exv10w1



 






Exhibit 10.1




AGREEMENT




     This Agreement is made among the plaintiffs identified in Schedule A and Matrixx Initiatives,
Inc. and Zicam LLC (“defendants”). The parties to this Agreement have agreed to resolve all claims which exist between plaintiffs and defendants by discontinuing the lawsuits
filed by the plaintiffs in their entirety as to all defendants and potential defendants and by
entering into the “Settlement Program” identified below. Counsel for plaintiffs agree that
Schedule A of the Agreement shall include all individuals who have retained their firms to
represent their interests regarding Zicam claims as of the date the Agreement is signed by the
parties. However, individuals listed on Schedule A whose claims arise solely from the use of the
Zicam® swab product shall not be entitled to compensation under the Settlement Program or obligated
to discontinue their lawsuits.



     Now, therefore, in consideration of the obligations and mutual promises set forth herein, it
is agreed as follows:




	 	1.	Defendants will fund a Settlement Program as follows:






	 	(a)	 	No later than January 13, 2006, defendants will pay $5,950,000 into the escrow account
identified below;
	 
	 	(b)	 	On February 21, 2006 defendants will pay $5,950,000 into that escrow count;
	 
	 	(c)	 	No later than January 13, 2006, defendants will pay $100,000 into the escrow account for
administrative expenses involved in the management of the Settlement Program; and
	 
	 	(d)	 	The amounts identified in Sections 1(a), (b) and (c) are the only payments defendants will
have to make as part of the settlement of the litigation.






	 	2.	The escrow account will be maintained at a financial institution in Arizona. The
institution shall be chosen by the attorneys for the plaintiffs subject to the approval of
defendants, such consent not to be unreasonably withheld. The financial institution and any fund
manager it may engage will enter into a written escrow agreement respecting management of the
funds. This escrow agreement shall first be approved by the parties to this Agreement.
	 
	 	3.	The lawsuits brought by the plaintiffs shall be dismissed with prejudice as to all parties
and without costs, expenses or attorneys’ fees upon the payment by the defendants of the amounts
due to be paid on or before January 13 and on February 21, 2006. A copy of the Stipulation of
Dismissal is attached as Schedule B. No further action will be taken by the parties in those
lawsuits other than to implement their dismissal.





 









 






	 	4.	Plaintiffs will provide defendants with a duly executed release from each plaintiff by
April 3, 2006. No payment shall be made to any plaintiff who has not executed such a release. The
release shall be in the form attached as Schedule C. “Plaintiffs” in this Agreement means all
persons who claim a loss as a result of any harm of any kind claimed to have resulted from use of
defendants’ products. Thus, spouses qualify as one plaintiff. So do all persons who claim any
loss as a result of the death or injury of a person. In summary, spouses, children and/or heirs,
together with the person who sustained the claimed injury or death, constitute a single plaintiff.
	 
	 	5.	In order for the Settlement Program to become active, 95% of the plaintiffs identified in
Schedule A must have enrolled in the Program. The number of individuals whose claims arise solely
from the use of Zicam® swabs shall be subtracted from the denominator in determining whether the
95% threshold has been met.
	 
	 	6.	Counsel for plaintiffs will prepare a settlement distribution plan defining how the
Settlement Program will distribute awards to plaintiffs who qualify for a recovery.
	 
	 	7.	Upon signing the Agreement, the parties shall notify Judge Pendleton Gaines, Superior Court
of Arizona, Maricopa County, of the settlement and request that he retain jurisdiction to resolve
any disputes which may arise in the course of implementing the Agreement.





	 	 	 	 	 
	 	 	 
	 	 
	Barry Reed 	 
	Charles Zimmerman

Hart L. Robinovitch

Zimmerman Reed P.L.L.P

14646 N. Kierland Blvd., Suite 145

Scottsdale, AZ 85254 	 
	 
	 	 	 
	 	 
	Kenneth W. Lewis 	 
	Bush, Lewis & Roebuck P.C.

1240 Orleans Street

Beaumont, TX 77706 	 
	 
	 	 	 
	 	 
	Michael L. Williams 	 
	Brian Campf

Williams Love O’Leary Craine & Powers, P.C.

9755 SW Barnes Road, Suite 450

Portland, OR 97225 	 
	 



 









 





	 	 	 	 	 
	 	 	 
	 	 
	Mitchell A. Toups 	 
	Weller, Green, Toups & Terrell, LLP

Bank of America Tower

2615 Calder Street, Suite 400

Beaumont, TX 77702 	 
	 
	 	 	 
	 	 
	William Audet 	 
	Joshua Ezrin

Alexander, Hawes & Audet, LLP

300 Montgomery Street, Suite 400

San Francisco, CA 94104 	 



Attorneys for Plaintiffs




	 	 	 	 	 
	 
	 
	 	 	 
	 	 
	Charles F. Preuss 	 
	Drinker Biddle & Reath LLP

50 Fremont Street, 20th Floor

San Francisco, CA 94105 	 



Attorneys for Defendants