entry of a judgment dismissing the Gehrer action Actions with prejudice and prejudice; for a complete release and settlement by the Class of all claims (excluding properly perfected rights of appraisal to the extent available under Delaware law and claims for enforcement of the Settlement)claims, whether asserted directly, derivatively or otherwise, against ALARIS, any of the Individual Defendants (whether in their personal or representative capacities), Cardinal Health, Picower, defendants or any of their families, parent entities, affiliates, subsidiaries, predecessors, successors or assigns, and each and all of their respective past past, present or present future officers, directors, associates, stockholders, members, controlling persons, representatives, employees, attorneys, counselors, financial or investment advisors, dealer managers, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates or administrators (collectively, the "Releasees"), whether known or unknown and whether arising under federal, state or any other law (including, without limitation, the federal securities laws)administrators, which have been, or could have been, asserted in any court or forum against any of the Releasees and relating to the OfferTransaction, the Mergeractions of Swisher, the Merger AgreementSwisher Board (including each member herein). Hay Island or SIGI relating to the Transaction, the Support Agreement, the Transaction or the related disclosure materials materials, disclosures, facts and any related matters allegations that are or could (the "Settled Claims"); (iii) that upon Final Court Approval of the Settlementinsofar as such transactions, the members of the Class shall be deemed to have waived the provisionsdisclosures, rights facts and benefits of California Civil Code ss. 1542, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, and the provisions, rights and benefits conferred by any law of any state or territory of the United Statesallegations relate to, or principle of common lawoccurred in connection with, which is similar, comparable or equivalent to Civil Code ss. 1542. A member of the Class may thereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Settled Claims, but each shall Actions) be deemed to have fully, finally and forever settled and released any and all Settled Claims, as provided above; (iv) that each the subject of the Actions or of an action in any other forum; that defendants and the other Releasees has have denied and continues continue to deny having that they have committed or attempted to commit any violations of law or breaches of any duty of anyany kind; that defendants are entering into the Stipulation solely because the proposed Settlement as described above would eliminate the burden, risk and expense of further litigation, and is in the best interests of Swisher and all its shareholders; and that any of the defendants xxxxx xave the right to withdraw from the proposed Settlement in the event that (x) any claims related to the Transactions or the subject matter of the Actions (whether direct, derivative or otherwise) are commenced against any person in any court prior to Final Court Approval of the Settlement, and such claims are not dismissed or stayed in contemplation of dismissal or (y) any of the additional conditions set forth in paragraph 5 below shall not have been satisfied. The parties agree to use their good faith efforts to obtain the dismissal or stay in contemplation of dismissal of any action covered by clause (x) in the foregoing sentence and further agree that the defendants shall have the right to withdraw from this Memorandum of Understanding if such efforts do not result in the dismissal or stay in contemplation of dismissal of such an action.