UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
______________________________________

SEBAGO, INC., and FLINT VILLAGE LLC,
On Behalf Of Themselves and All Others
Similarly Situated, Civil Action No. 96-10069-MLW
Civil Action No. 96-10656-MLW

Plaintiffs,

vs.

BEAZER EAST, INC., f/k/a Koppers
Company, Inc., MANVILLE
CORPORATION and SCHULLER
INTERNATIONAL, INC.,

Defendants.


EXCERPTS FROM STIPULATION OF CLASSWIDE SETTLEMENT
BETWEEN PLAINTIFFS AND DEFENDANT BEAZER EAST, INC.
REGARDING THE FILING OF CLAIMS AND THE CLAIMS
ADJUDICATION PROCESS

1. INTRODUCTION
On December 13, 2000, after completion of the Fairness Hearing in the Action, the
United States District Court issued a Final Order and Partial Judgment approving the
Settlement with Beazer East, Inc. For purposes of assisting Eligible Claimants in
making Claims to the Claims Office, and in filing any permitted Appeals from the
determinations of the Claims Office, counsel for both the Settlement Class and for
Beazer have agreed on this selection of excerpts from the lengthy Settlement
Stipulation and its Exhibits. Please read these provisions carefully, and keep them for
future reference should questions arise or should you need to file an Appeal.
If you have any questions, you may consult with an attorney of your own choosing,
or you may contact Plaintiffs' Lead Class Counsel at:
GILMAN & PASTOR, LLP
Stonehill Corporate Center
999 Broadway, Suite 500
Saugus, MA 01906

Telephone: (781) 231-7850
Facsimile: (781) 231-7840

A complete copy of the Settlement Stipulation and its Exhibits is on file and subject to
public inspection at the United States District Court Clerk's Office in Boston,
Massachusetts or can be accessed on the Internet at www.pfriclaims.com.
We have included the following Articles and Paragraph Sections (using the original
numbering system from the Original Settlement Stipulation) in a Table of Contents for
your ease of reference:
ARTICLE/PARAGRAPH NO. DESCRIPTION PAGE NO.

1. INTRODUCTION 1
8 INITIAL CLAIMS PROCESS 6
8.1 Claims Office 6
8.2 Submission of Claim Forms 6
8.3 Information Required in Claim Form
for Initial Processing 6

8.4 Initial Data Input from Claim Forms 7
8.5 Determination of Eligibility 7
8.6 Information Required to Process Claims
of Eligible Claimants 8

8.7 Failure to Furnish Required Information 9
8.8 Claims Involving Johns Manville PFRI
or Other Roof Insulation Products 9

9 INSPECTION BY THIRD PARTY INSPECTOR 10
9.1 Inspection Process 10
9.2 Timing of Inspection 10
9.3 Waiver of Inspection 10
9.4 Inspection Procedures 11
10 DETERMINATION OF TYPE/AMOUNT OF
SETTLEMENT COMPENSATION 11

10.1 Requirement of Damage to Metal Roof
Deck in Direct or Indirect Contact with
Beazer PFRI Before Any Settlement
Compensation is Paid 11

10.2 Useful Life Determination 12
10.3 Form A and Form B Bid Packages Sent 12
10.4 Form A Roof Replacement/Deck
Remediation Bid Package; Roof Plan Design;
Obtaining Bids 13

10.5 Form B Deck Remediation Only Bid
Package Obtaining Bids 15

10.6 Calculation of Roof Replacement
Compensation Amount 16

10.7 Calculation of Deck Remediation
Compensation 16

10.8 Interior Protection Compensation 17
10.9 Settlement Compensation Conditioned on
Claimant's Agreement to Remove
Beazer PFRI 17

10.10 Offer for Settlement Compensation 18
10.11 Right to Contest Settlement Compensation 18
10.12 Payment of Roof Replacement
Compensation 18

10.13 Eligible Claimant's Agreement to Remove
Beazer PFRI and Remediate Deck 19

10.14 Limitations on Roof Replacement
Compensation in the Event Eligible Claimant
Does Not Timely Commence the Removal
and Replacement of the Roofing System 20

10.15 Timing and Payment of Deck Remediation
Compensation and Interior Protection
Compensation 21

10.16 All Remediation Must be Complete by
January 18, 2011 21

11 APPEAL PROCESS TO INDEPENDENT CLAIMS
ADJUDICATOR 21

12 ASSIGNMENT OF CLAIMS 26

13 BEAZER'S WAIVER OF LEGAL DEFENSES 26

15 LIMITATIONS OF PAYMENTS AND LIABILITY 27

18 EXCLUSIVE REMEDY; JURISDICTION OF
COURT 27

19 RELEASES AND INDEMNIFICATIONS 28

20 PLAINTIFFS' CLASS COUNSEL ATTORNEYS FEES
AND EXPENSES 33

2 DEFINITIONS APPENDIX 35-52

Ex. A EXHIBIT A: USEFUL LIFE SCHEDULE 53

8. INITIAL CLAIMS PROCESS
8.1 Claims Office. Beazer shall create, staff, train, operate and manage in its
discretion in accordance with the terms of this Agreement, a designated Claims Office
for the purpose of processing Claims, administering the Claims Program and
coordinating with the Notice Administrator for the dissemination of the Class Notice and
establishment of the toll free number and Internet web site. The Claims Office shall be
maintained continuously as long as required to process all Eligible Claims under this
Agreement, but in no event beyond July 18, 2011.
8.2 Submission of Claim Forms. Any Settlement Class Member who seeks
payment from the Settlement Fund pursuant to the terms of this Agreement shall
submit a Claim Form to the Claims Office prior to the expiration of the Claims Period in
accordance with this Agreement. On a monthly basis, the Claims Office shall send to
Plaintiffs' Lead Class Counsel photocopies of all Claim Forms (without attached
documentation) received that month. Settlement Class Members who do not timely
submit a Claim Form to the Claims Office during the Claims Period shall not be
considered Eligible Claimants.
8.3 Information Required in Claim Form for Initial Processing. Each
Claimant must set forth in the Claim Form all information requested in the Claim Form,
including but not limited to the Claimant's (i) name and name(s) of Claimant's
authorized contact person(s), (ii) address; (iii) telephone number (plus facsimile number
and e-mail address, if any); (iv) name (if any) and address of the building as to which
the claim is being made; (v) documentation sufficient to establish the Roof Completion
Date; (vi) documentation that the Claimant is the owner of the building; (vii)
documentation of the existing type of roofing system (Built-Up Roofing System, Shingle
Roofing System, Single-Ply Roofing System or other types as listed on Exhibit A); (viii)
documentation that the building contains Beazer PFRI on top of a Metal Roof Deck, or
a statement describing basis for Claimant's knowledge and belief that the building
contains Beazer PFRI on top of a Metal Roof Deck, or a written acknowledgment from
Beazer that the Claimant's building contains Beazer PFRI on top of a Metal Roof Deck;
(ix) whether there are any roof leaks or any manifestations of roof corrosion problems;
and (x) copies of any roof warranties and roof construction documents, if they are
available. Any Claimant that is not the owner of Eligible Property as of the date of
Preliminary Approval in this Action shall, in addition, submit with its Claim Form a
written assignment of property damage claims from the Person who owned such
Eligible Property as of the date of Preliminary Approval in this Action.
8.4 Initial Data Input from Claim Forms. Upon receipt of a Claim Form from
any Claimant, the Claims Office shall enter into its computer system, or other books
and records, the name, address and telephone number of each Person submitting a
Claim Form, the address of each property for which Claim is made; the Date of the
Claim; and such other information as the Claims Office deems reasonably necessary to
efficiently process the Claim.
8.5 Determination of Eligibility. Upon receipt of a Claim Form, the Claims
Office shall initially determine whether the Claim Form is sufficiently complete to permit
determination of whether the Claimant is an Eligible Claimant, including, as applicable,
documentation that the Claimant is an Eligible Property Owner of an Eligible Property
that is the subject of the Claim or has a written assignment of the Claim, and evidence
that the building has Beazer PFRI in direct or indirect contact with a Metal Roof Deck. If
the Claims Office determines that the Claim Form is not sufficiently complete to permit
determination of whether the Claimant is an Eligible Claimant, it shall notify the
Claimant of such fact and shall request such additional information from the Claimant
as is necessary to determine whether the Claimant is an Eligible Claimant. Any request
to a Claimant for additional information shall be made within a reasonable period after
receipt by the Claims Office of the Claim. If at any time the Claims Office determines
that a Claimant is not an Eligible Claimant, it shall notify the Claimant and Plaintiffs'
Lead Class Counsel of such determination in writing and the reasons for such
determination and shall disallow the Claim. In the event of the disallowance of a claim,
the Claims Office shall send the Claimant a Notice of Claimant's Right to Appeal.
8.6 Information Required to Process Claims of Eligible Claimants. If the
Claims Office determines that a Claimant is an Eligible Claimant, it shall also determine
whether the Claim Form is sufficiently complete for processing. If the Claims Office
determines that the Claim Form is not sufficiently complete for processing, it shall
request such additional information from the Eligible Claimant as is necessary for
processing the Claim. Any request to an Eligible Claimant for additional information
shall be made within a reasonable period after receipt by the Claims Office of the
Claim.
8.7 Failure to Furnish Required Information. If an Eligible Claimant fails
within sixty (60) days after such request to furnish the additional information reasonably
requested by the Claims Office, or a written explanation for the unavailability of such
information and the efforts made to ascertain such information, which explanation is
reasonably acceptable to the Claims Office, the Claims Office shall again request such
additional information from the Eligible Claimant as is necessary for processing the
Claim. If within sixty (60) days of such further request an Eligible Claimant still has not
submitted the additional information reasonably requested by the Claims Office, or a
written explanation for the unavailability of such information and the efforts made to
ascertain such information, which explanation is reasonably acceptable to the Claims
Office, the Claims Office shall notify the Claimant and Plaintiff's Lead Class Counsel in
writing that it will not continue processing the Claim or make any payments to the
Eligible Claimant unless and until the information is provided, in which case the Date of
the Claim will be recalculated to exclude the time following the date of the first such
request for additional information.
8.8 Claims Involving Johns Manville PFRI or Other Roof Insulation
Products. If and to the extent the Claims Office determines that the Claim involves
Johns Manville PFRI, then the Claims Office shall advise the Claimant that the Claim is
not an Eligible Claim and of the Claimant's right of appeal. In addition, the Claims
Office shall forward the Claim Form to the Johns Manville Claims Office, with notice to
Claimant and Plaintiffs' Lead Class Counsel. Claims will be processed under this
Settlement only to the extent the Claim involves a Metal Roof Deck in direct or indirect
contact with Beazer PFRI. If the Claims Office determines that the Claim involves
insulation other than PFRI, or PFRI that was not manufactured by either Beazer or
Johns Manville, it shall so notify Claimant of the extent of such disallowance and
Claimant's right of appeal, and send a copy of such notice to Plaintiff's Lead Class
Counsel.
9. INSPECTION BY THIRD PARTY INSPECTOR
9.1 Inspection Process. If the Claims Office determines that the Eligible
Claimant has submitted a Claim Form that is sufficiently complete to permit processing
of the Claim, the Claims Office shall cause the scheduling of an inspection of the
Eligible Property by a Third Party Inspector. The Claims Office shall cause written
notice of the proposed date of inspection to be sent to the Claimant. The Third Party
Inspector shall make reasonable efforts to enable Claimant to attend the inspection.
9.2 Timing of Inspection. The Claims Office shall exercise good faith efforts
to cause an inspection to be conducted by the Third Party Inspector as soon as
reasonably practicable after the submission of a complete Claim Form but in no event
later than one year from the date of receipt of a Claim by the Claims Office. The
Claims Office will also exercise good faith efforts to provide priority to a Claimant whose
roof is leaking or for other exigent circumstances, such as where the Eligible Property
has been listed for sale.
9.3 Waiver of Inspection. In its discretion, if the Claims Office believes it has
sufficient information from its own files or from the information supplied by the Claimant
to approve the Claim, the Claims Office shall have the option to waive the Third Party
Inspection.
9.4 Inspection Procedures. The Third Party Inspector shall perform the
inspection of the Roof Deck and Roofing System in accordance with its inspection
protocols and record the data in a Field Inspection Report. The Third Party Inspector
shall forward copies of the Field Inspection Report to the Claims Office and the
Claimant.
10. DETERMINATION OF TYPE/AMOUNT OF SETTLEMENT COMPENSATION
10.1 Requirement of Damage to Metal Roof Deck in Direct or Indirect
Contact with Beazer PFRI Before Any Settlement Compensation is Paid. If neither
the Field Inspection Report nor other information submitted by the Claimant or
otherwise in the possession of the Claims Office reveals evidence of Damage to a
Metal Roof Deck in direct or indirect contact with Beazer PFRI, no Settlement
Compensation shall be paid to the Claimant. No bid package will be sent to the
Claimant, nor will a Useful Life determination be made. The Claims Office shall send to
the Claimant an explanation of the Claimant's right (i) to appeal to the Independent
Claims Adjudicator the determination that no Damage is present, in accordance with
the provisions of p.11 et seq., or (ii) to present to the Claims Office (no later than the
later of (a) three (3) years after the disallowance of the Claim, or (b) expiration of the
roofing system's Useful Life) evidence of Damage to a Metal Roof Deck, supported by
test cuts taken by a qualified roofing contractor, consultant or inspection firm at
Claimant's expense. If the Claimant submits such additional test cut data during the
allowed period, the Claims Office shall be permitted one hundred and twenty (120) days
from the date of such submission to re-inspect the Claimant's roof and to investigate
the additional test cut information. If the additional test cuts are verified and
demonstrate Damage to the Metal Roof Deck, the Claimant may recover Settlement
Compensation, provided that the Claim otherwise qualifies for such compensation, and
provided further that depreciation, or Pro-Rating, of the Roof Replacement
Compensation shall run from the Roof Completion Date until the date the additional test
cut information was submitted to the Claims Office by the Claimant.
10.2 Useful Life Determination. If any portion of the Metal Roof Deck in
direct or indirect contact with Beazer PFRI has experienced Damage, the Claims Office
shall determine the appropriate Useful Life for the Claimant's existing roofing system,
based upon the results of the Third Party Inspection and any other Claim information
available, and with reference to the agreed Minimum, Standard and Maximum Useful
Life Schedules contained in Exhibit A. A Claimant shall be eligible for Roof
Replacement Compensation only if, as of the Date of the Claim, the Claimant's roofing
system had any remaining Useful Life as determined by the Claims Office.
10.3 "Form A" and "Form B" Bid Packages Sent. Based on its
determinations (i) regarding the existence of Damage to Metal Roof Deck in direct or
indirect contact with Beazer PFRI, and (ii) regarding whether any Useful Life remained
as of the Date of the Claim, the Claims Office shall send to each Eligible Claimant
either a "Form A" or "Form B" Bid Package. "Form A" Bid Packages, for both roof
replacement and deck remediation, will be sent only to those Eligible Claimants whose
roofs had remaining Useful Life as of the Date of the Claim. A "Form B" Deck
Remediation Only Bid Package will be sent to Eligible Claimants whose roof's Useful
Life expired prior to the Date of the Claim, and who therefore may be entitled only to
Deck Remediation Compensation, and under appropriate circumstances, Interior
Protection Compensation. The transmittal letter for "Form B" shall explain that the
Claims Office has determined that the Useful Life of the Eligible Claimant's roofing
system has expired, that, accordingly, the Claimant is not eligible to be paid Roof
Replacement Compensation, but that the Claimant may still be eligible to receive Deck
Remediation Compensation when the roof system is replaced, in accordance with this
Agreement. With respect to Eligible Properties for which the Maximum Useful Life had
not expired as of the Date of the Claim, but the Claims Office nevertheless determines
that the actual Useful Life expired before the Date of the Claim, and the Claims Office
sends the Eligible Claimant a "Form B" Deck Remediation Only Bid Package, such
Eligible Claimant will be sent a Notice of Appeal by the Claims Office and may appeal
the Useful Life determination following the procedures specified in p. 11 et seq.
10.4 "Form A" Roof Replacement/Deck Remediation Bid Package; Roof
Plan Design; Obtaining Bids. In the event the Claims Office sends the Claimant a
"Form A" Roof Replacement/Deck Remediation Bid Package, the Claims Office shall
reimburse the Claimant's actual costs, subject to the limitations contained in p. 2.19
herein, for the design of a roof plan and/or preparation of a bid package for a "Like
Kind" Roofing System. The Claimant shall, within 180 days of receipt from the Claims
Office of the "Form A" Roof Replacement/Deck Remediation Bid Package, obtain and
return to the Claims Office, (i) a copy of the complete bid package prepared by or for
the Eligible Claimant, and (ii) at least three (3) independent bids from qualified roofing
contractors for replacement of the roof with a "Like Kind" Roofing System, and unit
prices for Deck Remediation Compensation, using the bid breakdown forms supplied in
the Bid Package. At least one of the three bids must be obtained from a roofing
company included on a list of approved roofers maintained by the Claims Office. The
Claims Office shall have the discretion to name, add, remove or substitute roofing
companies on its approved list, and the listing of all such companies is subject to the
approval of Plaintiffs' Lead Class Counsel, which shall not unreasonably be withheld.
Each bidder must agree to provide a Certificate of Insurance for a general liability
insurance policy naming Beazer, as well as the Eligible Claimant, as an additional
insured and providing both with at least thirty (30) days prior written notice of
cancellation, prior to being awarded any work.
If the Claimant is unable to obtain at least one bid from any of the companies on
the Claims Office's list (e.g., due to geographic distance, excess demand or timing
issues), and if the Claims Office cannot substitute another bidder of its choosing, then
Claimant may propose a substitute bidder, subject to approval by the Claims Office,
which approval shall not unreasonably be withheld. Claimant may request an extension
of the time period for obtaining bids for no more than thirty (30) days, as may be
reasonably necessary (e.g., due to inclement weather) by informing the Claims Office in
writing of the reasons for the delay, which request will not unreasonably be refused.
If the Claimant does not satisfy these time deadlines, the Claimant may still be
eligible for limited Deck Remediation Compensation, as provided in p. 10.7.A, so long as
the roof is replaced and the deck remediated on or before January 18, 2011.
10.5 "Form B" Deck Remediation Only Bid Package -- Obtaining Bids.
The Claimant shall, within the Maximum Useful Life of the roofing system, and prior to
removal of the roofing system, obtain at least three independent bids from qualified
roofing contractors for replacement of the roofing system with a "Like Kind" Roofing
System, and unit prices for Deck Remediation Compensation, using the bid breakdown
forms supplied in the Bid Package from the Claims Office. At least one of the three
bids must be obtained from a roofing company included on a list of approved roofers
maintained by the Claims Office. The Claims Office shall have the discretion to name,
add, remove or substitute roofing companies on its approved list, and the listing of all
such companies is subject to the approval of Plaintiffs' Lead Class Counsel, which shall
not unreasonably be withheld. Each bidder must agree to provide a Certificate of
Insurance for a general liability insurance policy naming Beazer, as well as the Eligible
Claimant, as an additional insured, and providing both with at least thirty (30) days prior
written notice of cancellation, prior to being awarded any work.
If the Claimant is unable to obtain at least one bid from any of the companies on
the Claims Office's list, e.g., due to geographic distance, excess demand or timing
issues, and if the Claims Office cannot substitute another bidder of its choosing, then
Claimant may propose a substitute bidder, subject to approval by the Claims Office,
which shall not unreasonably be withheld. Claimant may request an extension of the
time period for obtaining bids for no more than thirty (30) days, as may be reasonably
necessary (e.g., due to inclement weather) by informing the Claims Office in writing of
the reasons for the delay, which request will not unreasonably be refused.
If the Claimant does not satisfy these time deadlines, the Claimant may still be
eligible for limited Deck Remediation Compensation, as provided in p. 10.7.A, so long as
the roof is replaced and the deck remediated on or before January 18, 2011.
10.6 Calculation of Roof Replacement Compensation Amount. Roof
Replacement Compensation shall be based upon the Lowest Acceptable Bid, as
provided in p. 2.32.
10.7 Calculation of Deck Remediation Compensation.
A. Deck Remediation Compensation shall consist of the entire cost of
deck remediation reasonably incurred by the Eligible Claimant, including power wire
brushing, overlayment, deck replacement, painting and associated labor and materials,
based upon the Lowest Acceptable Bid, provided that the deck remediation work is
conducted in compliance with the remediation procedures contained in the Acceptance
and Covenant. If, however, the Eligible Claimant both fails to comply with any of the
deadlines set forth in p. 10 and the deck is not remediated until after expiration of the
roofing system's Maximum Useful Life, as provided in Exhibit A, but is remediated on
or before January 18, 2011, Deck Remediation Compensation shall be limited to $100
per Square for a Single-Ply, or Shingle Roofing System and to $45 per Square for a
Built-Up Roofing System for the entire surface area of Metal Roof Deck in direct or
indirect contact with Beazer PFRI, provided that the Beazer PFRI is actually removed
by the Eligible Claimant and the Metal Roof Deck is, in fact, remediated.
B. For only those Eligible Properties which include a Loadmaster
deck system, (i) the Roof Replacement Compensation shall be calculated with respect
to the removal and installation of new roof membrane and insulation utilizing the same
Pro-Ration and procedures set forth in p.2.48 as for other Eligible Properties; and (ii) the
Deck Remediation Compensation shall be calculated on a Pro-Rated basis where the
applicable Useful Life to be used shall in every instance be three hundred and sixty
(360) months, with no adjustments due to inadequate maintenance, design or product
failures, and with the method of remediation being the total replacement of the entire
Loadmaster deck system with a standard configuration of a Metal Deck system,
which is compliant with applicable building codes.
10.8 Interior Protection Compensation. In connection with roof deck
remediation, the Claims Office will pay from the Settlement Fund, where applicable,
Interior Protection Compensation, as defined in p. 2.28 herein.
10.9 Settlement Compensation Conditioned on Claimant's Agreement to
Remove Beazer PFRI. Notwithstanding any other provision herein to the contrary,
neither Beazer nor the Claims Office shall be required to pay any Settlement
Compensation until the Eligible Claimant has agreed to the removal and replacement of
the roof and all existing Beazer PFRI, and to remediate the Metal Roof Deck as
necessary, by signing and returning the Acceptance and Covenant.
10.10 Offer for Settlement Compensation. Within forty-five (45) days after
receipt by the Claims Office of the Eligible Claimant's three (3) bids which comply with
this Agreement, the Claims Office shall mail to such Eligible Claimant an Offer for
Settlement Compensation (the "Offer") determined by the Claims Office in accordance
with this Agreement. The Offer shall include a written explanation of how the
Settlement Compensation amount was calculated. The Offer shall be accompanied by
an Acceptance and Covenant and a Notice of Appeal form.
10.11 Right to Contest Settlement Compensation. Within thirty (30) days
after receipt of the Offer from the Claims Office, the Eligible Claimant may accept the
calculation of the Settlement Compensation by signing and returning the Acceptance
and Covenant to the Claims Office, or the Eligible Claimant may dispute the calculation
of the Settlement Compensation by signing and returning the Notice of Appeal. Eligible
Claimant's failure to return to the Claims Office either the signed Acceptance and
Covenant or Notice of Appeal within thirty (30) days after receipt of the letter enclosing
the Claims Office's calculation of the Settlement Compensation shall be deemed to be
an acceptance of the Claims Office's calculation and an irrevocable waiver of Eligible
Claimant's right to appeal the Claims Office's calculation of Settlement Compensation.
10.12 Payment of Roof Replacement Compensation.
A. Design Reimbursement Compensation. For an Eligible
Claimant who receives a Form A bid package, within thirty (30) days after receipt by the
Claims Office of documentation of the Eligible Claimant's professional design costs
incurred in accordance with p. 2.19 above and a copy of the complete roof design as
prepared for the bid, the Claims Office shall pay the Design Reimbursement
Compensation to the Eligible Claimant.
B. First Installment of Roof Replacement Compensation. Within
five (5) Business Days after (i) its receipt of the Eligible Claimant's Acceptance and
Covenant, or (ii) the resolution of an appeal under p.11 et seq., and the receipt by the
Claims Office of an executed Acceptance and Covenant conforming to the Independent
Claims Adjudicator's determination, the Claims Office shall pay to the Eligible Claimant
from the Settlement Fund fifty percent (50%) of the Roof Replacement Compensation,
less any deductions permitted by the Court pursuant to p. 20 below.
C. Final Installment of Roof Replacement Compensation. Within
fifteen (15) Business Days after its receipt of written documentation verifying that the
existing roofing system on the Eligible Property has been replaced, Beazer's PFRI
removed, and the deck remediated, all in accordance with the requirements of this
Agreement, the Claims Office shall remit to the Claimant from the Settlement Fund the
remaining fifty percent (50%) of the Roof Replacement Compensation, less any
deductions permitted by the Court pursuant to p. 20 below.
10.13 Eligible Claimant's Agreement to Remove Beazer PFRI and
Remediate Deck. The Eligible Claimant's acceptance of the first installment of the
Roof Replacement Compensation in accordance with p. 10.12.B. will constitute a
promise and contract that the removal and replacement of the Eligible Claimant's
roofing system and remediation of its Metal Roof Deck will be initiated within sixty (60)
days after receipt of such settlement funds. Failure to begin work on the removal and
replacement of the roofing system and remediation of its Metal Roof Deck within 60
days (without a reasonable extension having been agreed to by the Eligible Claimant
and the Claims Office, assent to which shall not unreasonably be withheld) and failure
to promptly and faithfully proceed with such work to completion, will subject the Eligible
Claimant to, among any other available remedies, an order of specific performance by
this Court requiring the return of Settlement Compensation and Design Reimbursement
Compensation paid (plus Beazer's collection costs and attorneys fees) or specific
performance of the contracted work.
10.14 Limitations on Roof Replacement Compensation in the Event
Eligible Claimant Does Not Timely Commence the Removal and Replacement of
the Roofing System. If the Eligible Claimant does not commence the removal and
replacement of the roofing system and remediation of its Metal Roof Deck within sixty
(60) days after receipt of the first installment of Roof Replacement Compensation
(without a reasonable extension having been agreed to by the Eligible Claimant and the
Claims Office, assent to which shall not unreasonably be withheld), depreciation shall
begin to run again for purposes of Pro-Rating the Roof Replacement Compensation
from the date the Offer was sent to the Eligible Claimant through the date the work is
actually commenced, and the Roof Replacement Compensation will be recalculated
accordingly. If the Eligible Claimant does not commence the removal and replacement
of the roofing system before the Useful Life of the roof expires, the Eligible Claimant
shall forfeit any right to Roof Replacement Compensation. The Eligible Claimant may
still, however, be eligible for Deck Remediation Compensation.
10.15 Timing and Payment of Deck Remediation Compensation and Interior
Protection Compensation. Within fifteen (15) Business Days after receipt of
documentation verifying that the Metal Roof Deck has been remediated in accordance
with the requirements in the Acceptance and Covenant and this Agreement, the Claims
Office shall pay from the Settlement Fund to the Eligible Claimant the Deck
Remediation Compensation and Interior Protection Compensation.
10.16 All Remediation Must Be Complete By January 18, 2011. An Eligible
Claimant who fails to remove and replace its roofing system and remediate the deck of
the Eligible Property by midnight of January 18, 2011 shall not be entitled to any
compensation under any provisions of this Settlement or otherwise.
11. APPEAL PROCESS TO INDEPENDENT CLAIMS ADJUDICATOR
11.1 Beazer and Plaintiffs' Class Counsel shall jointly appoint an independent
dispute resolution firm or individuals on a competitively bid basis to serve as the
Independent Claims Adjudicator during the term of this Agreement. The firm or
individuals shall have a panel of impartial roofing experts knowledgeable about the
design and configuration of commercial and industrial roofing systems in the United
States, each of whom shall be acceptable to Beazer and Plaintiffs' Lead Class Counsel.
Neither the Independent Claims Adjudicator nor any member of the panel of impartial
roofing experts shall have had any involvement in the Action, whether as Party or
intervenor or as attorney, consultant or expert for any Party or intervenor.
11.2 If a Claimant believes that the Claims Office has erred in its
A. determination whether the Claimant is an Eligible Claimant;
B. determination whether a Claimant's property is an Eligible Property;
C. determination whether an Eligible Property has experienced
Damage;
D. determination of an Eligible Property's Roof Completion Date;
E. determination of the Date of the Claim;
F. determination of the Useful Life applicable to an Eligible Property
by applying Exhibit A;
G. determination or calculation of Interior Protection Compensation,
but limited to the proper application of the specified components in
this Agreement for such determination or calculation;
H. determination or calculation of Design Reimbursement
Compensation, but limited to the proper application of the specified
components in this Agreement for such determination or
calculation;
I. determination or calculation of Roof Replacement Compensation,
but limited to the proper application of the specified components in
this Agreement for such determination or calculation;
J. determination or calculation of Deck Remediation Compensation,
but limited to the proper application of the specified components in
this Agreement for such determination or calculation;
K. determination whether an Eligible Claimant complied with any
deadline established by this Agreement;
L. determination whether an Eligible Claimant has breached any
obligation imposed on such Eligible Claimant by this Agreement
and/or by the Eligible Claimant's Acceptance and Covenant;
M. determination regarding the appropriate labor and material
components constituting a "Like Kind" Roofing System for an
Eligible Claimant's Eligible Property or regarding whether any such
components would constitute a betterment;
N. calculation of the Lowest Acceptable Bid in accordance with p. 2.32
above; or
O. calculation of the Settlement Compensation to be paid to an
Eligible Claimant, but limited to the proper application of the
specified components in this Agreement for those calculations,
the Claimant may, within thirty (30) days after receipt of notice of the Claims Office's
determination or calculation, as the case may be, send written notice to the Claims
Office of its intent to appeal such determination or calculation to the Independent
Claims Adjudicator. If the dispute cannot be resolved through negotiation between the
Claimant and the Claims Office within forty-five (45) days after submission of the
Notice of Appeal, then the application of the terms of this Agreement by the Claims
Office for the foregoing appealable issues shall be submitted for determination by the
Independent Claims Adjudicator.
11.3 Notwithstanding anything to the contrary in this Agreement, the
Independent Claims Adjudicator shall have no power or authority to modify or disregard
the terms of this Agreement, or any of the Exhibits to this Agreement, including but not
limited to the Useful Life Schedule set forth in Exhibit A. Furthermore, the Independent
Claims Adjudicator shall have no jurisdiction or authority to retry or consider any Settled
Claim, or to impinge upon the operations, selection, or management of the Claims
Office, the Third Party Inspectors, or the methodology for the making of Offers for
Settlement Compensation by the Claims Office, or any other matter not expressly
submitted to it under p. 11.2 above.
11.4 With respect to appeals timely and properly made pursuant to p. 11.2
above, the Independent Claims Adjudicator shall review the determinations or
calculations of the Claims Office, together with such additional documentation
pertaining to the specifics of the Eligible Property (and not as to any Settled Claim) the
Claimant or the Claims Office may submit in conformance with this Agreement and any
procedural rules established in accordance with p. 11.7 below, and shall confirm or
modify the findings of the Claims Office. The determination by the Independent Claims
Adjudicator shall be made solely on the basis of documentary information pertaining to
the specifics of the Eligible Property (and not as to any Settled Claim) presented to it
and the terms and conditions of this Agreement and its Exhibits, without any hearings or
oral proceedings. The Independent Claims Adjudicator shall not be given, and may not
consider, any communications between the Claims Office and the Claimant during the
forty-five (45) day negotiation period specified in p. 11.2 above, nor shall any information
be submitted or considered with respect to how other Claimants or Eligible Properties
allegedly may or may not have been treated by the Claims Office. The Independent
Claims Adjudicator shall notify the Claimant, the Claims Office and Plaintiffs' Lead
Class Counsel of its determination. The decision of the Independent Claims
Adjudicator shall be final and not appealable.
11.5 If the decision of the Independent Claims Adjudicator is not more
favorable to the Claimant than the original Settlement Compensation offered or other
challenged determination made by the Claims Office, then the Independent Claims
Adjudicator's fee, plus the Claims Office's attorney fees (not to exceed $1,500) shall be
assessed against the Claimant. If the decision is more favorable to the Claimant than
the original Settlement Compensation or other challenged determination made by the
Claims Office, then the Independent Claims Adjudicator's fee, plus the Claimant's
attorney fees (not to exceed $1,500) shall be assessed against the Claims Office.
11.6 The Independent Claims Adjudicator shall not take testimony or conduct
any hearings; rather the entire dispute shall be adjudicated based upon available
records, the Field Inspection Report, the correspondence between the Claims Office
and the Claimant (outside of the forty-five (45) day negotiation period), and any
permissible submissions by the Claims Office and the Claimant pertaining to the
specifics of the Eligible Property (and not as to any Settled Claim). The Claims Office
and the Claimant shall each be free to utilize counsel of its own choosing whether or
not currently class counsel or attorneys of record in this case.
11.7 The Claims Office and Plaintiffs' Lead Class Counsel shall jointly
establish such additional procedures and rules for handling the review of Claims by the
Independent Claims Adjudicator as they deem appropriate.
12. ASSIGNMENT OF CLAIMS
12.1 Eligible Claimants who have already filed pending Claims may assign
without notice their settlement benefits to the extent allowed by law, and the assignee
shall have all of the rights of the assignor, provided that the assignee fully complies with
all of the terms and conditions of this Agreement. Any Eligible Claimant who is a
subsequent purchaser of the Eligible Property with an assignment of Claim determined
by the Claims Office to be validly documented may file a Claim to the extent such
Damage has not previously been the subject of a claim filed by anyone with respect to
the Eligible Property, and not released. Any dispute concerning the validity or extent of
any such claim or of any payment made to such subsequent purchaser will be resolved
by the Independent Claims Adjudicator.
13. BEAZER'S WAIVER OF LEGAL DEFENSES
13.1 For Eligible Claimants only, all applicable statutes of limitations and
repose shall be waived and Beazer shall waive the defenses of lack of privity; the
limitation of recovery of "economic loss"; lack of reliance; that an Eligible Claimant
purchased his or her property "as is"; the absence of a defect in material workmanship
in the PFRI or any other legal defenses not specifically reserved in this Agreement.
This waiver shall not apply to persons who are not Settlement Class Members, or to
Persons who exclude themselves, or "opt out," from the Settlement Class, or to Persons
who claim they are not bound by this Agreement for any reason.
15. LIMITATIONS OF PAYMENTS AND LIABILITY
15.1 Notwithstanding anything in this Agreement to the contrary, under no
circumstances shall Beazer or the Claims Office be required to compensate more than
one Person (or the same Person more than one time) for any Claim with regard to the
same Eligible Property, or to pay more than the Settlement Compensation amount with
respect to an Eligible Property.
15.2 In no event shall Plaintiffs, Intervenors or Plaintiffs' Class Counsel have
any liability for claims of wrongful or negligent conduct by the Claims Office, Beazer or
Beazer's agents or employees. In no event shall the Claims Office, Beazer or Beazer's
agents or employees have any liability for claims of wrongful or negligent conduct by
Plaintiffs, Intervenors or Plaintiffs' Class Counsel.
18. EXCLUSIVE REMEDY; JURISDICTION OF COURT
18.1 The Claims Program provided in this Agreement shall constitute the sole
and exclusive remedy for any Claim, Settled Claim or Eligible Property related to
Beazer PFRI. The Independent Claims Adjudicator may provide only the compensatory
relief provided for by this Agreement and may not award punitive or multiple damages
with respect to any Claim, Settled Claim or Eligible Property; and no Settlement Class
Member who has not timely opted out of the Settlement Class may serve as a
representative plaintiff with respect to a Settled Claim or remain in any action or permit
itself to be represented by a third party in any action in which a Settled Claim is
asserted.
18.2 As of the Settlement Date, each Settlement Class Member who has not
timely opted out of the Settlement Class shall be barred from initiating, asserting or
prosecuting any Settled Claim, and such Settlement Class Members shall be barred
and enjoined from actively prosecuting actions on Settled Claims against Beazer.
18.3 The Court shall retain exclusive and continuing jurisdiction of the Action,
all Parties and Settlement Class Members, to interpret and enforce the terms,
conditions, and obligations of this Agreement.
18.4 The Final Order and Partial Judgment shall confirm the foregoing.
19. RELEASES AND INDEMNIFICATIONS
11.1 As of the Settlement Date, each Settlement Class Member who has not
timely opted out of the Settlement Class, on behalf of itself and any Person claiming by
or through it, whether as its heir, administrator, devisee, predecessor, successor,
representative of any kind, shareholder, partner, director or owner of any kind, affiliate,
subrogee, past or future assignee or insurer (the "Releasing Person"), regardless of
whether any such Settlement Class Member submits a Claim Form or executes and
delivers an Acceptance and Covenant, shall be deemed to and does hereby release
and forever discharge Beazer and Johns Manville, including their predecessors,
successors, parents, subsidiaries, divisions, departments, or affiliates, and their
officers, directors, employees, shareholders, partners, agents, servants, predecessors,
successors, subrogees, past and future assigns, and respective insurers and
indemnitors (the "Released Persons"), of and from any and all claims, liabilities, rights,
demands, suits, matters, obligations, damages, losses or costs, actions or causes of
action, of every kind and description, in law or in equity, that the Releasing Person has,
had or may have against any Released Person, whether known or unknown, accrued or
which may thereafter accrue, asserted or unasserted, latent or patent, that is, has been,
could reasonably have been or in the future might reasonably be, asserted by the
Releasing Person against any Released Person, either in this Action, or in any other
action or proceeding, in this Court or any other court or forum, regardless of the legal
theory, and regardless of the type or amount of relief or damages claimed, arising from
or in any way relating to the design, manufacture, distribution, sale, handling, written or
oral instructions, specifications, marketing, use, performance, or any defects or alleged
defects, of Beazer PFRI, or any part thereof which have accrued or will accrue as a
result of having Beazer PFRI on the Releasing Person's Eligible Property ("Settled
Claim"). Without limiting the generality of the foregoing, Settled Claim shall include,
with regard to the foregoing subject matter:
A. any claim for breach or violation of any federal, state, common or
other law or statute, regulation or ordinance;
B. any claim for breach of any duty imposed by law, by contract or
otherwise;
C. any claim based on strict product liability, negligence, reliance,
breach of express or implied warranties, racketeering, fraud, suppression, conspiracy,
consumer fraud, conspiracy to commit fraud, unfair and deceptive trade practice,
negligent misrepresentation, reckless misrepresentation or intentional
misrepresentation, and any other similar claim or cause of action;
D. any claim based on alleged defects or inadequacies in or otherwise
related to in the design, manufacture, advertising, product literature, sale, distribution,
marketing or performance of Beazer PFRI or any part thereof;
E. any claim for emotional distress or mental anguish associated with
any of the above;
F. any claim for declaratory or injunctive relief;
G. any claim for direct, indirect, special, incidental, business
interruption, economic loss, actual or consequential damages or attorneys fees or
costs, or for penalties, punitive damages, exemplary damages, or any claim for
damages based upon a multiplication of compensatory damages associated with the
above, whether allowed by federal or state statute or common law; and
H. related subrogation claims of the Settlement Class Member's
subrogee or insurance carriers not protected from waiver of subrogation by the
provisions of applicable insurance policies (or assigned or subrogated prior to final
approval of this Agreement and not subject to compromise or settlement by the
policyholder).
19.2 The term "Settled Claim" does not include the following:
A. any claim for bodily or personal injury, wrongful death and
associated emotional distress and mental anguish;
B. any claim wholly unrelated to the specification, use or presence of
Beazer PFRI on the roof of a claimant's building asserted against Persons other than
the Released Persons for improper installation, design, manufacture or maintenance of
any roofing system and,
C. any claim with respect to any property, or portion thereof, that does
not fall within the definition of Eligible Property.
19.3 With the exception of the Settled Claims, the Settlement Class Members
and Beazer specifically reserve any and all other claims and causes of action against
any and all other Persons not parties to this Agreement.
19.4 Nothing in this Agreement shall be construed in any way to prejudice or
interfere with Beazer's right to pursue its rights under any insurance policy or any other
agreement providing indemnification or reimbursement to Beazer for amounts paid by
Beazer in respect of claims arising out of or related to its manufacture, sale or
distribution of Beazer PFRI.
19.5 Beazer agrees to defend, indemnify and hold harmless any Eligible
Claimant from any and all damages, settlements, payments or expenses (including
reasonable attorney fees) incurred in the event that Beazer pursues a claim or cause of
action against a person or entity not a Party to this Agreement for recovery of all or any
portion of the Settlement Compensation paid to the Eligible Claimant, and where said
claim or cause of action results in the filing of a claim for contribution, indemnity,
apportionment, or equitable apportionment (or any similar damages sharing or shifting
theory) against such Eligible Claimant in such suit or action or otherwise, provided,
however, that in no event shall Beazer's liability for such indemnification exceed the
Settlement Compensation amounts paid to such Eligible Claimant pursuant to this
Settlement.
19.6 Each Eligible Claimant agrees to defend, indemnify and hold harmless
Beazer from any and all damages, settlements, payments or expenses (including
reasonable attorney fees) incurred in the event that such Eligible Claimant pursues a
claim or cause of action against a person or entity not a Party to this Agreement for
recovery of any additional damages (beyond the Settlement Compensation set forth in
this Agreement) in connection with the roofing system or Metal Roof Deck at the Eligible
Property, and where said claim or cause of action results in the filing of a claim for
contribution, indemnity, apportionment, or equitable apportionment (or any similar
damages sharing or shifting theory) against Beazer in such suit or action or otherwise,
provided, however, that in no event shall the Eligible Claimant's liability for such
indemnification exceed the Settlement Compensation amounts paid to such Settlement
Class Member pursuant to this Settlement.
19.7 Beazer agrees to defend, indemnify and hold harmless each and every
Eligible Claimant from and against any and all damages, settlements, payments or
expenses (including reasonable attorney fees) incurred by such Eligible Claimant on
account of any and all claims, suits and causes of action for personal injuries, including
wrongful death, and property or other damage which may occur at the Eligible Property
and which are caused by Beazer PFRI, provided that such injuries and/or damage
occur at any time after the Date of the Claim and before payment to such Eligible
Claimant of any portion of the Settlement Compensation.
19.8 Each Eligible Claimant who has accepted and received in whole or part
any portion of Settlement Compensation in connection with an Eligible Property agrees
to defend, indemnify and hold harmless Beazer from and against any and all damages,
settlements, payments or expenses (including reasonable attorney fees) incurred by
Beazer on account of any and all claims, suits and causes of action for personal
injuries, including wrongful death, and property or other damage which may occur at the
Eligible Property, provided that such injuries and/or damage occur at any time after that
Eligible Claimant has done all of the following: (i) executed an Acceptance and
Covenant, and (ii) received any portion of the Settlement Compensation, and (iii)
breached its obligations under the Acceptance and Covenant and/or otherwise under
the terms of this Agreement to properly and timely replace the roofing system
containing Beazer PFRI in direct or indirect contact with a Metal Roof Deck and/or to
remediate the Metal Roof Deck.
20. PLAINTIFFS' CLASS COUNSEL ATTORNEYS FEES AND EXPENSES
20.1 (UPDATED) Plaintiffs' Class Counsel applied to the Court for an award of
Attorneys Fees. The Court awarded Plaintiffs' Class Counsel the sum of $1.5 million
payable by Beazer one (1) year after the date of entry of a Final Order and Partial
Judgment as a partial payment of Attorney Fees. The Court also awarded Plaintiffs'
Class Counsel a twelve and one-half (12.5%) contingency fee to be paid out of
whatever Settlement Compensation amounts Beazer may ultimately pay to each of the
Eligible Claimants as such payments are made over the course of the Claims Program.
By this approach, Plaintiffs' Class Counsels' fees will be proportionately related to the
actual payments made to Settlement Class Members, and Plaintiffs' Class Counsel will
be paid at the end of the month during which only specific Eligible Claimants are paid.
The Court ordered the Claims Office to remit eighty-seven and one-half percent
(87.5%) of all Settlement Compensation payments directly to Eligible Claimants from
the Settlement Fund at the times and upon the conditions otherwise specified in this
Agreement, and the balance of twelve and one-half percent (12.5%) of all such
Settlement Compensation amounts to be paid directly to Plaintiffs' Lead Class Counsel.
20.2 Except as otherwise provided in p.20.1, providing for the deduction of
Attorneys Fees and Expenses from Settlement Compensation Amounts, under no
circumstances shall Beazer or the Claims Office be obligated to directly pay any more
than Two and One-Half Million Dollars ($2,500,000), in the aggregate, for Attorney
Fees, and for the Notice and Initial Claim Expenses as set forth in p. 7.1, into any fund
or to any Person or to Plaintiffs' Class Counsel for their Notice, fees, or any other
reimbursed or reimbursable expenses, whether on a cumulative or collective basis.
2. DEFINITIONS
As used in this Agreement and the referenced Exhibits, and in addition to any
definitions elsewhere in this Agreement, the following terms shall have the meanings
set forth below:
2.1 Action means the above-captioned actions, Sebago, Inc. and Flint
Village, LLC, et al. v. Beazer East, Inc., et al., and the complaint in intervention of
Douglas Kovatch, et al. v. Johns Manville, et al., Civil Action Nos. 96-10069-MLW
(U.S.D.C. D.Mass.) and 96-10656-MLW (U.S.D.C. D.Mass.).
2.2 (UPDATED) Acceptance and Covenant means the "Acceptance of
Settlement Compensation, Covenant to Remediate, and Release of All Settled Claims,"
substantially in the form which will be sent from the Claims Office to Eligible Claimants
along with the calculation of the Eligible Claimant's Settlement Compensation amount.
The Acceptance and Covenant will reiterate, among other things, the Eligible Claimant's
Release and covenant to apply all Settlement Compensation towards, and to perform,
the actual removal and replacement of the existing roof, in the manner and within the
time requirements specified therein.
2.3 Agreement, Settlement or Settlement Agreement means this
Stipulation of Settlement, including all Exhibits attached or to be attached hereto, or
which are incorporated by reference herein.
2.4 Attorneys Fees means the amount awarded by the Court as
compensation for the services provided by Plaintiffs' Class Counsel, including
reimbursement of all costs and expenses, and expert witness fees and expenses, as
set forth in p. 20 et seq. of this Agreement.
2.5 Beazer means Beazer East, Inc., a Delaware Corporation, formerly known
as Koppers Company, Inc. and its officers, directors, shareholders, agents, servants,
employees and predecessors in interest.
2.6 Beazer PFRI means phenolic foam roof insulation products manufactured
at and shipped from the Oak Creek, Wisconsin facility or any other facility from January
1, 1980 through January 17, 1989 under the names, among others, Koppers Exeltherm
Xtra and Rx, Genstar, Pittsburgh-Corning, or Loadmaster .
2.7 Built-Up Roofing System means a roofing system in which the
waterproofing membrane is composed of either (i) two or more plies of roofing felt
saturated with interspersed layers of bitumen (e.g., roofing asphalt or coal tar), or
(ii) two or more layers of modified bitumen roll roofing (e.g., APP or SBS), or (iii) two or
more plies of roofing felt combined with a modified bitumen cap sheet.
2.8 Business Day means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
2.9 Claim or Claims means a claim submitted by a Claimant to the Claims
Office for the purpose of asserting or making a claim in connection with the Claims
Program governed by this Agreement.
2.10 Claimant means any Person who submits a Claim.
2.11 (UPDATED) Claim Form means the form (together with all supporting
documentation required thereby) referred to in p.8 of this Agreement in substantially the
form attached to the Agreement of record in the Action.
2.12 Claims Office means the office established, managed and paid for by
Beazer, as set forth in p. 8.1 of this Agreement, to perform the claims administration
duties under this Agreement.
2.13 Claims Period means the period commencing on the date of the final
Fairness Hearing and continuing up to and including 12:01 a.m. on the date that is two
(2) years thereafter.
2.14 Claims Program means the procedure set forth in p.p.8-10 of this
Agreement for processing and paying Claims.
2.15 Court means the United States District Court for the District of
Massachusetts, in which the Action is pending.
2.16 (UPDATED) Damage to a Metal Roof Deck means evident red rust
anywhere on the Metal Roof Deck located beneath Beazer PFRI and within the Claimant's
roofing system; provided, however, that Damage does not include routine construction-
period rust, white galvanization byproducts, or insubstantial amounts of red rust as
exhibited in the photographs attached to the Agreement of record in the Action.
2.17 Date of the Claim means the earlier of (i) the date a Prior Claim was first
submitted to Beazer unless the Claimant has either (a) clearly and unambiguously in
writing refused to permit an inspection or to proceed with the steps necessary for
remediation, or to otherwise provide information or take action reasonably necessary for
Beazer to further process the claim; or (b) Claimant has failed to respond to at least two
successive documented communications from Beazer requesting information or action
reasonably necessary for Beazer to further process the claim, in which case the Date of
the Claim will be recalculated to exclude the time following such written refusal or the
date of the first unresponded-to communication, or (ii) the date a Claim is submitted to
the Claims Office.
2.18 Deck Remediation Compensation is the amount of cash compensation,
calculated pursuant to p.p. 10.7, and paid from the Settlement Fund to an Eligible
Claimant to reimburse the Eligible Claimant for its costs incurred to remediate the Metal
Roof Deck. Deck Remediation Compensation shall be paid only after the Eligible
Claimant replaces the existing roofing system to the extent it contains Beazer PFRI,
removes the Beazer PFRI, and remediates the Metal Roof Deck as provided herein,
and only if the remediation is completed on or before midnight on January 18, 2011.
2.19 Design Reimbursement Compensation is the amount of cash
compensation paid by the Claims Office to an Eligible Claimant who returns a properly
completed "Form A" Roof Replacement/Deck Remediation Bid Package, for
reimbursement of actual costs incurred to have a roof plan design and/or bid package
professionally prepared by an architect or qualified roof consultant, not to exceed
$2,500 for Eligible Properties up to and including 250 Squares of Metal Roof Deck
beneath Beazer PFRI, and not to exceed $5,000 for Eligible Properties in excess of 250
Squares of Metal Roof Deck beneath Beazer PFRI.
2.20 Eligible Claimant means a Settlement Class Member, or the assignee of
a Settlement Class Member, (i) who did not submit a Request for Exclusion to the
Notice Administrator that is postmarked on or before the end of the Opt Out Period; and
(ii) who submits a Claim Form postmarked before the expiration of the Claims Period
containing substantially all information required by p. 8.3 or in the Claim Form
instructions, or which is properly supplemented as provided in p.p. 8.5-8.7; and (iii) who
is:
A. an Eligible Property Owner as of the date of Preliminary Approval in
this Action who has not assigned its Claim; or
B. the proper assignee of a Person who was an Eligible Property
Owner as of the date of Preliminary Approval.
2.21 Eligible Property means any structure, including but not limited to an
industrial building, commercial building, school, condominium, apartment house, home,
garage or other type of building or structure, located in the United States of America or
its territories and possessions in which, and to the extent, Beazer PFRI is currently
installed as of the date of Preliminary Approval, in whole or in part, on top of a Metal
Roof Deck and containing, in conjunction with a Metal Roof Deck, a Built-Up Roofing
System, a Single-Ply Roofing System or a Shingle Roofing System. Eligible Property
does not include a structure, or portions thereof, to the extent: (i) the roofing system of
which contains no Beazer PFRI; (ii) the roof deck of which is non-metal (e.g., concrete,
wood, gypsum, tectum); (iii) the membrane system of which is comprised, in whole or in
part, of a Metal Roofing System; (iv) the roofing system of which contains only roof
insulation products other than phenolic foam roof insulation; (v) the roofing system of
which contains only phenolic foam roof insulation products manufactured or shipped by
Johns Manville after January 17, 1989; (vi) to the extent that any portion of the roof
deck has been remediated by Beazer but only as to that portion remediated; (vii) with
respect to which any claims by the owner or any other interested person for damages
allegedly caused by the presence of Beazer PFRI which were previously settled, with
an executed release in Beazer's favor; or (viii) with any combination of the conditions
described in items (i) through (vii) of this paragraph. If a portion of an Eligible Property
contains Beazer PFRI and another or the same portion of the Eligible Property also
contains Johns Manville PFRI, this Settlement will provide compensation only for the
portion of Metal Roof Deck in direct or indirect contact with Beazer PFRI.
2.22 Eligible Property Owner means the owner of Eligible Property, together
with its partners, agents, servants, employees, parent entities, subsidiaries,
predecessors in interest, insurers, successors, heirs, representatives, lessees, tenants,
subtenants, mortgagees, past and future assigns, and those with contingent interests.
2.23 (UPDATED) Fairness Hearing means the settlement approval hearing
conducted by the Court on December 13, 2000 in connection with the determination of
the fairness, adequacy and reasonableness of this Agreement, the Notice Program, or
any Notice to be provided thereunder, in accordance with Fed.R.Civ.P. 23(e).
2.24 (UPDATED) Final Order and Partial Judgment means the Final Order
and Partial Judgment which was entered by the Court approving this Agreement, the
Notice Program, or any Notice to be provided thereunder, as fair, adequate and
reasonable and in the best interests of the Settlement Class as a whole in accordance
with Fed.R.Civ.P. 23(e), and making such other findings and determinations as the
Court deems necessary and appropriate to effectuate the terms of this Agreement.
2.25 "Form A" Roof Replacement/Deck Remediation Bid Package means
the package of forms and information to be sent to Claimants (i) whose existing roofing
systems are confirmed by the Third Party Inspection, or otherwise by the Claims Office,
to contain Beazer PFRI in direct or indirect contact with a Metal Roof Deck, and (ii)
whose existing roofing system has any remaining Useful Life as of the Date of the
Claim. The "Form A" Roof Replacement/Deck Remediation Bid Package shall include
a transmittal letter from the Third Party Inspector, Field Inspection Report (if not waived
by the Claims Office), bidding information including a bid breakdown form prepared by
the Third Party Inspector, and further advising that, subject to the limitations contained
in p. 2.19, the Claims Office will reimburse the Eligible Claimant for Design
Reimbursement Compensation, along with written instructions concerning the
Claimant's obtaining three bids for removal and replacement of the roofing system with
a "Like Kind" Roofing System and unit prices for Deck Remediation.
2.26 "Form B" Deck Remediation Only Bid Package means the package of
forms and information to be sent to Claimants (i) whose existing roofing systems are
confirmed by the Third Party Inspection, or otherwise by the Claims Office, to contain
Beazer PFRI in direct or indirect contact with a Metal Roof Deck, and (ii) whose existing
roofing system has been in place longer than its Useful Life as of the Date of the Claim.
The Form B Deck Remediation Only Bid Package shall include a transmittal letter from
the Third Party Inspector, Field Inspection Report (if not waived by the Claims Office),
and bidding information including a bid breakdown form prepared by the Third Party
Inspector, along with written instructions concerning the Claimant's obtaining three bids
to replace the existing roofing system, including unit prices for Deck Remediation
Compensation.
2.27 (UPDATED) Independent Claims Adjudicator means the American
Arbitration Association and those individuals retained by mutual agreement of Plaintiffs'
Class Counsel and Beazer to adjudicate and determine disputes that may arise under
the Claims Program, as more particularly described in p. 11 et seq. herein.
2.28 Interior Protection Compensation is the amount of cash compensation
paid to an Eligible Claimant from the Settlement Fund to protect the interior of an
Eligible Property during Metal Roof Deck remediation. The Claims Office will determine
and pay Interior Protection Compensation in an amount equal to the unit price of $.25
per square foot for the total area of Metal Roof Deck in direct or indirect contact with
Beazer PFRI, except for those sections of Eligible Properties that have an interior
ceiling or are vacant. Regardless of whether there is an interior ceiling, the Claims
Office also will determine and pay Interior Protection Compensation for the affected
areas of the Eligible Property where Metal Roof Deck is replaced.
2.29 Johns Manville means defendant Johns Manville Corporation, a
Delaware Corporation (formerly known as Manville Corporation and Schuller
Corporation) and Johns Manville International, Inc., a Delaware Corporation (formerly
known as Manville Sales Corporation and Schuller International, Inc.) and their agents,
servants, employees, subsidiaries, predecessors in interest, successors, heirs and past
and future assigns.
2.30 Johns Manville PFRI means phenolic foam roof insulation products
manufactured at or shipped from the Oak Creek, Wisconsin facility from January 18,
1989 through December 31, 1992, including but not limited to the following: "Ultragard
Premier" , Insul Base Premier," and Fesco-Foam Board .
2.31 "Like Kind" Roofing System means a replacement roofing system
consisting of equal roof and flashings which are of the same general type, design,
manufacture, materials and construction as that which exists on the Claimant's Eligible
Property, including, but not limited to, similar roof membrane, insulating "R" values,
number of layers of insulation, roof drains, vapor retarders, wood blocking, flashings,
equivalent membrane manufacturer's warranty (including duration, terms and
coverage), roof crickets, expansion joints, and sleepers, but not including "betterments."
Any betterments shall include but not be limited to the incremental increase in cost for
state or local government-mandated improvements to the quality of the roofing systems
from that which exists on the Claimant's Eligible Property, and any similar insurance or
industry-mandated improvements. For example, to the extent wood blocking is
necessary for leveling or other purposes to provide a new roofing system with the same
R-value as that specified for the removed roofing system, such wood blocking would not
be considered a "betterment." However, to the extent additional wood blocking is used
in connection with increasing the new roof's R-value over that originally existing on the
removed roof, that would constitute a "betterment" which is not compensable under this
Settlement.
2.32 Lowest Acceptable Bid means the lowest of the three bids obtained by
the Claimant and submitted to the Claims Office for removal and replacement of the
existing roof with a "Like Kind" Roofing System, including remediation of the deck, after
those bids have been recalculated to add the base bid and the estimated deck
remediation cost using the unit prices as bid by each contractor. For the purpose of
comparing bids only, the estimated deck remediation cost shall be arrived at by the
following formula:
90% of deck area times unit price for cleaning/painting; plus
5% of deck area times unit price for deck replacement; plus
5% of deck area times unit price for deck overlay.

The actual amount to be paid to the Claimant for Deck Remediation Compensation
shall be determined by the work actually performed.
2.33 Metal Roof Deck means a steel roof deck, including a Loadmaster
deck system, whether painted or unpainted, or galvanized or non-galvanized.
2.34 Metal Roofing System means a roofing system whose outer layer is
comprised of interlocking or other metal panels.
2.35 (UPDATED) Notice means the Notice of Proposed Class Action
Settlement in substantially the form attached to the Agreement of record in the Action,
and the Summary Notice in substantially the form attached to the Agreement of record
in the Action, and any additional notices approved or required by the Court. The Notice
shall be disseminated throughout the term of this Agreement as the Parties or the
Notice Administrator identify additional class members and in the discretion of Plaintiffs'
Lead Class Counsel.
2.36 (UPDATED) Notice Administrator means Standish Legal Processing,
who was appointed by the Court to implement the Notice Program and related claims
and information services.
2.37 Notice and Initial Claims Expenses means all costs and expenses for
the notice and administration of this Settlement to be incurred and paid for by Plaintiffs'
Class Counsel, including the costs of preparing, planning, printing and disseminating
the Notice, costs of the Notice Administrator, and all other costs related to Plaintiff
Class Counsels' permitted oversight and auditing of Beazer and the Claims Office, as
contemplated by this Agreement, subject only to payment by Beazer set forth in p. 7.1 of
this Agreement.
2.38 Notice Date means the earlier of (i) the first date on which the Notice of
Proposed Class Action Settlement is mailed to potential members of the Settlement
Class, or (ii) the first date on which the Summary Notice is published, pursuant to the
Notice Program as approved by the Court.
2.39 Notice Program means the program and schedule for providing
classwide notice of the settlement and certification of the Settlement Class, as
determined by Plaintiffs' Lead Class Counsel in consultation with the Notice
Administrator, including the mailing of the Notice of Proposed Class Action Settlement
and the publication of the Summary Notice.
2.40 (UPDATED) Opt Out Period means the 120-day period commencing
with the Notice Date and expiring at 12:01 a.m. on the 121st day after the Notice Date,
which was November 22, 2000.
2.41 Parties means the Plaintiffs, the Settlement Class and Beazer.
2.42 Person means any individual, corporation, trust, partnership, limited
liability company or other legal entity or any successor or assign of the foregoing.
2.43 Plaintiffs means the named representative plaintiffs in this Action:
Sebago, Inc. and Flint Village, LLC.
2.44 Plaintiffs' Class Counsel includes Plaintiffs' Lead Class Counsel and the
following attorneys: David J. Guin, Cinda R. York, DONALDSON GUIN & SLATE, LLC,
The Morgan Keegan Center, 2900 Highway 280, Suite 230, Birmingham, AL 35223;
and Peter J. Rubin, BERNSTEIN, SHUR, SAWYER & NELSON, 100 Middle Street,
Portland, ME 04101.
2.45 (UPDATED) Plaintiffs' Lead Class Counsel means the following
counsel: Kenneth G. Gilman, David Pastor, Douglas M. Brooks, John C. Martland,
GILMAN AND PASTOR, LLP, Stonehill Corporate Center, 999 Broadway, Suite 500
Saugus, MA 01906-4526.
2.46 Preliminary Approval means the Court's conditional certification of the
Settlement Class, approval of the Notice, and preliminary approval of this Agreement.
2.47 Prior Claim means a claim or request submitted to Beazer for
compensation or reimbursement as a result of Damage, prior to filing a Claim pursuant
to the terms of this Settlement Agreement.
2.48 Pro-Rated or Pro-Ration means a reduction in the Roofing Replacement
Compensation due an Eligible Claimant from the Settlement Fund to reflect
depreciation and the period of use of the existing roofing system to the nearest month.
The applicable reduction shall be calculated by dividing the number of months elapsed
as of the Date of the Claim since the Roof Completion Date, rounded down to the
nearest month, by the number of months of applicable Useful Life set forth in Exhibit
A. Deck Remediation Compensation and, where applicable, Interior Protection
Compensation and Design Reimbursement Compensation, shall not be Pro Rated,
except for a Loadmaster deck system as provided in p. 10.7.B.
2.49 Release means the release set forth in p.19 of this Agreement and
incorporated into the Acceptance and Covenant form signed by an Eligible Claimant
and submitted to the Claims Office as a precondition to payment of the Settlement
Compensation to an Eligible Claimant.
2.50 Releasing Person or Persons has the meaning given to it in p.19.1 of
this Agreement.
2.51 Released Person or Persons has the meaning given to it in p.19.1 of this
Agreement.
2.52 (UPDATED) Request for Exclusion means a written request submitted
to the Notice Administrator under p.17.1 of this Agreement that is postmarked on or
before the end of the Opt Out Period on November 22, 2000.
2.53 Roof Completion Date means the date or approximate date that a
Claimant's roofing system was substantially completed; provided, however, that if such
date is not reasonably ascertainable from information provided by a Claimant,
documentation of a third party or other sources deemed reliable by the Claims Office,
the "Roof Completion Date" shall mean the date of the roof warranty or where
inapplicable, sixty (60) days after the batch date shown on the Beazer PFRI contained
in the Claimant's roof.
2.54 Roof Replacement Compensation is the Pro-Rated amount of cash
compensation paid from the Settlement Fund to an Eligible Claimant meeting the
applicable requirements of p.p. 10.1 et seq. herein, including payment for all labor,
materials and equipment reasonably necessary, as determined by the Lowest
Acceptable Bid, to remove and replace the existing roofing system with a "Like Kind"
Roofing System. Eligible Claimants shall be paid the Roof Replacement Compensation
only if the existing roofing system's Useful Life has not expired as of the Date of the
Claim, and then, only if the Eligible Claimant initiates, within sixty (60) days following its
execution of the Acceptance and Covenant, the removal and replacement of the
applicable roofing system, and completes such removal and replacement as provided in
this Agreement.
2.55 Settled Claim has the meaning given to it in p.19.1 of this Agreement.
2.56 Settlement Class means a class comprised of all Persons, or their proper
assignees who comply with p. 12 herein, who, as of the date of Preliminary Approval in
this Action, either own an Eligible Property, or have a property interest in an Eligible
Property that obligates them to maintain the roofing system on such Eligible Property.
Excluded from the Settlement Class are: Beazer, any entity in which Beazer has a
controlling interest or which has a controlling interest in Beazer as of the Settlement
Date, and Beazer's legal representatives, assigns and successors.
2.57 Settlement Class Member means a member of the Settlement Class.
2.58 Settlement Compensation means Roof Replacement Compensation,
Interior Protection Compensation and/or Deck Remediation Compensation, but
expressly excluding Design Reimbursement Compensation.
2.59 Settlement Date means the date on which all of the following have
occurred: (a) the entry of the Final Order and Partial Judgment without material
modification, and (b) finality of the Final Order and Partial Judgment by virtue of that
order having become final and non-appealable through (i) the expiration of all allowable
appeal periods without an appeal having been filed; (ii) final affirmance of the Final
Order and Partial Judgment on appeal or final dismissal or denial of all such appeals; or
(iii) final disposition of any proceedings, including any appeals, resulting from any
appeal from the entry of the Final Order and Partial Judgment.
2.60 Settlement Fund means the money transferred, paid, remitted or
deposited by Beazer for use in providing Settlement Compensation to Eligible
Claimants pursuant to this Agreement.
2.61 Shingle Roofing System means a roofing system in which the top
surface of the roof is covered with individually applied pieces of material (e.g., asphalt
saturated fiberglass or organic mat, ceramic or terra cotta tiles, slates, wood shakes,
cementaceous compounds) designed to shed water off a positively sloped roof.
2.62 Single-Ply Roofing System means a roofing system in which the
waterproofing membrane consists of a single ply of water proofing material (e.g., EPDM
rubber, HDPE, PVC, or a single ply of SBS or APP) either (i) fully adhered or
mechanically attached to the membrane substrate or (ii) held in place over the
membrane substrate by stone ballast.
2.63 Square means 100 square feet of roof deck area.
2.64 Third Party Inspector means the qualified firm(s) or person(s) retained
from time to time by the Claims Office, with the consent of Plaintiffs' Lead Class
Counsel (which shall not unreasonably be withheld), to inspect Eligible Properties in
accordance with p. 9 et seq., and such other tasks as may be designated by the Claims
Office.
2.65 Useful Life means the number of months a particular type of roofing
system can reasonably be expected to properly perform before needing to be replaced.
The Parties have agreed upon a Useful Life Schedule, attached hereto as Exhibit A.
Pursuant to the Useful Life Schedule, a presumption is created under the Settlement
that the Standard Useful Life will be applicable to a Claimant's Eligible Property. When
Pro-Rating the Roof Removal Compensation, the Claims Office, however, will have
discretion in appropriate instances to use a Useful Life greater than, or less than, the
Standard Useful Life, but in no event less than the Minimum Useful Life or greater than
the Maximum Useful Life. If, in the event of an Appeal, a Claimant challenges the
Claims Office's determination of the appropriate Useful Life for its Eligible Property, the
Claims Office shall bear the burden of proof, under a preponderance of the evidence
standard, that the appropriate Useful Life is less than the Standard Useful Life, and the
Claimant shall bear the burden of proof, under a preponderance of the evidence
standard, that the appropriate Useful Life should be greater than the Standard Useful
Life. Factors to be considered by the Claims Office, or by the Independent Claims
Adjudicator in the event of an appeal, include, but are not limited to, the overall
maintenance of the roof, the design of the roof, and other applicable product failure
problems within the roof, weathering, and roof installation. The Claims Office shall not
use the presence of Beazer PFRI to reduce the applicable Useful Life, and the
Independent Claims Adjudicator shall be subject to all the other requirements and
limitations set forth in p. 11 et seq. with respect to any such appeal.
EXHIBIT "A"

This Exhibit "A" is referred to, and incorporated by reference in paragraphs 2.65
and 10.2, among others, of the Stipulation of Classwide Settlement between the
Plaintiffs and Beazer. Depreciation on the types of roofs identified herein shall be
based upon the following schedule:

Roof Type Standard Maximum Minimum
Useful Life Useful Life Useful Life

shingled roof 216 months 240 months 192 months
ballasted EPDM Roof 168 months 192 months 144 months
mechanically attached EPDM 168 months 204 months 144 months
fully adhered EPDM 180 months 216 months 144 months
3 ply BUR 180 months 216 months 156 months
4 ply BUR 216 months 240 months 192 months
5 ply BUR 240 months 264 months 216 months





The Claims Office shall have the right and opportunity, based upon its
inspection of the roof and other factors, to make an offer to the Eligible
Claimant within the ranges identified above for each type of roof. Factors
to be considered by the Claims Office in arriving at that offer include, but
are not limited to, the overall maintenance of the roof, the design of the
roof, product failure problems within the roof, weathering, and roof
installation.

183786.1(HS-FP)