SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 12)
Johns Manville Corporation
(formerly Schuller Corporation)
---------------------------------------------
(Name of Issuer)
Common Stock
---------------------------------------------
(Title of Class of Securities)
478129-10-9
---------------------------------------------
(CUSIP Number)
David T. Austern, Esq., General Counsel
Manville Personal Injury Settlement Trust
P.O. Box 10415, 8260 Willow Oaks Corporate Drive, Fairfax, VA 22031
(703) 204-9300
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 13, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a
statement on Schedule 13G to report the
acquisition which is the subject of this
Schedule 13D, and is filing this schedule
because of Rule 13d-1(b)(3) or (4), check the
following box:
/ /
<PAGE>
CUSIP NO. 478129-10-9
- -----------------------------------------------------------------
1. Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
Manville Personal Injury Settlement Trust
52-1516818
- -----------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) / /
(b) /x/
- -----------------------------------------------------------------
3. SEC Use Only
- -----------------------------------------------------------------
4. Source of Funds
00
- -----------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
Not Applicable / /
- -----------------------------------------------------------------
6. Citizenship or Place of Organization
New York
- -----------------------------------------------------------------
Number of Shares Beneficially 7. Sole Voting Power
Owned by Each Reporting Person 128,527,110
With ------------------------
8. Shared Voting Power
-0-
------------------------
9. Sole Dispositive Power
128,527,110
------------------------
10. Shared Dispositive Power
-0-
------------------------
- -----------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
128,527,110
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
/ /
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
79.6% See Item 5.
- -----------------------------------------------------------------
14. Type of Reporting Person
00
- -----------------------------------------------------------------
<PAGE>
CUSIP NO. 478129-10-9
- -----------------------------------------------------------------
1. Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
Robert A. Falise, trustee
###-##-####
- -----------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) / /
(b) /x/
- -----------------------------------------------------------------
3. SEC Use Only
- -----------------------------------------------------------------
4. Source of Funds
00
- -----------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
Not Applicable / /
- -----------------------------------------------------------------
6. Citizenship or Place of Organization
U.S.A.
- -----------------------------------------------------------------
Number of Shares Beneficially 7. Sole Voting Power
Owned by Each Reporting Person -0-
With ------------------------
8. Shared Voting Power
128,527,110
------------------------
9. Sole Dispositive Power
-0-
------------------------
10. Shared Dispositive Power
128,527,110
------------------------
- -----------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
128,527,110
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
/ /
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
79.6% See Item 5.
- -----------------------------------------------------------------
14. Type of Reporting Person
IN
- -----------------------------------------------------------------
<PAGE>
CUSIP NO. 478129-10-9
- -----------------------------------------------------------------
1. Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
Louis Klein, Jr., trustee
###-##-####
- -----------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) / /
(b) /x/
- -----------------------------------------------------------------
3. SEC Use Only
- -----------------------------------------------------------------
4. Source of Funds
00
- -----------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
Not Applicable / /
- -----------------------------------------------------------------
6. Citizenship or Place of Organization
U.S.A.
- -----------------------------------------------------------------
Number of Shares Beneficially 7. Sole Voting Power
Owned by Each Reporting Person -0-
With ------------------------
8. Shared Voting Power
128,527,110
------------------------
9. Sole Dispositive Power
-0-
------------------------
10. Shared Dispositive Power
128,527,110
------------------------
- -----------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
128,527,110
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
/ /
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
79.6% See Item 5.
- -----------------------------------------------------------------
14. Type of Reporting Person
IN
- -----------------------------------------------------------------
<PAGE>
CUSIP NO. 478129-10-9
- -----------------------------------------------------------------
1. Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
Frank J. Macchiarola, trustee
###-##-####
- -----------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) / /
(b) /x/
- -----------------------------------------------------------------
3. SEC Use Only
- -----------------------------------------------------------------
4. Source of Funds
00
- -----------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
Not Applicable / /
- -----------------------------------------------------------------
6. Citizenship or Place of Organization
U.S.A.
- -----------------------------------------------------------------
Number of Shares Beneficially 7. Sole Voting Power
Owned by Each Reporting Person -0-
With ------------------------
8. Shared Voting Power
128,527,110
------------------------
9. Sole Dispositive Power
-0-
------------------------
10. Shared Dispositive Power
128,527,110
------------------------
- -----------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
128,527,110
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
/ /
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
79.6% See Item 5.
- -----------------------------------------------------------------
14. Type of Reporting Person
IN
- -----------------------------------------------------------------
<PAGE>
CUSIP NO. 478129-10-9
- -----------------------------------------------------------------
1. Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
Christian E. Markey, Jr., trustee
###-##-####
- -----------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) / /
(b) /x/
- -----------------------------------------------------------------
3. SEC Use Only
- -----------------------------------------------------------------
4. Source of Funds
00
- -----------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
Not Applicable / /
- -----------------------------------------------------------------
6. Citizenship or Place of Organization
U.S.A.
- -----------------------------------------------------------------
Number of Shares Beneficially 7. Sole Voting Power
Owned by Each Reporting Person -0-
With ------------------------
8. Shared Voting Power
128,527,110
------------------------
9. Sole Dispositive Power
-0-
------------------------
10. Shared Dispositive Power
128,527,110
------------------------
- -----------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
128,527,110
- -----------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
/ /
- -----------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
79.6% See Item 5.
- -----------------------------------------------------------------
14. Type of Reporting Person
IN
- -----------------------------------------------------------------
<PAGE>
This Amendment No. 12 amends and supplements the
Statement on Schedule 13D filed on December 8, 1988 by Manville
Personal Injury Settlement Trust (the "Trust") and its trustees
(the "Trustees") with respect to the Trust's beneficial ownership
of shares of Common Stock, $.01 par value (the "Common Stock"),
of Johns Manville Corporation, formerly Schuller Corporation (the
"Company"), as previously supplemented and amended (the "Schedule
13D").
Capitalized terms that are not otherwise defined herein
have the meanings assigned in the Schedule 13D.
Item 1. Security and Issuer.
- ------ -------------------
Item 1 of the Schedule 13D is hereby amended and
supplemented as follows:
Effective May 2, 1997, the name of the Company was
changed from Schuller Corporation to Johns Manville Corporation.
As previously reported, in early 1996, the Company's name was
changed from Manville Corporation to Schuller Corporation.
Item 2. Identity and Background.
- ------ -----------------------
Item 2 of the Schedule 13D is hereby amended and
supplemented as follows:
On June 1, 1996, Mr. Frank Macchiarola, a Trustee of the
Trust, became a director of the Company, and in July 1996, he
became President of St. Francis College in New York. Prior to
that, he was a professor at, and the Dean of, the Benjamin N.
Cardozo School of Law, Yeshiva University. Mr. Louis Klein, a
Trustee of the Trust, serves on the Board of Trustees of The CRM
Funds, a registered open-end management investment company. His
address is 80 Butternut Lane, Stamford, CT 06903.
Item 4. Purpose of Transaction.
- ------ ----------------------
Item 4 of the Schedule 13D is hereby amended and
supplemented as follows:
References to the Trust Agreement are modified and
supplemented by reference to the Amended and Restated Trust
Agreement as described in Item 6.
Item 5. Interest in Securities of the Issuer.
- ------ ------------------------------------
Item 5 of the Schedule 13D is hereby amended and
supplemented as follows:
The Trust has sole power to dispose or to direct the
disposition of and to vote or to direct the voting of 128,527,110
shares of the Common Stock. The Trustees of the Trust share the
power to dispose or direct the disposition of or to vote or to
direct the voting of the 128,527,110 shares held by the Trust.
Such 128,527,110 shares of Common Stock represent
approximately 79.6% of the 161,533,290 shares of Common Stock
outstanding on May 6, 1997 as reported in the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 1997.
Item 6. Contracts, Arrangements, Understandings or Relation-
- ------ ----------------------------------------------------
ships with Respect to Securities of the Issuer.
----------------------------------------------
Item 6 of the Schedule 13D is hereby amended and
supplemented as follows:
The Trust Agreement, as defined in Item 2 of, and
included as Exhibit 2 to, the Schedule 13D filed December 8,
1988, as previously amended, has been amended and restated by the
Eleventh Amendment to the Trust Agreement as the Amended and
Restated Manville Personal Injury Settlement Trust Agreement
dated as of April 29, 1997 (the "Amended and Restated Trust
Agreement") among the Company and the Trustees, a copy of which
is included as Exhibit 1 to this Amendment No. 12 to the Schedule
13D. The Amended and Restated Trust Agreement was approved by
order of the U.S. Bankruptcy Court (S.D.N.Y.) (the "Court") on
April 29, 1997. The majority of the amendments in the Amended
and Restated Trust Agreement reflect amendments previously made
to conform the Trust Agreement to other documents relating to the
Plan of Reorganization of the Company which have been amended,
including the Second Amended and Restated Supplemental Agreement,
the Trust Distribution Process and the Profit-Sharing Exchange
Agreement, and to reflect other updating changes, including the
current composition of the Board of Trustees.
A more substantive change to Section 4.03 of the Trust
Agreement reflects adoption by the Trust of the New York Prudent
Investor Act. In addition, Section 6.13 has been amended to
confirm the jurisdiction of the Court and the U.S. District
Courts for the Eastern and Southern Districts of New York to hear
and resolve any and all matters relating to the powers and
authority of the Trustees.
Item 7. Material to be Filed as Exhibits.
- ------ --------------------------------
Exhibit 1 - Amended and Restated Manville Personal
Injury Settlement Trust Agreement dated as of April 29, 1997
among Schuller Corporation, f/k/a Manville Corporation, and
Robert A. Falise, Louis Klein, Jr., Frank J. Macchiarola and
Christian E. Markey, Jr., as Trustees.
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of such
undersigned's knowledge and belief, each of the undersigned
certifies that the information set forth in this amendment is
true, complete and correct.
Dated: May 13, 1997 MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By: /s/ Robert A. Falise
------------------------------
Robert A. Falise, Chairman
and Managing Trustee
By: /s/ Louis Klein, Jr.
------------------------------
Louis Klein, Jr., Trustee
By: /s/ Frank J. Macchiarola
------------------------------
Frank J. Macchiarola, Trustee
By: /s/ Christian E. Markey, Jr.
------------------------------
Christian E. Markey, Jr., Trustee
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
- -------
1. Amended and Restated Manville Personal Injury
Settlement Trust Agreement dated as of April 29, 1997
among Schuller Corporation, f/k/a Manville Corporation,
and Robert A. Falise, Louis Klein, Jr., Frank J.
Macchiarola and Christian E. Markey, Jr., as Trustees.
<PAGE>
EXHIBIT 1
AMENDED AND RESTATED MANVILLE PERSONAL INJURY
SETTLEMENT TRUST AGREEMENT
Amended and Restated Manville Personal Injury
Settlement Trust Agreement, dated as of April 29, 1997,
among Schuller Corporation, f/k/a Manville Corporation (the
"Company"), as successor to the Trustors (as hereinafter
defined), and Robert A. Falise, Louis Klein, Jr., Frank J.
Macchiarola and Christian E. Markey, Jr., as trustees (such
persons and their successors appointed pursuant hereto, the
"Trustees") and successors to the Original Trustees (as
hereinafter defined).
WHEREAS, Johns-Manville Corporation, Manville
Corporation, Manville Sales Corporation, Manville Canada
Inc., Manville Investment Corporation, Ken-Caryl Ranch
Corporation and SAL Contract & Supply, Inc., (the
"Trustors"), filed petitions for reorganization under
chapter 11 of the Code on August 26, 1982; and
WHEREAS, in order to effectuate the Plan, to provide
for the payment of Trust Claims and to receive the benefits
under the Internal Revenue Code of so providing for certain
of such payments, the Trustors, as trustors, entered into
the Manville Personal Injury Settlement Trust Agreement
dated as of November 28, 1988 (the "Original Trust
Agreement") with Donald M. Blinken, Daniel Fogel, Francis H.
Hare, Jr., Christian E. Markey, Jr., and John C. Sawhill, as
trustees, (the "Original Trustees"), and transferred the
Trust Estate to the Trust pursuant thereto; and
WHEREAS, the Original Trust Agreement has previously
been amended by an Amendment to Trust Agreement dated as of
February 14, 1989, a Second Amendment dated as of November
15, 1990, a Third Amendment dated as of December 6, 1991, a
Fourth Amendment dated as of August 6, 1992, a Fifth
Amendment dated as of December 9, 1992, a Sixth Amendment
dated as of November 5, 1993, a Seventh Amendment dated as
of September 22, 1994, an Eight Amendment dated as of August
15, 1995, a Ninth Amendment dated as of March 27, 1996, and
a Tenth Amendment dated as of November 21, 1995; and
WHEREAS, the Company and the Trustees wish to amend
and restate the Original Trust Agreement, as previously
amended and as further amended pursuant hereto, in the form
set forth hereinbelow;
NOW, THEREFORE, THIS TRUST AGREEMENT WITNESSETH AND
IT IS HEREBY DECLARED as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all
capitalized terms used herein and not otherwise defined have
the meanings assigned to them in Exhibit A hereto.
ARTICLE II
DECLARATION OF TRUST
2.01 NAME. The Trust shall be known as "Manville
Personal Injury Settlement Trust", and the Trustees may
transact the business and affairs of the Trust in that name.
2.02 PURPOSES. The purposes of the Trust are:
(i) to use the assets in the Trust Estate to
deliver fair, adequate and equitable compensation to
bona fide Beneficiaries, whether presently known or
unknown, without overpaying or underpaying any claims
and with settlement to be preferred over arbitration,
arbitration to be preferred over resort to the tort
system, and fair and efficient resolution of claims to
be preferred over all else;
(ii) to enhance and preserve the Trust Estate;
(iii) otherwise to carry out the provisions of
this Trust Agreement, the Supplemental Agreement, as
amended by the Second Amended and Restated Supplemental
Agreement, Annex D to this Agreement, the PD
Supplemental Agreement and any other agreements into
which the Trustees have entered or will enter in
connection with the Plan.
In furtherance of the foregoing purposes, the Trustees shall
be responsible for supervising and administering the Claims
Resolution Facility, unless such facility is an Industry-
Wide Claims Handling Facility, in which event the Trustees
shall be responsible for monitoring and supervising the
Trust's participation in such facility.
2.03 TRANSFER OF ASSETS. The Trustors transferred
and assigned to the Trust the assets listed in Part A of
Schedule I hereto, having theretofore obtained all consents
and taken all other steps prerequisite to such transfer and
assignment. The Company, as the successor of the Trustors
for this purpose, shall take any and all steps as may be
further necessary to effectuate fully the transfer and
assignment of such assets to the Trust. Upon execution and
delivery by the Original Trustees of the Supplemental
Agreement, as amended by the Second Amended and Restated
Supplemental Agreement, the Trust in addition received or
became entitled to receive from the Company the assets
listed in Parts B and C of Schedule I hereto in accordance
with the terms of the Supplemental Agreement, as amended by
the Second Amended and Restated Supplemental Agreement.
2.04 ACCEPTANCE OF ASSETS AND ASSUMPTION OF
LIABILITIES. In connection with and in furtherance of its
purposes and subject to Section 5.04, the Original Trustees
hereby expressly accepted the transfer and assignment to the
Trust of the assets listed on Schedule I hereto and the
Trust hereby further expressly assumes or undertakes all
Trust Claims and all Indemnification Liabilities. Except as
otherwise provided in the Claims Resolution Procedures as
such procedures are amended by the Trust Distribution
Process, Annex C to this Agreement, and the Co-Defendants'
Procedures as such procedures are amended by the Trust
Distribution Process, the Trust shall have all defenses,
cross claims, and rights to liens, offsets and recoupment
that the Company and other Debtors would have had under
applicable nonbankruptcy law with respect to the Trust
Claims and Indemnification Liabilities assumed by the Trust.
Except as amended by the Trust Distribution Process, (a) the
Trust shall not have any obligation with respect to any
warranty, guarantee or indemnification liability or
obligation constituting an AH Claim or an Other Asbestos
Obligation or an Indemnification Liability under Clause (b)
of the definition thereof, unless (i) the Trust is notified
of the assertion of the underlying claim giving rise to the
warranty, guarantee or indemnification liability or
obligation against the Person entitled to the benefits of
such warranty, guarantee or indemnification promptly after
the later of the Consummation Date and the date on which
such Person becomes aware of the underlying claim, (ii)
following the Consummation Date the Trust is provided the
opportunity to conduct the defense of such claim and (iii)
neither any of the Trustors nor such other Person settles
such claim without the consent of the Trust and (b) the
Trust shall not pay any contribution liability or obligation
constituting an AH Claim or an Other Asbestos Obligation,
other than an Indemnity Claim or a Contribution Claim, or
constituting an Indemnification Liability unless and until
the aggregate liability of the Trust in respect of the claim
underlying such contribution liability or obligation,
whether directly or through contribution, has been
Liquidated. Following assertion of any claim against any
past or present officer, director or employee of any of the
Trustors that gives rise to a Trust Claim by such officer,
director or employee for indemnification from the Trust or
of any claim that gives rise to an Indemnification
Liability, the Trust shall assume and conduct the defense of
the underlying claim, PROVIDED that the conditions set forth
in Clauses (a)(i) and (iii) of this Section 2.04 are
satisfied.
ARTICLE III
POWERS; TRUST ADMINISTRATION
3.01 POWERS. (a) Subject to the limitations set
forth in this Trust Agreement, the Trustees shall have the
power to take any and all such actions as in the judgment of
the Trustees are necessary or convenient to effectuate the
purposes of the Trust, including, without limitation, each
power expressly granted in Subsection (b) below and any
power reasonably incidental thereto.
(b) Without limiting the generality of Subsection
(a) above, the Trustees shall have the power to:
(i) receive and hold the Trust Estate, and
invest and re-invest monies, other assets and proceeds
held from time to time therein;
(ii) supervise and administer the Claims
Resolution Facility, or if such facility is an Industry-
Wide Claims Handling Facility, monitor and supervise
the Trust's participation in such facility, or create,
own or acquire an ownership interest in a claims
resolution facility as described in Clause (xvii) below
and supervise and administer such claims resolution
facility or monitor and supervise the Trust's
participation therein;
(iii) pay Indemnification Liabilities and other
Trust Expenses and Trust Claims either Liquidated in
accordance with the Claims Resolution Facility or the
Co-Defendants' Procedures, as such procedures are
amended by the Trust Distribution Process, as
applicable, or otherwise Allowed;
(iv) borrow money and issue notes and other
evidences of indebtedness (which notes or other
evidences of indebtedness may exonerate the Trustees
from personal liability with respect thereto) in the
ordinary course of operations for payment of
Indemnification Liabilities and other Trust Expenses
and Trust Claims and secure any of its obligations by
mortgage, pledge or other encumbrance of all or any of
its property or income;
(v) enter into the Supplemental Agreement, as
amended by the Second Amended and Restated Supplemental
Agreement, the PD Supplemental Agreement and any other
agreements required by the Plan and perform all of the
Trust's obligations thereunder;
(vi) exercise all rights and benefits available
to the Trust with respect to the Insurance Coverage,
subject to the provisions of the Supplemental
Agreement, as amended by the Second Amended and
Restated Supplemental Agreement;
(vii) exercise all rights and benefits accruing to
the Trust as owner of any shares the Trust may own from
time to time of Manville Common Stock, subject to the
provisions of the Supplemental Agreement, as amended by
the Second Amended and Restated Supplemental Agreement,
and any other securities or instruments of the Company
or of any other issuer;
(viii) take all actions contemplated hereunder
with respect to the funds created hereby and, subject
to Section 4.01(d), establish such funds, reserves and
accounts within the Trust Estate, in addition to the
funds created hereby, as deemed by the Trustees to be
useful in carrying out the purposes of the Trust;
(ix) sue and be sued and participate, as a party
or otherwise, in any judicial, administrative,
arbitrative or other proceeding, including, without
limitation, in connection with the Claims Resolution
Facility;
(x) amend the Bylaws;
(xi) appoint such officers, including a Managing
Trustee, and hire such employees and engage such legal,
financial, investment and other advisors, managers and
agents as, in the judgment of the Trustees, the
business of the Trust requires, and pay the Trustees
(subject to Section 5.05) and such officers (subject to
Section 5.05 in the case of the Managing Trustee),
employees, advisors, managers and agents reasonable
compensation;
(xii) enter into such other arrangements with
third parties as are deemed by the Trustees to be
useful in carrying out the purposes of the Trust
(possibly including, without limitation, engaging a
Person having trust powers to act as paying agent,
depositary, custodian, or trustee with respect to
funds, reserves or accounts created hereby or
established pursuant hereto);
(xiii) indemnify (and purchase insurance
indemnifying or in lieu of or in addition to such
insurance, escrow monies out of the assets of the Trust
to establish self-insurance funds indemnifying) (A) the
Trustees and officers, employees, agents and
representatives of the Trust to the fullest extent that
a corporation organized under Delaware law is from time
to time entitled to indemnify its directors, officers,
employees, agents and representatives, and (B)
financial advisors, independent auditors, and
investment bankers engaged by the Trust where such
indemnification is determined by the Trustees to be
necessary or appropriate to serve the objectives of the
Trust, which indemnification and insurance may also
cover, without limitation, claims based on occurrences
during the period from January 9, 1987 to the
Consummation Date; and without limiting the foregoing,
to establish a segregated security fund of up to
$30,000,000, to be set aside out of the assets of the
Trust and devoted exclusively to securing the
obligations of the Trust to indemnify such of the
Trustees and officers, employees, agents,
representatives, financial advisors, independent
auditors, and investment bankers of the Trust as may be
specified in the instrument or instruments governing
such fund or in amendments thereto;
(xiv) enter into any contract or otherwise engage
in any transaction with any Trustee or any Person
affiliated with any Trustee PROVIDED that such contract
or such transaction is approved by the majority vote of
not less than 80% of the Trustees none of whom is a
party to or otherwise involved in, or has an interest
in, such contract or transaction, it being understood
that to the extent permitted by law the usual rules
prohibiting fiduciaries from dealing with themselves as
individuals or from dealing with respect to any matter
in which they have a personal interest shall not apply
to the Trustees;
(xv) delegate any or all of the discretionary
power and authority herein conferred at any time with
respect to all or any portion of the Trust Estate to
any one or more reputable individuals or recognized
institutional advisers or investment managers without
liability for any action taken or omission made because
of any such delegation;
(xvi) consult with the Company at such times and
with respect to such issues relating to the conduct of
the Trust as the Trustees consider desirable;
(xvii) at any time after the second anniversary
of the Consummation Date, withdraw from the Claims
Resolution Facility and create, enter into, participate
with others in or merge with, any other claims
resolution facility (including, without limitation, a
claims resolution facility that handles personal injury
and/or property damage claims related to asbestos
brought against one or more Persons other than the
Trust, in addition to handling Trust Claims for the
Trust) or an Industry-Wide Claims Handling Facility, if
the Trustees shall determine by unanimous vote, after
consultation with the Selected Counsel for the
Beneficiaries and any other interested parties whom the
Trustees desire to consult, that the purposes and
substantive procedures of such other claims resolution
facility or such Industry-Wide Claims Handling Facility
are consistent with those of the Claims Resolution
Facility, which determination by the Trustees shall be
final, binding and non-appealable;
(xviii) make any investment or carry on any
activity permitted by Section 4.03 hereof,
(xix) serve as a director of any corporation
(including, without limitation, the Company or any of
its Affiliates) in which the Trust directly or
indirectly holds an equity or debt investment (a
"Portfolio Company"), including, without limitation,
service on any committees or subcommittees of the board
of directors of any such Portfolio Company; provided
that, commencing on October 1, 1993, any Trustee who
also serves concurrently as a director of any Portfolio
Company at the request of the Trust (a "Trustee
Director") will instruct such Portfolio Company to pay
directly to the Trust all meeting fees and annual
retainers which such Trustee-Director is entitled to
receive in his or her capacity as a director or board
committee member of such Portfolio Company, so long as
such Trustee remains both a Trustee and a director of
such Portfolio Company. For the foregoing purposes,
any person who is serving concurrently as a Trustee of
the Trust and a director of Schuller Corporation or any
majority-owned subsidiary of Schuller Corporation
(each, a "Manville Company") will, so long as the Trust
continues to own directly or indirectly more than 50%
of the outstanding common stock of Schuller
Corporation, be conclusively presumed to be serving as
a director of such Manville Company at the request of
the Trust.
(c) The Trustees shall not have the power to
Guarantee any Debt of other Persons.
3.02 ADMINISTRATION. (a) The Trustees have
adopted the Bylaws (Annex A to this Trust Agreement) and may
make such amendments thereto as the Trustees may approve by
resolution adopted by all of the Trustees or by written
instrument signed by all of the Trustees. To the extent not
inconsistent with the terms of this Trust Agreement, the
Bylaws govern the affairs of the Trust.
(b) The accounting period for the Trust shall be
the Fiscal Year.
(c) The Trustees shall timely file, or shall
deliver to the Company such documents and other information
as the Company may reasonably require in order to permit it
to timely file, such income tax and other returns and
statements as are required to comply with applicable
provisions of the Internal Revenue Code and of any state law
and the regulations promulgated thereunder.
(d) (i) The Trustees shall cause to be prepared
and filed with the Court, as soon as available and in
any event within 60 days following the end of each
Fiscal Year, an annual report containing financial
statements of the Trust (including, without limitation,
a balance sheet of the Trust as of the end of such
Fiscal Year and a statement of operations for such
Fiscal Year) audited by a nationally recognized firm of
Independent public accountants selected by the Trustees
and certified by such firm as to fairness of
presentation and consistency.
(ii) The Trustees shall cause to be prepared and
filed with the Court as soon as available and in any
event within 30 days following the end of each of the
first three quarters of each Fiscal Year, a quarterly
report containing financial statements of the Trust
(including, without limitation, an unaudited balance
sheet of the Trust as of the end of such quarter and a
statement of operations for such quarter), certified
(subject to normal year-end adjustments) as to the
fairness of presentation and consistency by an
appropriate officer of the Trust.
(iii) Simultaneously with delivery of each set of
financial statements referred to in Subsections (i) and
(ii) above, the Trustees shall cause to be prepared and
filed with the Court a report containing a summary (in
reasonable detail) of the following information with
respect to the period covered by the financial
statement:
(A) if the Trustees are not participating in
an Industry-Wide Claims Handling Facility, the
number of Trust Claims Liquidated and the average
amount per Trust Claim paid or payable;
(B) if the Trustees are participating in an
Industry-Wide Claims Handling Facility or a claims
resolution facility that handles claims against
other Persons in addition to Trust claims, the
information called for by Clause (A) above,
modified as necessary to account for the degree
and manner in which information is supplied to the
Trustees by such facility with respect to
liquidation and payment of Trust Claims;
(C) the amount of investment income earned
by the Trust; and
(D) the amount of Trust Expenses incurred by
the Trust.
(e) The Trustees shall cause to be prepared as
soon as practicable prior to the commencement of each Fiscal
Year a budget and cash flow projections covering such Fiscal
Year and the succeeding four Fiscal Years.
ARTICLE IV
FUNDS, PAYMENTS AND INVESTMENTS
4.01 FUNDS. (a) There is hereby created within
the Trust Estate the "Basic Trust Fund" consisting of those
assets listed in Part A of Schedule I hereto.
(b) There is hereby created within the Trust
Estate the "Stock Proceeds Fund" to consist of all proceeds
from the sale or other disposition (other than by conversion
of Series A Preferred Stock) by the Trustees of any of the
assets listed in Part C of Schedule I hereto (including
Manville Common Stock issued on conversion of Series A
Preferred Stock).
(c) Subject to Section 2.02 hereof, the Trustees
may, from time to time, create additional funds, reserves
and accounts within the Trust Estate as they may deem
necessary, prudent or useful in order to provide for the
payment of Trust Expenses and Trust Claims and may, with
respect to any such fund, reserve or account, restrict the
use of monies therein; PROVIDED that the establishment and
use of such funds, reserves and accounts shall not in any
event result in any transfer, direct or indirect, of assets
between the Basic Trust Fund and any other fund, reserve or
account or between the Stock Proceeds Fund and any other
fund, reserve or account.
(d) Any investment earnings received with respect
to, or other proceeds of, any asset held within any fund
created hereby or pursuant hereto shall be credited to such
fund (except for investment earnings, including capital
gains, on the Stock Proceeds Fund, which shall be credited
to the general fund of the Trust Estate).
4.02 PAYMENTS. Payments out of the Trust Estate,
other than pursuant to Section 2.04(a) of the Supplemental
Agreement, as amended by the Second Amended and Restated
Supplemental Agreement, must be made from the Basic Trust
Fund, to the extent that the funds therein are available,
until such fund has been depleted.
4.03 INVESTMENTS. The Trustees shall have the
power to invest or reinvest in such securities (including,
without limitation, interests in any entity registered as an
investment company under the Investment Company Act of
1940), instruments or other property, real or personal,
within or without the United States, and to acquire and hold
property for such periods as they may determine, whether or
not the same be income-producing, all in accordance with the
New York Prudent Investor Act (N.Y.E.P.T.L. 11.-2.3) as it
may be amended or superseded from time to time (the "Prudent
Investor Act"). Notwithstanding anything to the contrary
set forth in this Trust Agreement or in the Prudent Investor
Act, the Trust may acquire and hold any securities or
instruments of, and make any other investments in, (i) the
Company and/or any of its Affiliates and (ii) any entity
created with the approval of the Trustees to conduct any
activities permitted by this Trust Agreement (including,
without limitation, a claims resolution facility as
described in Section 3.01(b)(xvii)).
4.04 SOURCE OF PAYMENTS. All Trust Expenses and
payments in respect of Trust Claims shall be payable solely
out of the Trust Estate. Neither the Trustees nor any
officer, agent or employee of the Trust nor any of the
Trustors nor any of their Subsidiaries nor any director,
officer, employee or agent of any of the Trustors or any of
their Subsidiaries shall be liable for the payment of any
Trust Expense or Trust Claim or other liability of the
Trust, and no Person shall look to any of the foregoing
Persons for payment of any such expense or liability.
ARTICLE V
TRUSTEES
5.01 NUMBER. Except during the period
contemplated by Section 5.03(b), there shall be no fewer
than four Trustees and no more than six Trustees.
5.02 TERM OF SERVICE. (a) The Trustees shall
serve until death or resignation pursuant to Subsection (b)
below or removal pursuant to Subsection (c) below, subject
to mandatory retirement at age 70 unless (and for so long
as) it is waived by a majority vote of the remaining
Trustees.
(b) Any Trustee may resign at any time by written
notice to each of the remaining Trustees and the Company.
Such notice shall specify a date when such resignation shall
take effect, which shall not be less than 90 days after the
date such notice is given unless (and only for so long as)
waived by a majority of the remaining Trustees.
(c) Any Trustee may be removed for cause (which
shall be deemed to include any failure to comply with
Section 5.09(a) or (b) by the majority vote of the other
Trustees, such removal to take effect at such time as the
Trustees shall by such vote determine.
5.03 APPOINTMENT OF SUCCESSOR TRUSTEE. (a) In the
event of a vacancy in the position of a Trustee, the vacancy
shall be filled by unanimous vote of the remaining Trustees,
who shall take into account the relevant provisions hereof,
consult with the Selected Counsel for the Beneficiaries and
refrain from making any appointment which may result in the
appearance of impropriety.
(b) If the Trustees are unable to appoint a
successor Trustee pursuant to Subsection (a) above who
accepts such an appointment in writing within 90 days after
the occurrence of the vacancy in the position of a Trustee
and after notice to the Company and publication of notice in
the national edition of The Wall Street Journal or The New
York Times, the Trustees shall apply to the Court, which
shall appoint a successor Trustee or successor Trustees.
(c) Immediately upon the appointment of any
successor Trustee, all rights, titles, duties, powers and
authority of the predecessor Trustee hereunder shall be
vested in and undertaken by the successor Trustee without
any further act. No successor Trustee shall be liable
personally for any act or omission of his predecessor.
5.04 LIABILITY OF TRUSTEES, OFFICERS AND
EMPLOYEES. No Trustee, officer or employee of the Trust
shall be liable to the Trust, any Beneficiary or any other
Person except for his own gross negligence or willful
misconduct. No Trustee, officer or employee of the Trust
shall be liable for any act or omission of any other
officer, agent or employee of the Trust unless the Trustee,
officer or employee acted with gross negligence or willful
misconduct in the selection or retention of such officer,
agent or employee.
5.05 COMPENSATION AND EXPENSES OF TRUSTEES. (a)
Each of the Trustees shall receive compensation for his or
her services as Trustee in the amount of $30,000 per annum
(as increased in the case of Trustee-Directors in the manner
provided in the next sentence) plus $1,000 per diem for each
meeting of the Trustees or any committee or subcommittee
thereof attended by such Trustee or for special duties
performed by such Trustee on behalf of the Trust, and $1,000
for each day of transcontinental travel in connection with
attendance at any such meeting or performance of any such
special duties. Each Trustee-Director shall receive from
the Trust the per diem and travel allowances referred to in
the immediately preceding sentence for such Trustee-
Director's attendance at each board, committee and
subcommittee meeting of each Portfolio Company of which he
or she serves as a director at the request of the Trust; and
commencing October 1, 1993 the annual retainer amount
referred to in the immediately preceding sentence shall be
increased in the case of a Trustee-Director by $18,750 for
each Portfolio Company directorship, and by $1,875 for each
Portfolio Company committee chairmanship, held by such
Trustee-Director at the request of the Trust. In addition,
the Managing Trustee (if one is elected pursuant to the
Bylaws) shall receive, for his or her part-time services on
behalf of the Trust, the sum of $1,500 for each day on which
the services rendered by him or her in such capacity occupy
a majority of his or her time. All compensation amounts
referred to above shall be increased or decreased annually
after November 28, 1988 (except the incremental annual
amounts payable to Trustee-Directors in respect of each
Portfolio Company directorship and committee chairmanship,
which amounts shall be increased or decreased annually after
October 1, 1993) at the rate of the Consumer Price Index for
urban wage earners and clerical workers (U.S. City Average)
unadjusted for seasonal variation, published by the Bureau
of Labor Statistics of the United States Department of
Labor, or otherwise by the Trustees with the approval of the
Court. In addition to and notwithstanding the foregoing,
any such compensation amounts may be increased by the
Trustees to such greater amounts as the Trustees may
reasonably determine from time to time to be appropriate to
provide compensation to the Trustees for their services as
Trustees and for their service as directors and committee
chairmen of portfolio companies at levels comparable to the
compensation paid to directors of major U.S. industrial
corporations.
(b) All out-of-pocket costs and expenses incurred
by the Trustees in connection with the performance of their
duties hereunder (including, without limitation, the
performance by Trustee-Directors of their duties as
directors and committee and subcommittee members of
Portfolio Companies) will be promptly reimbursed to the
Trustees by the Trust.
5.06 INDEMNIFICATION OF TRUSTEES, OFFICERS AND
EMPLOYEES. The Trustees, officers and employees of the
Trust shall be indemnified by the Trust to the fullest
extent that a corporation organized under Delaware law is
from time to time entitled to indemnify its directors
against any and all liabilities, expenses, claims, damages
or losses incurred by them in the performance of their
duties hereunder, except any such liability, expense, claim,
damage or loss as to which they are liable under Section
5.04. Without limiting the generality of the foregoing, any
person who is serving or has served at the request of the
Trust as a director of any Portfolio Company while also
serving as a Trustee of the Trust shall be indemnified by
the Trust in the same manner as he or she is indemnified as
a Trustee, to the fullest extent that a corporation
organized under Delaware law is from time to time entitled
to indemnify a person who is or was serving at the request
of such corporation as a director of another corporation,
against any and all liabilities, expenses, claims, damages
or losses incurred by such person as a result of or in
connection with such person's service, actions, omissions or
capacity as a director of such Portfolio Company (including,
without limitation, as a member of a board committee or
subcommittee of such Portfolio Company) while such person
was serving both as a Trustee and as a director of such
Portfolio Company, except for any such liability, expense,
claim, damage or loss as to which such person is liable
under Section 5.04.
5.07 TRUSTEES' LIEN. The Trustees shall have a
prior lien upon the Trust Estate to secure the payment of
any amounts payable to them pursuant to Section 5.05 or
5.06.
5.08 TRUSTEES' EMPLOYMENT OF EXPERTS. The
Trustees may, but shall not be required to, consult with
counsel, accountants, appraisers and other parties deemed by
the Trustees to be qualified as experts on the matters
submitted to them (regardless of whether any such party is a
Related Party of any Trustee or is otherwise affiliated with
any of the Trustees in any manner, except as otherwise
expressly provided in this Trust Agreement or the
Supplemental Agreement, as amended by the Second Amended and
Restated Supplemental Agreement), and the opinion of any
such parties on any matters submitted to them by the
Trustees shall be full and complete authorization and
protection in respect of any action taken or not taken by
the Trustees hereunder in good faith and in accordance with
the written opinion of any such party.
5.09 ADDITIONAL QUALIFICATIONS. (a) No Trustee or
Related Party of a Trustee shall represent or shall have
represented any of the Trustors or any Person who asserts or
has asserted a Trust Claim.
(b) No Trustee shall own any securities of the
Company or any of its Affiliates or have any other financial
interest, direct or indirect, in the Company or any of its
Affiliates.
(c) If there has been a violation of Subsection
(a) or (b) above, the Trustee involved is subject to removal
pursuant to Section 5.02(c) above.
ARTICLE VI
GENERAL PROVISIONS
6.01 IRREVOCABILITY. The Trust is irrevocable.
6.02 TERMINATION. (a) The Trust shall
automatically terminate on the date (the "Termination Date")
90 days after the first to occur of the following events:
(i) all Trust Claims duly filed with the Trust
have been Liquidated and paid in full, and twelve
consecutive months have elapsed during which no Trust
Claim has been filed with the Trust;
(ii) (x) in the judgment of 80% of the Trustees
after consultation with Selected Counsel for the
Beneficiaries, a DE MINIMIS number of Trust Claims are
then pending and new Trust Claims are being filed at a
DE MINIMIS rate and (y) the Company and the Legal
Representative shall have consented in writing to such
dissolution;
(iii) the Company procures from one or more
responsible insurance companies acceptable to the
Trustees one or more irrevocable liability insurance
policies covering all Trust Claims;
(iv) 21 years less 91 days pass after the death
of the last survivor of all of the descendants of
Joseph P. Kennedy living on the date hereof; or
(v) the Company and the Trustees after
consultation with Selected Counsel for the
Beneficiaries and with the written consent of the Legal
Representative, agree in writing to the termination of
the Trust.
(b) On the Termination Date, all Trust Claims
shall be extinguished, the Trust shall be dissolved, the
Company shall assume all of the Trust's liabilities other
than Trust Claims and the injunction provided for in
Paragraph 9.2.A.3 of the Plan shall be modified in
accordance with the order issuing such injunction, and all
of the Trust's assets shall, except as provided in
Subsections (c) and (d) below, be transferred and assigned
to the Company or any designees of the Company, and the
Trustees and the Company agree to execute and deliver, or
cause to be executed and delivered, such agreements,
instruments and other documents as may be necessary or
advisable to implement the foregoing.
(c) If any of the events referred to in Section
6.02(a) of the PD Trust Agreement shall have occurred prior
to the Termination Date, then as soon as practicable after
the occurrence of any of the events referred to in Section
6.02(a) hereof, but in no event later than the Termination
Date, all monies (not including unused Insurance Coverage in
place) remaining in the Basic Trust Fund shall be applied to
such charitable purposes as the Trustees in their reasonable
discretion shall determine, which charitable purposes, if
practicable, shall be related to the treatment of asbestos-
caused disorders.
6.03 AMENDMENTS. (a) The Company (as successor to
the Trustors for this purpose) and the Trustees (by vote of
80% of the Trustees) may, after consultation with Selected
Counsel for the Beneficiaries, modify, supplement or amend
this Trust Agreement (other than Sections 2.02, 4.01 (a),
the proviso to 4.01(c), 4.02, 6.01, 6.02(c), and 6.03(a)) in
any respect, such modification, supplement or amendment to
be evidenced in writing.
(b) The Company and the Trust shall each promptly
notify the other and Selected Counsel for the Beneficiaries
of any changes in generally accepted accounting principles
known to it which are likely to materially affect the size
or timing of payments from the Company to the Trust under
this Agreement and the Annexes hereto. Promptly after
delivery of such notice, the Company and the Trust shall
consult with each other and Selected Counsel for the
Beneficiaries to determine whether it is desirable to amend
this Agreement or any of the Annexes hereto in any manner in
response to such changes. Neither party shall be legally
bound by virtue of this Section 6.03(b) to agree to, or to
negotiate with respect to, any amendments proposed by the
other.
6.04 COOPERATION. The Company and the Trust shall
each cooperate to the extent reasonably requested by the
other in the handling of Trust Claims and generally in the
operation of the Trust for the purposes set forth herein.
6.05 SEVERABILITY. Should any provision in this
Trust Agreement be determined to be unenforceable, such
determination shall in no way limit or affect the
enforceability and operative effect of any and all other
provisions of this Trust Agreement.
6.06 NOTICES. Notices to Persons asserting Trust
Claims shall be given at the address of such Person, or,
where applicable, such Person's legal representative, in
each case as provided on such Person's Proof of Claim (as
defined in Annex B hereto). Any notices or other
communications required or permitted hereunder shall be in
writing and delivered at the addresses designated below, or
sent by telecopy pursuant to the instructions listed below,
or mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows, or to such
other address or addresses as may hereafter be furnished by
the Company to the Trustees or by the Trustees to the
Company in compliance with the terms hereof.
To the Trust or the Trustees:
Manville Personal Injury Settlement Trust
8260 Willow Oaks Corporate Drive, Suite 600
P.O. Box 10415
Fairfax, Virginia 22031
Attention: David T. Austern, General Counsel
Telecopy No.: (703) 205-6248
with a copy (which shall not constitute delivery of notice)
to:
Donovan Leisure Newton & Irvine
30 Rockefeller Plaza
New York, New York 10112
Attention: John J. McCann
Telecopy No.: (212) 632-3315
To the Company:
Schuller Corporation
717 Seventeenth Street
Denver, Colorado 80202
Attention: Richard B. Von Wald,
Senior Vice President and General
Counsel
Telecopy No.: (303) 978-4842
with a copy (which shall not constitute delivery of notice)
to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Stephen H. Case
Telecopy No.: (212) 450-5565
All such notices and communications shall be
effective when delivered at the designated addresses or when
the telecopy communication is received at the designated
addresses and confirmed by the recipient by return telecopy
in conformity with the provisions hereof
6.07 COUNTERPARTS. This Trust Agreement may be
executed in any number of counterparts, each of which shall
constitute an original, and such counterparts shall together
constitute but one and the same instrument.
6.08 SUCCESSORS AND ASSIGNS. The provisions of
this Trust Agreement shall be binding upon and inure to the
benefit of the Trustors, the Trust and the Trustees and
their respective successors and assigns, except that neither
any of the Trustors nor the Trust nor any Trustee may assign
or otherwise transfer any of its or his rights or
obligations under this Trust Agreement except, in the case
of the Trust and the Trustees, as contemplated by Section
6.02.
6.09 ENTIRE AGREEMENT; NO WAIVER. The entire
agreement of the parties relating to the subject matter of
this Trust Agreement is contained herein, and this Trust
Agreement supersedes any prior oral or written agreements
concerning the subject matter hereof. No failure to
exercise or delay in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or
of any other right, power or privilege. The rights and
remedies herein provided are cumulative and are not
exclusive of rights under law or in equity.
6.10 HEADINGS. The headings used in this Trust
Agreement are inserted for convenience only and neither
constitute a portion of this Trust Agreement nor in any
manner affect the construction of the provisions of this
Trust Agreement.
6.11 GOVERNING LAW. This Trust Agreement shall be
governed by, administered under and construed in accordance
with, the laws of the State of New York.
6.12 DISPUTE RESOLUTION. Any disputes which arise
under this Agreement shall be resolved by the Court pursuant
to Section 10.1.B of the Plan.
6.13 ENFORCEMENT AND ADMINISTRATION. The
provisions of this Agreement and each Annex hereto shall be
enforced and administered by the Court pursuant to Section
10.1.G of the Plan. Notwithstanding anything to the
contrary contained herein or any state law to the contrary,
the United States Bankruptcy Court for the Southern District
of New York shall have exclusive jurisdiction to hear and
resolve any and all matters relating to the powers and
authority of the Trustees hereunder, any actions or
omissions by them, the operations or activities of the Trust
and the interpretation of this Agreement.
6.14 SETTLEMENT OF TRUSTEES' ACCOUNTS.
Notwithstanding any state law to the contrary, the Court
shall have exclusive jurisdiction over the settlement of the
accounts of the Trustees, whether such account is rendered
by the Trustees themselves or is sought by any Beneficiary
or other Person. The Trustees shall render successive
accounts covering periods of not more than five years,
commencing on the Consummation Date or the last day of the
prior accounting period, as the case may be, except that an
account shall be rendered for the period ending on the date
of the death, resignation, removal or retirement of any
Trustee. Upon the acceptance of any such account by the
court after hearing on notice to the Company, Selected
Counsel for the Beneficiaries and such other parties as the
Court shall designate, the Trustees shall be discharged from
any further liability or responsibility to any Beneficiary
or other Person as to all matters embraced in such account.
6.15 NO BOND REQUIRED. Notwithstanding any state
law to the contrary, each Trustee (including any successor
Trustee) shall be exempt from giving any bond or other
security in any jurisdiction.
6.16 APPOINTMENT OF CLERK AS AGENT FOR SERVICE OF
PROCESS. Each of the Trustees hereby designates and
appoints the Clerk of the Court (the "Clerk") as his agent
upon whom process against such Trustee may be served in any
action or proceeding under Section 6.12, 6.13 or 6.14 of
this Agreement or as to which the Court has otherwise
retained jurisdiction pursuant to the Plan. The Clerk shall
forthwith mail a copy of any such process served upon him to
such Trustee at the address to which notices to the Trustee
shall be sent pursuant to Section 6.06 of this Agreement.
Successor Trustees, by acceptance of their appointment as
such, shall be deemed to have designated and appointed the
Clerk in like manner.
IN WITNESS WHEREOF, the Company, as successor to the
Trustors, has caused this Agreement to be executed by a duly
authorized officer and the Trustees have each executed this
Agreement, all as of the day and year first above written.
SCHULLER CORPORATION
By: /s/ Richard B. Von Wald
-------------------------------
Name:
Title: Executive Vice President
and General Counsel
TRUSTEES
/s/ Robert A. Falise , as Trustee
------------------------
Name: Robert A. Falise
/s/ Louis Klein, Jr. , as Trustee
------------------------
Name: Louis Klein, Jr.
/s/ Frank J. Macchiarola , as Trustee
------------------------
Name: Frank J. Macchiarola
/s/ Christian E. Markey, Jr., as Trustee
--------------------------
Name: Christian E. Markey, Jr.
<PAGE>
EXHIBIT A
TO AMENDED AND RESTATED
TRUST AGREEMENT
Glossary of Defined Terms
Incorporated by reference from Exhibit A to form
of Second Amended and Restated Supplemental Agreement,
constituting Exhibit A to the Profit Sharing Exchange
Agreement filed as Exhibit 1 to Amendment No. 10 to the
Schedule 13D.
<PAGE>
SCHEDULE I
TO THE
TRUST AGREEMENT
ASSETS TRANSFERRED TO PERSONAL INJURY TRUST
PART A.
1. Cash receivable under the Travelers Agreement -
$314,415,000 plus accrued interest on $314,415,000 from
January 1, 1986 through the Consummation Date
2. Settlement Agreements providing a Consummation
Date Value of $300,580,000 plus the amount of any reduction
in the amount set forth in item 1 above by reason of any
offset to which the insurance companies that are parties to
the Traveler's Agreement are entitled, In Cash Settlement
Proceeds and Non-Cash Settlement Proceeds, plus Insurance
Coverage provided in the Policies, subject to Article II of
the PD Supplemental Agreement
3. $150 million (previously transferred to the Trust
pursuant to orders of the Bankruptcy Court)
4. The Trust Note
5. Any amount representing interest payable to the
Trust pursuant to Paragraph 5.4 of the Plan and any amounts
payable to the Trust pursuant to Paragraph 5.5 of the Plan
PART B.
1. The Bond and rights to payment under the Second
Bond
2. Rights to payments from the Company under the
Supplemental Agreement
PART C.
1. Manville Common Stock 24,000,000 shares
2. Series A Preferred Stock 7,200,000 shares (100%)
<PAGE>
ANNEX A
TO AMENDED AND RESTATED
TRUST AGREEMENT
MANVILLE PERSONAL INJURY SETTLEMENT TRUST
BYLAWS
PREAMBLE
The Trust has been formed pursuant to the Second
Amended and Restated Plan of Reorganization of Johns-
Manville Corporation, et al., as debtors, dated August 22,
1986 (the "Plan"). Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings set
forth in Article V hereof.
ARTICLE I
OFFICES
SECTION 1. Principal Office. The principal office of
the Manville Personal Injury Settlement Trust (the "Trust")
shall be in such city within the continental United States
as the Trustees of the Trust (the "Trustees") may from time
to time determine.
SECTION 2. Other Offices. The Trust may have such
other offices at such other places within the United States
as the Trustees may from time to time determine to be
necessary for the efficient and cost-effective
administration of the Trust.
ARTICLE II
TRUSTEES
SECTION 1. Control of Property, Business and Affairs.
The property, business and affairs of the Trust shall be
managed by or under the direction of the Trustees.
SECTION 2. Number. As provided in Section 5.01 of the
Trust Agreement, there shall be no fewer than four and no
more than six Trustees (other than the period contemplated
by Section 4(b) of this Article II).
SECTION 3. Term of Service. As provided in 5.02 of
the Trust Agreement:
(a) The Trustees shall serve until death or
resignation pursuant to subsection (b) below or removal
pursuant to subsection (c) below, subject to mandatory
retirement at age 70 unless (and for so long as) it is
waived by a majority vote of the remaining Trustees.
(b) Any Trustee may resign at any time by written
notice to each of the remaining Trustees and the Company.
Such notice shall specify a date when such resignation shall
take effect, which shall not be less than 90 days after the
date such notice is given.
(c) Any Trustee may be removed for cause (which shall
be deemed to include any failure to comply with Section
5.09(a) or (b) of the Trust Agreement) by the majority vote
of the other Trustees, such removal to take effect at such
time as the Trustees shall be such vote determine.
SECTION 4. Vacancies; Appointment of Successor
Trustee. As provided in Section 5.03 of the Trust
Agreement:
(a) In the event of a vacancy in the position of a
Trustee, the vacancy shall be filled by unanimous vote of
the remaining Trustees, who shall take into account the
relevant provisions hereof, consult with the Company and
Selected Counsel for the Beneficiaries and refrain from
making any appointment which may result in the appearance of
impropriety.
(b) If the Trustees are unable to appoint a successor
Trustee pursuant to subsection (a) above who accepts such
appointment in writing within 90 days after the occurrence
of the vacancy in the position of a Trustee and after notice
to the company and publication of notice in the national
edition of The Wall Street Journal of The New York Times,
the Trustees shall apply to the Court, which shall appoint a
successor Trustee or successor Trustees.
(c) Immediately upon the appointment of any successor
Trustee, all rights, titles, duties, powers and authority of
the predecessor Trustee hereunder shall be vested in and
undertaken by the successor Trustee without any further act.
No successor Trustee shall be liable personally for any act
or omission of his predecessor.
SECTION 5. Chairman of the Trustees. The Trustees
shall annually elect from among their number a Chairman, who
shall preside at each meeting of the Trustees. The Chairman
shall receive no compensation for his services in such
capacity.
SECTION 6. Quorum and Manner of Acting. The presence
of four Trustees shall constitute a quorum for the
transaction of business. In the absence of a quorum, a
majority of the Trustees present may adjourn the meeting
from time to time, without notice other than announcement at
the meeting, until a quorum shall be present. The vote, at
a meeting at which a quorum is present, of the greater of
three Trustees and a majority of the Trustees present at
such meeting, shall be an act of the Trustees.
SECTION 7. Regular Meetings. Regular meetings of the
Trustees may be held at such time and place, within or
without the continental United States, as shall from time to
time be determined by the Trustees; provided that the
Trustees shall meet at least once per calendar quarter.
After there has been such determination, and notice thereof
has been once given to each Trustee, regular meetings may be
held without further notice being given.
SECTION 8. Special Meeting; Notice. Special meetings
of the Trustees shall be held whenever called by the
Chairman or by two or more of the Trustees. Notice of each
such meeting shall be mailed by first class mail, postage
prepaid, to each Trustee, addressed to him at his residence
or usual place of business, at least three days before the
date on which the meeting is to be held, or shall be sent to
him at such place by telegraph, cable, radio or wireless, or
be delivered personally or by telephone, not later than the
day before the day on which such meeting is to be held.
Such notice shall state the place, date and hour of the
meeting and the purposes for which it is called. In lieu of
the notice to be given as set forth above, a waiver thereof
in writing, signed by the Trustee or Trustees entitled to
receive such notice, whether before or after the meeting,
shall be deemed equivalent thereto for purposes of this
Section 8. No notice to or waiver by any Trustee with
respect to any special meeting shall be required if such
Trustee shall be present at said meeting.
SECTION 9. Committees. The Trustees may, by
resolution passed by a majority of the Trustees, designate
one or more committees, each committee to consist of one or
more of the Trustees. The Trustees may designate one or
more Trustees as alternate members of any committee, who may
replace any absent or disqualified Trustee at any meeting of
the committee. Any such committee, to the extent provided
in the resolution of the Trustees designating said
committee, shall have and may exercise all the powers and
authority of the Trustees in the management of the business
and affairs of the Trust; but no such committee shall have
the power or authority (a) to amend the By-Laws of the
Trust, or (b) to take any action for which a supermajority
vote of the Trustees is required. Each committee shall keep
regular minutes of its meetings and report the same to the
Board of Trustees when required.
SECTION 10. Action Without a Meeting; Meeting by
Conference Call. Any action required or permitted to be
taken at any meeting of the Trustees, or of any committee
thereof, may be taken without a meeting if all Trustees or
members of the committee, as the case may be, consent
thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Trustees or
committee. The Trustees or members of any committee
designated by the Trustees may participate in a meeting of
the Trustees or any such committee, as the case may be, by
means of conference telephone or similar communication
equipment provided that all persons participating in the
meeting can hear each other. Participation in a meeting
pursuant to this paragraph shall constitute attendance and
presence in person at such meeting.
SECTION 11. Indemnification. The Trust shall
indemnify its Trustees, officers, employees, agents, and
representatives (collectively, the "Indemnitee") in
connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative
or investigative, to which the indemnitee was or is a party
or to which he or she is threatened to be made a party
because of present or past service to the Trust or because
of any activities in such capacity, against any and all
expenses, including attorneys' fees, whenever such fees are
owing, and judgments, fines and amounts paid in settlement
actually and reasonably incurred by the indemnitee in
connection with or in anticipation of any such action, suit
or proceeding, provided that the indemnitee acted in good
faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
ARTICLE III
OFFICERS
SECTION 1. Principal Officers. The principal officers
of the Trust shall be a Managing Trustee, an Executive
Director and such other principal officers, including a
Chief Financial Officer, a Secretary, a Treasurer (or
Secretary-Treasurer) and a Controller, as the Trustees may
in their discretion appoint after determining that such
appointment will promote the efficient and cost-effective
administration of the Trust. One person may hold the
offices and perform the duties of any two or more of said
officers, except that no one person shall hold the offices
and perform the duties of the either Managing Trustee or
Executive Director and Secretary or Secretary-Treasurer.
The Managing Trustee shall be and remain a Trustee during
his or her entire term of office.
SECTION 2. Election, Term of Office and Compensation
of Principal Officers. The principal officers of the Trust
shall be chosen no less frequently than annually by the
Trustees. Each such officer shall hold office until his or
her successor shall have been duly chosen and qualified, or
until his or her earlier death, resignation or removal. The
Trustees shall fix the compensation of each principal
officer.
SECTION 3. Managing Trustee. (a) Subject to the
control and direction of the Trustees, the Managing Trustee,
who shall be elected by the Trustees, shall have
responsibility for the conduct of the affairs of the Trust;
provided, however, that the Managing Trustee shall present
at each meeting of the Trustees a report of the condition of
the Trust and, in addition, report from time to time on such
matters as he believes that the Trustees should be informed
in keeping with the Trustees' overall responsibility for the
affairs of the Trust.
(b) The Managing Trustee may be a part-time or
full-time officer, as the Trustees shall determine.
SECTION 4. Executive Director Subject to the control
and direction of the Trustees, and in constant communication
and cooperation with the Managing Trustee, the Executive
Director shall direct and supervise all day-to-day
operations of the Trust. The Executive Director shall
report to the Managing Trustee as the Trustees'
representative and shall consult with him on a continuing
basis regarding the affairs of the Trust.
SECTION 5. Subordinate Officers. In addition to the
principal officers enumerated in Section I of this Article
III, the Trust may have one or more Assistant Treasurers,
one or more Assistant Secretaries and such other subordinate
officers, agents and employees as the Trustees may deem
necessary for the efficient and cost-effective
administration of the Trust, each of whom shall hold office
for such period, have such authority, perform such duties
and receive such compensation as the Trustees may from time
to time determine. The Trustees may delegate to any
principal officer the power to appoint and to remove any
such subordinate officers, agents or employees and to fix
their compensation.
SECTION 6. Removal. Any officer may be removed with
or without cause, at any time, by resolution adopted by the
Trustees at any regular meeting of the Trustees or at any
special meeting of the Trustees called for that purpose at
which a quorum is present.
SECTION 7. Resignations. Any officer may resign at
any time by giving written notice to the Trustees. The
resignation of any officer shall take effect upon receipt of
notice thereof or at such later time as shall be specified
in such notice; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to
make it effective.
SECTION 8. Vacancies. A vacancy in any office may be
filled for the unexpired portion of the term in the manner
prescribed in these By-Laws for election or appointment to
such office for such term.
SECTION 9. Powers and Duties. Subject to the
foregoing provisions of this Article III, the officers of
the Trust shall have such powers and perform such duties as
may be conferred upon or assigned to them by the Trustees.
ARTICLE IV
AMENDMENTS
SECTION 1. The By-Laws of the Trust, other than
Article II, Section 6, may be amended by the Trustees at any
meeting of the Trustees, provided that notice of the
proposed amendment is contained in the notice of such
meeting or such notice is waived in writing by each Trustee
not attending such meeting.
ARTICLE V
DEFINITIONS
For the purposes of these By-Laws, consistent with
the Glossary annexed as Exhibit A to the Plan, the following
capitalized terms shall be defined as follows:
"Company" means Manville Corporation, a Delaware
corporation.
"Court" means the United States Bankruptcy Court
for the Southern District of New York or such other court as
may be, at such point in time, administering the
reorganization cases under Chapter 11 of the Bankruptcy Code
(11 U.S.C. 101 et seq., as amended) presently being
administered under the caption "In re Johns-Manville
Corporation, et al., Debtors" (Case Nos. 82B 11656 (BRL)
through 82B 11676 (BRL), inclusive).
"Selected Counsel for the Beneficiaries" means
three lawyers to be designated from time to time in writing
addressed to the Trustees, with a copy to the Company, by
the Board of Trustees of the Asbestos Litigation Group.
"Trust Agreement" means the agreement dated as of
November 28, 1988 by and among Johns-Manville Corporation,
et al, as trustors, and the Trustees, as trustees, by which
the Trust was formed pursuant to the Plan.
<PAGE>
ANNEX B
TO THE AMENDED AND RESTATED MANVILLE
PERSONAL INJURY SETTLEMENT TRUST
AGREEMENT
<PAGE>
ANNEX B
TO THE TRUST AGREEMENT
CLAIMS RESOLUTION PROCEDURES
FOR USE BY MANVILLE SETTLEMENT VEHICLE
I. PURPOSE AND DEFINITIONS
A.1 PURPOSE
The Purpose of the Claims Evaluation and Handling System
(hereinafter "the System") is to provide a simple, economical
procedure for obtaining and encouraging the prompt, efficient and
equitable resolution of asbestos-related bodily injury claims
which are based upon a physician's diagnosis of any and all
asbestos-related diseases and conditions while preserving the
rights of the parties access to the tort system, including the
right to jury trial in a forum selected by a claimant pursuant to
the applicable federal or state laws of the jurisdiction
selected, with the only condition precedent to the exercise of
the right to trial by jury being the procedures specified in
Section II.B. The System is to provide compensation based upon
the claimant's injury, as defined by applicable state law, at
least in part caused by exposure to Manville asbestos and/or
asbestos-containing products without proof required of negligence
or any other traditional legal standard of liability, except as
otherwise provided herein. The overriding policy of the Manville
Settlement Vehicle (hereinafter "MSV") shall be to exhaust every
opportunity to settle all cases where diagnosis of an asbestos-
related disease has been made by a physician. In fostering
attempts at settlements, the MSV may consider, in addition to
other factors, the local and national settlement and litigation
experience of claimant's counsel in comparable claims and cases
handled by such counsel as well as Manville's similar experience.
The System is not designed to address every question which may
arise during the claims resolution process. The MSV is free to
enter into settlements on any basis or structure acceptable to
the MSV and claimant in the individual case.
A.2 ORDER OF CLAIMS EVALUATION
In determining eligibility for consideration, claims will
be processed in order of initial filing, whether in a court or
with the MSV, whichever is earlier, on a first-in-first-out basis
except that claims which have been settled with all defendants
except defendants which are petitioners in these bankruptcy
proceedings, may be negotiated separately on a first-in-first-out
basis with representatives of the MSV.
As to all claims filed against Manville prior to the
filing of the Chapter 11 proceedings or claims which would have
been filed against Manville save for the filing of the Chapter 11
procedures, there shall be no artificial limitation on the number
of claims handled in a given period of time. It is the
intention, purpose and policy of the MSV to resolve all such
claims as expeditiously as possible in order to promptly remit to
said claimants an adequate settlement, if agreed upon, as rapidly
as possible. All claims received shall be numbered to give
consideration to these factors.
While MSV may consider the negotiation and implementation
of group settlements consistent with MSV's fiduciary responsi-
bilities, payments called for by such group settlements cannot be
agreed if to do so would prejudice in any substantial way MSV's
obligation to treat claimants on a first-in-first-out basis.
A.3 DEFINITIONS
a. ADMINISTRATIVE COSTS
Administrative Costs shall include all expenses of
mediation and/or arbitration, including required traveling and
other expenses of the mediator and arbitrator, the mediator's and
arbitrator's fees, and other costs taxable in any civil action
and shall be borne by the MSV except where otherwise provided.
b. ADMINISTRATOR
The Administrator is the person or entity chosen by the
trustees responsible for the day-to-day administration of the
mediation and arbitration stages of the System. The duties of
the Administrator shall include: providing for staff and
facilities for the System, maintaining panels of neutral
qualified mediators and arbitrators throughout the country,
notifications to parties, scheduling mediation and arbitration,
compensation of mediators and arbitrators, arranging for
stenographers, interpreters, and investigations if required. The
Administrator shall have no financial interest or relationship
with any claimant or with any other entity which may evolve from
the Bankruptcy Proceeding.
c. ARBITRATION
Arbitration is a process in which each side presents its
case at a hearing to a qualified neutral person for a final
decision which is binding or non-binding, at the claimant's
election.
d. AWARD
The award is the sum of money awarded a claimant by the
arbitrator in settlement of the claim against Manville only, and
which shall be based upon the claimant's legal right to recovery
from Manville. severally and not jointly, based upon the
applicable tort law of the jurisdiction in which an action may be
properly maintained.
e. CLAIMANT
Claimant means any person, or legal representative of a
person, who seeks recovery from the MSV for an alleged asbestos-
related disease or condition of any kind.
f. MEDIATION
Mediation refers to the processes described in Article
II.B.11 and III.C.
g. QUALIFIED ARBITRATOR AND QUALIFIED MEDIATOR
A Qualified Arbitrator and a Qualified Mediator shall be
an impartial, neutral person. No person shall serve as an
arbitrator or mediator if he/she has any financial or personal
interest in the proceedings or, except when otherwise agreed by
the parties, in any asbestos-related matters. Prior to accepting
an appointment the prospective arbitrator or mediator shall
disclose any circumstances likely to create a reasonable
inference of bias or prevent a prompt hearing or conference with
the parties. Qualified Mediators shall be, to the extent
practicable, former judges, administrative law judges,
magistrates, court referees or other persons with experience
serving as mediators. The MSV Trustees shall establish and
maintain separate panels of Qualified Arbitrators and Qualified
Mediators for use as provided herein.
II. PROCEDURES
Subject to the provisions set forth herein, and unless
otherwise agreed by claimant and MSV, any claimant shall, prior
to exercising his remedies under Section III herein, participate
in the procedures set forth in Part B below.
B. CLAIMS EVALUATION AND OFFER EXCHANGE
B.1 Claimant shall provide such information as may be
necessary to permit medical and economic evaluation of the claim.
To insure optimum efficiency and uniformity of treatment such
information shall be provided on MSV's standardized Proof of
Claim as annexed hereto. The mailing of such Proof of Claim
shall toll any applicable statute of limitations until such time
as the claim shall be finally disposed of by settlement or by
institution of proceedings under Section III.F.
B.2 If the issue of exposure to Manville asbestos or
asbestos-containing products is contested by MSV, MSV shall so
advise and provide a statement to claimant specifying the basis
for its conclusion within thirty (30) days of receipt of the
Proof of Claim.
B.3 A claimant shall be relieved of complying with the
procedures contained in this Section II.B. where (i) submission
to the procedures of Section II.B. will delay an established
trial date set by a court of law provided however, that claimant
and MSV shall use their best efforts to continue such trial date
for the period necessary to permit the procedures set forth
herein to be conducted in the manner provided; or (ii) where
submission to the procedures of Section II.B would hinder or
otherwise infringe upon the ability of a claimant who otherwise
would be able to secure an expedited trial date because of his
exigent health circumstances.
B.4 MSV may request supplementation or clarification
of information supplied to assist in a good faith evaluation of
the claim but such request shall not, absent consent of the
parties, lengthen the time period prescribed in B.7 through 10
below.
B.5 Claimant shall have the continuing right to
supplement information furnished. The free flow of information
to assist in claims resolution is encouraged but is not a
prerequisite to conclusion of these procedures.
B.6 MSV shall evaluate each individual claim based
upon all relevant factors of the traditional tort principles of
damages of the state law applicable to the cause of action, which
factors may include: the type, nature and extent of a diagnosed
asbestos-related disease or condition of any kind; questions of
medical causation; questions of the existence and/or degree of
physical injury, if any; questions of the existence of
psychological injury, if any; number and age of dependents; the
likelihood of the claimant having been exposed to Manville
asbestos and/or asbestos-containing products; job history; the
location where exposure of the claimant to Manville products
occurred and/or the location of the forum in which the case can
properly be maintained by the claimant; information concerning
payments of settlement and/or jury verdicts and judgments made to
the claimant previously, and in comparable cases and other
jurisdictions; and any other relevant criteria generally utilized
in the settlement of litigated tort cases. MSV shall review all
materials submitted and in such consideration shall not be bound
by rules of evidence governing the admission of evidence in
courts of law.
B.7 To the extent practical, MSV shall begin
processing each claim upon receipt of the Proof of Claim. Within
ninety (90) days of such date MSV shall make a written good faith
offer of settlement based upon its evaluation of such claim.*
Offers shall include a brief statement of MSV's medical
determinations.** Such offers shall be sent to the claimant's
counsel or representative, if any, by certified mail. As a
general rule, and subject to any agreement between MSV and
claimant, claims shall be processed in the order described in
Section A.2 above, based upon principles of first-in-first-out.
However, if the Proof of Claim contains an application for
hardship treatment, claimants who are faced with extreme hardship
<F*>
- ------------------
* Commencing in the third year of operation this period shall
become sixty (60) days. Commencing in the fifth year of
operation this period shall become forty-five (45) days.
</F*>
<F**>
- ------------------
** In this connection see Section B.11 below.
</F**>
shall receive priority in processing irrespective of the date
when their claim is first asserted.
B.8 Claimant shall have ten (10) days after receipt of
MSV's offer within which to respond. Claimant's response to
MSV's offer shall be in writing, signed by claimant, unless
otherwise agreed by the parties. Written response to MSV's offer
shall be a condition precedent to further claim proceedings as
herein set forth. The claim will not be processed further until
a written response is received.
B.9 If MSV's offer is accepted, a check in payment of
the settlement shall be issued within twenty (20) business days
of MSV's receipt of claimant's acceptance. If the offer is
rejected, claimant shall make a good faith counterproposal.
B.10 MSV shall have ten (10) days after receipt of
claimant's response within which to respond to any counter-
proposal made. If MSV accepts the claimant's counter-proposal, a
check in payment of the settlement shall be issued within twenty
(20) business days of MSV's acceptance. If MSV makes a counter-
proposal to claimant's counter-proposal, claimant shall then have
an additional ten (10) days within which to respond to MSV.
Claimant's response to MSV's counter-proposal shall be in writing
signed by the claimant, unless otherwise agreed by the parties.
If claimant accepts MSV's counter-proposal, a check in payment of
the settlement shall be issued within twenty (20) business days
of MSV's receipt of claimant's acceptance. In the event MSV
fails to respond to a counter-proposal within ten (10) days, the
same shall be presumed to be rejected by MSV. There is no
further requirement for exchange and consideration of offers of
settlement.
B.11 (a) Prior to the expiration of the time periods
prescribed in B.7 through 10, either party may request the
submission of the claim information file as it then exists to a
Qualified Mediator or such other qualified person as the parties
agree upon. Said person shall serve as a mandatory settlement
conference facilitator. Said facilitator shall review the file
as it exists and any additional submissions as the parties desire
to include. Claimant and MSV shall each submit to the
facilitator, as soon after his selection as possible but no later
than one (1) day prior to the conference, a concise, confidential
statement outlining the claimant's medical condition, exposure to
Manville products and each party's position on settlement value.
Said facilitator shall confer by telephone or by conference and
shall suggest terms of compromise and/or settlement for the
parties' consideration. The claimant and a representative of MSV
with settlement authority shall participate in the conference
unless counsel for the Claimant advises that personal
participation by the claimant is not feasible because of
extenuating circumstances. The suggestions and recommendations
of the facilitator are confidential and cannot be disclosed to
any other party or person and cannot be utilized in any
statistical fashion or introduced into any other proceeding by
the claimant, the MSV or any other party defending against the
claimant's claim.
(b) Prior to the expiration of the time periods
prescribed in B.7 through 10, either party, or the Qualified
Mediator if one has been requested pursuant to B.11.(a), may
request that a Medical Consultant, as defined below, be retained
for the purpose of evaluating materials, reports, and other
information relative to the claimant and to assist in the
resolution of disputes of medical issues which may arise in the
System, and for no other purpose. In no event shall claimant be
required to submit to a physical or mental examination without
his consent.
A list of one hundred fifty (150) potential Medical
Consultants will be prepared by Dr. Irving J. Selikoff. The list
shall include, in addition to, and to the best of the ability and
judgment of, Dr. Irving J. Selikoff, the names of eighty (80)
highly qualified pulmonologists or other physicians with
expertise in occupational pulmonary medicine, thirty-five (35)
physicians with experience in reading pulmonary x-rays, and
thirty-five (35) qualified pathologists. Manville will have the
right to strike twenty percent (20%) of the names from each
category on the list. The Asbestos-Health Related Litigants
and/or Creditors Committee and the Legal Representative for
Future Asbestos Health Claimants, jointly, shall also have the
right to strike twenty percent (20%) of the names from each
category of this list. Written lists of the names to be stricken
shall be submitted simultaneously to Dr. Irving J. Selikoff. The
remaining physicians on the list shall be appointed by the MSV to
serve as a Panel of Medical Consultants, with Dr. Irving J.
Selikoff as its Director.
When a party or a Qualified Mediator, if one has been
requested pursuant to B.11(a), requests the selection of a
Medical Consultant, the Proof of Claim shall be forwarded to Dr.
Selikoff and Dr. Selikoff (or his designee or successor, selected
in advance pursuant to procedures acceptable to Dr. Selikoff and
MSV) shall select three members from the Panel of Medical
Consultants. If an asbestos-related malignancy is claimed, the
panelists shall be pathologists. The claimant and the MSV shall
each have the right to strike one of the three physicians from
such list, and, from the remaining physician(s), Dr. Selikoff
shall appoint one to serve as the Medical Consultant.
The Medical Consultant shall review all medical data
submitted in support of the Proof of Claim together with such
additional medical data, if any, submitted by MSV and/or claimant
and shall conduct a physical examination of claimant if requested
by MSV and consented to by claimant. Thereafter the Medical
Consultant shall render a report to MSV and claimant, and to the
Qualified Mediator if one has been requested pursuant to
B.11(a).
The report of the Medical Consultant is confidential, may
be utilized only within MSV, and cannot be disclosed by MSV or
claimant to any other party or person except as provided herein,
and cannot be utilized in any statistical fashion or introduced
into any other proceeding by the claimant the MSV or any other
party defending against the claimant's claim except as provided
herein.
The Medical Consultant shall be deemed to have been
retained and specially employed by both MSV and the claimant in
anticipation of litigation and preparation for trial and cannot
be called as a witness at trial or utilized pursuant to Federal
Rule 706 of the Federal Rules of Evidence (court-retained expert
witness), or analogous state court procedure, unless both parties
agree in writing. The Medical Consultant shall not testify
voluntarily on behalf of any party regarding the claimant's claim
in any forum outside the System.
If agreed upon by the parties in writing, the Medical
Consultant's report may be utilized in a subsequent legal
proceeding by other experts retained by either party in a manner
consistent with the evidentiary rules of the jurisdiction in
which the case is pending.
All fees and expenses incident to utilization of a Medical
Consultant shall be borne by MSV.
(c) The procedures contained in B.11(a) and (b) cannot
lengthen the time period prescribed in B.7 through 10 without
agreement of the parties and shall not delay the exercise of the
claimant's right as prescribed in Section III.F. regarding the
exercise of the claimant's right to demand a trial by jury in the
appropriate forum of his choosing.
B.12 Throughout the claims evaluation and offer
exchange process, ongoing negotiations between the parties are
anticipated and encouraged. Settlements may be tailored to fit
the needs and desires of the particular claim or claims,
including the use of guaranteed structured settlements.
B.13 The only limitation upon the claimant's right to
seek a jury trial or resort to the tort system are those
contained in Section II.B. No extension of time for the exercise
of that right, beyond that prescribed in Sections B.7 through 10,
may be granted absent written consent of the claimant or his
representative. The filing of the Proof of' Claim and completion
of the claims evaluation and offer procedures pursuant to this
section shall satisfy any precondition to resort to the tort
system. Substantial compliance with the requirements of the
Proof of Claim form shall suffice. If MSV asserts that the
claimant has not substantially complied with the Proof of Claim
form provisions, MSV must so advise the claimant within ten (10)
days of receipt of the Proof of Claim specifying with
particularity what information is lacking from the Proof of
Claim. Claimant thereafter shall have an additional ten (10)
days in which to provide additional -information as suggested by
MSV or may choose to rely upon the Proof of Claim as originally
filed.
III. CLAIMANT ELECTION
For all claims not resolved through the claims evaluation
and offer exchange set forth above, a claimant, to further pursue
his or her claim may elect either binding (Section D) or non-
binding (Section E) proceedings or trial by court or jury
(Section F). Such election shall be in writing directed to MSV
and shall be irrevocable except with the consent of MSV. In the
event claimant elects binding or non-binding arbitration, MSV
shall refer the claim to the arbitration facility for further
proceedings as hereinafter set forth within ten (10) days of
receipt of such election notice. Such proceedings shall
commence, to the extent practicable, within sixty (60) days of
the date the claim is referred to the arbitrator. Unless
otherwise agreed by MSV, mediation or arbitration shall not be
available for any claim as to which any joint and several
judgment has been rendered in claimant's favor.
C. MEDIATION
C.1 Irrespective of any other election made by
claimant, claimant may request that his claim be referred by MSV
to a mediator. Such claim shall be referred by MSV to a mediator
within ten (10) days of claimant's request. With the consent of
claimant and MSV, such mediation may commence at any earlier time
after the initial claim is submitted.
C.2 No person shall become a Qualified Mediator or
shall serve as a mediator until he/she has been trained in
mediation in a recognized program such as those of the American
Arbitration Association or has had equivalent practical
experience in the field of mediation.
C.3 Claims shall be handled by the mediator in the
order received by him, to the extent practicable. Any party may
be represented by legal counsel. The mediator shall meet the
parties and/or their legal representatives, individually and
jointly. The claimant and a representative of MSV with
settlement authority must be present at the conference, except
where claimant's physical or psychological condition prohibits
attendance. Such conference shall be in the nature of a
settlement conference and, to the extent practical, shall be
conducted in a location convenient to claimant. The mediator
shall review the claim and positions of the parties, the prior
negotiations between the parties, the offer and demand, such
information as the parties may wish to submit as to a fair and
adequate settlement and all documents and medical reports
relevant to the claim. At least five (5) days prior to the
mediation conference, claimant and MSV shall each submit to the
mediator a concise confidential statement outlining the
claimant's medical condition, exposure to Manville products and
each party's position on settlement value.
C.4 The mediator will work with both sides toward
reaching an acceptable, reasonable offer of settlement. The
mediator does not have the authority to impose a settlement upon
the parties. Unless otherwise agreed by claimant and MSV, the
mediation process will terminate prior to the commencement of
arbitration proceedings or trial and shall not in any way delay
the commencement and completion of such proceedings or trial. A
settlement reached pursuant to mediation shall be treated in the
same way as a settlement reached under Section II.B. hereof.
D. BINDING ARBITRATION PROCEEDINGS
D.1 All binding arbitration proceedings shall be
administered by an independent arbitration organization, pursuant
to its procedures which shall include procedures for the
appointment of arbitrators.
D.2 MSV will pay the fees and administrative costs of
the proceeding, provided however, the arbitrator may in his or
her sole discretion assess fees and costs against any party
delaying or abusing the arbitration procedures set forth herein.
D.3 The award shall be based upon the value of the
claimant's claim against MSV only, severally and not jointly, at
the time of the award.
D.4 The amount of the award shall be within the
discretion of the arbitrator; provided, however, the claimant
shall not receive less than 75% of MSV's last settlement
proposal.
D.5 MSV shall waive such defenses as might otherwise
have been available to Manville at common law except: statutes
of limitations* or repose; prior workers' compensation liens.
D.6 Claims settled through Binding Arbitration
Proceedings shall be paid, in cash, thirty (30) days after the
arbitrator's award, or on such other payment basis as may be
agreed upon by and between claimant and MSV. Neither party will
have the right to appeal the award except for the grounds set
forth in Section 10 of the Federal Arbitration Act. There will
be no right to a trial de novo.
E. NON-BINDING ARBITRATION PROCEEDINGS
E.1 All non-binding arbitration proceedings shall be
administered by an independent arbitration organization, pursuant
to its procedures which shall include procedures for the
appointment of arbitrators.
E.2 MSV will pay the arbitrator's fees and
administrative costs of the proceedings, provided however, the
arbitrator may in his or her sole discretion assess fees and
costs against any party delaying or abusing the arbitration
procedures set forth herein.
E.3 The amount of the award shall be within the
discretion of the arbitrator.
E.4 (a) The award shall be final and binding only if
accepted by claimant within thirty (30) days after receipt and if
not so accepted shall be deemed rejected, in which event claimant
may proceed to trial pursuant to Section III.F. Claimant must
accept the award if the award equals or exceeds claimant's last
offer unless claimant asserts and MSV agrees that there has been
a substantial change in claimant's condition since claimant's
last offer was made.
<F*>
- -------------------
* This is not intended to preclude the negotiated resolution
of claims that would be otherwise barred by the statute of
limitations from a special fund created for that purpose if
such a fund is, in fact, established.
</F*>
(b) Notwithstanding the provisions of subparagraph
(a), the award shall not be final and binding if it exceeds 135%
of MSV's last offer (counter-offer) and within thirty (30) days
MSV advises that the award shall not be final and binding unless
claimant agrees in writing within ten (10) days thereafter to
reduce the award to 135% of MSV's last offer (counteroffer), and
claimant fails to so advise. In such event claimant may proceed
to trial pursuant to Section III.F.
E.5 The award shall be paid within thirty-five (35)
days after it is made.
F. TRIAL
F.1 Subsequent to the procedure set forth in Section
11.B. and subject to the provisions of Section III.E.4 (in the
case of a claimant who has elected non-binding arbitration), in
accordance with the Constitutional right to trial by jury,
claimant shall have the right to pursue his claim against MSV in
a federal or state court of his choosing: (i) where no action
against Manville or any other asbestos product manufacturer is
pending on behalf of claimant, by filing an appropriate legal
pleading in a venue of his choosing as permitted by applicable
state or federal law and MSV will consent to jurisdiction and
venue in any court where jurisdiction and venue would have been
proper against any of the Debtors; or (ii) where an action
against Manville alone, against Manville and any other asbestos
product manufacturer, or against any other asbestos product
manufacturer is pending, MSV will, within fifteen (15) days of
receipt of notice of claimant's election to file an action in
that forum, execute appropriate legal documents stipulating to
(a) the substitution of MSV as a party defendant for Manville, or
(b) the joinder of MSV as a party defendant in any state or
federal action pending against any other defendant. In the event
that MSV becomes a party to any litigation in any court, it shall
enter its appearance under the name and be known as "Manville
Corp. Asbestos Disease Compensation Fund". Claimant's right to
trial by jury in an appropriate forum of his choosing is limited
only as is required in Section II.B. in that an exchange of claim
evaluation and offer is mandated and only for such period of time
as is set forth in Paragraphs B.7 through 10 unless an extension
of time is agreed to by the parties.
F.2 There shall be no right to reclaim for any
increased physical or psychological injury except as otherwise
permitted by law.
F.3 Except for the tolling of periods of limitations
resulting from the bankruptcy proceedings and as otherwise
provided herein, MSV shall not be required to waive any defenses
otherwise available to it at law.
F.4 The award of the arbitrator, the submissions and
positions of the parties during compliance with the alternate
dispute resolution requirements set forth herein and any other
admissions made during these procedures shall not be admissible
for any purpose at trial by any party or third-party and are
expressly determined by the provisions herein not to be
admissions by either party.
F.5 In order to avoid undue expense or delay, any
materials, testimony or other evidence submitted by either party
during the course of Claims Evaluation (B) or non-binding
arbitration (E) (if applicable), and of the kind normally
available in discovery proceedings, shall be treated as if
submitted in pre-trial discovery proceedings.
F.6 With respect to claims for compensatory damages
only, the substantive law applicable to the settlement or trial
of such claims against MSV shall be the law which would have been
applicable but for the pendency of the Chapter 11 proceedings.
In determining the applicable law it will be assumed that the
action against MSV was (1) filed or commenced (if not actually
filed or commenced against Manville) at the same time as an
action asserting such a claim by claimant was filed against any
other defendant and (2) tried or settled at the same time as
claimant's action was tried or settled (if actually tried or
settled) with substantially all other defendants, so that the law
applicable will be the same as the law applicable to the action
against such other defendants. If the claim is against Manville
(or MSV) alone, it will be assumed that the action against MSV
was filed or commenced (if not actually filed or commenced
against Manville) at the earliest time when the cause of action
accrued and would have been reached for trial when a similar
action in the same venue on the same calendar would have been
reached for trial. All claims actually filed or commenced
against Manville shall be deemed to have been filed or commenced
on such actual date of filing or commencement. Notwithstanding
and supplementing the foregoing, the claimant shall have the
benefit of any revival statute enacted in any jurisdiction where
venue is proper which has the effect of removing or tolling the
bar or extending the period of the statute of limitations,
irrespective of whether the statute is deemed substantive or
procedural.
FORM OF PROOF OF CLAIM
MANVILLE SETTLEMENT VEHICLE
This form is filed pursuant to an order of the United
States Bankruptcy Court and the filing of this form is not and
shall not be construed as an admission against interest nor may
this form be utilized by any party for any purpose other than is
provided by said order and is governed by the provisions of said
order contained therein.
GENERAL PROVISIONS
Only those sections of this claim form stated to be
mandatory are mandatory and substantial compliance with said
mandatory provisions is required. Any questions about the
compliance with the mandatory aspects of this claim form are
governed by the order.
I. MANDATORY CLAIM FORM PROVISIONS
The claim form must be signed by the claimant or his
representative but need not be verified or accompanied by an
affidavit. The following information must be supplied:
1. The full legal name, maiden name (where applicable) and
any and all other former names of the claimant or in a derivative
action the full legal name of the appropriate legal
representative who is empowered by state law to maintain such
action.
2. The current address of the claimant and where
applicable the claimant's legal representative permitted to
institute such derivative action.
3. The age of the claimant or the age of the derivative
claimant's decedent at the time of death and the name, age and
addresses of any dependents and claimed beneficiaries in a death
and/or survival action.
4. The type of asbestos-related disease claimed to
currently exist by the claimant and the approximate date of
initial diagnosis as known to the claimant or his representative
of such asbestos-related disease. Where more than one asbestos-
related disease is claimed, the types of disease and approximate
date the first diagnosis known by the claimant and his
representative must be stated.
5. The name and address of the physician who diagnosed the
asbestos-related disease upon which this claim is based.
6. A brief-work history providing dates of employment to
the best of claimant's recollection and describing the
occupational or paraoccupational or other exposure claimed by the
claimant to have given rise in substantial part to his claim of
an asbestos-related disease.
7. A statement by the claimant or his representative, if
available, of any Manville asbestos or asbestos product exposure
which claimant contends has a substantial causal relationship to
his asbestos-related disease.
8. Where a nonmalignant asbestos disease is claimed, the
claimant must provide with the claim form:
(a) posterior-anterior, lateral and oblique chest
x-rays, if any, and
(b) a report from a physician setting forth the basis
upon which such asbestos-related non-malignant disease is
diagnosed.
9. If an asbestos-related malignancy is claimed, claimant
must provide with the claim form:
(a) surgical and pathological records supporting the
diagnosis of an asbestos-related malignancy;
(b) X-rays and CAT scans, if any, and accompanying
radiologist's reports, upon which the diagnosis of an asbestos-
related malignancy is based; and
(c) a report from a physician setting forth the
diagnosis of a malignant disease process.
10. A description of the claimant's (or the claimant's
decedent's) smoking history, if any.
11. If claimant makes application for a hardship
exception to the claims procedures as is provided for in [the
order], he must provide the following additional information:
(a) An affidavit by the claimant or his attorneys
setting forth the circumstances under which hardship application
is made;
(b) An affidavit from a physician setting forth the
exigent health circumstances which form the basis for the
application for hardship;
(c) A signed medical authorization form in favor of
the Manville Settlement Vehicle authorizing said Manville
Settlement Vehicle to obtain records from the physician who files
an affidavit in support of the hardship application; and
(d) An affidavit from the claimant or from claimant's
attorney setting forth the basis upon which it is believed that
exposure to a Manville asbestos product occurred.
12. If the claimant has instituted civil litigation in
any state or federal court based upon any alleged asbestos
related disease, claimant shall provide the style of the action,
the venue of the action, the civil action number and the date of
first filing, or provide a copy of the complaint or most recent
amended complaint Claimant shall provide the amount of any
judgments rendered in claimant's favor.
13. If the claimant has instituted workers'
compensation proceedings based upon any alleged asbestos-related
disease, claimant shall provide the style of the action, the
venue of the action, the claim number and the date of filing, or
provide a copy of the petition. Claimant shall provide the
amount of any judgments rendered in claimant's favor.
II. VOLUNTARY CLAIMS INFORMATION
The claimant may at his sole election provide additional
information upon which the claim is based including, but not
limited to:
(a) An executed medical release form permitting the
Manville Settlement Vehicle to obtain medical records from
doctors whose names are provided with the claim form;
(b) An authorization for release of social security
information regarding claimant's employment history;
(c) A statement from the claimant of the nature and
extent of his claimed asbestos product or asbestos fiber
exposure;
(d) A statement from the claimant of any wage loss or
medical losses incurred by him as a result in whole or part of
his asbestos-related disease;
(e) A listing of other treating physicians and copies
of appropriate hospital or medical records incident to any
asbestos-related disease claim;
(f) Results of pulmonary function tests and/or
arterial blood gas tests, if any; and
(g) Tissue samples upon which the diagnosis of an
asbestos-related malignancy is based.
<PAGE>
ANNEX C
to AMENDED AND RESTATED
TRUST AGREEMENT
TRUST DISTRIBUTION PROCESS
A. OVERVIEW.
--------
The goal of the Manville Personal Injury Settlement Trust
(the "Trust") is to treat all claimants equitably. This Trust
Distribution Process ("TDP") furthers that goal by including
procedures for processing and evaluating claims generally on an
impartial, first-in-first-out ("FIFO") basis with the intention
of paying all claimants over time as equivalent a share as
possible of their claims' values. This TDP also establishes a
Schedule of Asbestos-Related Disease Categories and Values that
will enable many claims to be resolved more quickly, while
retaining for each claimant the right to elect individual claim
evaluation.
The process for determining the liquidated value of any
claim to be paid from the assets of the Trust includes an initial
determination of whether the claim meets the Categorization
Criteria for one of seven Scheduled Diseases that are listed on
the Schedule of Asbestos-Related Disease Categories and Values
described in Section D below. The Scheduled Diseases are
Bilateral Pleural Disease, Nondisabling Bilateral Interstitial
Lung Disease, Disabling Bilateral Interstitial Lung Disease,
Other Cancers, Lung Cancers (One), Lung Cancers (Two), and
Malignant Mesothelioma. In general, if the claim qualifies for
categorization, the claimant will be offered the Scheduled Value
for the Scheduled Disease. The Scheduled Values for the seven
Scheduled Diseases are based on the Trust's experience settling
claims using the factors set forth in the Claims Resolution
Procedures (the "CRP Factors") attached as Annex B to the Trust
Agreement,1 and on liquidated values of recent settlements
experienced in the United States tort system.
<F1>
- --------------------
1 All capitalized terms used herein and not otherwise defined
have the meanings assigned to them in Exhibit A to the
Manville Corporation Second Amended and Restated Plan of
Reorganization.
</F1>
If a claim does not meet the Categorization Criteria for a
Scheduled Disease, or the claimant decides to reject the
Scheduled Value for a Scheduled Disease, and in certain other
circumstances, the claimant may elect to have the claim
individually evaluated by the Trust based on the CRP Factors.
All unresolved disputes over categorization and valuation of
claims will be subject to arbitration under procedures described
below, and claimants whose valuation disputes are not resolved by
nonbinding arbitration may enter the tort system. However, if
and when a claimant enters the tort system, the claimant's
judgment will be payable out of a pool of funds with respect to
which the payment, as provided in Section F below, will be limit
ed to the Maximum Value for the Disease Category in which the
claim is placed by the Trust or by arbitration, except for an
Extraordinary Claim, as defined below. The excess amount, if
any, of any judgment will be payable from a second pool of funds
which will not be available until all claimants have received
50 percent of the liquidated value of their claims.
After the liquidated value of a claim is determined by
reference to a Scheduled Value, by individual evaluation, by
arbitration, or by litigation, the claimant will receive a pro
rata share of that value based on a percentage set by the Trust
with the concurrence of the Selected Counsel for the
Beneficiaries (the "SCB") and the Legal Representative of Future
Claimants (the "Legal Representative"), after consultation with
the Special Advisor to the Trust (the "Special Advisor"). The
pro rata share may be adjusted upwards or downwards from time to
time to reflect current estimates of the Trust's assets, its
liabilities, and the estimated value of pending and future
claims. To the extent that the pro rata share increases over
time, claimants whose claims were liquidated in prior periods
under this TDP will receive additional payments so as to equalize
over time each claimant' pro rata share of the liquidation value
of their claims. Because it is difficult to predict the number
and severity of future claims, and the amount of the Trust's
assets, no guaranty can be made of any pro rata share of a
claim's liquidated value.
Indemnity Claims (except for claims processed using a
Distributor Indemnity Claim percentage, as described in Section
H.7, below) and Contribution Claims will be subject to the same
categorization, evaluation, pro rata share, and payment
provisions of this TDP applicable to all other Trust Claims.
B. ORDERING AND CATEGORIZING OF CLAIMS.
-----------------------------------
1. Ordering of Claims. Claims will be ordered for
------------------
processing on a FIFO basis. As a general practice, the Trust
will review its claims files on a regular basis and notify all
claimants whose claims are likely to come up in the FIFO queue
for processing in the near future. A claimant's position in the
FIFO queue will be determined by the earlier of (i) the date of
receipt by the Trust of an acceptable proof of claim form with
the Trust or (ii) the date of filing a lawsuit for an
asbestos-related injury against the Trust or any other defendant.
2. Categorizing of Claims by Disease.
---------------------------------
(a) As a proof of claim is reached in the FIFO queue,
the Trust will evaluate it to determine whether the claim meets
the Categorization Criteria for a Scheduled Disease and shall
advise the claimant of its determination. If a Scheduled Disease
is determined, except for Non-Standard Claims, the Trust shall
tender to the claimant an offer of payment of the Scheduled Value
for the Scheduled Disease, together with a form of release. If
the claimant accepts the Scheduled Value and returns the release
properly executed, the Trust shall disburse payment within 30
days thereafter, subject to the terms of Section G.3 below.
(b) If the claimant does not respond to the Trust's
offer within six months, the Trust's offer and the claim will be
deemed to be withdrawn unless the claimant has requested in
writing an extension of time, not to exceed six additional
months, within which to respond to the offer. If the claimant
still has not responded to the Trust's offer at the end of the
additional six-month period, the Trust's offer and the claim will
then be deemed to be withdrawn. A claimant may also elect to
withdraw a claim at any time. A claim that is withdrawn or
deemed to have been withdrawn may be refiled at any time, and
shall be ordered in the FIFO queue based on the date of receipt
by the Trust of the refiled claim.
(c) If the Trust determines that a claim does not meet
the Categorization Criteria for a Scheduled Disease, or
determines the claim is a Non-Standard Claim as defined in
Section C, or if a claimant disagrees with the Scheduled Disease
determination made by the Trust, the claimant may dispute the
determination. Upon receipt of written advice from the claimant
of such a dispute, coupled with the claimant's written statement
of the basis for the dispute and any supporting documentation,
the Trust shall reevaluate the claim in light of all then
available documentation and advise the claimant of its
determination. If on reevaluation the Trust determines that the
claim qualifies for placement in a Scheduled Disease Category or
in a different Scheduled Disease Category than the Trust
originally determined, the Trust shall tender an offer in the
amount of the Scheduled Value for the Scheduled Disease so
determined, together with a form of release. If the claimant
accepts the Scheduled Value and returns the release properly
executed, the Trust shall tender payment within 30 days
thereafter, subject to the terms of Section G.3 below.
(d) If the claimant still disputes the Trust's
categorization of the claim or denial of categorization, the
claimant may elect arbitration of the categorization or
individual evaluation. If arbitration is elected, the
arbitrator(s) shall decide, solely on the basis of the
documentation in the claim file, which must be complete at least
60 days prior to the scheduled arbitration, whether the claim
should be categorized as a Scheduled Disease. If the
arbitrator(s) agree with the claimant's position, the decision
shall be binding upon the claimant and the claimant shall not be
entitled to any individual evaluation. If the claimant returns
the release properly executed, the Trust shall tender payment of
the Scheduled Value for the Scheduled Disease within 30 days
thereafter, subject to the terms of Section G.3 below. If the
arbitrator(s) do not agree with the claimant's position, the
claimant may elect individual evaluation, as described below.
C. INDIVIDUAL EVALUATION OF CLAIMS.
-------------------------------
Following the claims categorization process described
above, any claimant, including one whose claim was not placed in
a Scheduled Disease category, may elect to have his/her claim
individually evaluated by the Trust. However, because the
Scheduled Values represent an equitable settlement value for most
claims that meet the criteria of a corresponding Scheduled
Disease, and because individual evaluation will be costly and
time-consuming, resulting in significant delay in claim payment,
the Trust will not value a claim for a liquidated amount in
excess of its Scheduled Value unless a higher value is clearly
justified. Moreover, if a claimant elects individual evaluation,
and the Trust's final offer, or a subsequent arbitration award or
judgment, is lower than the Scheduled Value for the claimant's
Scheduled Disease category, the claimant cannot elect to receive
a previously offered higher Scheduled Value.
1. VALUATION OF NON-STANDARD CLAIMS.
---------------------------------
(a) The Schedule of Asbestos-Related Diseases and
Values set forth herein is based (1) on diseases that are
generally recognized to be caused in part or in whole by
asbestos, and (2) on values that reflect (a) the Trust's
experience in liquidating claims for such diseases using the CRP
Factors and (b) the liquidated values of current settlements in
the tort system.
(b) The Trust anticipates it may be presented with
claims involving new or different causation and valuation factors
not reflected in the Schedule of Asbestos-Related Diseases and
Values set forth herein, including claims filed on behalf of
claimants whose asbestos exposure took place outside the United
States and Canada. In the event the Trust determines that a
claim(s) involves new or different causation and valuation
factors, such claim(s) will not be eligible for valuation under
the Schedule of Asbestos-Related Diseases and Values. Instead,
such claims will be individually evaluated in accordance with the
CRP Factors when they come up for processing in the FIFO queue.
In evaluating such claims, the Trust may gather or request the
claimant(s) to provide supplementary information, including the
nature of the disease and the tort law, litigation practice, and
liquidated values currently experienced in settlements and
verdicts for similar claims in the jurisdiction in which the
claim arose. The Trust, with the concurrence of the SCB, after
consultation with the Special Advisor, may also use such
information to develop separate Scheduled Values and new Disease
Categories for such Non-Standard Claims.
2. FAILURE TO MEET CRITERIA FOR A SCHEDULED DISEASE. A
------------------------------------------------
claimant's right to assert a valid claim for the liquidated value
of an asbestos-related disease is not prejudiced by failure to
meet the Categorization Criteria for a Scheduled Disease. There
are no standard definitions or criteria that could fairly include
or compensate all meritorious claims involving asbestos-related
diseases. It is therefore assumed that many claims will be
individually evaluated based on the CRP Factors, with no adverse
presumption that the liquidated values of these claims are more
or less than the Scheduled Value.
3. EVALUATION FACTORS. All claims must present evidence
------------------
of an asbestos-related injury resulting from exposure to Manville
asbestos that will sustain a cause of action under applicable
law. Individual evaluations of claims will be based on the CRP
Factors affecting the amount of damages, including without
limitation, disease, age, current settlements and verdicts in the
tort system in the claimant's jurisdiction, Manville's relevant
market share, whether the claimant is living or dead (as of the
earlier of the filing of the claim or a lawsuit involving the
claim), disability, dependency, special damages, pain and
suffering, and evidence that the claimant's damages were (or were
not) related to asbestos exposure (for example, alternative
causes, strength of documentation of injuries).
4. MAXIMUM VALUES. The Trust, with the concurrence of the
--------------
SCB and the Legal Representative, after consultation with the
Special Advisor, has established a Maximum Value for each
Scheduled Disease category. These Maximum Values are set forth
on Attachment A to this TDP. The liquidated value of an
individually evaluated claim may be higher or lower than the
Scheduled Value for the Scheduled Disease category into which the
claim would otherwise be placed, or which the claim most closely
fits. However, unless the claim meets the standards of an
Extraordinary Claim set forth below, the liquidated value of an
individually evaluated claim is limited to the Maximum Value for
the relevant Scheduled Disease. Moreover, the Maximum Value will
only be offered to those claimants who present the most severe
combinations of factors to be anticipated within the category,
and will provide the upper limit of a claim that will enter
Pool A as described below. For purposes of determining the
Maximum Value of any claim, the Trust will evaluate the claim and
place it in the Scheduled Disease category with respect to which
the claim most closely meets the categorization criteria. Any
dispute over the Trust's determination of the closest Scheduled
Disease category will be subject to arbitration as provided in
Section E below.
5. CLAIMS LIQUIDATED AFTER NOVEMBER 19, 1990. Claimants
-----------------------------------------
who liquidated a Trust Claim after November 19, 1990, under the
original proposed Trust Distribution Process, may elect either to
retain that liquidated value and be paid immediately under this
process, or to have their claims placed at the front of the FIFO
queue and be processed under the procedure set forth below.
6. SECOND (MALIGNANT) INJURY CLAIMS. Unless a general
--------------------------------
release was executed, a claimant may file a Second Injury Claim
against the Trust for additional damages if the claimant
subsequently develops an asbestos-related malignant disease. A
Second Injury Claim shall be ordered in the FIFO queue based upon
the date of receipt by the Trust of the Second Injury Claim, and
shall be treated as a new claim to be categorized or individually
evaluated, and paid, under this TDP. If the earlier claim for a
non-malignant disease was liquidated after November 19, 1990, the
amount already received and to be received, if any, from the
Trust for the non-malignancy claim will not be deducted as a set-
off against amounts payable for the Second Injury Claim.
However, if the claimant liquidated his/her non-malignancy claim
against the Trust on or before November 19, 1990, any amounts
paid or to be paid pursuant to such liquidation shall be set-off
against the liquidated amount arrived at hereunder for the Second
Injury Claim.
7. SUPPORTING MEDICAL EVIDENCE. The Trust will categorize
---------------------------
or individually evaluate claims based on the medical evidence
already submitted to the Trust as part of the claimant's proof of
claim. A claimant may, but need not, supplement this information
with more current medical evidence. Where the claimant has filed
an incomplete proof of claim for categorization or individual
evaluation, the Trust will notify the claimant of the need for
additional information and the Trust need not process the claim
until the file is complete. In addition to such medical evidence
as claimants are required to submit under the CRP, the Trust with
the concurrence of the SCB, after consultation with the Special
Advisor, may require that additional kinds of medical evidence be
provided.
8. AUDIT PROCEDURES. In all cases, the Trust may require
----------------
that medical x-rays, tests, laboratory examinations and other
medical evidence comply with recognized medical standards
regarding equipment, testing methods, and procedures to assure
that such evidence is reliable. The Trust may develop methods
for auditing the reliability of medical evidence, including
independent reading of x-rays. If its audits show an
unacceptable level of reliability for medical evidence submitted
by specific doctors or medical facilities, the Trust can refuse
to accept medical evidence from such doctors or facilities. In
addition, the Trust may develop methods for auditing other types
of evidence necessary to support a claim.
9. EXTRAORDINARY CLAIMS. In extraordinary situations such
--------------------
as where a claimant was exposed only to Manville asbestos
products, or where Manville asbestos products constituted the
overwhelming majority of the claimant's asbestos exposure, or
where special damages are exceptionally large, the Trust may
individually evaluate and liquidate a claim for an amount that
exceeds the Maximum Value for the particular Scheduled Disease
asserted by the claimant. Any dispute as to Extraordinary Claim
status shall be submitted to arbitration by a special
Extraordinary Claims Panel established by the Trust with the
concurrence of the SCB after consultation with the Special
Advisor.
10. EXIGENT HEALTH AND EXTREME HARDSHIP CLAIMS. Notwith
------------------------------------------
standing the FIFO order processing rules, the Trust may
categorize or individually evaluate, and pay, Extreme Hardship
Claims and Exigent Health Claims.
(a) For Exigent Health claims: (i) there will be an
irrebuttable presumption that there is substantial medical doubt
that living Trust claimants with confirmed mesothelioma will
survive beyond six months and thus, if they settle their Trust
claim, they qualify for Exigent Health treatment; and, (ii) there
will be a rebuttable presumption to be exercised at the
discretion of the Trust that there is substantial medical doubt
that living Trust claimants with confimed lung cancer caused by
exposure to asbestos will survive beyond six months and thus, if
they settle their Trust claim, they qualify for Exigent Health
treatment.
(b) All other living Trust claimants can qualify for
Exigent Health treatment by providing: (i) documentation that a
physician has diagnosed the claimant as having an asbestos-
related illness and (ii) a declaration or affidavit made under
penalty of perjury from a physician who has examined the claimant
within one hundred twenty (120) days of the date of the
declaration or affidavit of which states that the physician
believes there is substantial medical doubt that the claimant
will survive beyond six (6) months from the date of the
declaration or affidavit.
(c) A claim qualifies for payment as an Extreme
Hardship Claim if the Trust, in its sole discretion, determines
there is a causal connection between a claimant's financial
condition and an asbestos-related disease, and the claimant needs
financial assistance on an immediate basis based on the
claimant's expenses and all sources of available income.
D. SCHEDULE OF ASBESTOS-RELATED DISEASE CATEGORIES AND VALUES.
-----------------------------------------------------------
For seven asbestos-related diseases, the Trust and the SCB, after
consultation with the Special Advisor, have established the
following Schedule of Asbestos-Related Disease Categories and
Values. The Scheduled Values are based on extensive review of
the current settlement and litigation environment and on the
Trust's historic experience settling claims using the CRP
Factors, and are believed by the parties to represent equitable
settlement values for most of the claims that meet the criteria
of a corresponding Scheduled Disease.
Scheduled
Category
Value Scheduled Disease
--------- -----------------
I Bilateral Pleural Disease $ 12,000
II Nondisabling Bilateral
Interstitial Lung Disease $ 25,000
III Disabling Bilateral
Interstitial Lung Disease $ 50,000
IV Other Cancer $ 40,000
V Lung Cancers (One) $ 60,000
VI Lung Cancers (Two) $ 90,000
VII Malignant Mesothelioma $200,000
CATEGORIZATION CRITERIA. The criteria that a claim must meet
- -----------------------
to receive an offer for the Scheduled Value for one of the seven
Scheduled Disease categories are as follows:
CATEGORY I: BILATERAL PLEURAL DISEASE
- --------------------------------------
1. The claimant must document bilateral pleural disease
(plaques or thickening) diagnosed on the basis of
x-ray, CAT scan, or high resolution CAT scan; and
2. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of bilateral pleural
disease; and
3. The proof of claim must identify exposure to Manville
asbestos products.
CATEGORY II: NONDISABLING BILATERAL INTERSTITIAL LUNG
- ------------------------------------------------------
DISEASE (Scheduled Value: $25,000)
- -------
1. The claimant must document bilateral interstitial
lung disease diagnosed on the basis of x-ray, CAT
scan, or high resolution CAT scan, and submit either:
a. A medical report stating that a causal
relationship exists between asbestos exposure and the
bilateral interstitial lung disease; or
b. Documentation of the presence of either
unilateral or bilateral pleural disease accompanying
the bilateral interstitial lung disease; and
2. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of bilateral interstitial
disease; and
3. The proof of claim must identify exposure to Manville
asbestos products.
CATEGORY III: DISABLING BILATERAL INTERSTITIAL LUNG
- ----------------------------------------------------
DISEASE (Scheduled Value: $50,000)
- -------
1. The claimant must document bilateral interstitial
lung disease diagnosed on the basis of x-ray, CAT
scan, or high resolution CAT scan; and
2. The claimant must document disability or impairment
evidenced by pulmonary function tests (PFTs), total
lung capacity (TLC), forced vital capacity (FVC), or
diffusing capacity (DLCO)) of less than 80%; and
3. The claimant must submit a medical report stating
that a causal relationship exists between asbestos
exposure and the bilateral interstitial lung disease;
and
4. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of bilateral interstitial
disease; and
5. The proof of claim must identify exposure to Manville
asbestos products.
CATEGORY IV: OTHER CANCERS (Scheduled Value: $40,000)
- ---------------------------
1. The claimant must demonstrate by medical report the
existence of primary asbestos-related cancer of one
of the following sites:
a. Colo-rectal;
b. Laryngeal;
d. Pharyngeal; and
c. Esophageal; or
2. The claimant must demonstrate by medical report the
existence of one of the following:
a. Bilateral interstitial lung disease;
b. Bilateral pleural disease (thickening or
plaques); or
c. Pathological evidence of asbestosis; and
3. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of the cancer; and
4. The proof of claim must identify exposure to Manville
asbestos products.
CATEGORY V: LUNG CANCERS (ONE): (Scheduled Value: $60,000)
- -------------------------------
1. The claimant must demonstrate by medical report the
existence of primary asbestos-related cancer of the
lung; and
2. The claimant must demonstrate at least 15 years of
heavy occupational exposure to asbestos-containing
materials in employment regularly requiring work in
the immediate area of visible asbestos dust; and
3. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of the cancer; and
4. The proof of claim must identify exposure to Manville
asbestos products.
CATEGORY VI: LUNG CANCERS (TWO) (Scheduled Value: $90,000)
- --------------------------------
1. The claimant must demonstrate by medical report the
existence of primary asbestos-related cancer of the
lung; and
2. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of the cancer; and
3. The proof of claim must identify exposure to Manville
asbestos products; and
4. The claimant must:
a. Be a nonsmoker (has not smoked cigarettes for
at least 15 years prior to diagnosis), and
demonstrate by documentation, such as Social
Security records or a medical report with
claimant's work history, occupational exposure
to asbestos during an aggregate of three years
or 12 quarters of employment2; or
b. Demonstrate by medical report the existence of
one of the following:
(1) Bilateral interstitial lung disease;
(2) Bilateral pleural disease (thickening or
plaques); or
(3) Pathological evidence of asbestosis.
CATEGORY VII: MALIGNANT MESOTHELIOMA (Scheduled Value:
- -------------------------------------
$200,000)
1. The claimant must demonstrate by medical report
referencing pathological findings the existence of
malignant mesothelioma; and
2. The proof of claim must establish a 10-year latency
period between the date of first exposure to asbestos
and the date of diagnosis of the cancer; and
3. The proof of claim must identify exposure to Manville
asbestos products.
<F2>
- --------------------
2 Daily exposure during such period of time is not required.
</F2>
E. RESOLUTION OF CATEGORIZATION AND VALUATION DISPUTES.
---------------------------------------------------
1. CONTESTABLE MATTERS. Except for Non-Standard or
-------------------
Extraordinary Claims, if a claim otherwise meets the
Categorization Criteria for a Scheduled Disease, the Trust will
pay the Scheduled Value for that disease in accordance with the
provisions of this TDP. If a claimant chooses individual
evaluation, and if the claim is eligible to be placed in one of
the seven Scheduled Disease Categories, and is supported by
appropriate evidence, the Trust will not dispute the culpability
of Manville's conduct, or, as a general proposition, that
asbestos exposure caused such disease. Instead, the Trust will
have the right to contest only the following matters:
-- the type and seriousness of the claimant's
injuries;
-- the claimant's exposure to Manville asbestos
products;
-- other causation-in-fact issues;
-- the amount of damages; and
-- applicability of statutes of limitations to the
extent the statute barred the claim as of
October 1, 1990.
Nothing in this paragraph is intended to amend or alter
the contestable issues the Trust is permitted to assert as
defined in the Claims Resolution Procedures and the Trust
Agreement.
2. ARBITRATION. Even a flawless claims resolution
-----------
procedure may not always fairly meet a claimant's perceived
deserved disease categorization or claims valuation.
Accordingly, the Trust, with the concurrence of the SCB, after
consultation with the Special Advisor, will institute binding and
nonbinding arbitration procedures for resolving disputes over
disease categorization for Scheduled Values and Maximum Values,
individual evaluation of claims, and Extraordinary Claim status.
These procedures may be modified by the Trust with the concur
rence of the SCB, after consultation with the Special Advisor.
As provided in Section B above, a claimant may initially
elect arbitration of categorization. Except for such arbitration
of categorization, a claimant must first choose individual
evaluation and the individual evaluation must be completed before
the claimant can elect arbitration. Individual evaluation is
completed when the claim has been individually reviewed by the
Trust, the Trust has made an offer on the claim, the claimant has
rejected the liquidated value resulting from the individual
evaluation, and the claimant has notified the Trust of the
rejection in writing.
Arbitrator(s) may determine whether a disease falls in a
higher or lower category of Scheduled Disease for purposes of
determining both Scheduled Values and Maximum Values. After a
claim is individually evaluated, arbitrator(s) may also determine
a liquidated value which may be higher or lower than the
Scheduled Value for the claim. However, except in the case of an
Extraordinary Claim (as determined by the Trust or by the
Extraordinary Claims Panel), arbitrator(s) may not return an
award in excess of the Maximum Value for the appropriate
Scheduled Disease category. In the case of individual
evaluations, a claimant who submits to arbitration and who
accepts the arbitral award will receive payments in the same
manner as one who had accepted the Trust's original valuation of
the claim and will be deemed to have released the Trust from any
liability beyond the liquidated value determined by the
arbitrator.
3. LITIGATION. Only claimants who, following individual
----------
evaluation, elect nonbinding arbitration and then reject their
arbitral awards retain the right to trial against the Trust of
the liquidated value, if any, of their claims. A judgment
creditor is eligible for payment from the Trust's available cash,
as provided below, 30 days after the judgment is final and non-
appealable. However, under no circumstances shall the Trust pay
any punitive damages which may be awarded to a claimant.
F. CREATION OF TWO POOLS.
---------------------
1. POOL A. Trust Beneficiaries will be compensated
------
through two pools of funds. A Trust Beneficiary who accepts an
offer from the Trust based on (i) a Scheduled Value for a
Scheduled Disease, (ii) a value based on individual evaluation by
the Trust, or (iii) an arbitration award, will receive a pro rata
share of that liquidated value from Pool A. A Trust Beneficiary
who rejects an award in nonbinding arbitration, and who returns
to the tort system and obtains a judgment for money damages, will
also enter Pool A after the claim has been reduced to a final,
non-appealable judgment. The liquidated value of a judgment
creditor's claim entered in Pool A, however, will not exceed
(i) the Maximum Value for the judgment Scheduled Disease, or
(ii) such higher amount as may have been offered by the Trust or
awarded through arbitration with respect to an Extraordinary
Claim as described in Section C above.
2. POOL B. Judgment creditors with verdicts in excess of
------
the limits set forth above and Trust Beneficiaries who have
received less than 100 percent of the liquidated value of their
claims entered in Pool A will enter Pool B where they may receive
compensation for the excess amount of their respective verdicts
and claims after all claims entered in Pool A have been paid
50 percent of their liquidated value.
3. DISTRIBUTION OF TRUST FUNDS BETWEEN THE POOLS. The
---------------------------------------------
Trust's available cash for general distribution to Trust
Beneficiaries shall be held by the Trust for distribution to
Beneficiaries with liquidated Pool A claims until all such
Beneficiaries have received 50 percent of the liquidated value of
their claims entered in Pool A. Pool B shall not receive any
funds available for distribution until all claims entered in Pool
A have been paid 50 percent of the liquidated value of their
claims. It is doubtful that Pool B will ever be funded.
4. EXTINGUISHMENT OF UNPAID TRUST CLAIMS. Upon the
-------------------------------------
termination of the Trust in accordance with the provisions of the
Trust Agreement and/or upon the distribution of all Trust Assets,
any and all Trust Claims shall be extinguished.
G. PAYMENT OF CLAIMS.
-----------------
1. PRO RATA SHARE TO BE PAID.
-------------------------
(a) It is intended that all Trust Beneficiaries shall
share in the Trust estate on a pro rata basis, with each Trust
--- ----
Beneficiary receiving a pro rata share of his or her claim's
liquidated value, arbitration award, or judgment as equivalent as
possible to the pro rata share received by all other Trust
--- ----
Beneficiaries under this TDP.
(b) The initial pro rata share has been set at ten
--- ----
percent (10%) by the Trust with the concurrence of the SCB and
the Legal Representative, after consultation with the Special
Advisor. To determine the initial pro rata share, the Trust has
--- ----
forecast its anticipated annual sources and uses of cash until
the last projected future claim has been paid or assets have been
reserved for its payment. The Trust has calculated the
appropriate pro rata share for all claims so that the Trust will
have no remaining assets or liabilities after the last Trust
Beneficiary has received his or her pro rata share.
--- ----
(c) The initial pro rata share is based on information
--- ----
both with respect to valuations of the Trust's assets and
expectations about the value of present and future Trust
liabilities. It may be possible to make additional payments in
the future to previously settled Trust Beneficiaries while
simultaneously protecting future claimants from unreasonable
risks.
(d) In order to ensure, as best as possible, that the
basic assumptions which underlie this TDP remain valid so that
all Trust Beneficiaries will be treated equally, the Trust shall,
at least every 3 years, but as often and for so long as the
Trust, the SCB, or the Legal Representative deem necessary,
re-estimate the values of its total assets and its total
liabilities and determine whether a revised pro rata percentage
--- ----
should be applied to past, present or future claims.
(e) The Trust shall determine (i) if the anticipated
values of assets have been so reduced and/or the expectation of
the value of present or future claims so increased that a new
lower pro rata share should be applied to all future claim
--- ----
payments, or (ii) if the anticipated values of assets have been
so increased and/or the expectation of the value of present or
future claims so reduced that a new higher pro rata share should
--- ----
be applied to all future claim payments, as well as any past
settlements paid a lower pro rata share.
--- ----
(f) Estimates have been and shall be performed in a
flexible and pragmatic manner that considers the circumstances of
the present claimants, the future claimants, the practical
limitations imposed by the inability to predict with precision
the future assets and liabilities of the Trust and the risks to
all Trust Beneficiaries in not reaching agreement.
2. EQUALIZATION OF PRO RATA SHARES
-------------------------------
(a) Payment of pro rata amounts may be limited from
--- ----
time to time by available cash. In such case, or in the event a
new higher pro rata share is applied, the Trust shall make, as
--- ----
cash is available, a subsequent additional pro rata payment to
--- ----
all Trust Beneficiaries with liquidated claims whose previous
cumulative pro rata share was less than the existing or the new
--- ----
higher estimate. The purpose of such payment shall be to
equalize Trust Beneficiaries' cumulative pro rata share.
--- ----
However, the Trust shall not be obligated to make such a catch-up
pro rata adjustment more than once a year, or if in the judgment
- --- ----
of the Trust with the concurrence of the SCB and the Legal
Representative, after consultation with the Special Advisor, the
amount of any such catch-up pro rata adjustment is so small as
--- ----
not to justify its administrative burden.
(b) The Trust shall provide the SCB, the Legal
Representative, and the Special Advisor with any proposal for
adjusting the pro rata share supported by the results of the
--- ----
Trust's analysis and any valuations prepared by the Trust's
investment bankers and other consultants. The proposal(s) shall
take effect upon the concurrence of the SCB and the Legal
Representative, after consultation with the Special Advisor.
3. ORDER OF PAYMENT. The Trust shall pay claims in the
----------------
order in which the claims are liquidated, each such payment
occurring within 30 days of the Trust's receipt of an executed
release from the subject claimant. If at any time the Trust has
insufficient available funds to pay any claim, payment shall be
suspended until such time as the Trust monetizes additional
assets. No Trust Claim shall be preferred over any other for
purposes of payment, regardless of which processing queue the
Trust Claim is in.
4. MONETIZATION OF ASSETS.
----------------------
(a) The Trust shall monetize its assets at the
earliest opportunity consistent with its obligation to preserve
and enhance the value of the Trust estate and further the prompt,
fair and equitable distribution of Trust assets to all present
and future Trust Beneficiaries. In reaching decisions on these
subjects, the Trust shall be guided by an investment banker or
bankers selected by the Trust in its sole discretion, and such
investment banker or bankers shall be available to discuss and
explain their recommendations to the SCB, the Legal
Representative, and the Special Advisor from time to time as they
may be requested to do so.
(b) If in the future the SCB or the Legal
Representative disagree with or are dissatisfied with the advice
received from the Trust's financial or investment advisors
concerning any matter as to which the SCB or the Legal
Representative have concurrence rights, the SCB or the Legal
Representative may notify the Trust in writing that they are
withholding concurrence with respect to such matter on such
ground, setting forth the reasons for such disagreement or
dissatisfaction. Thereafter, either the Trust, on the one hand,
or the SCB or the Legal Representative, on the other hand, shall
have the right to request that the dispute with respect to such
concurrence be resolved pursuant to the procedure set forth in
Section J.3 below. If it is determined in such dispute
resolution procedure that there is a reasonable basis for the
disagreement or dissatisfaction of the SCB or the Legal Represen
tative with such financial or investment advice, the SCB or the
Legal Representative shall have the right to appoint their own
financial or investment advisor to review the disputed issue, and
in such case, the reasonable fees and expenses of such financial
or investment advisor shall be paid for by the Trust; provided,
however, that in any case where both the SCB and the Legal
Representative withhold concurrence on the ground that they
disagree or are dissatisfied with the financial or investment
advice received by the Trust on a matter as to which they both
have concurrence rights and it is determined in the dispute
resolution procedure that there is a reasonable basis for such
disagreement or dissatisfaction by both the SCB and the Legal
Representative, the Trust shall have the right to have determined
in such dispute resolution procedure the issue of whether it is
reasonable and necessary for the Trust to bear the fees and
expenses of separate financial or investment advisors for the SCB
and for the Legal Representative or whether instead the Trust's
obligations in such case shall be limited to paying the fees and
expenses of a single financial or investment advisor that may be
consulted jointly or separately by both the SCB and the Legal
Representative.
5. ACCESS TO FINANCIAL INFORMATION. Subject to entry into
-------------------------------
an appropriate confidentiality agreement where applicable, the
Trust shall make available to the SCB, the Legal Representative,
and the Special Advisor any other investment banking or other
financial, accounting or statistical information available to the
Trust relating to issues to be discussed with and/or as to which
concurrence is required of the SCB or the Legal Representative.
6. AMENDMENTS TO PROCEDURES INVOLVING THE PRO RATA SHARE.
-----------------------------------------------------
The procedures set forth herein governing the pro rata share may
--- ----
be amended, altered, or adjusted to reflect changed
circumstances, greater information, and/or improved procedures,
with the concurrence of the Trust, the SCB, and the Legal
Representative, after consultation with the Special Advisor.
7. RESOLUTION OF DISPUTES INVOLVING THE PRO RATA SHARE.
---------------------------------------------------
Any dispute among or between the Trust, the SCB, and the Legal
Representative, regarding any matter on which the Legal
Representative's concurrence is required, shall be resolved in
accordance with the dispute resolution process in Section J, and
the Legal Representative shall have a role in the dispute
resolution procedures equal to that of the SCB on such matters.
H. ALL TRUST BENEFICIARIES TREATED ALIKE.
-------------------------------------
In order to conserve the assets of the Trust, except as
set forth below, Trust Beneficiaries -- both plaintiffs and
defendants -- will dismiss, without prejudice, all present cases,
are enjoined from filing future litigation against Manville3 or
the Trust, and are required to pursue their claims against the
Trust only as provided in this TDP. Except as provided in
Section E above and subsection 1(c) below, the Trust will make no
appearance in any court, and no Trust Beneficiary will be
permitted to proceed in any manner against the Trust or Manville
in any state or federal court.
1. LITIGATION BETWEEN TRUST BENEFICIARIES.
--------------------------------------
(a) Section H Applicable Only to Trust Beneficiaries.
------------------------------------------------
The provisions of this Section H, including those relating to
<F3>
- ----------------
3 As used herein, Manville shall mean the Debtors, their
successors, and their subsidiaries and affiliates. To the
extent that Trust Beneficiaries assert claims against third
parties which a court of competent jurisdiction determines
by order give rise to Indemnification Liabilities on the
part of the Trust, those Trust Beneficiaries agree to reduce
such claims and/or judgments on such claims, on a dollar-for-
dollar basis, to the full extent necessary to extinguish any
such Indemnification Liabilities. Provided, however, that
this provision is not intended to otherwise restrict or
interfere with the rights of Trust Beneficiaries to proceed
against third parties.
</F3>
set-offs, are applicable only to Trust Beneficiaries. Asbestos
health plaintiffs who are not Trust Beneficiaries because they
were not exposed to Manville asbestos or asbestos-containing
products shall not be subject to any of the provisions of this
Section H and judgments they obtain against defendants shall not
be governed by the provisions of this Section H, including the
provisions relating to set-offs. Any dispute over whether an
asbestos health plaintiff is a Trust Beneficiary whose claim is
governed by this Section H shall be resolved by the trial court
hearing the asbestos health plaintiff's case against defendants.
The parties shall retain whatever rights of appellate review may
be available under applicable law in respect of such ruling.
(b) Right to introduce evidence. In any litigation
---------------------------
between Trust Beneficiaries, all Beneficiaries shall retain their
respective rights provided by applicable law to introduce
evidence at trial in state or federal court.
(c) Where third-party claims permissible. Third-party
------------------------------------
claims may be asserted against the Trust for the sole purpose of
listing the Trust on a verdict form or otherwise as necessary to
ensure that any verdict reduction in respect of the Manville (or
Trust) liability share is made pursuant to applicable law. No
objection shall be made by the Trust or the claimant to the
filing by a Co-Defendant of a third-party complaint or to the
joinder of the Trust as a party for this limited purpose only.
However, the Trust shall not be required to enter an appearance
as to third-party or any other claims, nor shall it be subject to
party discovery or to default judgment or levy and execution on
any judgment. Under no circumstances shall the Trust be required
to pay claims, whether for asbestos-related conditions or for
contribution or indemnification, except in accordance with this
TDP. Without enlarging any substantive rights accorded them by
this TDP, Co-Defendants shall have such procedural rights
(relating to procedural issues not expressly dealt with by this
TDP) reasonably necessary to pursue or defend rights accorded
them by this TDP.
(d) Status of the Trust. In return for limiting the
-------------------
right of Co-Defendants to implead the Trust, except under the
circumstances described in subsection 3(d)(ii)(B), below, the
Trust shall be treated in litigation between Beneficiaries of the
Trust as a legally responsible tortfeasor under applicable law,
without the introduction of further proof. Under no
circumstances shall the Trust be treated as a bankrupt unless:
1) formal bankruptcy, liquidation or insolvency
proceedings are commenced by the Trust; or 2) such proceedings
are commenced against the Trust and applicable law provides for
treating the Trust as a bankrupt in such circumstances.
(e) Discovery and informational issues. The Trust
----------------------------------
shall comply with the rules of discovery pertaining to non-
parties under applicable law.
(f) Verification of settlement information. In
--------------------------------------
response to a Co-Defendant request, the Trust and the claimant
shall promptly verify, no later than the start of jury selection
in the trial of an action by the claimant against the Co-
Defendant, the fact of any settlement or any filing by the
claimant of a claim with the Trust; and shall provide information
regarding the amount and terms of any such settlement at the time
and with the detail required by applicable law.
2. CO-DEFENDANT CONTRIBUTION CLAIMS AGAINST THE TRUST.
--------------------------------------------------
(a) General principles. Co-Defendant Contribution
------------------
Claims against the Trust may be satisfied in two ways: (i) in
the circumstances set forth in subsection 4, below, Contribution
Claims may be brought against the Trust and processed in
accordance with this TDP and subsection 4, below, or (ii) Co-
Defendants may receive credit at trial for the Trust (or
Manville) share in the form of a set-off (defined herein as a
reduction in the amount of a judgment) under the circumstances
described in subsection 3, below, and calculated pursuant to
applicable law. Except as described below, in order to preserve
the Trust's assets for payment of claims asserted by asbestos
health claimants and to limit transaction costs of all parties,
set-off credit shall be the preferred method of satisfying Co-
Defendant claims, regardless of whether the Trust and claimant
have liquidated the underlying claim.
3. CALCULATION OF SET-OFF. The manner of calculating
-----------------------
set-off shall be based on whether the claim has been liquidated
by the Trust and the applicable law of contribution and verdict
reduction or settlement credit.
(a) Calculation of Trust's payment. In situations
------------------------------
where the amount of the Trust's payment or expected payment to a
claimant is relevant to the set-off calculation, that amount
shall be determined as follows:
(i) For liquidated claims. Where the underlying
---------------------
claim has been liquidated, the amount of the Trust's payment to
the claimant (the "Liquidated Trust Payment") shall be (a) the
actual amount received to date by the claimant or (b) if no funds
have yet been received, the amount of the liquidated value agreed
to by the claimant and the Trust, multiplied by the pro rata
--- ----
share in effect at the time the set-off is being applied
(as described above in Section G).
-----
(ii) Unliquidated claims. Where the claim has
-------------------
not been liquidated, the amount of the Trust's payment to the
claimant (the "Unliquidated Trust Payment") shall be the amount
of the Scheduled Value, as further described in this TDP, for the
applicable disease category, multiplied by the pro rata share in
--- ----
effect at the time the set-off is being applied (as described
above in Section G).
(iii) Entitlement to subsequent Trust payment.
---------------------------------------
Where the amount of a set-off is calculated on the basis of
subsection 3(a)(i) or (ii), above, and a Co-Defendant has paid a
judgment based on joint and several liability or entered into a
post-judgment settlement with the claimant, the Co-Defendant
shall receive that portion of any future payment made by the
Trust in respect of the underlying asbestos health claim which
is: 1) beyond the amount of the set-off calculated pursuant to
subsections 3(a)(i) or (ii); and 2) attributable to that part of
claims tried against the Co-Defendant for which the Trust is
jointly and severally liable. The Co-Defendant shall have no
entitlement to subsequent Trust payments when the amount of a set-
off is calculated on the basis of the Trust's pro rata share
--- ----
or its allocated liability share.
(b) Pro tanto states. Pro tanto states are those in
---------------- --- -----
which any judgment against a non-settling defendant is reduced by
the amount paid or agreed to be paid by a released party.
(i) Liquidated claims. Where the underlying
-----------------
claim has been liquidated, the amount of set-off shall be the
Liquidated Trust Payment.
(ii) Unliquidated claims. Where the claim has
-------------------
not been liquidated, the amount of set-off shall be the
Unliquidated Trust Payment.
(c) Pro rata states. In pro rata states, total
--------------- --- ----
liability is divided equally among all defendants found by the
fact finder to be legally responsible tortfeasors (or agreed by
the parties to be legally responsible tortfeasors, if applicable
law so provides), including released parties. In such states,
judgments against nonsettling defendants are reduced, as provided
by applicable law, by either the pro rata share attributable to
--- ----
released parties or the amount paid or agreed to be paid by
released parties. Solely for the purposes of obtaining a set-off
in a pro rata state pursuant to this subsection 3(c), regardless
--- ----
of whether the Trust has been given a release, or the wording of
any such release, claimants in pro rata states shall be deemed to
--- ----
have given the Trust a joint tortfeasor release and indemnified
the Trust against contribution and indemnity claims by Co-
Defendants against the Trust arising from a judgment obtained by
such claimants.
(i) Liquidated claims. Where the underlying
-----------------
claim has been liquidated, the set-off amount shall be either (a)
the Liquidated Trust Payment, or (b) the Trust's pro rata share
--- ----
of the judgment, as provided by applicable law.
(ii) Unliquidated claims. Where the underlying
claim has not been liquidated, the set-off amount shall be either
(a) the Unliquidated Trust Payment, or (b) the Trust's pro rata
--- ----
share of the judgment, as provided by applicable law.
(d) Allocation or apportionment states. Allocation or
----------------------------------
apportionment states provide that the amount of any judgment
shall be reduced with reference to the apportioned share of
released or absent parties. The burden of proving the percentage
liability share of the Trust or Manville shall be allocated as
provided by applicable law.
(i) Liquidated claims. Where the underlying
-----------------
claim has been liquidated, the set-off shall be the larger of (a)
the Liquidated Trust Payment, or (b) the liability share
allocated by the fact finder to the Trust or Manville.
(ii) Unliquidated claims. Where the underlying
-------------------
claim has not been liquidated, the claimant shall make the
following election:
(A) To pursue his or her claim against the Trust,
in which event any Co-Defendant(s) against whom a judgment is
returned shall receive a set-off equal to the larger of (i) the
Unliquidated Trust Payment, or (ii) the liability share allocated
by the fact finder to the Trust or Manville. If there are
multiple settling tortfeasors, state law shall govern whether the
set-offs attributable to such settlements are calculated in the
aggregate or individually for each settling tortfeasor; or
(B) To agree not to pursue his or her claim
against the Trust in which event there shall be no set-off in
respect of the Trust, except in the circumstances set forth in
subsection 3(d)(ii)(E), below. At such time as a Co-Defendant
remaining at verdict pays the resulting judgment or enters into a
post-verdict4 or post-judgment settlement with the claimant, the
Co-Defendant shall have the right to bring a Contribution Claim
against the Trust, as set forth in subsection 4, below. Nothing
in this paragraph shall modify the several liability of the Trust
or Co-Defendants in jurisdictions providing for several liability
as set forth by subsection 3(e) below.
(C) The election required under this subparagraph
shall be made by the claimant either (i) in open court on the
record, or (ii) in writing to the Trust and to those Co-
Defendants then remaining at trial no later than the point in
time described in subsection 3(d)(iii)(D), below.
(D) The election required under this subparagraph
shall be made after the completion of jury selection and before
opening argument, unless the claimant chooses to make the
election earlier. In the case of bifurcated or multiphase
trials, the claimant shall make the required election before
opening argument (or, if no opening argument is had as to that
phase, before the presentation of evidence commences) in the
first trial phase addressing any issue, such as damages, product
exposure or identification, or specific causation, which is
individual to that claimant. For this purpose, issues such as Co-
Defendant negligence, product defect and liability for punitive
damages shall not be considered issues individual to a particular
claimant.
(E) Notwithstanding any other provision of this
subparagraph, a claimant may elect to pursue his or her claim
against the Trust following a previous election not to do so if
any of the Co-Defendants that went to judgment declare bankruptcy
before paying the judgment or entering into a post-judgment
<F4>
- ----------------
4 As used in this Section H, the term "post-verdict settlement,"
shall refer to a settlement reached after the fact-finder has
rendered a verdict establishing the amount of the claimant's
compensatory damages.
</F4>
settlement with the claimant. The plaintiff shall be required to
make such election within 60 days of the Co-Defendant's
bankruptcy filing and shall notify the Trust and the Co-Defendant
of such election in writing. If the claimant makes such an
election, any other nonbankrupt Co-Defendant(s) that went to
judgment shall receive a set-off pursuant to subsection
3(d)(ii)(A) above, except that a nonbankrupt Co-Defendant which
had previously paid the judgment or entered into a post-judgment
settlement prior to the plaintiff's revised election shall retain
its rights to make a Contribution Claim against the Trust under
subsection 4, below.
(F) The beneficiaries of the Trust disagree as to
whether the provisions of this TDP will render the Trust a party
over whom plaintiffs are unable to obtain jurisdiction within the
meaning of NY CPLR 1601. To resolve this controversy, the
parties stipulate and agree for themselves and all members of
their respective classes, that in cases to which the limitation
on joint liability provided by NY CPLR 1601 would apply they
shall divide the Trust's or Manville's share of liability among
themselves as follows, notwithstanding any contrary provision of
this Section H (including subsection 1(d) above to the extent, if
any, it may be deemed to be contrary to this subsection), law or
judicial decision: 80% of the Trust's or Manville's share shall
be allocated as if the Trust were a party over whom jurisdiction
could not be obtained, and the other 20% shall be borne by the
plaintiffs. The burden of proving the Trust's or Manville's
share of liability shall be allocated as provided by applicable
law.
(e) Several liability states. Where the applicable
------------------------
state or other law provides for several liability (as
distinguished from joint and several liability) for all or part
of a cause of action, applicable law shall determine the effect
of the several liability of the Trust and/or the Co-Defendants on
the amount of any set-off and the entitlement of Co-Defendants to
future payments from the Trust. In such jurisdictions, claimants
shall retain their claims against the Trust to the extent those
claims are based on several liability regardless of the other
provisions of this Section H, and Co-Defendants shall bear no
responsibility for the several liability of the Trust, except as
mandated by applicable law.
(f) States with multiple set-off rules. In some
----------------------------------
states, different set-off rules (pro tanto, pro rata or
--- ----- --- ----
apportionment) govern different causes of action or parts thereof
or different elements of damages. In such states, applicable law
shall govern which set-off rules apply to each cause of action or
part thereof and each element of damages.
(g) Application of set-off to claims tried and
-------------------------------------------
categories of damages. Where the judgment against
- ---------------------
Co-Defendant(s) resolves only a portion of the claimant's Trust
Claim (for example, personal injury as distinct from wrongful
death claims), the dollar amount of the Liquidated Trust Payment
used in calculation of any reduction or set-off shall reflect any
apportionment made by the Trust and the claimant reasonably and
in good faith with regard to rights of the Co-Defendants under
this TDP, provided that the Co-Defendants shall retain any rights
--------
available to them under applicable law to challenge such
apportionment. If the claimant has not liquidated his or her
Trust Claim, the trial court shall allocate the Unliquidated
Trust Payment between claims tried and not tried for purposes of
calculating the set-off. In addition, wherever applicable law
calls for apportionment of economic and non-economic damages, the
value assigned to the set-off in respect of the Trust's share
shall be allocated between economic and non-economic damages in
the same proportion that the judgment or underlying verdict
against the Co-Defendant allocated such damages, notwithstanding
any apportionment set forth in individual settlement documents
between the Trust and the claimant.
(h) Determination of disease category. Unless the
---------------------------------
plaintiff elects otherwise prior to the time the verdict is
returned, the disease category to be used for purposes of
calculating set-off shall be as set forth below:
1. If the plaintiff claimed at trial that the disease was
mesothelioma, Category VII
2. If the plaintiff claimed at trial that the disease was
lung cancer, Category VI
3. If the plaintiff claimed at trial that the disease was
other cancer, Category IV
4. If the plaintiff claimed at trial that the disease was
a non-malignant condition caused by asbestos, Category
III
In the event the plaintiff claimed two diseases at trial,
the categorization shall be that of the disease with the higher
Scheduled Value, unless the jury specifically finds that the
plaintiff does not have that disease.
If the plaintiff elects not to follow the procedure set
forth above for determining the disease category to be used in
calculating set-off, the following procedures shall govern. At
or before the verdict molding stage, Co-Defendant and claimant
Beneficiaries shall use their best efforts to agree on the
appropriate disease category for purposes of establishing the
Unliquidated Trust Payment of a claim. In the event of
disagreements, the issue shall be decided by the trial court,
based on the disease criteria set forth at Section D and the
medical records and testimony submitted by plaintiff at trial.
The parties shall give notice to the Trust of the agreed-upon
disease category or of the submission of the issue to the trial
court. The Trust shall be bound by the court's ruling or the
parties agreed-upon determination.
4. CONTRIBUTION CLAIMS.
-------------------
(a) Right to pursue Contribution Claims retained. Co-
--------------------------------------------
Defendants shall have the right to pursue Contribution Claims (i)
in connection with claims arising under the circumstances
described in subsection 3(d)(ii)(B) above; and (ii) in any
circumstance where no set-off credit is allowed by the trial
court although this TDP would provide for a set-off. In
addition, in cases where the claimant and the Trust have not
liquidated the claim, a Co-Defendant may, at its sole discretion,
pursue a Contribution Claim against the Trust, rather than taking
a set-off credit, provided that if the Co-Defendant chooses to
appeal the judgment in respect of the claim, the Co-Defendant
shall have first paid an amount equal to the Unliquidated Trust
Payment to the claimant. Any such choice by a Co-Defendant need
not be made until the amount of the set-off credit is calculated
by the trial court, and the Co-Defendant shall not be eligible to
make the Contribution Claim until it has paid the judgment or
entered into a post-judgment or post-verdict settlement with the
claimant. Under no circumstances shall the right to make any
Contribution Claim under this TDP be lost by virtue of the fact
that a Co-Defendant has paid the judgment against it or entered
into a post-judgment or post-verdict settlement with the
claimant.
(b) Notification of Contribution Claims. If a
-----------------------------------
claimant accepts a Trust settlement, having obtained a verdict
establishing the amount of the claimants' compensatory damages
and one or more of Co-defendants' liability therefor, or a
judgment against Co-defendant(s), and thereafter the Trust pays a
Contribution Claim arising from such verdict or judgment, the
claimant shall be liable to the Trust for the amount of the Trust
payment to the claimant. Co-defendants shall notify the Trust
within 60 days of the return of a verdict or a judgment in favor
of a claimant on which they may base a Contribution Claim. If a
Co-defendant fails to notify the Trust within the 60-day period,
the Co-defendant's right to be paid with respect to the
Contribution Claim is preserved only if such notice is received
by the Trust prior to the Trust making a payment to the claimant
who obtained the verdict or judgment against Co-defendant(s).
The Trust shall notify Co-defendants of the asbestos health
claimants to whom it intends to make offers no later than 60 days
before such offers are made.
(c) Processing, valuation and payment of Contribution
-------------------------------------------------
Claims. Contribution Claims made to the Trust based on payment
- ------
or settlement of a judgment shall be processed in FIFO order of
their receipt by the Trust, without reference to any queue
established for claims of asbestos health claimants.
Contribution Claims shall be processed in the same fashion as
claims of asbestos health claimants except that all arbitrations
of Contribution Claims shall be binding. Such claims shall be
valued as if the Co-Defendant(s) had stepped into the shoes of
the claimant whose verdict against Co-Defendant(s) gave rise to
the claim for contribution; all Co-Defendant(s) with valid
Contribution Claims shall therefore be entitled to recover from
the Trust on their Contribution Claim(s) the same amount, in
aggregate, the claimant could have recovered from the Trust. In
determining the value of the claim, the Trust may take into
account the size of the verdict returned against the Co-
Defendant(s). Contribution Claims shall be paid in the same
manner as claims of asbestos health claimants are paid pursuant
to Sections F and G, above, and shall be subject to the same pro
---
rata share provisions applicable to all other claims by Trust
- ----
Beneficiaries. Any information submitted by a Co-Defendant to
the Trust pursuant to this subsection 4 shall be kept
confidential by the Trust and shall not be disclosed to any other
Beneficiary.
(d) Co-Defendants' Contribution Claims pursued
------------------------------------------
jointly. All Co-Defendants with Contribution Claims arising from
- -------
the same judgment by a claimant shall use their best efforts to
pursue such contribution claims in a coordinated fashion.
5. RIGHT TO MAKE INDIVIDUAL ALLOCATION AGREEMENTS.
----------------------------------------------
Nothing in this Section H shall prevent claimants and Co-
Defendants from agreeing in writing in individual cases to
allocate their respective claims against the Trust in such manner
as they deem appropriate.
6. INDEMNITY CLAIMS. Any Trust Beneficiary holding an
----------------
Indemnity Claim valid under applicable law, which was not waived
pursuant to the applicable provisions of the Co-Defendants'
Procedures, and who is not a Distributor within the meaning of
subsection 8 below, may assert such Indemnity Claim either in the
Cases, as provided by the Co-Defendants' Procedures, or may
present it to the Trust. If a Beneficiary elects to present an
Indemnity Claim to the Trust, it shall be processed in the same
fashion as Contribution Claims are processed under subsection 4,
above. Indemnity Claims shall be valued by the Trust as provided
by applicable law and shall be subject to the provisions relating
to payment and pro rata shares that are set forth in Sections F
--- ----
and G, above.
7. DISTRIBUTOR INDEMNITY CLAIMS. Any Trust Beneficiary
----------------------------
that is a Distributor may present Distributor Indemnity Claims to
the Trust for processing and payment pursuant to the provisions
of this subsection 7.
(a) Definitions. A Distributor is any entity that:
-----------
1) was engaged in the business of distributing Manville asbestos
or asbestos-containing products; 2) was not engaged in the
business of mining asbestos or manufacturing asbestos-containing
products; and 3) is not a member of the MacArthur Subclass. A
Distributor Indemnity Claim means any Indemnity Claim by a
Distributor which constitutes a valid claim for indemnification
under applicable law. Distribution means the purchase, shipment,
storage, sale and delivery of asbestos or asbestos-containing
products which were not remanufactured, altered, relabelled or
installed by the Distributor.
(b) Distributor Indemnity Claims Not Waived. No
---------------------------------------
Distributor shall be deemed to have waived Distributor Indemnity
Claims by any of the following: 1) failing to comply with the
provisions of Sections II and III.D.1 of the Co-Defendants'
Procedures, including not filing a timely proof of claim for
Indemnity in the Cases; 2) the making of the Contribution Claim
Election; or 3) the expungement of any Proof of Claim for
Indemnity by the Bankruptcy Court.
(c) Distributor Indemnity Claim Percentage. The
--------------------------------------
Distributor Indemnity Claim percentage is the proportion of a
Distributor's asbestos-related loss in any particular case which
shall be treated by the Trust as constituting a Distributor
Indemnity Claim. Distributors who meet the following two
requirements shall have the right to process Indemnity Claims
against the Trust using the Distributor Indemnity Claim
percentage described below: 1) 35% or more of the asbestos or
asbestos-containing products purchased by the Distributor were
distributed by it; and 2) 35% or more of the asbestos or asbestos-
containing products distributed by the Distributor were purchased
from Manville.
Except as specifically provided otherwise in the
Stipulation of Settlement, the Distributor Indemnity Claim
percentage shall be equal to the product of: (i) the percentage
of asbestos or asbestos-containing products distributed by the
Distributor that it purchased from Manville; (ii) the percentage
of asbestos or asbestos-containing products purchased by the
Distributor which were distributed by it; and (iii) 95% if the
Distributor filed a proof of claim for indemnity in Manville's
bankruptcy which was not expunged and 86% otherwise.5 Thus, by
way of example only, a Distributor that purchased 50% of the
asbestos it dealt in from Manville, and which distributed 50% of
the asbestos it purchased, and that filed a timely proof of claim
would be assigned a Distributor Indemnity Claim percentage of
23.75% (50% x 50% x 95%).
(d) Setting a Distributor Indemnity Claim Percentage.
------------------------------------------------
The Distributor Indemnity Claim percentage applicable to a
particular Distributor shall be determined by the following
procedures.
<F5>
- -------------------
5 These three factors are hereinafter referred to as the
components of the Distributor Indemnity Claim percentage.
</F5>
First, a Distributor must make a written submission to the
Trust setting forth its position concerning the proper
Distributor Indemnity Claim percentage for that Distributor and
each component of that percentage. The Trust shall promptly
notify the SCB of the Distributor's submission, the proposed
Distributor Indemnity Claim percentage and each component
thereof. The SCB may share such information only with those
persons necessary to enable the SCB to respond to the
Distributor's submission. The SCB shall have 45 days from
receipt of such notice to make its own written submission to the
Trust concerning the proper Distributor Indemnity Claim
percentage for the Distributor, together with such supporting
documents as the SCB deems appropriate.
By the same date the SCB's submission is due, the
Distributor shall submit to the Trust all documents in support of
its position it wishes the Trust to consider. Such information
provided by the Distributor shall be kept confidential by the
Trust and shall not be shared with any other Beneficiary. Within
10 days following the date the SCB's submission is due, the Trust
shall determine the Distributor Indemnity Claim percentage, and
shall notify the Distributor and the SCB of its determination.
If either is dissatisfied, they may present the issue to the
Special Advisor for mediation.
The Special Advisor shall receive copies of all
submissions presented to the Trust. If the Special Advisor is
unable to resolve the issue through mediation, it shall be
resolved by binding arbitration. The Special Advisor shall
nominate three potential arbitrators (none of whom shall be
counsel representing any Trust Beneficiary), each party shall
strike one and the remaining nominee shall be the arbitrator. If
both parties strike the same nominee, the Special Advisor shall
select the arbitrator from the remaining two nominees. The
arbitrator shall determine the procedures for the arbitration.
The arbitrator's determination of the appropriate Distributor
Indemnity Claim percentage shall be final and binding on the
Distributor, the Trust and the SCB. If this process results in a
determination that less than 35% of the asbestos purchased by a
Distributor was distributed by it or less than 35% of the
asbestos or asbestos-containing products it purchased was from
Manville, the Distributor shall not have the right to process its
claims using a Distributor Indemnity Claim percentage (unless
special circumstances are presented to and accepted by the Trust,
as described below) and shall instead process its claims on a
case-by-case basis as provided by subsection 7(f), below. Upon
demonstration of special circumstances warranting such treatment,
the Trust may in its discretion permit a Distributor to process
its claims using a Distributor Indemnity Claim percentage even if
the Distributor fails to meet the requirement set forth in the
preceding sentence.
(e) Processing Distributor Indemnity Claims with a
----------------------------------------------
Percentage. Once a Distributor Indemnity Claim percentage
- ----------
has been established for a Distributor, the Distributor shall make
any Distributor Indemnity Claims by submitting proof to the Trust
that it has sustained an asbestos-related loss in a case which
has been finally resolved by settlement, judgment or otherwise.
Upon proof of such a loss, the Trust shall process and pay, in
accordance with the procedures set forth in Section F, an amount
equal to the Distributor Indemnity Claim percentage of such loss
times the same pro rata share applicable to all Trust Claims, as
described in Section G.
Distributor Indemnity Claims shall be processed and paid
by the Trust in FIFO order in a queue separate from the queues
for other Trust Claims. The Trust, in consultation with counsel
for the Manville Distributors Subclass, shall establish
appropriate forms and procedures for processing Distributor
Indemnity Claims.
(f) Processing Distributor Indemnity Claims With No
-----------------------------------------------
Percentage. Distributors who do not have the right to process
- -----------
claims using a Distributor Indemnity Claim percentage shall
present any Indemnity Claims to the Trust on a case-by-case
basis. The Distributor must establish that the particular loss
it suffered gives rise to a right of indemnity against the Trust
under applicable law. The Trust shall value such claims as
provided by applicable law. They shall be processed and paid
their pro rata share in FIFO order, in accordance with the
procedures set forth in Sections F and G. The Trust, in
consultation with counsel for the Manville Distributors Subclass,
shall establish appropriate forms and procedures for processing
such Distributor Indemnity Claims.
(g) Distributor Information Confidential. Any
------------------------------------
information submitted by a Distributor to the Trust pursuant to
this subsection 7 (other than a proposed Distributor Indemnity
Claim percentage and the components thereof) shall be kept
confidential by the Trust and shall not be disclosed to any other
Beneficiary.
8. NO MODIFICATIONS WITHOUT CONSENT. The terms of this
--------------------------------
Section H of this TDP may not be modified without the
concurrence of the SCB. In addition, subsections 1-5 and 8-9 of
this Section H may not be modified without the concurrence of
counsel for the Co-Defendant Manufacturers Subclass and
subsections 7-10 may not be modified without the concurrence of
counsel for the Manville Distributors Subclass. In addition, any
changes to subsections 1-5 of this Section H which would
explicitly treat members of the Manville Distributors Subclass
less favorably than members of the Co-defendant Manufacturers
Subclass shall also require the concurrence of counsel for the
Manville Distributors Subclass. No procedures relating to
arbitration of Trust Claims, to be established pursuant to
Section E of this TDP, shall be instituted or modified without
the concurrence of counsel for the Co-Defendant Manufacturer
Subclass; such counsel shall also receive the same notice, in the
same form and at the same time, given to the SCB with respect to
any matter for which the Trust must consult with, or seek the
concurrence of, the SCB.
9. APPLICABLE CLAIMS. The provisions of this Section H
-----------------
shall apply to all Contribution Claims and Indemnity Claims
except those resolved pursuant to the Stipulation of Settlement,
executed on July 25, 1994. The set-off provisions of this
Section H, set forth in subsection 3, shall apply with respect to
all cases tried among Trust beneficiaries after the effective
date of this TDP, regardless of whether the plaintiff's Trust
Claim was liquidated or otherwise resolved by the Trust prior to
or after that date.
10.CONCURRENCE AND CONSULTATION PROCEDURES. The
---------------------------------------
procedures set forth in Section J shall apply with respect to
any matter as to which counsel for the Co-Defendant Manufacturers
Subclass or the Manville Distributors Subclass have concurrence
or consultation rights under this Section H.
I. ATTORNEYS' FEES.
---------------
Attorneys' fees payable in connection with Trust Claims
liquidated and paid through this TDP after this TDP is finally
approved by the Courts, where calculated as a percentage of
recovery, shall be the lower of the fee provided in the contract
between claimant and counsel or 25%, exclusive of costs
chargeable to the claimant. The recovery shall be measured by
the actual payments from the Trust to the claimant, not the
liquidated value of the claim. Legal fees shall be paid as
payments to claimants are made by the Trust.
J. CONSULTATION PROCEDURES; CONCURRENCE PROCEDURES;
RESOLUTION OF DISPUTES INVOLVING CONCURRENCE OF THE SCB.
-------------------------------------------------------
1. CONSULTATION PROCEDURES. With respect to any matter
-----------------------
relating to the Trust as to which the SCB have expressly been
given the right to be consulted, the Trust shall provide to the
SCB, through their counsel, as much advance notice of such matter
as is reasonably practicable in the circumstances. Upon such
notice, the Trust will provide the SCB with such reasonable
access to experts retained by the Trust and to the Trust staff as
the SCB may reasonably request during the time that the Trust is
considering such matter and will provide the SCB with the
opportunity, at reasonable times and for reasonable periods of
time, to discuss and comment on such matter with one or more
Trustees and senior management of the Trust. In determining when
to give such advance notice to the SCB with respect to a matter
as to which the SCB have such consultation rights, the Trust will
take into consideration the time required for the SCB, if they so
wish, to engage and consult with their own independent financial
or investment advisors as to such matter and to ask the Trust
whether the Trust would be willing to bear the cost of such
engagement and consultation (it being expressly understood and
agreed that the Trust shall have no obligation or duty of any
kind whatsoever to bear any such cost or otherwise to provide any
such independent financial or investment advice). Unless the
Trust shall, in its sole and absolute discretion, expressly elect
in writing to bear some or all of such cost, any such engagement
of or consultation with financial or investment advisors shall be
at the SCB's sole cost and expense.
2. CONCURRENCE PROCEDURES. "Concurrence" means the
----------------------
unconditional consent (expressed to the Trust in writing, if
requested by the Trust, in form and substance reasonably
satisfactory to the Trust) to a Trust action or decision as
described by the Trust in its request for such concurrence. In
any circumstance hereunder where the Trust makes a decision with
respect to matters which require the concurrence of the SCB, the
Trust shall:
(i) provide the SCB and the Special Advisor with reasonable
access to experts retained by the Trust and Trust staff
during such time as the decision is being made;
(ii) bring the proposed decision to the attention of the SCB
and the Special Advisor; and
(iii)provide the SCB no fewer than 45 days to comment with
respect to such proposed decision.
In the event the SCB disagree with the Trust's decision,
they shall express their views as fully as possible to the Trust
and make such counterproposal as may be appropriate. The Trust
and SCB shall thereupon consult together with the Special Advisor
in an effort to reach concurrence.
3. DISPUTE RESOLUTION.
------------------
(a) While it is anticipated that the mutual interests
of the Trust and the SCB, together with the sharing of
information which is envisioned under this TDP, are likely to
yield concurrence whenever called for under this TDP, there may
be situations where a genuine disagreement arises which would
have the effect of preventing or permitting steps to be taken to
which either the Trust or SCB do not agree. In such event,
either the Trust or the SCB may request that the dispute be
resolved and, pending resolution of the dispute, the actions in
questions shall remain in abeyance.
(b) If and when the Trust or the SCB shall ask that a
dispute be resolved, the following procedure shall be applied:
(i) the Trust and SCB may agree upon an individual to serve
as a dispute resolver;
(ii) if there is no agreement, the Special Advisor shall
nominate three separate individuals to serve as the
dispute resolver, selecting them based upon the Special
Advisor's knowledge of the issues in dispute and of the
competencies of the individuals to be selected;
(iii)the Trust shall strike one of the three nominees;
(iv) the SCB shall next strike one of the remaining two
nominees; and
(v) the remaining nominee shall serve as the dispute
resolver and his/her decision shall be final and
binding on the Trust and the SCB.
(c) If the dispute resolver finds in favor of the
Trust, the SCB shall be deemed upon the issuance of such finding
to have given their concurrence to the matter for which their
concurrence had been sought and had been withheld, and the SCB
will execute and deliver such documents, and take such other
action, as the Trust may reasonably request to evidence or
confirm such concurrence.
(d) In such a dispute resolution process, the Trust
and the SCB shall have an opportunity to fully explain their
positions to the dispute resolver and the Special Advisor shall
be available to assist. The dispute resolver shall be empowered
to engage such expert advice as he/she shall deem appropriate.
(e) With respect to any matters that require the
concurrence of the Legal Representative, the concurrence and
dispute resolution procedures set forth herein shall apply and be
followed with equal force with respect to the Legal
Representative as they apply and are followed with respect to the
SCB. Thus, when a dispute on such a matter arises, and the
parties fail to agree on an arbitrator, the Special Advisor shall
nominate four individuals to serve as the dispute resolver, and
the Trust, the SCB, and the Legal Representative shall each
strike one of the nominees.
(f) In the event that a dispute involves distribution
of Trust funds, any distribution of amounts covered by the
dispute shall await conclusion of the dispute resolution process.
(g) Any dispute relating to concurrence with respect
to an amendment of the Trust Agreement or the Amended and
Restated Supplemental Agreement dated as of November 15, 1990
between the Trust and the Company (the "Amended and Restated
Supplemental Agreement") will be resolved in accordance with, and
will otherwise be subject to, the special provisions with respect
to such disputes set forth in Section K below.
K. MISCELLANEOUS.
-------------
1. Except as provided in the next sentence and in Section
H, all aspects of this TDP may be amended, altered or adjusted by
the Trust to reflect changed circumstances, greater information
and/or to improve procedures with the concurrence of the SCB,
after consultation with the Special Advisor. The procedures set
forth herein governing the pro rata share, the Scheduled
Diseases, Categorization Criteria, and Scheduled Values set forth
in Section D above, and the Maximum Values set forth in
Attachment A, may be amended, altered or adjusted to reflect
changed circumstances, greater information and/or improved
procedures by the Trust, with the concurrence of the SCB and the
Legal Representative, after consultation with the Special
Advisor.
2. Any amendment of the Trust Agreement or the Amended and
Restated Supplemental Agreement will require the concurrence of
the SCB, which concurrence shall not be unreasonably withheld or
delayed. If the Trust believes that the SCB are unreasonably
withholding or delaying such concurrence, the Trust shall have
the right, at its option, either:
(i) to seek an Order from the Courts permitting the Trust
to make such amendment without the concurrence of the
SCB, and if such Order is granted and becomes final and
nonappealable, the Trust shall have the right to make
such amendment without such concurrence; or
(ii) to request that the dispute be resolved pursuant to the
procedure for final and binding resolution of disputes
involving concurrence of the SCB provided in Section J
above; and in the case of a request pursuant to this
clause (ii), the following terms shall apply:
(A) the SCB, the Trust and the Special Advisor shall
cause the dispute resolver to be selected within
five days after such request is made, in
accordance with subsection J.3(b)(i)-(v) above;
(B) it shall be a condition to the selection of such
dispute resolver that he/she agree to render
his/her determination within ten days of his/her
selection to act as dispute resolver for such
dispute; and
(C) the SCB and the Trust shall jointly direct such
dispute resolver (and shall each use best efforts
to cause and assist such dispute resolver) to make
his/her final and binding determination, and to
notify the parties thereof, within ten days after
such selection is made.
3. In the event that the positions of the SCB are no
longer filled as described in the Manville Corporation Second
Amended and Restated Plan of Reorganization, the appointment of
three attorneys to fill that role shall be made from time to time
by the President of the Association of Trial Lawyers of America
or his/her designee. The Special Advisor shall be appointed from
time to time by the Trust with the concurrence of the SCB.
Initially, that role shall be filled by Mark Peterson, Esq.
4. Subject to the terms of subsection G.4, the reasonable
expenses of the SCB and the Legal Representative, together with
the reasonable fees and expenses of their counsel, and the
reasonable charges and expenses of the Special Advisor and of any
dispute resolver, shall be borne by the Trust; provided, however,
that if the Trust believes that any concurrence with respect to
an amendment of the Trust Agreement or the Amended and Restated
Supplemental Agreement is being unreasonably withheld or delayed,
the Trust reserves the right to refuse to pay the fees and
expenses of counsel to the SCB in connection therewith
(including, without limitation, counsel fees and expenses
incurred in connection with any opposition or challenge by the
SCB or their clients to the action(s) with respect to which such
concurrence is being withheld or delayed). However, if the SCB
obtain an Order from the Courts directing the Trust to pay such
fees and expenses on the ground that the Trust's refusal to do so
is improper, and such Order becomes final and nonappealable (or
if the Trust elects to have the dispute concerning such
concurrence resolved pursuant to the Section J ADR Process as
provided in subclause (ii) of this Section K and the dispute is
resolved in favor of the SCB), the Trust will pay such fees and
expenses as are specified in such final and nonappealable Order
(or in the determination made by the dispute resolver).
5. Solely with respect to those issues on which their
concurrence is required under this TDP or on which the Trust is
required to consult them, the Trust shall bear the reasonable
fees and expenses of counsel for the Co-Defendant Manufacturers
Subclass and the Manville Distributors Subclass subject to the
same reservation applicable to the fees and expenses of the SCB
set forth in Section K.4 above.
6. No one acting in his/her capacity as one of the
Trustees, the SCB, the Legal Representative, the Special Advisor,
and/or dispute resolver shall be liable to any entity or person
except for his/her own gross negligence or willful misconduct.
Solely to the extent they are exercising their concurrence or
consultation rights under this TDP, counsel for the Manville
Distributors Subclass and the Co-Defendant Manufacturers Subclass
shall have the same limitation on their liability.
<PAGE>
ATTACHMENT A -- MAXIMUM VALUE
-----------------------------
The Maximum Values listed below for each of the seven
Scheduled Diseases represent a ceiling or upward limit on the
liquidated value of any claim settled by individual evaluation or
by arbitration, except for Extraordinary Claims as described in
Section C. In addition, if a claimant litigates a claim and
obtains a judgment in excess of the Maximum Value, any pro rata
payment with respect to the excess amount will be made only from
Pool B, which, as described in Section F, may never contain funds
from which such payment can be made.
Maximum
Category Scheduled Disease Value
-------- ----------------- -------
I Bilateral Pleural Disease $ 30,000
II Nondisabling Bilateral
Interstitial Lung Disease $ 40,000
III Disabling Bilateral
Interstitial Lung Disease $300,000
IV Other Cancer $200,000
V Lung Cancers (One) $400,000
VI Lung Cancers (Two) $400,000
VII Malignant Mesothelioma $500,000
<PAGE>
ANNEX D TO
AMENDED AND RESTATED
TRUST AGREEMENT
Second Amended and Restated
Supplemental Agreement
Incorporated by reference to Exhibit A to the Profit
Sharing Exchange Agreement constituting Exhibit 1 to Amendment
No. 10 to the Schedule 13D.
