EXHIBIT 10 (i)(b)
As Amended,
Effective
February 1, 1994
PRODUCER AGREEMENT
CONCERNING
CENTER FOR CLAIMS RESOLUTION
September 28, 1988
PRODUCER AGREEMENT CONCERNING CENTER FOR CLAIMS RESOLUTION
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This Agreement, dated September 28, 1988, to provide for the
administration, defense, payment and disposition of asbestos-related claims
(hereinbelow referred to as the "Agreement") is made between and among the
Participating Producers, as defined hereinbelow.
WITNESSETH:
WHEREAS, a substantial number of asbestos-related claims are pending, and
continue to be filed or asserted, against Participating Producers, requiring
appropriate defense and disposition;
WHEREAS, Participating Producers deem it beneficial to have an organization
that will administer and handle asbestos-related claims on behalf of more than
one Producer, that will provide claims-related analysis and reporting and that
will administer the insurance-coverage provisions of the Agreement Concerning
Asbestos-Related Claims dated June 19, 1985 (hereinafter referred to as the
"Wellington Agreement"); and
WHEREAS, although upon the dissolution of the Asbestos Claims Facility
certain aspects of the relationship between the Producer and Insurer signatories
to the Wellington Agreement will continue to be governed thereunder, the
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relationship among Producer signatories will not be so governed, and there no
longer will be a waiver of certain cross and counter claims among Producers; and
WHEREAS, Participating Producers believe it is important to establish an
organization that will, on behalf of all Participating Producers, resolve
meritorious asbestos-related claims in a fair and expeditious manner and, where
necessary, defend asbestos-related claims efficiently and economically; and
WHEREAS, Participating Producers desire to establish an organization that
will, at least for all Participating Producers, provide claims-related analysis
and reporting and administer the insurance-coverage provisions of the Wellington
Agreement; and
WHEREAS, Participating Producers desire to enter into a constructive
relationship with one another and to resolve any cross or counter claims that
they may have against each other;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and intending to be legally bound hereby, the Participating Producers hereby
agree as follows:
I. DEFINITIONS
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As used in the Agreement and Attachment A hereto, the following terms shall
have the following meanings:
1. Allocated Expenses -- means all fees and expenses incurred for services
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performed outside the Center that can be directly attributed to the defense and
disposition of a particular asbestos-related claim.
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2. Asbestos-Related Claims -- means any claims or lawsuits against any
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Participating Producers or the Center, or against any Supporting Insurer based
solely on the conduct of any Participating Producers, by whomever brought and in
whatever procedural posture such claims or lawsuits may arise, seeking monetary
relief (whether or not such relief is the only relief sought) for bodily injury,
sickness, disease or death, alleged to have been caused in whole or in part by
any asbestos or asbestos-containing product; provided, that asbestos-related
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claims shall not include claims for damage to or destruction of property or
statutory claims for compensation by an employee against an employer.
3. Center -- means the Center for Claims Resolution, established under the
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Agreement.
4. Insurer Agreement -- means the Insurer Agreement Concerning Center for
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Claims Resolution dated September 23, 1988.
5. Insurers -- means persons that are or were engaged in the business of
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providing liability insurance to Producers.
6. Liability Payments -- means the sums paid in settlement of, or in
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satisfaction of a judgment on, any asbestos-related claims, exclusive of
allocated and unallocated expenses for such claims.
7. Participating Producers -- means Producers that have become signatories
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to the Agreement.
8. Persons -- means natural persons and organizations of any kind.
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9. Producers -- means persons that are or were engaged in the mining,
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manufacturing, production, processing, fabrication, distribution, installation,
sale or use of asbestos or asbestos-containing products or that may have a
liability with respect to asbestos-related claims.
10. Supporting Insurers -- means Insurers that have become signatories to
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the Insurer Agreement.
11. Unallocated Expenses -- means the overhead, operating and
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administrative expenses (other than allocated expenses) of the Center incurred
in administering, defending and disposing of asbestos-related claims, providing
claims-related analysis and reporting and administering the
insurance-coverage provisions of the Wellington Agreement; provided, that
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unallocated expenses shall not include any expenses, debts or other obligations
of the Asbestos Claims Facility, whatever previously or hereinafter incurred by
it.
II. ESTABLISHMENT OF CENTER
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1. Participating Producers shall establish a non-profit organization to be
known as the Center for Claims Resolution. The Center shall administer and
arrange for the evaluation, settlement, payment or defense of all asbestos-
related claims in accordance with the provisions of the Agreement and Attachment
A hereto, applicable law and professional standards; shall provide claims-
related analysis and reporting;
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and shall administer the insurance-coverage provisions of the Wellington
Agreement.
2. The Center shall not be a continuation of or a successor to the
Asbestos Claims Facility. The Center shall be established, funded and operated
independently of the Asbestos Claims Facility, and shall not assume or otherwise
be responsible for any of the Asbestos Claims Facility's debts, liabilities or
obligations.
3. The Center shall be governed by a Board of Directors whose members
shall number at least five (5) and whose manner of election, powers and duties
shall be as set forth in the Center's by-laws. The Board of Directors shall
appoint as non-voting ex officio directors one representative selected by
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Supporting Insurers, who shall serve during the period that Supporting Insurers
are paying unallocated expenses of the Center, and one representative selected
by an affirmative majority of Participating Producers. The Board of Directors
shall have no power to modify any provisions of the Agreement or Attachment A
hereto.
4. The Center shall not sell, lease, exchange, mortgage, pledge, or
otherwise dispose of all or substantially all of its property or assets and
shall not dissolve or wind up its affairs except upon the affirmative vote of
two-thirds of its Participating Producer members with two-thirds interest.
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III. MEMBERSHIP IN CENTER
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1. Each Participating Producer shall become a member of the Center upon
becoming a signatory to the Agreement, and shall have all of the rights and
duties of a member, as set forth in the Agreement, Attachment A hereto and the
Center's by-laws.
2. The membership of any Participating Producer in the Center may be
terminated only in the following manner:
a) the Participating Producer may terminate its membership effective
at any time after October 3, 1989, by: i) providing written notice to the Center
at least 60 days prior to the effective date of termination; and ii) obtaining a
determination from the Board of Directors of the Center, which may not be
unreasonably withheld, that such Participating Producer has paid or made
adequate provision for the payment of any amounts due from it under the
Agreement or Attachment A hereto; or
b) the membership of any Participating Producer shall terminate upon
the filing by such Participating Producer for bankruptcy protection or other
protection against creditors under any state or federal law; or
c) the Board of Directors of the Center may terminate or suspend the
membership of any Participating Producer that: i) is involuntarily placed in
bankruptcy under any state or federal law or that has been determined by a court
to be insolvent; or ii) the Board of Directors determines, by an
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affirmative vote of three-fifths of the directors then in office, has materially
breached the Agreement or Attachment A hereto, including but not limited to a
failure to pay to the Center in a timely manner any amounts due to or incurred
by the Center on such Participating Producer's behalf; provided, that
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termination of membership by the Board of Directors for breach of the Agreement
or Attachment A hereto shall not be effective until 30 days after written notice
of the Board's determination is provided to the Participating Producer, to
afford such Producer an opportunity to cure the breach in question and avoid
membership termination.
3. Upon termination of membership and thereafter, a Participating Producer
shall have none of the rights or obligations of a member of the Center, as set
forth in the Agreement, Attachment A hereto and the Center's by-laws. However,
notwithstanding termination of membership, a Participating Producer shall
continue to have and to honor all of the obligations incurred by it hereunder or
on its behalf as a member prior to the effective date of its membership
termination, including any retroactive adjustments of its percentage shares of
liability payments and allocated expenses made pursuant to Attachment A hereto.
IV. SUBMISSION AND WITHDRAWAL OF CLAIMS
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1. By becoming a signatory to the Agreement and a member of the Center,
each Participating Producer hereby desig-
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nates the Center as its sole agent to administer and arrange on its behalf for
the evaluation, settlement, payment or defense of all asbestos-related claims
against such Participating Producer. As sole agent, the Center shall have
exclusive authority and discretion to administer, evaluate, settle, pay or
defend all asbestos-related claims, including the right to delegate to any
person, upon consent of the Participating Producer in question, such authority
and discretion with respect to designated asbestos-related claims against such
Participating Producer.
2. The Center shall serve as the sole agent of each Participating Producer
with respect to all asbestos-related claims so long as such Participating
Producer is a member of the Center. Termination of membership of a
Participating Producer pursuant to Paragraph 2 of Section III hereinabove shall
serve immediately as a withdrawal by such Participating Producer of the
designation of the Center as its sole agent made pursuant to Paragraph 1 of this
Section, and shall terminate immediately the Center's right, authority and
obligation to act on behalf of such Participating Producer with respect to any
and all asbestos-related claims, whenever made or filed, but this shall not
prevent reasonable access by such Participating Producer to its claims files.
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V. COOPERATION WITH CENTER
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Each Participating Producer shall comply with the terms and conditions of
the Agreement and Attachment A hereto and shall cooperate with and assist the
Center in the furtherance of such terms and conditions and of its purposes.
Each Participating Producer shall respond fully and in a timely manner to
reasonable requests by the Center for information and shall assist in the
securing and giving of evidence concerning asbestos-related claims. The Center
shall use its best efforts to maintain the confidentiality of confidential or
proprietary information submitted by Participating Producers and Supporting
Insurers.
VI. ALLOCATION OF LIABILITIES AND EXPENSES
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Liability payments and allocated expenses shall be apportioned to each
Participating Producer from the date such Producer becomes a signatory to the
Agreement and a member of the Center. Such apportionment shall establish the
responsibility of each Participating Producer for a percentage share of
liability payments and a percentage share of allocated expenses attributable to
each claim handled by the Center as sole agent for such Participating Producer
under Section IV hereinabove. Each Subscribing Producer's percentage shares of
liability payments and allocated expenses shall be established as provided in
Attachment A hereto, and shall be subject to modification only in the manner and
to the
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extent set forth therein. To the extent that a Participating Producer's
percentage shares of liability payments and allocated expenses attributable to a
particular asbestos-related claim are not paid in a timely manner by one or more
of its Insurers, whether pursuant to the Wellington Agreement or any other
agreement, such Participating Producer shall pay in a timely manner the
percentages of liability payments and allocated expenses in question.
VII. PAYMENT OF UNALLOCATED EXPENSES
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Each Participating Producer shall pay, respectively, the percentage share
attributed to it pursuant to Attachment A hereto of any unallocated expenses
incurred by the Center during its first fiscal year of operation not otherwise
paid by Supporting Insurers pursuant to the Insurer Agreement. The manner and
timing of such payments shall be as determined by the Center. The amounts and
timing of unallocated-expense payments, if any, by Participating Producers
concerning the Center's second and subsequent years of operation shall be as
mutually agreed upon by the signatories hereto.
VIII. CENTER CLAIMS HANDLING
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1. The Center shall administer, evaluate, settle, pay or defend all
asbestos-related claims in a fair, cost-effective and expeditious manner. The
Center shall handle each asbestos-related claim on behalf of all
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Participating Producer members, and shall not settle an asbestos-related claim
on behalf of fewer than all Participating Producer members. The Center shall
settle each asbestos-related claim so as to extinguish claims for all damages,
including punitive damages, and, in the settlement of asbestos-related claims,
the Center shall not pay punitive damages to claimants.
2. The Center shall hire an adequate number of competent and experienced
claims and legal staff and shall retain the services of competent and
experienced legal counsel to defend asbestos-related claims. The Center shall
retain such counsel, including punitive counsel, as are necessary and
appropriate to defend the interests of Participating Producer members. The
Center may utilize counsel-sharing arrangements on behalf of its members with
Producers not signatories hereto.
3. Actions against third parties may be undertaken by the Center on behalf
of its members, but the Agreement shall neither require nor preclude such
actions.
4. The Center shall require valid evidence to support each claim against
Participating Producer members, and shall require credible medical evidence in
each case prior to making payment to a claimant. Center personnel shall be
responsible for obtaining such evidence from each claimant and verifying it.
5. A claimant shall be paid solely for asbestos-related injury. However,
the Center may provide certain claimants
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whose claims have not matured with an opportunity to resubmit a claim to the
Center should additional medical evidence become available. The Center may enter
into agreements to suspend the running of statutes of limitations with respect
to claims timely presented and shall adopt uniform, streamlined, expeditious
procedures, including voluntary nonjudicial means of resolving disputed claims.
6. The Center shall not make payments pursuant to a pre-determined
schedule of benefits, but detailed claims guidelines shall be used to evaluate
and settle asbestos-related claims. The Center shall make payments and settle
claims on behalf of Participating Producer members and shall be entitled to
credit for settlements made and judgments paid by Participating Producer members
prior to membership in the Center.
7. The Center shall operate according to annual liability, defense and
operational programs to be established by the Board of Directors. The Center
shall be subject to annual financial and quality control audits by persons
selected by the Board of Directors.
8. The Center may enter into arrangements to administer, evaluate, settle,
pay and defend asbestos-related claims and/or any other kind of claim on behalf
of persons that are not signatories hereto in exchange for appropriate
compensation and upon terms satisfactory to the Center, but the Center shall not
be required to enter into such arrangements. For purposes of such arrangements,
"asbestos-
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related claims" shall include such claims as defined in Section I, paragraph 2,
even if not brought against any Participating Producer, Supporting Insurer, or
the Center.
IX. CENTER ADMINISTRATIVE SERVICES
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1. In addition to the functions to be performed by the Center pursuant to
Section VIII hereinabove, the Center shall perform for Participating Producers,
and for Supporting Insurers that are paying unallocated expenses incurred by the
Center, certain administrative services, including claims analysis and reporting
and insurance allocation and billing.
2. In furtherance of its administrative function the Center shall, among
other things, administer all Center receipts and disbursements; develop,
maintain and keep current an accurate claims database; produce claims-related
analyses, comparisons and reports; clearly communicate Center claims-handling
analyses and results on a periodic basis; administer and implement the
provisions of Attachment A hereto, including the provision of timely evaluation,
analyses and monitoring of the manner in which liability payments and allocated
expenses are apportioned thereunder; administer and implement the insurance-
coverage provisions of the Wellington Agreement in full conformity with that
agreement and also in an accurate, consistent and timely manner, including the
provision of periodic xxxxxxxx and supporting information; administer other
insurance-coverage arrangements of
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Participating Producers; and administer for Participating Producers any counsel-
sharing arrangements with Producers not signatories hereto.
3. The Center shall perform its administrative function in a timely,
accurate and cost-effective manner, and may retain the services of experienced
and competent third parties and consultants to do so.
4. The Center may enter into arrangements to provide certain
administrative services to persons that are not signatories hereto in exchange
for appropriate compensation and upon terms satisfactory to the Center, but the
Center shall not be required to enter into such arrangements.
X. THIRD-PARTY RIGHTS
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The Agreement is intended to confer rights and benefits only upon
Participating Producers, Supporting Insurers that are paying unallocated
expenses incurred by the Center and the Center, and is not intended to confer
any rights or benefits upon any other persons. No person other than the Center,
a signatory hereto or a Supporting Insurer that is paying unallocated expenses
incurred by the Center shall have any legally enforceable rights under the
Agreement. All rights of action for any breach of this Agreement by any
signatory hereto are hereby reserved to the Center, Participating Producers and
to Supporting Insurers that are paying unallocated expenses incurred by the
Center.
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XI. EFFECTIVE DATE
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The effective date of this Agreement with respect to each signatory hereto
shall be the date upon which such person executed the Agreement in the manner
set forth in Section XV hereinbelow or September 30, 1988, whichever is later.
XII. ADDITIONAL SIGNATORIES
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1. A Producer may become a signatory to the Agreement subsequent to
September 30, 1988, only upon application to the Board of Directors of the
Center and approval by an affirmative vote of four-fifths (4/5) of the voting
directors then in office.
2. In determining whether a Producer may become a signatory hereto, the
Board of Directors shall determine whether the best interests of the Center and
of the other signatories would be served thereby, in order to assure that the
compromises herein and commitments of resources hereunder are duly respected,
that such Producer derives no unfair advantage with respect to the other
signatories and that none of the other signatories suffers any unfair
disadvantage by reason of said Producer's failure to become a signatory to the
Agreement prior to September 30, 1988.
3. Pursuant to the foregoing, the Board of Directors shall determine the
terms upon which a Producer may become a signatory to the Agreement subsequent
to September 30, 1988, including the percentage shares of liability payments,
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allocated expenses and unallocated expenses that are to be attributed to such
Producer. In so doing, the Board of Directors shall consider all relevant
factors, including: (i) what the shares would have been had the Producer became
a signatory to the Agreement prior to September 30, 1988; (ii) the degree of
risk of additional liability or expense that the Producer would bring to the
Center; (iii) the impact of such Producer's participation on the percentage
shares of other Participating Producers; and (iv) the appropriateness of a
minimum share.
XIII. MODIFICATION AND TERM
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1. The Agreement, including Attachment A hereto, is the entire agreement
between and among Participating Producers for the administration, defense,
payment and disposition of asbestos-related claims. All antecedent or
contemporaneous extrinsic representations, warranties or collateral provisions
concerning the negotiation and preparation of the Agreement or Attachment A
hereto are intended to be discharged and nullified. In any dispute involving
the Agreement or Attachment A hereto, no person shall introduce evidence of or
seek to compel testimony concerning any oral or written communication made
prior to September 30, 1988, with respect to the negotiation and preparation of
the Agreement or Attachment A hereto. Nothing in this Paragraph applies to the
Insurer Agreement, the Wellington Agreement, the Agreement Concerning
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Asbestos Claims Facility dated June 15, 1988, or the Agreement Concerning the
Insurance Defense Program between certain Supporting Insurers and GAF
Corporation and Xxxxx Corporation.
2. Nothing in the Agreement shall have the effect of relieving any
Supporting Insurer or Participating Producer of any obligation under the
Wellington Agreement that survives dissolution or termination of the Asbestos
Claims Facility, including insurance-related obligations; provided, that as to
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Supporting Insurers and all Participating Producers except GAF Corporation and
Xxxxx Corporation, whose rights are the subject of a separate agreement, the
Insurance Defense Program provided for in Section XII and Appendix E to the
Wellington Agreement ("IDP") and all rights thereunder with respect to allocated
expenses incurred after October 3, 1988, shall terminate as of that date.
3. Any modifications to the Agreement or Attachment A hereto may be made
only by mutual agreement of all Participating Producers and in writing.
4. The Agreement and Attachment A hereto shall have perpetual existence,
notwithstanding the failure or invalidation of any particular provision.
XIV. WAIVERS, ADR AND CHOICE OF LAW
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1. So long as it is a member of the Center each Participating Producer
shall forego with respect to asbestos-related claims for contribution or
indemnity (other than for
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contribution or indemnity assumed under written agreement) against all other
Participating Producers that are members of the Center.
2. Each Participating Producer waives, as to the Center and all other
Participating Producers, any claims for conflict of interest that may arise from
the representation of it or the Center in connection with the handling or
defense of asbestos-related claims hereunder during the period of such
Participating Producer's membership in the Center by i) any Center liaison
counsel, ii) joint or special counsel or iii) employees of the Center or of any
Participating Producer.
3. All disputes concerning the validity, interpretation and application of
the Agreement or any provision thereof, and all disputes concerning issues
within the scope of the Agreement shall be resolved through alternative dispute
resolution (ADR) in the manner set forth in Appendix C to the Wellington
Agreement; provided, that the Center for Public Resources, rather than the
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Asbestos Claims Facility, shall be requested to administer any alternative
dispute resolution and the parties thereto shall share, on an equal basis and
pending final resolution, any of the fees or expenses of the Center for Public
Resources. All such disputes shall be determined in accordance with applicable
common law of the states of the United States.
4. In the event that any Participating Producer's percentage shares of
liability payments or allocated expenses are not paid in a timely manner, the
Center's Board of
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Directors may direct the Center to institute an ADR on behalf of the Center's
Participating Producers against such Participating Producer to enforce payment
of such obligations. Any such ADR brought by the Center against a Participating
Producer to enforce payment of such obligations shall be resolved in the manner
set forth in Paragraph 3 of this Section XIV; provided that (a) the Center may
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elect to waive the Negotiation stage of such ADR and proceed directly to the
Proceeding stage and such Participating Producer shall have no right to object
to such election; (b) such Participating Producer shall not be permitted to
assert any objection or defense in such ADR except a defense or objection based
on some computational error in the particular Center billing(s) for such
obligations; in particular, the belief on the part of such Participating
Producer that its Participating Producer Shares (as that term is defined in
Attachment A hereto) are inequitable or have been inconsistently or inaccurately
applied shall not be permitted as a defense or objection in such ADR, even if
such belief provides a basis for a separate ADR proceeding with respect to its
Participating Producer Shares; and (c) the Center shall be entitled, if it is
determined to be the prevailing party in such ADR, to recover from such
Participating Producer the costs of instituting and prosecuting such
ADR, including the Center's reasonable attorneys' fees.
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XV. SIGNATURE
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The Agreement may be executed in any number of counterparts and by
different signatories hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Each Participating Producer shall send
one executed counterpart of the Agreement to a depository to be established and
maintained by the Center.
IN WITNESS WHEREOF, the person named below has caused this Agreement to be
signed by its authorized representative on this ______ day of
__________________, 19__.
Name:_________________________________________
By: /s/
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Title:________________________________________
Signed, sealed and delivered this ______ day of
___________________, 19__, in the presence of
______________________________________________,
Witness to the signature of the above-named
person.
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As Amended,
Effective
December 1, 1991
ATTACHMENT A
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Apportionment of Center Payments and Expenses
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All Liability Payments, Allocated Expenses, and Unallocated Expenses shall
be apportioned among Participating Producers based on the individual
Participating Producer shares established as provided in this Section (the
"Participating Producer Shares").
A. Initial Producer Shares
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The Participating Producer Shares for Participating Producers as of
December 1, 1991, shall be as provided in this Section A until changed pursuant
to the provisions of Section B. Participating Producer Shares for Producers
becoming Participating Producers subsequent to December 1, 1991, shall be as
determined pursuant to Section XII of the Agreement.
1. Liability Payment Shares
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Any Liability Payment shall be apportioned among the Participating
Producers based on individual Participating Producer Shares established as
provided herein (the "Liability Payment Shares").
a. Generally. For any Asbestos-Related Claim that is not the subject of a
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Special Claim Category as described below, the
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Liability Payment Share for each Participating Producer will be computed as
follows:
(i) All Asbestos-Related Claims closed by each Participating Producer
prior to its becoming a member of the Asbestos Claims Facility will be placed in
one of twelve occupational categories (the "Twelve Occupational Categories")
using the Guidelines for Occupational Categories attached hereto as Exhibit 1.
The total number of such claims in each Occupational Category for each
Participating Producer will then be divided into the total amount of liability
payments (including punitive damages, if any) made by that Participating
Producer with respect to those claims to derive the "Average Cost Per Closed
Claim" for each Participating Producer for each such Occupational Category.
(ii) These Twelve Occupational Categories will then be grouped into
four occupational groupings (the "Four Occupational Groupings") as shown below.
Twelve Four
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Occupational Categories Occupational Groupings
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Shipyard Shipyard
Insulator Insulator
Construction
Plasterer/Spray Construction
Sheetmetal
Bystander/Secondary Exposure
Friction
Maintenance/Repair/Cleaner
Manufacturing All Other
Other
Plantworker
Railroad
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Each Participating Producer's Average Cost Per Closed Claim for the Twelve
Occupational Categories will then be converted into an Average Cost Per Closed
Claim for each of the Four Occupational Groupings as follows:
(I) Where the Occupational Category is also an Occupational
Grouping (as is the case for the "Shipyard" and "Insulator" Occupational
Categories), each Participating Producer's Average Cost Per Closed Claim for
that Occupational Category will constitute its Average Cost Per Closed Claim for
that Occupational Grouping.
(II) Where the Occupational Grouping is made up of several
Occupational Categories (as is the case for the "Construction" and "All Other"
Occupational Groupings), each Participating Producer's Average Cost Per Closed
Claim for that Occupational Grouping will be derived by taking the weighted
average of the Participating Producer's Average Cost Per Closed Claim for each
constituent Occupational Category, weighted by the total number of Asbestos-
Related Claims filed or brought during the period June 20, 1986, through
September 30, 1990 (the cut-off date for the last recalculation of Liability
Payment Shares for Period IV Claims under the predecessor to this Attachment A)
in which that Participating Producer has been named as a defendant or a third-
party defendant or has otherwise been designated in a claim as responsible for
the injury; provided, that this weighting factor will be subject to periodic
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adjustment upon the recommendation of the Special Counsel (established pursuant
to
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paragraph B.3 below) and with the approval of the Participating Producers
pursuant to paragraph B.2 below.
(III) For any Participating Producer who would otherwise have an
Average Cost Per Closed Claim for any Occupational Grouping of less than four-
hundred dollars ($400), the Average Cost Per Closed Claim for that Occupational
Grouping for that Participating Producer will be four-hundred dollars ($400).
For certain Participating Producers, regardless of what their Average Cost Per
Closed Claim for certain Occupational Groupings would otherwise be, the Average
Cost Per Closed Claim for those Participating Producers for those Occupational
Categories will be an amount greater than four hundred dollars ($400), as set
forth in letters dated November 26, 1991 to such Participating Producers from
the law firm of Xxxx & Xxxxxxx (the Special Counsel established pursuant to
paragraph B.3 below). For any Participating Producer who would otherwise have an
Average Cost Per Closed Claim for any Occupational Grouping of more than ten
thousand dollars ($10,000), but whose Average Cost Per Closed Claim for that
particular Occupational Grouping was derived from fewer than fifteen (15) total
claims closed by that Participating Producer prior to its becoming a member of
the Asbestos Claims Facility, its Average Cost Per Closed Claim for that
Occupational Grouping will be ten-thousand dollars ($10,000).
(iii) For each Asbestos-Related Claim in which any Participating
Producer is named as a defendant or a third-party defendant or is otherwise
designated in the claim as
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responsible for the injury, that Participating Producer's Average Cost Per
Closed Claim in the corresponding Occupational Grouping will be converted into
an individual Liability Payment Share. For each such claim, the Liability
Payment Share of each Participating Producer so named will be the ratio of its
Average Cost Per Closed Claim for that Occupational Grouping to the sum of the
Average Costs Per Closed Claim for that Occupational Grouping of all
Participating Producers so named in that particular claim.
b. Special Claim Categories. Notwithstanding the foregoing, separate
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Special Claim Categories, Interim Sharing Arrangements, and Permanent Sharing
Arrangements as described below will be maintained pursuant to paragraph B.5.b
for Asbestos-Related Claims that are already the subject of Special Claim
Categories previously adopted (including, but not limited to, the existing
Special Claim Categories for "Rubber" and "Steel" claims as defined pursuant to
the Guidelines for Occupational Categories attached hereto as Exhibit 1); for
Asbestos-Related Claims that may be the subject of Special Claim Categories
adopted in the future; and for a new category of Asbestos-Related Claims to be
known as "High Dollar" claims, defined as claims not otherwise subject to a
Special Claim Category and for which the Liability Payment attributable to any
such claim equals or exceeds one-hundred thousand dollars ($100,000).
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(i) Under the previously approved First Permanent Sharing Arrangement
for Rubber claims, any Liability Payments with respect to those claims will be
shared per capita among those Participating Producers named as defendants or
third-party defendants or otherwise designated in the claims as responsible for
the injury in more than four percent (4%) of those claims.
(ii) Under the previously approved New Interim Sharing Arrangement for
Steel claims (and subject to the Special Claim Sub-Category and First Permanent
Sharing Arrangement for Sparrow's Point Steel Claims), any Liability Payments
made with respect to those claims will be shared among those Participating
Producers named as defendants or third-party defendants or otherwise designated
in the claims as responsible for the injury in more than four percent (4%) of
those claims, with each such Participating Producer assigned to one of three
tiers as shown on the chart below based on the percentage of those claims in
which it is so named or designated, and with each Participating Producer on a
given tier having the same Liability Payment Shares for those claims. The
Liability Payment Share for the Participating Producers on a given tier will be
determined by taking the number of Participating Producers on that tier,
multiplying that number by the Weighting Factor for that tier, determining what
percentage that product is of the aggregate of the products of the number of
Participating Producers on each tier multiplied by the Weighting Factor for each
tier, and sharing the resulting percentage equally among the Participating
Producers on that tier. An example follows, assuming the number of
Participating Producers on each tier shown below, which was the number based on
data through September 30, 1987.
# Producers Range of Weighting Share Per
Tier On Tier % Named Factor Producer
---- -------- ------- --------- -------
l 7 More than 50% 3 10.00%
2 3 Over 20% but 2 6.67%
50% or less
3 3 Over 4% but 1 3.33%
20% or less
(iii) Under the Interim Sharing Arrangement for High Dollar claims, each
Liability Payment made with respect to
-27-
each such claim will be shared among those Participating Producers named as
defendants or third-party defendants or otherwise designated in the claim as
responsible for the injury, in the manner that corresponds to the Liability
Payment Shares that would otherwise apply to that claim under paragraph 1.a of
this Section A.
c. Application. The Liability Payment Shares computed pursuant to
-----------
paragraphs 1.a and 1.b of this Section A shall be applied to apportion the
Liability Payments made by the Center after November 30, 1991. Notwithstanding
the foregoing, however, if a Participating Producer shall have closed any claim
prior to becoming a member of the Asbestos Claims Facility, the Center shall not
apportion to that Participating Producer (and that Participating Producer shall
not be obliged to pay) any portion of any Liability Payments with respect to
that claim. The amount of any such payments that would otherwise have been
apportioned to that Participating Producer shall be apportioned among the
remaining Participating Producers in proportion to the Liability Payment Shares
of those Participating Producers applicable to that claim.
d. Definitions. For purposes of the Agreement and this Attachment A,
-----------
"closed claims" with respect to a Participating Producer are Asbestos-Related
Claims in which that Participating Producer was named as a defendant or a third-
party defendant or was otherwise designated in the claim as responsible for the
injury, and of which that Participating Producer has disposed on
-28-
its own behalf, whether by judgment, settlement, dismissal, or otherwise, prior
to joining the Asbestos Claims Facility. "Closed claims" with respect to the
Center are Asbestos-Related Claims in which at least one Participating Producer
was named as a defendant or a third-party defendant or was otherwise designated
in the claim as responsible for the injury, and had not closed that claim as of
becoming a signatory of the Agreement, but of which the Center has subsequently
disposed (whether by judgment, settlement, dismissal, or otherwise). "Open
claims" or "pending claims" are Asbestos-Related Claims that are not "closed" so
far as the Producer or entity in question is concerned.
2. Allocated Expense Shares
------------------------
Any Allocated Expense shall be apportioned among the Participating
Producers based on individual Participating Producer Shares established as
provided herein (the "Allocated Expense Shares").
a. Derivation. The Allocated Expense Share for each Participating
----------
Producer will be a single share applicable to any Allocated Expense, computed by
determining for that Participating Producer a Partial Allocated Expense Share
for Period I Claims (defined herein as any Asbestos-Related claims filed or
brought on or before September 30, 1983), Period II & III Claims (defined herein
as any Asbestos-Related Claims filed or brought during the period October 1,
1983, through June 19, 1986), and Period IV
-29-
Claims (defined herein as any Asbestos-Related Claims filed or brought after
June 19, 1986), respectively, and by taking the weighted average of those
Partial Allocated Expense Shares weighted by the total number of open claims the
Center had in each of those periods, as of September 30, 1991. The Partial
Allocated Expense Shares for each Participating Producer will be computed as
follows:
(i) For Period I Claims, the Partial Allocated Expense Share for
each Participating Producer will be the allocated expense share (determined
pursuant to Appendix A-1 of the Agreement Concerning Asbestos-Related Claims
dated May 29, 1985) that each Participating Producer had in the Asbestos Claims
Facility as of September 1, 1987, adjusted upward pro rata to reflect the
absence of the allocated expense shares of those producers who were members of
the Asbestos Claims Facility but were not members of the Center as of September
30, 1991.
(ii) For Period II & III Claims, the Partial Allocated Expense Share
for each Participating Producer will be computed as provided in this paragraph
A.2.a(ii). For Participating Producers that became members of the Asbestos
Claims Facility pursuant to Section H of Appendix A-1 of the Agreement
Concerning Asbestos-Related Claims dated May 29, 1985 (the "New Entrants") their
Partial Allocated Expense Share will be their respective allocated expense
shares as negotiated pursuant to that Section H, with appropriate adjustments to
reflect the absence of the allocated expense shares for Period II & III Claims
of those
-30-
Producers who were members of the Asbestos Claims Facility but were not members
of the Center as of September 30, 1991. For all other Participating Producers,
the Partial Allocated Expense Share for each Participating Producer will be
computed by taking the number of Period II & III Claims in which that
Participating Producer is named as a defendant or a third-party defendant or is
otherwise designated in a claim as responsible for the injury, and dividing it
by the aggregate of the number of such claims for all Participating Producers
(including a factor for the New Entrants).
(iii) For Period IV Claims, the Partial Allocated Expense Share for
each Participating Producer will be computed in the same manner as for Period II
& III Claims except using Asbestos-Related Claims filed or brought during the
period June 20, 1986, through September 30, 1991, rather than Period II & III
Claims.
b. Application. Subject to the previously approved adjustment of the
-----------
existing Expense Shares with respect to certain Operating Allocated Expenses,
the Allocated Expense Shares computed pursuant to paragraph 2.a of this Section
A shall be applied to apportion the Allocated Expenses incurred by the Center
during the calendar quarter immediately following the calendar quarter ending
September 30, 1991 (excluding claims subject to a Permanent Sharing
Arrangement).
3. Unallocated Expense Shares
--------------------------
-31-
Any Unallocated Expense for which the Center does not receive reimbursement
from any Supporting Insurer of any Participating Producer shall be apportioned
among the Participating Producers based on individual Participating Producer
Shares established as provided herein (the "Unallocated Expense Shares"). Each
Participating Producer will be assigned to one of four tiers based on where its
Partial Allocated Expense Share for Period IV Claims falls with respect to the
ranges listed in the chart below. Notwithstanding the foregoing, Participating
Producers otherwise on the top tier will be placed on the second tier if more
than fifty percent (50%) of the insurance coverage currently being billed by the
Center to Supporting Insurers of that Participating Producer (and other Insurers
of that Participating Producer that are nonetheless paying on the same basis as
the Supporting Insurers) is primary insurance. The aggregate Period IV Partial
Allocated Expense Shares for all Participating Producers on a given tier will
then be divided equally among all Participating Producers on that tier to give
the Unallocated Expense Share for each Participating Producer on that tier. The
Unallocated Expense Shares as thus established shall be applied to apportion the
Unallocated Expenses incurred while those shares are in effect. An example
follows, assuming the number of Participating Producers on each tier shown
below, which was the number based on data through September 30, 1987.
-32-
# Producers Range of Share Per
Tier On Tier Period IV Share Producer
---- ----------- --------------- ---------
1 6 More than 5% 11.97%
2 8 Over 1% but 5% 2.97%
or less
3 8 Over 0.4% but 1% 0.53%
or less
4 3 Less than or equal 0.06%
to 0.4% or $10,000
per year
whichever
is greater
4. Documentation on Initial Shares
-------------------------------
The data submitted to the Center by Participating Producers generally have
been reviewed for accuracy, consistency, reasonableness, and completeness. Each
Participating Producer, however, is responsible for the accuracy and integrity
of the data it has submitted. No reduction in any Participating Producer's
Liability Payment Share, Allocated Expense Share, or Unallocated Expense Share
shall be made in response to any error or incompleteness in that data that may
come to light more than thirty (30) days after the effective date of the
Agreement. Any error or incompleteness that would result in an increase in any
such share shall promptly be given effect by the Center, after consultation with
the Special Counsel (appointed pursuant to paragraph B.3 below), through an
appropriate adjustment to the appropriate Participating Producer Share, with the
same presumption of retroactive effect as contained in paragraph
-33-
B.5.c(i) below. There shall be deposited with both the Center and the Special
Counsel a complete list of Liability Payment Shares, Allocated Expense Shares,
and Unallocated Expense Shares for all Participating Producers computed in
accordance with this Section A using data through June 30, 1988. Accompanying
this list shall be a computer tape containing on a claim-by-claim and aggregated
basis all data required for and actually used in the computation of those
shares.
-34-
B. Future Adjustment of Participating Producer Shares
--------------------------------------------------
1. Shares Subject to Adjustment
----------------------------
The Unallocated Expense Shares, the Allocated Expense Shares, and the
Liability Payment Shares may be adjusted in the future but only in accordance
with the following provisions.
2. Participating Producer Approval
-------------------------------
Any adjustments pursuant to paragraph B.5 below must be approved by an
affirmative vote of the Participating Producers after consideration of the
recommendation of the Special Counsel (established pursuant to paragraph B.3
below) and applying the standards set out in this Section B. Any such
adjustments shall not become effective before sixty (60) days after such
affirmative vote. The affirmative vote must include Participating Producers
representing:
a. At least fifty percent (50%) of the combined dollar contributions by
all Participating Producers to the Center for all purposes during the preceding
calendar year (including contributions made by Participating Producers directly
or on their behalf by their respective Supporting Insurers); and
b. At least forty percent (40%) of the total number of Participating
Producers.
3. Special Counsel
---------------
The Board of Directors of the Center shall retain the services of a Special
Counsel to assist the Center and its Participating Producers in connection with
any future adjustment
-35-
in the Unallocated Expense Shares, the Allocated Expense Shares, and the
Liability Payment Shares, and in connection with such other matters as the Board
shall deem appropriate. The Special Counsel shall serve at the pleasure of the
Board and shall be compensated by the Center as determined by the Board.
a. Adjustment Proposals. All proposals for adjusting the shares of any
--------------------
Participating Producer pursuant to paragraph B.5 below shall be submitted to the
Special Counsel for its review prior to any consideration of the proposal by the
Participating Producers. The Special Counsel shall provide a recommendation
with respect to any such proposal prior to its consideration by the
Participating Producers. In addition, the Special Counsel may develop its own
proposals with respect to adjusting the shares of any Participating Producer
pursuant to paragraph B.5. Such proposals shall be promptly considered by the
Participating Producers pursuant to paragraph B.2 above and shall not require
prior consideration or approval by the Board.
b. Data Collection. To assist in this work, the Center shall maintain
---------------
information with respect to claims reported to Participating Producers, Liaison
Counsel, or the Center in which a Participating Producer is named as a defendant
or a third-party defendant or is otherwise designated in a claim as responsible
for the injury. This information shall include, without limitation, the
following items:
(i) The Filing Date of the claim.
-36-
(ii) The Occupational Category of the claim based on the occupation
or status of the person whose exposure to asbestos gave rise to the claim
(hereinafter "Primary Claimant"), as determined by the Center using the
Guidelines for Occupational Categories attached hereto as Exhibit 1.
(iii) The Disease Category of the claim based on the asbestos-related
disease from which the Primary Claimant is suffering as determined by the
Center.
(iv) The Dates of Exposure of the Primary Claimant to asbestos (to
the extent available and deemed appropriate).
(v) The Circumstances of such Exposure, to the extent available and
deemed appropriate (such as, for workplace exposure, the duties and
responsibilities of the Primary Claimant, the job site, the identity of the
Primary Claimant's employer, and the degree of exposure to asbestos or asbestos-
containing products).
(vi) Each Producer that is named as a defendant or a third-party
defendant or is otherwise designated in a claim as responsible for the injury.
(vii) Plaintiff's counsel.
(viii) The Disposition Date (i.e. the date the claim was disposed of
by the Center, whether by dismissal, settlement, judgment, or otherwise).
(ix) The Type of Disposition (i.e. dismissal, settlement, judgment,
or other).
(x) Producers Held Liable.
-37-
(xi) The Amount Paid or Owed by the Center as Liability Payments.
(xii) Such other information as may be designated by the Center or
Special Counsel.
c. Reports. The Center shall provide monthly reports to the Special
-------
Counsel (at a time and in a form to be agreed upon) displaying on an aggregated
basis the information specified in paragraph B.3.b with respect to:
(i) new claims reported to Participating Producers, Liaison Counsel,
or the Center during the preceding month;
(ii) claims disposed of by the Center during the preceding month;
(iii) all claims reported to Participating Producers, Liaison
Counsel, or the Center as of the end of the preceding month; and
(iv) all claims pending in the Center as of the end of the preceding
month.
d. Outside Assistance. The Special Counsel shall be given access by the
------------------
Center to the information from which the reports described in paragraph B.3.c
are derived (including all information described in paragraph B.3.b. above) and
to such other information as the Special Counsel shall deem necessary in order
for it to perform its responsibilities under this Attachment A (all such
information hereinafter referred to as the "Share Information"). The Center
will perform studies and
-38-
analyses of the Share Information as directed by the Special Counsel. The
Special Counsel may, with the concurrence of the Board of Directors of the
Center, retain an outside auditor to conduct an independent audit of the Share
Information, or retain an outside consultant to perform studies and analyses of
the Share Information.
4. Identification of Adjustments
-----------------------------
The Center and the Special Counsel shall monitor the reports and
information obtained pursuant to paragraph B.3 above to identify any factors or
trends that tend to suggest that the Participating Producer Shares may not
fairly reflect the relative responsibility of Participating Producers for
Liability Payments, Allocated Expenses, or Unallocated Expenses with respect to
all or an identifiable category of claims. These factors or trends may include,
without limitation, the following:
a. A dramatic increase in the number of claims involving one of the
existing Twelve Occupational Categories (such as, for example, a dramatic
increase in the number of cases within the "Friction" category) or a new
occupational category.
b. A dramatic increase in the number of claims involving a particular
occupation or status presently subsumed within one of the existing Occupational
Categories (such as, for example, a dramatic increase in the number of chemical
plant cases within the "Insulator" category).
-39-
c. A dramatic increase in the number of cases of a particular type within
a particular state (especially if few cases of this type have previously been
filed in that state or if there are little available data on the disposition of
this type of case in that state).
d. A dramatic increase in the number of cases at a specific location or
place (such as, for workplace exposure, a particular job site).
e. A dramatic increase in the number of cases involving a particular
Disease Category (such as, for example, a dramatic increase in the "Pleural
Disease" category).
f. A dramatic increase in the number of cases involving a particular
disease subsumed by the Center within an existing Disease Category (such as, for
example, a dramatic increase in the number of cases involving a particular form
of cancer currently classified by the Center within the "Other Cancer"
category).
g. Disposition or other data indicating for a particular category of
claims (whether based on occupation or status, location, disease, or some other
basis) that a particular Participating Producer is not liable for those claims
or that the relative responsibility among Participating Producers is
significantly different from what is indicated by the Participating Producer
Shares.
h. Such other factors and trends as may be identified by the Center or
the Special Counsel.
-40-
5. Adjustments Subject to Participating Producer Approval
------------------------------------------------------
a. General. Adjustments may be made to reflect these factors and trends
-------
in the Participating Producer Shares of any Participating Producer. These
adjustments may include, but are not limited to, the segregation of significant
and identifiable categories of Asbestos-Related Claims into "Special Claim
Categories" (as described in paragraphs B.5.b and c below), the adjustment of
any Participating Producer's Average Cost Per Closed Claim for any of the Four
Occupational Groupings, and the subdivision of Asbestos-Related Claims by time
and the application of different Participating Producer Shares for claims in
each subdivision. These adjustments may also include revision of the Guidelines
for Occupational Categories at Exhibit 1. All adjustments pursuant to this
paragraph B.5 must be approved by the Participating Producers pursuant to
paragraph B.2 above.
b. Interim Sharing Arrangements for Special Claim Categories. Where a
---------------------------------------------------------
Special Claim Category is deemed appropriate, an "Interim Sharing Arrangement"
shall be proposed for apportioning among Participating Producers any Liability
Payments made by the Center with respect to claims falling within this Special
Claim Category.
(i) In developing the Interim Sharing Arrangement, the following
factors may be considered: (i) the relative frequency with which Participating
Producers are named as defendants or third-party defendants or are otherwise
-41-
designated in claims as responsible for the injury; (ii) any disposition data
with respect to those claims; (iii) information concerning the particular
products, locations, occupations, or employers involved; and (iv) such other
information as the Center or the Special Counsel shall deem relevant.
(ii) The establishment of a Special Claim Category and of an Interim
Sharing Arrangement for that category must be approved by the Participating
Producers pursuant to paragraph B.2. above. Once approved, the Interim Sharing
Arrangement shall be used to apportion all Liability Payments thereafter made
with respect to claims falling within that Special Claim Category (subject,
however, to the provisions of paragraph B.5.c below).
(iii) The Allocated Expenses paid in connection with cases falling
within the Special Claim Category and subject to an Interim Sharing Arrangement
shall be treated no differently than the Allocated Expenses paid in connection
with any other claim.
c. Permanent Sharing Arrangement for Special Claim Categories. The Center
----------------------------------------------------------
shall monitor, in conjunction with Liaison Counsel and the Special Counsel, (i)
relevant pretrial discovery taken in connection with claims falling within a
Special Claim Category subject to an Interim Sharing Arrangement, (ii) relevant
pretrial motions made in connection with such claims, (iii) disposition data
with respect to such claims, and (iv) such other data as the Center or the
Special Counsel shall deem relevant.
-42-
(i) Once it is concluded that the foregoing data are sufficient to
permit it, a "Permanent Sharing Arrangement" will be proposed for apportioning
among Participating Producers any Liability Payments or Allocated Expenses with
respect to those claims. Such a Permanent Sharing Arrangement must be approved
by the Participating Producers pursuant to paragraph B.2 above. Once so
approved, all Liability Payments made and all Allocated Expenses incurred
thereafter with respect to claims falling within that Special Claim Category
shall be apportioned among Participating Producers pursuant thereto, subject to
any subsequent change in the Permanent Sharing Arrangement approved by the
Participating Producers pursuant to paragraph B.2 above. In addition, it is
presumed that the Permanent Sharing Arrangement shall be given retroactive
effect to apportion all Liability Payments made and all Allocated Expenses
incurred with respect to claims falling within that Special Claim Category from
the date that Special Claim Category was first established, subject to the right
of the Participating Producers to make the application of such Permanent Sharing
Arrangement prospective only to Liability Payments made and/or Allocated
Expenses incurred after the approval of the Permanent Sharing Arrangement if the
benefit in terms of Participating Producer equity from retroactivity is deemed
to be de minimis when compared to the administrative costs of doing so and other
-- -------
factors.
(ii) In the event that a Permanent Sharing Arrangement proposed for
a Special Claim Category is rejected by
-43-
the Participating Producers, all Liability Payments made by the Center with
respect to claims subject to that category shall continue to be apportioned
among Participating Producers pursuant to the Interim Sharing Arrangement for
that category (and all allocated expenses incurred in connection with such
claims shall continue to be apportioned as provided in paragraph B.5.b.(iii)
above) unless and until either a Permanent Sharing Arrangement is subsequently
approved by the Participating Producers for that category or the Participating
Producers vote to disestablish the Special Claim Category. Any such
disestablishment shall require approval of the Participating Producers pursuant
to paragraph B.2.
6. Adjustments Not Subject to Participating Producer Approval
----------------------------------------------------------
Within twenty (20) days after the end of a calendar quarter (hereinafter
referred to as the "Completed Quarter"), the Partial Allocated Expense Shares
for Period IV Claims shall automatically be recalculated pursuant to paragraph
A.2 above by incorporating all Period IV Claims not previously reflected in
those shares that have been reported to Participating Producers, Liaison
Counsel, or the Center during that calendar quarter (excluding claims subject to
a Permanent Sharing Arrangement). Thereafter the weighted average of the
Partial Allocated Expense Shares shall be recomputed (pursuant to paragraph
A.2), using the total number of open claims the Center had in the corresponding
periods as of the end of the Completed Quarter, to compute new Allocated
-44-
Expense Shares for all Participating Producers. The Allocated Expense Shares
thus recalculated shall be used by the Center to apportion all Allocated
Expenses incurred by the Center during the calendar quarter immediately
following the Completed Quarter (excluding claims subject to a Permanent Sharing
Arrangement). In addition, the Unallocated Expense Shares shall also
automatically be recalculated pursuant to paragraph A.3 above using the
recalculated Partial Allocated Expense Shares for Period IV claims. The
Unallocated Expense Shares thus recalculated shall be used by the Center to
apportion all Unallocated Expenses incurred during the calendar quarter
immediately following the Completed Quarter.
C. Punitive Damages
----------------
Punitive damage judgments shall not be apportioned among the Participating
Producers according to the Liability Payment Shares provided herein, but shall
be borne by the Participating Producer against which the judgment was rendered
and its Insurers.
D. Separate Counsel
----------------
Any Participating Producer retaining counsel to represent it separately
from the Center (whether in connection with a punitive damage claim, a matter as
to which it has an interest that is not shared by the other Participating
Producers, or for some other reason) shall be entitled to have the cost of such
separate counsel in any calendar year reimbursed by the Center as Allocated
Expense (thereafter to be apportioned among all
-45-
Participating Producers including the Participating Producer retaining such
counsel based on the applicable Allocated Expense Shares) up to a limit to be
established by the Board of Directors for each calendar year. All other such
Allocated Expenses shall be billed directly to the responsible Insurer or
Insurers for the Participating Producer or, in the absence of such Insurers, to
the Participating Producer itself.
E. Alternative Dispute Resolution
------------------------------
Any Participating Producer that believes that application of any future
adjustment in any Liability Payment Share, any Allocated Expense Share, or any
Unallocated Expense Share pursuant to Section B above is inequitable as applied
to its particular situation, or that the calculation of any particular share
pursuant to such future adjustment has been performed inaccurately or
incorrectly, may cause the matter to be presented to the Participating Producers
pursuant to paragraph B.2 above and, failing receipt of satisfactory action, may
take the matter to alternative dispute resolution within the Center. Such
Participating Producer shall bear the burden of proof.
F. New Entrants and Withdrawals
----------------------------
-46-
Any Producer that is not a signatory to the Agreement as of December 1,
1991, may become a signatory as provided in Section XII of the Agreement. The
Special Counsel shall provide such support and recommendations as the Board may
request with respect to any request from any Producer to become a signatory to
the Agreement, including the Liability Payment Shares, Allocated Expense Shares,
and the Unallocated Expense Shares to be borne by that Producer. In the event
the Producer becomes a signatory, the corresponding shares of the other
Participating Producers shall be reduced appropriately to make room for the
shares of the new Participating Producer. In the event that a Participating
Producer shall withdraw from membership in the Center pursuant to Section IV of
the Agreement or have its membership terminated pursuant to Paragraph 3 of
Section III, the corresponding shares of the other Participating Producers shall
be increased appropriately to pick up the shares of the withdrawing or
terminating Participating Producer.
