Nutella loses $3.5million lawsuit - Page 15

FEE AND INCENTIVE AWARDS
The Injunctive Fee Award
50.
In addition to and separate from the Cash Settlement Amount, Ferrero shall
neither object to nor challenge Class Counsel’s application for a Fee Award, to be paid by
Defendant or its insurance carrier, not to exceed Three Million Dollars ($3,000,000) in
connection with the Injunctive Relief described above in Section VII (the “Injunctive Fee
Award”). Class Counsel shall neither request nor accept from the Court an Injunctive Fee Award
of fees and costs more than the $3,000,000.
The Cash Settlement Amount Fee Award
51.
In addition to an award associated with the Injunctive Relief obtained for
Settlement Class Members, Class Counsel will apply on behalf of Class Counsel and other
Plaintiffs’ Counsel listed herein to the Court for a Fee Award from the Gross Settlement Fund of
attorneys’ fees not to exceed thirty percent (30%) and reimbursement of expenses (the “Cash
Settlement Amount Fee Award”). Defendant shall neither object to nor challenge Class
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Counsel’s application for a Cash Settlement Amount Fee Award that does not exceed thirty
percent (30%) of the Gross Settlement Fund.
Application and Payment of the Injunctive Fee Award and the Cash Settlement
Amount Fee Awards
52.
Class Counsel’s final application for any Fee Award, and any documents
submitted in support thereof, shall be filed no later than forty-five (45) days before the Fairness
Hearing. Any attorneys’ fees, expenses, and interest as are awarded by the Court to Class
Counsel and other Plaintiffs’ Counsel listed herein shall be paid within seven (7) business days
following an award by the Court, notwithstanding the existence of any timely filed objections
thereto, or potential for appeal there from, or collateral attack on the Settlement or any part
thereof, subject to Class Counsel’s obligation to make appropriate repayments to Defendant or
the Settlement Fund, plus accrued interest at the same net rate as is earned by the Gross
Settlement Fund, if and when, as a result of any appeal and/or further proceedings on remand, or
successful collateral attack, the fee or cost award is reduced or reversed or return of the Gross
Settlement Fund is required. If the Order and Final Judgment approving the Settlement is
reversed, a refund or repayment of the Fee Award shall be made to Defendant or other entity that
made the payment (the “Payor”) plus accrued interest thereon at the six-month London Interbank
Offered Rate (“LIBOR”) if and when: (a) the Fee and Expense Award and/or the Incentive Fees
are reduced, vacated, or reversed, without remand, by order of the United States Court of
Appeals for the Third Circuit or by final, non-appealable, order of the United States District
Court of the District of New Jersey; (b) the Effective Date does not occur; (c) this Settlement is
terminated or cancelled for any reason; (d) this Settlement is voided by any party; (e) the Fee and
Expense Award and/or Incentive Fees do not become final; or (f) the Settlement is not approved,
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or is reversed, or modified, without remand, by order of the United States Court of Appeals for
the Third Circuit or by final, non-appealable, order of the United States District Court for the
District of New Jersey. The full amount of the Fee and Expense Award and/or Incentive Fees, or
the amount by which any such award or fee is reduced, or modified, without remand, by order of
the United States Court of Appeals for the Third Circuit or by final, non-appealable, order of the
United States District Court for the District of New Jersey shall be paid to the Payor within ten
(10) business days of the date of the event requiring the refund and repayment as set forth in this
Paragraph.
53.
When an obligation to refund or repay the Fee and Expense Award and/or
Incentive Fees arises under the preceding Paragraph, Plaintiffs’ Counsel shall be jointly and
severally obligated to refund or repay to the Payor the full amount that is required to be refunded
or repaid, plus accrued interest at six-month LIBOR, regardless of whether any portion of the
Fee and Expense Award and/or Incentive Fees have already been distributed to Plaintiffs’
Counsel or any other person or entity. The obligations in this Paragraph and the preceding
Paragraph shall survive and remain in full force and effect and be binding in all respects on
Plaintiffs’ Counsel, even if the Settlement is terminated, the Settlement is not approved, or the
Effective Date does not occur.
54.
Any award of attorneys’ fees and costs shall be wired to an account established by
Scott + Scott LLP for distribution to Plaintiffs’ Counsel. Defendant shall bare no responsibility
or liability for the apportionment and distribution of fees to Plaintiffs’ Counsel.
55.
Notwithstanding any other provision of this Agreement to the contrary, the
procedure for the allowance (in whole or in part) by the Court of any application by Class
Counsel for attorney’s fees, costs, and expenses, to be paid directly by Defendant as the
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Injunctive Fee Award or out of the Gross Settlement Fund as the Cash Settlement Amount Fee
Award are to be considered by the Court separately and apart from its consideration of the
fairness, reasonableness, and adequacy of the Settlement, and any order or proceeding relating to
the award of fees and expenses, or any appeal of any order relating thereto, shall not operate to
terminate or cancel this Agreement and Settlement of the Action.
The Incentive Award to Named Plaintiffs
56.
Subject to approval by the Court and in recognition of Plaintiffs’ time and effort
expended on behalf of the Settlement Class Members, Plaintiffs may seek an Incentive Award in
the amount of Two Thousand Dollars ($2,000) each to be paid from the Gross Settlement Fund.