THE SETTLEMENT CONSIDERATION
4.
IN CONSIDERATION FOR THE RELEASES AND DISCHARGES PROVIDED FOR IN
¶ 3:
(A)
WITHIN THIRTY (30) DAYS OF PRELIMINARY APPROVAL OF THE SETTLEMENT,
BIOVAIL SHALL PAY AND SHALL CAUSE THE INSURERS TO PAY THEIR AGREED UPON PORTIONS
OF THE SETTLEMENT AMOUNT, I.E., ONE HUNDRED THIRTY-EIGHT MILLION DOLLARS
($138,000,000.00) IN CASH, EITHER BY WIRE TRANSFER OR CHECK, TO THE ESCROW
AGENT, AS AGENT FOR THE BENEFIT OF LEAD PLAINTIFFS AND THE OTHER MEMBERS OF THE
CLASS.
(B)
IN ADDITION, WITHIN SIX MONTHS AFTER THE EFFECTIVE DATE, DEFENDANT
BIOVAIL WILL ADOPT THE CORPORATE GOVERNANCE ENHANCEMENTS DESCRIBED IN SECTION A
OF EXHIBIT C TO THIS STIPULATION, AND DEFENDANT BIOVAIL HAS AGREED TO MAINTAIN
THE CORPORATE GOVERNANCE ENHANCEMENTS DESCRIBED IN SECTION B OF EXHIBIT C.
5.
(A)
THE GROSS SETTLEMENT FUND, NET OF ANY TAXES, SHALL
BE USED TO PAY (I) THE NOTICE AND ADMINISTRATION COSTS REFERRED TO IN ¶ 7
HEREIN, (II) THE ATTORNEYS' FEE AND EXPENSE AWARD REFERRED TO IN ¶ 8 HEREIN, AND
(III) THE REMAINING ADMINISTRATION EXPENSES REFERRED TO IN ¶ 9 HEREIN.
ADDITIONALLY, TAXES SHALL BE PAID OUT OF THE GROSS SETTLEMENT FUND, SHALL BE
CONSIDERED TO BE A COST OF ADMINISTRATION OF THE SETTLEMENT AND SHALL BE TIMELY
PAID BY THE ESCROW AGENT WITHOUT PRIOR ORDER OF THE COURT.
(B)
THE BALANCE OF THE GROSS SETTLEMENT FUND AFTER THE ABOVE PAYMENTS
SHALL BE THE "NET SETTLEMENT FUND."
THE NET SETTLEMENT FUND SHALL BE
DISTRIBUTED TO THE AUTHORIZED CLAIMANTS AS PROVIDED IN ¶¶ 10-12 HEREIN, SUBJECT
TO THE OBLIGATION, TO THE EXTENT REQUIRED BY LAW, TO WITHHOLD FROM ANY
DISTRIBUTIONS TO AUTHORIZED CLAIMANTS AND OTHER PERSONS ENTITLED THERETO
PURSUANT TO THIS STIPULATION ANY FUNDS NECESSARY TO PAY TAXES INCLUDING THE
ESTABLISHMENT OF ADEQUATE RESERVES FOR TAXES AS WELL AS ANY AMOUNT THAT MAY BE
REQUIRED TO BE WITHHELD UNDER
UNITED STATES TREASURY REG. 1.468B-(L)(2) OR OTHERWISE UNDER APPLICABLE LAW IN
RESPECT OF SUCH DISTRIBUTIONS. FURTHER, THE RELEASED PARTIES, LEAD PLAINTIFFS
AND THEIR RESPECTIVE COUNSEL SHALL BE INDEMNIFIED AND HELD HARMLESS BY THE
ESCROW ACCOUNT UP TO THE AMOUNT IN THE ESCROW ACCOUNT FOR TAXES (INCLUDING,
WITHOUT LIMITATION, TAXES PAYABLE BY REASON OF ANY SUCH INDEMNIFICATION
PAYMENTS).
ANY SUMS REQUIRED TO BE HELD IN ESCROW HEREUNDER SHALL BE HELD BY
BERNSTEIN LITOWITZ, ACTING AS AGENT FOR THE CLASS.
ALL FUNDS SO HELD IN THE
ESCROW ACCOUNT SHALL BE DEEMED TO BE IN THE CUSTODY OF THE COURT FOR THE BENEFIT
OF THE CLASS AND SHALL REMAIN SUBJECT TO THE JURISDICTION OF THE COURT UNTIL
SUCH TIME AS THE FUNDS SHALL BE DISTRIBUTED PURSUANT TO THIS STIPULATION AND/OR
FURTHER ORDER OF THE COURT OR THE SETTLEMENT IS TERMINATED AS PROVIDED HEREIN.
THE ESCROW AGENT SHALL INVEST ANY FUNDS HELD IN ESCROW IN SHORT-TERM UNITED
STATES AGENCY OR TREASURY SECURITIES (OR A MUTUAL FUND INVESTED SOLELY IN SUCH
INSTRUMENTS), PURSUANT TO INSTRUCTIONS FROM BERNSTEIN LITOWITZ, ACTING AS AGENT
FOR THE CLASS, AND SHALL COLLECT AND REINVEST ALL INTEREST ACCRUED THEREON.
THE
PARTIES HERETO AGREE THAT THE