Full opinion text
ORDER CERTIFYING SETTLEMENT CLASS AND PRELIMINARILYAP-PROVING PROPOSED SETTLEMENTS SULLIVAN, District Judge. Upon review and consideration of the: (i) Stipulation of Settlement dated May 27, 2003, executed on behalf of Plaintiff Vista Healthplan, Inc., individually, and as representative of the Settlement Class (as defined below), and Bristol-Myers Squibb Company; and (ii) Stipulation of Settlement Dated May 27, 2003, executed on behalf of Plaintiff Vista Healthplan, Inc., individually, and as representative of the Settlement Class, and American BioScience, Inc. (collectively, the “Settlement Agreements”), and having held a hearing on June 3, 2003, it is hereby ORDERED as follows: Preliminary Approval of Settlements and Conditional Certification of the Settlement Class 1. The Court finds that it has jurisdiction over this Action. 2. The terms of the Settlement Agreements are preliminarily approved, subject to further consideration at the Fairness Hearing provided for below. The Court finds that the settlements reached in the Settlement Agreements are sufficiently within the range of reasonableness so that notice of the proposes settlements should be given as provided below in paragraphs 6 through 9. 3. The Court conditionally certifies the following Settlement Class (“Class”): All “Third-Party Payors” (defined immediately below) in the United States which, at any time from January 1, 1999 through December 31, 2002, paid, in whole or in part, for Taxol and/or generic paclitaxel in the United States. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers and directors, and government entities. “Third-Party Payor” shall mean any entity that (i) is a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides coverage for the administration of Taxol or generic paclitaxel to natural persons, and (ii) is also at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the costs of providing such coverage. A self-funded health benefit plan for employees of a government entity that satisfies the definition of “Third-Party Payor” shall not be considered a “government entity.” 4. The Court conditionally finds that Vista Healthplan, Inc. is an adequate class representative for the Class. If the Settlement Agreements are terminated or are not consummated for any reasons whatsoever, the certification of the Class shall be void, and the defendants shall have reserved all of their rights to oppose any and all class certification motions and to contest the adequacy of Vista Healthplan, Inc. as a representative of any putative class. 5. The Court appoints, consistent -with prior orders, Hanzman & Criden, P.A., as lead counsel for the Class (“Lead Counsel”). Notice to Potential Class Members 6. Before or on June 20, 2003 (or 17 calendar days after entry of this Order), Lead Counsel shall direct the Claims Administrator (defined below) to mail by first class mail, postage prepaid, copies of the Notice of Proposed Settlement and Settlement Hearing (“Notice”), substantially in the form attached as Exhibit 3 to Plaintiffs Motion for Preliminary Approval, to all potential members of the Class, to the extent that they can be identified by reasonable diligence. 7. Lead Counsel shall also direct the Claims Administrator to have published a Summary Notice of Proposed Settlement and Settlement Hearing (“Summary Notice”), substantially in the form attached as Exhibit 4 to Plaintiffs Motion for Preliminary Approval: (i) one day a week for two consecutive weeks in National Underwriter: Life & Health/Financial Services Edition; and (ii) one day a week for two consecutive weeks in the New York Times. Summary Notice shall be first published as soon as practicable after entry of this Order, and in all events, before June 30, 2003. 8. Prior to the Fairness Hearing, Lead Counsel shall file with the Court a sworn statement attesting to compliance with the provisions of paragraphs 6 & 7 above. 9. The notice to be provided to potential class members as set forth in paragraphs 6 & 7 above is found to be the best means of providing notice practicable under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed settlement and the Fairness Hearing to all persons affected by and/or entitled to participate in the settlements reached by the parties, in full compliance with the notice requirements of Rule 23 of the Federal Rules of CM Procedure and due process. Claims Administration 10. Lead Counsel has designated Complete Claim Solutions as the Claims Administrator, which designation is hereby approved, to be responsible for: (i) establishing an address and toll-free phone number (to be included in the Notice and Summary Notice) to communicate with Class members; (ii) establishing a website to post the Notice, Summary Notice and Settlement Agreements and related documents; (in) disseminating Notice to Class Members; (iv) receiving and maintaining documents sent from Class Members, including Proofs of Claim, Notices of exclusions, and other documents relating to claims administration; and (v) administrating claims for allocation of funds among Class Members consistent with the Settlement Agreements, Escrow Agreements and Court Order. 11. The Escrow Agent is directed to pay the Settlement Administrator the costs of the notice ordered by the Court consistent with the Escrow Agreements entered into by the parties. Requests for Exclusion From the Class 12. Any member of the Class who wishes to be excluded from the Class shall mail a written request for exclusion (“Notice of Exclusion”) to the Claims Administrator, to be mailed and received no later than August 20, 2003, and clearly stating the following: the name, address, taxpayer identification number, telephone number and fax number of the entity that wishes to be excluded from the Class. The Notice of Exclusion shall include, among other things, a certification containing substantially the following language: “The undersigned hereby represents that he/she has authority to sign and submit this Notice of Exclusion on behalf of the above-named Third-Party Payor, and that information provided herein is based on company records kept in the ordinary course of business. The undersigned also certifies that he/she has not received any advice from the parties to this litigation concerning his/her or the Third-Party Payor’s fiduciary obligations under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1100, et seq., or other laws governing their obligations to any class member. The undersigned understands that by submitting this Notice of Exclusion, the Third-Party Payor identified above will not be entitled to receive any proceeds of the Settlements described more fully in the Notice. By signing below, I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 28 U.S.C. § 1746.” If the individual who signs the Notice of Exclusion is not a duly authorized officer or director (or like employee) of the entity wishing to be excluded, then the individual must attach written evidence of the Class Member’s grant of authority to the individual signing to execute the Notice of Exclusion on its behalf. 13. The entity mailing the Notice of Exclusion shall also be requested to provide information necessary to effectuate the Settlement Agreements (in particular, the Settlements’ reversion and termination contingencies), and if sufficient information is not forthcoming, the entity shall be subject to discovery via subpoena or other legal process. Any information provided by any entity requesting exclusion from the Class shall be kept confidential as provided for in the Settlement Agreements. 14. Any Class Member that submits a valid and timely Notice of Exclusion shall not be bound by the Settlement Agreements, shall not be entitled to share in the benefits of the Settlements, and shall not be bound by the Final Order and Judgment, whether favorable or adverse. 15. Any potential member of the Class that does not properly and timely mail a Notice of Exclusion as set forth in paragraphs 12 through 14 shall be included in the Class, and shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such potential member of the Class shall have objected to the Settlements, whether or not such potential member of the Class received actual notice, and whether or not such potential member of the Class makes a claim upon or participates in the Settlements. Proof of Claim 16. The Claims Administrator shall include in the Notice sent to potential Class Members a Proof of Claim form substantially in the form attached as Exhibit 5 to the Motion for Preliminary Approval. 17. Each Class Member that wishes to receive a distribution from the Settlement Fund must mail a properly executed and complete Proof of Claim to the Claims Administrator at the address indicated in the Notice or Summary Notice, to be received and mailed on or before August 20, 2003. 18. Any Class Member who submits a Proof of Claim shall provide the Claims Administrator any requested information or documents to verify information appearing in the Proof of Claim. 19. The Allocation and Distribution Plan (defined in the Settlement Agreements) is hereby preliminary approved. The Preferential Fund shall be $1,530,000. Each Proof of Claim shall be submitted to and reviewed by the Claims Administrator, which shall make a recommendation to the Court, as to the extent, if any, to which each claim should be allowed. 20. The Settlement Administrator will notify each Class Member that filed a Proof of Claim of any recommendation of disallowance, in whole or in part, of the Proof of Claim submitted by such Class Member and will set forth the reasons for any such disallowance. Class Members shall be permitted a reasonable period of time to cure any deficiency with respect to their respective Proof of Claim. A copy of such notification shall also be sent by the Claims Administrator to the Lead Counsel. 21. Any Class Member that does not submit a timely and complete Proof of Claim, or submits a Proof of Claim that is disallowed, shall be barred from participating in the Settlement but otherwise shall be bound by all of the terms and provisions of the Settlement Agreements. 22. Each Class Member that submits a Proof of Claim shall expressly submit to the jurisdiction of the Court with respect to the claims submitted and shall (subject to final approval of the Settlement) be bound by all the terms and provisions of the Settlement Agreement. Confidentiality 23. Any information received by the Settlement Administrator in connection with the Settlements that pertains to a particular Class Member shall be kept confidential and shall not be disclosed to any other person or entity other than counsel for the parties and the Court. Fairness Hearing 24. A Fairness Hearing shall be held on October 22, 2003 at 11:00 a.m. in Courtroom 1 before the undersigned to consider: (i) the fairness, reasonableness and adequacy of the Settlements; (ii) Class Counsel’s motion for attorney’s fees and expenses and application for incentive award; and (iii) whether to finally approve the proposed Allocation and Distribution Plan. 25. At least seven days prior to the date of the Fairness Hearing, Lead Counsel shall file its motion for final approval and its motion for attorney’s fees and expenses and application for incentive award. 26. Any Class Member who wishes to comment in support of, or in opposition to, the fairness, reasonableness and adequacy of the Settlements or Class Counsel’s motion for attorney’s fees and expenses and application for incentive award must serve their comments and/or objections in writing, by mail, postage prepaid, to Lead Counsel and Counsel for both Bristol and ABI, received no later than September 22, 2003, giving the Class Member’s full name and address. 27. Any Class Member that has not filed a Notice of Exclusion in the manner set forth above may appear at the Fairness Hearing in person or by counsel and may be heard, to the extent allowed by the Court, either in support of or in opposition to the fairness, reasonableness and adequacy of the Settlements or Class Counsel’s motion for attorney’s fees and expenses and application for incentive award; provided, however, that no person shall be heard in opposition to the fairness, reasonableness and adequacy of the Settlements or Class Counsel’s motion for attorney’s fees and expenses and application for incentive award, and no papers or briefs submitted by or on behalf of any such person shall be accepted or considered by the Court, unless on or before September 22, 2003, such person: (a) files with the Clerk of the Court a notice of such person’s intention to appear along with a statement (including any supporting documentation) that indicates the basis for such person’s opposition to the fairness, reasonableness and adequacy of the Settlements or Class Counsel’s motion for attorney’s fees and expenses and application for incentive award; and (b) serves copies of such notice, statement and documentation, as well as any other papers or briefs that such person files with the Court, either in person or by mail, upon Lead Counsel and counsel for both Bristol and ABI. 28. The date and time of the Fairness Hearing shall be set forth in the Notice and Summary Notice, but shall be subject to adjournment by the Court without further notice to the members of the Class other than that which may be posted at the Court and on the Court’s website. Other Provisions 29. Terms used in this Order that are defined in the Settlements Agreements, unless otherwise defined in this Order, are used in this Order as defined in the Settlement Agreements. 30. In the event the Settlements are terminated in accordance with the provisions of the Settlements Agreements, the Settlements and all proceedings had in connection therewith shall be null and void, except insofar as expressly provided to the contrary in the Settlement Agreements, and without prejudice to the status quo ante rights of the Plaintiff and the Class, Bristol and ABI. 31. If the Settlements are terminated or ultimately not approved, the Court will modify any existing scheduling order to ensure that the parties will have sufficient time to prepare for the resumption of litigation. STIPULATION OF SETTLEMENT This Stipulation of Settlement (“Settlement Agreement”) is made and entered into as of this 28 day of MAY, 2003, between Vista Healthplan, Inc. (“Vista”), one of the named plaintiffs in the above-styled action, individually and as representative of the proposed Third-Party Payor Class, and Bristol-Myers Squibb Company (“Bristol”), one of the named Defendants in this action. WHEREAS, Vista commenced this action on June 11, 2001, against Bristol and American BioScience, Inc. (“ABI”), alleging that Defendants delayed the entry of generic paclitaxel from coming to market thereby causing indirect purchasers to pay supra-competitive prices for Taxol and generic paclitaxel; WHEREAS, Vista’s Complaint asserted violations of federal antitrust law, state antitrust and/or unfair business competition statutes and state common law; WHEREAS, Bristol denies that it has committed any violation of law or engaged in any wrongdoing, denies any and all liability to Vista and the Class, and has asserted a number of defenses to Vista’s claims; WHEREAS, since the filing of this Action, Vista and Class Counsel have engaged in an extensive investigation relating to the claims and underlying events alleged in the Complaint. Among other things, Class Counsel have: (1) reviewed and analyzed thousands of documents produced by Bristol, ABI and third parties; (2) engaged in legal research and analysis of a myriad of issues relating to certification, liability, causation and damages; (3) briefed substantive motions on liability and certification; and (4) retained and consulted with economists and other experts with respect to causation and damages allegedly sustained by the Class as a result of the wrongful conduct alleged in the Complaint. Class Counsel are therefore thoroughly familiar with issues of certification, liability, causation and damages with respect to the claims asserted in the Complaint and defenses asserted in Bristol’s Answer; WHEREAS, Class Counsel have engaged in extensive discovery, thoroughly investigated the facts of this Action, considered Bristol’s defenses, and reviewed the pertinent statutory and case law on liability and class certification, Class Counsel have concluded that it would be in the best interests of the Class to enter into this Settlement Agreement with Bristol because the Settlement would be a fair, reasonable and adequate resolution of this Action; WHEREAS, Bristol, while continuing to deny vigorously Vista’s allegations and any liability with respect to any and all claims asserted in the Complaint, nevertheless recognizes the costs and uncertainties attendant upon further litigation of the claims in this’ Action, and has therefore concluded that it is desirable to enter into this Settlement Agreement to avoid further expense; WHEREAS, Bristol recognizes that any separately represented third-party payors intending to exclude themselves from this Settlement will benefit from the efforts of Class Counsel, and have therefore established certain discounts defined below to reflect this reality; WHEREAS, Plaintiff Ramona Sakieste-wa and Class Counsel have represented consumers in all fifty states since filing this Action; whereas they have agreed with plaintiffs’ counsel in State v. Ohio, et al. v. Bristol-Myers Squibb Co., Case No. 1:02CV01080 (EGS) (D.D.C.) (“States Action”), that any settlement in the States Action shall resolve, settle and satisfy all consumer claims asserted against Bristol in this Action; WHEREAS, it is the intention of the Settling Parties that this Settlement resolve, compromise and settle all claims of the Class against Bristol as more particularly provided below; NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the Settling Parties, through their undersigned counsel, subject to Court approval pursuant to Fed.R.Civ.P. 23(e), to all of the terms and conditions set forth herein, as follows: I. DEFINITIONS As used in this Settlement Agreement, the following terms shall have the following meanings: A. “Action” shall mean Vista Healthplan, Inc. et al. v. Bristol-Myers Squibb Co. and American BioScience, Inc., Case No. 1:01CV01295 (EGS) (D.D.C.). B. “Allocation and Distribution Plan” shall mean, subject to Court approval, the following: The Settling Parties agree that the “Net Settlement Fund” shall be allocated and distributed as follows: (1) All Class Members’ timely and valid claims shall be valued as follows: The sum of all Taxol Payments multiplied by seventeen percent (17%). This amount shall be referred to as the Class Member’s “Recognized Loss.” (2) To satisfy the Recognized Loss of Non-J-Code Class Members, one million and five hundred thousand dollars ($1.5 million) of the Net Settlement Fund (or other amount approved by the Court) shall be set aside as the Preferential Fund. (3) The Recognized Loss of Non-J-Code Class Members and J-Code Class Members shall be paid out of the Net Settlement Fund as follows: (a) The Recognized Loss of Non-J-Code Class Members shall first be paid out of the Preferential Fund on a pro-rata basis; (b) To the extent that the Recognized Loss of Non-J-Code Class Members is not one hundred percent (100%) satisfied from the Preferential Fund, the unsatisfied amounts of the Recognized Loss of the Non-J-Code Class Members will be paid from the Non-Preferential Fund together with the Recognized Loss of J-Code Class Members on a pro-rata basis. (c) If the Recognized Loss of Non-J-Code Class Members is one hundred percent (100%) satisfied from the Preferential Fund, and there remains money in the Preferential Fund, the remaining money will be added to the Non-Preferential Fund for payment of J-Code Class Members’ Recognized Loss on a pro-rata basis. (d)To the extent that a Class Member used more than one reimbursement or payment system during the Class Period; and further, has valid claims as a Non-J-Code Class Member for only part of the Class Period, that Class Member’s claims shall be allocated as follows: (1) the Class Member shall disclose, if applicable, the date when the Class Member switched to or from using a reimbursement or payment system based on a J-Code Medicare Fee Schedule (or any similar reimbursement or payment system), together with any other information relevant to determining the proportion of its Taxol Payments that were made under a Non-J-Code reimbursement or payment system (or similar system); (2) based on the date and other information disclosed, the Claims Administrator shall calculate the Class Member’s actual breakdown of Taxol Payments or, if applicable, calculate the percentage of the Class Period that the Class Member was a Non-J-Code Class Member; and (3) the Class Member will be treated as both a J-Code Class Member and a Non-J-Code Class Member for purposes of Paragraph I.B.(3)(a)-(c) hereof, according to its actual breakdown of Taxol Payments or percentage determined in subsection (2) above, if applicable. For illustration purposes only of calculating the above-mentioned percentage, if a Class Member has a $1,000,000 Recognized Loss, was a J-Code Class Member from January 1, 1999 though December 31, 2001 and a Non-J-Code Class Member for the rest of the Claim Period, then the Claims Administrator would calculate that the Class Member was a J-Code Class Member for 75% of the Class Period, and would deem that Class Member to have a $750,000 Recognized Loss as a J-Code Class Member and a $250,000 Recognized Loss as a Non-J-Code Class Member. C. “Bristol” shall mean defendant Bristol-Myers Squibb Company. D. Subject to the Court’s approval and for the purposes of this Settlement Agreement only, the undersigned agree and consent to the certification of the following Third-Party Payor Class [hereinafter “Third-Party Payor Class” or “Class”]: All “Third-Party Payors” (defined immediately below) in the United States which, at any time from January 1, 1999 through December 31, 2002, paid, in whole or in part, for Taxol and/or generic paclitaxel in the United States. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers and directors, and government entities. “Third-Party Payor” shall mean any entity that (i) is a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides coverage for the administration of Taxol or generic paclitaxel to natural persons, and (ii) is also at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the costs of providing such coverage. A self-funded health benefit plan for employees of a government entity that satisfies the definition of “Third-Party Payor” shall not be considered a “government entity.” E. “Class Counsel” shall ■ mean all counsel representing Vista and the Class in this Action and all counsel representing Third-Party Payor Class Representatives in the Related Actions. F. “Class Period” shall mean January 1,1999 through December 31, 2002. G. “Claim Documentation,” with respect to the LDR Group, RK Group and MB Group, if applicable, shall mean the following: (1) computer reports provided by each member of the LDR Group (“LDR Member”), RK Group (“RK Member”) and MB Group (“MB Member”) summarizing the Taxol Payments for that LDR, RK or MB Member (including purchases on behalf of itself and any and all self-funded plans, PBMs and/or any other plans administered by the LDR, RK or MB Member) during the Class Period; such reports need contain only the aggregate amount of Taxol Payment for each year during the .Class Period; and (2) a declaration (the form for which is attached hereto as Exhibit A) made by an authorized representative of each member of the LDR, RK or MB Group, certifying: (a) the representative’s authority to submit a claim on behalf of the LDR, RK or MB Member; (b) the LDR, RK or MB Member’s authority to settle the claims asserted in this Action as to all of its Taxol Payments and to release all claims related to such payments on behalf of itself and any and all self-funded plans, PBMs and/or any other plans administered by the Member; (c) the total dollar amount of the Tax-ol Payments claimed by the LDR, RK or MB Member (including amounts claimed on behalf of self-funded plans, PBMs and/or any other plans administered by the Settling Health Plan); (d) the identity of each entity on whose behalf the LDR, RK or MB Member is authorized to act (including self-funded plans, PBMs and/or any other plans administered by the Settling Health Plan) by name and by the Federal Employer Identification Number assigned to such entity by the United States Internal Revenue Service (provided however that no LDR, RK or MB Member shall be required to provide more identifying information in its declaration than other Third-Party Pay- or Class Members are required to provide in the class Third-Party Payor Proof of Claim Form); (e) that the LDR, RK or MB Member and each entity on whose behalf the Member is authorized to act (including self-funded plans, PBMs and/or any other plans administered by the Settling Health Plan) waive any right they may have to exclude themselves from any class action settlement involving any of the claims asserted in this Action; (f) that the LDR, RK or MB Member and each entity on whose behalf the Member is authorized to act (including self-funded plans, PBMs and/or any other plans administered by the Settling Health Plan) waive any right they may have to receive any distribution from any class action settlement involving any of the claims asserted in this Action; and (g) that the LDR, RK or MB Member has been represented, since no later than the date of its declaration, by Lowey Dannenberg Bemporad & Selinger, P.C., Miner, Barnhill & Galland, P.C., Rawlings & Associates, P.L.L.C. or Robins, Kaplan, Miller & Ciresi LLP, for claims arising from its Taxol Payments. (3) Any LDR, RK or MB Member may submit Claim Documentation on behalf of other Members that are subsidiaries, divisions or affiliates of the submitting Member, or on whose behalf the submitting Member acts as a Third Party ■ Administrator. Self-funded health benefit plans for employees of governmental entities may properly be included in the Claim Documentation of any LDR, RK or MB Member. No LDR, RK or MB Member will be required to submit any more information or documentation than will be required from a Class Member who files a Proof of Claim. H. “Defendants” shall mean Bristol and ABI. I. “Direct Action” shall mean Oncology & Radiation Assocs., P.A. v. Bristol-Myers Squibb Co. and American Bioscience, Inc., Case No. 1:01CV02813 (EGS) (D.D.C.). J. “J-Code Class Member” shall mean any member of the Class that utilized a reimbursement or payment system for Taxol Payments during all or part of the Class Period that employed, or was based upon, a J-Code Medicare Fee Schedule (or any similar reimbursement or payment system). Nothing herein prevents a Class Member who utilized more than one reimbursement or payment system during the Class Period from being considered both a J-Code Class Member and a Non-J-Code Class Member, and therefore having its claims satisfied accordingly under the Allocation and Distribution Plan. K. “J-Code Medicare Fee Schedule” shall mean a fee schedule used by or authored by the Health Care Financing Administration, Centers for Medicare & Medicaid Services, and/or Medicare that employed a Code of “J9265” to represent Taxol or generic paclitaxel and listed fees for J9265 that did not change during the Class Period. L.“LDR Group” shall mean the following third-party payors: Aetna U.S. Healthcare, Arkansas Blue Cross and Blue Shield, Blue Cross Blue Shield of Arizona, Blue Cross Blue Shield of Georgia, Blue Cross Blue Shield of Kansas City, Blue Cross Blue Shield of Mississippi, Blue Cross Blue Shield of Missouri, Blue Cross Blue Shield of North Carolina, Blue Cross Blue Shield of Rhode Island, Blue Cross Blue Shield of Vermont, Blue Cross of California, Blue Cross of Idaho Health Service, BlueCross BlueShield Association FEP, Capital Blue Cross, Central Benefits Mutual Insurance Company, CIGNA, Con-seco Companies, Eastern States Health and Welfare Fund, Federated Mutual, Fortis Ins. Co., GE Financial Assurance, Golden Rule Ins. Co., Government Employees Hospital Assoc., Great-West Life & Annuity Ins. Co., Group Health Cooperative, Health Insurance Plan of Greater New York, Health Net, Health Partners, Inc., Health Plan of the Redwoods, Health-Now New York, Inc., Highmark, Inc., Independence Blue Cross, Louisiana Health Service Indemnity Co. (d/b/a BlueC-ross/BlueShield of Louisiana), Mail Handlers Benefit Plan, Medical Benefits Mutual Life Ins. Co., Medical Mutual of Ohio, Mid-Atlantic Medical Services Inc., Mountain States Blue Cross Blue Shield, MVP Health Plan, National Health Ins. Co., Nationwide Insurance Co. (d/b/a Calfarm Ins.), Noridian Mutual Insurance Company, Oxford Health Plan, Pacific Life Insurance Company, PacifiCare Health Systems, Principal Life Ins. Co., Priority Health, Inc., The Wellness Plan, Tufts Associated Health Plans, Inc., Unicare Life & Health Ins. Co., UnitedHealthcare, Verizon Communications, Wellpoint, Wisconsin Physicians Service Ins. Corp., and any other entity that is represented by the law firm of Lowey Dannenberg Bemporad & Selinger, P.C. or Rawlings & Associates as of the date this Settlement Agreement is first executed. M. “LDR Group Taxol Payment Percentage” shall mean the sum of all Taxol Payments of all the members of the LDR Group (on their own behalf and on behalf of entities as to which they have authority to settle the claims asserted in this Action) which have filed complete Claim Documentation, as a percentage of the TPP Total Aggregate Taxol Payments. Provided, however, that under no circumstances shall the LDR Group Taxol Payment Percentage exceed thirty-five percent (35%), and under no circumstances will the sum of the LDR Group Taxol Payment Percentage, the RK Group Taxol Payment Percentage and the MB Group Taxol Payment Percentage exceed fifty-five percent (55%). N. “LDR Group Discount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the LDR Group Taxol Payment Percentage, times twenty percent (20%). O. “LDR Group Reversion Amount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the LDR Group Taxol Payment Percentage, times eighty percent (80%). P. “MB Group” shall mean the following third-party payors: American Medical Security Inc., American Medical Securities Group, Inc., Cobalt Corp., Dean HMO, WEA Insurance Corporation, Wisconsin Masons Health Care Fund and any other entity that is represented by the law firm of Miner, Barnhill & Galland, P.C. as of the date this Settlement Agreement is first executed. Q. “MB Group Taxol Payment Percentage” shall mean the sum of all Taxol Payments of all the members of the MB Group (on their own behalf and on behalf of entities as to which they have authority to settle the claims asserted in this Action) which have filed complete Claim Documentation, as a percentage of the TPP Total Aggregate Taxol Payments. Provided, however, that under no circumstances shall the MB Group Taxol Payment Percentage exceed five percent (5%), and under no circumstances will the sum of the LDR Group Taxol Payment Percentage, the RK Group Taxol Payment Percentage and the MB Group Taxol Payment Percentage exceed fifty-five percent (55%). R. “MB Group Discount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the MB Group Taxol Payment Percentage, times twenty percent (20%). S. “MB Group Reversion Amount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the MB Group Taxol Payment Percentage, times eighty percent (80%). T. “Net Settlement Fund” shall mean the amount of the Settlement Fund to be distributed to members of the Class (the amount of money referred to in Paragraph III.B.2.(b).(vii)). U. “Non-J-Code Class Members” shall mean those members of the Class which are not J-Code Class Members. Nothing herein prevents a Class Member who utilized more than one reimbursement or payment system at the same time during the Class Period from being considered both a J-Code Class Member and a Non-J-Code Class Member, and therefore having its claims satisfied accordingly under the Allocation and Distribution Plan. V. “Non-Preferential Fund” shall mean a fund, which the Court shall set aside to satisfy the claims of J-Code Class Members, in accordance with the Allocation and Distribution Plan, equal to the Net Settlement Fund less the amount of money approved by the Court to be included in the Preferential Fund. W. “Preferential Fund” shall mean one million and five hundred thousand dollars ($1.5 million) or other amount that is set aside by the Court from the Settlement Fund to satisfy the claims of Non-J-Code Class Members, in accordance with the Allocation and Distribution Plan. X. “Releasees” shall mean Bristol and its present and former direct and indirect parents, subsidiaries, divisions, partners and affiliates, and their respective present and former officers, directors, employees, managers, agents, attorneys and legal representatives, and the predecessors, successors, heirs, executors, trustees, administrators and assigns of each of the foregoing. As used in this Paragraph, “affiliates” means entities controlling, controlled by or under common control with a Releasee. Without further defining the term “releas-ee,” the parties declare that ABI shall not be considered a releasee. Y. “Releasors” shall mean each Third-Party Payor Class Member on its own behalf and on behalf of, and including, its respective present and former direct and indirect parents, subsidiaries, divisions, partners and affiliates, their respective present and former officers, directors, employees, managers, agents, attorneys and legal representatives, and the predecessors, successors, heirs, executors, trustees, administrators and assigns of each of the foregoing. As used in this Paragraph, “affiliates” means entities controlling, controlled by or under common control with a Releasee. Z. “RK Group” shall mean: Anthem, Inc., Anthem Insurance Companies, Inc., Anthem East, Inc., Anthem Health Plans, Inc., Anthem Health Plans of Maine, Inc., Machigonne, Inc., Anthem Health Plans of New Hampshire, Inc., Anthem Health & Life Insurance Company of New York, Anthem West, Inc. and its divisions Rocky Mountain Hospital and Medical Service, Inc., and HMO Colorado, Inc., Anthem Midwest, Inc., Community Insurance Co., Anthem Benefit Administrators, Inc., Anthem Health Plans of Kentucky, Inc., Anthem Southeast, Inc., Trigon Insurance Company, Healthkeepers, Inc., Priority Health Care, Inc., Peninsula Health Care, Inc., Louisiana Health Service & Indemnity Company, HMO Louisiana, Inc., Blue Cross Blue Shield of Massachusetts, Blue Cross Blue Shield of Michigan, Blue Care Network, Inc., Blue Cross Blue Shield of Minnesota, Aware Integrated, Inc., Comprehensive Care Services, Inc., First Plan of Minnesota, Atrium Health Plan, Inc., HMO Minnesota, Blue Cross and Blue Shield of Nebraska, Corporate Diversified Services, Inc., Group Health Service of Oklahoma, Inc., Group Health Maintenance Organization, Inc., Bluelincs HMO, BlueCross BlueShield of Tennessee, Tennessee Health Care Network, Inc., Volunteer State Health Plan, Inc., California Physicians’ Service, CareAmerica Life Insurance Company, CPIC Life Insurance Company, Carefirst, Inc., Carefirst of Maryland, Inc., Willse & Associates, Inc., CFS Health Group, Inc., Delmarva Health Plan, Inc., Free State Health Plan, Inc., Patuxent Medical Group, Inc., Group Hospitalization and Medical Services, Inc., Capital Care, Inc., Capital Area Services, Inc., Blue Cross Blue Shield of Delaware, Inc., Excellus Health Plan, Inc., Excellus Benefit Services, Inc., Health Care Service Corporation, Horizon Health Care Services, Inc., Horizon Healthcare of New Jersey, Inc., Horizon Healthcare of New York, Inc., Horizon Healthcare Insurance Company of New York, Horizon Healthcare Administrators, The Regence Group, Regence BlueCross BlueShield of Oregon, Regence BlueCross BlueShield of Utah, Regence BlueShield, Regence BlueShield of Idaho, Wellchoice, Inc., Empire Health-choice Assurance, Inc., Empire Health-choice HMO, Inc., Wellchoice Insurance of New Jersey, Inc., Wellmark, Inc., Well-mark Community Insurance, Inc., Well-mark Health Plan of Iowa, Inc., Wellmark of South Dakota, Inc., Blue Cross and Blue Shield of Florida, Inc., Health Options, Inc., Hawaii Medical Service Association (d/b/a Blue Cross Blue Shield of Hawaii), Humana, Inc., Trigon Blue Cross Blue Shield, Blue Cross and Blue Shield of Louisiana, HMO Nebraska, Blue Cross Blue Shield of Oklahoma, Blue Shield of California, Horizon Blue Cross Blue Shield of New Jersey, Empire Blue Cross and Blue Shield, Empire Blue Cross, Empire Blue Cross and Blue Shield HMO, Empire Blue Cross HMO, Wellmark Blue Cross and Blue Shield of Iowa, Wellmark Blue Cross and Blue Shield of South Dakota, Well-choice HMO of New Jersey, The Guardian Life Insurance Company of America and Mutual of Omaha Insurance Company, and any other entity represented by Robins, Kaplan, Miller & Ciresi LLP as of the date this Settlement Agreement is first executed. AA. “RK Group Taxol Payment Percentage” shall mean the sum of all Taxol Payments of all the members of the RK Group (on their own behalf and on behalf of entities as to which they have authority to settle the claims asserted in this Action) which have filed complete Claim Documentation, as a percentage of the TPP Total Aggregate Taxol Payments. Provided, however, that under no circumstances shall the RK Group Taxol Payment Percentage exceed twenty percent (20%), and under no circumstances will the sum of the LDR Group Taxol Payment Percentage, the RK Group Taxol Payment Percentage and the MB Group Taxol Payment Percentage exceed fifty-five percent (55%). BB. “RK Group Discount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the RK Group Taxol Payment Percentage, times twenty percent (20%). CC. “RK Group Reversion Amount” shall mean the amount equal to the Settlement Fund less the amount of the Preferential Fund, times the RK Group Taxol Payment Percentage, times eighty percent (80%). DD. “Settlement Fund” or “Settlement Amount” shall mean the sum of fifteen million dollars ($15,000,000) that Bristol will pay into the Escrow Account, plus all accrued income and interest. EE. “Settling Parties” shall mean Vista and Bristol. FF. “Third-Party Payor” shall mean any entity that (i) is a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides coverage for the purchase or administration of Taxol or generic paclitaxel to natural persons, and (ii) is also at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the costs of providing such coverage. GG. “Third-Party Payor Class Member” or “Class Member” shall mean any entity falling within the definition of the Class which has not timely and validly excluded itself.from the Class in accordance with the procedure to be established by the Court. HH. “Third-Party Payor Settlement Fund Escrow Account” shall mean the escrow account set up at Gibraltar Bank, FSB, or another financial institution that the Settling Parties mutually agree upon, by virtue of the escrow agreement entered into by the Settling Parties. II. “Taxol Payments” shall mean the dollar amount of purchases of the brand name prescription drug Taxol and generic paclitaxel, less any reimbursements, rebates or discounts, during the Class Period. For the purposes of this Settlement Agreement, a Third-Party Payor “purchases” Taxol or generic paclitaxel if they paid or reimbursed some or all of the purchase price. JJ. “TPP Total Aggregate Taxol Payments” shall mean the sum of all Taxol Payments reported on all timely and validly filed Claim Documentation, timely and validly filed proof of claims, notices of exclusion that result in a reversion to Bristol (as detailed below) (or reasonable estimates of the foregoing if necessary) and any estimates or determinations by counsel or the Court of Taxol Payments required under this Settlement Agreement of members of the LDR and RK Groups. KK. “Related Actions” shall mean: (i) Plumbers & Pipefitters Local 572 Health & Welfare Fund, et al. v. Bristol-Myers Squibb Company, Case No. 00-C-2525, pending in the Circuit Court for the State of Tennessee, Twentieth Judicial District; (ii) Dzierlatka v. Bristol-Myers Squibb Co. and American Bioscience, Inc., Case No. BC276039, pending in the Superior Court of the State of California, County of Los Angeles, Central Judicial District; and (iii) Donnelly v. Bristol-Myers Squibb Company, Case No. 01-CV-3785, pending in the District Court of Johnson County, Kansas. LL. “Third-Party Payor Lead Counsel” or “Lead Counsel” shall mean the law firm of Hanzman & Criden, P.A. MM. “Third-Party Payor Opt Out” shall mean any Third-Party Payor falling within the definition of the Class that has timely and validly excluded itself from the Class in accordance with the procedures to be established by the Court. If necessary to effectuate any part of this Settlement Agreement, the Settling Parties agree to use any and all reasonable means (including issuing subpoenas) to calculate the Taxol Payments for, and gather any other pertinent information related to, for each Third-Party Payor Opt Out. NN. “Third-Party Payor Class Representatives” shall mean the named plaintiffs in this Action and the Related Actions. 00. “United States” shall mean the United States of America and its territories and possessions. II. SETTLEMENT FUND A. Settlement Consideration Subject to the provisions hereof, and in full, complete, and final settlement of this Action as provided herein, Bristol agrees to pay by wire transfer fifteen million dollars ($15,000,000) into the Third-Party Payor Settlement Fund Escrow Account (“Escrow Account”) within five (5) business days after the Settling Parties hereto execute this Settlement Agreement. The Escrow Account shall be established and administered pursuant to an escrow agreement in a form satisfactory to the parties hereto. The Settlement Fund may be invested at the direction of Lead Counsel in United States Treasury Bills, United States Treasury Notes, or other instruments insured or guaranteed by the full faith and credit of the United States (or other instruments, accounts or funds permitted by the escrow agreement), and any interest or income earned thereon shall become part of the Settlement Fund. B. Qualified Settlement Fund The Escrow Account is intended by the parties hereto to be treated as a “qualified settlement fund” for federal income tax purposes pursuant to Treas. Reg. § 1.468B-1, and to that end the parties hereto shall cooperate with each other and shall not take a position in any filing or before any tax authority that is inconsistent with such treatment. Whether or not Final Approval of this settlement has occurred, and whether or not the Escrow Account qualifies as a qualified settlement fund within the meaning of Treas. Reg. § 1.468B-1, Lead Counsel shall cause to be paid from the Escrow Account any taxes or estimated taxes due on any income earned on the funds in the Escrow Account and all related costs, expenses and penalties, including any tax liabilities or- penalties imposed on Bristol with respect to such income. Third-Party Payor Class Members shall have no recourse against Bristol for such amounts paid out of the Settlement Fund. If amounts received by the Third-Party Payor Class Members, or any portion thereof, are construed to be income, it is their sole responsibility to pay taxes on the amount construed to be income, plus any penalties or interest, and Bristol shall have no liability for such taxes, penalties or interest. C. All Claims Satisfied by Settlement Fund Each Class Member shall look solely to the Settlement Fund for settlement and satisfaction, as provided herein, of all claims released by Third-Party Payor Class Members pursuant to this Settlement Agreement. Except as provided by order of the Court pursuant to this Settlement Agreement, no Third-Party Payor Class Member shall have any interest in the Settlement Fund or any portion thereof. D. Production to Third Parties Vista and Class Counsel shall not voluntarily provide work product, expert or consultant analyses, IMS data, or any other documents related to this Action to any Third-Party Payor Opt Out or to any other person, and shall prohibit, to the extent permissible, any experts previously retained by Class Counsel in connection with this Action from accepting an engagement in any action based on the same subject matter of this Action. E. Dismissal of Related Actions Upon Final Approval (as defined in Paragraph TV.D.), Lead Counsel shall use all reasonable means to seek dismissal with prejudice of all Related Actions with all parties in those actions responsible for their own fees and costs associated with those actions, without prejudice of the plaintiffs in those actions participating in the settlements reached in this Action or the States Action. F. Dismissal of Ramona Sakiestewa’s Claims Without Prejudice Upon Final Approval (as defined in Paragraph IV.D.), the parties agree and stipulate pursuant to Rule 41(a)(1) that Plaintiff Ramona Sakiestewa shall dismiss all of her claims in the Action without prejudice to her participating in the settlement reached in the States Action. III. DISTRIBUTION OF THE SETTLEMENT FUND A. Third-Party Payor Reversions and Separately Represented Third-Party Payor Discounts 1.Settlement Agreement Between Bristol and LDR Group or RK Group If Bristol reaches a settlement agreement with members of the LDR Group, the RK Group or MB Group on or before June 30, 2003, Bristol shall be entitled to submit Claim Documentation to Lead Counsel on or before August 4, 2003, as to such members of such Groups and receive applicable reversion payments from the Settlement Fund as outlined below in Paragraph III.A.2. for each member that has submitted complete Claim Documentation. 2. Dispute Resolution Regarding Claim Documentation (a) Deadline On or before September 15, 2003, Lead Counsel shall raise any questions or disputes they may have with respect to any LDR, RK or MB Member’s Claim Documentation by notifying Bristol’s counsel of the nature of the dispute in writing. In addition, based on the information gathered by Bristol and Class Counsel, the parties shall negotiate in good faith to determine the amount of the LDR, RK and/or MB Group Reversion Amounts by September 15, 2003. (b) Procedure If Bristol and Lead Counsel are unable to reach a negotiated resolution of the issues by September 15, 2003, the issue shall be submitted to Hon. Emmet G. Sullivan, U.S. District Court for the District of Columbia, for a determination of the LDR, RK and/or MB Group Reversion Amounts on or before September 22, 2003, and shall request that the Court resolve all matters by October 3, 2003. The Court’s determination of such disputes shall be final and all parties waive any right to appeal. (c) Payments of Reversion Amounts Within five (5) business days after either the parties agree to, or the Court issues an order determining, the LDR, RK and/or MB Group Reversion Amounts, Lead Counsel shall cause the Escrow Agent to pay those reversion amounts to Bristol from the Settlement Fund, provided that such payments shall not be required to be made before September 22, 2003. 3. No Settlement Agreement Between Bristol and LDR, RK or MB Group In the event that Bristol does not reach a Settlement with members of the LDR Group, RK Group or MB Group, and those members timely and validly exclude themselves from the Class: (a) Bristol shall be entitled to submit Claim Documentation by August 4, 2003, as to such members of the LDR, RK or MB Group and receive reversion payments from the Settlement Fund pursuant to the procedures set out in Paragraph III.A.2. (b) If Bristol does not submit Claim Documentation under Paragraph III. A.3.(a), a reversion amount resulting from the exclusion of such LDR, RK or MB Group Members shall be determined that is reasonable and rationally related to the amount that would have been arrived at if the formula for the LDR, RK or MB Reversion Amounts had been applied, in the light of the available evidence and the circumstances. Bristol shall, in good faith, make all reasonable efforts (including the issuance of subpoenas) to obtain the Claim Documentation for such members. Bristol and Lead Counsel shall negotiate in good faith to determine the amount of such re-versiones). If the parties are unable to reach a negotiated resolution by September 15, 2003, they shall submit any unresolved issues to Hon. Emmet G. Sullivan, U.S. District Court for the District of Columbia, for determination of a reasonable reversion amount(s), on or before September 22, 2003, and shall request that the Court resolve such matters by October 3, 2003. The Court’s resolution of such matters shall be final and all parties waive any right to appeal. 4. Effect of Failure of an LDR, RK or MB Member to Submit Class Documentation Any LDR Member or RK Member that fails timely to submit complete Claim Documentation after having reached a settlement with Bristol shall waive its right to participate in the claims procedure provided by the agreement reached with Bristol, but would not waive any right it may have to file a claim as a Class Member pursuant to this Settlement Agreement. 5. Confidentiality All Claim Documentation or any other like information submitted by LDR Members, RK Members or any other Third-Party Payor shall be kept confidential to the extent permitted by law and may be used or disclosed only for the purpose of effectuating this Settlement Agreement. Adequate steps shall be taken to protect against unlawful disclosure of confidential patient identification information, if any is included in such claim documentation. B. Disbursements and Distributions from the Settlement Fund 1. Court Approval Court approval shall be required prior to any disbursement or any distribution from the Settlement Fund, other than a LDR, RK or MB Group Reversion Amount, taxes on the Settlement Fund, and the costs of administering the Settlement Fund. 2. Disbursements and Distributions The Settlement Fund shall be distributed as follows or as otherwise ordered by the Court: (a) Prior to this Settlement Agreement becoming final pursuant to Paragraph IV.D. below: (i) disbursements for the costs of administration of the Settlement Fund may be made by the Escrow Agent with notice to Lead Counsel and Bristol; (ii) disbursements for the payment or reimbursement of any taxes (including any estimated taxes, interest or penalties) due or imposed, as a result of income earned by the Settlement Fund shall be made promptly by the Escrow Agent pursuant to the Escrow Agreement with notice of such disbursements provided to Lead Counsel and Bristol; and (iii) disbursements for the expense of Class notice may be made at the direction of Lead Counsel pursuant to the settlement documentation and Court order with notice of such disbursements provided to Bristol. (b)If this Settlement Agreement becomes final pursuant to the provisions of Paragraph IV.D. below, the Settlement Fund shall be distributed as follows: (i) first, disbursements for the costs of administration of the Settlement Fund may be made by the Escrow Agent with notice of such disbursements provided to Lead Counsel; (ii) second, disbursements for the payment or reimbursement of any taxes (including any estimated taxes, interest or penalties) due, as a result of income earned by the Settlement Fund shall be made promptly by the Escrow Agent pursuant to the Escrow Agreement with notice of such disbursements provided to Lead Counsel; (iii) third, any incentive award determined by the Court for services rendered to the Class by the Third-Party Payor Class Representatives shall be distributed to the Third-Party Class Representatives; (iv) fourth, reasonable litigation and settlement expenses incurred by the settlement administrator and any other third-parties, as determined by the Court, shall be distributed to the settlement administrator and such other third-parties; (v) fifth, any attorney fee awarded by the Court to Class Counsel pursuant to Paragraph V.A. below, together with reasonable out-of-pocket expenditures by Class Counsel as determined by the Court, shall be paid to Lead Counsel for distribution to Class Counsel at its sole discretion; (vi) sixth, disbursements for the expense of Class notice may be made at the direction of Lead Counsel pursuant to the settlement documentation and Court order; and (vii) seventh, the remaining amount of the Settlement Fund shall be distributed to members of the Class. (c) In the event that the Settlement Agreement does not receive Preliminary or Final Approval, is terminated, becomes null and void for any reason or does not become final pursuant to Paragraph IV.D. below (a “Terminating Event”), the Escrow Agent shall upon the expiration of ten (10) days, subject only to the expiration of any time deposit investment(s) not to exceed ninety days, following receipt by the Escrow Agent and Lead Counsel of written notice signed by counsel for Bristol stating that the Settlement Agreement has been subject to a Terminating Event and without order of the Court, return the Settlement Fund including interest and income earned, less (i) the notice costs incurred up to the date of return and (ii) any fees and/or expenses incurred in maintaining the Escrow Account, including taxes and fees pursuant to the Escrow Agreement, to Bristol. (d) Upon receipt by the Escrow Agent of written notice from Lead Counsel stating that Bristol has invoked the provisions of Paragraph III.A. of this Settlement Agreement, which permits Bristol under certain conditions a reversion of a portion of the Settlement Fund, the Escrow Agent shall within five (5) business days and without order of the Court distribute to Bristol the amount set forth in such notice. (e) Bristol and its counsel shall have no liability or responsibility whatsoever with respect to disbursements or distributions from, or administration of, the Settlement Fund. IV. APPROVAL AND NOTICE A. Motion for Preliminary Approval As soon as possible and in no event later than ten (10) business days after execution of this Settlement Agreement, Class Counsel shall submit to the Court a motion for preliminary approval of the settlement set forth in this Settlement Agreement. B. Notice to End-Payor Class In the event that the Court preliminarily approves the settlement set forth in this Settlement Agreement, Class Counsel shall, in accordance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s order, provide those members of the Class who have been identified by reasonable means with notice by first class mail of the pendency of this Action, the conditional certification of the Class and the date of the hearing scheduled by the Court to consider the fairness, adequacy and reasonableness of the proposed settlement. Class Counsel shall take all necessary and appropriate steps to ensure that such notice is provided in accordance with the order of the Court. Notice to the members of the Class shall also be given by publication as ordered by the Court, and by publication on the web site established by Class Counsel and/or, subject to Court approval, on the Court’s web site. C.Motion for Final Approval and Entry of Final Judgment If the Court preliminarily approves this Settlement Agreement, Class Counsel shall submit a motion for final approval of this Settlement Agreement by the Court, after appropriate Court-approved notice to the Class, and shall seek entry of an order and final judgment: 1. fully and finally approving, the settlement contemplated by this Settlement Agreement, and its terms as being a fair, reasonable and adequate settlement within the meaning of Rule 23 of the Federal Rules of Civil Procedure and directing its consummation pursuant to its terms and conditions; 2. directing that this Action be dismissed with prejudice and, except as provided for herein, without cost; 3. discharging and releasing the Re-leasees from all Released Claims; 4. reserving exclusive jurisdiction over the settlement and this Settlement Agreement, including its administration and consummation; 5. directing that the judgment of dismissal be final and appealable; and 6. directing that for a period of five (5) years, the Court shall maintain the records of those members of the Class who have timely and validly excluded themselves from the Class and that a certified copy of such records shall be provided to Bristol at its request. D.Finality This Settlement Agreement shall become final upon the occurrence of all of the following (“Final Approval”): 1. The settlement has been approved by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure; 2. Entry, as provided for in Paragraph IV.C. above, is made of the final judgment of dismissal; 3. Bristol has not availed itself of any right to terminate this Settlement Agreement; and 4. The time for appeal from the Court’s approval of this Settlement Agreement and entry of a final judgment as described in Paragraph IV.C. above has expired, or if appealed, either (i) such appeal has been dismissed prior to resolution by an appellate court; or (ii) approval of this Settlement Agreement and the final judgment has been affirmed in its entirety by the court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review. V.APPLICATION FOR ATTORNEY FEES A. Attorney Fees Understanding that the award of attorney fees for Class Counsel is a matter committed to the sound discretion of the Court, Bristol will not object to Class Counsel’s request to the Court for a reasonable attorney fee not to exceed the sum of: 1. Thirty-three and one-third percent (33% %) of: the Settlement Fund minus, if applicable, the LDR, RK and MB Group Reversion Amounts and Group Discounts; and 2. If applicable, the LDR, RK and MB Group Discounts. B. Payment of Expenses Bristol shall not be liable for any of the expenses of the litigation of this Action or the Related Actions, including without limitation attorneys’ fees, fees and expenses associated with the provision of notice to the members of the Class, fees and expenses incurred in administering the Escrow Account, fees and expenses of expert witnesses and consultants, and expenses associated with discovery, motion practice, hearings before the Court and appeals; except as provided in Paragraph VII. All such expenses as are approved by the Court shall be paid out of the Settlement Fund. VI.RELEASES AND RESERVATION OF CLAIMS AND RIGHTS A. Releases In addition to the effect of any final judgment entered in accordance with this Settlement Agreement, in the event that the Court gives Final Approval to this Settlement Agreement, each Releasee shall be released and forever discharged from all manner