EXHIBIT 10.51
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AGREEMENT WITH RESPECT TO THE
DEFENSE OF ▇▇▇▇▇ & WESSON:
FIREARMS LITIGATION
This Agreement is entered into this 11th day of November, 2004 (the
"Effective Date") between and among : (i) ▇▇▇▇▇ & Wesson Corp., on its own
behalf, as well as on behalf of each of its post June 9, 1987 directors,
officers, employees, agents, subsidiaries, divisions, affiliates,
predecessors-in-interest, successors-in-interest, and all persons acting by,
through or under any of them (hereinafter collectively referred to as "▇▇▇▇▇ &
Wesson"); and (ii) [* * *], on its own behalf and on behalf of its past, present
and future directors, officers, employees, agents, subsidiaries, divisions,
affiliates, predecessors-in-interest, successors-in-interest, and all persons
acting by, through or under any of them (hereinafter collectively referred to as
"[* * *]"). The parties hereto collectively shall be referred to as the
"Parties."
WHEREAS, [* * *] issued a series of commercial general liability and
commercial umbrella liability policies to ▇▇▇▇▇ & Wesson and/or to ▇▇▇▇▇▇▇ PLC,
under which ▇▇▇▇▇ & Wesson is a named insured (the "[* * *] Policies"). Among
those policies is policy number [* * *], with a policy period of June 1, [* * *]
- June 1, [* * *] (the "[* * *] Umbrella Policy").
WHEREAS, ▇▇▇▇▇ & Wesson has incurred and may incur in the future certain
liabilities, defense costs and damages arising out of the Firearms Litigation as
more fully defined in Article I, Paragraph B;
WHEREAS, there is a dispute between the Parties over coverage under the
[* * *] Policies for all or some of the claims involved in the Firearms
Litigation;
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WHEREAS, by this Agreement, ▇▇▇▇▇ & Wesson and [* * *] intend to compromise
and settle certain disputes as to defense of the Firearms Litigation as
described herein strictly as a business accommodation and unrelated to the
merits of the respective claims of the parties hereto, without waiver or
prejudice to their respective positions on claims handling, policy wording or
coverage as contained in the [* * *] Policies or in other matters;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and undertaking set forth herein, and intending to be legally bound,
▇▇▇▇▇ & Wesson and [* * *] agree as follows:
ARTICLE I
DEFINITIONS
As used throughout this Agreement, the following terms shall be given the
following meanings:
A. Defense Costs shall mean and include the fees, expenses or costs
incurred or to be incurred by or on behalf of ▇▇▇▇▇ & Wesson in the defense of
the Firearms Litigation, including all fees, expenses or costs that are directly
allocated or attributable to the defense of the Firearms Litigation in general.
Defense Costs shall include, but shall not be limited to, joint defense costs,
investigative expenses, attorney fees, expert fees, consultant fees, witness
fees, jury consultant fees, focus group and jury research charges, exhibit
preparation expenses, courtroom video presentation and equipment, demonstrative
evidence expenses, postage, photocopying charges, facsimile charges, costs
incurred to preserve documents or evidence, computer research costs,
computerized document storage and retention charges, court charges, fees for
mediators, arbitrators, or special masters, all premiums on appeal bonds, court
reporting charges and all other expenses typically incurred in connection with
the
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defense of a lawsuit. Defense Costs shall also include all fees and expenses
incurred and to be incurred by or on behalf of ▇▇▇▇▇ & Wesson to pay [* * *]
Defense Counsel, as defined in Article V, Paragraph A.
B. Firearms Litigation shall mean those litigations listed on Exhibit A
hereto.
ARTICLE II
SCOPE OF AGREEMENT
▇▇▇▇▇ & Wesson and [* * *] acknowledge and agree that the purpose of this
Agreement is to resolve between and among themselves disputes as to the [* * *]
Policies with respect to the defense of ▇▇▇▇▇ & Wesson in the Firearms
Litigation. This Agreement is intended to dispose of only those issues of
coverage as identified herein.
ARTICLE III
DEFENSE
A. Past Defense Costs. [* * *] will pay ▇▇▇▇▇ & Wesson the amount of Two
Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Settlement Amount")
in settlement of any obligation to pay Defense Costs previously incurred by
▇▇▇▇▇ & Wesson and reflected in invoices received by ▇▇▇▇▇ & Wesson through
April 30, 2004 in connection with the Firearms Litigation (the "Past Defense
Costs").
B. Payment of Past Defense Costs. The Settlement Amount shall be paid by
[* * *] on or before December 31, 2004. The Settlement Amount shall be
transferred electronically to the following account:
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
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C. Future Defense Costs. ▇▇▇▇▇ & Wesson shall forward to [* * *] all
invoices received by ▇▇▇▇▇ & Wesson on or after April 30, 2004 for Defense Costs
with respect to services rendered or performed with respect to only those
litigations listed on Exhibit B herein ("Future Defense Costs"). [* * *] shall
pay Fifty Percent (50%) (the "[* * *] Share") of these Future Defense Costs
represented by such invoices in accordance with the payment procedure set forth
below at Article III, Paragraph D.
D. Procedure for Payment of Future Defense Costs. Future Defense Costs
will be paid promptly by [* * *] directly to ▇▇▇▇▇ & Wesson after receipt of
invoices for Defense Costs, unless written objection to such Defense Costs
("Objections to Defense Costs") is made by [* * *] within such time. If
Objection to Defense Costs is made in good faith by [* * *], [* * *] shall
withhold from payment only that portion of the Defense Costs to which a good
faith objection is made.
E. Arbitration. If the parties disagree on an Objection to Defense Costs
made by [* * *], the party wishing to adjust, settle or compromise such
Objection to Defense Costs shall, by legal counsel, notify legal counsel for the
other party, through a confidential written description of the dispute
concerning the Objection to Defense Costs that fairly describes the Defense
Costs at issue. Legal counsel for the party receiving the Objection to Defense
Costs shall send legal counsel for the other party a confidential written
communication stating in full its position(s) regarding the Objection to Defense
Costs. If an adjustment, settlement or compromise is reached by the Parties,
then the Objection to Defense Costs shall be irrevocably resolved. If a full
adjustment, settlement or compromise is not reached, then either party shall
either:
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(a) refrain from adjusting, settling or compromising the Objection to
Defense Costs;
(b) adjust, settle or compromise the Objection to Defense Costs only
to the extent agreed to by the other party; or
(c) submit the dispute to binding arbitration, such arbitration to be
conducted pursuant to the protocol set forth in Exhibit C herein.
F. Reservation of Rights. All payments of Future Defense Costs will be
without prejudice to [* * *] and pursuant to a full and complete reservation of
rights, including the right to recover Defense Costs paid with respect to
uncovered claims, provided:
(a) [* * *]'s right to recover Future Defense Costs applies only to
defense costs incurred by ▇▇▇▇▇ & Wesson after the Effective Date of this
Agreement;
(b) The amount of Future Defense Costs potentially recoverable by
[* * *] under Article III, Paragraph F shall not exceed the dollar amount
reflected on invoices for Future Defense Costs received by [* * *] on a
particular litigation/claim during the period one hundred and twenty (120) days
prior to the time [* * *] notified ▇▇▇▇▇ & Wesson that [* * *] had determined a
particular litigation/claim to be an uncovered claim; and
(c) If the parties disagree as to [* * *]'s determination that a
litigation/claim has become an uncovered claim, or if there is any dispute
regarding Article III, Paragraph F, either party may submit the dispute to
binding arbitration, such arbitration to be conducted pursuant to the protocol
set forth in Exhibit C herein.
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G. Exhaustion of Limits. [* * *] will not be obligated to defend any suit
or claim after the applicable Limits of Insurance in the [* * *] Umbrella Policy
have been exhausted by payment of judgments or settlements.
ARTICLE IV
APPLICATION OF POLICY PROVISIONS
A. Aggregate Limits Exhaustion. ▇▇▇▇▇ & Wesson and [* * *] agree, for
purposes of this defense agreement only, that the Firearms Litigation shall be
treated as product liability claims. In addition, ▇▇▇▇▇ & Wesson and [* * *]
agree that the limits of the policies underlying the [* * *] Umbrella Policy are
deemed properly exhausted with respect to the Firearms Litigation and all other
product liability claims.
B. Nonwaiver. ▇▇▇▇▇ & Wesson and [* * *] agree that except as otherwise
provided herein, this Agreement does not constitute a waiver of any of the terms
and conditions of the [* * *] Policies, and all rights and defenses under the [*
* *] Policies are hereby reserved, nor does anything in this Agreement provide a
basis for asserting an estoppel against any party's assertion of any policy
term, condition, defense or exclusion.
ARTICLE V
COUNSEL AND CONTROL
OF FIREARMS LITIGATIONS
A. [* * *] Defense Counsel. There shall be one law firm chosen as [* * *]
Defense Counsel which shall be responsible for representing ▇▇▇▇▇ & Wesson and
advising ▇▇▇▇▇ & Wesson in litigation, coordination of discovery and pleadings,
trial preparation, trial (if advisable), settlement negotiation and all other
activities necessary to the effective and consistent defense of ▇▇▇▇▇ & Wesson
in the Firearms Litigation. [* * *] Defense Counsel
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shall be the law firm Shook, Hardy & Bacon. Any change in [* * *] Defense
Counsel shall be the decision of ▇▇▇▇▇ & Wesson.
B. Defense Counsel. The selection of counsel in connection with the
defense of any Firearms Litigation shall be the responsibility of ▇▇▇▇▇ &
Wesson. All defense counsel already retained by ▇▇▇▇▇ & Wesson shall continue in
place. Any change in defense counsel shall be the decision of ▇▇▇▇▇ & Wesson.
C. Control of Litigation. ▇▇▇▇▇ & Wesson and [* * *] agree, to the extent
the best interests of ▇▇▇▇▇ & Wesson are served, to cooperate in the
investigation, defense and control of the Firearms Litigation.
ARTICLE VI
MISCELLANEOUS
A. Dismissal. On or before [* * *], ▇▇▇▇▇ & Wesson shall cause a
Stipulation of Dismissal with Prejudice to be executed and filed with the United
States District Court, [* * *], with respect to the action entitled ▇▇▇▇▇ &
Wesson Corp. v. [* * *], Civil Action Case No.[* * *].
B. Release As To Past Defense Costs. In consideration of the payment by
[* * *] of the Settlement Amount, ▇▇▇▇▇ & Wesson hereby fully releases, acquits,
and discharges [* * *] from any and all claims, liabilities, actions, direct
actions, causes of action, demands, rights, damages, judgments, debts,
obligations, assessments, costs, deficiencies or other expenses which ▇▇▇▇▇ &
Wesson ever had, now has, or hereafter can, shall or may have under the [* * *]
Umbrella Policy, and/or any other commercial general liability or commercial
umbrella liability policy issued by [* * *], with respect to
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Defense Costs previously incurred by ▇▇▇▇▇ & Wesson and reflected in invoices
received by ▇▇▇▇▇ & Wesson through [* * *] in connection with the Firearms
Litigation.
C. Limited Release As To Future Defense Costs. Except to the extent
[* * *] is obligated to pay Future Defense Costs pursuant to this Agreement,
▇▇▇▇▇ & Wesson hereby fully releases, acquits, and discharges [* * *] from any
and all claims, liabilities, actions, direct actions, causes of action, demands,
rights, damages, judgments, debts, obligations, assessments, costs, deficiencies
or other expenses which ▇▇▇▇▇ & Wesson ever had, now has, or hereafter can,
shall or may have under the [* * *] Umbrella Policy, and/or any other commercial
general liability or commercial umbrella liability policy issued by [* * *],
with respect to Future Defense Costs.
D. Indemnification/Hold Harmless:
(a) In the event that any party, including ▇▇▇▇▇ & Wesson, asserts a
claim against [* * *] in connection with any Firearms Litigation released
herein, ▇▇▇▇▇ & Wesson agrees to indemnify, defend and hold harmless [* * *]
from any and all liabilities incurred as a result of any such claims and/or
litigations.
(b) Inasmuch as any claim against [* * *] as described in this
paragraph may affect the rights and interests of ▇▇▇▇▇ & Wesson, the Parties
agree to consult and act in good faith with respect to the other's legitimate
rights and interests in responding to and defending against any such matters.
[* * *] shall notify ▇▇▇▇▇ & Wesson of any claim for which [* * *] seeks a
defense and/or indemnification under this paragraph within 30 days after the
claim becomes known to [* * *], or such earlier time as is required to prevent
prejudice to ▇▇▇▇▇ & Wesson. If any such claim is made against [* * *], ▇▇▇▇▇ &
Wesson, through its own counsel and at its cost and expense, shall use all
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reasonable efforts to obtain the dismissal of [* * *] and the substitution of
▇▇▇▇▇ & Wesson on the basis that [* * *]'s obligation under the [* * *] Policies
with respect to the Firearms Litigation were finally resolved by a reasonable
good faith settlement of ▇▇▇▇▇ & Wesson's claims for coverage and [* * *]'s
defenses to coverage.
(c) If any such claim is not dismissed as against [* * *], ▇▇▇▇▇ &
Wesson shall select, and at its own expense retain, subject to [* * *]'s
approval, which shall not be unreasonably withheld, counsel of its choice to
represent [* * *] with respect to the claim. Such counsel shall not have any
conflict with respect to [* * *] or positions taken or to be taken by [* * *].
[* * *]'s failure to notify ▇▇▇▇▇ & Wesson that a conflict exists within seven
(7) days of receipt of notice of ▇▇▇▇▇ & Wesson's selection of counsel shall be
deemed an approval of ▇▇▇▇▇ & Wesson' counsel selection. ▇▇▇▇▇ & Wesson shall,
in accordance with the terms of this Agreement, indemnify [* * *] against any
judgment or good faith settlement resulting from such claim.
(d) [* * *] and ▇▇▇▇▇ & Wesson shall cooperate at each other's
reasonable request in the production of documents, and assist in securing and
giving evidence and obtaining the attendance of witnesses at deposition, hearing
and trial.
(e) In addition and notwithstanding the foregoing, [* * *] shall also
have the right to participate, at its own expense, in defense of or in
opposition to any discovery request, pleading, motion and/or trial.
(f) At [* * *]'s option, in any filing or appearance in any proceeding
in which ▇▇▇▇▇ & Wesson defends as provided herein, [* * *] may be identified
solely as "Certain Defendant, as Indemnified by ▇▇▇▇▇ & Wesson," provided such
identification is permitted by applicable court rules.
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(g) Notwithstanding anything herein to the contrary, the obligation of
▇▇▇▇▇ & Wesson to indemnify, defend and hold harmless [* * *] shall not exceed
the sum paid by [* * *] hereunder determined as of the date [* * *] notifies
▇▇▇▇▇ & Wesson of a claim pursuant to Article VI, Paragraph D.
E. Cooperation of Insured. ▇▇▇▇▇ & Wesson agrees to cooperate and to
provide [* * *] with reasonable access to relevant information and materials in
connection with the defense of Firearms Litigation, including, but not limited
to, the prompt notification of all newly filed claims. ▇▇▇▇▇ & Wesson agrees to
provide [* * *] with monthly status reports regarding the Firearms Litigation.
These monthly status reports will be forwarded to [* * *] at the same time, and
by the same method, as invoices for Future Defense Costs will be forwarded to [*
* *]. Provided, however, that nothing contained herein will require or cause
▇▇▇▇▇ & Wesson to provide confidential, proprietary, privileged or legally
protected documents or materials to [* * *]. In this regard ▇▇▇▇▇ & Wesson, upon
reasonable notice, will make available appropriate personnel to assist [* * *]
and will provide reasonable access to documents and records, to the extent such
personnel or documents exist and are available.
F. Arms-Length Negotiations. This Agreement is the product of informed
negotiations between parties of equal bargaining power and involves compromises
of the Parties' previously stated legal positions. It is expressly acknowledged
that each of the Parties, with the assistance of competent counsel, negotiated
and drafted this Agreement and that any ambiguity shall not be construed for or
against either of the Parties on account of such drafting.
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G. Non-Admissibility. The Parties hereto agree that this Agreement, all
negotiations leading to this Agreement and all prior drafts of this Agreement
shall not be admissible in any suit, action or other proceeding. It is expressly
understood and agreed, however, that an executed copy of this Agreement is
admissible in any proceeding necessary to enforce the terms of this Agreement or
in which the proper interpretation of this Agreement is in issue.
H. No Modification. No change or modification of this Agreement shall be
valid or enforceable unless it is contained in a writing signed by the Party
against whom the change or modification is sought to be applied.
I. Confidentiality Agreement. The existence of this Agreement and the
attachments hereto as well as the terms and conditions hereof shall remain
strictly confidential and shall not be revealed by any Party or their respective
attorneys or agents except with the prior written consent of all Parties to this
Agreement. In the event that any party hereto, its counsel or other agents
believes that disclosure of this Agreement is mandated by court order or law or
is necessary to enforce the terms of this Agreement, that party, counsel or
agent shall give at least thirty (30) days written notice, or as much notice as
practicable where less than thirty (30) days is available, to all other parties
to this Agreement prior to such disclosure. Said notice shall set forth in
adequate detail all information that the party, counsel or agent proposes to
disclose, the identity of each person to whom the information is to be
disclosed, the statute or other legal authority purportedly requiring disclosure
and the circumstances pursuant to which disclosure is proposed to be made.
Nothing contained herein, however, shall prohibit disclosure of this
Agreement by (i) [* * *] to reinsurers or retrocessionaires, (ii) ▇▇▇▇▇ & Wesson
to any of its
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former or current corporate parent(s), subsidiaries, divisions, affiliates,
predecessors-in-interest, primary, umbrella and/or excess insurance carriers or
indemnitors or its successors or assigns nor (iii) any party to its accountants
or auditors, without prior approval from the other party hereto provided that
any such person to whom such disclosure is to be made consents to the terms of
the Confidentiality Agreement. Moreover, nothing contained herein shall prohibit
any party from disclosing this Agreement to the Internal Revenue Service,
foreign or state taxing authorities, or the Securities and Exchange Commission,
as required by law or regulations.
J. Governing Law. The interpretation and application of this Agreement
shall be governed by the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed in Massachusetts by citizens thereof.
K. Venue. Except in relation to any Objection to Defense Costs or to any
dispute arising out of Article III, Paragraph F, each of the parties:
(a) consents to the exclusive jurisdiction of the United States
District Court, District of Massachusetts, in Springfield for any litigation
arising out of or relating to this Agreement;
(b) agrees not to commence any litigation relating thereto except in
such courts;
(c) waives any objections to the laying of venue of any litigation
arising out of this Agreement in the United States District Court, District of
Massachusetts, in Springfield; and
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(d) agrees not to plead or claim in any such court that any litigation
brought in the United States District Court, District of Massachusetts, in
Springfield has been brought in an inconvenient forum.
L. Notices. Any notices to the respective Parties which are required
hereunder shall be sent to the persons set forth below or to such other persons
or addresses as shall be provided by a party to all other parties:
(a) if to [* * *], to:
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
with a copy to
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(b) if to ▇▇▇▇▇ & Wesson, to:
▇▇▇▇▇ & Wesson Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Corporate Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Fax
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M. Integration. This Agreement constitutes the entire agreement between
▇▇▇▇▇ & Wesson and [* * *] with respect to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings, both written
and oral, among the Parties with respect hereto.
N. Authority. ▇▇▇▇▇ & Wesson and [* * *] respectively warrant and
represent that they are authorized to enter into this Agreement on their own
behalf and on behalf of their respective directors, officers, employees, agents,
current and former subsidiaries, divisions, affiliates,
predecessors-in-interest, successors-in-interest, assigns and all persons or
entities acting through or under any of them and that respectively they have the
legal authority to bind such persons and entities to the terms of this
Agreement. ▇▇▇▇▇ & Wesson and [* * *] also respectively represent and warrant
that each person whose signature is affixed hereto is authorized to sign this
agreement on behalf of his or her respective corporation and has the legal
authority to bind his respective corporation hereto. ▇▇▇▇▇ & Wesson also
represents and warrants that it has the right to enter into the Agreement
without the approval or ratification of the First Named Insured(s) under the
[* * *] Policies.
O. Headings. The headings of paragraphs are designed to facilitate ready
reference to subject matter only and shall be disregarded when resolving any
dispute concerning the meaning or interpretation of any language contained in
this Agreement.
P. Terminology. The use of the singular shall include the plural and vice
versa where necessary to give effect to the Parties' intent. The use of the term
"including" throughout this Agreement shall mean "including, without
limitation."
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Q. Counterparts. The Agreement may be signed in counterparts which
together shall constitute an original of this Agreement. This Agreement shall
become effective as of the date first above written.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly signed as of the date first above written.
▇▇▇▇▇ & WESSON CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
[* * *]
By: [* * *]
---------------------------------
Name: [* * *]
Title: [* * *]
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CONFIDENTIAL MATERIALS AND INFORMATION
PROTECTED BY THE CONFIDENTIALITY AGREEMENTS
ENTERED INTO BY THE PARTIES
FIREARMS LITIGATION
EXHIBIT A
CASE CAPTION COURT DOCKET NO.
------------ ------------------------- ----------
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CONFIDENTIAL MATERIALS AND INFORMATION
PROTECTED BY THE CONFIDENTIALITY AGREEMENTS
ENTERED INTO BY THE PARTIES
FIREARMS LITIGATION
FUTURE DEFENSE COSTS LITIGATIONS
EXHIBIT B
CASE CAPTION COURT DOCKET NO.
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EXHIBIT C
ARBITRATION PROCEDURES
If either party decides to submit a dispute as to an Objection to Defense
Costs, the dispute shall be submitted to a panel of three (3) arbitrators, which
panel shall have exclusive jurisdiction to resolve the dispute. The decision
will be binding and conclusive and neither of the parties may resort to
litigation in any court to resolve any disputes concerning an Objection to
Defense Costs. The Parties agree that the arbitration process will be conducted
as set forth herein.
A. Notice. A notice requesting arbitration shall be given in writing by
legal counsel, and shall identify the Objection to Defense Costs in dispute and
shall be sent to the other party by certified mail, return receipt requested, or
recognized air courier service that obtains a signature for the recipient.
B. Venue. The arbitration shall be held in New York, New York.
C. Selection of Party Arbitrators. Each party shall select an arbitrator
("Party Arbitrator"), who shall have at least ten (10) years experience in
handling insurance claims and knowledge of the availability of insurance
coverage for such claims. Within (10 ) days after receipt of the notice of
arbitration, each party shall provide to the other the name of its Party
Arbitrator with a confidential affidavit executed by such Party Arbitrator
attesting to his or her experience in handling insurance claims and knowledge of
the availability of insurance coverage for such claims. If a party fails to
appoint its Party Arbitrator within the said ten (10) day period, the party
which has named its Party Arbitrator may then appoint the second Party
Arbitrator.
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TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Privileged and Confidential
D. Selection of Umpire. The two Party Arbitrators shall meet and/or confer
within ten (10) days of their appointment and select a third arbitrator to act
as umpire ("Umpire"). The Umpire shall have experience in the handling of
insurance claims and have knowledge of the availability of insurance coverage
for insurance claims. If the two (2) Party Arbitrators are unable to agree upon
an Umpire within ten (10) days after such conference and/or meeting, the Umpire
shall be selected from a list of six (6) individuals (three (3) named by each
Party Arbitrator) with each Party Arbitrator eliminating two (2) individuals
from the other arbitrator's list, and the Umpire being determined by a blind
drawing from the two remaining individuals. Except for the arbitration, the
Umpire shall not have any:
(a) financial or personal interest in the parties or the result of the
arbitration; or
(b) past or present contractual, employment or consulting relationship
with the parties (including their predecessors or affiliates), with any insurer
that has issued policies to either of the parties within the past ten (10)
years, or with any known claimant in the matter; provided, however, that a
potential Umpire shall not be disqualified based on having incidentally
purchased services or goods from one of the parties.
E. Further Preservation of Privileges. [* * *] and ▇▇▇▇▇ & Wesson agree
that it is mutually desirable to conduct the arbitration in a manner that best
protects communications therein from disclosure in any subsequent dispute,
arbitration and/or litigation with insurers or other third-persons. [* * *] and
▇▇▇▇▇ & Wesson therefore agree that after the selection of the Party
Arbitrators, but prior to any
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TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
substantive communications with the arbitrators regarding a particular dispute,
[* * *] and ▇▇▇▇▇ & Wesson shall jointly retain all of the arbitrators,
including the Umpire, as counsel and/or consultants for both, or other wise
enter into an arrangement suitable to attempt to ensure that all communications
within the arbitration proceedings fall within the attorney-client privilege,
work-product privilege, or other applicable privileges.
F. Organizational Meeting. Within fourteen (14) days after the selection
of the Umpire, the arbitration panel shall meet with the parties or their
representative and establish a schedule for the submission of the statement of
claim, briefing schedule, discovery procedures, if any, and hearing date.
G. Statement of Claim. The party requesting arbitration shall provide a
statement of claim, with arguments and authority for its claim, and the party's
requested relief. The other party shall respond to such statement of claim
setting forth its arguments and authorities, and its requested relief, if any.
The party submitting the statement of claim shall then file a reply. Additional
briefs on the issues presented or other matters may be requested by the panel,
with or without the motion of a party (collectively referred to herein as the
"Briefing Process.")
H. Discovery. [* * *] and ▇▇▇▇▇ & Wesson agree that limited discovery
shall be permitted. A majority of the panel may, however, grant discovery
requests by one or both parties, including requests for documents and
depositions. In no event shall any party be entitled to take more than these (3)
depositions or to serve more than ten (10) document requests.
Privileged and Confidential
I. Hearing.
(a) A hearing before the panel shall be held within fifteen (15) days
of completion of the Briefing Process and shall be limited to oral arguments by
each party and essential witnesses, if any, with such essential witnesses having
previously been identified by the parties and leave having been granted by the
panel to allow such witnesses to testify;
(b) Testimonial evidence may be provided through affidavits;
(c) A majority of the arbitrators shall determine whether a record
should be made of some or all of the proceedings; and
(d) The hearing venue will be set by a majority of the panel based on
the best interests and convenience of the parties and the panel;
J. Decision. The panel shall render a written decision within thirty (30)
days after conclusion of the hearing, and the decision shall specify the reasons
for its decision. The decision of any two arbitrators when rendered in writing
shall be final and binding, and the decision shall be confidential. To the
extent necessary for enforcement, the panel shall render an order that sets
forth its conclusion in a manner suitable to preserve the attorney-client
privilege, work-product privilege, and any other applicable privilege.
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