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Settlement SETTLEMENT AGREEMENT This SETTLEMENT

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					                                SETTLEMENT AGREEMENT

       This SETTLEMENT AGREEMENT (“Settlement Agreement”) is entered into by and

among (a) Plaintiffs (as defined in Paragraph 1.18 below) in the Action (as defined in Paragraph

1.1 below) for themselves and on behalf of the ESOP (as defined in Paragraph 1.11 below), and

(b) the Defendant (as defined in Paragraph 1.7 below), and (c) Amsted Industries Incorporated, a

Delaware corporation (“Amsted”), in consideration of the promises, covenants and agreements

herein described and for other good and valuable consideration acknowledged by each of them to

be satisfactory and adequate.

       WHEREAS, Plaintiffs brought the Action asserting claims of breach of fiduciary duty

under ERISA (as defined in Paragraph 1.10 below) against Defendant; and

       WHEREAS, the Parties (as defined in Paragraph 1.16 below) have voluntarily

participated in mediation with the Honorable John E. Ott, and as a result of that mediation, the

Parties have reached the settlement memorialized in this Settlement Agreement.

       NOW, THEREFORE, without any admission or concession on the part of the Plaintiffs

of any lack of merit of the Action, and without any admission or concession on the part of

Defendant or Amsted as to the merit of the Action, it is hereby STIPULATED AND AGREED,

by and among the Plaintiffs (by and through Plaintiffs’ Counsel), Defendant, and Amsted, subject

to approval of the Court pursuant to the Federal Rules of Civil Procedure, in consideration of the

benefits flowing to the Parties from the Settlement Agreement, that all Released Claims (as

defined in Paragraph 1.23 below) shall be compromised, settled, released and dismissed with

prejudice, upon and subject to the following terms and conditions:
1.     Definitions.

       As used in this Settlement Agreement, italicized and capitalized terms and phrases not

otherwise defined herein have the meanings provided below:

       1.1    “Action”means the consolidated lawsuit titled Marchant, et al. vs. LaSalle Bank,

N.A., No. 7:01-cv-01962-LSC (N.D. Ala.) including LeCroy v. LaSalle Bank, N.A., No. 7:01-cv-

2025 (N.D. Ala.); McQueen v. LaSalle Bank, N.A., No. 7:01-cv-2042 (N.D. Ala.); Armstrong v.

LaSalle Bank, N.A., No. 7:01-cv-2081 (N.D. Ala.); Mason v. LaSalle Bank, N.A., No. 7:01-cv-

2082 (N.D. Ala.); Gillespie v. LaSalle Bank, N.A., No. 7:01-cv-2083 (N.D. Ala.), Sanders v.

LaSalle Bank, N.A., No. 7:01-cv-2117 (N.D. Ala.); Duckett v. LaSalle Bank, N.A., No. 7:01-cv-

2118 (N.D. Ala.); Lightsey v. LaSalle Bank, N.A., No. 7:01-cv-2119 (N.D. Ala.); Holder v.

LaSalle Bank, N.A., No. 7:01-cv-2120 (N.D. Ala.); Wheeler v. LaSalle Bank, N.A., No. 7:01-cv-

2121 (N.D. Ala.); J. Smith v. LaSalle Bank, N.A., No. 7:01-cv-2122 (N.D. Ala.); Walker v.

LaSalle Bank, N.A., No. 7:01-cv-2123 (N.D. Ala.); D. Smith v. LaSalle Bank, N.A., No. 7:01-cv-

2124 (N.D. Ala.) and the lawsuit titled Juan Armstrong, James E. Duckett, Roderick Gillespie,

Larry Holder, Jack D. LeCroy, Darwyn Lightsey, Michael G. Marchant, Joe Lee Mason, Jr.,

Charles McQueen, Noel G. Sanders, III, Dwight Smith, John E. Smith, Gerard Walker, Daniel L.

Wheeler, and Miguel Zepeda, Jr., individually and in their capacity as plan participants and

beneficiaries on behalf of Amsted Industries, Inc. Employee Stock Ownership Plan as a whole,

and on behalf of all others similarly situated v. LaSalle Bank, N.A., et al., No. 01 C 2963 (N.D.

Ill.) consolidated as the In Re Amsted Industries, Inc. “ERISA” Litigation, MDL No. 1417.

       1.2    Amsted Releasees means Amsted and its respective Representatives (as defined in

Paragraph 1.25 below).




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       1.3     “Class” means (a) all participants in the ESOP (as defined in Paragraph 1.11

below) with accounts to which shares of stock in Amsted were allocated as of September 30,

1999, and who received a distribution of benefits calculated with a share value lower than

$184.41 between October 1, 2000, and March 29, 2005, but excluding those ESOP participants

who were ever a defendant in the Action, and (b) the beneficiaries of the persons described in (a)

of this Paragraph 1.3.

       1.4     “Agreement Execution Date” means the date on which the final signature is

affixed to this Settlement Agreement.

       1.5     “Bar Order” means an order of the Court (as defined in Paragraph 1.6 below), to

be contained in the Judgment (as defined in Paragraph 1.15 below), barring the filing or pursuit

of certain claims. The terms of the Bar Order are set forth in Exhibit A hereto.

       1.6      “Court” means the United States District Court for the Northern District of

Alabama.

       1.7      “Defendant” means Bank of America, N.A., successor-by-merger to LaSalle

Bank, N.A.

       1.8     “Defendant’s Released Claims” shall have the meaning set forth in Paragraph 4.

       1.9     “Defendant Releasees” means the Defendant and its respective Representatives

(as defined in Paragraph 1.25 below).

       1.10     “ERISA” means the Employee Retirement Income Security Act of 1974, as

amended, including all regulations promulgated thereunder, and court decisions interpreting such

Act or regulations.

       1.11    “ESOP” means the Amsted Industries Incorporated Employees’ Stock Ownership

Plan and Trust, and any of its predecessor plans or amendments. 




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       1.12     “Final” means, with respect to any judicial ruling, order or judgment, that the

ruling, order or judgment has been entered on the Court’s docket and that the period for any

appeals, petitions, motions for reconsideration, rehearing, or certiorari or any other proceeding

for review (“Review Proceeding”) has expired without the initiation of a Review Proceeding, or,

if a Review Proceeding has been timely initiated, that there has occurred a full and final

disposition of any such Review Proceeding without a reversal or any material modification,

including the exhaustion of proceedings in any remand or subsequent appeal after remand.

Notwithstanding any other provision hereof, a Final Order or judgment shall be deemed Final

without regard to whether: (i) the Court has entered an order relating to attorneys’ fees or

expenses; (ii) any order referred to in (i) above, if entered, has become Final; or (iii) any order

referred to in (i) above is reversed or modified on appeal.

       1.13    “Financial Institution” shall have the meaning set forth in Paragraph 7.1.

       1.14    “Independent Fiduciary” shall mean the independent fiduciary mutually agreed to

by the Parties, who is a fiduciary to the ESOP that has no “relationship to” or “interest in” (as

those terms are used in the Prohibited Transaction Exemption 2003-39, “Release of Claims and

Extensions of Credit in Connection with Litigation,” issued December 31, 2003, by the United

States Department of Labor, 68 Fed. Reg. 75,632, as amended [“PTE 2003-39”]) any of the

Parties.

       1.15    “Judgment” shall mean the Court’s Final Order and Judgment approving the

Settlement, which shall contain the material terms set forth in Exhibit A hereto.

       1.16    “Parties” means the Plaintiffs, the Defendant, and Amsted collectively. "Party”

means any one of these Parties.

       1.17    “Person” means an individual, partnership, corporation, governmental entity or




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any other form of entity or organization. "Persons" means more than one such Person.

       1.18      “Plaintiffs” means the Plaintiffs Michael G. Marchant, Jack D. LeCroy, Charles

McQueen, Juan Armstrong, Joe Lee Mason, Jr., Roderick Gillespie, Noel G. Sanders, III, James

E. Duckett, Darwyn Lightsey, Larry Holder, Daniel L. Wheeler, John E. Smith, Gerard Walker,

Dwight Smith, and Miguel Zepeda, Jr. "Plaintiff” means any one of these Plaintiffs.

       1.19      “Plaintiffs’ Counsel” means Slate Carter Comer PLLC, Gary D. McCallister &

Associates, LLC, and Rosen Harwood, P.A.

       1.20      “Plan of Allocation” means Plaintiff’s plan of allocation as approved by the

Court as contemplated by Paragraph 2 and Exhibits A and C hereto and as described in

Paragraph 8.2.

       1.21      “Settlement Administrator” means the Financial Institution or another person

designated by Slate Carter Comer PLLC as the Settlement Fund “administrator,” as that term is

used in the Section 468B Treasury regulations.

       1.22      “Settlement Fund” means a qualified settlement fund established by Plaintiffs’

Counsel Slate Carter Comer PLLC at the Financial Institution pursuant to Paragraph 7.1.

       1.23      “Released Claims” shall have the meaning set forth in Paragraph 4.

       1.24      “Releases” means the releases set forth in Paragraph 4.

       1.25      “Representatives” means, with respect to any Party, such Party’s current, past and

future subsidiaries, affiliates, parent and sibling corporations, partners, and each of their and the

Party’s attorneys, trustees, fiduciaries, administrators, directors, officers, agents, underwriters,

insurers, and employees, and each of the foregoing’s respective heirs, successors, and permitted

assigns.

       1.26      “Settlement” means the settlement to be consummated under this Settlement




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Agreement.

       1.27    “Settlement Costs” means costs (not including attorneys’ fees or litigation

expenses incurred by Plaintiffs’ Counsel) associated with the Notice and administration of

Settlement and the fees and expenses of the Independent Fiduciary.

       1.28    2005 Class Action Settlement means the class action settlement preliminarily

approved on May 5, 2005, and finally approved on August 5, 2005, by the United States District

Court, Northern District of Illinois, in Armstrong, et al. v. Amsted Industries, Inc., et al., Case

No. 2963, MDL No. 1417.

2.     Court Approval of the Settlement.

       2.1     Preliminary Approval. The Plaintiffs shall promptly move the Court for entry of

an order preliminarily approving the Settlement in the form attached hereto as Exhibit C (the

“Preliminary Approval Order”), which (a) provides for notice to all participants in the ESOP as

at September 30, 1999, in the form attached hereto as Exhibit B (the “Notice”); (b) finds that the

Notice fairly and adequately: (i) describes generally the terms and effect of the Settlement and

this Settlement Agreement, and explains the Plan of Allocation, the effect of the Bar Order, and

the effect of the injunction prohibiting any member of the Class from bringing claims against the

Defendant and its Representatives, which Bar Order and injunction are set forth within the form

of the Judgment attached hereto as Exhibit A; (ii) gives notice of the time and place of the final

fairness hearing; (iii) describes how an objection may be made to entry of the Judgment and the

deadline for the filing of such objection; (iv) describes how any attorney or firm seeking an

award of attorneys’ fees or reimbursement of expenses may apply to the Court and the deadline

for the filing of such application; and (v) describes how any Plaintiff seeking an incentive award

may apply to the Court and the deadline for the filing of such application; and (c) finds that




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service of the Notice via first class mail, postage prepaid, at the current or last known address

provided by Amsted, is the best practicable method of delivery of the Notice. Plaintiffs’ Counsel

shall serve upon the U.S. Department of Labor a copy of the motion for preliminary approval of

this Settlement.

       2.2     Actions of Independent Fiduciary and Release from the ESOP.

               2.2.1   As soon as reasonably practicable, the Plaintiffs and Defendant jointly

shall retain the Independent Fiduciary to review this Settlement. The fees and expenses of the

Independent Fiduciary shall be included in the Settlement Costs and paid and allocated by

Plantiffs and Defendants as set forth in Paragraphs 3.2 and 3.3 below.          The Parties shall

cooperate in negotiating the terms of the engagement of the Independent Fiduciary, which shall

include an agreement in writing by the Independent Fiduciary to (a) render a written opinion

regarding the Settlement, the Plan of Allocation, PTE 2003-39, and the release referenced in

Paragraph 2.2.3 below within thirty (30) days of the Parties’ retaining the Independent

Fiduciary, and (b) ensure that its records relating to this Settlement shall be maintained for a

period of at least six (6) years from the Judgment becoming Final, and that such records will be

available for inspection by the persons and entities entitled to inspect them under PTE 2003-39

in accordance with the terms thereof. In no event shall anything in this Settlement Agreement be

deemed to require any of the Parties to indemnify the Independent Fiduciary for or make any

contribution to any liability or costs the Independent Fiduciary might incur by virtue of

performing in that role, except for the obligations of Plaintiffs and Defendant to pay the fees and

expenses of the Independent Fiduciary as and only to the extent to which those obligations are

expressly set forth in Paragraphs 2.2.1, 3.2 and 3.3 of this Settlement Agreement.

               2.2.2   The Parties shall comply with reasonable requests for information made




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by the Independent Fiduciary for the purpose of reviewing this Settlement in light of PTE 2003-

39.

               2.2.3   The Settlement provided for in this Settlement Agreement is expressly

conditioned upon and shall not become Final unless and until the Independent Fiduciary, at least

ten (10) days before the final fairness hearing is held: (a) has approved in writing the Settlement

on the terms set forth in this Settlement Agreement; and (b) has determined in writing that the

Settlement provided for in this Settlement Agreement meets all applicable criteria for an

exemption under PTE 2003-39; and (c) has approved in writing the Plan of Allocation; and (d)

has given a release, in its capacity as a fiduciary of the ESOP, for and on behalf of the ESOP, of

the Defendant Releasees on the terms set forth in Paragraph 4.1 below in consideration of the

terms of this Settlement Agreement. In the event that the Independent Fiduciary does not fulfill

all the conditions set forth above in this Paragraph 2.2.3, then this Settlement Agreement shall

terminate pursuant to Paragraph 9 below.

               2.2.4   The Independent Fiduciary shall have no authority to renegotiate or seek

to alter any of the terms set forth in this Settlement Agreement.

       2.3     Final Approval. The Settlement provided for in this Settlement Agreement is

expressly conditioned upon Court approval, the entry of the Judgment by the Court, and the

Judgment becoming Final. In the event that the Court does not enter the Judgment or the

Judgment does not become Final, then this Settlement Agreement shall terminate pursuant to

Paragraph 9 below. Attached hereto as Exhibit A is the proposed form of the Judgment which

the Plaintiffs shall request the Court enter at the conclusion of its final fairness hearing, which

shall include a determination (i) approving the Settlement and dismissing the Action, (ii)

approving the Plan of Allocation, (iii) naming the Independent Fiduciary a fiduciary of the




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ESOP for the purpose of giving the release referred to in Paragraphs 2.2.3(d) above and 4.1

below, and (iv) naming the Settlement Administrator a fiduciary of the ESOP for purposes of

making and allocating distributions from the Settlement Fund for the benefit of the members of

the Class and for purposes of establishing the sub-trust described in Paragraph 8.2 hereof and

making distributions to certain members of the Class who are no longer participants in the ESOP

or Amsted’s 401(k) plan, or to facilitate any requests by such members to have their distribution

rolled into an eligible retirement plan under Internal Reveue Code section 401(a)(31)(A). The

Parties shall cooperate in good faith, including taking all steps and efforts provided for in this

Settlement Agreement and any other reasonable steps or efforts to carry out this Settlement

Agreement. Neither Defendant, Amsted, nor the ESOP Administrative Committee (the “ESOP

Plan Administrator”) or any member thereof shall take any position, or be required to take any

position, with respect to the matters described in clause (ii) of this Paragraph 2.3.

       2.4     Tolling Agreement.      Amsted and Defendant shall enter into a written amendment

to the Third Amended Tolling Agreement dated on or about August 2, 2010 (“Tolling

Agreement”) extending the Termination Date as defined in the Tolling Agreement to the earlier

of sixty (60) days after termination of this Settlement Agreement (as provided in Paragraph 9

below) or, if not earlier terminated, the day after the Judgment becomes Final.

3.     Settlement Consideration.

       3.1     Within five (5) business days after the date the Judgment becomes Final,

Defendant shall pay $11,500,000.00 (Eleven Million, Five Hundred Thousand and 00/100

Dollars), less one-half of the amount of Settlement Costs (as defined in Paragraph 1.27) incurred

prior to date the Judgment becomes Final, plus Interest on the net sum, and Amsted shall pay

$2,000,000.00 (Two Million and 00/100 Dollars) plus Interest, into the Settlement Fund at the




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Financial Institution.      The term “Interest” means 0.26% interest compounded annually

beginning on July 16, 2010, and ending on the day before the settlement consideration is paid

into the Settlement Fund.

       3.2     In addition to the settlement consideration in Paragraph 3.1, Defendant shall pay

one-half the amount of Settlement Costs incurred prior to the date the Judgment becomes Final,

pursuant to the terms set forth in Paragraph 3.3, below. All other Settlement Costs shall be paid

from the Settlement Fund. In all other respects, each Party shall pay and bear its own respective

attorneys fees, litigation expenses and costs.

       3.3     Within five (5) business days after the later of (a) the Agreement Execution Date,

or (b) the date of Defendant’s receipt of wiring instructions from Slate Carter Comer PLLC,

Defendant shall wire $125,000 to Slate Carter Comer PLLC’s trust account (“Trust Account”) to

be used for the payment of Settlement Costs incurred prior to the date the Judgment becomes

Final. In the event that Settlement Costs incurred prior to the date the Judgment becomes Final

exceed $125,000, Plaintiffs’ Counsel shall provide to Defendant an accounting of all funds spent

up to that time for Settlement Costs, and Plaintiffs’ Counsel and Defendant will confer as to a

reasonable additional amount to be deposited into the Trust Account for the payment of

additional Settlement Costs. Within two (2) business days after the Judgment becomes Final,

Slate Carter Comer PLLC shall provide to Defendant an accounting of all funds spent for

Settlement Costs. In the event that all the funds paid by Defendant into the Trust Account were

not used for Settlement Costs incurred prior to date the Judgment becomes Final, the unused

funds shall be returned by Slate Carter Comer PLLC to Defendant within two (2) business days

after the Judgment becomes Final. In the event of the termination of this Settlement Agreement

pursuant to Paragraph 9.1 or otherwise, Slate Carter Comer PLLC shall promptly remit to




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Defendant all funds paid by Defendant into the Trust Account that were not used for Settlement

Costs, plus an amount equal to one-half of the amount paid into the Trust Account by Defendant

that were used for Settlement Costs other than those related to the Independent Fiduciary.

4.     Releases.

       4.1     Effective upon the Judgment becoming Final, each Plaintiff, the ESOP, the Class,

and the respective Representatives of each of the Plaintiffs, the ESOP, and the Class, absolutely

and unconditionally release and forever discharge each of the Defendant Releasees, from all

claims of any nature whatsoever arising from or relating to Amsted or the ESOP or the

Defendant’s acts or omissions as Trustee of the ESOP (including but not limited to all claims

relating to the valuation of Amsted stock or the repurchase obligation, all claims which were or

could have been brought in the Action, and all claims for any and all losses, damages, unjust

enrichment, attorneys’ fees, disgorgement of fees, litigation costs, injunction, declaration,

contribution, indemnification or any other type or nature of legal or equitable relief), whether

accrued or not, whether known, unknown, or unsuspected, in law or equity, other than claims

arising from or relating to this Release, this Settlement Agreement, or the Judgment (“Released

Claims”).

       4.2     Effective upon the Judgment becoming Final, the Defendant, on behalf of itself

and its Representatives, absolutely and unconditionally releases and forever discharges each

Plaintiff, the ESOP, the Class, and the respective Representatives of each of the Plaintiffs, the

ESOP, and the Class, from all claims of any nature whatsoever arising from or relating to Amsted

or the ESOP or the Defendant’s acts or omissions as Trustee of the ESOP (including but not

limited to all claims relating to the valuation of Amsted stock or the repurchase obligation, all

claims which were or could have been brought in the Action, and all claims for any and all




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losses, damages, unjust enrichment, attorneys’ fees, disgorgement of fees, litigation costs,

injunction, declaration, contribution, indemnification or any other type or nature of legal or

equitable relief), whether accrued or not, whether known, unknown, or unsuspected, in law or

equity, other than claims arising from or relating to this Release, this Settlement Agreement, or

the Judgment (“Defendant’s Released Claims”). The Defendant’s Released Claims do not

include and the releases set forth in this Paragraph 4.2 are not intended to and shall not be

construed to release, discharge, bar, waive or otherwise affect any claims of any nature

whatsoever relating to rights of the Defendant Releasees or obligations of any of the Plaintiffs,

the ESOP or the Class, or any of the respective Representatives of any of the Plaintiffs, the

ESOP or the Class, that were not expressly asserted as claims in the Action.

          4.3   Effective upon the Judgment becoming Final, each Plaintiff, the Class, and the

respective Representatives of each of the Plaintiffs and the Class, absolutely and unconditionally

release and forever discharge the Amsted Releasees from any and all claims of any nature

whatsoever related to the 2005 Class Action Settlement, including all claims for any and all

losses, damages, unjust enrichment, attorneys’ fees, disgorgement of fees, litigation costs,

injunction, declaration, contribution, indemnification or any other type or nature of legal or

equitable relief, whether accrued or not, whether known, unknown, or unsuspected, in law or

equity.

          4.4   Effective upon the Judgment becoming Final, the Amsted Releasees absolutely

and unconditionally release and forever discharge Plaintiffs, the Class, and the respective

Representatives of Plaintiffs and the Class, from any and all claims of any nature whatsoever

related to the 2005 Class Action Settlement, including all claims for any and all losses, damages,

unjust enrichment, attorneys’ fees, disgorgement of fees, litigation costs, injunction, declaration,




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contribution, indemnification or any other type or nature of legal or equitable relief, whether

accrued or not, whether known, unknown, or unsuspected, in law or equity.

       4.5     Effective upon the Judgment becoming Final, the Defendant, on behalf of itself

and its Representatives, absolutely and unconditionally releases and forever discharges each of

the Amsted Releasees from any and all claims, demands and causes of action of any nature

whatsoever arising from or relating to the ESOP, the Action or the Defendant’s acts or omissions

as trustee of the ESOP (including but not limited to all claims relating to the valuation of Amsted

stock or repurchase obligation, all claims which were or could have been brought in the Action,

and all claims for any and all losses, damages, unjust enrichment, attorneys’ fees, disgorgement

of fees, litigation costs, injunction, declaration, contribution, indemnification or any other type or

nature of legal or equitable relief), whether accrued or not, whether known, unknown, or

unsuspected, in law or equity, other than claims arising from or relating to this Release, this

Settlement Agreement or the Judgment. The releases set forth in this Paragraph 4.5 are not

intended to and shall not be construed to release, discharge, bar, waive or otherwise affect any

claims of any nature whatsoever relating to rights of any of the Defendant Releasees or

obligations of any of the Amsted Releasees, arising from or relating to any relationship among or

between any of the Defendant Releasees and the Amsted Releasees, that does not arise from or

relate to the ESOP, the Action or the Defendant’s acts or omissions as Trustee of the ESOP (by

way of example, any and all rights and obligations of any of the Parties arising from or relating

to any loan or financing agreements or arrangements, bank accounts, credit card accounts and

the like are not affected by the releases in this Paragraph 4.5).

       4.6     Effective upon the Judgment becoming Final, Amsted, on behalf of itself and its

Representatives, absolutely and unconditionally releases and forever discharges each of the




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Defendant Releasees from any and all claims, demands and causes of action of any nature

whatsoever relating to the ESOP, the Action or the Defendant’s acts or omissions as Trustee of

the ESOP (including but not limited to all claims relating to the valuation of Amsted stock or the

repurchase obligation, all claims which were or could have been brought in the Action, and all

claims for any and all losses, damages, unjust enrichment, attorneys’ fees, disgorgement of fees,

litigation costs, injunction, declaration, contribution, indemnification or any other type or nature

of legal or equitable relief), whether accrued or not, whether known, unknown, or unsuspected,

in law or equity, other than claims arising from or relating to this Release, this Settlement

Agreement or the Judgment. The releases set forth in this Paragraph 4.6 are not intended to and

shall not be construed to release, discharge, bar, waive or otherwise affect any claims of any

nature whatsoever relating to rights of the any of the Amsted Releasees or obligations of any of

the Defendant Releasees, arising from or relating to any relationship among or between any of

the Defendant Releasees and the Amsted Releasees that does not arise from or relate to the

ESOP, the Action or the Defendant’s acts or omissions as Trustee of the ESOP (by way of

example, any and all rights and obligations of any of the Parties arising from or relating to any

loan or financing agreements or arrangements, bank accounts, credit card accounts and the like

are not affected by the releases in this Paragraph 4.6).

       4.7      To further effectuate the foregoing releases, it is acknowledged and agreed that

the Judgment shall provide for the dismissal with prejudice of the Action and shall include the

Bar Order.

       4.8.      WITH   RESPECT TO THE    RELEASED CLAIMS     AND THE    DEFENDANT’S RELEASED

CLAIMS,   IT IS THE INTENTION OF THE      PARTIES     TO WAIVE TO THE FULLEST EXTENT OF THE

LAW:   (A)    THE PROVISIONS, RIGHTS AND BENEFITS OF        SECTION 1542     OF THE   CALIFORNIA




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CIVIL CODE,    WHICH PROVIDES THAT         “A   GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE

TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR;” AND (B) THE PROVISIONS, RIGHTS

AND BENEFITS OF ANY SIMILAR STATUTE OR COMMON LAW OF ANY OTHER JURISDICTION THAT

MAY BE, OR MAY BE ASSERTED TO BE, APPLICABLE.

       4.9     All claims against any person or entity that are not specifically released in

Paragraph 4 are specifically reserved and not waived by Plaintiffs, the ESOP, the Class, the

Defendant Releasees, and the Amsted Releasees, and the respective Representatives of each of

the Plaintiffs, the ESOP, and the Class.

5.     Covenants.

       The Parties covenant and agree to use their reasonable best efforts to execute any

documents not inconsistent with the terms of this Settlement Agreement necessary to effectuate

the terms of this Settlement Agreement.

6.     No Admission of Liability.

       The Parties understand and agree that this Settlement Agreement embodies a compromise

settlement of disputed claims, and that nothing in this Settlement Agreement, including the

furnishing of consideration for this Settlement Agreement, shall be deemed to constitute any

admission or finding of wrongdoing by the Defendant or Amsted. Planitiffs, while believing that

all Claims brought in the Action have merit, have concluded that the terms of this Settlement

Agreement are fair and reasonable given, among other things, the inherent risks, difficulties and

delays in complex litigation such as this.




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7.     The Settlement Fund

       7.1     There shall be established at a federally-insured financial institution (the

“Financial Institution”) designated by Plaintiffs’ Counsel Slate Carter Comer PLLC an account

into which the settlement consideration provided for in Paragraph 3 shall be deposited. The

settlement consideration, along with net earnings thereon, shall be considered a common fund

created as a result of the Action. The Financial Institution shall make distributions from the

Settlement Fund only in accordance with this Settlement Agreement. For the avoidance of doubt,

the Financial Institution shall be instructed that, absent a Court order, no funds are to be paid or

withdrawn from the Settlement Fund except pursuant to Paragraphs 7.2, 8.1, and 8.2 of this

Settlement Agreement (and the Paragraphs of this Settlement Agreement explicitly cross-

referenced therein).

       7.2     The funds on deposit in the Settlement Fund shall be invested only in United

States Treasury securities and/or securities of United States agencies backed by the full faith and

credit of the United States Treasury, and mutual funds or money market accounts that invest

exclusively in the foregoing securities. The Settlement Fund shall be structured and managed to

qualify as a “qualified settlement fund” described in the Treasury regulations promulgated under

Section 468B of the Internal Revenue Code and no Party or a Party’s Representative shall take

any position in any filing or before any tax authority that is inconsistent with such treatment.

The Settlement Administrator shall: (a) prepare and file all income tax and information returns

required to be filed, and provide payees with copies of such information returns; (b) pay all taxes

owed by the Settlement Fund; (c) pay the fees and expenses incurred by the Financial Institution

associated with the administration of the Settlement Fund; and (d) obtain and provide the

Financial Institution with the Settlement Fund’s federal taxpayer identification number on or




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before the date that funds are deposited into the Settlement Fund at the Financial Institution. The

Settlement Administrator shall be authorized to retain a certified public accounting firm for these

purposes. All taxes on the income of the Settlement Fund and tax-related expenses, including the

expenses, if any, of a certified public accounting firm, incurred in connection with the

administration of the Settlement Fund shall be paid solely out of the Settlement Fund, shall be

considered a cost of administration of the Settlement, and shall be timely paid without further

order of the Court. All fees and expenses of the Settlement Administrator or the Financial

Institution, and of professional advisors engaged by the Settlement Administrator or the

Financial Institution in connection with the Settlement Fund, shall be paid solely from the

Settlement Fund. The Settlement Administrator may instruct the Financial Institution to reserve

any portion of the Settlement Fund for the purpose of satisfying future or contingent expenses or

obligations, including expenses of Settlement Fund administration or any disbursement provided

for in Paragraph 8 of this Settlement Agreement. The Settlement Fund and payments therefrom

shall be structured to preserve, to the maximum extent allowed by law, the tax benefits

attributable to amounts held under an Internal Revenue Code Section 401(a) qualified retirement

plan. The Parties agree that neither the Defendant nor Amsted, nor any of their Representatives,

has any responsibility, duty, authority, or liability, respecting the creation, operation, expenses,

obligations and administration of the Settlement Fund, or for any taxes that may be payable by

the Settlement Fund or any distributee therefrom. For avoidance of doubt, and not in limitation

of the generality of the foregoing, neither the Defendant nor Amsted, nor any of their respective

Representatives, shall have any duty, obligation or responsibility to perform, or see to the proper

performance of,or shall have any liability for any breach of, any of the obligations set forth in




                                                17
Paragraphs 7.1, 7.2, 8.1, 8.2 and 10.2 of this Settlement Agreement, except as expressly set forth

in any of said Paragraphs.

8.     Payments From The Settlement Fund.

       8.1     Disbursements from Settlement Fund. No funds shall be disbursed from the

Settlement Fund except in accordance with the terms of this Settlement Agreement. In addition

to the disbursements provided for in Paragraph 7.2, funds in the Settlement Fund shall be

disbursed as follows:

               8.1.1    For Attorneys’ Fees and Expenses and Plaintiff Incentive Awards. As

provided in Paragraph 10.2 hereof.

               8.1.2    For taxes and expenses of the Settlement Fund. As provided in Paragraph

7.2 hereof.

               8.1.3    Settlement Costs: Plaintiffs’ counsel may direct the Financial Institution

in writing, without notice to Defendant, Amsted, or further order of the Court, to disburse from

the Settlement Fund an amount for the payment of reasonable Settlement Costs.

       8.2     Payment to the ESOP.        Amounts in the Settlement Fund in excess of those

amounts necessary to pay the amounts described in Paragraphs 7.2 and 8.1 hereof (“Net

Proceeds”) shall be disbursed to the ESOP to be allocated in the ESOP in accordance with the

Plan of Allocation, which shall provide for the allocation of the Net Proceeds to the Class. The

Plan of Allocation shall be prepared by Plaintiffs’ Counsel and submitted to the Court for

approval in connection with preliminary and final approval of the Settlement. Following

preliminary approval, Amsted and Plaintiffs’ Counsel will work together to identify all members

of the Class and to determine whether such members are still participants in the ESOP and

whether such members are participants in Amsted’s 401(k) plan. On or after the date upon which




                                                18
the Judgment has become Final, Plaintiffs’ Counsel shall direct the Financial Institution to

disburse the Net Proceeds allocated to those persons who are still ESOP or Amsted 401(k)

participants to the ESOP for allocation in accordance with the Plan of Allocation, which,

following the Judgment becoming Final, will include a specific dollar amount to be allocated to

each member of the Class who is still a participant in the ESOP or the Amsted 401(k) plan. The

ESOP trustee will (i) to the extent permitted by and subject to the requirements of Internal

Revenue Code Section 414(l), transfer to the trustee of Amsted’s 401(k) plan the respective

allocated amounts for those members of the Class who are participants in Amsted’s 401(k) plan

on the Allocation Determination Date (as defined in the Plan of Allocation) and (ii) credit the

respective allocated amounts to the ESOP accounts of those members of the Class who are

participants in the ESOP but are not participants in Amsted’s 401(k) plan on the Allocation

Determination Date. With respect to Class members who are not participants in the ESOP or the

Amsted 401(k) plan on the Allocation Determination Date, and who will be entitled to receive a

portion of the Net Proceeds pursuant to the Plan of Allocation, the Settlement Administrator shall

deposit the total amount of such Net Proceeds in a subtrust account established by the Settlement

Administrator under the Federal EIN of the ESOP’s trust for the purpose of holding such

amounts pending distribution to such former participants. The Settlement Administrator shall be

the custodian, record keeper and ERISA fiduciary responsible for all funds in the subtrust

account. The Settlement Administrator shall prepare and deliver to all Class members who are

not participants in the ESOP or Amsted’s 401(k) plan on the Allocation Determination Date and

who are entitled to receive a portion of the Net Proceeds pursuant to the Plan of Allocation a

notice explaining their options with respect to the portion of the subtrust to which they are

entitled, and such notice shall be provided in accordance with the timing requirements of, and




                                               19
shall be accompanied by the tax and rollover disclosure for distributions from qualified

retirement plans required under, Internal Revenue Code Section 402(f). Neither Defendant,

Amsted, the ESOP trustee, the ESOP Plan Administrator, nor any of their respective

Representatives, shall be considered fiduciaries with respect to any assets held in the subtrust

account. The Settlement Administrator shall be assigned all fiduciary responsibility for the

subtrust account, and shall distribute the subtrust account in accordance with the Plan of

Allocation.   Neither Defendant, Amsted, the ESOP Plan Administrator, nor any of their

respective Representatives, shall have any responsibility for structuring the content of the Plan of

Allocation. Costs of implementation of the Plan of Allocation shall be paid from the Settlement

Fund. Nothing herein shall constitute approval or disapproval of the Plan of Allocation by

Defendant, Amsted, the ESOP Plan Administrator, or any of their respective Representatives,

none of which shall have any responsibility or liability for or in connection with the Plan of

Allocation and none of which shall take any position for or against the Plan of Allocation.

Defendant, Amsted and their respective Representatives shall have no duties whatsoever

regarding the administration, allocation, or distributions from the Settlement Fund, including but

not limited to monitoring or reporting duties, except that Amsted shall (a) provide to Plaintiffs’

Counsel and/or the Settlement Administrator the ESOP participant information regarding the

ESOP accounts of the Class members that is reasonably and solely necessary to implement the

Plan of Allocation, and (b) before the hearing scheduled by the Court for final approval of this

Settlement Agreement, approve an amendment to the ESOP as reasonably necessary to be

consistent with the actions required under this Settlement Agreement relating to the Settlement

Administrator and the Independent Fiduciary, with that amendment to be subject to and signed

after the Judgment becomes Final.




                                                20
9.     Termination of the Settlement Agreement.

       9.1       Termination. This Settlement Agreement shall terminate if: (a) the Independent

Fiduciary does not fulfill the conditions to this Settlement set forth in Paragraph 2.2.3 above; (b)

the Court declines to enter the Judgment; or (c) the Judgment entered by the Court is reversed or

modified in any material respect as a result of any Review Proceeding, and Defendant or

Plaintiffs’ Counsel or Amsted gives notice to other Parties in writing within thirty (30) days after

the date of such declination, reversal or modification that the Party is exercising its right to

terminate under this Paragraph 9.1; except that this Settlement Agreement shall not terminate if a

court of competent jurisdiction modifies, reverses, or refuses to enter any order relating to the

award of legal fees and expenses or the Plan of Allocation. Within thirty (30) days after such

notice is given by Defendant or Plaintiffs’ Counsel or Amsted, Defendant, Plaintiffs’ Counsel (on

behalf of Plaintiffs and the Class), and Amsted may mutually agree to modify this Settlement

Agreement.

       9.2       Consequences of Termination of the Settlement Agreement. If the Settlement

Agreement terminates, the following shall occur:

                 9.2.1   Subject to Paragraph 3.3, the Defendant and Amsted, respectively, each

shall have the right to seek recovery of all settlement consideration paid under Paragraph 3 of the

Settlement Agreement, plus interest, to be returned immediately upon termination of the

Settlement Agreement to the Party that paid the settlement consideration by the Person

(including but not limited to any Plaintiff, Class member, Plaintiffs’ Counsel, Settlement

Administrator, or any of their respective Representatives) that received the settlement

consideration.




                                                21
               9.2.2   The Action shall revert to its status as of July 15, 2010 for all purposes

with respect to the Parties, and Defendant may re-file the Defendant’s Motion to Transfer Venue

(Docket No. 43) that was pending on July 15, 2010 and was withdrawn without prejudice by

Order of Court dated July 26, 2010, as requested in Defendant’s Motion to Withdraw the Motion

to Transfer Venue (Docket No. 57) filed July 22, 2010, and Defendant may re-file its

Memorandum in Support of Defendant’s Motion to Transfer Venue and exhibits (Docket No.

44), and Defendant’s Reply to Class Plaintiffs’ Memorandum in Opposition to Defendant’s

Motion to Transfer Venue (Docket No. 49), and Plaintiffs may re-file Class Plaintiffs’

Memorandum in Opposition to Defendant’s Motion to Transfer Venue and exhibits (Docket No.

46). Any and all statutes of limitations, statutes of repose and/or other defenses based upon the

passage of time applicable to the claims asserted in this Action, to the extent not expired prior to

July 16, 2010 or tolled due to the pendency of the Action as a class action, shall be tolled from

July 16, 2010 to the date on which this Settlement Agreement terminates.

               9.2.3   All provisions of this Settlement Agreement shall be null and void except

for this Paragraph 9.2, and except as otherwise explicitly provided in this Settlement Agreement.

10.    Attorneys’ Fees and Expenses and Plaintiff Incentive Awards.

       10.1    Pursuant to the common fund doctrine and/or any applicable statutory fee

provision, any attorney or firm seeking an award of attorneys’ fees or reimbursement of expenses

shall apply to the Court, by the deadline and in a manner to be established by the Court in its

Preliminary Approval Order, for awards of attorneys’ fees, and for reimbursement of expenses,

to be paid solely from the Settlement Fund. Any failure to make such application shall result in a

waiver of any such requested award pursuant to the terms of the Preliminary Approval Order. In

addition, Plaintiffs may apply to the Court for incentive awards in connection with the Action, to




                                                22
be paid solely from the Settlement Fund. Defendants shall take no position with respect to any

such applications. Plaintiffs’ Counsel shall serve written notice of this Settlement by serving a

copy of the motion for preliminary approval of this Settlement in the manner prescribed by Rule

5(b)(2), Fed. R. Civ. P, upon all attorneys or firms who have filed an appearance in the Action.

       10.2    Disbursement of Attorneys’ Fees and Expenses and Plaintiff Incentive Awards. If

the Court enters one or more orders allowing payment of attorneys’ fees and/or expenses, or

Plaintiff incentive payments, upon the order becoming Final the amount awarded shall be

disbursed by the Settlement Administrator from the Settlement Fund upon direction from Slate

Carter Comer PLLC, as set forth in such order(s).

11.    Miscellaneous Provisions.

       11.1     Amendment. Before entry of the Judgment, the Settlement Agreement may be

modified or amended only by written agreement signed by or on behalf of all Parties affected by

the modification or amendment. Following entry of the Judgment, the Settlement Agreement

may be modified or amended only by written agreement signed by or on behalf of all Parties

affected by the modification or amendment and approved by the Court.

       11.2     Waiver. The provisions of this Settlement Agreement may be waived only by an

instrument in writing executed by the waiving Party. The waiver by any Party of any breach of

this Settlement Agreement shall not be deemed to be or construed as a waiver of any other

breach, whether prior, subsequent, or contemporaneous, of this Settlement Agreement.

       11.3     Construction. None of the Parties hereto shall be considered to be the drafter of

this Settlement Agreement or any provision hereof for the purpose of any statute, case law, or

rule of interpretation or construction that would or might cause any provision to be construed

against the drafter hereof.




                                                23
       11.4     Principles of Interpretation. The following principles of interpretation apply to

this Settlement Agreement:

               11.4.1 Headings. The headings of this Settlement Agreement are for reference

purposes only and do not affect in any way the meaning or interpretation of this Settlement

Agreement.

               11.4.2 Singular and Plural. Definitions apply to the singular and plural forms of

each term defined.

               11.4.3 Gender. Definitions apply to the masculine, feminine, and neuter genders

of each term defined.

               11.4.4 References to a Person. References to a Person are also to the Person’s

permitted heirs, trustees, personal representatives, executors, administrators, directors, officers,

employees, agents, partners, members, successors and assigns.

               11.4.5 Terms of Inclusion.       Whenever the words “include,” “includes,” or

“including” are used in this Settlement Agreement, they shall not be limiting but rather shall be

deemed to be followed by the words “without limitation.”

               11.4.6 Time. References to “days” in this Settlement Agreement are to calendar

days, unless otherwise stated.

       11.5     Further Assurances. All Parties agree, without further consideration, and as part

of finalizing the Settlement hereunder, that they will in good faith execute and deliver such other

documents and take such other actions not inconsistent with the terms of this Settlement

Agreement as may be necessary to consummate and effectuate the subject matter and purpose of

this Settlement Agreement.




                                                24
       11.6     Notices. Any notice, demand, or other communication under this Settlement

Agreement (other than the Notice, or other notice given at the direction of the Court) shall be in

writing and shall be deemed duly given if it is addressed to each of the intended recipients as set

forth below and personally delivered, sent by registered or certified mail (postage prepaid), or

delivered by reputable express overnight courier:

       IF TO PLAINTIFFS:

                      Pamela B. Slate
                      Slate Carter Comer PLLC
                      One Commerce Street, Suite 850
                      Montgomery, Alabama 36104

       IF TO DEFENDANT:

                      Theodore M. Becker
                      Morgan, Lewis & Bockius, LLP
                      77 West Wacker Drive
                      Fifth Floor
                      Chicago, Illinois 60601


       IF TO AMSTED:

                      James S. Christie, Jr.
                      Bradley Arant Boult Cummings LLP
                      1819 Fifth Avenue North
                      Birmingham, AL 35203


       Any Party may designate one or more different or additional person(s) to whom notice is

to be given and/or change the address(es) to which notice is to be sent, by written notice

delivered to the other Parties in the manner described above.

       11.7     Entire Agreement; No Reliance. This Settlement Agreement does not change any

terms of the 2005 Class Action Settlement. Otherwise, this Settlement Agreement contains the

entire agreement among the Parties relating to this Settlement. Other than the 2005 Class Action




                                                25
Settlement Agreement, this Settlement Agreement specifically supersedes any settlement terms or

settlement agreements relating to the Defendants that were previously agreed upon orally or in

writing by any of the Parties. In the event of any dispute regarding the interpretation of this

Settlement Agreement, no Party may rely upon or cite any previous version of this Settlement

Agreement. Each Party represents and warrants that in executing this Settlement Agreement it

did not rely on any statement of any other Party or its Representatives not expressly set forth in

this Settlement Agreement.

       11.8     Counterparts. This Settlement Agreement may be executed by exchange of faxed

or scanned executed signature pages, and any signature thereby transmitted for the purpose of

executing this Settlement Agreement shall be deemed an original signature for purposes of this

Settlement Agreement. This Settlement Agreement may be executed in two or more counterparts,

each of which shall be deemed to be an original, but all of which, taken together, shall constitute

one and the same instrument.

       11.9     Binding Effect. This Settlement Agreement binds and inures to the benefit of the

Parties hereto, their assigns, heirs, administrators, executors, and successors. Except as this

Settlement Agreement expressly sets forth, this Settlement Agreement is intended to benefit only

the Parties and no other Person shall have any enforceable rights under this Settlement

Agreement.

       12.     Communications Regarding Settlement and the Action.

       12.1     Within three (3) business days after receipt of the proposed Motion for

Preliminary Approval and the Memorandum in support thereof to be drafted by Plaintiffs’

Counsel, Defendant and Amsted shall have the right to review and approve the contents of said

Motion and Memorandum, which approval shall not unreasonably be withheld.               Plaintiffs’




                                                26
Counsel shall not file said Motion or Memorandum without prior approval by Defendant and

Amsted.

       12.2     Prior to the filing of the motion for preliminary approval of this Settlement, the

Parties agree that they will not make any public statement or disclose any information to any

Person in any manner, directly or indirectly, relating to this Settlement or the Action, except as

follows:

               12.2.1 Upon direct and specific inquiry by any person regarding the Action, any

Party or its Representatives may respond by stating that the Action has been resolved on

mutually agreeable terms but may not provide any further information. The Parties and their

Representatives are not prohibited from discussing the facts of the Action, the handling of the

Action, or the relief obtained, among themselves or with any of their respective experts who

provide opinions in the case regarding reasonableness of attorneys’ fees.

               12.2.2 Notwithstanding the foregoing, all necessary disclosures may be made to

the Court, the Financial Institution, the Settlement Administrator, and the Independent

Fiduciary, to each Party’s respective attorneys, accountants and auditors; in public filings

required by law; to government regulatory agencies or their Representatives in response to direct

inquiries or as otherwise required by law; to any local, state, or federal taxing authority; and in

disclosure documents required or advisable under federal or state securities law or ERISA.

               12.2.3 Nothing in Paragraph 12 restricts Plaintiffs’ ability to discuss the Action

with individual class members to the extent necessary to represent them in connection with this

Settlement, subject to the limitation of Section 12.2.4.

               12.2.4 The Parties agree to keep confidential all positions, assertions, and offers

made during settlement negotiations and mediations relating to the Action and this Settlement,




                                                 27
except that they may discuss the negotiations with their representative insurers, tax advisors, and

the Court.

       12.3    Following the filing of the motion for preliminary approval, the Parties shall be

allowed to disclose, in addition to those matters set forth in Paragraph 12.2, any matter appearing

in filings in the public record of the Action regarding the Settlement, but nothing else.

       12.4    The Parties agree that there will be no press releases regarding this Settlement or

the Action. Plaintiffs’ Counsel further agree to limit all website references to this Settlement or

the Action to matters appearing in filings in the public record of the Action.

       IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement on the

dates set forth below.


FOR THE PLAINTIFFS:


By:    ______________________________                 Dated: ________________________
       Pamela B. Slate


By:    ______________________________
       Gary D. McCallister


FOR DEFENDANT

By:     _____________________________                  Dated: _________________________


Its:     _____________________________

FOR AMSTED

By:     _____________________________                  Dated: _________________________


Its:     _____________________________




                                                 28
                 EXHIBITS TO THE SETTLEMENT AGREEMENT


Exhibits


A          Proposed Final Order and Judgment

B          Notice to ESOP Participants

C          Proposed Preliminary Approval Order




                                         29

				
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