Category Archives: Section 5.3

S 05.3

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Timing of Payments under Sections 5.1 and 5.2.

Also posted in Article 05, Settlement | Comments closed

S 05.3.1

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(a) Initial Settlement Deposit. No later than ten (10) Business Days after the Settlement Agreement Date, Google shall deposit the amount of Google deposited twelve million United States dollars (U.S. $12 million) (the “Initial Settlement Deposit”) on November 10, 2008 into an interest bearing escrow account by wire transfer to the Depository Bank. The Initial Settlement Deposit, and any additional funds from the Final Settlement Deposit that Google may deposit pursuant to agreement of Google and Class Counsel, shall be held in escrow in the Settlement Fund and administered by the Settlement Administrator, Class Counsel and the Depository Bank, pursuant to an escrow agreement approved by Class Counsel and Google and subject to Section 5.3(f) (Investment). Pursuant to the terms of the escrow agreement, upon the Effective Date, any and all rights of Google to the Initial Settlement Deposit, any such additional funds, and any interest or income earned thereon shall cease to exist. Consequently, the terms of the escrow agreement will provide that, as of the Effective Date, the entire balance of the Initial Settlement Deposit and any such additional funds shall be in the sole control of Class Counsel, subject to Section 5.3(d) (Limitation of Use).

Also posted in Article 05, Section 5.3(a), Settlement | Comments closed

S 05.3.2

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(b) Final Settlement Deposit. No later than ten (10) Business Days after the Effective Date, Google shall deposit the amount of sixty-seven million five hundred thousand United States dollars (U.S. $67.5 million) (the “Final Settlement Deposit”), less any funds in addition to the Initial Settlement Deposit that may have been paid pursuant to Section 5.3(a) (Initial Settlement Deposit), in the Settlement Fund by wire transfer to the Depository Bank. The Final Settlement Deposit consists of the balance of the amount owed under Sections 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) and 5.2 (Payment for Registry, Notice and Claims Administration).

Also posted in Article 05, Section 5.3(b), Settlement | Comments closed

S 05.3.3

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(c) Supplemental Deposit. In the event Google is required to make additional sentence of Section 5.1(b) (Funding of Cash Payments), Google shall deposit in the Settlement Fund an amount sufficient to fund the additional Cash Payments (“Supplemental Deposit”) by wire transfer to the Depository Bank, within ten (10) Business Days after the later of (i) the date on which the Registry issues to the Plaintiffs and Google its final report regarding Cash Payments pursuant to Section 13.513.6 (Final Report Regarding Cash Payments) or (ii) the Effective Date.

Also posted in Article 05, Section 5.3(c), Settlement | Comments closed

S 05.3.4

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(d) Limitation of Use. Except as otherwise provided in this Amended Settlement Agreement, no disbursement or other use of any portion of the Settlement Fund shall be made without approval of the Court.

Also posted in Article 05, Section 5.3(d), Settlement | Comments closed

S 05.3.5

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(e) Designation. The Settlement Fund is intended as, and shall be, a separate escrow fund of moneys held at Depository Bank and shall qualify as a “qualified settlement fund” within the meaning of Treasury Regulation Section 1.468B-1. Class Counsel or its designee shall be the “administrator” of the Settlement Fund within the meaning of Treasury Regulation Section 1.468B-2(k)(3). Class Counsel or its designee shall apply, or shall cause application to be made, to the Internal Revenue Service for an employer identification number on behalf of the Settlement Fund and shall further cause to be prepared on behalf of the Settlement Fund any and all required tax returns. Class Counsel or its designee shall file such tax returns with all appropriate tax authorities and shall cause any taxes shown due on such returns or otherwise and payable by the Settlement Fund to be paid to the United States Treasury or other taxing authority on behalf of the Settlement Fund from the funds on deposit in the Settlement Fund. Class Counsel or its designee shall do or cause to be done any and all other acts as may be reasonably required to cause the Settlement Fund to qualify and remain qualified as a “qualified settlement fund” as described above.

Also posted in Article 05, Section 5.3(e), Settlement | Comments closed

S 05.3.6

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(f) Investment. Until such time after the Effective Date as the Settlement Fund is distributed to Rightsholders consistent with the terms of this Amended Settlement Agreement and as otherwise ordered by the Court, the Settlement Fund shall be invested and reinvested by Class Counsel in United States Treasury Bills, Notes or other obligations of the United States or its instrumentalities of no more than six (6) months’ duration, except that such portions of the Settlement Fund as may reasonably be needed to pay current Administrative Costs, including expenses associated with providing notice of the Settlement to the Amended Settlement Class, or payment of taxes arising with respect to income earned by the Settlement Fund (including the reasonable expenses of a tax attorney or consultant and mailing and distribution costs and expenses related to filing tax returns), may be held in the form of cash or money market instruments. All interest and gains earned on the Settlement Fund or any portion thereof shall become and remain a part thereof. No party shall be responsible for any losses, principal or otherwise, of the Settlement Fund.

Also posted in Article 05, Section 5.3(f), Settlement | Comments closed

S 05.3.7

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(g) Payment of Administrative Costs. Prior to the Effective Date, disbursements may be made from the Initial Settlement Deposit, or any additional funds that may have been paid pursuant to Section 5.3(a) (Initial Settlement Deposit), for reasonable expenses actually incurred in paying Administrative Costs, in a total amount not to exceed twelve million United States dollars (U.S. $12 million), or such other amount as Google and Class Counsel may agree, without further order of the Court, and the amounts for Administrative Costs incurred (including accrued-but-not-yet-paid expenses) shall not be refundable to Google in the event this Amended Settlement Agreement is disapproved, voided, or otherwise fails to become final. No other payments, disbursement, or transfers of any kind from the Settlement Fund, including Class Counsel’s attorneys’ fees and costs of litigation, shall be made prior to the Effective Date without leave of Court for good cause shown. Google shall have no responsibility for the administration, operation, investment or distribution of the Settlement Fund. Plaintiffs shall use commercially reasonable efforts to minimize expenditures from the Settlement Fund.

Also posted in Article 05, Section 5.3(g), Settlement | Comments closed

S 05.3.8

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(h) Google Rights and Obligations. Google shall not have any responsibility to make any filings relating to the Settlement Fund, and Google shall have no responsibility to pay taxes, including interest and penalties due thereon, on interest earned by the Settlement Fund. In the event the Settlement is not approved by the Court or is otherwise terminated, the Settlement Fund (less any Administrative Costs incurred) shall be promptly returned to Google, and in such event Google shall be responsible for payment of all taxes on interest earned on the Settlement Fund after the date of such return.

Also posted in Article 05, Section 5.3(h), Settlement | Comments closed