reg Doc 5700 Filed 02/24/12 Entered 02/24/12 11:37:27 Main Document Pg 1 of 9

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1 Pg 1 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) CHEMTURA CORPORATION, et al., ) Case No (REG) ) Reorganized Debtors. ) Jointly Administered ) STIPULATION AND ORDER RESOLVING DISPUTES CONCERNING PROOF OF CLAIM NUMBERED 2329 FILED BY LOCKIE KLEWIN This stipulation and agreed order (the Stipulation ) is made by and among Chemtura Corporation ( Chemtura ) and its affiliates in these chapter 11 cases (collectively, the Reorganized Debtors and, before the effective date of the chapter 11 plan of reorganization confirmed by the Bankruptcy Court, the Debtors ) and Lockie Klewin, Individually and as Personal Representative of Estate of Charles F. Klewin (the Claimant, and together with Reorganized Debtors, the Parties ). WHEREAS, on October 24, 2006, the Claimant filed a lawsuit under the caption Lockie Klewin, Individually and as Personal Representative of the Estate of Charles F. Klewin, Jr. v. A.W. Chesterton Co., et al., Case No Z in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida (the Lawsuit ), based on damages suffered as a result of alleged exposure to asbestos by Charles F. Klewin, Jr. (the Asbestos Exposure ); WHEREAS, on March 18, 2009 (the Petition Date ), Chemtura and each of the other domestic Debtors filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C (the Bankruptcy Code ), in the United States Bankruptcy

2 Pg 2 of 9 Court for the Southern District of New York (the Bankruptcy Court ) commencing chapter 11 cases which are jointly administered under Case No (REG); 1 WHEREAS, upon commencement of Chemtura s chapter 11 case, the Lawsuit was stayed pursuant to the automatic stay provision of section 362(a) of the Bankruptcy Code; WHEREAS, on October 15, 2009, the Claimant filed a proof of claim against Chemtura, which was assigned number 2329 (the Claim ), asserting liability for the alleged injuries as set forth in the Lawsuit; WHEREAS, on July 23, 2010, the Debtors objected to the Claims as part of the Debtors Second Omnibus Objection to Certain Proofs of Claim (Pending Litigation Claims Personal Injury) [Dkt. No. 3372] (the Second Pending Litigation Objection ) on the basis that the Claim was subject to the Lawsuit in which Chemtura disputes any liability and has valid defenses; WHEREAS, on October 12, 2010, the Bankruptcy Court entered the Amended Order Granting the Debtors Second Omnibus Objection to Certain Proofs of Claim (Pending Litigation Claims Personal Injury) [Dkt. No. 4272] temporarily disallowing the Claim on the basis that it was subject to pending litigation in which Chemtura disputes any liability and has valid defenses; WHEREAS, on November 3, 2010, the Bankruptcy Court entered an order confirming the Debtors chapter 11 plan of reorganization (the Plan ) [Dkt. No. 4409], and the Effective Date of the Plan occurred on November 10, 2010; 2 and 1 Chemtura Canada Co./Cie filed its voluntary petition for relief under chapter 11 of the Bankruptcy Code on August 8, Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Plan. 2

3 Pg 3 of 9 WHEREAS, the Parties have engaged in good faith negotiations concerning the Claim and have now agreed to resolve any and all further objections to the Claim and disputes relating to the Lawsuit by the terms of this Stipulation. NOW, THEREFORE, IT IS STIPULATED AND AGREED AS FOLLOWS: 1. Allowance and Payment of the Claim. The Claim is hereby allowed against Chemtura as a Class 9 Convenience Claim in the amount of $1,000 (the Settlement Amount ) less any Insurance Proceeds, if any, in accordance with the terms of the Plan. The Settlement Amount shall be paid in accordance with the terms and conditions of the Plan except that, notwithstanding any provision in the Plan to the contrary, Chemtura is hereby authorized to pay any Insured Deficiency Claim in relation to the Settlement Amount, if any, from the Disputed Claims Reserve at anytime after approval of this Stipulation by the Bankruptcy Court and need not wait until the next Distribution Date. Payment of the Settlement Amount shall be made by check(s) payable to The Ferraro Law Firm, P.A. Trust Account and sent to the following address: Case A. Dam, Esq., The Ferraro Law Firm, 4000 Ponce de Leon Blvd., Suite 700, Miami, FL Release. Subject only to payment of the Settlement Amount on the terms set forth in this Stipulation and the Plan, the Claimant, individually and as personal representative of the Estate of Charles F. Klewin, hereby finally and forever releases and discharges Chemtura, its chapter 11 estate, and Chemtura s current, former and future affiliates and subsidiaries, predecessors, successors, and assigns, including Witco Corporation, The Richardson Company, and Hercules Packing Corporation, and each of their respective current, former and future officers, directors, principals, employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives and other professionals (collectively, the 3

4 Pg 4 of 9 Chemtura Parties ) as well as the Chemtura Parties insurers, but only in their capacity as insurers of the Chemtura Parties (collectively, the Released Parties ), from any and all claims, demands, actions, causes and rights of action, lawsuits, debts, sums of money, accounts, covenants, contracts, controversies, agreements, obligations, promises, trespasses, damages, judgments, executions, losses and liabilities of any kind or nature whatsoever, whether at law, in equity or otherwise, whether known or unknown, past, present or future, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, disputed or undisputed, liquidated or unliquidated, matured or unmatured, and whether or not accrued, and whether or not asserted or assertable in law, equity or otherwise, for, upon, or by reason of any act, omission or other matter, cause, or thing whatsoever, of whatever name or nature, resulting or arising from the alleged Asbestos Exposure or the injuries, sickness, illness, disease, condition and/or death sustained by the Claimant alleged to be related to the Asbestos Exposure which the Claimant ever had, may have had, now has, or has in the future, including claims, as that term is defined in section 101(5) of the Bankruptcy Code, arising from or connected to, directly or indirectly, the Claim and the assertions set forth therein and the Lawsuit. 3. Resolution of Objection to Claim. This Stipulation fully resolves any and all disputes relating to the Claim, the alleged Asbestos Exposure and the Lawsuit. The Claimant hereby agrees that immediately upon payment of the Settlement Amount, the Claimant shall dismiss with prejudice the Lawsuit and provide to Chemtura evidence of such dismissal. 4. No Admission of Wrongdoing. This Stipulation shall not be construed as an admission of liability or wrongdoing by any of the Parties. 5. Representations. By their signatures hereto, each of the undersigned (a) represents that it has been duly authorized to enter into this Stipulation on behalf of its 4

5 Pg 5 of 9 client(s) and (b) requests that the Bankruptcy Court approve this Stipulation as an order of the Bankruptcy Court. In addition, the Claimant represents that she is the holder of the Claim and has not sold, assigned or otherwise transferred the Claim. 6. Medicare. The Parties agree that all representations and warranties made herein shall survive settlement. The Claimant acknowledges and agrees that the Parties have taken reasonable steps in connection with the Lawsuit and the Claim to protect the interests of Medicare to the extent that Medicare determines it has a valid interest in the Settlement Amount paid to the Claimant hereunder. The Claimant represents and warrants that Charles F. Klewin was Medicare eligible. The Claimant is aware of Medicare s interest in this settlement to the extent Medicare has made any conditional payments for medical services or items received by Charles F. Klewin (pursuant to 42 U.S.C. 1395y(b) and the corresponding regulations) and related to the accident, injury, or illness giving rise to this settlement, and/or arising from or related to the matters forming the basis of the Claimant s Claim. The Claimant represents and warrants that within sixty (60) days of the execution of this Stipulation, the Claimant shall reimburse Medicare for any conditional payments related to the accident, injury, or illness giving rise to this settlement, and/or arising from or related to the matters forming the basis of the Claimant s Claim, as required by Medicare Secondary Payer law, including the Medicare regulations at 42 C.F.R. 411,24(g) and (h). The Claimant acknowledges and agrees that it is her responsibility, not the responsibility of the Released Parties, to reimburse Medicare for any conditional payments made by Medicare on behalf of the Claimant or Charles F. Klewin related to and/or arising out of the Claim. The Claimant specifically warrants and represents that any and all liens, claims and subrogated interests of whatever nature or character asserted or assertable by Medicare arising from or related to the matters forming the basis of the Claimant s 5

6 Pg 6 of 9 Claim already have been or will be resolved and satisfied prior to distribution of any of the Settlement Amount to the Claimant, the Claimant s counsel or any other person or entity in the event the Settlement Amount is greater than the amount of Medicare s interest, and in the event the Settlement Amount is less than or equal to the amount of Medicare s interest, the Claimant will pay Medicare the entire Settlement Amount and none of the Settlement Amount will be distributed to the Claimant, the Claimant s counsel or any other person or entity. The Claimant specifically warrants and represents that she will obtain a full release from Medicare of any and all liens, claims, demands, subrogated interests and/or causes of action of whatever nature asserted or assertable by Medicare as to Chemtura, its attorneys and Chemtura s insurers arising from or related to the matter forming the basis of the Claimant s Claim. In the event medical expense or prescription drug expense arising from or related to the matters forming the basis of the Claimant s Claim is paid by Medicare in the future, the Claimant acknowledges and agrees that it is her responsibility, not the responsibility of Chemtura, its attorneys or insurers, to reimburse Medicare for such payment. In entering this Stipulation, the Reorganized Debtors are relying on the representations of the Claimant. If the above representations are not correct or the above actions are not performed, it is acknowledged and agreed that the Claimant and/or the Claimant s counsel are in material breach of this Stipulation, and the Reorganized Debtors shall receive complete repayment of the Settlement Amount and/or the indemnification protection agreed to by the Claimant in paragraph 8 below. 7. Indemnity. In further consideration for this Stipulation, the Reorganized Debtors rely on the following indemnification made by the Claimant. In addition to and without limiting any other language in this Stipulation, the Claimant agrees to indemnify and hold harmless the Released Parties from any and all claims, demands, liens, subrogated interests and/or causes of 6

7 Pg 7 of 9 action of any nature or character that have been or may in the future be asserted by Medicare and/or persons or entities acting on behalf of Medicare arising from or related to the matters made the basis of the Claim and/or claim of non-compliance arising from or related to Section III of the Medicare, Medicaid and SCHIP Extension Act of 2007 based on inaccurate or inadequate information provided to the Released Parties as to the Claimant s status as a Medicare Beneficiary. This indemnification obligation includes all damages incurred by the Released Parties, including but not limited to attorney s fees incurred by or on behalf of the Released Parties, fines and penalties, costs, interest, expenses and judgments. The Claimant also agrees to indemnify and hold harmless the Released Parties from a claim for contribution or indemnity by any person or entity on account of resolution of the Claim or the Lawsuit with the Claimant. The Claimant also agrees not to collect from any entity that portion of the Claimant s damages attributable by a court of competent jurisdiction to any of the Released Parties. If the Claimant settles the Claim or the Lawsuit with any entity that does not agree to waive and release any contribution or indemnity claim against the Released Parties, then the Claimant agrees to indemnify and hold harmless the Released Parties from such claim. 8. Governing Law and Interpretation. This Stipulation shall be construed and interpreted in accordance with the law of the State of New York. This Stipulation shall not be construed as an admission by any of the Parties of any liability or obligation that is resolved pursuant to this Stipulation. None of the Parties shall have any term or provision of this Stipulation construed against such Party solely by reason of such Party having drafted the same. The Parties agree that no party should be considered a prevailing party with respect to the disputes resolved by this Stipulation. 7

8 Pg 8 of 9 9. Good Faith. The Claimant agrees that this Stipulation is fair and reasonable and was made in good faith in accordance with New York s General Obligations Law , as enacted and interpreted in New York, and any similar provision of another state. The Claimant further agrees that the Chemtura Parties are discharged from all liability for any contribution to any other tortfeasor pursuant to N.Y. Gen. Oblig. Law and any similar law or provision of another state. 10. Bankruptcy Court Jurisdiction. The Bankruptcy Court shall retain jurisdiction to enforce this Stipulation and to hear any matters or disputes arising from or relating to this Stipulation. 11. Facsimile Signatures. Facsimile or electronic copies (i.e. PDF) of signatures on this Stipulation are acceptable and shall have the same force and effect as original signatures. 12. Counterparts. This Stipulation may be executed in identical counterparts, each of which is deemed an original, but when taken together constitute one and the same document. 13. Binding Effect. This Stipulation and all the provisions hereof shall be binding upon and shall inure to the benefit of the Parties, each of their respective executors, heirs, successors and assigns, and all entities claiming by or through any of the Parties. 14. Entire Agreement. This Stipulation constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. 15. Effectiveness. This Stipulation will be effective upon approval by the Bankruptcy Court. The terms and provisions of this Stipulation shall be void and of no further force and effect if such approval by the Bankruptcy Court is not granted. 8

9 Pg 9 of 9 New York, New York Dated: February 13, 2012 KIRKLAND & ELLIS LLP THE FERRARO LAW FIRM /s/ Craig A. Bruens /s/ Case A. Dam Richard M. Cieri Case A. Dam Craig A. Bruens 4000 Ponce de Leon Blvd. 601 Lexington Avenue Suite 700 New York, New York Miami, FL Telephone: (212) Telephone: (713) Facsimile: (212) Facsimile: (713) Counsel to the Reorganized Debtors Counsel to Lockie Klewin, Individually and as Personal Representative of the Estate of Charles F. Klewin SO ORDERED THIS 24th DAY OF February, 2012 s/ Robert E. Gerber Honorable Robert E. Gerber United States Bankruptcy Judge 9