Sulzer Implant Settlement

Article 2 | Article 3 |  Article 4 | Article 5 & 6 | Article 7 & 8 |  Article 9 - 16

CLASS ACTION SETTLEMENT AGREEMENT

Among

SULZER ORTHOPEDICS INC.,

SULZER MEDICA AG,

SULZER AG,

and

CLASS COUNSEL ON BEHALF OF CLASS REPRESENTATIVES

IN RE SULZER HIP PROSTHESIS AND KNEE PROSTHESIS LIABILITY LITIGATION

MDL Docket No. 01-CV-9000 (MDL No. 1401)

dated as of

March 13, 2002

Amended:

May 2, 2002 [color coded in blue]

May 3, 2002 [color coded in green]

May 5, 2002 [color coded in violet]

May 8, 2002 [color coded in teal]

May 22, 2002 [color coded in dark red]

October 15, 2002 [color coded in orange]

November 12, 2002 [color coded in purple]

June 10, 2003 [color coded in brown]

Article 1.  DEFINITIONS 2

Section 1.1 DEFINITIONS 2

Article 2. SULZER SETTLEMENT TRUST AND FUNDS 13

Section 2.1 ESTABLISHMENT OF SULZER SETTLEMENT TRUST 13

Section 2.2 ESTABLISHMENT OF PATIENT BENEFIT FUNDS 14

Section 2.3 SULZER SETTLEMENT TRUST BROKERAGE ACCOUNT 15

Section 2.4 SECURITY ARRANGEMENTS 16

Section 2.5 FUNDING 16

Section 2.6 OTHER PROVISIONS 19

Article 3. CLASS MEMBER RIGHTS AND BENEFITS 19

Section 3.1 MEDICAL RESEARCH AND MONITORING 19

Section 3.2 [RESERVED] 20

Section 3.3 BENEFITS PAYABLE TO CLASS MEMBERS OUT OF THE UNREVISED AFFECTED PRODUCT RECIPIENT FUND 20

Section 3.4 BENEFIT PAYMENTS TO CLASS MEMBERS OUT OF THE AFFECTED PRODUCT REVISION SURGERY FUND 20

Section 3.5 DERIVATIVE CLAIMANT PAYMENTS 22

Section 3.6 OFFSETS 23

Section 3.7 COMPENSATION BENEFITS PAYABLE FROM EXTRAORDINARY INJURY FUND 24

Section 3.8 OPT-OUT RIGHTS 25

Section 3.9 PAYMENTS TO THIRD-PARTY PAYORS AND UNINSURED CLASS MEMBERS 25

Article 4. CLAIMS ADMINISTRATION 26

Section 4.1 UNREVISED AFFECTED PRODUCT RECIPIENT FUND 26

Section 4.2 AFFECTED PRODUCT REVISION SURGERY FUND 27

Section 4.3 EXTRAORDINARY INJURY FUND 28

Section 4.4 DERIVATIVE CLAIMANTS 29

Section 4.5 UNINSURED AFFECTED PRODUCT RECIPIENTS 29

Section 4.6 GENERAL CLAIMS ADMINISTRATION 30

Section 4.7 INDEMNIFICATION AND LIABILITY OF CLAIMS ADMINISTRATOR 31

Article 5. ATTORNEYS’ FEES 32

Article 6. ISSUANCE OF CCI 34

Article 7. GENERAL TERMINATION AND RELEASE 34

Article 8. GUARANTEED PAYMENT OPTION 35

Article 9. CONTINUING JURISDICTION 37

Article 10. TERMINATION 37

Article 11. [RESERVED] 38

Article 12. [RESERVED] 38

Article 13. SETTLEMENT IMPLEMENTATION 38

Section 13.1 GENERAL 38

Section 13.2 APPROVAL PROCESS PROVISIONS 38

Section 13.3 CONDITIONS 39

Article 14. [RESERVED] 40

Article 15. MISCELLANEOUS 40

Article 16. BLOCK TRADE AGREEMENT 44

CLASS ACTION SETTLEMENT AGREEMENT WITH SULZER ORTHOPEDICS INC., et. al.

This SETTLEMENT AGREEMENT, dated as of March 13, 2002 (this "Settlement Agreement" or "Class Action Settlement" or “Settlement”), is entered into by and among Sulzer Orthopedics Inc., a Delaware corporation (“SOUS”), and its affiliated entities (including Sulzer Medica AG, a limited company organized under the laws of Switzerland (“SML”), and each of the other SML direct or indirect subsidiaries (such subsidiaries, together SOUS, SML and any other direct or indirect subsidiaries of SML, are referred to collectively herein as “Sulzer”), and Sulzer AG, a limited company organized under the laws of Switzerland (“Sulzer AG”), each on behalf of themselves and the other Released Parties hereunder, and the undersigned Class Counsel on behalf of the Class Representatives (in each case, as defined herein), provided, however, excluded from this definition are the following entities: Sulzer IntraTherapeutics, Inc.; Vascutek Limited; Centerpulse (UK) Holdings Ltd.; Sulzer Cardiovascular GmbH; Sulzer Cardiovascular BV; Sulzer Carbomedics, Inc.; Sulzer Mitroflow Corp.; Sulzer Carbomedics Canada Ltd.; Sulzer Carbomedics UK Ltd.; Sulzer Cardiovascular SA; Sulzer Cardiovascular AG; and Sulzer Medica Canada Inc. The Class Representatives, together with Sulzer and Sulzer AG, are sometimes referred to herein as the “Parties”. This Settlement Agreement shall amend and supercede any prior agreements of the Parties with respect to the subject matter hereof (other than that certain Settlement Agreement, dated as of February 22, 2002, between SML and Sulzer AG), including without limitation, the Settlement Agreement dated August 15, 2001, as amended and restated as of August 23, 2001, further amended and restated as of September 12, 2001, and further amended and restated as of October 12, 2001, and the Memorandum of Understanding dated as of February 1, 2002.

RECITALS

WHEREAS, Sulzer, Sulzer AG, and the Class Representatives hereby agree to a class action settlement (the “Class Action Settlement” or “Settlement”), subject to the approval of the Federal District Court, with respect to Class Members in the United States which would resolve, on the terms set forth in this Settlement Agreement, Settled Claims against Sulzer, Sulzer AG and other Released Parties arising from the Affected Products, pending in various courts, including but not limited to claims which have been made in the actions that have been or will be transferred for coordinated or consolidated pretrial proceedings to the United States District Court for the Northern District of Ohio, Eastern Division (In Re Sulzer Hip Prosthesis And Knee Prosthesis Liability Litigation (MDL No. 1401)), and in numerous other courts.

WHEREAS, this Settlement Agreement shall not be construed as evidence of or as an admission by Sulzer or Sulzer AG of any liability or wrongdoing whatsoever or as an admission by the Class Representatives or Class Members of any lack of merit in their claims.

NOW, THEREFORE, Sulzer, Sulzer AG and the Class Representatives hereby agree, subject to Final Judicial Approval, compliance with applicable legal requirements, and other conditions, all as set forth below, that the Unrevised Affected Product Recipient Fund, Affected Product Revision Surgery Fund, Medical Research and Monitoring Fund, Subrogation and Uninsured Expenses Fund and Extraordinary Injury Fund shall be established, from which the benefits described herein will be paid to the Class Members of the proposed Settlement Class, and that the Settled Claims against Sulzer and other Released Parties, as defined herein, will be settled, compromised and released, in accordance with the following terms.

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