Exhibit
10.1
AGREEMENT TO
PREPAY FUTURE PAYMENTS AT A DISCOUNT
This Agreement
to Prepay Future Payments at a Discount (the
“Agreement”) is dated as of August 31, 2009, by
and between Co-Lead Counsel (as defined below), acting collectively
as binding representative and agent of the Plaintiffs and Visa
U.S.A. Inc. (“Visa”). Terms used but not defined herein
shall have the meanings ascribed to them in the Settlement
Agreement (as defined below).
W I
T N E S S E T H
WHEREAS,
Constantine Cannon LLP (formerly, Constantine & Partners)
and Hagens Berman Sobol Shapiro LLP (formerly, Hagens Berman),
together serve as co-lead counsel (“Co-Lead Counsel”)
to the Plaintiffs in the In Re Visa Check/MasterMoney Antitrust
Litigation, No. 96-CV-5238 (JG/JO), a class action filed in
the U.S. District Court for the Eastern District of New York (the
“Court”) against Visa; and
WHEREAS, the
Plaintiffs and Visa filed with the Court an executed settlement
agreement (the “Settlement Agreement”) on June 4,
2003, that the Court approved on December 19, 2003, and that
became final on June 1, 2005, after the denial of or
expiration of all time for appeals; and
WHEREAS, Visa
is obligated under Section 3(a) of the Settlement Agreement to
make four additional payments of $200 million each (the
“Future Payments”) into the Settlement Fund Account on
or before the following dates: December 22,
2009, December 22, 2010, December 22, 2011, and
December 22, 2012; and
WHEREAS, in
connection with the Settlement Agreement, Co-Lead Counsel
established the Visa Qualified Settlement Fund bearing Employer
Identification Number 200065396 (the “Visa Qualified
Settlement Fund”); and
WHEREAS,
Sections 11.16 and 11.17 of the Amended Plan of Allocation
submitted to the Court by Co-Lead Counsel on August 16, 2005,
provides that Visa may request that Plaintiffs work with Visa to
establish a mutually agreeable discount rate to apply to any
prepayment(s) in the event that Visa desires to make one or more
payments on an accelerated basis; and
WHEREAS, Visa
and Co-Lead Counsel now desire to enter into this Agreement to
evidence their mutual agreement and to specify the terms with
respect to the prepayment by Visa of the Future Payments at a
discount.
NOW THEREFORE,
the parties hereto agree as follows:
Section 1.
Payment . The parties hereby agree that Visa shall make a
payment of $682,000,000 (the “Payment”), on the later
of September 30, 2009 or the business day after the date upon
which the Court enters an order approving this Agreement and
Co-Lead Counsel’s authority to enter into it (the
“Payment Date”), into the existing Visa Qualified
Settlement Fund account established pursuant to and in compliance
with the terms of the Settlement Agreement, which are incorporated
herein. The Payment shall be in full satisfaction of all of
Visa’s remaining payment obligations to the Plaintiffs under
the Settlement Agreement upon Final Approval as defined in
Section 4 below.
Section 2.
Future Payments . Except as provided in Section 4, upon
making the Payment, Visa shall no longer be obligated to
