Sulzer Implant Settlement

Class Action Settlement Agreement

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Article 5. ATTORNEYS’ FEES

Section 5.1 Except as noted herein, nothing in this agreement is intended to void or to otherwise alter reasonable contingent fee contracts entered into on or prior to February 2, 2002 for payments due to Class Members under Sections 3.4(a), 3.5(b), 3.5(c) and 3.7. Payments made to Plaintiffs' Counsel for attorney fees pursuant to Sections 3.4(a), 3.5(b) and 3.7 shall be set off against the total contingent fee, and thus the obligation of any such Class Member to his or her Plaintiffs' Counsel will be offset by such amount. Payments made to Plaintiffs’ Counsel for attorney fees pursuant to Sections 3.4(a), 3.5(b), 3.5(c) and 3.7 shall be set off against the total contingent fee, and thus the obligation of any such Class Member to his or her Plaintiffs’ Counsel will be offset by such amount. In no event shall attorneys’ fees or expenses be deducted from the amount of any benefits received by a Class Member pursuant to Section 3.3 and 3.5(a).

Section 5.2 The Payment of attorney fees pursuant to Sections 3.4(a), 3.5(b), 3.5(c) and 3.7(a) hereof shall be paid directly to the applicable Plaintiffs’ Counsel out of the Plaintiffs’ Counsel Sub-Fund. . In the event there are any amounts remaining in the Plaintiffs' Counsel Sub-Fund after all applicable amounts have been paid to Plaintiffs' Counsel, such remaining amount shall be distributed pro rata among all Class Members who received benefits pursuant to Sections 3.4(a) and 3.5(b). In the event there are any amounts remaining in the Plaintiffs’ Counsel Sub-Fund after all applicable amounts have been paid to Plaintiffs’ Counsel, such remaining amount shall be distributed pro rata among all Class Members who received benefits pursuant to Sections 3.4(a), 3.5(b), 3.5(c) and 3.7(a).

Section 5.3 In calculating the amount of attorney fees and payments to be made to Affected Product Recipients pursuant to Section 3.4(a), 3.5(b), 3.5(c) and 3.7, Plaintiffs’ Counsel shall apply the contingent fee percentage to the product reached by multiplying the stated benefit amount payable pursuant to the applicable Section, by 1.25. Any amounts paid pursuant to this Section 5.3 shall be offset by those amounts, if any, paid pursuant to Section 5.2.

Section 5.4 Common Benefit Attorneys shall be entitled to reasonable attorney fees up to a maximum of $50.0 million in the aggregate and to reimbursement of reasonable expenses up to a maximum of $7.5 million in the aggregate, to be paid out of the Sulzer Settlement Trust as approved by the Court. The Common Benefit Attorney fee payment shall be made out of the CCI and the Common Benefit Attorney expenses shall be paid out of the Initial Insurance Proceeds. The Court shall make reasonable allowances out of such amounts for the payment of reasonable attorney fees and expenses incurred in connection of the administration of the Sulzer Settlement Trust.

Section 5.5 In order to receive payment pursuant to Section 5.4, any attorney claiming benefits as a Common Benefit Attorney shall first make an application to the Court. The Court may appoint a special master, and with the input of a committee comprised of an equal number of members from Class Counsel and the Special State Counsel Committee, will review all such applications and make a determination with respect to any such attorney’s eligibility to receive payments pursuant to this Section 5.5

Section 5.6 All amounts allocated out of this Sulzer Settlement Trust to Common Benefit Attorneys pursuant to Section 5.5 shall be paid to liaison Class Counsel who shall distribute such amounts to Common Benefit Attorneys as approved and allocated by the Court pursuant to Section 5.5. The Court shall consider, among other factors, any contingent fee paid to a Common Benefit Attorney pursuant to Section 5.1 and Section 5.2 when making an award of a fee pursuant to Section 5.5

Section 5.7 Notwithstanding the foregoing, in the event that a Class Member is paid benefits pursuant to Section 8.4 hereof, no attorney’s fees or expenses shall be deducted from such amount at the time payment is made to such Class Member, rather any such applicable attorneys’ fees or expenses owed in respect of such payment shall be deducted from the amount of any additional benefits paid to such Class Member.

Article 6. ISSUANCE OF CCI

Section 6.1 In partial satisfaction of Sulzer’ funding obligations under this Settlement Agreement pursuant to Section 2.5(a), SOUS shall deliver on the CCI Issue Date a $300,000,000 principal amount convertible callable instrument (the "CCI") of SOUS payable to the Sulzer Settlement Trust. The CCI shall have the terms, covenants and other provisions substantially as set forth on Annex V to this Settlement Agreement.

Section 6.2 Section 6.2 On or prior to the Fairness Hearing Date, the Parties shall complete definitive documentation of the form of the CCI and shall submit such final form to the Court for approval at the Fairness Hearing. On or before the date that is (20) days after the final date of the Fairness Hearing, the Parties shall complete definitive documentation of the form of the CCI and shall submit such final form to the Court for approval. The Parties agree to negotiate in good faith the final terms and form of such instrument based on the principal financial terms described on Annex V

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