The Settlement Fund 1. Releasors shall look solely to the Settlement Fund for settlement and satisfaction against the Settling Defendant Releasees of all Released Claims, and shall have no other recovery against Settling Defendants or any other Settling Defendants Releasee.
2. After this Agreement becomes Final within the meaning of Paragraph 4 and any possible application of the Reduction Formula has occurred, the Settlement Fund, except for the payment of tax related deposits and settlement fund expenses, shall be distributed only in accordance with a Plan of Distribution to be submitted at the appropriate time by Co-Lead Counsel, subject to approval by the Court. In no event shall any Settling Defendants have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such distribution and administration.
3. At the appropriate time, Co-Lead Counsel shall submit to the Court a Plan of Distribution.
4. Upon further orders of the Court, the Settlement Administrator, subject to the supervision of Co-Lead Counsel and the Court as may be necessary or advisable, shall administer the claims submitted by members of the Class and shall oversee distribution of the Settlement Fund to qualified and authorized claimants pursuant to the Plan of Distribution. Subject to the terms of this Agreement and any order(s) of the Court the Settlement Fund shall be applied as follows:
a. To pay all costs and expenses reasonably incurred in connection with:
i) providing Notice;
ii) administering and distributing the Settlement Fund to qualified and authorized claimants; and,
iii) the Escrow;
b. To pay all taxes and expenses related to filing and payment of taxes;
c. To pay any Attorneys’ Fee and Expense Award(s) as ordered by the Court;
d. To pay qualified and authorized claimants pursuant to the terms of this Agreement, the Plan of Distribution or such further order(s) of the Court; and,
e. To pay such other and further costs and expenses as may be necessary or advisable pursuant to further orders of the Court. Subject to the foregoing, upon the Effective Date and thereafter and in accordance with the terms of this Agreement, the Plan of Distribution and further order(s) of the Court, the Settlement Fund shall be distributed in the manner ordered by the Court.
5. Settling Defendants and the Settling Defendant Releasees or their counsel shall not have any responsibility for, or interest in or liability with respect to or arising from the distribution of the Settlement Fund, the Plan of Distribution, the determination, administration or calculation of claims; the Settlement Fund’s qualification as a QSF, the payment or withholding of taxes and related expenses. Plaintiffs and Class Counsel shall be reimbursed and indemnified solely out of the Settlement Fund for all attorneys’ fees and expenses. The Settling Defendant Releasees shall not be liable for any costs, fees, or expenses of any of Plaintiffs’ or the Class’ respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court shall be paid out of the Settlement Fund.
6. The Plan of Distribution and any related orders or actions of the Court, the Settlement Administrator or Co-Lead Counsel in implementing or effectuating the Plan of Distribution or any part of it is not a part of this Agreement and any order or proceedings related to the Plan of Distribution shall not affect the operation of this Agreement, the finality of the Final Approval Order, or any other order made in connection with this Agreement.
7. Class Counsel’s Attorneys’ Fees and Reimbursement of Expenses:
a. Co-Lead Counsel may submit an application or applications to the Court (the “Fee and Expense Application(s)”) for distribution of fees and expenses to Class Counsel from the Settlement Fund (including other Settlement Funds in the Action) and Settling Defendants shall not oppose such application for: (i) an award of attorneys’ fees not in excess of one-third of the Settlement Fund; and (ii) reimbursement of expenses and costs incurred in connection with prosecuting the Action, plus interest on such attorneys’ fees, costs and expenses at the same rate and for the same period as earned by the Settlement Fund(s) (until paid) as may be awarded by the Court (the “Fee and Expense Award”). Co-Lead Counsel reserve the right to make additional applications for fees and expenses incurred, but in no event shall Settling Defendants or the Settling Defendant Releasees be responsible to pay any such additional fees and expenses except to the extent they are paid out of the Settlement Fund(s);
b. The Fee and Expense Award, as approved by the Court, shall be paid solely from the Settlement Fund(s). After this Agreement becomes Final within the meaning of Paragraph 4 and provided that at least $118,000,000 is held back in Escrow as provided in Paragraph 9 d. (iv), the Fee and Expense Award may be paid to Co-Lead Counsel or their assignees within ten (10) business days after entry of an order of the Court authorizing the same or unless otherwise ordered by the Court.
c. The procedure for and the allowance or disallowance by the Court of the application by Co-Lead Counsel for the amount and method of payment of Class Counsel’s fees, costs and expenses to be paid out of the Settlement Fund(s) are not part of this Agreement, and are to be considered by the Court separately from the Court’s consideration of the fairness, reasonableness and adequacy of the Settlement, and any order or proceeding relating to any Fee and Expense Application, or any appeal from any such order shall not operate to terminate or cancel this Agreement, or affect or delay the finality of the judgment approving the Settlement;
d. Neither Settling Defendants nor any other Settling Defendants Releasee under this Agreement shall have any responsibility for, or interest in, or liability whatsoever with respect to any payment to Class Counsel of any Fee and Expense Award in the Action; and
e. Neither Settling Defendants nor any other Settling Defendants Releasee under this Agreement shall have any responsibility for, or interest in, or liability whatsoever with respect to the allocation among Class Counsel, and/or any other person who may assert some claim thereto from the Settlement Fund(s), of any Fee and Expense Award that the Court may make in the Action.
