AMENDED AND RESTATED APG SILICA TRUST DISTRIBUTION .
AMENDED AND RESTATEDAPG SILICA TRUST DISTRIBUTION PROCEDURESEffective April 30, 2013
AMENDED AND RESTATEDAPG SILICA TRUST DISTRIBUTION PROCEDURESTABLE OF CONTENTSPageSECTION 1 Introduction . 11.1Purpose . 11.2Interpretation . 1SECTION 2 Overview . 22.1APG Silica Trust Goals . 22.2Coordination with Other Claims. . 2(a)Injured Parties with Dual Claims. . 2(b)Lung Cancer Awards. . 3(c)Releases. 3(d)Disclosure. . 3(e)Mixed Dust Claims. . 32.3APG Silica Trust Claim Liquidation Procedures . 42.4Application of the Payment Percentage for APG Silica Trust Claim . 52.5Indirect APG Silica Trust Claims. 5SECTION 3 APG Silica TDP Administration . 63.1APG Silica TAC and APG Silica Future Claimants Representative . 63.2Consent and Consultation Procedures . 6SECTION 4 Payment Percentage; Periodic Estimates . 64.1Uncertainty of Silica-Related Tort Liabilities. . 64.2Computation of Payment Percentage. . 64.3Applicability of the Payment Percentage. . 7SECTION 5 Resolution of APG Silica Trust Claims . 75.1Ordering, Processing, and Payment of Claims . 7(a)Ordering of Claims . 7(b)Intentionally Omitted . 8H-991477 37i
(c)Payment of Claims . 85.2Resolution of Convenience Class Claims . 95.3Resolution of APG Silica Trust Claims . 10(a)Claim Review Process . 11(b)Foreign Claims. . 15(c)Review of Industry and Occupational Exposure Criteria. . 16(d)Claim Value. . 165.4Exigent Hardship Claims. . 175.5Secondary Exposure Claims. 175.6Indirect APG Silica Trust Claims. 175.7Evidentiary Requirements. . 19(a)Medical Evidence. 19(b)Exposure Evidence. 215.8Claims Audit Program. . 215.9Second Disease (Malignancy) and Progressive Disease (Non-Malignant) Claims. . 22(a)In General. 22(b)Time For Asserting Second Disease Claim. . 225.10Arbitration. . 23(a)Establishment of ADR Procedures. . 23(b)Claims Eligible for Arbitration. . 23(c)Limitations on and Payment of Arbitration Awards. . 235.11Litigation. . 23SECTION 6 Claims Materials . 246.1Claims Materials . 246.2Content of Claims Materials . 246.3Withdrawal or Deferral of Claims . 256.4Filing Requirements and Fees . 256.5Confidentiality. 256.6Reporting to the Centers for Medicare & Medicaid Services . 25H-991477 37ii
SECTION 7 General Guidelines for Liquidating and Paying Claims . 267.1Costs Considered . 267.2Discretion to Vary the Order and Amounts of Payments. 267.3Punitive Damages . 277.4Interest. . 277.5Suits in the Tort System . 277.6Payment of Judgments for Money Damages . 287.7Releases . 287.8Third-Party Services . 29SECTION 8 Miscellaneous . 298.1Amendments. 298.2Severability. 298.3Governing Law . 29H-991477 37iii
AMENDED AND RESTATEDAPG SILICA TRUST DISTRIBUTION PROCEDURESThe Amended and Restated APG Silica Trust Distribution Procedures (the “APG SilicaTDP”) contained herein provide for resolving all APG Silica Trust Claims and Demands (hereinafterreferred to collectively for all purposes of this APG Silica TDP as “APG Silica Trust Claims” or“Claims”) for which the APG Entities (as defined in Exhibit A hereto) have Legal Responsibility, asprovided in and required by the GIT Plan and the APG Silica Trust Agreement. As used in this APGSilica TDP “Legal Responsibility” means responsibility for (i) a claim for personal injury caused byexposure to goods manufactured or sold, or by operations (including installation) conducted by anAPG Entity where initial exposure occurred on or prior to February 14, 2002, which is the PetitionDate applicable to each of the APG Entities, involving products containing respirable crystallinesilica or (ii) a claim for personal injury caused by exposure to goods manufactured or sold, oroperations (including installation) conducted by General Refractories Company on or prior to August1, 1994, involving products containing respirable crystalline silica. As used herein, LegalResponsibility does not include responsibility for workers’ compensation claims.The GIT Plan and the APG Silica Trust Agreement establish the APG Silica Trust (alsoreferred to herein as the “Trust”). The APG Silica Trustee (as defined and identified in the APGSilica Trust Agreement and also referred to herein as the “Trustee”) shall implement and administerthis APG Silica TDP in accordance with the APG Silica Trust Agreement. Capitalized terms usedherein and not otherwise defined shall have the meanings assigned to them in the GIT Plan or theDefinitions attached as Exhibit 1 to the Disclosure Statement to Accompany the Third AmendedPlan of Reorganization dated December 28, 2005 of Global Industrial Technologies, Inc. and itsSubsidiaries, as amended and modified.This APG Silica TDP amends and restates in its entirety the form of APG Silica TrustDistribution Procedures attached to the GIT Plan and approved by the Bankruptcy Court and hasbeen approved by the APG Silica Trustee, the APG Silica TAC and the APG Silica Future ClaimantsRepresentative.SECTION 1Introduction1.1PurposeThis APG Silica TDP has been adopted pursuant to the APG Silica Trust Agreement. It isdesigned to provide fair, equitable, and substantially similar treatment for all APG Silica TrustClaims that may presently exist or may arise in the future in substantially the same manner.1.2InterpretationNothing in this APG Silica TDP shall be deemed to create a substantive right for any InjuredParty. As used in this APG Silica TDP, the term “Injured Party” means a person who has beeninjured as a result of exposure to silica-containing products for which APG Entity has LegalResponsibility, either as an occupational exposure or a secondary exposure, and where the contextrequires, the representative or attorney making a claim on behalf of an Injured Party. The termH-991477 371
“Claimant” means the person filing an APG Silica Trust Claim, directly or through a licensedattorney, and may be the Injured Party or a “Claimant Representative,” who is the representative ofthe Injured Party or of the Injured Party’s estate or heirs.SECTION 2Overview2.1APG Silica Trust GoalsThe goal of the APG Silica Trust is to treat all Claimants equitably. This APG Silica TDPfurthers that goal by setting forth procedures for processing and paying allowed claims generally onan impartial, first-in-first-out (“FIFO”) basis, with the intention of paying all Claimants with allowedClaims against any APG Entity over time as equivalent a share within their respective groups aspossible. To this end, this APG Silica TDP establishes a schedule of four silica-related diseases(“Disease Levels”), each of which have presumptive medical, product, and industry exposurerequirements (“Medical/Exposure Criteria”), specific liquidated values (“Scheduled Values”), andcaps on the respective liquidated values (“Maximum Values”) applicable to Type 2 Claims (ashereinafter defined). The Medical/Exposure Criteria, which are set forth below, have been selectedand derived with the intention of achieving a fair allocation of the APG Silica Trust funds as amongClaimants whose allowable claims are based on different disease processes in light of the bestavailable information considering the rights Injured Parties would have in the tort system absent thebankruptcy of the APG Entities.2.2Coordination with Other Claims.The Plan and the APG Asbestos Trust Agreement establish the APG Asbestos Trust andAsbestos Distribution Procedures (“APG Asbestos TDP”) that provide for resolving all AsbestosPersonal Injury Claims for which the APG Entities are legally responsible.(a)Injured Parties with Dual Claims.A Claimant may assert separate claims against the APG Silica Trust and the APGAsbestos Trust (“Dual Claims”) and receive payment for allowed claims from both, provided that theInjured Party meets the relevant Medical/Exposure Criteria under this APG Silica TDP, and subjectto the provisions regarding lung cancer claims in Section 2.2(b). The APG Silica Trust willdetermine on a case-by-case basis by Individual Review the appropriateness of allowing APG SilicaTrust Claims for Claimants with Dual Claims. For the avoidance of doubt, (i) no Claimant mayrecover on an APG Silica Trust Claim based on a diagnosis of a silica disease which relies on an xray that was used to support a diagnosis of an asbestos disease, unless both diagnoses were made ator about the same time by the same doctor or, if by different doctors, based on a single x-ray readingby a NIOSH certified B-Reader that separately identifies the location and shape of opacitiesconsistent with both silica and asbestos exposure, and (2) in the event the APG Silica Trust Claim isbased on a diagnosis that relies on an x-ray (the “silica x-ray”) different from the one used to supporta diagnosis of an asbestos disease (the “asbestos x-ray”), the silica x-ray must have been taken undercircumstances (such as separation by time) that make it credible that the silica disease would nothave been identified on the asbestos x-ray.H-991477 372
(b)Lung Cancer Awards.In the event the medical evidence submitted by a Claimant for a lung cancer claim indicatesthat the Injured Party had exposure to asbestos-containing products and asbestos disease in additionto silica exposure and silica disease, the APG Silica Trust will suspend consideration of the APGSilica Trust Claim until the Claimant files a claim with the APG Asbestos Trust, obtains a resolutionof that asbestos claim and provides the APG Silica Trust with a copy of the award or disallowanceby the APG Asbestos Trust. After resolution of the claim by the APG Asbestos Trust, the APGSilica Trust will process the APG Silica Trust Claim, and if it is allowed, the liquidated value of theaward for the lung cancer claim allowed by the APG Silica Trust shall be reduced by the amount ofthe liquidated value of the award for the lung cancer claim allowed by the APG Asbestos Trust.(c)Releases.In the event that a Claimant asserts and establishes an APG Silica Trust Claim against theAPG Silica Trust and has previously recovered on a separate APG Asbestos Trust Claim, theClaimant will be required to disclose the prior claim and to provide a copy of the release executed inconnection with the prior claim. The APG Silica Trust will evaluate the effect of such release on theAPG Silica Trust Claim asserted against the APG Silica Trust.(d)Disclosure.In order to implement the provisions of this Section 2.2 and the corresponding provisions ofthe APG Asbestos TDP, each Claimant will be required to disclose to each trust in connection withthe filing of a claim all asbestos and silica claims against any APG Entity, the APG Asbestos Trust,or the APG Silica Trust. If requested to do so, each trust will provide to the other trust the namesand social security number (or the last four digits thereof) of each Injured Party and the name of theattorney for the Claimant so that the trusts can coordinate claims. By submission of a claim againsteither of the trusts, a Claimant consents to the disclosure to the other trust of such information,provided that such other trust maintains the confidentiality of such information to the same extent itmaintains the confidentiality of claims and claims information filed with such trust.(e)Mixed Dust Claims.A Claimant seeking compensation for any mixed-dust disease, including without limitationmixed dust pneumoconiosis and mixed dust fibrosis, which does not include a diagnosis of silicosis,may not recover from the APG Silica Trust.H-991477 373
2.3APG Silica Trust Claim Liquidation ProceduresClaims shall be processed based on their place in the FIFO Processing Queue to beestablished pursuant to Section 5.1 (a) below. The APG Silica Trust shall take all reasonable steps toresolve Claims as efficiently and expeditiously as possible at each stage of claims processing andarbitration. To that end, the APG Silica Trust may, in its sole discretion, conduct settlementdiscussions with Claimants’ Representatives with respect to more than one claim at a time, providedthat the Claimants’ respective positions in the FIFO Processing Queue are maintained and each claimis individually evaluated pursuant to the valuation factors set forth in Section 5.3(d)(2) below.All APG Silica Trust Claims except Convenience Class Claims and Foreign Claims (asdefined below) may be submitted for Expedited Review (“Type 1 Claims”) or Individual Review(“Type 2 Claims”), but will be considered for the claim category that is supported by the evidencesubmitted regardless of which type of claim is submitted. Convenience Class Claims (“Type 3Claims”) will be liquidated in accordance with the provisions of Section 5.2 below. Foreign Claimswill be liquidated pursuant to separate claims liquidation procedures to be established by the Trusteewith the consent of the APG Silica TAC and the APG Silica Future Claimants Representative (eachof whom is described in Section 3.1 below).To be allowed as a Type 1 Claim, a claim must meet the presumptive Medical Criteria ofDisease Levels I– IV and Industry Exposure, which means credible evidence of a minimum of sixmonths or greater employment in one of the industries listed in Attachment A hereto or,alternatively, credible evidence of six months or greater cumulative employment in another industryin which silica-containing refractory products manufactured or distributed by an APG Entity werehandled, installed, used, repaired, torn out, or cleaned out, which exposure occurred on or beforeAugust 1, 1994 with respect to General Refractories derived claims and otherwise, on or beforeFebruary 14, 2002. A Type 1 Claim that is allowed will receive a liquidated value that is not lessthan its Scheduled Value, but may receive a liquidated value that is greater than its Scheduled Valueby demonstrating factors that are claimed to support a higher value. If the Injured Party meetsIndustry Exposure criteria, but his or her only Occupational Exposure (as defined below) is as asandblaster or as a laborer, general maintenance or custodial staff working in proximity tosandblasting operations, the Industry Exposure must be for a minimum of one (1) year, and the claimvalue, if allowed, will be Scheduled Value. If that Occupational Exposure is a significant portion ofthe Injured Party’s Occupational Exposure, but not the only exposure, it may reduce claim value (butnot below Scheduled Value). The APG Silica Trust will consider all factors disclosed in connectionwith the filed APG Silica Trust Claim to make that determination.Claimants filing a Type 2 Claim may also establish a liquidated value for the claim that isgreater than its Scheduled Value through Individual Review by demonstrating factors that areclaimed to support a higher value. The liquidated value of an allowed Type 2 Claim will not be lessthan its Scheduled Value, but in any event shall not exceed the Maximum Value for the relevantDisease Level set forth in Section 5.3(a)(3) below. For a claim to be evaluated as a Type 2 Claim,the Claimant must submit evidence of the Occupational Exposure of the Injured Party.“Occupational Exposure” means credible evidence of employment with a minimum of a six-monthcumulative occupational exposure in an occupation listed on Attachment B hereto or alternatively inanother occupation in which the Injured Party would have had continuing exposure to respirablesilica as a result of handling, installing, using, repairing, tearing out, or cleaning out silica-containingH-991477 374
refractory products manufactured or distributed by an APG Entity or working on a regular basis inclose proximity to workers engaged in such activities, in either case, in an industry which qualifiesfor Industry Exposure hereunder. Occupational Exposure is one of the factors that may support ahigher value; however, if his or her only Occupational Exposure is as a sandblaster or as a laborer,general maintenance or custodial staff working in proximity to sandblasting operations, the IndustryExposure must be for a minimum of one (1) year, and claim value, if allowed, will be ScheduledValue. If that Occupational Exposure is a significant portion of the Injured Party’s OccupationalExposure, but not the only exposure, it may reduce claim value (but not below Scheduled Value).All disputes over an Injured Party’s medical condition, exposure history, Industry Exposure,Occupational Exposure, and/or the liquidated value of the claim (for Type 1 Claims, Type 2 Claimsor Type 3 Claims) shall be subject to binding or non-binding arbitration as set forth in Section 5.10below, at the election of the Claimant, under procedures that are provided in Attachment D hereto.Claims that are the subject of a dispute with the APG Silica Trust that are not resolved after nonbinding arbitration may enter the tort system as provided in Sections 5.11 and 7.6 below. However,if and when a Claimant obtains a judgment in the tort system, the judgment shall be payable (subjectto the Payment Percentage provisions set forth in Section 2.4 below) as provided in Section 7.7below.2.4Application of the Payment Percentage for APG Silica Trust ClaimAfter the liquidated value of an APG Silica Trust Claim is determined pursuant to theprocedures set forth herein for review, arbitration, or litigation in the tort system, except as providedin Section 5.2 with respect to Convenience Class Claims, the Claimant will ultimately receive a prorata share of that value based on a Payment Percentage (as defined in Section 4.2 below). After theAPG Silica Trust is established, the initial Payment Percentage shall be set pursuant to Section 4.2below by the APG Silica Trustee, after consultation with the APG Silica TAC and the APG SilicaFuture Claimants Representative.Subject to the provisions of Section 4.2, the Payment Percentage may subsequently beadjusted upwards or downwards from time to time by the APG Silica Trust with the consent of theAPG Silica TAC and the APG Silica Future Claimants Representative to reflect the APG SilicaTrust’s assets and liabilities, as well as the then-estimated value of then-pending and future claimsand other relevant factors. If the Payment Percentage is increased over time, Claimants whoseclaims were liquidated and paid in preceding years under the APG Silica TDP may be entitled toreceive payments sufficient to provide such Claimants with aggregate payments in the face amountequal to the amount of the liquidated values of their respective Claims multiplied by the increasedPayment Percentage. The distribution of such supplemental payments is within the discretion of theTrustee and should be made only to the extent reasonably practicable. Because there is uncertainty inthe prediction of both the number and severity of future Claims, and the amount of the APG SilicaTrust’s assets, no guarantee can be made of any Payment Percentage of an APG Silica Trust Claim’sliquidated value.2.5Indirect APG Silica Trust ClaimsAs set forth in Section 5.6 below, Indirect APG Silica Trust Claims (as such term is definedin the GIT Plan) (“Indirect APG Silica Trust Claims”), if any, shall be subject to the sameH-991477 375
categorization, evaluation, and payment provisions of this APG Silica TDP as are applicable to allClaims which are not Indirect APG Silica Trust Claims.SECTION 3APG Silica TDP Administration3.1APG Silica TAC and APG Silica Future Claimants RepresentativePursuant to the GIT Plan and the APG Silica Trust Agreement, the APG Silica Trust and thisAPG Silica TDP shall be administered by the APG Silica Trustee in consultation with the APGSilica TAC, who represents the interests of holders of present Claims, and the APG Silica FutureClaimants Representative, who represents the interests of holders of future Claims. The APG SilicaTrustee shall obtain the consent of the APG Silica TAC and the APG Silica Future ClaimantsRepresentative on any amendments to this APG Silica TDP pursuant to Section 8.1 below, and onsuch other matters as are otherwise required below and in Section 2.2(f) of the APG Silica TrustAgreement. The APG Silica Trustee shall also consult with the APG Silica TAC and the APG SilicaFuture Claimants Representative on such matters as are provided below and in Section 2.2(e) of theAPG Silica Trust Agreement. The initial APG Silica TAC and the initial APG Silica FutureClaimants Representative are identified in the APG Silica Trust Agreement.3.2Consent and Consultation ProceduresIn those circumstances in which their consultation or consent is required, the APG SilicaTrustee will provide written notice to the APG Silica TAC and the APG Silica Future ClaimantsRepresentative of the specific amendment or other action that is proposed. The APG Silica Trusteewill not implement such amendment nor take such action unless and until the parties have engaged inthe Consultation Process described in Sections 5.7(a) and 6.6(a), or the Consent Process described inSections 5.7(b) and 6.6(b), of the APG Silica Trust Agreement, respectively.SECTION 4Payment Percentage; Periodic Estimates4.1Uncertainty of Silica-Related Tort Liabilities.There is inherent uncertainty regarding the APG Silica Trust’s total silica-related tortliabilities, as well as the total value of the assets available to the APG Silica Trust to pay allowedClaims. Consequently, there is inherent uncertainty regarding the amounts that holders of Claimsshall receive. To seek to ensure substantially equivalent treatment of all Claims, the APG SilicaTrustee must determine from time to time the percentage of full liquidated value that holders ofClaims shall be likely to receive, i.e., the “Payment Percentage” described in Section 2.4 above andSection 4.2 below.4.2Computation of Payment Percentage.The Payment Percentage shall apply to all Claims as described in Section 2.4 above, unlessthe APG Silica Trustee, with the consent of the APG Silica TAC and the APG Silica FutureClaimants Representative, determines that the Payment Percentage should be changed to assure thatH-991477 376
the APG Silica Trust will be in a financial position to pay holders of unliquidated and/or unpaidClaims and present and future Claims in substantially the same manner.In any event, as of January 1, 2017, and thereafter no less frequently than once every threeyears, the APG Silica Trustee shall reconsider the then-applicable Payment Percentage to assure thatit is based on accurate, current information and may, after such reconsideration, increase or reducethe Payment Percentage with the consent of the APG Silica TAC and the APG Silica FutureClaimants Representative. The Silica Trustee shall also reconsider the then-applicable PaymentPercentage at shorter intervals if the Silica Trustee deems such reconsideration to be appropriate or ifrequested to do so by either of the APG Silica TAC or the APG Silica Future ClaimantsRepresentative.The APG Silica Trustee must base the determination of the Payment Percentage on currentestimates of the number, types, and values of Claims, the value of the assets then available to theAPG Silica Trust for their payment, all anticipated administrative and legal expenses, and any othermaterial matters that are reasonably likely to affect the sufficiency of funds to pay a comparablepercentage of full value to all holders of Claims. When making these determinations, the APG SilicaTrustee shall exercise common sense and flexibly evaluate all relevant factors.4.3Applicability of the Payment Percentage.Except as otherwise provided in Section 5.1(c) below for Claims involving deceased orincompetent Injured Parties for which approval of the APG Silica Trust’s offer by a court or througha probate process is required, no holder of any APG Silica Trust Claim shall receive a payment thatexceeds the liquidated value of the claim times the Payment Percentage in effect at the time ofpayment, plus any supplemental payments authorized by the APG Silica Trustee in the event of anincrease in the Payment Percentage.If a reduction of the Payment Percentage has been proposed in writing by the APG SilicaTrustee to the APG Silica TAC and the APG Silica Future Claimants Representative but has not yetbeen adopted, the Claimant shall temporarily receive the lower proposed Payment Percentage.However, if the lower proposed Payment Percentage is not subsequently adopted, the Claimant shallthereafter receive the difference between the low
the APG Asbestos TDP, each Claimant will be required to disclose to each trust in connection with the filing of a claim all asbestos and silica claims against any APG Entity, the APG Asbestos Trust, or the APG Silica Trust. If requested to do
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The APG Asbestos Trust shall take all reasonable steps to resolve APG Asbestos Trust Claims as efficiently and expeditiously as possible at each stage of claims processing and arbitration, which steps may include, in the
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and Other Non-Crystalline Forms . CAS Registry Numbers: 7631-86-9 (synthetic amorphous silica) 60676-86-0 (fused) 69012-64-2 (silica fume) 61790-53-2 (uncalcined diatomaceous earth) 112945-52-5 (pyrogenic colloidal silica) 112926-00-8 (precipitated silica and silica gel) Prepared by . Jong-
underlying asbestos disease? Yes No 2. Has the Injured Party filed a claim against an APG Entity or the APG Asbestos Trust for an asbestos-related disease? Yes No If Yes, provide the name of the asbestos-related disease. Disease Description Mixed Dust Disease Pleural Disease As
administrim publik pranë fakultetit “Maxwell School of Citizenship and Public Affairs” të Universitetit të Sirakuzës. Dmitri është drejtues i ekipit të pro jektit për nënaktivitetin e kuadrit të raportimit financiar pranë programit PULSAR. FRANS VAN SCHAIK : Profesor i plotë i kontabilitetit, Universiteti i Amsterdamit Dr. Frans Van Schaik është profesor i plotë i .
