AND FOREVER DISCHARGE EACH
AND EVERY OF THE SETTLED DEFENDANTS' CLAIMS, AND SHALL FOREVER BE ENJOINED FROM
PROSECUTING THE SETTLED DEFENDANTS' CLAIMS.
(C)
UPON THE EFFECTIVE DATE OF THIS SETTLEMENT, THE RELEASED PARTIES
SHALL OBTAIN BAR ORDER PROTECTION SUBSTANTIALLY IN THE FORM APPEARING IN THE
ORDER AND FINAL JUDGMENT ANNEXED HERETO AS EXHIBIT B.
THE SETTLEMENT CONSIDERATION
4.
WITHIN FIFTEEN (15) BUSINESS DAYS OF THE ENTRY OF THE ORDER
PRELIMINARILY APPROVING THE SETTLEMENT, PRICELINE.COM SHALL CAUSE TO BE PAID $80
MILLION (THE "CASH SETTLEMENT AMOUNT") INTO ESCROW FOR THE BENEFIT OF PLAINTIFFS
AND THE CLASS.
THE CASH SETTLEMENT AMOUNT AND ANY INTEREST EARNED THEREON SHALL
BE THE "GROSS SETTLEMENT FUND".
8
5.
(A)
THE GROSS SETTLEMENT FUND, NET OF ANY TAXES (AS
DEFINED BELOW) ON THE INCOME THEREOF, SHALL BE USED TO PAY (I) THE NOTICE AND
ADMINISTRATION COSTS REFERRED TO IN ¶7 HEREOF, (II) THE ATTORNEYS' FEE AND
EXPENSE AWARD REFERRED TO IN ¶8 HEREOF, AND (III) THE REMAINING ADMINISTRATION
EXPENSES REFERRED TO IN ¶9 HEREOF AND ANY OTHER COSTS, PAYMENTS OR AWARDS
APPROVED BY THE COURT.
THE BALANCE OF THE GROSS SETTLEMENT FUND AFTER THE ABOVE
PAYMENTS SHALL BE THE "NET SETTLEMENT FUND," WHICH SHALL BE DISTRIBUTED TO THE
AUTHORIZED CLAIMANTS AS PROVIDED IN ¶10-12 HEREOF. ANY PORTIONS OF THE GROSS
SETTLEMENT FUND REQUIRED TO BE HELD IN ESCROW PRIOR TO THE EFFECTIVE DATE
PURSUANT TO ¶4 HEREOF SHALL BE HELD BY SOVEREIGN BANK AND BOSTON PRIVATE BANK &
TRUST COMPANY (THE "ESCROW AGENT") FOR THE SETTLEMENT FUND.
PRICELINE.COM'S
PAYMENT PURSUANT TO ¶4 HEREOF CAN BE MADE TO EITHER BANK.
WITHIN THREE (3) DAYS
OF THE PAYMENT PURSUANT TO ¶4 HEREOF, SOVEREIGN BANK AND BOSTON PRIVATE BANK &
TRUST COMPANY WILL EACH HOLD ONE-HALF (1/2) OF THE CASH SETTLEMENT AMOUNT.
THE
GROSS SETTLEMENT FUND HELD BY THE ESCROW AGENT SHALL BE DEEMED TO BE IN THE
CUSTODY OF THE COURT AND SHALL REMAIN SUBJECT TO THE JURISDICTION OF THE COURT
UNTIL SUCH TIME AS THE NET SETTLEMENT FUND SHALL BE DISTRIBUTED TO AUTHORIZED
CLAIMANTS, OR RETURNED TO THE SETTLING DEFENDANTS PURSUANT TO THIS STIPULATION
AND/OR FURTHER ORDER OF THE COURT.
THE ESCROW AGENT SHALL INVEST ANY FUNDS IN
EXCESS OF $100,000 IN SHORT TERM UNITED STATES AGENCY OR TREASURY SECURITIES (OR
A MUTUAL FUND INVESTED SOLELY IN SUCH INSTRUMENTS), AND SHALL COLLECT AND
REINVEST ALL INTEREST ACCRUED THEREON.
ANY FUNDS HELD IN ESCROW IN AN AMOUNT OF
LESS THAN $100,000 MAY BE HELD IN AN INTEREST BEARING BANK ACCOUNT INSURED BY
THE FDIC.
THE PARTIES HERETO AGREE THAT THE SETTLEMENT FUND IS INTENDED TO BE A
QUALIFIED SETTLEMENT FUND WITHIN THE MEANING OF TREASURY REGULATION § 1.46813-1
AND THAT THE ESCROW AGENT, AS ADMINISTRATOR OF THE SETTLEMENT FUND WITHIN THE
MEANING OF TREASURY REGULATION § 1.46813-2(K)(3), SHALL BE RESPONSIBLE FOR
FILING TAX RETURNS FOR THE SETTLEMENT FUND AND PAYING FROM THE SETTLEMENT FUND
ANY TAXES OWED WITH RESPECT TO THE SETTLEMENT FUND.
COUNSEL FOR SETTLING
DEFENDANTS AGREE TO PROVIDE PROMPTLY TO THE ESCROW AGENT THE STATEMENT DESCRIBED