UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 10-K/A
AMENDMENT NO. 1
(Mark One)
/x/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED] FOR THE
FISCAL YEAR ENDED DECEMBER 31, 1993
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the
transition period from _________ to __________
Commission file number 0-016951
FIBREBOARD CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 94-0751580
(State of incorporation) (I.R.S. Employer
Identification No.)
2121 NORTH CALIFORNIA BLVD., SUITE 560,
WALNUT CREEK, CALIFORNIA 94596
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (510) 274-0700
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.01 PAR VALUE
(Title of Class)
Indicate by check mark whether the Registrant: (1) has
filed all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes /x/ No / /
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein, and
will not be contained, to the best of Registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of the Form 10-K or any amendment to this Form
10-K. /x/
The aggregate market value of voting stock held by
nonaffiliates of the Registrant as of March 21, 1994 was
$158,676,282.
As of the close of business on March 21, 1994, the
Registrant had outstanding 4,201,420 shares of common stock.
DOCUMENTS INCORPORATED BY REFERENCE.
Portions of Fibreboard Corporation's Proxy Statement
relating to its 1994 Annual Meeting of Stockholders are incorporated
by reference in Part III.
<PAGE>
FIBREBOARD CORPORATION
FORM 10K FOR YEAR ENDED DECEMBER 31, 1993
THE REGISTRANT HEREBY AMENDS THE FOLLOWING ITEMS OF ITS FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1993:
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON
FORM 8-K
(a) Financial Statements, financial statement schedules and
exhibits filed in this report.
1. Index to Financial Statements and Supplementary Data. See
page 20.
2. Index to Financial Statement Schedules. See page 56.
3. The following exhibits are filed as part of this Form 10-K:
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
3.1 Fibreboard's Restated Certificate of Incorporation
(incorporated herein by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
3.2 Fibreboard's Restated Bylaws as amended June 8, 1993
(incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993).
4.1 Specimen Common Stock Certificate, $.01 par value
(incorporated herein by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
4.2 Rights Agreement dated as of August 25, 1988 between
Fibreboard Corporation and Bank of America, N.T. & S.A. as Rights
Agent (incorporated herein by reference from Fibreboard
Corporation's
Current Report on Form 8-K dated August 25, 1988).
4.2.1 Amendment No. 1 to Rights Agreement, dated as of
February 11, 1994, between Fibreboard Corporation and The First
National Bank of Boston (incorporated herein by reference from
Fibreboard Corporation's Form 8-A/A dated February 15, 1994).
10.1<F(*)> Form of Indemnification Agreement between Fibreboard
Corporation and each director and officer of Fibreboard Corporation
(incorporated herein by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
10.2 Asset Purchase Agreement dated February 22, 1988,
between Fibreboard Corporation and Gaylord Container Corporation
(incorporated herein by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
10.3 Fibreboard Corporation Restated 1988 Employee Stock
Option and Rights Plan (incorporated herein by reference from
Fibreboard Corporation's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1992).
2.
<PAGE>
10.4 Form of Fibreboard Corporation Profit Sharing 401(k)
Plan (incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1992).
10.5 Fibreboard Corporation 1988 Employee Stock Purchase
Plan (incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1988).
10.5.1 Prospectus Supplement (Appendix) to Registration
Statement on Form S-8 No. 33-26449 for Shares issuable under the
Fibreboard Corporation 1988 Employee Stock Purchase Plan (incorporated
herein by reference from Fibreboard Corporation's Annual Report on
Form 10-K for the year ended December 31, 1989).
10.6 Agreement of Compromise, Settlement and Release dated
May 27, 1987, between Fibreboard Corporation and The Home Insurance
Company (incorporated herein by reference from Fibreboard
Corporation's Registration Statement on Form 10 dated May 23, 1988,
as amended on June 28, 1988).
10.7 Fibreboard Corporation Structured Settlement Program
Description dated November 8, 1988 (incorporated herein by
reference from Fibreboard's Current Report on Form 8-K dated November
8, 1988).
10.8 Form of Structured Settlement Agreement (incorporated
herein by reference from Fibreboard's Current Report on Form 8-K
dated November 8, 1988).
10.9 Form of Stipulation Regarding Settlement Negotiations
and Right to Alternative Dispute Resolution (incorporated herein by
reference from Fibreboard's Current Report on Form 8-K dated
November 8, 1988).
10.10 Amended and Restated Trust Agreement dated September
29, 1989 by and among Fibreboard Corporation, the Trustees and the
Directors and Officers of Fibreboard (incorporated herein by
reference from Fibreboard Corporation's Annual Report on Form 10-K
for the year ended December 31, 1989).
10.11 Consulting/Sales Representation Agreement dated
February 20, 1989 between Distribution International and Pabco
Metals Corporation, a wholly-owned subsidiary of Fibreboard
Corporation (incorporated herein by reference from Fibreboard
Corporation's Current Report on Form 8-K dated February 20, 1989).
10.12<F(*)> Summary description of Fibreboard Corporation incentive
compensation arrangements.
10.13<F(*)> Employment Agreement dated July 2, 1991 between
Fibreboard Corporation and John D. Roach (incorporated herein by
reference from Fibreboard Corporation's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1991).
10.14 Second Amended and Restated Credit Agreement dated
February 14, 1992 between Snider Lumber Products Co., Inc. and
Wells Fargo Bank, National Association (incorporated herein by
reference from Fibreboard Corporation's Annual Report on Form 10-K for
the year ended December 31, 1991).
10.15 Accounts Financing Agreement and related documents
dated August 23, 1991 between Congress Financial Corporation (Western)
and Fibreboard Corporation (incorporated herein by reference from
Fibreboard Corporation's Annual Report on Form 10-K for the year
ended December 31, 1991).
3.
<PAGE>
10.16<F(*)> Form of Severance Agreement dated January 1, 1992
between Fibreboard Corporation and Messrs. Donohue, Costello, Douglas,
DeMaria, Elliott and Swan (incorporated herein by reference from
Fibreboard Corporation's Annual Report on Form 10-K for the year
ended December 31, 1991).
10.17 Agreement and related documents dated March 27, 1992
between Fibreboard Corporation and Pacific Indemnity Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1991).
10.18 Rescission of Insurance Policies dated March 27, 1992
between Fibreboard Corporation and Pacific Indemnity Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1991).
10.19<F(*)> Fibreboard Corporation Supplemental Retirement Plan
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1992).
10.20 Settlement Agreement dated January 1, 1993 between
Fibreboard Corporation and Continental Casualty Company
(incorporated herein by reference from Fibreboard Corporation's Annual
Report on Form 10-K for the year ended December 31, 1992).
10.21 Settlement Agreement dated January 1, 1993 between
Fibreboard Corporation and Fireman's Fund Insurance Company,
Insurance Company of North America and Royal Insurance Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1992).
10.22 Settlement Agreement between Fibreboard Corporation
and American Home Assurance Company, et al. (incorporated herein by
reference from Fibreboard Corporation's Annual Report on Form 10-K
for the year ended December 31, 1992).
10.23 Agreement of Purchase and Sale between Fibreboard
Corporation and Sierra Ski Ranch, Inc. dated as of June 11, 1993
(incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the period ended June 30, 1993).
10.24 Settlement Agreement among Fibreboard Corporation,
Continental Casualty Company and Ness, Motley, Loadholt, Richardson
& Poole and certain affiliated law firms dated as of August 5, 1993
(incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the period ended June 30, 1993).
10.25 Agreement between Fibreboard Corporation and
Continental Casualty Company dated April 9, 1993 (incorporated herein
by reference from Fibreboard Corporation's Current Report on Form 8-K
dated April 9, 1993).
10.26 Loan Agreement dated May 3, 1993 between First
Interstate Bank of Nevada, N.A. and Trimont Land Company (incorporated
herein by reference from Fibreboard Corporation's Quarterly Report on
Form 10-Q for the period ended September 30, 1993).
10.27 Loan Agreement dated September 17, 1993 between First
Interstate Bank of Nevada, N.A. and Sierra-at-Tahoe and Trimont
Land Company (incorporated herein by reference from Fibreboard
Corporation's Quarterly Report on Form 10-Q for the period ended
September 30, 1993).
10.28 Settlement Agreement dated October 12, 1993 among
Fibreboard Corporation, Continental Casualty Company, CNA Casualty
Company of California, Columbia Casualty Company and Pacific
Indemnity
4.
<PAGE>
Company (incorporated herein by reference from Fibreboard
Corporation's Quarterly Report on Form 10-Q for the period ended
September 30, 1993).
10.29 Supplemental Agreement dated October 12, 1993 between
Fibreboard Corporation and Continental Casualty Company and
Amendment to Supplemental Agreement, dated January 5, 1995 between
Fibreboard Corporation and Continental Casualty Company.
10.30 Global Settlement Agreement among Fibreboard
Corporation, Continental Casualty Company, CNA Casualty Company of
California, Columbia Casualty Company, Pacific Indemnity Company and
The Settlement Class, together with Exhibits A-E (incorporated herein
by reference from Fibreboard Corporation's Current Report on Form 8-K
dated December 23, 1993).
10.31<F(*)> Fibreboard Corporation Long-Term Equity Incentive
Plan.
22. Fibreboard Corporation Subsidiaries.
24. Consent of Arthur Andersen & Co.
<F(*)> Denotes management contract or compensation plan
identified pursuant to Item 14(a) (3) of Form 10-K.
(b) Reports on Form 8-K
The following Current Reports on Form 8-K were filed during the
period October 1, 1993 to December 31, 1993:
DATE OF REPORT EVENT REPORTED
November 17, 1993 Announcing Court of Appeal decision in
asbestos personal injury insurance coverage
litigation (In Re Asbestos Insurance Coverage
Cases).
December 23, 1993 Global Settlement Agreement among Fibreboard
Corporation, Continental Casualty Company,
CNA Casualty Company of California, Columbia
Casualty Company, Pacific Indemnity Company
and The Settlement Class.
5.
<PAGE>
LIST OF FINANCIAL STATEMENT SCHEDULES TO FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1993
SCHEDULE
VIII Valuation and qualifying accounts for each of the
three years in the period ended December 31, 1993
IX Short term borrowings for each of the three years
in the period ended December 31, 1993
X Supplementary income statement information for each
of the three years in the period ended December 31, 1993
Report of independent public accountants on financial
statement schedules.
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this amendment to be signed on its behalf by the undersigned thereunto
duly authorized.
FIBREBOARD CORPORATION
(Registrant)
Dated: July 21, 1995
By: /s/ JAMES P. DONOHUE
James P. Donohue
Senior Vice President,
Finance and Administration
and Chief Financial Officer
6.
<PAGE>
FIBREBOARD CORPORATION
EXHIBIT INDEX TO FORM 10-K FOR YEAR ENDED DECEMBER 31, 1993
EXHIBIT
NUMBER
- -----------
<F*>3.1 Fibreboard's Restated Certificate of
Incorporation (incorporated herein by reference from Fibreboard
Corporation's Registration Statement on Form 10 dated May 23, 1988, as
amended on June 28, 1988).
<F*>3.2 Fibreboard's Restated Bylaws as amended June 8,
1993 (incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993).
<F*>4.1 Specimen Common Stock Certificate, $.01 par value
(incorporated herein by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
<F*>4.2 Rights Agreement dated as of August 25, 1988
between Fibreboard Corporation and Bank of America, N.T.&S.A. as
Rights Agent (incorporated herein by reference from Fibreboard
Corporation's Current Report on Form 8-K dated August 25, 1988).
<F*>4.2.1 Amendment No. 1 to Rights Agreement, dated as of
February 11, 1994, between Fibreboard Corporation and The First
National Bank of Boston (incorporated herein by reference from
Fibreboard Corporation's Form 8-A/A dated February 15, 1994).
<F*>10.1 Form of Indemnification Agreement between
Fibreboard Corporation and each director and officer of Fibreboard
Corporation (incorporated by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
<F*>10.2 Asset Purchase Agreement dated February 22, 1988,
between Fibreboard Corporation and Gaylord Container Corporation
(incorporated by reference from Fibreboard Corporation's
Registration Statement on Form 10 dated May 23, 1988, as amended on
June 28, 1988).
<F*>10.3 Fibreboard Corporation Restated 1988 Employee
Stock Option and Rights Plan (incorporated herein by reference from
Fibreboard Corporation's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1992).
<F*>10.4 Form of Fibreboard Corporation Profit Sharing
401(k) Plan (incorporated herein by reference from Fibreboard
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1992).
<F*>10.5 Fibreboard Corporation 1988 Employee Stock
Purchase Plan (incorporated herein by reference from Fibreboard
Corporation's Annual Report on Form 10-K for the year ended December
31, 1988).
______________________________________
<F*> Incorporated herein by reference.
7.
<PAGE>
<F*>10.5.1 Prospectus Supplement (Appendix) to Registration
Statement on Form S-8 No. 33-26449 for Shares issuable under the
Fibreboard Corporation 1988 Employee Stock Purchase Plan
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1989).
<F*>10.6 Agreement of Compromise, Settlement and Release
dated May 27, 1987, between Fibreboard Corporation and The Home
Insurance Company (incorporated herein by reference from Fibreboard
Corporation's Registration Statement on Form 10 dated May 23, 1988,
as amended on June 28, 1988).
<F*>10.7 Corporation Structured Settlement Program
Description dated November 8, 1988 (incorporated herein by
reference from Fibreboard's Current Report on Form 8-K dated
November 8, 1988).
<F*>10.8 Form of Structured Settlement Agreement
(incorporated herein by reference from Fibreboard's Current
Report on Form 8-K dated November 8, 1988).
<F*>10.9 Form of Stipulation Regarding Settlement
Negotiations and Right to Alternative Dispute Resolution
(incorporated herein by reference from Fibreboard's Current Report on
Form 8-K dated November 8, 1988).
<F*>10.10 Amended and Restated Trust Agreement dated
September 29, 1989 by and among Fibreboard Corporation, the
Trustees and the Directors and Officers of Fibreboard (incorporated
herein by reference from Fibreboard Corporation's Annual Report on
Form 10-K for the year ended December 31, 1989).
<F*>10.11 Consulting/Sales Representation Agreement dated
February 20, 1989 between Distribution International and Pabco
Metals Corporation, a wholly-owned subsidiary of Fibreboard
Corporation (incorporated herein by reference from Fibreboard
Corporation's Current Report on Form 8-K dated February 20, 1989).
<F*>10.12 Summary description of Fibreboard Corporation
incentive compensation arrangements.
<F*>10.13 Employment Agreement dated July 2, 1991 between
Fibreboard Corporation and John D. Roach (incorporated herein by
reference from Fibreboard Corporation's Quarterly Report on Form
10-Q for the quarter ended September 30, 1991).
<F*>10.14 Second Amended and Restated Credit Agreement
dated February 14, 1992 between Snider Lumber Products Co., Inc. and
Wells Fargo Bank, National Association (incorporated herein by
reference from Fibreboard Corporation's Annual Report on Form 10-K for
the year ended December 31, 1991).
<F*>10.15 Accounts Financing Agreement and related
documents dated August 23, 1991 between Congress Financial Corporation
(Western) and Fibreboard Corporation (incorporated herein by reference
from Fibreboard Corporation's Annual Report on Form 10-K for the year
ended December 31, 1991).
______________________________________
<F*> Incorporated herein by reference.
8.
<PAGE>
<F*>10.16 Form of Severance Agreement dated January 1, 1992
between Fibreboard Corporation and Messrs. Donohue, Costello,
Douglas, DeMaria, Elliott and Swan (incorporated herein by reference
from Fibreboard Corporation's Annual Report on Form 10-K for the year
ended December 31, 1991).
<F*>10.17 Agreement and related documents dated March 27,
1992 between Fibreboard Corporation and Pacific Indemnity Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1991).
<F*>10.18 Rescission of Insurance Policies dated March 27,
1992 between Fibreboard Corporation and Pacific Indemnity Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1991).
<F*>10.19 Fibreboard Corporation Supplemental Retirement
Plan (incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1992).
<F*>10.20 Settlement Agreement dated January 1, 1993
between Fibreboard Corporation and Continental Casualty Company
(incorporated herein by reference from Fibreboard Corporation's Annual
Report on Form 10-K for the year ended December 31, 1992).
<F*>10.21 Settlement Agreement dated January 1, 1993
between Fibreboard Corporation and Fireman's Fund Insurance Company,
Insurance Company of North America and Royal Insurance Company
(incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year December 31, 1992).
<F*>10.22 Settlement Agreement between Fibreboard
Corporation and American Home Assurance Company, et al. (incorporated
herein by reference from Fibreboard Corporation's Annual Report on
Form 10-K for the year ended December 31, 1992).
<F*>10.23 Agreement of Purchase and Sale between Fibreboard
Corporation and Sierra Ski Ranch, Inc. dated as of June 11, 1993
(incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the period ended June 30, 1993).
<F*>10.24 Settlement Agreement among Fibreboard
Corporation, Continental Casualty Company and Ness, Motley, Loadholt,
Richardson & Poole and certain affiliated law firms dated as of
August 5, 1993 (incorporated herein by reference from Fibreboard
Corporation's Quarterly Report on Form 10-Q for the period ended
June 30, 1993).
<F*>10.25 Agreement between Fibreboard Corporation and
Continental Casualty Company dated April 9, 1993 (incorporated
herein by reference from Fibreboard Corporation's Current Report on
Form 8-K dated April 9, 1993).
________________________________________
<F*> Incorporated herein by reference.
9.
<PAGE>
<F*>10.26 Loan Agreement dated May 3, 1993 between First
Interstate Bank of Nevada, N.A. and Trimont Land Company
(incorporated herein by reference from Fibreboard Corporation's
Quarterly Report on Form 10-Q for the period ended September 30,
1993).
<F*>10.27 Loan Agreement dated September 17, 1993 between
First Interstate Bank of Nevada, N.A. and Sierra-at-Tahoe and
Trimont Land Company (incorporated herein by reference from
Fibreboard Corporation's Quarterly Report on Form 10-Q for the
period ended September 30, 1993).
<F*>10.28 Settlement Agreement dated October 12, 1993 among
Fibreboard Corporation, Continental Casualty Company, CNA Casualty
Company of California, Columbia Casualty Company and Pacific
Indemnity Company (incorporated herein by reference from
Fibreboard Corporation's Quarterly Report on Form 10-Q for the period
ended September 30, 1993).
10.29 Supplemental Agreement dated October 12, 1993
between Fibreboard Corporation and Continental Casualty Company.
<F*>10.30 Global Settlement Agreement among Fibreboard
Corporation, Continental Casualty Company, CNA Casualty Company of
California, Columbia Casualty Company, Pacific Indemnity Company
and The Settlement Class, together with Exhibits A-E (incorporated
herein by reference from Fibreboard Corporation's Current
Report on Form 8-K dated December 23, 1993).
<F*>10.31 Fibreboard Corporation Long-Term Equity Incentive
Plan (incorporated herein by reference from Fibreboard Corporation's
Annual Report on Form 10-K for the year ended December 31, 1993).
<F*>22. Fibreboard Corporation Subsidiaries (incorporated
herein by reference from Fibreboard Corporation's Annual Report on
Form 10-K for the year ended December 31, 1993).
<F*>24. Consent of Arthur Andersen & Co. (incorporated herein
by reference from Fibreboard Corporation's Annual Report on Form 10-K
for the year ended December 31, 1993).
_______________________________________
<F*> Incorporated herein by reference.
10.
Exhibit 10.29
SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL AGREEMENT ("Agreement") is made and
entered into on October 12, 1993 by and between Fibreboard
Corporation, a Delaware corporation ("Fibreboard") and Continental
Casualty Company, an Illinois corporation ("Continental"), together
the "Parties."
RECITALS
A. Continental and Fibreboard entered into an Agreement
dated April 9, 1993 (the "Original April 9 Agreement") pursuant to
which the Parties agreed, among other things upon terms and
conditions set forth therein, to use their best efforts jointly to
negotiate and finalize a global class action settlement with
personal injury claimants and Continental agreed, whether or not a
global settlement was reached, to pay certain defense and other
costs of personal injury claims.
B. The Parties, certain Insurers affiliated with
Continental, and Pacific Indemnity Company ("Pacific") intend to
execute the Global Settlement Agreement. If the Global Settlement
Agreement obtains the final necessary court approvals to become
effective, the Parties desire and intend by this Agreement and the
Global Settlement Agreement to fully and finally compromise all
claims under the Insurance Policies not previously released,
including any and all claims asserted in the Coverage Case.
C. Simultaneously herewith, the Parties, certain
Insurers affiliated with Continental, and Pacific are entering into
the Settlement Agreement, by which they intend (if Settlement
Agreement Approval Judgment is entered) to fully and finally
compromise, whether or not the Global Approval Judgment is entered,
all claims under the Insurance Policies not previously released,
including any and all claims asserted in the Coverage Case.
D. Capitalized terms used herein and not defined herein
shall have the definitions for such terms set forth in the
Settlement Agreement.
E. This Agreement is intended to amend and supplement
the Original April 9 Agreement and to make certain provisions with
respect to the rights and obligations of the Parties, the Original
April 9 Agreement as amended being referred to as the "April 9
Agreement."
1.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS
"BEFORE-1959 CLAIMS" shall mean, for purposes of this
Agreement only, claims against Fibreboard made by claimants exposed
to asbestos-containing products at any time prior to the expiration
of Continental's policy No. CLP 3197650 on March 15, 1959.
"INTERIM PERIOD" shall mean the period between March 1,
1993 and either:
(a) the date that Global Approval Judgment is
obtained; or
(b) if Global Court Disapproval occurs and
Settlement Agreement Approval Judgment is obtained, then the later
of (i) the date of Global Court Disapproval or (ii) the date of
Settlement Agreement Approval Judgment; or
(c) if neither (a) nor (b) occurs, then the later
of (i) Global Court Disapproval and Settlement Agreement Court
Disapproval and (ii) the date of the Final Judgment in the Coverage
Case as defined in paragraph 3 of the April 9 Agreement.
"POST-1959 CLAIMS" shall mean, for purposes of this
Agreement only, claims against Fibreboard made by claimants first
exposed to asbestos-containing products after March 15, 1959.
"PRESENTLY SETTLED CLAIMS" as defined in the Settlement
Agreement shall be read to include, both for purposes of this
Agreement, the Settlement Agreement and the Continental-Pacific
Agreement, claims of individuals for punitive damages and bad faith
arising in connection with asbestos-related personal injuries. To
the extent, if any, that this definitional clarification modifies
the definition of Presently Settled Claims set forth in the
Settlement Agreement, this clarification shall be controlling.
"RESOLUTION FUND" is as defined in Section 2.1(e).
"UNSETTLED PRESENT CLAIMS" as defined in the Settlement
Agreement shall be read to include, both for purposes of this
Agreement, the Settlement Agreement and the Continental-Pacific
Agreement, claims of individuals for punitive damages and bad faith
arising in connection with asbestos-related personal injuries. To
the extent, if any, that this definitional clarification modifies
the definition of Unsettled Present Claims
2.
<PAGE>
set forth in the Settlement Agreement, this clarification shall be
controlling.
ARTICLE II
AMENDMENTS TO ORIGINAL APRIL 9 AGREEMENT
SECTION 2.1 AMENDMENTS TO ORIGINAL APRIL 9 AGREEMENT
The Original April 9 Agreement is hereby amended as
follows:
(a) On August 27, 1993, the Parties, Pacific and
representatives of plaintiffs announced the Global Settlement. The
parties agree to use their best efforts to execute the Global
Settlement Agreement and to implement the Global Settlement
Agreement and the Settlement Agreement by obtaining Global Approval
Judgment and Settlement Agreement Approval Judgment (whether or not
Global Approval Judgment is entered). Nothing in the foregoing
shall be deemed to impose any obligation on any of the Parties to
agree to any term or provision not embodied in the Global
Settlement as announced in open court on August 27, 1993 or the
Settlement Agreement. In light of these new circumstances, the
Parties further have agreed that execution of the Settlement
Agreement and the Global Settlement Agreement satisfies the
requirements of the first sentence of Paragraph 1 (and the related
provisions of Paragraph 2) of the Original April 9 Agreement and
that neither party shall have any further obligation with respect
to any undertaking contained in such sentence. The remaining
provisions of Paragraph 1 and the provisions of Paragraph 2 shall
remain in effect and are modified to provide that Continental may
at its option negotiate and enter into a global settlement with
respect to less than all of the claims specified to be included in
a "Global Settlement," as that term is used in Paragraph 2 of the
Original April 9 Agreement, so long as such settlement provides
under reasonable conditions the protection for Fibreboard set forth
in Paragraph 2 with respect to the claims that would have been
covered by such "Global Settlement" or such settlement complies
with the provisions of Section 4.1(c) of the Supplemental
Agreement.
(b) The provisions of Sub-paragraphs 3a, 3c and 3d
of the Original April 9 Agreement shall continue in effect during
the Interim Period.
(c) Paragraph 3b of the Original April 9 Agreement
is amended to read:
"Continental shall pay Fibreboard's Defense Costs
incurred during the Interim Period that are directly attributable
3.
<PAGE>
to Before-1959 Claims, to the negotiation or renegotiation of
settlements with respect to such Claims and to negotiating the
Global Settlement, the Global Settlement Agreement, the Settlement
Agreement and this Agreement and seeking to obtain Global Approval
Judgment and Settlement Agreement Approval Judgment. Defense Costs
to be paid shall include costs allocable to all claims that may
potentially be Before-1959 Claims. Case Management System fees and
costs shall not exceed $60,000 per month, exclusive of
extraordinary Case Management system fees and costs incurred as a
result of requests made or approved by Continental or necessarily
incurred in connection with the Global Settlement or the Global
Settlement Agreement."
(d) Sub-paragraph 3e of the Original April 9
Agreement is amended to read:
"With respect to judgments upon Before-1959 Claims
which require payment or bonding during the Interim Period,
Continental shall bond appeals if there are appealable issues and
pay final, nonappealable judgments. With respect to those
settlements of Before-1959 Claims to which Continental has agreed,
Continental will pay such settlements if and when they become due
and payable."
(e) Sub-paragraph 3f of the Original April 9
Agreement is amended to read:
"During the Interim Period, in an amount not to
exceed $95 million in the aggregate, Continental shall (i) with
respect to judgments upon Post-1959 Claims which require payment or
bonding during the Interim Period, bond appeals if there are
appealable issues and pay final, nonappealable judgments; (ii)
reimburse Fibreboard for Post-1959 SSP settlements if they fall due
by their terms; and (iii) reimburse Fibreboard on an as-needed
basis for Defense Costs incurred for Post-1959 Claims for which
insurance (including but not limited to interim amounts payable
pursuant to the Pacific Indemnity Agreement) is not available."
"If the $95 million available to Fibreboard is
exhausted during the Interim Period (including by reason of
payments from the "Resolution Fund" defined in this sub-paragraph),
Continental will during the Interim Period lend Fibreboard up to
$55 million, as needed, to supplement the $95 million. The loan
and any accrued interest thereon will be deemed satisfied when and
if Global Approval Judgment occurs or the Trigger Date occurs;
otherwise the loan with accrued interest will be payable by
Fibreboard at the end of the Interim Period and Continental shall
have the right to offset any such amount payable against any
amounts payable by Continental to Fibreboard pursuant to the terms
of the Final Judgment in the Coverage Case.
4.
<PAGE>
The loan will accrue interest at the prime rate as published in the
Wall Street Journal (changing as such published rate changes) in
the event of a Final Judgment in the Coverage Case that does not
reduce Continental's total liability to Fibreboard under its
primary policy below the 75% threshold referred to in Paragraph 6
and otherwise will accrue interest at a rate equal to 2% plus the
prime rate as published in the Wall Street Journal (changing as
such published rate changes). Any unused portion of the $95
million or of the $55 of loan availability shall be cancelled when
and if Global Approval Judgment is entered or the Trigger Date
occurs."
"Of the amount (including any loan amount) available
to Fibreboard under this sub-paragraph 3f, up to $37 million may be
used by Fibreboard (i) for asbestos-related expenses or liabilities
not otherwise paid under the provisions of paragraph 3 of this
Agreement or (ii) to pay defense and indemnity costs for non-
asbestos bodily injury or property damage claims if Fibreboard has
no insurance that will pay for such claims. (Such $37 million
shall constitute the "Resolution Fund.") Any portion of the
Resolution Fund that is unused at the time and in the event Global
Approval Judgment is entered will remain available to Fibreboard
for the purposes stated herein until January 1, 2025. If the
Trigger Date occurs, Fibreboard will no longer have the right to
use the Resolution Fund and any portion of that fund theretofore
used by Fibreboard will be offset against and subtracted from the
Drawable Settlement Amount provided for in Section 2.3(a) of the
Settlement Agreement. If neither Global Approval Judgment is
entered nor the Trigger Date occurs and Final Judgment in the
Coverage Case is entered, any of the Resolution Fund theretofore
used by Fibreboard shall be repaid by Fibreboard to Continental and
may be repaid out of, or offset against, any amounts payable by
Continental to Fibreboard pursuant to the terms of the Final
Judgement; PROVIDED that nothing herein is intended to reduce the
amounts otherwise payable by Continental pursuant to paragraph 6a
of this Agreement in accordance with the terms and conditions
thereof; and PROVIDED FURTHER that amounts used from the Resolution
Fund in lieu of payments owed by Continental under the January 1,
1993 agreement concerning defense fees and costs for Asbestos
Building Material Claims shall be credited to Fibreboard in the
event of a Final Judgment in the Coverage Case."
(f) A new sub-paragraph 3g shall be inserted into
the April 9 Agreement to read:
"All fees, costs or liabilities -- whether asbestos-
related or otherwise -- other than those payable or reimbursable by
Continental pursuant to the specific provisions of this Agreement
and the Supplemental Agreement, including without limitation, fees,
costs and liabilities relating to
5.
<PAGE>
Asbestos Building Material Claims, claims by other insurers for
reimbursement of defense and indemnity costs, bonuses, fixed fees
and contingency fees, and Case Management Systems costs for periods
after the Global Approval Judgment is entered, shall be the sole
responsibility of Fibreboard (although they may, at Fibreboard's
request, be paid by Continental out of any unused portion of the
Resolution Fund). Fibreboard will use the Resolution Fund to make
the payments hereafter required of Continental under the agreement
of the Parties of January 1, 1993 relating to defense fees and
costs for Asbestos Building Material Claims and Continental's
obligations under such agreement shall be deemed fully discharged
in the event Global Approval Judgment or Settlement Agreement
Approval Judgment is entered; PROVIDED that otherwise the payments
required of Continental under said January 1, 1993, agreement shall
be credited to Fibreboard in the event of a Final Judgment in the
Coverage Case."
(g) The words "prior to Final Judgment" contained
in Paragraph 4 of the Original April 9 Agreement are deleted and
shall be replaced by the words "during the Interim Period."
(h) Paragraph 5 of the Original April 9 Agreement
shall remain in effect.
(i) Paragraph 6 of the Original April 9 Agreement
is amended to delete the words:
"if at the time of the Final Judgment a Global Settlement
agreement does not exist (or if there is such an agreement, then at
such time as such agreement or a modification of such agreement
fails to become finalized, including any needed final approvals)"
and replace them with the following words:
"if at the time of the Final Judgment both Global Court
Disapproval and Settlement Agreement Court Disapproval have
occurred (of if both Global Court Disapproval and Settlement
Agreement Disapproval have not occurred, then at the time both such
disapprovals have occurred)"
(j) Paragraphs 7 and 8 of the Original April 9
Agreement remain in effect effective as of the time of the Original
April 9 Agreement.
(k) Paragraph 9 of the Original April 9 Agreement
is amended to read:
"If not terminated earlier by provisions of this
Agreement, the Supplemental Agreement, the Settlement Agreement,
the Global Settlement or Global Settlement Agreement, and except
6.
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as otherwise provided for in this Agreement or the Supplemental
Agreement, the obligations of Fibreboard and Continental under
Paragraphs 1, 2, 3, 5, 10 and 11 hereof shall terminate at the end
of the Interim Period."
(l) Paragraph 10 of the Original April 9 Agreement
remains in effect.
(m) Paragraph 11 of the Original April 9 Agreement
remains in effect, PROVIDED HOWEVER that the "Global Settlement"
referred to therein shall be limited to a global settlement other
than the Global Settlement or the Global Settlement Agreement as
defined in the Settlement Agreement.
(n) Paragraphs 12, 13, 14, 16, 17, 18 and 20 of the
Original April 9 Agreement remain in effect.
(o) Paragraph 15 of the Original April 9 Agreement
is deleted and the definitions provided for in Section 1.1 of the
Supplemental Agreement are incorporated into the Original April 9
Agreement.
(p) The provisions for notice contained in
Paragraph 19 of the Original April 9 Agreement are amended to
conform to the notice provisions contained in Section 5.12 of the
Settlement Agreement.
(q) Paragraph 21 of the Original April 9 Agreement
is amended to read:
"With regard to matters covered by this Agreement,
this Agreement, the Supplemental Agreement, the Settlement
Agreement, the Global Settlement and the Global Settlement
Agreement contain the entire agreement between the parties and
there are no agreements, understandings, representations or
warranties between the parties other than those set forth or
referred to therein."
(r) A new paragraph 22 shall be inserted in the
April 9 Agreement to read:
"There shall be no third party beneficiaries under
this Agreement other than Releasees hereunder. No person other
than the Parties hereto and the Releasees hereunder shall have any
right or claim under or in respect of this Agreement."
(s) A new paragraph 23 shall be inserted in the
April 9 Agreement to read:
7.
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"Capitalized terms used herein and not defined
herein shall have the definitions for such terms set forth in the
Settlement Agreement."
(t) A new paragraph 3h shall be inserted in the
April 9 Agreement to read:
"With respect to the management of Post-1959 Claims
after the date of the Supplemental Agreement, (i) Fibreboard will
consult with Continental regarding management of the defense of
Post-1959 Claims and will inform Continental regarding Fibreboard
authority decisions on Post-1959 Claims before these decisions are
implemented in settlement negotiations (5 days in advance or a
shorter period if Continental has been kept reasonably informed as
to the status of the negotiations and the circumstances requiring a
shorter period); (ii) Fibreboard will not discriminate between
Before and Post-1959 Claims with regard to the type of information
to be collected; and (iii) any settlement over $4,000 with respect
to a Post-1959 non-malignancy claim or over $10,000 for a
malignancy claim, and any group settlements with respect to over 50
Post-1959 Claims, will require the consent of Continental, which
consent cannot be unreasonably withheld. Whether Continental has
unreasonably withheld consent to a Fibreboard granting of authority
in a Post-1959 case shall be subject to expedited ADR."
SECTION 2.2 CONTINENTAL-PACIFIC AGREEMENT
Nothing in the April 9 Agreement, this Agreement, the
Settlement Agreement, the Global Settlement or the Global
Settlement Agreement shall affect or impair any term of the
Continental-Pacific Agreement, which, as between the parties to
that agreement, shall control their rights and obligations with
respect to each other.
ARTICLE III
IF GLOBAL APPROVAL JUDGMENT OCCURS
SECTION 3.1 OBLIGATIONS OF PARTIES IF GLOBAL APPROVAL
JUDGMENT IS ENTERED
If Global Approval Judgment is entered, then on and after
the date of such approval:
(a) Continental shall pay any amounts which it is
obligated to pay under paragraph 3 of the April 9 Agreement which
have accrued (whether or not billed) and are unpaid.
8.
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(b) Continental shall pay Defense Costs and
indemnity costs with respect to all Unsettled Present Claims that
are not Global Class Claims (without regard to the dollar
limitation provided for in paragraph 3f of the April 9 Agreement),
it being understood that Unsettled Present Claims include claims of
individuals for asbestos-related personal injuries brought against
Fibreboard in lawsuits filed prior to the time after which claims
are in fact included within the Global Settlement and that are not
Presently Settled Claims.
(c) Continental shall pay settlement amounts on
Presently Settled Claims that are not Global Class Claims when the
same become due and payable (without regard to the dollar
limitation provided for in paragraph 3f of the April 9 Agreement)
and will pay any defense fees and costs relating to these claims.
(d) Continental shall continue to make available to
Fibreboard, as needed, any unused balance of the Resolution Fund
provided for in paragraph 3f as provided for in the April 9
Agreement.
(e) Continental shall have full control of the
management and disposition of all claims referred to in subsections
(b) and (c) above, and Fibreboard and its counsel will cooperate
with Continental and its counsel in accomplishing such change in
control. Fibreboard will give Continental (i) full and continuing
access to counsel handling such Claims and will take all steps
necessary to permit Continental to retain such counsel if
Continental determines to do so, and (ii) full and continuing
access to (and, if requested, copies of) any and all Fibreboard
asbestos personal injury and death claim information including, but
not limited to, related documentation in its control, with respect
to any claims ever asserted against Fibreboard for, or payments,
settlements or assignments ever made by or for the benefit of
Fibreboard in respect of, any asbestos-related injury or death
claims and all present and future information within the Fibreboard
Case Management System. Continental will reimburse Fibreboard for
any expenses incurred by Fibreboard at the request of Continental
in connection with the foregoing cooperation.
(f) All payments between the Parties under this
section shall be made in cash or by check to the Party to which the
payment is owed within 5 days after payment has been requested.
SECTION 3.2 COLLATERAL ATTACK
In the event of an actual or threatened attack on the
validity or enforceability of the Global Approval Judgment (a
"collateral attack"),
9.
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(a) Fibreboard and Continental shall cooperate in
pursuing and enforcing the indemnity obligations owed by the
Settlement Trust with respect to such collateral attack;
(b) Continental shall pay Fibreboard the reasonable
costs incurred by Fibreboard in defending against such collateral
attack to the extent not paid by the Settlement Trust (provided
that Continental's obligation shall extend only to those costs
directly attributable to litigation with respect to the validity
and enforceability of the Global Approval Judgment, not to those
attributable to litigation with respect to any underlying claims);
(c) Continental and Fibreboard shall jointly defend
against such collateral attack and will cooperate reasonably with
one another in this regard; and
(d) Continental shall not have any liability for
Personal Injury Asbestos Claims or the defense thereof, that may
result from such collateral attack and shall be indemnified and
held harmless by Fibreboard against any such liability (except for
any collateral attack-related defense fees and costs as provided in
subsections (i), (ii) and (iii) above).
SECTION 3.3 DISMISSALS AND RELEASES
(a) Fibreboard and Continental, by joint motions in
form and substance satisfactory to each of them and their
respective counsel, shall promptly apply for and seek the following
orders to become operative upon entry of Global Approval Judgment:
(i) an order dismissing the appeals of Fibreboard, Continental, CNA
Casualty and Columbia in the Coverage Case and (ii) an order
effecting a stipulated reversal of the existing determination of
issues discrete to Fibreboard and the Insurers in the Coverage
Case. Upon entry of a Global Approval Judgment, Fibreboard will
stipulate to the dismissal with prejudice of the Coverage Case as
against Continental, CNA Casualty and Columbia.
(b) Upon entry of Global Approval Judgment:
(i) Fibreboard will release Continental, CNA
Casualty Company of California and Columbia Casualty Company, their
parents, subsidiaries, affiliates, directors, employees, officers,
agents and attorneys (the "Continental Releasees") from any and all
claims of whatsoever description by Fibreboard, including bad faith
claims, except that such release shall not include any claims
arising out of this Agreement, the Settlement Agreement, the April
9 Agreement, the Global Settlement, the Global Settlement Agreement
or any obligation of a Party pursuant
10.
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to an agreement or agreements entered after this Agreement is
executed. Notwithstanding the foregoing exceptions, such release
shall include any and all claims arising from paragraphs 1 and 2 of
the April 9 Agreement. Nothing herein shall affect the validity or
effectiveness of the releases provided for in the April 9
Agreement, all of which are hereby ratified.
(ii) Continental, CNA Casualty Company of
California and Columbia Casualty Company will release Fibreboard,
its parents, subsidiaries, affiliates, directors, employees,
officers, agents and attorneys (the "Fibreboard Releasees") from
any and all claims of whatsoever description by Continental and
such affiliated Insurers, except that such release (1) shall not
include any claims arising out of this Agreement, the Settlement
Agreement, the April 9 Agreement, the Global Settlement, the Global
Settlement Agreement or any obligation of a Party pursuant to an
agreement or agreements entered after this Agreement is executed
and (2) shall not prevent Continental or its affiliated Insurers
from raising any defenses to claims brought against Continental by
any person or entity claiming an interest in the Insurance
Policies, including defenses against the validity or enforceability
of assignments or settlements to which Continental, CNA Casualty or
Columbia is not a party. Notwithstanding the foregoing exceptions,
such release shall include any and all claims arising from
paragraphs 1 and 2 of the April 9 Agreement. Nothing herein shall
affect the validity or effectiveness of the releases provided for
in the April 9 Agreement, all of which are hereby ratified.
(c) The releases required by Section 3.3(b) above
shall be effective as a bar to each and every claim, demand and
cause of action and shall include, as necessary to effectuate that
purpose, waivers by the parties of any and all benefits conferred
on any of them by Section 1542 of the California Civil Code or
similar provisions in any other jurisdictions.
SECTION 3.4 INDEMNITY AND RELATED OBLIGATIONS
If Global Approval Judgment is entered, the Continental
Releasees shall not have any liability for, and Fibreboard shall
indemnify the Continental Releasees and hold them harmless from,
any and all costs, claims or liabilities relating to Personal
Injury Asbestos Claims of whatsoever kind, including those
attacking the validity or enforceability of Global Approval
Judgment, (i) except for costs, claims or liabilities that the
Insurers have specifically undertaken to pay under this Agreement,
the April 9 Agreement, the Global Settlement, the Global Settlement
Agreement or the Settlement Agreement and
11.
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(ii) except for Defense Costs directly attributable to an actual or
threatened attack on the validity or enforceability of the Global
Approval Judgment. Any indemnity or other payment obligation owed
by Fibreboard to Continental Releasees may be credited by
Continental against the Drawable Settlement Amount. As to claims
asserted against Fibreboard that (i) would not be covered by the
foregoing indemnity (E.G., claims unrelated to asbestos) and (ii)
could be claimed to give rise to a direct action against one or
both of the Insurers, Fibreboard agrees to reasonably and
diligently defend and promptly pay or bond judgments so as to
preclude any such direct action claims.
ARTICLE IV
ACTIONS TO BE TAKEN TO IMPLEMENT THIS AGREEMENT
SECTION 4.1 ACTIONS TO BE TAKEN TO IMPLEMENT THIS
AGREEMENT
(a) The parties agree to use their best efforts to
execute the Global Settlement Agreement and to obtain Global
Approval Judgment and Settlement Agreement Approval Judgment
(whether or not Global Approval Judgment is entered). Nothing in
the foregoing shall be deemed to impose any obligation on any of
the Parties to agree to any term or provision not embodied in the
Global Settlement as announced in open court on August 27, 1993 or
the Settlement Agreement.
(b) During the period between the date of this
Agreement and the Trigger Date or Global Approval Judgment,
Fibreboard and Continental will accurately inform those
representing individuals with Personal Injury Asbestos Claims that
Fibreboard's insurance coverage for these claims remains at risk
and the subject of liability for such claims is in part the subject
of a sealed agreement, the terms of which are not being disclosed.
Nothing herein contained shall require either Party hereto to
violate any applicable law or preexisting contractual obligation,
including any requiring disclosure of a material fact about either
Party's financial condition or ability to respond to its debts.
(c) At the option of Continental, Fibreboard will
fully cooperate with Continental in seeking a class action
settlement encompassing Unsettled Present Claims and Continental
will pay Defense Costs incurred by Fibreboard in seeking such a
class settlement; PROVIDED HOWEVER that Fibreboard shall have no
responsibility with respect to payment of such class action
settlement other than by way of credit as provided in Section
2.3(a)(iv) of the Settlement Agreement; and PROVIDED FURTHER
12.
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that at such time or times, if any, that both of the following
conditions exist:
(i) the Global Settlement Agreement has not
been executed as contemplated in Recital O, or, if executed, that a
court has disapproved the Global Settlement Agreement, and
(ii) the Settlement Agreement has not been
disapproved by a court,
(which court determinations, whether or not final, remain in effect
at such time or times), Continental shall not enter into such a
class action settlement without the consent of Fibreboard, which
consent cannot be unreasonably withheld.
(d) Fibreboard and Continental will cooperate with
one another in negotiating spendthrift provisions of the Trust
Agreement that is to be part of the Global Settlement Agreement
satisfactory to each of them and in selecting a Trustee of the
Settlement Trust satisfactory to each of them. Continental agrees
to join Fibreboard in any objection to such spendthrift provision
as provided in Section 3.1(c) of the Settlement Agreement.
(e) In the event that (i) the Global Settlement
Agreement provides for a narrower scope of Personal Injury Asbestos
Claims to be discharged and enjoined by the Global Approval
Judgment than is provided for by the Settlement Agreement to be
discharged and enjoined by subdivisions (d) and (e) of the
definition of Settlement Agreement Approval Judgment and (ii) the
Parties to the Settlement Agreement are unable, despite their best
efforts, to obtain entry of Settlement Agreement Approval Judgment
as to those Personal Injury Asbestos Claims not required to be
barred by the Global Approval Judgment (as defined in the Global
Settlement Agreement):
(1) The Parties agree that subdivisions (d)
and (e) of the definition of Settlement Agreement Approval
Judgment, for purposes of Section 2.3 of the Settlement Agreement
only, shall be deemed satisfied by a judgment containing the
narrower discharge and injunction provided for by the corresponding
provisions of the Global Settlement Agreement.
(2) The Parties agree, subject to the proviso
of Section 3.1(a) of the Settlement Agreement, to use their best
efforts to obtain the judgment contemplated by clause (1) above.
13.
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Nothing in the foregoing shall be deemed in any way to
modify the indemnity obligations of Fibreboard with respect to
Personal Injury Asbestos Claims as set forth in the Global
Settlement Agreement, Section 3.3 of the Settlement Agreement or
Section 3.4 of this Agreement.
ARTICLE V
FINAL SETTLEMENT OF THE INSURANCE POLICIES
SECTION 5.1 FINAL SETTLEMENT OF THE INSURANCE POLICIES
(a) Upon Global Approval Judgment, except for
obligations arising under this Agreement, the April 9 Agreement,
the Global Settlement, the Global Settlement Agreement or the
Settlement Agreement, the Continental Releasees shall be discharged
from any and all of their obligations (whether direct or indirect)
to Fibreboard or to any other person or entity under or in
connection with the Insurance Policies, including any obligations
imposed by prior or contemporaneous agreements on any subject and
of any kind, by judgment or decree, or by statute, regulation or
common law.
(b) Fibreboard will execute all necessary documents
to carry out the intent of the parties that the Continental
Releasees have no further obligations to Fibreboard or to any other
person or entity under the Insurance Policies except as provided
for in subsection (a) above.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 FIBREBOARD'S COUNSELS' FEES
For the period March 1, 1993 through July 31, 1993,
counsels' fees chargeable by Fibreboard to Continental under this
Agreement or the April 9 Agreement shall be at counsels' then
current rates (provided that time not billed because of fixed or
contingent fee arrangements shall be billed, if and when such fixed
or contingent fee arrangements require payment by Fibreboard, at
each firm's standard hourly billing rates charged generally to that
firm's clients for litigation assignments commencing March 1,
1993). For the period commencing August 1, 1993, counsels' fees
chargeable by Fibreboard to Continental under this Agreement shall
be at each firm's standard hourly billing rates charged generally
to that firm's clients for litigation assignments.
14.
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SECTION 6.2 CONFIDENTIALITY
This Agreement shall be filed under seal with the United
States District Court for the Eastern District of Texas. The
Parties agree to cooperate reasonably with each other, by motion or
otherwise, to maintain the confidentiality of this Agreement and
shall not disclose the terms thereof to any person or entity other
than the Court and Pacific unless required to do so by law.
SECTION 6.3 CONTINGENT NATURE OF PAYMENTS
No provision of this Agreement shall be construed to
provide Fibreboard with any rights to payments from Insurers (or
from any trust or other entity established as a funding mechanism)
(a) to reimburse Fibreboard for funds expended by Fibreboard to pay
claimants, service providers, employees or other third parties
prior to the date of this Agreement; (b) prior to the time the
funds are required to enable Fibreboard to make actual payments to
third parties for the purposes prescribed herein (it not being
intended by the parties that Fibreboard shall receive sums other
than if as, when and to the extent necessary to pay to third
parties); or (c) for any amounts in excess of the sums actually
necessary for the purposes prescribed herein (it not being intended
by the parties that Fibreboard shall have the right to any fixed
amount of funds from Continental or Pacific, but only the right to
a contingent amount based on liabilities and costs actually
incurred). Fibreboard shall from time to time deliver a request
for payment to it of amounts owed under this Agreement accompanied
by a certification that such funds will be used for payment of
costs or expenses permitted by this Agreement.
SECTION 6.4 ANTI-ASSIGNMENT
Fibreboard's right to receive payments under this
Agreement may not be hypothecated, pledged as collateral, assigned,
sold or otherwise transferred to any third party; PROVIDED that
this restriction shall not apply to an assignment of Fibreboard's
rights under this Agreement to a corporation or other entity
acquiring a substantial portion of Fibreboard's assets in the
context of such acquisition nor to any assignment of Fibreboard's
rights under this Agreement by Fibreboard to an affiliate of
Fibreboard for no consideration other than stock of the affiliate
and/or assumption of Fibreboard liabilities; and PROVIDED FURTHER
that any assignee of any of Fibreboard's rights under this
Agreement assumes joint and several responsibility with Fibreboard
for Fibreboard's obligations under this Agreement. Any permitted
assignee shall be subject to the same restrictions on the transfer
of rights under this Agreement.
15.
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SECTION 6.5 IF GLOBAL COURT DISAPPROVAL AND SETTLEMENT
AGREEMENT COURT DISAPPROVAL
If Global Court Disapproval and Settlement Agreement
Court Disapproval have occurred, (a) the Parties' rights and
obligations shall be governed by the terms of the Final Judgment in
the Coverage Case and the April 9 Agreement and (b) any amounts
paid by Continental to or on behalf of Fibreboard during the
Interim Period or with respect to obligations accruing during the
Interim Period that Continental is not required to pay under the
terms of the Final Judgment shall be payable or repayable by
Fibreboard to Continental upon entry of the Final Judgment.
SECTION 6.6 NO ADMISSION OR USE
This Agreement and the provisions thereof shall in no
event be offered as or be deemed to be evidence or an admission or
a concession on the part of any of the Parties of or with respect
to any claim or fault, liability or damages whatsoever. This
Agreement and the settlement provided for herein, whether or not
consummated, and any actions or proceedings taken to enter into or
pursuant to this Agreement or otherwise, are not, and shall not in
any event be construed, interpreted or used as evidence of a
presumption, concession or admission by any Party of the truth of
any fact alleged or the validity of any claim or defense which has,
could have been or could be asserted in any litigation, or of any
deficiency in any claim or defense which was, could have been or
could be asserted in any litigation, or of any liability, fault or
dereliction of duty or breach of contract of any Party.
Notwithstanding the foregoing, any Party shall be entitled to
introduce this Agreement in evidence for the purpose of enforcing
its terms. Nothing herein is intended to suggest that any
asbestos-related personal injury claim could be asserted against
Fibreboard or the Insurers by a person who cannot prove exposure to
asbestos manufactured by Fibreboard.
SECTION 6.7 NO BREACH OF OTHER OBLIGATIONS
Neither this Agreement nor any acts, statements or
omissions of the Parties in connection with the negotiation,
execution or performance thereof shall be claimed to constitute a
breach of any contract, policy of insurance or law or the basis for
any claim of bad faith. Nothing in this Agreement calls for or
obligates any of the Parties in any way to violate or breach its
obligations under any agreement and no term or provision of this
Agreement shall be so construed.
SECTION 6.8 CONSTRUCTION
No Party shall be deemed to be the drafter of any
particular provision or provisions of this Agreement nor shall
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any part of this Agreement be construed against any Party on the
basis of its identity as the drafter of any part of this Agreement.
This Agreement shall be construed as a contract negotiated at arm's
length, and any special rules of construction applicable to
contracts of adhesion or insurance contracts shall not apply. The
provisions of this Agreement shall be construed wherever possible
to permit the Agreement to become effective.
SECTION 6.9 ENTIRE AGREEMENT
This Agreement, the Continental-Pacific Agreement, the
Global Settlement, the Settlement Agreement and the April 9
Agreement constitute the entire understanding and agreement of the
Parties with respect to the subject matter hereof. This Agreement
and such other agreements supersede all prior and contemporaneous
agreements or understandings, inducements or conditions,
representations or warranties, express or implied, written or oral,
between the Parties with respect hereto.
SECTION 6.10 THIRD PARTY CLAIMS
There shall be no third party beneficiaries under this
Agreement other than Releasees hereunder. No person other than the
Parties hereto and the Releasees hereunder shall have any right or
claim under or in respect of this Agreement. Notwithstanding the
foregoing, Fibreboard and Continental shall be bound in relation to
Pacific by the definitions and definitional clarifications
contained in this Agreement insofar as those definitions or
clarifications affect the meaning of terms used in the Settlement
Agreement and the Continental-Pacific Agreement.
SECTION 6.11 HEADINGS
The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 6.12 NOTICES
All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request,
demand, claim or other communication hereunder shall be deemed duly
given if it is sent by registered or certified mail, postage
prepaid, or sent by prepaid overnight courier or confirmed
telecopier, and addressed to the intended recipient as set forth
below:
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If to Fibreboard, addressed to:
Fibreboard Corporation
1000 Burnett, 4th Floor
P.O. Box 4125
Concord, CA 94524
Attention: Michael R. Douglas
Vice President and General Counsel
Telecopier: (510) 686-0342
and
BROBECK, PHLEGER & HARRISON
Spear Street Tower
One Market Plaza
San Francisco, California 94105
Attention: Stephen M. Snyder, Esq.
Telecopier: (415) 442-1010
If to Continental, addressed to:
Continental Casualty Co.,
Specialty Claims Office, 12th Floor
50 Fremont Street
San Francisco, CA 94105
Attention: Claim Manager
Telecopier: (415) 512-4899
and
WACHTELL, LIPTON, ROSEN & KATZ
299 Park Avenue
New York, New York 10171
Attention: Herbert M. Wachtell, Esq.
Telecopier: (212) 371-1658
Such communications shall be effective when they are received by
the addressee thereof. Any party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
SECTION 6.13 AMENDMENTS AND WAIVERS
No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by Fibreboard
and Continental. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach
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of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
SECTION 6.14 COUNTERPARTS
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
SECTION 6.15 FURTHER ACTIONS
Fibreboard and Continental each shall take such
reasonable actions as may be necessary or appropriate to consummate
or implement the settlement contemplated by this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as
of the date first above written by the Parties hereto, thereunto
duly authorized.
FIBREBOARD CORPORATION
By /s/ MICHAEL R. DOUGLAS
Title: Vice President and
General Counsel
CONTINENTAL CASUALTY COMPANY
By /s/ LAWRENCE F. TERRY
Title: Vice President
19.
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AMENDMENT TO SUPPLEMENTAL AGREEMENT
WHEREAS, on October 12, 1993, Fibreboard Corporation
("Fibreboard") and Continental Casualty Company ("Continental")
entered into an agreement titled "Supplemental Agreement"; and
WHEREAS, Fibreboard and Continental by this addendum seek
to make clear their mutual intent with respect to certain
provisions of the Supplemental Agreement;
NOW THEREFORE, the parties hereby amend paragraph 2.1(e)
of the Supplemental Agreement so that the second paragraph on
page 5 reads as follows:
Of the amount (including any loan amount)
available to Fibreboard under this subparagraph 3f, up to
$37 million may be used by Fibreboard (i) for asbestos-related
expenses or liabilities not otherwise paid under the provisions of
paragraph 3 of this Agreement or (ii) to pay defense and indemnity
costs for non-asbestos bodily injury or property damage claims if
Fibreboard has no insurance that will pay for such claims. (Such
$37 million shall constitute the "Resolution Fund.") The
Resolution Fund may be used to pay defense and indemnity costs for
Asbestos Building Material Claims in order to obtain access to
additional insurance for such claims under settlements or court
rulings; provided, however, the Fund cannot be used to replace or
defray payments otherwise obtainable by judgments against insurers
or payments required of insurers under Fibreboard's current or
future settlements with insurers, including without limitation
those payments provided for in the agreement effective as of
January 1, 1993 between Fibreboard, on the one hand, and Fireman's
Fund Insurance Company, Insurance Company of North America, and
Royal Insurance Company, on the other, the payments provided for in
the agreement entered into on or about January 15, 1993 between
Fibreboard, on the one hand, and American Home Assurance Company,
Granite State Insurance Company, Insurance Company of the State of
Pennsylvania, Lexington Insurance Company and New Hampshire
Insurance Company, on the other, and the payments provided for in
the agreement entered into on or about October 28, 1994 between
Fibreboard, on the one hand, and CIGNA Specialty Insurance Company
(formerly known as California Union Insurance Company), Central
National Insurance Company of Omaha Century Indemnity Company,
CIGNA Property and Casualty Insurance Company, and Insurance
Company of North America, on the other hand. Any portion of the
Resolution Fund that is unused at the time and in the event Global
Approval Judgment is entered will remain available to Fibreboard for
the purposes stated herein until January 1, 2025.
If the Trigger Date occurs, Fibreboard will no longer have the
right to use the
1.
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Resolution Fund and any portion of that fund theretofore used by
Fibreboard will be offset against and subtracted from the Drawable
Settlement Amount provided for in Section 2.3(a) of the Settlement
Agreement. If neither Global Approval Judgment is entered nor the
Trigger Date occurs and the Final Judgment in the Coverage Case is
entered, any of the Resolution Fund theretofore used by Fibreboard
shall be repaid by Fibreboard to Continental and may be repaid out of,
or offset against, any amounts payable by Continental to Fibreboard
pursuant to the terms of the Final Judgment; PROVIDED that nothing
herein is intended to reduce the amounts otherwise payable by
Continental pursuant to paragraph 6a of this Agreement in accordance
with the terms and conditions thereof; and PROVIDED FURTHER that
amounts used from the Resolution Fund in lieu of payments owned by
Continental under the January 1, 1993 agreement concerning defense
fees and costs for Asbestos Building Material Claims shall be
credited to Fibreboard in the event of a Final Judgment in the
Coverage Case.
This amendment shall be a part of and incorporated into
the Supplemental Agreement, and shall be subject to all the terms
and conditions thereof.
IN WITNESS WHEREOF, the parties execute this agreement as
follows:
Dated: FIBREBOARD CORPORATION
January 4, 1995
By /s/ MICHAEL R. DOUGLAS
Its Senior Vice President and
General Counsel
Dated: CONTINENTAL CASUALTY COMPANY
January 5, 1995
By /s/ LAWRENCE F. TERRY
Its Vice President
2.
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