Distribution Process. 7.1.1. The Individual Settlement Payment under this Agreement shall be determined in accordance with the formula set forth in Section 5.1.1. 7.1.2. Zillow will provide the Claims Administrator with the funds for the Class Settlement Amount within seven (7) days after the Settlement Effective Date. Under no circumstances shall Zillow or any Released Party be required to pay more than $6,000,000 for any reason under the Agreement. Upon transfer to the Claims Administrator, the Class Settlement Amount shall be referred to as the “Settlement Fund.” 7.1.3. The Settlement Fund, including accrued interest paid to or earned by it, deposited into an interest-bearing account (the “Account”) created by order of the Court is intended to constitute a “qualified settlement fund” (“QSF”) within the meaning of Section 1.46B-1 of the Treasury Regulations (“Treasury Regulations”) promulgated under the U.S. Internal Revenue Code of 1986, as amended (“Code”). Zillow shall be the “transferor” to the QSF within the meaning of Section 1.468B-1(d)(1) of the Treasury Regulations with respect to the Settlement Fund or any other amount transferred to the QSF pursuant to this Settlement Agreement. The Claims Administrator shall be the “administrator” of the QSF within the meaning of Section 1.46B-2(k)(3) of the Treasury Regulations, responsible for causing the filing of all tax returns required to be filed by or with respect to the QSF, paying from the QSF any taxes owed by or with respect to the QSF, and complying with any applicable information reporting or tax withholding requirements imposed by Section 1.4688-2(l)(2) of the Treasury Regulations or any other applicable law on or with respect to the QSF. Zillow and the Claims Administrator shall reasonably cooperate in providing any statements or making any elections or filings necessary or required by applicable law for satisfying the requirements for qualification as a QSF, including any relation-back election within the meaning of Section 1.468B-1(j) of the Treasury Regulations. All funds held in the Account, and all earnings thereon, shall be deemed to be in custodia legis of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds shall have been disbursed or returned pursuant to the terms of this Agreement or further order of the Court. 7.1.4. The Settling Parties, their counsel, and any Released Party shall have no liability, obligation, or responsibility with respect to the investment, disbursement, or other administration or oversight of the Settlement Fund or QSF and shall have no liability, obligation or responsibility with respect to any liability, obligation or responsibility of the Claims Administrator, Settlement Fund or QSF. 7.1.5. Zillow’s transfer of the Settlement Fund into the Account shall constitute full and complete satisfaction of its obligations under this Section and any and all Released Claims. Following Zillow’s transfer of the Settlement Fund, neither Zillow nor any Released Party shall have any liabilities, obligations or responsibilities with respect to the payment, disbursement, disposition or distribution of the Settlement Fund. The Named Plaintiff and the other Class Members shall look solely to the Settlement Fund for settlement and satisfaction against Zillow and any Released Party of all claims that are released herein and all Attorneys’ Fees and Costs, any incentive awards to the Named Plaintiff, and all administrative or other costs and expenses arising out of or related to the Settlement. The named Plaintiff and other Class Members shall not under any circumstances be entitled to any further payment from Zillow or any Released Party with respect to any claims released herein, the Action, or the Settlement. In the event that the Settlement Agreement becomes final and effective, payment of the Settlement Fund will fully satisfy any and all Released Claims. Except as provided by order of the Court, no Named Plaintiff or Class Member shall have any interest in the Settlement Fund or any portion thereof. 7.1.6. Notwithstanding any effort, or failure, of the Claims Administrator or the Settling Parties to treat the Account as a QSF, any tax liability, together with any interest or penalties imposed thereon, incurred by Zillow or any Released Party resulting from income earned by or payments made from the Account (or the receipt of any payment under this paragraph) shall be reimbursed from the Account in the amount of such tax liability, interest or penalties promptly upon and in no event later than five (5) days after Zillow or any Released Party’s written request to the Claims Administrator. However, no such reimbursement is due to Zillow if the tax liability resulted solely from Zillow’s action or failure to act. 7.1.7. Ten (10) calendar days before the hearing on their award of Attorneys’ Fees and Costs, Class Counsel shall deliver to the Claims Administrator both written instructions signed by Class Counsel that describe the manner and mode of payment of such Attorneys’ Fees and Costs (in the absence of such instructions, such Attorneys’ Fees and Costs shall be sent by U.S. Mail), and a fully-executed Form W-9 with respect to the entity to whom the Attorneys’ Fees and Costs shall be paid. The Claims Administrator will issue to Class Counsel an IRS Form 1099 for such amounts paid for Attorneys’ Fees and Costs under this Settlement. 7.1.8. Payments of the Individual Settlement Payments to the Class Members, Attorneys’ Fees and Costs to Class Counsel, Incentive Awards to the Named Plaintiff, the PAGA Payment described in Section 5.1.4, and Administration Costs to the Claims Administrator shall be made by the Claims Administrator within ten (10) days of receipt of the Class Settlement Amount from Zillow. 7.1.9. Payments of the Individual Settlement Payments to the Class Members shall be comprised of up to two checks. The first check, if any, will comprise solely the amounts due pursuant to the FLSA Overtime and Liquidated Damages Allocation reflected in Section 5.1.1(a). Any such check shall also be accompanied by a completed Department of Labor, Wage and Hour Division Form 58, to be provided by Zillow. The second check, if any, will comprise the amounts due pursuant to the California Pre-FLSA Overtime Allocation, the California Post- FLSA Overtime Allocation, the California Meal and Rest Break Allocation, the Penalties Allocation, and the Excess or Remaining Allocation reflected in Section 5.1.1(b)-(e). 7.1.10. If the Notice to a particular Class Member is returned to the Claims Administrator as undeliverable two or more times, and after a skip trace and search using his or her name, address, and Social Security number is made, the Claims Administrator will not attempt to send an Individual Settlement Amount to that Class Member. That Class Member will remain subject to the terms of the Final Judgment and the Comprehensive Waiver and Release provided for in Section 8. 7.1.11. Checks issued to Class Members pursuant to this Agreement shall remain negotiable until August 1, 2017. Class Members who fail to negotiate their check(s) in a timely fashion shall, like all Class Members, remain subject to the terms of the Final Judgment and the Comprehensive Waiver and Release provided for in Section 8. 7.1.12. In the event that the funds in the Class Settlement Amount are not fully expended after sending the Individual Settlement Payments, the Attorneys’ Fees and Costs, the Incentive Awards, the Notice and Administrative Costs, and the PAGA Payment, the remaining amount in the FLSA Allocation shall be delivered to the Secretary of the United States Department of Labor via a cashier’s or certified check, payable to the “Wage and Hour Division—Labor.” The Parties shall request that the Secretary attempt to locate and distribute the backwages due to these workers. The Parties shall further request that after three years, any monies which have not been distributed because of inability to locate the proper persons or because of their refusal to accept payment shall be deposited into the Treasury of the United States as miscellaneous receipts. Any remaining amounts outside of the FLSA Allocation will be distributed to the Class Members that negotiated the checks they received for their Individual Settlement Payments on a pro rata basis. Reasons why funds from the Class Settlement Amount might not be distributed in the normal course include: (1) the Class Member could not be located, as described in Section 7.1.6; and (2) the check provided to a Class Member was not negotiated within one hundred eighty (180) days, as described in Section 7.1.7.
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Sources: Settlement Agreement, Settlement Agreement