Confidential General Release and Settlement Agreement, dated June 30, 2023, by and among the Batchelder Plaintiffs, the Company and Boats LLC

STATE OF GEORGIA

COUNTY OF FULTON

1. Nature of and consideration for Agreement. In consideration of payment of one hundred million U.S. dollars ($100,000,000.00) (the “Settlement Amount”) paid as outlined in Section 3 below (including, for the avoidance of doubt, the Escrow Amount and the Structured Payment Amounts), receipt and sufficiency of which consideration are acknowledged by the undersigned, Releasors release and forever discharge all Releasees from any consequence or liability caused by or arising from the Incident along with all resulting injuries and damages, and all causes of action set forth or which could have been set forth against Releasees or any other person or entity in the Lawsuits or any other claim or suit.

2. Definitions. Where used in this General Release and Settlement Agreement:

(a)“Releasors” means Stephan Paul Batchelder and Margaret Mary Fitzgerald (formerly known as Margaret Mary Batchelder), each individually, as administrators of the Estate of Ryan Paul Batchelder, and as parents and natural guardians of Josh Patrick Batchelder, Josh Patrick Batchelder, Darin Batchelder, Zack Batchelder, and Kayla Batchelder for themselves and their respective heirs, assigns, executors, administrators, attorneys, and other representatives or agents now and in perpetuity.

(b)“Releasees” means and includes Malibu Boats, LLC and Malibu Boats, Inc. (collectively, “Malibu”), and their past, present and future officers, directors, agents, representatives, insurers, agents, employees, underwriters, assigns, members, general partners, limited partners, and employees, and any and all parent companies, subsidiaries, successor companies, businesses, or entities thereof, any other affiliated persons or entities.

(c)“Incident” means the incident on or about July 17, 2014 at Lake Burton in Rabun County, Georgia, that is the basis of the Lawsuits, in which a 2000 Malibu Response LX Bowrider boat, bearing Hull ID No. US-MB2Y6530B000 and Inboard Engine Serial No. IC970747, “swamped” while it was being operated by Dennis Ficarra, with Darin Batchelder, Ryan Paul Batchelder, Josh Patrick Batchelder, Zack Batchelder, and Kayla Batchelder in the boat as passengers, as a result of which Ryan Paul Batchelder was injured and died of his injuries, and as a result of which Releasors allegedly were injured and damaged.

(d)“Agreement” and “Release” mean this General Release and Settlement Agreement.

(e)“Lawsuits” means and includes (i) the lawsuit styled Stephan Paul Batchelder and Margaret Mary Batchelder, Individually, as Administrators of the Estate of Ryan Paul Batchelder, deceased, v. Malibu Boats West, Inc. and Malibu Boats, LLC, filed in the Superior Court of Rabun County, Georgia, Civil Action File no. 2016-CV-0114-C, which case is currently pending appeal to the Court of Appeals of Georgia (the “First Lawsuit”), and (ii) the lawsuit styled Stephan Paul Batchelder and Margaret Mary Batchelder, as Natural Guardians of Josh Patrick Batchelder, a minor; Darin Batchelder, individually and as Natural Guardian of Zack Batchelder, a minor; and Kayla Batchelder v. Malibu Boats, LLC, filed in the Superior Court of Rabun County, Georgia, Civil Action File no. 2022-CV-0034, which is a renewal action under Georgia law of certain claims and causes of action originally asserted in Civil Action 2016-CV-0114-C filed in the

Superior Court of Rabun County (the “Second Lawsuit”).

(f)“Business Day” means any day other than a Saturday, a Sunday or any other day which is a federal holiday or on which banking institutions are authorized or obligated by law, regulation, or executive order to remain closed.

(g)“Escrow Agreement” means an Escrow Agreement in substantially the form attached hereto as Exhibit A, by and among Donald R. Fountain, Jr. and Andrew Ashby, as representative of the Releasors (the “Releasor Representative”), Malibu Boats, LLC, a Delaware limited liability company, as representative of the Releasees (the “Releasee Representative”), and the Escrow Agent, which agreement will provide for, among other things, the establishment of an interest-bearing escrow account for the benefit of the parties for purposes of holding in escrow a portion of the settlement proceeds identified in Section 1 of this Agreement (the “Escrow Account”).

(h)“Escrow Agent” means Wilmington Trust, National Association.

(i)“Escrow Amount” means sixty million U.S. dollars ($60,000,000.00).

(j)“First Escrow Release Condition” means that both of the following events shall have occurred: (i) the entry of a Final Determination setting aside, vacating, or otherwise nullifying in full the judgment of the Superior Court of Rabun County, Georgia in the First Lawsuit and dismissing with prejudice each of the claims and causes of action asserted by the plaintiffs in the First Lawsuit; and (ii) the entry of a Final Determination dismissing with prejudice each of the claims and causes of action asserted by the plaintiffs in the Second Lawsuit.

(k)“First Escrow Release Date” means the date on which the First Escrow Release Condition is satisfied.

(l)“Second Escrow Release Date” means the date that is six (6) months following the First Escrow Release Date, provided that no claims, causes of action, lawsuits or other proceedings in respect of any liens, claims of liens, or claims of right to recover against the settlement proceeds or otherwise in connection with the Incident (any such claims, causes of action or proceeding, a “Third-Party Claim”) have been made or asserted by any person (including any third-party claimant) on or prior to such date.

(m)“Final Determination” means a final, non-appealable judgment or order by a court of competent jurisdiction. In the case of an order on a motion to vacate the Judgment “Final Determination” means the expiration of 31 days after the entry of such an order of any similar order disposing of the judgment, regardless of the title.

(n)“Joint Instruction” means a joint written instruction in substantially the form attached as Annex I to the Escrow Agreement.

(a)Payment Terms. The parties hereby agree as follows:

(i)Promptly following the execution of this Agreement, the Releasor Representative and the Releasee Representative shall enter into the Escrow Agreement with the Escrow Agent;

(ii)No later than 5 calendar days following the entry into the Escrow Agreement and establishment of the Escrow Account, Malibu shall deposit (or cause to be deposited) the Escrow Amount into the Escrow Account;

(iii)Malibu shall pay (or cause to be paid) the Structured Payment Amounts (as defined below) in accordance with the terms of Section 3(b) below; and

(iv)Promptly following the execution of this Agreement, Malibu shall pay (or cause to be paid) to the Interest on Trust Account (IOTA) of Clark, Fountain, La Vista, Littky-Rubin & Whitman and/or any designated structure company selected by Releasors an amount equal to (A) the Settlement Amount less (B) the sum of the Escrow Amount and the Structured Payment Amounts.

(v)The payments described in the foregoing clauses (ii)-(iv) shall be made by wire transfer of immediately available funds in accordance with wire instructions provided by the Releasor Representative substantially concurrently with the execution of this Agreement (and in any event, at least 3 Business Days prior to payment of any amounts by Malibu pursuant to this Section 3).

(b)Future Periodic Payments. In consideration of the covenants and agreements set forth herein, Malibu hereby agrees to fund the following future periodic payments (the “Periodic Payments”) to the individuals named below (the “Payee(s)”):

(i)Malibu agrees to fund the following future periodic payments on or before August 4, 2023 through MetLife Assignment Company, Inc. (“MetLife”) with a lump sum payment of $8,400,000.00 (the “Batchelder Structured Payment Amount”):

(A)Payee: Stephan P. Batchelder Revocable Trust – 2023

$34,070.75 for life, payable monthly, guaranteed for 25 years, beginning on October 1, 2023, with the last guaranteed payment on September 1, 2048.

(B)Payee: Josh P. Batchelder Revocable Trust – 2023

$5,000.00 payable monthly, guaranteed for 7 years, beginning on June 29, 2028, with the last guaranteed payment on May 29, 2035;

$7,500.00 payable monthly, guaranteed for 10 years, beginning on June 29, 2035, with the last guaranteed payment on May 29, 2045;

$100,000.00 paid on June 29, 2028 guaranteed;

$500,000.00 paid on June 29, 2035 guaranteed; and

$704,623.30 paid on June 29, 2040 guaranteed.

(ii)Malibu agrees to fund the following future periodic payments for the benefit of Margaret Mary Fitzgerald, formerly known as Margaret Mary Batchelder, on or before August 4, 2023 through American General

Annuity Service Corporation (“American General”) with a lump sum payment of $500,000.00 (the “First M.M.F. Structured Payment Amount”):

(A)Payee: M.M.F. Settlement Protection Trust

$5,288.00 payable monthly, guaranteed for 10 years, beginning on January 1, 2024, with the last guaranteed payment on December 1, 2033.

(iii)Malibu agrees to fund the following future periodic payments for the benefit of Margaret Mary Fitzgerald, formerly known as Margaret Mary Batchelder, on or before July 20, 2023 through American General with a lump sum payment of $2,322,296.00 (the “Second M.M.F. Structured Payment Amount”):

(A)Payee: M.M.F. Settlement Protection Trust

$24,676.00 payable monthly, guaranteed for 10 years, beginning on January 1, 2024, with the last guaranteed payment on December 1, 2033.

(iv)Malibu agrees to fund the following future periodic payments for the benefit of Margaret Mary Fitzgerald, formerly known as Margaret Mary Batchelder, on or before July 20, 2023 through Pacific Life & Annuity Services, Inc. (“Pacific Life”) with a lump sum payment of $1,677,704.00 (the “Third M.M.F. Structured Payment Amount” and, together with the Batchelder Structured Payment Amount, the First M.M.F. Structured Payment Amount and the Second M.M.F. Structured Payment Amount, the “Structured Payment Amounts”):

(A)Payee: M.M.F. Settlement Protection Trust

$24,676.00 payable monthly, guaranteed for 10 years, beginning on January 1, 2034, with the last guaranteed payment on December 1, 2043; and

$500,000.00 paid on January 1, 2044 guaranteed.

(v)The total cost to Malibu for the Periodic Payments portion of the settlement is $12,900,000.00. No part of the sum being paid by Malibu to provide future Periodic Payments as set forth herein may be paid directly to any Releasors or Payee inasmuch as the parties negotiated for a structured settlement as being in the best interest of the Releasors. No costs may be deducted from any of the Periodic Payments; any transfer of the Periodic Payments is prohibited by the terms of the structured settlement and may otherwise be prohibited or restricted under applicable law. Any transfer of the Periodic Payments by the Releasors and/or Payee may subject Releasors and/or Payee to serious adverse tax consequences.

(vi)All of the Periodic Payments constitute damages on account of personal physical injuries and/or physical sickness, arising from an occurrence, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended.

(c)Rights to Payments. The Periodic Payments cannot be accelerated, deferred, increased or decreased by the Releasors or any Payee; nor shall the Releasors or any Payee have the power to sell or mortgage or encumber same, or any part thereof, nor anticipate the same, or any part thereof, by assignment or otherwise. Transfer of the Periodic Payments is thus prohibited by the terms of this structured settlement and may otherwise be prohibited or restricted under applicable law.

(d)Qualified Assignment.

(i)The parties agree that Malibu will make “qualified assignments” within the meaning of Section 130 (c), of the Internal Revenue Code of 1986, as amended, of Malibu’s liability to make the Periodic Payments required herein. Such assignments shall be to MetLife Assignment Company, Inc. (the “MetLife Assignee”) for the Periodic Payments set forth in Section 3(b)(i) above, to American General Annuity Service Corporation (the “American General Assignee”) for the Periodic Payments set forth in Sections 3(b)(ii) and 3(b)(iii) above and to Pacific Life & Annuity Services, Inc. (the “Pacific Life Assignee” and, together with the MetLife Assignee and the American General Assignee, the “Assignees”) for the Periodic Payments set forth in Section 3(b)(iv) above, and such assignments shall be accepted by the Releasors without right of rejection and shall completely release and discharge Malibu from all obligations set forth in Section 3(b) of this Agreement. The Releasors recognize that, upon execution of such assignments, the Assignees shall be sole obligors with respect to the obligations assigned pursuant thereto (which, for the avoidance of doubt, shall include all obligations set forth in Section 3(b) above), and that all other releases that pertain to the liability of Malibu shall thereupon become final, irrevocable and absolute.

(ii)When the liability to make the Periodic Payments is assigned by way of “qualified assignments”:

(A)The Periodic Payments from the Assignees cannot be accelerated, deferred, increased or decreased by the Releasors or any other Payee;

(B)The Assignees’ obligation for payment of the Periodic Payments is no greater than the obligation of the person or entity originally liable (whether by suit or agreement) for payment and from whom the obligation was assigned;

(C)Metropolitan Tower Life Insurance Company will guarantee the future Periodic Payments obligations assigned to and assumed by its Assignee, MetLife Assignment Company, Inc. for the Periodic Payments set forth in Section 3(b)(i) above;

(D)AGC Life Insurance Company will guarantee the future Periodic Payments obligations assigned to and assumed by its Assignee, American General Annuity Service Corporation for the Periodic Payments set forth in Sections 3(b)(ii) and 3(b)(iii) above; and

(E)Pacific LifeCorp will guarantee the future Periodic Payments obligations assigned to and assumed by its Assignee, Pacific Life

& Annuity Services, Inc. for the Periodic Payments set forth in Section 3(b)(iv) above.

(e)Right to Purchase an Annuity.

(i)The MetLife Assignee reserves the right to fund its liability to make the Periodic Payments set forth in Section 3(b)(i) above through the purchase of annuity contracts from Metropolitan Tower Life Insurance Company (the “MetLife Annuity Issuer”). The MetLife Assignee shall be the owner of the annuity contracts and shall have all rights of ownership.

(ii)The American General Assignee reserves the right to fund its liability to make the Periodic Payments set forth in Sections 3(b)(ii) and 3(b)(iii) above through the purchase of annuity contracts from American General Life Insurance Company (the “American General Annuity Issuer”). The American General Assignee shall be the owner of the annuity contracts and shall have all rights of ownership.

(iii)The Pacific Life Assignee reserves the right to fund its liability to make the Periodic Payments set forth in Section 3(b)(iv) above through the purchase of an annuity contract from Pacific Life Insurance Company (the “Pacific Life Annuity Issuer” and, together with the MetLife Annuity Issuer and the American General Annuity Issuer, the “Annuity Issuers”). The Pacific Life Assignee shall be the owner of the annuity contract and shall have all rights to ownership.

(iv)Each Assignee may direct its respective Annuity Issuer to mail payments or electronically transfer payments directly to the Payee. The Payee shall be responsible for maintaining a current mailing address, bank and mortality information for the Payee with the Annuity Issuer.

(f)Attorney’s Fees. Each Party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with the complaint, this Agreement and the matters and documents referred to herein, the filing of a Dismissal of the Complaint, and all related matters.

(g)Beneficiary.

(i)Any Periodic Payments to be made after the death of Margaret Fitzgerald pursuant to the terms of this Agreement will be payable to the M.M.F. Settlement Protection Trust.

(ii)Any Periodic Payments to be made after the death of Stephan P. Batchelder pursuant to the terms of this Agreement shall be made payable to the Stephan P. Batchelder Revocable Trust – 2023.

(iii)Any Periodic Payments to be made after the death of Josh P. Batchelder pursuant to the terms of this Agreement shall be made payable to the Josh P. Batchelder Revocable Trust – 2023.

(iv)Any request for change of beneficiary may be submitted in writing and delivered, received and accepted by the applicable Assignee.

(h)Discharge of Obligation. The obligation assumed by the Assignees to make each Periodic Payment shall be fully discharged upon mailing of a valid check or

electronic funds transfer in the amount of such payment on or before the due date to the last address or account on record for the applicable Payee or Beneficiary with the applicable Annuity Issuer. If a Payee or Beneficiary notifies the Assignee that any check or electronic funds transfer was not received, the applicable Assignee shall direct the applicable Annuity Issuer to initiate a stop payment action and, upon confirmation that such check was not previously negotiated or electronic funds transfer deposited, shall have the applicable Annuity Issuer process a replacement payment.

(i)Additional Documents. All Parties agree to cooperate fully and execute any and all supplementary documents, including but not limited to the forms of Qualified Assignment and Releases attached hereto as Exhibit B (the “Qualified Assignments”), and to take all additional actions, which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement and the Qualified Assignments.

(a)Promptly (and in any event within 2 Business Days) following the First Escrow Release Date, the Releasor Representative and the Releasee Representative shall execute and deliver to the Escrow Agent a Joint Instruction directing the Escrow Agent to pay to the Releasors from the Escrow Account an amount equal to forty million U.S. dollars ($40,000,000.00) by wire transfer of immediately available funds pursuant to the wire instructions set forth in such joint written instruction.

(b)Promptly (and in any event within 2 Business Days) following the Second Escrow Release Date, the Releasor Representative and the Releasee Representative shall execute and deliver to the Escrow Agent a Joint Instruction directing the Escrow Agent to pay to the Releasors any amounts then remaining in the Escrow Account (which, for the avoidance of doubt, shall include any interest earned on the funds held in the Escrow Account less any expenses of the Escrow Agent to be paid out of the Escrow Account in accordance with the terms of the Escrow agreement).

(c)In the event that, prior to the occurrence of the First Escrow Release Date or the Second Escrow Release Date, a Final Determination has been entered in favor of, or the Releasors have entered in a legally binding and enforceable settlement agreement with, the State of Georgia pursuant to which the State of Georgia (together with its successors and assigns, the “State Parties”) (i) is entitled to receive payment in respect of any Third-Party Claims and (ii) expressly releases Releasees from any liability to the State Parties in respect of any Third-Party Claims (and provided that Releasees are express third-party beneficiaries of such release) (a “State Settlement Agreement,” and any such amounts owed to any State Parties pursuant to such Final Determination or State Settlement Agreement, a “State Award”), then the Releasor Representative and the Releasee Representative shall execute and deliver to the Escrow Agent a Joint Instruction directing the Escrow Agent to pay to (x) such State Parties the lesser of (1) the amount owed to such State Parties pursuant to such Final Determination or State Settlement Agreement and (2) the amount of funds then remaining in the Escrow Account (which, for the avoidance of doubt, shall include any interest earned on the funds held in the Escrow Account less any expenses of the Escrow Agent to be paid out of the Escrow Account in accordance with the terms of the Escrow Agreement) and (y) the Releasors the amount of funds (if any) remaining in the Escrow Account following the payment described in the foregoing clause (x). For the avoidance of doubt, the foregoing shall not relieve the Releasors of their obligation to indemnify and hold harmless the Releasees in accordance with the

terms of Sections 8 and 11 from and against any losses incurred by the Releasees with respect to the portion of any State Award in excess of the amount of funds remaining in the Escrow Account at the time of such State Award.

5. Release of claims. Releasors, having received and acknowledged the aforesaid consideration as full compensation and satisfaction for and on account of all claims, actions, and causes of action against Releasees and Malibu Boats West, Inc. of every nature or character, known or unknown, arising from the Incident, hereby satisfy, settle, release, and forever discharge Releasees and all other third persons or entities whatsoever (including Malibu Boats West, Inc.), known or unknown to Releasors at execution of this Agreement and regardless of whether named herein. Releasors expressly intend to release and do release all persons, firms, or corporations and the whole world, regardless of whether specifically named herein. Specifically included and released herein are all claims, actions, and causes of action of any nature or character arising out of the Incident and resulting injuries and damages to Ryan Paul Batchelder, Josh Patrick Batchelder, Darin Batchelder, Zack Batchelder, Kayla Batchelder, or Releasors. Releasors acknowledge that this is a full satisfaction of all past, present, and future claims of Releasors, claims of or on behalf of Ryan Paul Batchelder or his estate, Josh Patrick Batchelder, Darin Batchelder, Zack Batchelder, and Kayla Batchelder, and any claims of or on behalf of any other person or entity for or on behalf of Releasors, Ryan Paul Batchelder, Josh Patrick Batchelder, Darin Batchelder, Zack Batchelder, or Kayla Batchelder, against Releasees arising out of the Incident. This expressly includes and releases all claims, demands, rights, and causes of action of whatever kind or nature arising from any known or unknown consequences, foreseen and unforeseen, for bodily and personal injuries, wrongful death, mental or physical pain and suffering, damage to property and consequences thereof, and injuries received and damages incurred due to negligent or intentional conduct of any kind, negligent or intentional infliction of emotional distress, and the consequences thereof, and all claims and causes of action under any theory of recovery whether for compensatory or punitive damages, all past, present, or future claims, rights, damages, costs, loss of services, loss of consortium, loss of earnings, lost wages, loss of enjoyment of life, diminished earning capacity, loss of pension or retirement plan or benefits, disfigurement, hospital, medical, drug, funeral, and physical therapy expenses, loss or diminution in past, present, or future Social Security earnings or payments, loss of or injury to insurability, claims for interest and/or attorney’s fees, damages for alleged abusive litigation, and all other expenses and compensation of any nature, including but not limited to all claims and causes of action set forth or which could have been set forth against Releasees or anyone else in the Lawsuits (including Malibu Boats West, Inc.) or in any claim or suit with respect to the injuries and death of Ryan Paul Batchelder, the injuries of Darin Batchelder, Josh Patrick Batchelder, Zack Batchelder, and Kayla Batchelder, and/or Releasors’ claims resulting from the Incident.

6. Separate, distinct, or more serious consequences or damages. Releasors execute this Agreement with full knowledge and understanding there may be more serious consequences or damages, or separate or distinct consequences or damages, resulting from the Incident that are not now known or appreciated by Releasors. The wire transfer(s) identified herein is/are accepted by Releasors as final payment of all consideration set out herein. This settlement represents the total and complete settlement of all claims of Releasors against Releasees or anyone else in the Lawsuit or otherwise with respect to the injuries and death of Ryan Paul Batchelder, the injuries of Josh Patrick Batchelder, Darin Batchelder, Zack Batchelder, and Kayla Batchelder, and/or Releasors’ claims resulting from the Incident.

7. Lien affidavit pursuant to O.C.G.A. § 44-14-473. Releasors agree and aver, as a condition precedent to the settlement of this matter, that (i) there are no hospital and/or physician liens and no claims by any other person, firm, corporation, and/or any other entity against the consideration paid hereunder, (ii) all hospital and physician bills for treatment of Ryan Paul Batchelder and Releasors have been fully paid, and (iii) Ryan Paul Batchelder and Josh Patrick Batchelder were residents of Palm Beach County, Florida at the time of the Incident, and (iv)

Darin Batchelder, Zack Batchelder, and Kayla Batchelder were residents of Collin County, Texas at the time of the Incident. It is the express intent of the undersigned that this sworn statement shall constitute the affidavit required under O.C.G.A. § 44-14-473. Releasors further warrant, agree, and aver that there are no existing liens or claims against them or the consideration referenced herein by any bankruptcy creditor or trustee.

8. Resolution of liens & indemnity by Releasors. Releasors agree, aver, represent, and covenant that there are no outstanding liens, claims of liens, or claims of right to recover against the settlement proceeds or Releasors’ right to recover in connection with the Incident. Nevertheless, Releasors expressly agree, aver, represent, and covenant that any and all outstanding liens and claims of lien or interest in any judgment resulting from the Incident or the settlement proceeds will be resolved or paid by them from the settlement proceeds identified herein. The provisions of this paragraph specifically include but are not limited to any and all liens asserted by or on behalf of any insurer, Medicare, the Centers for Medicare Services, any federal or state Medicaid entity, or any entity on behalf of or representing the interest of any of the foregoing. Releasors agree to defend, hold harmless, reimburse, and indemnify Releasees against any claim for damages, compensation, or otherwise made by any person, firm, corporation, or other entity arising out of or resulting from claimed injuries and/or medical treatment incurred by Josh Patrick Batchelder, Zack Batchelder, or Kayla Batchelder as a result of the Incident.

(a)The parties have sought to protect the interest of Medicare/Medicaid, and it is not the purpose of this Agreement to shift responsibility of medical care of Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder to the Medicare program. This settlement is intended to resolve a dispute between Releasors and Releasees as a result of the Incident. Releasors agree and represent that Medicare/Medicaid has not paid for any medical expenses arising from the Incident that will not be resolved from these settlement proceeds as outlined above and will not pay for any medical expenses arising from the Incident in the future. Nevertheless, the parties acknowledge and understand that any present or future action or decision by the Centers for Medicare and Medicaid Services (CMS), Medicare, or Medicaid on this settlement, or on eligibility for or entitlement to Medicaid/Medicare payments by Releasors, will not void, modify, or affect the effectiveness or finality of this Agreement.

(b)Releasors also understand that should CMS, Medicare, or Medicaid find that a Medicare/Medicaid Set-Aside Allocation should have been established in connection with the Incident and/or this settlement and/or otherwise determine that Medicare/Medicaid’s interests were not adequately protected, CMS, Medicare, or Medicaid may require Releasors to expend up to the entire settlement amount on Medicare/Medicaid covered expenses related to the injury before providing coverage for the injury. Releasors voluntarily accept this risk and waive any and all claims of any nature and/or damages against the Releasees should CMS, Medicare, or Medicaid take such action, including, but not limited to a Private Cause of Action against Releasees under the Medicare Secondary Payer Act (MSP) pursuant to 42 USC § 1995y(b)(3)(A).

(c)Based on the foregoing, Releasors agree to defend, indemnify, and hold harmless Releasees from (i) any liability associated with CMS, Medicare, Medicaid, or MSPRC asserting a right to recover from the settlement, for conditional payments made on behalf of Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder for any injury-related care for which any entity proves the

burden to pay shifted to Medicare or Medicaid or for any other reimbursement obligations arising under 42 U.S.C. § 1395y(b) and its associated regulations; (ii) any action by or on behalf of Medicare, CMS, or Medicaid seeking payment of medical expenses for or of Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder; and (iii) any claims, expenses, and attorney’s fees relating to either of the foregoing or to any expense covered or paid by CMS, Medicare, or Medicaid for treatment related to injuries underlying claims of or on behalf of Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder or Releasors against Releasees. Releasees represent and warrant they will notify Releasors within 30 days of receipt of any lien, claim of lien, purported right of reimbursement, or any other purported claim to any settlement proceeds asserted by Medicare, CMS, or Medicaid, by sending an e-mail to *** and ***, containing the information known to Releasors about any such claim or potential claim. In the event that counsel is needed, and because Releasors must hold Releasees harmless with respect to the matter(s) related to the Incident and Lawsuits as set forth herein, Releasors shall be entitled to select and appoint any counsel of their choosing, at their sole discretion, which shall not restrict or restrain the Releasees from retaining any separate counsel of their choosing, which they may do at their sole discretion and expense.

(d)The parties acknowledge and understand that any present or future action or decision by the Centers for Medicare and Medicaid Services (CMS), Medicare, or Medicaid on this settlement, or on eligibility for or entitlement to Medicaid or Medicare payments by or on behalf of Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder will not render this Agreement void or ineffective, or in any way affect the finality of this Agreement.

10. No representations or admission of liability/fault by Releasees. This Release is given voluntarily and not based on any representations or statements by Releasees as to merit, legal liability, or value of any claims or any other matter. Releasors accept the consideration referred to herein in full settlement of all claims against Releasees caused by or related to the Incident. Releasors further understand and acknowledge that payment of the amounts noted herein shall not be construed as an admission of liability or fault by Releasees; said payment is in compromise and settlement of the claims of Releasors.

11. Indemnity. As an essential and material term of this Agreement, Releasors expressly agree and guarantee that they will fully indemnify and hold harmless all Releasees for and against any matter(s) related to the Incident or the Lawsuits, to include any matter(s) related to any valid lien(s) against Releasor(s), any valid claim(s) for right of reimbursement against Releasor(s), any claim by any party or nonparty for right to recover any portion of any judgment entered in either of the Lawsuits, or any other claim to any settlement proceeds paid herein, asserted by any other person, firm, corporation, employer, insurance company, government, or government agency as a result of the settlement of the claims that are resolved by this Agreement; provided, that in no event will Releasors’ indemnification obligations pursuant to this Section 11 require payment by Releasors of any amounts in excess of the Settlement Amount. Releasees represent and warrant they will notify Releasors within 30 days of receipt of any lien, claim of lien, purported right of reimbursement, or any other purported claim to any settlement proceeds, by sending an e-mail to *** and ***, containing the information known to Releasors about any such claim or potential claim. In the event that counsel is needed, and because Releasors must hold Releasees harmless with respect to the matter(s) related to the Incident and Lawsuits as set forth herein, Releasors shall be entitled to select and appoint any counsel of their choosing, at their sole discretion, which shall not restrict or restrain the Releasees from retaining any separate counsel of their choosing, which they may do at their sole discretion and expense.

12. Confidentiality. Releasors covenant and agree that the terms of this Agreement and the amount paid by or on behalf of the Releasees pursuant to this Agreement will be kept confidential and private in all respects. The undersigned will not reveal the foregoing to newspapers, media, or any other person, firm, corporation, or entity, except as set forth herein. Releasors agree not to disclose or describe or characterize the amount of the settlement in any way whatsoever. Releasors also (i) agree to direct their counsel to treat the terms of this Agreement and amount paid as a client confidence that they may not divulge, and (ii) covenant that neither they nor their counsel will divulge the information. It shall not be a violation of this Section 12 to state that the matter has been settled and that the undersigned are satisfied or pleased with the resolution of the case. Nothing contained herein shall be construed to preclude the undersigned from disclosing this Agreement, including the amount paid, if and as required in public securities filings, or to income tax preparer(s), financial advisor(s), or the Internal Revenue Service in connection with seeking tax or financial advice or filing any tax document requiring the disclosure of said settlement, or to any Court or governmental body that requires it, or as otherwise required by law. Releasors agree to indemnify and reimburse any reasonable cost that the Releasees may incur to enforce the confidentiality obligations in this Section 12 or related to litigation arising from a breach of said obligations, but only if Releasees are the prevailing party in any such matter.

13. No other person able to assert claim. Releasors swear and affirm that no other person is authorized or entitled to assert a claim for recovery in connection with the Incident on behalf of Ryan Paul Batchelder or for damages incurred by him or his estate or on their behalf, or on behalf of Darin Batchelder, Josh Patrick Batchelder, Zack Batchelder, or Kayla Batchelder, or for injuries or damages incurred by them or on their behalf. Releasors expressly agree to defend, reimburse, indemnify, and hold harmless Releasees against any claim made against Releasees (a) by any other person relating to injury and death of Ryan Paul Batchelder or any damages of Ryan Paul Batchelder, his estate, or Releasors relating to or arising from the Incident, and/or (b) relating to injury or damages suffered by Josh Patrick Batchelder, Zack Batchelder, Kayla Batchelder, or Darin Batchelder relating to or arising from the Incident, including any claim for loss of consortium, loss of services, or similar type of claim alleged to have resulted from an injury, mental, physical, or emotional due to the Incident.

14. Entire agreement between parties. This is the entire and sole agreement between the parties regarding the subject matter referenced herein, and this Agreement replaces and supersedes all prior discussions, agreements, or understandings between the parties regarding the Incident, the Lawsuits, any judgment entered in connection with the Lawsuits, or any settlement or obligation regarding any of the foregoing.

15. No presumption regarding drafting of Agreement. Releasors and their attorney have fully reviewed and had the opportunity to revise this Agreement prior to signing, and, as such, it is agreed that in the context of any subsequent interpretation of the Agreement, no presumption shall arise or apply as to construction of the Agreement against the drafting party.

16. Capacity to execute agreement. Releasors warrant that they are of sound mind and laboring under no disabilities that would prevent them from understanding and agreeing to the terms of this Agreement. Releasors represent and warrant that no other person or entity has or has had any interest in the claims, demands, obligations and/or causes of action referred to in this Agreement except as otherwise set forth herein and that they have the sole right and exclusive authority to execute this Agreement and to receive the sums specified herein.

17. Governing law and venue. The provisions of this Agreement shall be construed under and according to the laws of the State of Georgia. Each of the parties hereto hereby (i) irrevocably submits to the exclusive jurisdiction of any federal or state court sitting in the Fulton County, Georgia for any action or proceeding brought by another party hereto arising out of or relating to this Agreement, (ii) waives any objection to the laying of venue in any such action or proceeding

in such courts, and (iii) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any party.

18. Duty of cooperation. Releasors expressly agree to take any steps necessary to carry out the specific terms and intent of this Agreement, specifically including but not limited to any steps necessary to file motions to set aside any judgment in the Lawsuits, to dismiss the Lawsuits and any appeal of the Lawsuits.

19. Setting aside judgment and dismissal with prejudice in the First Lawsuit.  Within 5 Business Days after Releasees’ payment in full of all Settlement Amount in accordance with the terms of Section 3(a), (i) Releasors and Releasees shall file motions to dismiss their appeals in the First Lawsuit with prejudice, and (ii) contemporaneously with those filings, Releasees shall provide notice of the motions to the Office of the Attorney General of the State of Georgia. Contemporaneously with the filing of the Releasors’ and Releasees’ motions to dismiss their appeals in the First Lawsuit with prejudice, (a) Releasors and Releasees shall file a joint motion to set aside the judgment entered in the First Lawsuit, and (b) contemporaneously with the filing of the motion described in the foregoing clause (a), Releasees shall provide notice of the filing of the motion to the Office of the Attorney General of the State of Georgia. Releasors and Releasees will take all necessary steps to ensure that the judgment in the First Lawsuit is set aside, vacated, or otherwise nullified, and as soon as an order setting aside, vacating, or otherwise nullifying the judgment is entered, the Releasors will file a motion to dismiss with prejudice of all claims against all parties in the First Lawsuit. It is expressly understood and agreed that the entry of orders granting the aforementioned motions to dismiss and the parties’ reasonable best efforts to obtain a court order granting the motion to set aside, vacate, or otherwise nullify the judgment entered in the First Lawsuit filed in accordance with the terms of this Section 19 are essential terms of this Agreement. Notwithstanding the foregoing, in the event that, despite the parties’ reasonable best efforts, the trial court refuses to set aside, vacate, or otherwise nullify the judgment, but the Releasors enter into a State Settlement Agreement in accordance with the terms of Section 4(c) above, then Releasors will file a motion to dismiss with prejudice of all claims against all parties in the First Lawsuit, and their obligations under this Section 19 will be fully satisfied.

20. Dismissal with prejudice in Second Lawsuit. Contemporaneously with filing of the motions to dismiss the First Lawsuit in accordance with Section 19, Releasors will file a motion to dismiss with prejudice of all claims against all parties in the Second Lawsuit.

21. Captions; counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by electronic means (including .portable document format (.pdf)) with the same binding effect as the original.

Donald R. Fountain, Jr.

Clark, Fountain, La Vista, Prather, Littky-Rubin & Whitman

3601 PGA Boulevard, Suite 300,

Palm Beach Gardens, FL 33410

Email: ***

and

Andrew Ashby

Ashby Thelen Lowry

445 Franklin Gateway SE

Marietta, GA 30067

Email: ***

Malibu Boats, LLC

5075 Kimberly Way

Loudon, TN 37774

Attention: David Black

Matthew Googe

Latham & Watkins LLP

555 Eleventh Street, NW, Suite 1000

Washington, D.C. 20004

Attention: Richard P. Bress

Wilmington Trust, National Association

    

Section 4.13.     Business Day. For purposes of this Escrow Agreement, the term “Business Day” means any day other than a Saturday, a Sunday or any other day which is a federal holiday or on which banking institutions are authorized or obligated by law, regulation, or executive order to remain closed.

RELEASOR REPRESENTATIVES:

By: _________________________

Donald R. Fountain, Jr.

By: _________________________

Andrew Ashby

RELEASEE REPRESENTATIVE:

MALIBU BOATS, LLC

By: _________________________

Name: Matthew Googe

Title: Secretary

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Escrow Agent

By: _________________________

Name:

Title:

By: _________________________

Name:

Date:

By: _________________________

Name:

Date:

WILMINGTON TRUST, NATIONAL ASSOCIATION (as Escrow Agent)

By: _________________________

Name:    

Title:    

Date:     

[__________________________]

By: _________________________    

Name:    

Title:    

Date:     

WILMINGTON TRUST, NATIONAL ASSOCIATION (as Escrow Agent)

By: _________________________    

Name:    

Title:    

Date:     

•Number of Escrow Accounts to be established: One (1)

•Number of Deposits to Escrow Account(s): One (1)

•Number of Withdrawals from Escrow Fund(s): Not more than two (2)

Wilmington Trust, National Association

Email: ***

                    

1 To be included only in the final Joint Instruction following the Second Escrow Release Date or the payment of a Third-Party Award equal to or in excess of the amounts then remaining in the Escrow Account (as applicable).

                        Very truly yours,

RELEASOR REPRESENTATIVES:

By: _________________________

Donald R. Fountain, Jr.

By: _________________________

Andrew Ashby

RELEASEE REPRESENTATIVE:

MALIBU BOATS, LLC

By: _________________________

Name:

Title:

“Claimant(s)”:     

“Assignor”:     

“Settlement Agreement”:     

[Date and title of settlement agreement, order or other document embodying the Assignor’s obligation to make the agreed periodic payments]

“Assignee”:     

“Annuity Issuer”:     

“Effective Date”:     

This Qualified Assignment and Release Agreement is made and entered into as of the Effective Date by and among the undersigned parties with reference to the following facts:

a.Claimant(s) and Assignor are parties to or are otherwise subject to or entitled to receive payments under the above-referenced Settlement Agreement, under which Assignor has liability to make certain periodic payments to or for the benefit of Claimant(s) as specified or referred to in paragraph 12 of this Agreement (the “Periodic Payments”); and

b.Assignor and Assignee wish to effect a “qualified assignment” within the meaning and subject to the conditions of Section 130(c) of the Internal Revenue Code of 1986, as amended (the “Code”).

Now, therefore, in consideration of the foregoing and for other good and valuable consideration, the parties agree as follows:

1.Assignment and Assumption; Release of Assignor. Assignor hereby assigns to Assignee, and Assignee hereby accepts and assumes, all of Assignor’s liability to make the Periodic Payments. Each Claimant hereby accepts and consents to such assignment by Assignor and assumption by Assignee. Effective on the Effective Date, each Claimant hereby releases and discharges Assignor from all liability to make the Periodic Payments.

2.Nature of Periodic Payments. The Periodic Payments constitute

a.damages (other than punitive damages), whether by suit or agreement, or

b.compensation under a workers’ compensation act,

on account of personal injury or sickness in a case involving physical injury or physical sickness, within the meaning of Sections 130(c) and 104(a) of the Code.

3.Extent of Assignee’s Liability. Assignee’s liability to make the Periodic Payments shall be no greater than the liability of Assignor immediately prior to the Effective Date. Assignee assumes no liability other than the liability to make the Periodic Payments. Assignee’s liability to make the Periodic Payments shall be unaffected by any bankruptcy or insolvency of Assignor.

4.Qualified Funding Asset. Assignee will fund the Periodic Payments by purchasing from Annuity Issuer a “qualified funding asset,” as defined in Section 130(d) of the Code, in the form of an annuity contract (the “Annuity”) issued by Annuity Issuer and providing for payments corresponding to the Periodic Payments. Assignee shall be designated as the owner of the Annuity. All rights of legal ownership and control of the Annuity shall (subject to paragraph 9 of this Agreement) be and remain vested exclusively in Assignee; provided, however, that the Annuity shall be used by Assignee to fund the Periodic Payments and shall at all times be designated by Assignee on its records as being taken into account, under Section 130 of the Code, with respect to this Agreement. Notwithstanding anything to the contrary contained in this Agreement, neither any Claimant nor any Successor Payee shall have any rights with respect to the Annuity or the payments thereunder that would cause any amount attributable to the Annuity to be currently includible in the recipient’s income or would otherwise affect the determination of when any recipient is treated as having received any payment for income tax purposes, or would otherwise prevent this Agreement from satisfying all of the conditions for a “qualified assignment” within the meaning of Section 130(c) of the Code.

5.Delivery of Payments. Assignee may have Annuity Issuer send payments directly to a Claimant, or, if applicable, to a Successor Payee (as defined in paragraph 8 of this Agreement), or deliver payments by electronic funds transfer to an

12The Legal Committee of the National Structured Settlements Trade Association (“NSSTA”) has prepared this Model Qualified Assignment and Release Agreement, together with a corresponding Model Qualified Assignment Agreement, as resources for individual NSSTA members to consider in reviewing and, where they deem appropriate, updating their own structured settlement documentation to assure that it continues to serve the tax and other objectives of structured settlements, taking into account recent statutory, regulatory and case law developments.

FDIC-insured depository institution in the United States for credit (directly or indirectly) to an insured account in the name of such Claimant or Successor Payee. Such direction of payments under the Annuity shall not be deemed to afford the Claimant or any Successor Payee any rights of ownership or control of the Annuity. Each Claimant and any Successor Payee shall at all times keep Annuity Issuer apprised of such Claimant’s or Successor Payee’s current street address and telephone number and, if such Claimant or Successor Payee receives payments by electronic funds transfer, the name, address, bank identifier number (BIN) and telephone number of the applicable depository institution and the account number of the account to which the payments are to be credited.

6.Discharge of Liability. The Assignee’s liability to make each Periodic Payment to the Claimant or Successor Payee designated to receive such payment shall be discharged automatically at such time as a corresponding payment is made to such Claimant or Successor Payee by the Annuity Issuer.

7.Acceleration, Transfer of Payment Rights. None of the Periodic Payments and no rights to or interest in any of the Periodic Payments (all of the foregoing being hereinafter collectively referred to as “Payment Rights”) can be

a.Accelerated, deferred, increased or decreased by any recipient of any of the Periodic Payments; or

b.Sold, assigned, pledged, hypothecated or otherwise transferred or encumbered, either directly or indirectly, unless such sale, assignment, pledge, hypothecation or other transfer or encumbrance (any such transaction being hereinafter referred to as a “Transfer”) has been approved in advance in a “Qualified Order” as defined in Section 5891(b)(2) of the Code (a “Qualified Order”) and otherwise complies with applicable state law, including without limitation any applicable state structured settlement protection statute.

No Claimant or Successor Payee shall have the power to effect any Transfer of Payment Rights except as provided in sub-paragraph (ii) above, and any other purported Transfer of Payment Rights shall be wholly void. If Payment Rights under this Agreement become the subject of a Transfer approved in accordance with sub-paragraph (ii) above the rights of any direct or indirect transferee of such Transfer shall be subject to the terms of this Agreement and any defense or claim in recoupment arising hereunder.

8.Contingent Beneficiaries. Any Periodic Payments to be made after the death of any Claimant or Successor Payee shall be made to such party as shall have been designated in, or in accordance with, the Settlement Agreement or, if the Settlement Agreement does not provide for such designation, then to the party designated in conformity with this paragraph 8. Any party so designated is referred to in this Agreement as a “Contingent Beneficiary.” If no Contingent Beneficiary is living at the time of the death of a Claimant or Successor Payee, payment shall be made to the decedent’s estate. As used in this agreement the term “Successor Payee” refers to a Contingent Beneficiary or an estate that has become entitled to receive Periodic Payments following the death of a Claimant or a Successor Payee. Except as otherwise provided in the Settlement Agreement, no designation or change of designation of a Contingent Beneficiary shall be effective unless such change (i) is requested in a written request submitted to Assignee (or its authorized agent) in accordance with Assignee’s customary procedures for processing such requests; and (ii) is confirmed by Assignee (or its authorized agent). Except for a designation that is expressly identified in the Settlement Agreement as irrevocable, any designation of a Contingent Beneficiary shall be deemed to be revocable; and no party that is designated as a Contingent Beneficiary (other than a party irrevocably designated as a Contingent Beneficiary in the Settlement Agreement) shall, solely by virtue of its designation as a Contingent Beneficiary, be deemed to have any cognizable interest in any Periodic Payments.

9.Failure to Satisfy Section 130(c). If at any time prior to completion of the Periodic Payments, the Settlement Agreement is declared terminated in a final, non-appealable order of a court of competent jurisdiction (or in the case of a workers’ compensation settlement, a final order of the applicable workers’ compensation authority) or if it is determined in any such final order that the requirements of Section 130(c) of the Code have not been satisfied in connection with this Agreement: (i) the assignment by Assignor to Assignee of the liability to make the Periodic Payments, Assignee’s acceptance of such assignment and the release by Claimant(s) of Assignor’s liability shall be of no force or effect; (ii) Assignee shall be conclusively deemed to be acting as the agent of Assignor; (iii) the Annuity shall be owned by Assignor, which shall retain the liability to make the Periodic Payments; (iv) Assignee shall have no liability to make any Periodic Payments; and (v) the parties hereto agree to cooperate in taking such actions as may be necessary or appropriate to implement the foregoing.

10.Governing Law; Disclosure of Certain Tax Information; Binding Effect.

(i)This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of                     ;32 provided, however, that any Transfer of Payment Rights under this Agreement may be subject to the laws of other states in addition to the state designated above.

(ii)This Agreement shall be binding upon the parties hereto and their respective successors, heirs, executors, administrators and permitted assigns, including without limitation any party asserting an interest in Payment Rights.

32 In choosing governing law the parties should be aware that the effectiveness of both contractual and “legal” restriction on assignment of rights to receive future Periodic Payments including (i) contractual restrictions integral to the intended tax treatment of periodic payments and the annuities held as qualified funding assets and (ii) statutes, regulations and “rule[s] of law” prohibiting, restricting or requiring consent for assignments may be limited (unintentionally) by sweeping override provisions enacted in

11.Advice, Comprehension of Agreement. In entering into this Agreement, each Claimant represents and warrants that (i) such Claimant has relied solely upon the legal and tax advice of such Claimant’s own attorneys and other advisors, who are the attorneys and advisors of such Claimant’s choice, concerning the legal and income tax consequences of this Agreement; and (ii) the terms of this Agreement have been completely read by and explained to such Claimant and are fully understood and voluntarily accepted by such Claimant.

12.Description of Periodic Payments. The Periodic Payments are as set forth immediately below or (if not set forth below) as set forth in attached Addendum No. 1, which is hereby incorporated in and made a part of this Agreement.

This Qualified Assignment and Release Agreement is signed in one or more counterparts as of the Effective Date by the following: