(a) “$” shall denote United States dollars.
(b) "Additional Non-Affected Product Revision Surgery" shall
mean a surgery, not the result of trauma, performed to remove and/or replace a product
that is not an Affected Product after a Non-Affected Product Revision Surgery and prior to
the date that is three hundred and sixty-five (365) days after the initial Affected
Product Revision Surgery with respect to the same hip or knee.
(c) “ADRs” shall mean the American Depositary Receipts of SML
(NYSE ticker symbol: SM), issued pursuant to that certain Deposit Agreement between SML
and Citibank, N.A., as Depositary thereunder, each representing one American Depository
Share (as defined in the Deposit Agreement).
(d) “Affected Products” shall mean (i) Inter-Op™
Acetabular shells (“Inter-Op Shells”) identified in SOUS’s
Safety Alert dated December 5, 2000 as identified by lot numbers on Annex I attached hereto, (ii) Natural Knee® II Tibial
Baseplates (“Tibial Baseplates”) identified in SOUS’s Special
Notification dated May 17, 2001 as identified by lot numbers on Annex I attached hereto, (iii) Inter-Op Shells and Tibial
Baseplates that are otherwise identified by lot numbers on Annex
I attached hereto and (iv) reprocessed Inter-Op Shells ("Reprocessed
Inter-Op Shells") identified by lot numbers on Annex
II attached hereto.
(e) “Affected Product Recipients” shall mean persons who are
citizens or residents of the United States, in whose bodies one or more Affected Products
have been or are now implanted in an operation or other surgical procedure, whether or not
any such Affected Product has been or may in the future be removed.
(f) “Affected Product Related” shall mean arising out of, based
upon, relating to, or involving an Affected Product.
(g) "Affected Product Revision Surgery" or "APRS"
shall mean surgical removal and/or replacement of an Affected Product for reason other
than trauma.
(h) "Affected Product Revision Surgery Fund” shall have the
meaning set forth in Section 2.1(d).
(i) “Affected Product Revision Surgery Fund Benefits Claim Form”
shall have the meaning set forth in Section 4.2(a).
(j) “Blue Form” shall have the meaning set forth in Section 4.1(a).
(k) “Business Day” shall mean any day other than Saturday,
Sunday or any U.S. federal holiday or any other day that the Trustee is closed.
(l) “CCI” shall have the meaning set forth in Section 6.1.
(m) "CCI Issue Date" shall have the meaning set forth in Annex
V.
(n) “CHF” shall denote Swiss francs.
(o) “Claim Form” means the Unrevised Affected Product Recipient
Fund Benefits Claim Form (or Blue Form), the Affected Products Revision Surgery Fund
Benefits Claim Form (or Orange Form), the EIF Benefits Claim Form (or Green Form), the
Derivative Benefits Claim Form (or Yellow Form) and the Uninsured Medical Expenses Claim
Form (or Red Form) and any additional documentation required thereby.
(p) “Claims Administrator” shall mean James McMonagle (subject
to the approval of the Court) and/or his agents, or upon the failure of the Court to so
approve his appointment, his resignation or removal, any person or persons to be appointed
by the Court and/or his or her agents, to administer claims for benefits and to make
determinations under this Settlement Agreement and the Trust Documents and give
instructions to the Trustee in connection therewith.
(q) “Class Action Settlement” or “Settlement”
shall have the meaning set forth in the Recitals.
(r) “Class Counsel” shall mean those attorneys executing this
Settlement Agreement on behalf of the Class Representatives, or such other attorneys as
shall be approved by the Court as counsel to the Settlement Class.
(s) “Class Members” shall mean members of the Settlement Class.
(t) “Class Representatives” shall mean, with respect to
Subclass I, George Yasanchak and Mary Jane Yasanchak (as Derivative Claimant), with
respect to Subclass II, Harlan N. Herman, Brenda K. Herman (as Derivative Claimant) and
Linda F. Wells, with respect to Subclass III, Robert Reschke and Stephanie Reschke (as
Derivative Claimant), with respect to Subclass IV, Patricia Schaffer and Larry Schaffer
(as Derivative Claimant) and Lee Boyd Montgomery, Jr., with respect to Subclass V,
Patricia Van Dillen and John M. Van Dillen (as Derivative Claimant), or different persons
as shall be designated by the Court as the representatives of the Settlement Class, in the
action in Federal District Court captioned In Re Sulzer Hip Prosthesis and Knee Prosthesis
Liability Litigation (MDL Docket No. 01-CV-9000, MDL No. 1401).
(u) “Code” means the Internal Revenue Code of 1986, as amended,
or any successor statute.
(v) "Common Benefit Attorneys" shall mean those attorneys who
contributed to the creation of the Settlement Trust through work devoted to this
"common benefit" of Class Members, including any attorney who reasonably
believes that he or she actually conferred benefits upon the Class Members as a whole
through state court litigation, subject to determination by the Court.
(w) “Court” and/or “Trial Court” and/or
“Federal District Court” means the United States District Court
for the Northern District of Ohio, Eastern Division.
(x) "Covered Revision Surgery" or "CRS"
shall mean an Affected Product Revision Surgery, Non-Affected Product Revision Surgery and
Additional Non-Affected Product Revision Surgery.
(y) “Derivative Benefits Claim Form” shall have the meaning set
forth in Section 4.4(a).
(z) “Derivative Claimant” shall mean any person asserting the
right to sue Sulzer and/or Sulzer AG independently or derivatively, by reason of their
personal relationship with an Affected Product Recipient as a spouse or “significant
other".
(aa) “Disposition Notice” shall have the meaning set forth in
Section 2.3(c).
(bb) “EIF Benefits Claim Form” shall have the meaning set forth
in Section 4.3(a).
(cc) “Election Notice” shall have the meaning set forth in
Section 2.3(c).
(dd) “Escrow Agreement” shall have the meaning set forth in
Section 2.5(b).
(ee) “Extraordinary Injury Fund” shall have the meaning set
forth in Section 2.1(d).
(ff) “Extraordinary Injury Fund Benefits” or "EIF
Benefits" shall have the meaning set forth in Section 3.7(a).
(gg) “Fairness Hearing” means the hearing conducted by the
Court to determine the fairness, adequacy and reasonableness of this Settlement Agreement
under Fed. R. Civ. P. 23(e).
(hh) “Fairness Hearing Date” means the date on which the
Fairness Hearing takes place.
(ii) “Final Determination” shall have the meaning set forth in
Section 4.6(e).
(jj) “Final Judicial Approval” refers to the approval of the
Settlement Agreement by the Federal District Court and such approval becoming final by the
exhaustion of all appeals, including petitions certiorari to the United States Supreme
Court. Final Judicial Approval shall be deemed not to have been obtained in the event that
Trial Court Approval is denied, and the period for appealing such denial has expired
without any such appeal having been taken.
(kk) “Final Judicial Approval Date” shall mean the date on
which Final Judicial Approval occurs.
(ll) "Financing Amount" shall have the meaning set forth in
Section 2.5(a).
(mm) “Financing” means those certain financing arrangements
negotiated by Sulzer in order to satisfy its funding obligations under Section 2.5(a)
hereof.
(nn) "Funding Date" shall have the meaning set forth in Section
2.5(a).
(oo) “Funds” means, collectively, the Medical Research and
Monitoring Fund, Unrevised Affected Product Recipient Fund, Professional Services Fund,
Subrogation and Uninsured Expenses Sub-Fund, Plaintiffs’ Counsel Sub-Fund, Affected
Product Revision Surgery Fund and Extraordinary Injury Fund.
(pp) “GPO” shall have the meaning set forth in Section 8.1.
(qq) “GPO Agreement” shall have the meaning set forth in
Section 8.3.
(rr) “Green Form” shall have the meaning set forth in Section
4.3(a).
(ss) “Hip APRS” means surgical replacement of an Inter-Op Shell
that is an Affected Product for reason other than trauma.
(tt) "Hip Beneficiaries" shall mean Affected Product Recipients
of Inter-Op Shells and Reprocessed Inter-Op Shells and Derivative Claimants of Affected
Product Recipients of Inter-Op Shells and Reprocessed Inter-Op Shells.
(uu) “Hip Matrix” shall have the meaning set forth in Annex IV.
(vv) “Indemnification Agreement” shall have the meaning set
forth in Section 2.5(c).
(ww) “Initial Insurance Policies” shall mean the following
insurance policies issued by Winterthur International Insurance Company and Winterthur
Swiss Insurance Company: (i) Local Policy GL 003-07-05-00 (4/1/2000 to 3/31/2001),
(ii)Master Policy No. 3.307.351 (4/1/2000 to 3/31/2001); (iii) Excess Policy No. 3.307.352
(4/1/2000 to 3/31/2001); (iv) Excess Policy No. 3.307.353 (4/1/2000 to 3/31/2001); (v)
Excess Policy No. 3.167.933 (4/1/2000 to 3/31/2001); (vi) Excess Policy No. 3.167.934
(4/1/2000 to 3/31/2001); and (vii) Excess Policy No. 3.312.133 (4/1/2000 to 3/31/2001).
(xx) “Initial Insurance Proceeds” shall mean the insurance
proceeds payable for the benefit of SOUS, SML, or any SML subsidiary and affiliate (up to
applicable policy limits, less the aggregate amount of any claims submitted by Sulzer that
are pending as of the Insurance Proceeds Delivery Date) pursuant to the Initial Insurance
Policies.
(yy) "Insurance Proceeds" shall mean the Initial Insurance
Proceeds and the Second Year Insurance Proceeds.
(zz) "Insurance Proceeds Delivery Date" shall have the meaning
set forth in Section 2.5(c).
(aaa) “Knee APRS” means surgical replacement of a Tibial
Baseplate that is an Affected Product for reason other than trauma.
(bbb) “Knee Beneficiaries” shall mean Affected Product
Recipients of Tibial Baseplates and Derivative Claimants of Affected Product Recipients of
Tibial Baseplates.
(ccc) “Knee Matrix” shall have the meaning set forth in Annex IV.
(ddd) “Liens” shall mean, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset.
(eee) "Matrices" or “Matrix” shall have
the meaning set forth in Section 3.7(a).
(fff) “Matrix Levels” shall have the meaning set forth in Annex IV.
(ggg) “Medical Research and Monitoring Fund” shall have the
meaning set forth in Section 2.1(d).
(hhh) "Non-Affected Product Revision Surgery" or "NAPRS"
shall mean a surgery (not indicated as a result of trauma) that was performed to remove
and/or replace a product that is not an Affected Product within one-hundred and eighty
(180) days of an Affected Product Revision Surgery in respect of a hip or knee that
previously underwent an Affected Product Revision Surgery.
(iii) “Notice” shall have the meaning set forth in Section
13.2(a).
(jjj) “Orange Form” shall have the meaning set forth in Section
4.2(a).
(kkk) “Opt-Out Period” shall mean the period beginning at 5:00
p.m. Cleveland time on April 12, 2002 through 5:00 p.m. Cleveland time on May 14, 2002 or
five (5) Business Days after Trial Court Approval, whichever is later, during which Class
Members may exercise the Opt-Out Right described in Section 3.8.
(lll) “Opt-Out Right” shall have the meaning set forth in
Section 3.8(a).
(mmm) “Parties” shall have the meaning set forth in the
preamble.
(nnn) “Plaintiffs’ Counsel” shall mean any contingent-fee
attorney who represents one or more individual Class Members pursuant to a written
agreement.
(ooo) “Plaintiffs’ Counsel Sub-Fund” shall have the
meaning set forth in Section 2.1.(d).
(ppp) “Preliminary Determination” shall have the meaning set
forth in Section 4.6(c).
(qqq) “Professional Services Fund” shall have the meaning set forth in
Section 2.1(d).
(rrr) “Proposed Disposition” shall have the meaning set forth in Section
2.3(c).
(sss) “Red Form” shall have the meaning set forth in Section 4.5(a).
(ttt) “Released Parties” shall mean:
SOUS and each of its affiliates, including SML and each of SML’s other past,
present and future parent companies and direct or indirect subsidiaries, together with
each of their respective past, present and future directors, officers, employees,
affiliates, insurers, joint venturers and agents, including without limitation, sales
agents;
Sulzer AG and all of its past, present and future parent companies and direct or
indirect subsidiaries, its and their respective past, present and future directors,
officers, employees, affiliates, insurers and agents;
Winterthur and all of its past, present and future parent companies and direct or
indirect subsidiaries, its and their respective past, present and future directors,
officers, employees, affiliates, insurers and agents;
all surgeons who implanted an Affected Product and affiliated physicians or physician groups; provided, that such surgeons, physicians or physician groups shall only be Released Parties hereunder (x) to the extent that their alleged liability arises from or relates to the recommendation, selection or use of an Affected Product or (y) to the extent that, but for the recommendation, selection or use of an Affected Product by the surgeon, physician or physician group, as opposed to another product, no such liability would exist in either case, notwithstanding the legal theory on which such alleged liability is premised (including, but not limited to, negligence, negligence per se, res ipsa loquitor, intentional or negligent misrepresentation, intentional tort, fraud, deceit, civil conspiracy, violation of state or federal statutes or codes, consumer fraud and deceptive trade practices, failure to disclose or warn, any product liability theories, any breach of warranty theories, agency, alter ego, joint venture, partnership, joint enterprise, medical malpractice, or any combination thereof) and notwithstanding the conduct alleged to give rise to such liability (including, but not limited to, failure to disclose information about a financial relationship with a company or business organization, failure to acquire a patient's informed consent due to the failure to disclose information about the condition of or defect in an Affected Product or a financial relationship with a company or business organization, participation in the design, testing, promotion, marketing or post-market investigation of an Inter-Op Shell or a Tibial Baseplate, or any other conduct that, in the absence of the recommendation, selection or use of an Affected Product by the surgeon, physician or physician group in the particular instance in question, would not give rise to liability); provided, further, that the foregoing shall not preclude claims based on such surgeons', physicians' or physician groups' independent negligence in the performance of the surgery which is the subject of the claim and such claim is not based on the recommendation, selection or use of an Affected Product (Examples of such claims for "independent negligence" for which a surgeon is not released may include, but not be limited to, the following: (1) leaving a foreign object in the patient during surgery;(2) failure to adequately suture the surgical wound; or (3) inadequate monitoring or treatment in the post-operative period. Further, as it relates to an Affected Product Recipient's ability to pursue such claims against a surgeon, physician or physician group for independent acts of negligence not based on the recommendation, selection or use of an affected product, this provision is not meant to preclude such a claimant from pursuing exemplary or punitive damages for such independent acts of negligence to the extent allowed by applicable state law, but simply recognizes the possibility, however remote, under state law that negligent conduct may rise to the level of recklessness, willfulness or other indicia of intent or state of mind to support the imposition of exemplary or punitive damages); and
all surgeons who implanted an Affected Product and affiliated
physicians or physician groups; provided, that such surgeons, physicians or physician
groups shall only be Released Parties hereunder to the extent that their alleged liability
arises from or relates to the recommendation, selection or use of an Affected Product,
notwithstanding the legal theory on which such alleged liability is premised (including,
but not limited to, negligence, negligence per se, res ipsa loquitor, intentional or
negligent misrepresentation, intentional tort, fraud, deceit, civil conspiracy, violation
of state or federal statutes or codes, consumer fraud and deceptive trade practices,
failure to disclose or warn, any product liability theories, any breach of warranty
theories, agency, alter ego, joint venture, partnership, joint enterprise, medical
malpractice, or any combination thereof) and notwithstanding the pre-implantation conduct
alleged to give rise to such liability (including, but not limited to, failure to disclose
information about a financial relationship with a company or business organization,
failure to acquire a patient’s informed consent due to the failure to disclose
information about the condition of or defect in an Affected Product or a financial
relationship with a company or business organization, participation in the design,
testing, promotion, marketing); provided further, that the foregoing shall not preclude
claims based on such surgeons’, physicians’ or physician groups’
independent negligence in the treatment of the patient and such claim is not based on the
recommendation, selection or use of an Affected Product. (Examples of such claims for
"independent negligence" for which a surgeon is not released may include, but
not be limited to, the following: (1) leaving a foreign object in the patient during
surgery; (2) failure to adequately suture the surgical wound; or (3) inadequate
disclosure, monitoring or treatment in the post-operative period. Further, as it relates
to an Affected Product Recipient’ ability to pursue such claims against a surgeon,
physician or physician group for independent acts of negligence not based on the
recommendation, selection or use of an affected product, this provision is not meant to
preclude such a claimant from pursuing exemplary or punitive damages for such independent
acts of negligence to the extent allowed by applicable state law, but simply recognizes
the possibility, however remote, under state law that negligent conduct may rise to the
level of recklessness, willfulness or other indicia of intent or state of mind to support
the imposition of exemplary or punitive damages); and
organized medical specialty organizations, raw material or other suppliers of
Sulzer of materials, machines or equipment used in the manufacture of the Affected
Products, distributors of the Affected Products, and any other person or entity involved
in the design, manufacture, distribution, implant or explant of an Affected Product and
all insurers of the foregoing.
(uuu) “Representative Claimant” shall mean an estate,
administrator or other legal representative, trust or "special needs trust" of
an Affected Product Recipient or Derivative Claimant. For the purpose of clarity, the
parties acknowledge that Representative Claimants are entitled to any and all rights and
benefits under this Settlement Agreement that the represented Affected Product Recipients
and/or Derivative Claimant would have received hereunder regardless of any state law to
the contrary.
(vvv) “Second Year Insurance Policies" shall mean the following
insurance policies issued by Winterthur International America Insurance Company and XL
Winterthur International Insurance Switzerland: (i) Local Policy No. 003-07-05-01 (4/1/01
- 3/31/02), (ii) Master Policy No. 3.307.351 (4/1/2001 - 3/31/2002), (iii) First Excess
Policy No. 3.307.352 (4/1/2001 - 3/31/2002), (iv) Second Excess Policy No. 3.307.353
(4/1/2001 - 3/31/2002), (v) Third Excess Policy No. CH00001112LI01A (4/1/2001 -
5/31/2001), and (vi) Fourth Excess Policy No. CH00001114LI01A (4/1/2001 - 5/31/2001).
(www) "Second Year Insurance Proceeds" shall mean the insurance
proceeds payable for the benefit of SOUS, SML, or any SML subsidiary and affiliate
pursuant to Second Year Insurance Policies in the amount of $40.0 million.
(xxx) "Securities Act” shall have the meaning set forth in
Section 2.3(d).
(yyy) "Settlement Agreement" shall have the meaning set forth
in the Preamble.
(zzz) “Settled Claims” shall mean any and all
claims, including assigned claims, whether known or unknown, asserted or unasserted,
regardless of the legal theory, existing now or arising in the future by any or all
members of the Settlement Class arising out of or relating to the Affected Products or
their implantation; provided, however, that “Settled Claims” shall not
include claims held by Third-Party Payors in respect of subrogation or other claims for
medical expenses paid on behalf of Class Members. Further, the term ‘assigned
claims’ in the release to be signed by Affected Product Recipients shall have the
same meaning as ‘Settled Claims.’ These “Settled Claims”
include, without limitation and by way of example, all claims for damages or remedies of
whatever kind or character, known or unknown, that are now recognized by law or that may
be created or recognized in the future by statute, regulation, judicial decision, or in
any other manner, for:
personal injury and/or bodily injury, damage, death, fear of disease or injury,
mental or physical pain or suffering, emotional or mental harm, or loss of enjoyment of
life;
loss of wages, income, earnings, and earning capacity, medical expenses, doctor,
hospital, nursing, and drug bills;
loss of support, services, consortium, companionship, society or affection, or
damage to familial relations, by spouses, parents, children, other relatives or
“significant others" of Class Members;
wrongful death and survival actions;
medical screening and monitoring, injunctive and declaratory relief;
consumer fraud, refunds, unfair business practices, deceptive trade practices,
Unfair and Deceptive Acts and Practices (“UDAP”), unjust
enrichment, disgorgement and other similar claims whether arising under statute,
regulation, or judicial decision;
compensatory damages, punitive, exemplary, statutory and other multiple damages
or penalties of any kind including, without limitation, economic or business losses or
disgorgement of profits arising out of personal injury; and
pre-judgment or post-judgment interest.
(aaaa) “Settlement Class” shall mean all Affected Product
Recipients who are citizens or residents of the United States, including their associated
Derivative Claimants and Representative Claimants. The Settlement Class specifically
includes persons who have or may have claims with respect to injuries not yet manifested.
The Settlement Class shall expressly exclude any person or entity that entered into a
settlement with Sulzer (which included a release) related to claims arising out of the
implantation of an Affected Product.
(bbbb) “Settlement Shares” shall have the meaning set forth in
Section 2.3(a).
(cccc) “Settlement Trust Brokerage Account” shall have the
meaning set forth in Section 2.3(a).
(dddd) “Shares” means the shares, currently CHF 30 nominal
value, of Sulzer Medica AG.
(eeee) “SML” shall have the meaning set forth in the Preamble.
(ffff) “SOUS” shall have the meaning set forth in the Preamble.
(gggg) “Special State Counsel Committee” means the Special
State Counsel Committee established by the Court pursuant to an order dated as of October
22, 2001.
(hhhh) “Subclass I” shall mean all Class Members who have an
unsatisfied claim with respect to an Inter-Op Shell arising out of (i) Hip APRS performed
prior to the date that is the earlier of the Final Judicial Approval Date and (x) June 5,
2003 with respect to an Inter-Op Shell (other than a Reprocessed Inter-Op Shell) or (y)
September 8, 2004 with respect to a Reprocessed Inter-Op Shell and/or (ii) facts that
exist prior to the date that is the earlier of the Final Judicial Approval Date and x)
June 5, 2003 with respect to an Inter-Op Shell (other than a Reprocessed Inter-Op Shell)
or (y) September 8, 2004 with respect to a Reprocessed Inter-Op Shell, that may be a basis
for such Class Member to receive benefits under the Extraordinary Injury Fund.
(iiii) “Subclass II” shall mean all Class Members who have an
unsatisfied claim with respect to an Inter-Op Shell (other than a Reprocessed Inter-Op
Shell) arising out of (i) implantation of an Inter-Op Shell (other than a Reprocessed
Inter-Op Shell), (ii) Hip APRS performed on or after the Final Judicial Approval Date but
prior to June 5, 2003 and/or (iii) facts that exist on or after the Final Judicial
Approval Date but prior to June 5, 2003 that may be a basis for such Class Member to
receive benefits under the Extraordinary Injury Fund.
(jjjj) “Subclass III” shall mean all Class Members who have an
unsatisfied claim with respect to a Tibial Baseplate arising out of (i) Knee APRS
performed prior to the date that is the earlier of the Final Judicial Approval Date and
November 17, 2003 and/or (ii) facts that exist prior to the date that is the earlier of
the Final Judicial Approval Date and November 17, 2003 that may be a basis for such Class
Member to receive benefits under the Extraordinary Injury Fund.
(kkkk) “Subclass IV” shall mean all Class Members who have an
unsatisfied claim with respect to a Tibial Baseplate arising out of (i) implantation of a
Tibial Baseplate, (ii) Knee APRS performed on or after the Final Judicial Approval Date
but prior to November 17, 2003 and/or (iii) facts that exist on or after the Final
Judicial Approval Date but prior to November 17, 2003 that may be a basis for such Class
Member to receive benefits under the Extraordinary Injury Fund.
(llll) "Subclass V" shall mean all Class Members who have an
unsatisfied claim with respect to a Reprocessed Inter-Op Shell arising out of (i)
implantation of a Reprocessed Inter-Op Shell, (ii) Hip APRS performed on or after the
Final Judicial Approval Date but prior to September 8, 2004 and/or (iii) facts that exist
on or after the Final Judicial Approval Date but prior to September 8, 2004 that may be
the basis for such Class Member to receive benefits under the Extraordinary Injury Fund.
(mmmm) "Subrogation and Uninsured Expenses Sub-Fund" shall have
the meaning set forth in Section 2.1(d).
(nnnn) “Sulzer” shall have the meaning set forth in the
Preamble.
(oooo) “Sulzer AG” shall have the meaning set forth in the
Preamble.
(pppp) “Sulzer Settlement Claim Number” shall have the meaning
set forth in Section 4.6(b).
(qqqq) “Sulzer Settlement Trust” shall mean a trust established
to receive funds to be paid by Sulzer, Sulzer AG and Winterthur as provided in this
Settlement Agreement and the Indemnification Agreement, pursuant to the Trust Agreement.
(rrrr) “Third-Party Payor” means any insurer or other party
that makes payments on behalf of Class Members for medical expenses and would have a
subrogated claim with respect to payment of such expenses or provides goods and services
to a Class Member and who has a subrogation right or lien with respect to the cost of such
goods and services.
(ssss) “Third Party Purchaser” shall have the meaning set forth
in Section 2.3(c).
(tttt) “Trial Court Approval” shall mean the granting, by order
entered on the docket thereof, of the approval of the Settlement Agreement by the Federal
District Court.
(uuuu) “Trial Court Approval Date” shall mean the date upon
which Trial Court Approval occurs.
(vvvv) “Trust Documents” shall mean the Trust Agreement and the
Security Agreement.
(wwww) “Trustee” shall mean that person or entity approved by
the Court as Trustee of the Sulzer Settlement Trust in accordance with the Trust
Agreement, and any successor Trustee and will serve subject to the jurisdiction and
supervision of the Court.
(xxxx) “Trust Agreement” shall mean the Settlement Trust
Agreement substantially in the form to be agreed to by the Parties and the Trustee, which
shall be approved by the Court.
(yyyy) “Uninsured Affected Product Recipient” shall mean an
Affected Product Recipient who, at the time of an Affected Product Revision Surgery, has
no private, state or federal or other health care insurance coverage for any medical care.
For purpose of clarity, an Affected Product Recipient who has health care insurance
coverage at the time of the Affected Product Revision Surgery but whose provider is
contesting, denying or has otherwise not paid medical expenses relating to an Affected
Product Revision Surgery is not considered an Uninsured Affected Product Recipient for any
purposes under this Agreement.
(zzzz) “Uninsured Medical Expenses Claim Form” shall have the
meaning set forth in Section 4.5(a).
(aaaaa) “Unrevised Affected Product Recipient Fund Benefits Claim Form”
shall have the meaning set forth in Section 4.1(a).
(bbbbb) “Unrevised Affected Product Recipient Fund” shall have
the meaning set forth in Section 2.1(d).
(ccccc) “Winterthur” means Winterthur Swiss Insurance Company,
a limited company organized under the laws of Switzerland, and its successor-in-interest
XL Winterthur International Insurance Switzerland, its insurance subsidiaries, together
with their respective subsidiaries and affiliated companies.
(ddddd) “Yellow Form” shall have the meaning set forth in
Section 4.4(a).