Sulzer Implant Settlement

Class Action Settlement Agreement

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Article 7. GENERAL TERMINATION AND RELEASE

Section 7.1 The Parties agree that this Settlement Agreement is made in good faith and in accordance with the laws of the jurisdictions in which Affected Products Related lawsuits have been filed. If required by any court or tribunal, Class Counsel agree to cooperate with Sulzer, Sulzer AG and the other Released Parties by providing affidavits and/or testimony concerning the circumstances of the settlement contemplated by this Settlement Agreement and attesting to the fact that it is a good faith settlement.

Section 7.2 Unless this Settlement Agreement shall have been terminated in accordance with Article 10 hereof after the Court approves this Settlement Agreement as a good faith, fair, adequate and reasonable settlement, the Parties hereby agree that every Settled Claim of each Class Member (other than a Class Member who exercises an Opt-Out Right pursuant to Section 3.8) shall be conclusively compromised, settled and released as to Sulzer, Sulzer AG, and each other Released Party. Such releases shall remain effective regardless of changes in the circumstances or condition of Sulzer, Sulzer AG, the other Released Parties or such Class Members, discovery of new or additional facts, or changes in applicable law. In making such releases the Settlement Class expressly acknowledges and waives the provisions of Section 1542 of the Civil Code of the State of California, which provides that “[a] general release does not extend to claims which the creditor does not know or suspect exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor,” as well as any similar provisions of other states. Consistent with the provisions of Article 10 of this Settlement Agreement, the releases herein shall extinguish any claims for contribution and/or indemnification against Sulzer, Sulzer AG or the other Released Parties.

Section 7.3 The Parties hereby agree to request that the Court enter an order finding this Settlement Agreement to be a good faith settlement and barring and enjoining, to the extent permitted by applicable law, the commencement and prosecution of any contribution and/or indemnification claim or action by or on behalf of any Class Member (other than a Class Member who exercises an Opt-Out Right pursuant to Section 3.8) or entity against Sulzer, Sulzer AG or any other Released Party for reimbursement for payments made or to be made to or on behalf of any such Class Member for Affected Products Related claims, actions or injuries, or for expenses incurred in defending against any such claims, actions or proceedings. The Parties agree that Sulzer, Sulzer AG and the other Released Parties shall be entitled to dismissal with prejudice of any claims against them by or on behalf of any Class Member (other than a Class Member who exercises an Opt-Out Right pursuant to Section 3.8) that violate or are inconsistent with this bar.

Section 7.4 The Parties agree that no Class Member (other than Class Members who properly and timely exercise their Opt-Out Rights) shall recover, directly or indirectly, any sums from Sulzer, Sulzer AG or any other Released Party other than those received under this Settlement Agreement.

Section 7.5 Each Class Member (other than a Class Member who exercises an Opt-Out Right pursuant to Section 3.8) otherwise entitled to receive benefits under this Settlement Agreement shall be required, as a further condition to receive benefits hereunder, to execute and deliver a separate proof of claim and release with respect to each Affected Product Related claim.

Article 8. GUARANTEED PAYMENT OPTION

Section 8.1 Class Members in Subclass I and Subclass III who are eligible for benefits pursuant to Section 3.4(a) or 3.5(b) may elect to obtain a portion of the settlement benefits provided for in Sections 3.4(a) or 3.5(b) prior to the payment dates set forth in Section 3.4(b) or 3.5(b), as applicable, through a guaranteed payment option (the “GPO”) to be paid in accordance with and subject to the conditions set forth in this Article 8 and the Orange Form.

Section 8.2 A Class Member may elect the GPO at any time from the date of the Notice until the date that is the later of (a) one-hundred and twenty (120) days after the Trial Court Approval Date and (b) one-hundred and twenty (120) days after such Class Member’ APRS.

Section 8.3 If a Class Member elects the GPO, such Class Member must complete and sign the applicable section of the Orange Form (the "GPO Agreement") and return such completed and executed GPO Agreement to the Claims Administrator within the time period set forth in Section 8.2 above. The GPO Agreement shall represent a binding agreement between such Class Member and Sulzer separate and apart from this Settlement Agreement and shall provide for such Class Member to receive the value of the payments provided for in Section 3.4(a), 3.5(b), 3,7 and 3.9(a) of this Settlement Agreement, as applicable, in exchange for the unconditional release of the Released Parties for Settled Claims, in each case on terms and conditions consistent with this Settlement Agreement. Such GPO Agreement shall be effective upon execution and delivery of the GPO Agreement to the Claims Administrator and release contained therein shall be contingent on such Class Member receiving the balance of the benefits provided for in Sections 3.4(a), 3.5(b), 3.7 or 3.9(a), as applicable; provided, in the event that Sulzer defaults in obligation to pay Class Members under their individual GPO Agreements, the release provided by such GPO Agreement shall, nonetheless, be effective with respect to the Settled Claims as to all Released Parties other than Sulzer.

Section 8.4 Section 8.4 Class Members who elect the GPO and execute the GPO Agreement shall receive a minimum of $40,000 of the payments provided in Section 3.4(a) and 3.5(b), as applicable, on the date that is the later of (a) sixty (60) days after the Insurance Proceeds Delivery Date or (ii) forty-five (45) days after the date the Claims Administrator receives such Class Members' completed Orange Form. Class Members who elect the GPO and execute the GPO Agreement shall receive a minimum of $40,000 of the payments provided in Section 3.4(a) and a minimum $400 of the payments provided in Section 3.5(b), as applicable on the date that is the later of (a) sixty (60) days after the Insurance Proceeds Delivery Date or (b) forty-five (45) days after the Claims Administrator reviews such Class Members’ completed Orange Form. Class Members who have suffered complications that qualify for benefits under Section 3.7 who elect the GPO in accordance with this Article 8 may also be eligible to receive those benefits to be paid in accordance with Annex IV pursuant to the terms of this Settlement Agreement.

Section 8.5 A Derivative Claimant may not elect the GPO if the Class Member with whom the Derivative Claimant is associated has not elected the GPO. Similarly, a Derivative Claimant must elect the GPO if the Class Member with whom the Derivative Claimant is associated has elected the GPO.

Section 8.6 In the event that this Settlement Agreement is terminated in accordance with Article 10 (other than Section 10.1), Class Members electing the GPO will retain contractual rights in accordance with the GPO Agreement to any unpaid benefits owed pursuant to Section 3.4(a), 3.5(b), 3.7 or 3.9(a), as applicable. If the date of such termination is after the Insurance Proceeds Delivery Date, the Sulzer Settlement Trust shall administer payments in the amounts provided for in Section 8.4 and additional amounts owed to such Class Member in accordance with Section 3.4, 3.5, 3.7 or 3.9(a) shall remain the responsibility of Sulzer. However, if Sulzer exercises its option to terminate and withdraw from this Settlement Agreement pursuant to Section 10.1, any such GPO elections become null and void and the GPO Agreement shall not be enforceable.

Section 8.7 By electing the GPO and entering into a GPO Agreement, a Class Member is knowingly and affirmatively waiving all Opt-Out Rights afforded pursuant to Section 3.8 of this Settlement Agreement. Likewise, no person exercising an Opt-Out Right pursuant to Section 3.8 hereof is eligible to elect the GPO.

Section 8.8 The GPO shall be funded with the Insurance Proceeds paid in accordance with Section 2.5(c), less amounts allocated to Common Benefit Attorneys for expenses pursuant to Section 5.3 and less amounts allocated to the Subrogation and Uninsured Expenses Fund pursuant to Section 2.2(e). The Sulzer Settlement Trust shall pay to Class Members that validly elect the GPO an initial payment of $40,000.00. In the event that there are amounts remaining after payments have been made to all Class Members that validly elect the GPO, any such amount shall be distributed pro rata among the Class Members that elected the GPO up to the maximum amount of benefits such Class Member may be eligible to receive under Section 3.4(a) and 3.5(b) hereof.

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