exv10w2



Table of Contents






Exhibit 10.2




CONFIDENTIAL MASTER SETTLEMENT AGREEMENT




















 















TABLE OF CONTENTS












	 	 	 	 	 	 	 
	 	 	 	 	Page
	I. INTRODUCTION	 	 	1
	 
	 	 	 	 	 	 
	II. RECITALS	 	 	1
	 
	 	 
	III. DEFINITIONS	 	 	2
	 

	A. PARTICIPATING CLAIMANTS
	 	 	2	 
	 

	B. PARTICIPATING LAW FIRMS
	 	 	3	 
	 

	C. LILLY
	 	 	3	 
	 

	D. SPECIAL SETTLEMENT MASTERS
	 	 	3	 
	 
	 	 	 	 	 	 
	IV. AGREEMENT	 	 	3
	 

	A. AUTHORITY OF COUNSEL
	 	 	4	 
	 

	B. BASIC AGREEMENT 4	 	 	 	 
	 

	C. SETTLEMENT EFFORTS/WAIVER OF STATUTE OF LIMITATIONS
	 	 	4	 
	 

	D. PARTICIPATING CLAIMANTS AND LAW FIRMS
	 	 	5	 
	 

	E. SETTLEMENT FUND
	 	 	6	 
	 

	F. RELEASE OF FUNDS FROM THE SETTLEMENT FUND
	 	 	8	 
	 

	G. CLAIMS ADMINISTRATION
	 	 	10	 
	 

	H. CLAIM VERIFICATION
	 	 	11	 
	 

	I. RELEASES, WAIVERS AND DISMISSALS
	 	 	11	 
	 

	J. DISMISSALS OF THIRD PARTIES AND SETTLEMENTS WITH THIRD PARTIES
	 	 	13	 
	 

	K. CLASS ACTION CLAIMANTS
	 	 	13	 
	 

	L. LIENS, ASSIGNMENT RIGHTS AND OTHER THIRD PARTY PAYOR CLAIMS
	 	 	14	 
	 

	M. INDEMNITY
	 	 	15	 
	 

	N. NO ADMISSION OF LIABILITY
	 	 	15	 
	 

	O. RETURN OF CONFIDENTIAL DOCUMENTS
	 	 	16	 
	 

	P. CONFIDENTIALITY
	 	 	16	 
	 

	Q. SUCCESSORS AND ASSIGNS
	 	 	19	 
	 

	R. GOVERNING LAW
	 	 	19	 
	 

	S. CHALLENGES TO OR DISPUTES INVOLVING THIS AGREEMENT
	 	 	19	 
	 

	T. ATTORNEYS’ FEES
	 	 	20	 
	 

	U. MERGER AND INTEGRATION
	 	 	20	 
	 

	V. NOTICE
	 	 	20	 












 









Table of Contents






CONFIDENTIAL
MASTER SETTLEMENT AGREEMENT










I. INTRODUCTION




     Eli Lilly and Company, a corporation (hereinafter defined in section III.C as “Lilly”) and
certain plaintiffs’ counsel representing Zyprexa claimants, including all plaintiffs’ counsel who
are members of the Plaintiffs’ Steering Committee (“PSC”) appointed in In re Zyprexa® Products
Liability Litigation, MDL No. 1596, in the United States District Court for the Eastern District of
New York and other plaintiffs’ counsel representing Zyprexa claimants have reached a confidential
settlement of certain Zyprexa actions, disputes and claims subject to the terms and conditions set
forth in this document. The matters included in the settlement are: a) cases pending in various
state and federal courts, including the multi-district litigation, In re Zyprexa Products Liability
Litigation, MDL No. 1596, pending before the Honorable Jack Weinstein (“MDL”); b) claims subject to
a tolling agreement; or c) informally asserted claims. These lawsuits and claims are collectively
referred to as “Participating Claimants” (hereinafter defined in Section III.A). Notwithstanding
the generality of the foregoing, Participating Claimants are expressly limited to those cases and
claims that are being handled or controlled by the attorneys and law firms who are members of the
PSC or other non-PSC law firms (“Participating Law Firms”) that are identified on the lists
submitted to Lilly in accordance with Section IV.D below.



     The terms and conditions of this Confidential Master Settlement Agreement (“Agreement”) are as
follows:







II. RECITALS




     Each of the Participating Claimants has asserted a claim against Lilly. Lilly disputes



1















Table of Contents




these
claims and denies that it has any liability with respect to these claims.




     In an effort to resolve their outstanding disputes, Participating Claimants and Lilly have
reached a settlement of all actual or potential claims that have arisen between them relating to
Participating Claimants’ use of Zyprexa, in accordance with the provisions of this Agreement.







III. DEFINITIONS








     A. PARTICIPATING CLAIMANTS



     “Participating Claimants” as used in this Agreement shall refer to those persons or derivative
claimants who are claiming an injury due to the use of Zyprexa and whose cases and claims are
subject to the terms of this Agreement. A final list of Participating Claimants has been provided
to Lilly. This list contains confidential and private information regarding each individual
claimant and, as such, will be kept by Lilly, the trustee for the Participating Law Firms and the
Special Settlement Masters in a separate file as an addendum to this Agreement. Each Participating
Claimant who wishes to resolve his or her claim pursuant to the terms of this Agreement shall be
entitled to participate in a claims review process and to receive compensation, if any, as may be
awarded by the Special Settlement Masters and upon execution of the Confidential Individual Release
attached hereto as Exhibit A, and in accordance with the terms of this Agreement. Prior to signing
a Confidential Individual Release (Exhibit A), a Participating Claimant may (i) withdraw from the
claims administration process established by the Special Settlement Masters or (ii) reject the
Settlement Amount that may be offered by the Special Settlement Masters, and thereafter pursue or
dismiss his or her claim, as may be appropriate.





2










Table of Contents









     B. PARTICIPATING LAW FIRMS



     “Participating Law Firms” are the law firms and all attorney members within each firm, that
represent the Participating Claimants whose cases and/or claims are the subject of this Agreement.
Participating Law Firms comprise law firms and attorneys who were appointed as members of the PSC
for MDL No. 1596, as well as non-PSC law firms and attorneys. A list of Participating Law Firms
has been provided to Lilly.







     C. LILLY



     “Lilly” as used and referred to in this Agreement shall include Eli Lilly and Company, a
corporation, and the entire company, its officers, directors, employees and shareholders, and its
past, present and future parents, subsidiaries, affiliates, controlling persons, suppliers,
distributors, contractors, agents, assigns, servants, counsel and insurers, and all of their
officers, directors, employees, shareholders, predecessors, successors, assigns, heirs, executors,
estate administrators or personal representatives (or the equivalent thereto).







     D. SPECIAL SETTLEMENT MASTERS



     Pursuant to Case Management Order No. 12, Kenneth R. Feinberg, Michael K. Rozen, Honorable
John K. Trotter (retired), and Catherine Yanni are appointed as “Special Settlement Masters” to
assist in the claims administration process described in this Agreement. The powers and
responsibilities of the Special Settlement Masters will be specified in subsequent Case Management
Orders entered by the Court in MDL No. 1596.





3










Table of Contents









IV. AGREEMENT








     A. AUTHORITY OF COUNSEL



     Each Participating Law Firm warrants and represents that it has provided a list of its
Participating Claimants who have asserted a claim against Lilly arising out of the use of Zyprexa.
Each Participating Law Firm warrants and represents that they represent the Participating Claimants
set forth on their respective list. Each Participating Law Firm further warrants and represents
that it will recommend to each of its Participating Claimants that they participate in a settlement
process to be jointly established by the Participating Law Firms and the Special Settlement
Masters.







     B. BASIC AGREEMENT



     For and in consideration of a release of all past, existing, and future claims relating to
Zyprexa, whether known or unknown, and other agreements as set forth herein, and in complete
settlement of the cases and/or claims asserted by Participating Claimants, Lilly hereby agrees to
make payment to Participating Claimants as described below.







     C. SETTLEMENT EFFORTS/WAIVER OF STATUTE OF LIMITATIONS



     Participating Claimants, Participating Law Firms and Lilly acknowledge and agree that there
will need to be substantial efforts by all concerned to effectuate the terms of this Agreement,
including efforts to provide appropriate client disclosures, obtain adequate consent, prepare
individual releases, and otherwise carry out the terms of this Agreement. Participating Claimants,
Participating Law Firms and Lilly agree to (i) exercise best efforts toward the resolution of these
cases under the terms of this Agreement, and (ii) jointly seek a stay of any




4












Table of Contents




case, including but
not limited to case specific or generic discovery or trials, which a Participating Claimant has
pending in any court while the parties continue their best efforts to finalize the settlement of
the claims subject to this Agreement.




     Further, in order to avoid the necessity of filing or pursuing a Zyprexa related claim, Lilly
hereby agrees with respect to all Participating Claimants to waive any statute of limitations
defense that it may otherwise have against any such Participating Claimant, subject only to the
following limitations. In the event that the conditions of this settlement are not met, or any
Participating Claimant does not resolve his or her case and/or claim under this agreement, then
Lilly hereby agrees to waive any applicable statute of limitations defense that it otherwise may
have for the time commencing from the earlier of (i) June 8, 2005, the date the Memorandum of
Understanding (“MOU”) was signed, or (ii) the date on which any tolling agreement was entered into
between Lilly and the Participating Claimant, in each case until 30 days after notice that the
conditions of this Agreement have not been met or 30 days notice that the Participating Claimant’s
claim is not resolved under this Agreement, whichever event occurs sooner. All tolling agreements
otherwise entered into between a Participating Claimant and Lilly are otherwise terminated and
superseded by this Agreement, except as provided above.



     Accordingly, the Participating Law Firms and Participating Claimants may agree to promptly
dismiss without prejudice any pending lawsuits.







     D. PARTICIPATING CLAIMANTS AND LAW FIRMS



     This Agreement is subject to the Participating Law Firms providing Lilly with the following
information:



5












Table of Contents





          1. A list of Participating Claimants numbering no fewer than 7,993. Pursuant to the terms of
the MOU dated June 8, 2005, the Participating Law Firms have submitted a list to Lilly of
Participating Claimants, which exceeds the required 7,993 claimants and which identifies the
claimant or claim (such as the claimant’s full name, social security number and/or date of birth).
Each Participating Law Firm warrants and represents that the list provided to Lilly includes 100%
of their represented Zyprexa clients. The Participating Claimants and claims identified herein
shall constitute the total universe of claims subject to this Master Settlement Agreement. Even
though Participating Law Firms have provided a list of claimants in excess of 7,993, Lilly
acknowledges and agrees that the minimum number of releases and qualified cases as set forth in
Paragraph IV(I) will not change.




          2. A list of Participating Law Firms. This list was provided to Lilly and identifies the
names of the law firms participating in this Agreement.








     E. SETTLEMENT FUND



          1. Funding Terms and Schedule




     In consideration of Participating Claimants’ promises, releases and other agreements as set
forth in this Agreement and because a list of at least 7,993 Participating Claimants and a list of
Participating Law Firms has been provided to Lilly, Lilly will pay $700 million (the “Settlement
Amount”) into a settlement fund held in escrow by Citibank, N.A., as escrow agent, the following
sums at the times stated:



	 	 	 
	September 7, 2005:

	 	Lilly will pay $300 million.
	September 15, 2005:

	 	Lilly will pay $200 million.
	December 15, 2005:

	 	Lilly will pay $200 million.






6










Table of Contents







     The settlement funds will be used as outlined below and distributed pursuant to escrow
instructions to be agreed to by the parties:



               (a) $690 million for the resolution and satisfaction of the Participating Claimants’ claims;
and



               (b) $10 million for administrative expenses, costs and services in connection with the
resolution of claims including those incurred by the Participating Law Firms and third parties in
creating the settlement fund and in setting up the procedures necessary to implement the claims
settlement process as envisioned by this Agreement.



     Lilly will also pay no later than December 15, 2005 the difference between the actually
accrued interest on the settlement fund, and that amount that would have accrued had the entire
amount been deposited on July 29, 2005 (“Accrued Interest”). Lilly’s obligation to pay interest
will be fifty percent (50%) of the Accrued Interest that would have been accrued between July 29,
2005 and August 29, 2005 and 100% from August 30, 2005 and thereafter. The rate of interest shall
be based on the actual rate earned by the Citibank Institutional Market Deposit Account from
between July 29, 2005 and the date the final deposit is made by Lilly. Lilly shall have no further
responsibility for the payment of any further funds under this settlement.



     Lilly further agrees that in the event that the Special Settlement Masters verify that the
claims administration process has been completed before December 15, 2005, Lilly will immediately
pay into the settlement fund any monies that would not otherwise be owed until December 15, 2005.






7












Table of Contents





          2. Establishment and Administration of Qualified Settlement Fund




     The Settlement Amount is intended to be deposited into a “Qualified Settlement Fund” within
the meaning of Treas. Reg. Sec. 1.468B-1, which shall be designated as the “Qualified Settlement
Fund ‘A’ for Certain Zyprexa Products Claims (“Settlement Fund”). The U.S. District Court for the
Eastern District of New York has authorized the establishment of the Settlement Fund, subject to
the Court’s jurisdiction. The parties agree that Citibank N.A. shall act as the escrow agent
(“Escrow Agent”) and Seeger Weiss LLP, acting through Christopher A. Seeger on behalf of the
Participating Law Firms shall be designated as the trustee of the Settlement Fund.



     It is agreed and understood by the parties to this Agreement that Lilly accepts no
responsibility or liability for any allocation or division of the settlement fund as among the
claimants. Further Lilly and their counsel accept no responsibility for any tax liability that may
attach to the proceeds of the Settlement Fund and the Participating Claimants and Participating Law
Firms acknowledge that Lilly has not made any representations regarding the taxability or
non-taxability of such proceeds.







     F. RELEASE OF FUNDS FROM THE SETTLEMENT FUND



     The payment of administrative expenses, costs and services outlined above shall be released by
the Escrow Agent pursuant to written escrow instructions provided by the parties.



     The payment of awards from the Settlement Fund to Participating Claimants in resolution and
satisfaction of their claims shall only be released by the Escrow Agent pursuant to written escrow
instructions to be provided by Lilly and the Participating Law Firms and subject to the following:




8









Table of Contents






          (a) Within 15 days of receipt of at least 7,193 releases and waivers required to be
provided under Paragraph IV (I) (2), and confirmation from the Special Settlement Masters that the
releases and waivers conform to the minimum requirements set forth in Paragraph IV (I), i.e. that
at least 7,193 releases are from Zyprexa users, who are U.S. residents [ * ]: (1) Lilly
shall either (i) confirm in writing to the Participating Law Firms and the Special Settlement
Masters that it has accepted the releases and waivers provided and the confirmation of the Special
Masters, or (ii) notify the Participating Law Firms and the Special Settlement Masters that the
releases and waivers received and/or the confirmation received from the Special Settlement Masters
fail to meet the requirements under this Agreement. If Lilly rejects the releases and waivers as
tendered or fails to accept the confirmation of the Special Settlement Masters, Lilly shall state
its reasons with reasonable detail and the parties shall meet and confer promptly to attempt to
resolve any dispute.




          (b) If Lilly has given the confirmations called for by paragraph (a)(i) above, Lilly and
the Settlement Fund trustee shall within 10 days issue joint written escrow instructions to the
Escrow Agent to release up to $50 million from the Settlement Fund for payment to Participating
Claimants that are entitled to receive an award as determined by the Special Settlement Masters.




          (c) Any and all remaining settlement funds available to satisfy awards made to Participating
Claimants shall be distributed after the Special Settlement Masters have certified by notice to the
Participating Law Firms and to Lilly that the conditions of Paragraph IV(H) and Paragraph IV(I)
have been satisfied.







 

* Material has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and
Exchange Commission.





9














Table of Contents





          (d) If the confirmations called for by paragraph (c) above are issued, Lilly and the
Settlement Fund trustee shall within 5 days issue joint written instructions to the Escrow Agent to
release the balance of the funds remaining in the Settlement Fund for the payment of awards to the
Participating Claimants and/or for payment of administrative costs incurred or services provided in
connection with the creation and implementation of the claims administration process and this
settlement, as determined by the Special Settlement Masters.




     Assuming the conditions of this Agreement are met, any interest which has accrued on the
Settlement Fund shall be paid as determined by the Special Settlement Masters consistent with the
applicable ethical rules in the following order: first, for administrative expenses or costs
incurred, or services provided, by Participating Law Firms and third parties for their efforts in
creating the Settlement Fund and in setting up the procedures necessary to establish and implement
the claims settlement process as envisioned by this Agreement, and second, to the Participating
Claimants on a pro-rata basis, pursuant to protocols developed by the Special Settlement Masters.
Interest accumulated in the Settlement Fund will not in anyway inure to the benefit of Lilly,
unless the conditions of this Agreement are not satisfied.



     If the conditions of this Agreement are not met, all monies deposited by Lilly and any
interest accumulated into the Settlement Fund, other than any monies released for administrative
costs and expenses outlined above, shall be returned to Lilly.



     Lilly shall have no further responsibility for the payment of any funds other than as outlined
above.







     G. CLAIMS ADMINISTRATION



     The Special Settlement Masters shall establish a claims administration process that shall
include guidelines and procedures for the administration of the settlement and the establishment



10










Table of Contents




of
escrow accounts as may be necessary to satisfy all lienholder claims that have been or may be
asserted against Participating Claimants in connection with their use of Zyprexa.




     The claims administration process shall have been completed when the Special Settlement
Masters have determined that (i) provision has been made for the payment of all administrative
expenses, costs and services, (ii) releases have been provided to Lilly for all Participating
Claimants that are eligible for awards, and (iii) the audit set forth in Paragraph IV(H) has been
completed.







     H. CLAIM VERIFICATION



     The Special Settlement Masters shall audit, report and confirm to Lilly that the conditions in
Paragraph IV(I) are met prior to the issuance of any award to any Participating Claimant. The
Special Settlement Masters shall provide to Lilly information on the manner in which the audit and
confirmation process was conducted in a format to be mutually agreed upon by the parties and the
Special Settlement Masters.







     I. RELEASES, WAIVERS AND DISMISSALS



          1. Minimum Requirement. This Agreement and the distribution of funds to Participating
Claimants are conditioned upon:




               a. Lilly obtaining releases and waivers of all past, present and future claims from no fewer
than 7,193 Participating Claimants (“Distribution Threshold”), which number represents ninety
percent (90%) of the minimum 7,993 Participating Claimants referenced in Paragraph IV(D).
Settlement payments shall only be issued to persons who are







11









Table of Contents




U.S. residents who took Zyprexa. The
parties agree that before any individual Participating Claimant receives a settlement payment, such
Participating Claimant must either dismiss with prejudice his or her Zyprexa-related lawsuit and
provide a waiver and release as noted below, or if no such lawsuit has been commenced, provide
Lilly with a waiver and release of all Zyprexa-related claims, whether or not asserted by the
Participating Claimant. Such dismissals and waivers shall terminate the subject lawsuit or
released claim as to all named parties in its entirety. Dismissals shall be effective as to all
named defendants, including but not limited to claims against present or former Lilly employees
involving the use and/or prescription of Zyprexa by third party defendant physicians, health care
providers, hospitals and other medical facilities.




               [ * ]



     2. Release Provisions. Releases of liability must be provided to Lilly by any Participating
Claimant who receives an award through the claims administration process. Such releases shall be
obtained by Lilly from no fewer than 7,193 Participating Claimants. The releases from all
Participating Claimants shall release all claims which each individual Participating Claimant ever
had, or now has, or hereafter can, shall or may have in the future against Lilly arising out of,
relating to, resulting from, or in any way connected with Zyprexa, including those claims and
damages of which the Participating Claimant is not aware and/or that Participating Claimant has not
yet anticipated and shall also extend to all named defendants in pending cases and all other third
parties as described more fully in the Confidential Individual Release attached hereto as Exhibit
A, the content of which is incorporated herein and made part




 




			
	*	 	Material has been omitted pursuant to a request for confidential treatment. The omitted material
has been filed with the Securities and Exchange Commission.







12











Table of Contents




of this Agreement. The Confidential
Individual Release shall not be modified except upon written consent by Lilly.








     J. DISMISSALS OF THIRD PARTIES AND SETTLEMENTS WITH THIRD PARTIES



     Any dismissal of a lawsuit against Lilly shall extend to and include a dismissal with
prejudice of the entire action or claim as to all named defendants, including but not limited to
physicians, health care providers, hospitals and other medical facilities, as well as any present
or former Lilly employees.



     Participating Claimants agree not to seek any settlement with any third party as to a case
subject to this Agreement. If a Participating Claimant has reached a settlement with a third party
or a named defendant in a lawsuit that is the subject of this Agreement, the fact and amount of
settlement must be disclosed to Lilly and the Special Settlement Masters. The amount of any such
settlement shall be considered by the Special Settlement Masters in making any award.







     K. CLASS ACTION CLAIMANTS



     The individual plaintiffs in Ortiz, et al., v. Eli Lilly and Company, No. 04-CV-1587 (JBW),
Tringali, et al., v. Eli Lilly and Company, No. 04-CV-2104 (JBW) and Dau, et al., v. Eli Lilly and
Company, No. 04-CV-4732 (JBW) currently pending in In re Zyprexa Products Liability Litigation, MDL
No. 1596, in the United States District Court for the Eastern District of New York, have decided
after consultation with their counsel that they choose to participate in the settlement process
contemplated by this Agreement and have agreed to stipulate to the dismissals of the above-stated
actions and together with Lilly will seek court approval of the



13











Table of Contents




dismissals of such actions without
costs or fees to any party. It is acknowledged that none of the above-stated class action cases
have received class certification.








     L. LIENS, ASSIGNMENT RIGHTS AND OTHER THIRD PARTY PAYOR CLAIMS



     Each Participating Claimant shall identify for the Special Settlement Masters all known lien
holders, as described below, lawsuits or interventions, including by subrogation, through
procedures and protocols to be established by the Special Settlement Masters. Similarly, each
Participating Claimant shall also identify government payors, including Medicare or Medicaid liens
if they exist regardless of notice, through procedures and protocols to be established by the
Special Settlement Masters. The lien holders and parties who hold rights through statutory
assignments or otherwise (hereinafter referred to collectively as “lien holders”) who must be
identified are those third-party payors (public or private) that have paid for and/or reimbursed
Participating Claimants for Zyprexa and/or any drug costs, hospital expenses, medical expenses,
physician expenses or any other health care provider expenses arising from or based upon the
provision of medical care or treatment provided to the Participating Claimant in connection with
his or her claimed injury due to the use of Zyprexa. Prior to receiving his or her award, each
Participating Claimant shall represent and warrant that any liens, assignment rights, or other
claims identified above have been or will be satisfied by the Participating Claimant. Satisfaction
of any liens, assignments, or other claims as identified above is the sole responsibility of the
Participating Claimant and his or her attorney and must be established to the satisfaction of the
Special Settlement Masters, which may include an agreement to compromise any such liens, before
settlement funds can be disbursed. Upon request to the Special Settlement Masters, Lilly




14










Table of Contents




shall be
entitled to proof of lien or claim satisfaction and/or payment of such for each Participating
Claimant for liens arising from or in connection with their use of Zyprexa.




     Participating Claimants hereinafter agree under this Agreement that they are releasing Lilly
from all future medical expenses, including but not limited to drug costs, hospital, medical,
physician or health care provider expenses relating to any past, present or future medical care or
treatment arising from or in connection with the use of Zyprexa.







     M. INDEMNITY



     Participating Claimants agree to indemnify and defend Lilly against and hold Lilly harmless
from any and all damages or losses Lilly may incur, including attorneys’ fees and costs, in
connection with: (i) claims or actions seeking damages for or attributable to the personal injuries
and/or death, specific to any Participating Claimant allegedly related in any way to Zyprexa,
including without limitation, any such claim or action by any potential claimant under applicable
law, including the Participating Claimant’s heirs, surviving spouse, (including a putative or
common law spouse), surviving domestic partner, next of kin, successors, assigns, agents,
representatives, guardians, duly-appointed trustees, executors, estate administrators or personal
representatives (or equivalent thereto), and (ii) liens, assignments, subrogated interests,
encumbrances, causes of action, suits or judgment asserted by lien holders as defined in Paragraph
L above specific to a Participating Claimant’s claims for drug costs, hospital, medical, physician
or health care provider expenses spent for medical care or treatment to any Participating Claimant
arising from or in connection with their use of Zyprexa.




15












Table of Contents









     N. NO ADMISSION OF LIABILITY



     This Agreement is entered into solely by way of compromise and settlement and is not and shall
not be construed as an admission of liability, responsibility or fault of or by Lilly.







     O. RETURN OF CONFIDENTIAL DOCUMENTS



     The parties acknowledge that Lilly has entered into a protective order with each Participating
Law Firm and that Lilly intends to enforce and the Participating Law Firms intend to abide by the
protective orders while the Participating Law Firms and Lilly are working towards meeting the
conditions of this Agreement. Further, all documents produced by Lilly or any third party and
that have been designated as Confidential or protected under any Protective Order in any pending
Participating Claimant case resolved pursuant to this Agreement shall be returned to Lilly pursuant
to the provisions of the applicable Protective Orders, unless otherwise directed by an order of the
Court in MDL No. 1596, which order shall be controlling. Notwithstanding the generality of the
foregoing, in no event shall any Participating Claimant be required to return any medical records
or other document(s) pertaining specifically to such Participating Claimant.



     The parties acknowledge that each Participating Law Firm’s obligation to comply with the
provisions of any applicable protective order concerning confidential documents does not supersede
any existing law and may be modified by order of the Court in MDL No. 1596, which order shall be
controlling.



16










Table of Contents









     P. CONFIDENTIALITY



          1. Confidentiality Agreement. The terms of this Agreement and the amount of settlement awards
made to Participating Claimants under this Agreement are confidential, except as may be required by
law and then only to the extent necessary. Any and all evaluation processes and procedures utilized
in conjunction with the claims administration or award distribution process shall also be kept
strictly confidential among the Participating Claimants and the Participating Law Firms.




     Agreement to, and maintenance of, confidentiality are material terms of this Agreement. It is
agreed that the following language shall be included in individual settlement releases and is
incorporated in this Agreement:




Participating Claimant and his/her attorneys shall keep strictly confidential and agree not
to publicize, disclose or characterize to any third party, person or entity, at any time,
the following information, except as it may otherwise appear in the public domain:
Memorandum of Understanding dated June 8, 2005, the Confidential Settlement Agreement and
Release and any of the terms and conditions of this settlement, the amount of this
settlement, the history, background and/or substance of the negotiations, directly or
indirectly, leading up to this Settlement Agreement, or any other information which would
assist a third party in receiving or otherwise learning about this Confidential Settlement
Agreement and Release, and such terms, conditions, amounts, history, background and/or the
substance of any such negotiations (all which shall be and is “Confidential Information”),
except as required by any law. Participating Claimant and his/her attorneys may, however,
make disclosure of the money received by Participating Claimant to their accountants and/or
financial advisors who shall, however, upon such


17












Table of Contents






disclosure, be instructed to maintain and
honor the confidentiality of such information. If inquiry is made by any third person
concerning the status of Participating Claimant’s lawsuit, other than as identified above
and as necessary to resolve the liens identified above, Participating Claimant and his/her
attorneys shall respond only that the suit has been resolved, and make no further comments.



    Participating Claimants and his/her attorneys further agree not to communicate, publish
or cause to be published, in any public or business forum or context, any statement, whether
written or oral, concerning the specific events, facts or circumstances giving rise to a
Participating Claimant’s claims. The parties agree that any violations of the
confidentiality provisions of this Settlement Agreement shall entitle the non-breaching
party to bring an action against the breaching party to seek and recover immediate relief,
redress and damages associated with such breach, including injunctive relief, as may be
proven.



          2. Inadmissibility of Settlement and Related Documents. Participating Law Firms, and
Participating Claimants who receive awards pursuant to this Agreement, shall not offer in evidence
or in any way refer to in any civil, criminal, administrative or other related action or
proceeding, the Memorandum of Understanding dated June 8, 2005 and any addendum thereto, this
Agreement, its terms or any Confidential Discovery Materials as defined in Case Management Order
No. 3 (protective order) filed on August 9, 2004 in MDL No. 1596, or in any other protective order
issued in any pending case, other than as may be necessary to consummate or enforce this Agreement.
If the subject of the MOU, this Agreement, its terms or any Confidential Discovery Materials shall
arise in any such legal proceedings, Participating




18










Table of Contents





Claimants and Participating Law Firms shall, to
the extent possible, 1) oppose disclosure, 2) give Lilly notice and an opportunity to intervene and
oppose disclosure, 3) file under seal any documents disclosing this Agreement, its terms or any
Confidential Discovery Materials, and 4) take reasonable measures to ensure that this Agreement,
its terms and any Confidential Discovery Material are kept confidential and that any disclosure
thereof takes place in camera. In the event that there is a proceeding to consummate or enforce
this Agreement, including but not limited to any proceeding involving a minor’s compromise, death
compromise, divorce or any other judicial proceeding, Participating Claimant will file under seal
any documents which disclose or refer to this Agreement, its terms or any Confidential Discovery
Materials, will conduct all related proceedings under seal, and will take reasonable measures to
ensure that this Agreement, its terms and any Confidential Discovery Materials are kept
confidential and that any disclosure thereof takes place in camera.



     The above agreements shall be null and void, assuming the conditions of this Agreement are not
met and Lilly elects not to go forward with this settlement.







     Q. SUCCESSORS AND ASSIGNS.



     The terms and conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of each party hereto.







     R. GOVERNING LAW



     This Agreement shall be governed by and construed in accordance with the laws of Indiana
without regard to choice of law principles.



19










Table of Contents









S. CHALLENGES TO OR DISPUTES INVOLVING THIS AGREEMENT




     Any challenges to or disputes arising out of or relating to an alleged violation of this
Agreement, including but not limited to disputes between Lilly and Participating Law Firms and/or
Participating Claimants and disputes between or among Participating Law Firms and/or members of
Participating Law Firms arising out of or in connection with this Agreement, shall be referred for
binding determination to Judicial Arbitration Mediation Services (“JAMS”) for resolution. The
parties shall work together to agree on a binding neutral arbitrator to resolve any and all
disputes and if an agreed upon arbitrator can not be selected, JAMS’ complex resolution procedures
shall control the selection of a neutral arbitrator.







T. ATTORNEYS’ FEES




     Nothing in this Agreement shall affect the obligation of any Participating Claimant to pay
attorneys’ fees and costs pursuant to any agreement such Participating Claimant may have with his
or her counsel. Lilly shall have no responsibility whatsoever for the payment of Participating
Claimants’ attorneys’ fees. Any division of the Settlement Amount is to be determined by
Participating Claimant and Participating Law Firms and shall in no way affect the validity of this
Agreement or the Confidential Individual Release executed by any Participating Claimant.







U. MERGER AND INTEGRATION




     This Agreement supersedes and replaces any prior agreement, tolling agreement or writing
between the parties and constitutes the entire Agreement between Lilly, the Participating Law Firms
and the Participating Claimants.





20











Table of Contents








V. NOTICE




Any notices required under this Agreement shall be provided as follows:




(a) For the Participating Law Firms, notice shall be provided to:




	 	 	 	 	 
	 

	 	Christopher A. Seeger
	 	Thomas A. Schultz
	 

	 	Seeger Weiss LLP
	 	Lopez, Hodes, Restaino, Milman & Skikos
	 

	 	One William Street
	 	450 Newport Center Drive, Second Floor
	 

	 	New York, NY 10004
	 	Newport Beach, CA 92660
	 

	 	212-584-0700 (phone)
	 	949-640-8222 (phone)
	 

	 	212-584-0799 (fax)
	 	949-640-8294 (fax)
	 

	 	cseeger@seegerweiss.com
	 	tschultz@lopez-hodes.com





(b) For Lilly, notice shall be provided to:




	 	 	 	 	 
	 

	 	Nina M. Gussack	 	 
	 

	 	Pepper Hamilton LLP	 	 
	 

	 	3000 Two Logan Square	 	 
	 

	 	Philadelphia, PA 19103	 	 
	 

	 	215-981-4950 (phone)	 	 
	 

	 	215-981-4307 (fax)	 	 
	 

	 	gussackn@pepperlaw.com	 	 





(c) For the Special Settlement Masters, notice shall be provided to:




	 	 	 	 	 
	 

	 	Honorable John B. Trotter (retired)
	 	Catherine Yanni
	 

	 	JAMS
	 	JAMS
	 

	 	500 N. State College Blvd., Ste. 600
	 	Two Embarcadero Center, Ste. 1100
	 

	 	Orange, CA 92868
	 	San Francisco, CA 94111
	 

	 	714-939-1300 (phone)
	 	415-982-5267 (phone)
	 

	 	714-939-8710 (fax)
	 	415-527-9611 (fax)
	 

	 	tlunceford@jamsadr.com
	 	cayanni@comcast.net
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	Kenneth Feinberg	 	 
	 

	 	Michael Rozen	 	 
	 

	 	The Feinberg Group	 	 
	 

	 	780 Third Avenue, 26th Floor	 	 
	 

	 	New York, NY 10017-2024	 	 
	 

	 	212-527-9600 (phone)	 	 
	 

	 	212-527-9611	 	 
	 

	 	rsrosen@feinberggroup.com	 	 





(d) For the escrow agent, notice shall be provided to:




	 	 	 	 	 
	 

	 	Kerry M. McDonough, Vice President	 	 
	 

	 	The Citigroup Private Bank	 	 
	 

	 	Preferred Custody Services	 	 
	 

	 	120 Broadway, 2nd Floor	 	 
	 

	 	New York, NY 10271	 	 
	 

	 	212-804-5499 (phone)	 	 
	 

	 	212-804-5401 (fax)	 	 






Executed on ___, 2005.






21










Table of Contents





SO AGREED ON BEHALF OF THE PARTICIPATING CLAIMANTS AND THE PARTICIPATING LAW FIRMS:







	 	 	 
	 

	 	 
	Melvyn I. Weiss

	 	Ramon Rossi Lopez
	Milberg Weiss Bershad & Schulman LLP

	 	Lopez, Hodes, Restaino, Milman & Skikos
	One Pennsylvania Plaza, 49th Floor

	 	450 Newport Center Drive, Second Floor
	New York, NY 10119

	 	Newport Beach, CA 92660











	 	 	 
	 

	 	 
	Christopher A. Seeger

	 	Nancy Hersh
	Seeger Weiss LLP

	 	Hersh & Hersh
	One William Street

	 	601 Van Ness Avenue, Suite 2080
	New York, NY 10004

	 	San Francisco, CA 94102











	 	 	 
	 

	 	 
	H. Blair Hahn

	 	Mark Robinson
	Richardson, Patrick, Westbrook & Brickman LLC

	 	Robinson, Calcagnie & Robinson
	1037 Chuck Dawley Blvd., Bldg. A

	 	620 Newport Center Drive, 7th Floor
	Mt. Pleasant, SC 29464

	 	Newport Beach, CA 92660











	 	 	 
	 

	 	 
	Jerrold S. Parker

	 	Perry Weitz
	Parker & Waichman

	 	Weitz & Luxenberg
	111 Great Neck Road

	 	180 Maiden Lane
	Great Neck, NY 11021

	 	New York, NY 10038









22









Table of Contents










	 	 	 
	 

	 	 

	Michael Heaviside

	 	Michael A. London
	Ashcraft & Gerel

	 	Douglas & London
	2000 L Street, N.W., Suite 400

	 	111 John Street, 8th Floor
	Washington, D.C. 20036

	 	New York, NY 10038











	 	 	 
	 

	 	 
	Troy Rafferty

	 	Michael Burg
	Levin Papantonio Thomas Mitchell

	 	Burg Simpson Eldredge Hersh & Jardine PC
	Echsner & Proctor PA

	 	40 Inverness Drive East
	316 South Baylen Street, Suite 600

	 	Englewood, CO 80112
	Pensacola, FL 32502
	 	 












	 	 	 
	 

	 	 
	Tommy Fibich

	 	Scott Levensten
	Fibich, Hampton, Leebron & Garth

	 	The Beasley Firm
	Five Houston Center

	 	1125 Walnut Street
	1401 McKinney, Suite 1800

	 	Philadelphia, PA 19107
	Houston, TX 77010
	 	 











	 	 	 
	 

	 	 
	Dennis Reich

	 	Michael Schmidt
	Reich & Binstock

	 	The Schmidt Law Firm
	4265 San Felipe, Suite 100

	 	8401 North Central Expressway, Suite 880
	Houston, TX 77027

	 	Dallas, TX 75225













	 	 	 
	 

	 	 
	Ron
Meneo

	 	 
	Early
& Meneo, LLP

	 	 
	One
Century Tower

	 	 
	265
Church Street

	 	 
	New
Haven, CT 06508-1806

	 	 








SO AGREED ON BEHALF OF ELI LILLY AND COMPANY:





23









Table of Contents









	 	 	 
	 

	 	 
	Nina M. Gussack

	 	Colleen T. Davies
	Pepper Hamilton LLP

	 	Reed Smith LLP
	3000 Two Logan Square

	 	1999 Harrison Street
	Philadelphia, PA 19103

	 	Suite 2400
	 

	 	Oakland, CA 94612











	 	 	 
	 

	 	 
	George Lehner

	 	Steven M. Kohn
	Pepper Hamilton

	 	Reed Smith LLP
	600 14th Street N.W.

	 	1999 Harrison Street, Suite 2400
	Washington, D.C. 20005

	 	Oakland, CA 94612









24