Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -------------------------------X
IN RE :
:
WHX CORPORATION : CHAPTER 11 CASE NO.
: 05-11444(ALG)
:
DEBTOR. :
- -------------------------------X
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FIRST AMENDED CHAPTER 11 PLAN OF REORGANIZATION
OF WHX CORPORATION
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JONES DAY
222 East 41st Street
New York, New York 10017
(212) 326-3939
Richard H. Engman, Esq. (RE - 7861)
Veerle Roovers, Esq. (VR - 5777)
Counsel to WHX Corporation
Dated: June 8, 2005
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INTERPRETATION...................................1
Section 1.1 Definitions...................................................1
Section 1.2 Interpretation................................................5
Section 1.3 Application of Definitions and Rules of Construction
Contained in the Bankruptcy Code..............................5
Section 1.4 Other Terms...................................................6
Section 1.5 Plan Schedules and Plan Documents.............................6
ARTICLE II CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS......6
Section 2.1 No Classification of Administrative Claims and
Priority Tax Claims...........................................6
Section 2.2 Treatment of Administrative Claims............................6
Section 2.3 Treatment of Priority Tax Claims..............................7
Section 2.4 Classification and Treatment of Claims and Equity Interests...7
Section 2.5 Classification Rules..........................................8
Section 2.6 Impairment Controversies......................................8
Section 2.7 Confirmation Without Acceptance by All Impaired Classes.......8
Section 2.8 Treatment of Executory Contracts and Unexpired Leases.........8
ARTICLE III CONFIRMATION OF THE PLAN.........................................9
Section 3.1 Conditions Precedent to Confirmation of the Plan..............9
Section 3.2 Conditions Precedent to the Occurrence of the
Effective Date...............................................10
Section 3.3 Waiver of Conditions.........................................10
Section 3.4 Effect of Failure of Conditions..............................10
ARTICLE IV EFFECT OF CONFIRMATION AND EFFECTIVENESS OF THE PLAN............10
Section 4.1 Debtor's Authority...........................................10
Section 4.2 Vesting of Assets............................................10
Section 4.3 Discharge of the Debtor......................................11
Section 4.4 Injunction...................................................11
Section 4.5 Exculpation..................................................11
Section 4.6 Corporate Existence..........................................12
Section 4.7 Governance...................................................12
Section 4.8 The New Charter; New Bylaws..................................12
Section 4.9 Employment, Retirement and Other Related Agreements
and Benefits.................................................12
Section 4.10 Effectuating Plan Documents..................................12
Section 4.11 Transactions on the Effective Date...........................13
Section 4.12 Dissolution of the Committees................................13
Section 4.13 Cancellation of Instruments and Agreements...................13
Section 4.14 Treatment of Affiliate Claims................................13
Section 4.15 Release of Indenture Trustee.................................13
Section 4.16 Release by Debtor............................................13
ARTICLE V PROVISIONS GOVERNING DISTRIBUTIONS AND FOR
RESOLVING AND TREATING CONTESTED CLAIMS.........................14
Section 5.1 Powers and Duties of the Disbursing Agent....................14
Section 5.2 Disbursing Agent.............................................14
Section 5.3 Means of Cash Payment........................................14
Section 5.4 Delivery of Distributions....................................14
Section 5.5 Fractional Shares............................................14
Section 5.6 Surrender of Notes, Instruments, and Securities..............15
Section 5.7 Expenses Incurred On or After the Effective Date and
Claims of the Disbursing Agent...............................15
Section 5.8 Time Bar to Cash Payments....................................15
Section 5.9 Exculpation of the Disbursing Agent..........................15
Section 5.10 No Distributions Pending Allowance...........................16
Section 5.11 Objection Deadline...........................................16
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Section 5.12 Prosecution of Objections....................................16
Section 5.13 Estimation of Claims.........................................16
Section 5.14 Indenture Trustee as Claim Holder............................16
Section 5.15 Distributions to Claim Holders...............................16
ARTICLE VI RETENTION OF JURISDICTION.......................................16
Section 6.1 Scope of Jurisdiction........................................16
ARTICLE VII MISCELLANEOUS PROVISIONS........................................17
Section 7.1 Payment of Statutory Fees....................................17
Section 7.2 No Interest or Attorneys' Fees...............................17
Section 7.3 Modifications to the Plan....................................18
Section 7.4 Revocation of Plan...........................................18
Section 7.5 Exemption From Transfer Taxes................................18
Section 7.6 Setoff Rights................................................18
Section 7.7 Compliance with Tax Requirements.............................18
Section 7.8 Compliance With All Applicable Laws..........................18
Section 7.9 Binding Effect...............................................19
Section 7.10 Notices......................................................19
Section 7.11 Governing Law................................................19
Section 7.12 Severability.................................................19
Section 7.13 Section 1125(e) of the Bankruptcy Code.......................19
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WHX Corporation, a Delaware corporation ("WHX"), as debtor and
debtor-in-possession (the "DEBTOR") proposes the following plan of
reorganization pursuant to Section 1121(a) of the Bankruptcy Code:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS.
The capitalized terms used herein shall have the respective meanings set
forth below:
(1) "Administrative Claim" means a Claim against the Debtor or its Estate
arising on or after the Petition Date and prior to the Effective Date for a
cost or expense of administration in the Chapter 11 Case, that is entitled
to priority or superpriority under Sections 503(b), 507(a)(1), or 507(b) of
the Bankruptcy Code including, without limitation, the Indenture Trustee
Fees.
(2) "Affiliate" means each direct and indirect subsidiary of WHX.
(3) "Allowed," when used
(a) with respect to any Claim other than an Administrative Claim means
any Claim that is not a Disallowed Claim and (i) to the extent it is
not a Contested Claim as of the Effective Date; (ii) to the extent it
may be set forth pursuant to any stipulation or agreement that has
been approved by Final Order; (iii) to the extent it is a Contested
Claim as of the Effective Date, proof of which was filed timely with
the Bankruptcy Court, and (A) as to which no objection was filed by
the Objection Deadline, or (B) as to which an objection was filed by
the Objection Deadline, to the extent allowed by a Final Order; or
(iv) which otherwise becomes an Allowed Claim as provided herein;
(b) with respect to an Administrative Claim, means an Administrative
Claim that has become "Allowed" pursuant to the procedures set forth
herein; and
(c) with respect to an Equity Interest means an Equity Interest
registered in the stock register maintained by or on behalf of the
Debtor as of the Voting Record Date and as to which no objection to
the allowance thereof, or action to equitably subordinate or otherwise
limit recovery with respect thereto, has been interposed within the
applicable period of limitation fixed by the Plan, the Bankruptcy
Code, the Bankruptcy Rules or a Final Order, or as to which an
objection has been interposed and such Equity Interest has been
allowed in whole or in part by a Final Order.
(4) "Approval Order" means the order, entered by the Bankruptcy Court on
June 8, 2005, approving the Disclosure Statement and, among other things,
authorizing the Debtor to solicit acceptances of the Plan.
(5) "Asset" means all of the Debtor's property, rights, and interests that
are property of the Debtor's Estate pursuant to Section 541 of the
Bankruptcy Code.
(6) "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended,
and codified at title 11 of the United States Code and as applicable to the
Chapter 11 Case.
(7) "Bankruptcy Court" means the United States District Court for the
Southern District of New York having jurisdiction over the Chapter 11 Case
and, to the extent any reference is made pursuant to Section 157 of title
28 of the United States Code, the Bankruptcy Court unit of such District
Court, or any court having competent jurisdiction to hear appeals or
certiorari petitions therefrom, or any successor thereto that may be
established by an act of Congress or otherwise, and that has competent
jurisdiction over the Chapter 11 Case.
(8) "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as
prescribed by the United States Supreme Court pursuant to Section 2075 of
title 28 of the United States Code and as applicable to the Chapter 11
Case.
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(9) "Business Day" means any day except Saturday, Sunday, or a "legal
holiday" as such term is defined in Bankruptcy Rule 9006(a).
(10) "Cash" means legal tender of the United States of America.
(11) "Causes of Action" means all rights, claims, causes of action,
defenses, debts, demands, damages, obligations, and liabilities of any kind
or nature under contract, at law or in equity, known or unknown, contingent
or matured, liquidated or unliquidated, and all rights and remedies with
respect thereto, including, without limitation, causes of action arising
under chapter 5 of the Bankruptcy Code or similar state statutes.
(12) "Chapter 11 Case" means the Debtor's voluntary case under chapter 11
of the Bankruptcy Code.
(13) "Charging Lien" means any Lien or other priority in payment arising
prior to the Effective Date to which the Indenture Trustee is entitled,
pursuant to the Senior Notes Indenture, against distributions to be made to
holders of Senior Notes Claims for payment of any Indenture Trustee Fees.
(14) "Claim" has the meaning ascribed to such term at section 101(5) of the
Bankruptcy Code.
(15) "Collateral" means any Asset subject to a Lien.
(16) "Committees" means the Preferred Committee and the Creditors
Committee.
(17) "Common Equity Interest" means any share or other instrument
evidencing a common stock ownership interest in the Debtor, whether or not
transferable or denominated "stock" or similar security, and any options,
warrants, convertible security, or other rights to acquire such shares or
other instruments, or any legal, equitable, or contractual Claim arising
therefrom, including but not limited to Claims arising from the purchase or
sale of any such security or instrument, the rescission of a purchase or
sale of any such security or instrument, or for reimbursement or
contribution on account of such a Claim.
(18) "Confirmation Date" means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket with respect
to the Chapter 11 Case and all other conditions to confirmation of the Plan
set forth herein have been satisfied or waived.
(19) "Confirmation Hearing" means the hearing held by the Bankruptcy Court,
as it may be continued from time to time, to consider confirmation of the
Plan.
(20) "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan in form and substance acceptable to the Debtor.
(21) "Contested Claim," means a Claim (a) that is not listed in the
Schedules; or (b) that is listed in the Schedules, but was scheduled as (i)
disputed, contingent, or unliquidated (whether in whole or in part); or
(ii) undisputed, liquidated, and not contingent if a proof of claim has
been filed with the Bankruptcy Court (but only to the extent the proof of
claim is of a different nature than (i.e., secured, unsecured, priority,
administrative, etc.), or exceeds the amount of, the Claim listed in the
Schedules); PROVIDED, that a Claim that is Allowed by Final Order or
pursuant to the Plan shall not be a Contested Claim.
(22) "Creditors Committee" means the official committee of unsecured
creditors appointed in the Chapter 11 Case, as such committee may be
reconstituted from time to time.
(23) "Debtor" has the meaning set forth in the introductory paragraph of
the Plan.
(24) "Disallowed," when used with respect to a Claim or an Equity Interest,
means a Claim or Equity Interest that has been disallowed by a Final Order.
(25) "Disbursing Agent" means New WHX or another entity appointed by New
WHX to act as Disbursing Agent hereunder.
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(26) "Disclosure Statement" means the disclosure statement with respect to
the Plan, together with all exhibits and annexes thereto and any amendments
or modifications thereof, as approved by the Bankruptcy Court as containing
adequate information in accordance with Section 1125 of the Bankruptcy
Code.
(27) "Distribution Date" means, with respect to a particular Claim, the
later of the Effective Date or the date on which such Claim becomes an
Allowed Claim.
(28) "Effective Date" means the date upon which the transactions
contemplated herein are consummated, which shall be a Business Day selected
by the Debtor after the first Business Day (a) which is ten (10) days after
the Confirmation Date, (b) on which the Confirmation Order is not stayed,
and (ii) on which all conditions to the entry of the Confirmation Order and
the occurrence of the Effective Date have been satisfied or waived as
provided herein.
(29) "Entity" has the meaning ascribed to such term at section 101(15) of
the Bankruptcy Code.
(30) "Equity Interest" means any share or other instrument evidencing an
ownership interest in the Debtor, whether or not transferable or
denominated "stock," or similar security, and any options, warrants,
convertible security, or other rights to acquire such shares or other
instruments.
(31) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. ss.ss. 1301-1461.
(32) "Estate" means the estate of the Debtor created pursuant to Section
541 of the Bankruptcy Code.
(33) "Estate Causes of Action" means all Causes of Action of the Estate
against any Entity.
(34) "Fee Application" means an application or other request for
compensation or reimbursement of expenses incurred in connection with the
Chapter 11 Case of a Professional Person under Sections 328, 330, or 503 of
the Bankruptcy Code.
(35) "Fee Claim" means a Claim under Sections 328, 330, or 503 of the
Bankruptcy Code for compensation and reimbursement of expenses incurred in
connection with the Chapter 11 Case.
(36) "Final Order" means (a) an order or judgment of the Bankruptcy Court
as to which the time to appeal, petition for CERTIORARI, or other
proceedings for reargument or rehearing has expired and as to which no
appeal, petition for CERTIORARI, or other proceedings for reargument or
rehearing shall then be pending or, (b) in the event that an appeal,
petition for CERTIORARI, or motion for reargument or rehearing has been
sought, such order of the Bankruptcy Court shall have been affirmed by the
highest court to which such order was appealed or from which reargument or
rehearing was sought, or CERTIORARI has been denied, and the time to take
any further appeal, petition for CERTIORARI or other proceedings for
reargument or rehearing shall have expired; PROVIDED, HOWEVER, that no
order shall fail to be a Final Order solely because of the possibility that
a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure may be
filed with respect to such order.
(37) "Indemnitee" means an individual serving on and after the Petition
Date as an employee, officer or director of the Debtor.
(38) "Indenture Trustee" means Bank One, N.A., as trustee pursuant to the
Senior Notes Indenture.
(39) "Indenture Trustee Fees" means the reasonable compensation, fees,
expenses, disbursements, advances and indemnity claims, including, without
limitation, attorneys' and agents' fees, expenses, and disbursements,
incurred by the Indenture Trustee, whether prior to or after the Petition
Date and whether prior to or after the consummation of the Plan and the
occurrence of the Effective Date.
(40) "Lien" has the meaning ascribed to such term at section 101(37) of the
Bankruptcy Code.
(41) "New Bylaws" means the Bylaws of New WHX substantially in the form
filed as a Plan Document.
(42) "New Charter" means the Certificate of Incorporation for New WHX
substantially in the form filed as a Plan Document.
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(43) "New WHX" means reorganized WHX upon the occurrence of the Effective
Date.
(44) "New WHX Common Stock" means 10,000,000 shares of fully paid and
non-assessable common stock of New WHX, par value $0.001 per share, to be
issued under and pursuant to the Plan.
(45) "Objection Deadline" means the deadline for filing objections to
Claims as set forth in Section 5.11 of the Plan.
(46) "Other Unsecured Claim" means any Unsecured Claim that is not a Senior
Notes Claim.
(47) "Unsecured Claim" means any Claim that is not an Administrative Claim,
a Priority Non-Tax Claim, a Priority Tax Claim, a Secured Claim, or a
Subordinated Claim.
(48) "PBGC" means the Pension Benefit Guaranty Corporation, a wholly-owned
United States government corporation and an agency of the United States
that administers the defined benefit pension plan termination insurance
program under Title IV of ERISA.
(49) "Person" has the meaning ascribed to such term at section 101(41) of
the Bankruptcy Code.
(50) "Petition Date" means March 7, 2005, the date on which the Chapter 11
Case was commenced.
(51) "Plan" means this chapter 11 plan, the Plan Schedules, the Plan
Documents, and all supplements, appendices, and schedules thereto, either
in their present form or as any of them may be amended, restated, or
modified from time to time, as permitted herein.
(52) "Plan Documents" means the documents that aid in effectuating the Plan
specifically identified herein, including but not limited to, the New
Charter, the New Bylaws, the Warrant specimen, and the Plan Schedules, each
in the form filed with the Bankruptcy Court pursuant to Section 4.10 of the
Plan.
(53) "Plan Schedules" means the schedules to the Plan in the form filed as
a Plan Document.
(54) "Preferred Committee" means the official committee of preferred
shareholders appointed in the Chapter 11 Case, as such committee may be
reconstituted from time to time.
(55) "Preferred Equity Interest" means any Series A Interest or Series B
Interest.
(56) "Priority Non-Tax Claim" means any Claim accorded priority in right of
payment under Section 507(a)(3), (4), (5), (6), or (7) of the Bankruptcy
Code.
(57) "Priority Tax Claim" means a Claim of a governmental unit of the kind
specified in Section 507(a)(8) of the Bankruptcy Code.
(58) "Professional Person" means a Person retained or to be compensated
pursuant to Sections 327, 328, 330, 503(b), or 1103 of the Bankruptcy Code.
(59) "Proponent" means the Debtor.
(60) "Pro Rata Share" means the ratio (expressed as a percentage) that the
amount or number (as applicable) of an Allowed Claim or Allowed Equity
Interest bears to the aggregate amount or number (as applicable) of all
similarly classified Claims or Equity Interests (including those that are
Contested, but not including those that are Disallowed).
(61) "Schedules" means the Debtor's schedules of assets and liabilities and
the statements of financial affairs on file with the Bankruptcy Court
pursuant to Section 521 of the Bankruptcy Code and Bankruptcy Rule 1007, as
such schedules and statements have been or may be supplemented or amended
from time to time.
(62) "Secured Claim" means (a) a Claim secured by a Lien on any Asset,
which lien is valid, perfected, and enforceable under applicable law and is
not subject to avoidance under the Bankruptcy Code or other applicable
non-bankruptcy law, but only to the extent of the value of the Collateral
that secures payment of the Claim; (b) a Claim that is subject to a valid
right of setoff under Section 553 of the Bankruptcy Code; and (c) a Claim
Allowed under the Plan as a Secured Claim.
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(63) "Senior Note" means any note issued by WHX pursuant to the Senior
Notes Indenture.
(64) "Senior Notes Claim" means any Claim that arises under or in
connection with a Senior Note or the Senior Notes Indenture.
(65) "Senior Notes Indenture" means (a) that certain indenture pertaining
to those certain 10 1/2 % senior notes due 2005, issued in the aggregate
principal amount of $350,000,000, dated as of April 7, 1998, and (b) that
certain first supplemental indenture dated as of October 6, 2000 to
indenture dated April 7, 1998 (each as subsequently amended, restated,
modified or otherwise supplemented), between WHX, as issuer and the
Indenture Trustee.
(66) "Series A Interest" means any share or other instrument evidencing a
Series A preferred stock ownership interest in the Debtor, whether or not
transferable or denominated "stock" or similar security, and any options,
warrants, convertible security, or other rights to acquire such shares or
other instruments, or any legal, equitable, or contractual Claim arising
therefrom, including but not limited to Claims arising from the purchase or
sale of any such security or instrument, the rescission of a purchase or
sale of any such security or instrument, or for reimbursement or
contribution on account of such a Claim.
(67) "Series B Interest" means any share or other instrument evidencing a
Series B preferred stock ownership interest in the Debtor, whether or not
transferable or denominated "stock" or similar security, and any options,
warrants, convertible security, or other rights to acquire such shares or
other instruments, or any legal, equitable, or contractual Claim arising
therefrom, including but not limited to Claims arising from the purchase or
sale of any such security or instrument, the rescission of a purchase or
sale of any such security or instrument, or for reimbursement or
contribution on account of such a Claim.
(68) "Warrants" means the warrants to be issued under and pursuant to the
Plan for the purchase of 752,688 shares of New WHX Common Stock (I.E., 7%
of the fully liquidated New WHX Common Stock on the Effective Date),
exercisable at $11.20 per share, expiring two years, six months, and thirty
days after the Effective Date, and containing such other terms and
conditions as described in the specimen filed as Plan Document.
(69) "WHX" has the meaning set forth in the introductory paragraph of the
Plan.
(70) "WHX Entities" means the Debtor and the Affiliates.
(71) "WHX Pension Plan" means the defined benefit pension plan maintained
and sponsored by the Debtor.
SECTION 1.2 INTERPRETATION.
Unless otherwise specified, all Section, article, and exhibit references in
the Plan are to the respective Section in, article of, or exhibit to, the Plan,
as the same may be amended, waived, or modified from time to time. The headings
in the Plan are for convenience of reference only and shall not limit or
otherwise affect the provisions of the Plan. Words denoting the singular number
shall include the plural number and vice versa, and words denoting one gender
shall include the other gender. In the event of an inconsistency between the
Plan and any other document or agreement, the terms and provisions of the Plan
shall govern and control. However, to the extent any term or provision of the
Plan is determined by the Bankruptcy Court to be ambiguous, the Disclosure
Statement may be referred to for purposes of interpreting such ambiguous term or
provision.
SECTION 1.3 APPLICATION OF DEFINITIONS AND RULES OF CONSTRUCTION CONTAINED IN
THE BANKRUPTCY CODE.
A term used herein that is not defined herein shall have the meaning
ascribed to that term, if any, in the Bankruptcy Code and interpretive case law.
The rules of construction contained in Section 102 of the Bankruptcy Code shall
apply to the construction of the Plan.
SECTION 1.4 OTHER TERMS.
The words "herein," "hereof," "hereto," "hereunder," and others of similar
import refer to the Plan as a whole and not to any particular Section,
Subsection, or clause contained in the Plan.
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SECTION 1.5 PLAN SCHEDULES AND PLAN DOCUMENTS.
All Plan Schedules and Plan Documents are incorporated into the Plan by
this reference and are a part of the Plan as if set forth in full herein.
ARTICLE II
CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
SECTION 2.1 NO CLASSIFICATION OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX
CLAIMS.
As provided in Section 1123(a)(1) of the Bankruptcy Code, Administrative
Claims and Priority Tax Claims shall not be classified for purposes of voting or
receiving distributions under the Plan. All such Claims shall be treated
separately as unclassified Claims on the terms set forth herein.
SECTION 2.2 TREATMENT OF ADMINISTRATIVE CLAIMS.
(a) TIME FOR FILING ADMINISTRATIVE CLAIMS. Except with respect to
(i) a Fee Claim, (ii) a liability incurred and paid in the
ordinary course of business by the Debtor, or (iii) an
Administrative Claim that has been allowed on or before the
Effective Date, the holder of an Administrative Claim must file
with the Bankruptcy Court and serve notice of such Administrative
Claim upon counsel to the Debtor within fifteen (15) days after
the Confirmation Date. Such notice must include at a minimum (A)
the name of the holder of the Administrative Claim, (B) the
amount of the Administrative Claim, and (C) the basis of the
Administrative Claim. Failure to file this notice timely and
properly shall result in the Administrative Claim being forever
barred and discharged.
(b) TIME FOR FILING FEE CLAIMS. Each Professional Person or other
entity that holds or asserts an Administrative Claim that is a
Fee Claim incurred before the Effective Date shall be required to
file with the Bankruptcy Court, and serve on all parties required
to receive notice, a Fee Application within forty-five (45) days
after the Effective Date. The failure to file timely the Fee
Application shall result in the Fee Claim being forever barred
and discharged.
(c) ALLOWANCE OF ADMINISTRATIVE CLAIMS. An Administrative Claim
with respect to which notice has been properly filed pursuant to
Section 2.2(a) herein shall become an Allowed Administrative
Claim if no objection is filed within forty-five (45) days after
the Confirmation Date specified in Section 2.2(a) herein, or such
later date as may be approved by the Bankruptcy Court on motion
of the Debtor. If an objection is filed within such period, the
Administrative Claim shall become an Allowed Administrative Claim
only to the extent allowed by Final Order or as agreed to by the
Debtor. An Administrative Claim that is a Fee Claim, and with
respect to which a Fee Application has been properly filed
pursuant to Section 2.2(b) herein, shall become an Allowed
Administrative Claim only to the extent allowed by Final Order.
An Administrative Claim as to which no notice need be filed as
set forth in Section 2.2(a)(ii) or (iii) shall be an Allowed
Administrative Claim on the Effective Date.
(d) PAYMENT OF ALLOWED ADMINISTRATIVE CLAIMS. Each holder of an
Allowed Administrative Claim shall receive (i) an amount equal to
such holder's Allowed Claim in one Cash payment on the
Distribution Date, or (ii) such other treatment as may be agreed
upon in writing by such holder and the Debtor; PROVIDED, HOWEVER,
that an Administrative Claim representing a liability incurred in
the ordinary course of business of the Debtor may be paid at the
Debtor's election in the ordinary course of business by such
Debtor. All Allowed Administrative Claims shall be paid by, and
shall be the sole responsibility of, the Debtor.
(e) PAYMENT OF INDENTURE TRUSTEE FEES. All Allowed Indenture
Trustee Fees shall be paid in Cash on the Effective Date by the
Debtor as Administrative Expense Claims, without need for
application to, or approval of, any court. Each Indenture
Trustee's Charging Lien will be discharged solely upon payment in
full of the Indenture Trustee Fees. Nothing herein shall be
deemed to impair, waive or discharge the Charging Lien for any
fees and expenses not paid by the Debtor. To the extent that the
Indenture Trustee provides services related to distributions
pursuant to the Plan, the Indenture Trustee will receive from the
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Debtor, without further court approval, compensation for such
services and reimbursement of expenses, including but not limited
to, attorneys fees and expenses, incurred in connection with such
services. These payments will be made within 30 days of the
Indenture Trustee's submission of its invoice to the Debtor, upon
completion of such services related to distributions.
SECTION 2.3 TREATMENT OF PRIORITY TAX CLAIMS.
Each holder of an Allowed Priority Tax Claim shall receive, in full
satisfaction of such holder's Allowed Priority Tax Claim, (i) the amount of such
holder's Allowed Priority Tax Claim, with simple interest per annum at the rate
publicly quoted on the Confirmation Date by THE WALL STREET JOURNAL as the "base
rate on corporate loans posted by at least 75% of the nation's 30 largest banks"
or such other rate as the Bankruptcy Court may determine at the Confirmation
Hearing is appropriate, in equal annual Cash payments, beginning on the
Distribution Date and continuing on each anniversary of the Distribution Date,
until the sixth anniversary of the date of assessment of such Claim (PROVIDED
that, New WHX may prepay the balance of any such Allowed Priority Tax Claim at
any time without penalty); (ii) a lesser amount in one Cash payment as may be
agreed upon in writing by such holder and the Debtor, or (iii) such other
treatment as may be agreed upon in writing by such holder and the Debtor. The
Confirmation Order shall constitute and provide for an injunction by the
Bankruptcy Court as of the Effective Date against any holder of a Priority Tax
Claim from commencing or continuing any action or proceeding against any
responsible person or officer or director of the Debtor or New WHX that
otherwise would be liable to such holder for payment of a Priority Tax Claim so
long as New WHX is not in default of its obligations with respect to such Claim
under this Section.
SECTION 2.4 CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS.
(a) The following table designates the classes of Claims against
and Equity Interests in the Debtor and specifies which of those
classes are (i) impaired or unimpaired by the Plan and (ii)
entitled to vote to accept or reject the Plan in accordance with
Section 1126 of the Bankruptcy Code.
Class Designation Impairment Entitled to Vote
1 Priority Non-Tax Claims Unimpaired No (deemed to accept)
2 Secured Claims Unimpaired No (deemed to accept)
3 Senior Notes Claims Impaired Yes
4 Other Unsecured Claims Impaired Yes
5 Series A Interests Impaired Yes
6 Series B Interests Impaired Yes
7 Common Equity Interests Impaired No (deemed to reject)
(b) For purposes of organization, voting, distributions, and all
confirmation matters, except as otherwise provided herein, all
Claims and Equity Interests shall be treated as follows:
(i) CLASS 1: PRIORITY NON-TAX CLAIMS. Each holder of an Allowed
Priority Non-Tax Claim shall be unimpaired under the Plan and, pursuant to
Section 1124 of the Bankruptcy Code, all of the legal, equitable and
contractual rights of each holder of an Allowed Priority Non-Tax Claim in
respect of such Claim shall be fully reinstated and retained as though the
Chapter 11 Case had not been filed. Holders of Allowed Class 1 Claims shall
not be entitled to vote on the Plan and, instead, shall be deemed to have
accepted the Plan.
(ii) CLASS 2: SECURED CLAIMS. Except to the extent that a holder
of an Allowed Secured Claim agrees to a different treatment, each holder of
an Allowed Secured Claim shall receive, on the Distribution Date, in full
satisfaction of such Allowed Secured Claim, at the sole option of New WHX,
either (A) Cash in an amount equal to one hundred percent (100%) of the
amount of such Allowed Secured Claim, (B) the proceeds of the sale or
disposition of the Collateral securing such Allowed Secured Claim to the
extent of the value of the holder's secured interest in such Collateral,
(C) the Collateral securing such Allowed Secured Claim, or (D) such other
distribution as necessary to satisfy the requirements of Section 1124 of
the Bankruptcy Code. In the event New WHX treats a Claim under clause (A)
or (B) of this Subsection, the Liens securing such Secured Claim shall be
deemed released. Class 2 Claims are unimpaired by the Plan and holders of
Allowed Class 2 Claims shall not be entitled to vote on the Plan, and
instead, shall be deemed to have accepted the Plan.
(iii) CLASS 3: SENIOR NOTES CLAIMS. On the Distribution Date, in
full and complete satisfaction of all Senior Notes Claims, each holder of
an Allowed Senior Note Claim shall receive such holder's Pro Rata Share of
9,200,000 shares of New WHX Common Stock. Class 3 Claims are impaired by
the Plan and holders of Allowed Class 3 Claims shall be entitled to vote to
accept or reject the Plan.
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(iv) CLASS 4: OTHER UNSECURED CLAIMS. On the Distribution Date,
in full and complete satisfaction of all Other Unsecured Claims, each
holder of an Allowed Other Unsecured Claim shall receive Cash in the amount
of its Allowed Other Unsecured Claim. Class 4 Claims are impaired by the
Plan and holders of Allowed Class 4 Claims shall be entitled to vote to
accept or reject the Plan.
(v) CLASS 5: SERIES A INTERESTS. On the Effective Date, each and
every Series A Interest shall be cancelled and discharged. On the
Distribution Date, in full and complete satisfaction of all Series A
Interests, each holder of an Allowed Series A Interest shall receive such
holder's Pro Rata Share of (a) 366,322 shares of New WHX Common Stock and
(b) 344,658 Warrants. Class 5 Preferred Equity Interests are impaired by
the Plan and holders of Allowed Class 5 Preferred Equity Interests shall be
entitled to vote to accept or reject the Plan.
(vi) CLASS 6: SERIES B INTERESTS. On the Effective Date, each and
every Series B Interest shall be cancelled and discharged. On the
Distribution Date, in full and complete satisfaction of all Series B
Interests, each holder of an Allowed Series B Interest shall receive such
holder's Pro Rata Share of (a) 433,678 shares of New WHX Common Stock and
(b) 408,030 Warrants. Class 6 Preferred Equity Interests are impaired by
the Plan and holders of Allowed Class 6 Preferred Equity Interests shall be
entitled to vote to accept or reject the Plan.
(vii) CLASS 7: COMMON EQUITY INTERESTS. On the Effective Date,
each and every Common Equity Interest in WHX shall be cancelled and
discharged and the holders thereof shall receive no distribution under the
Plan on account of such Class 7 Common Equity Interests [or such DE MINIMIS
distribution as may facilitate the closing of broker dealer positions].
Class 7 Common Equity Interests are impaired by the Plan, however, holders
of Class 7 Common Equity Interests shall not be entitled to vote on the
Plan and, instead, shall be deemed to have rejected the Plan.
SECTION 2.5 CLASSIFICATION RULES.
A Claim is in a particular class only to the extent that the Claim
qualifies within the description of Claims of that class, and such Claim is in a
different class to the extent that the remainder of the Claim qualifies within
the description of a different class. Pursuant to Section 1123(a)(4) of the
Bankruptcy Code, all Allowed Claims of a particular class shall receive the same
treatment unless the holder of a particular Allowed Claim agrees to a less
favorable treatment for such Allowed Claim, and all Allowed Equity Interests of
a particular class shall receive the same treatment unless the holder of a
particular Allowed Equity Interest agrees to a less favorable treatment for such
Allowed Equity Interest. The Plan shall give effect to subordination agreements
which are enforceable under applicable nonbankruptcy law, pursuant to Section
510(a) of the Bankruptcy Code, except to the extent the beneficiary or
beneficiaries thereof agree to less favorable treatment. This Plan shall also
give effect to the subordination rules of Sections 510(b) and (c) of the
Bankruptcy Code.
SECTION 2.6 IMPAIRMENT CONTROVERSIES.
If a controversy arises as to whether any Claim or Equity Interest, or any
class of Claims or class of Equity Interests, is impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy.
SECTION 2.7 CONFIRMATION WITHOUT ACCEPTANCE BY ALL IMPAIRED CLASSES.
Class 7 is a Class of Equity Interests that is deemed to have rejected the
Plan. Notwithstanding such rejection (or the rejection by one or more other
impaired classes under the Plan), the Debtor intends to seek confirmation of the
Plan in accordance with Section 1129(b) of the Bankruptcy Code.
SECTION 2.8 TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
(a) ASSUMPTIONS IF NOT REJECTED. The Plan constitutes a motion
pursuant to Section 365(a) of the Bankruptcy Code by WHX to
assume and assign to New WHX, each and every executory contract
and unexpired lease of the Debtor that has not been rejected or
that is not being rejected, either pursuant to the Plan or by
separate motion. The Confirmation Order shall constitute the
Bankruptcy Court's approval of such assumptions and assignments
pursuant to Section 365(a) of the Bankruptcy Code and findings by
the Bankruptcy Court that the requirements of Section 365(b) of
the Bankruptcy Code have been satisfied with respect to each
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assumed and assigned contract and lease, and that each such
assumption and assignment is in the best interests of the Debtor
and its Estate.
(b) REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Pursuant to Section 365(a) of the Bankruptcy Code, the Plan
constitutes a motion to reject, upon the occurrence of the
Effective Date, each and every executory contract and unexpired
lease (i) that is listed in the Plan Schedules as being rejected
pursuant to the Plan. The Confirmation Order shall constitute the
Bankruptcy Court's approval of such rejections pursuant to
Section 365(a) of the Bankruptcy Code and findings by the
Bankruptcy Court that the requirements of Section 365(a) of the
Bankruptcy Code have been satisfied with respect to each rejected
executory contract or lease, and that each such rejection is in
the best interests of the Debtor and its Estate.
(c) INDEMNIFICATION OBLIGATIONS. The obligations of the Debtor to
indemnify, defend, advance litigation expenses, reimburse, or
limit the liability of any Indemnitee by reason of such person's
service as an employee, officer, or director of the Debtor or as
may be otherwise provided in the Debtor's constituent documents,
in a written agreement with the Debtor, or in applicable law,
each as applicable, shall be treated as executory contracts that
are being assumed and assigned to New WHX pursuant to the Plan
and Section 365(a) of the Bankruptcy Code. Accordingly, such
obligations (each an "Indemnified Obligation") shall be
unimpaired by the Plan irrespective of whether such
indemnification is owed with respect to an act or event occurring
before or after the Petition Date.
(d) CURE PAYMENTS. Any Claim for amounts owed pursuant to Section
365(b)(1) of the Bankruptcy Code or as a consequence of the
Debtor's assumption or assignment of an executory contract or
lease (excluding claims arising from the assumptions of
indemnification obligations pursuant to Section 2.8(c) herein)
must be timely filed and served as provided in Section 2.2(a) of
the Plan. Any Claim for amounts owed pursuant to Section
365(b)(1) of the Bankruptcy Code as a consequence of the Debtor's
assumption or assignment of an executory contract or lease
(excluding claims arising from the assumptions of indemnification
obligations pursuant to Section 2.8(c) herein) that is not filed
and served within such time will be forever barred from assertion
and shall not be enforceable against New WHX or its assets, nor
against the Debtor, its Estate, or its Assets. Unless otherwise
ordered by the Bankruptcy Court, all such Claims for amounts owed
pursuant to Section 365(b)(1) of the Bankruptcy Code as a
consequence of the Debtor's assumption or assignment of an
executory contract or lease that are timely filed as provided
herein shall be treated as Administrative Claims.
(e) CLAIMS ARISING FROM REJECTION. A Claim arising from the
rejection of an executory contract or unexpired lease must be
filed with the Bankruptcy Court and served on the Debtor (i) in
the case of an order approving such rejection entered prior to
the Confirmation Date, in accordance with the such order but in
no case more than thirty (30) days after the Confirmation Date,
(ii) in the case of an executory contract or unexpired lease that
is rejected hereunder, no later than thirty (30) days after the
Confirmation Date, or (iii) in the case of an order approving
such rejection entered after the Confirmation Date, in accordance
with such order. Any Claim arising from the rejection of an
executory contract or unexpired lease for which a proof of claim
is not filed and served within such time will be forever barred
from assertion and shall not be enforceable against the Debtor,
its Estate or its Assets. Unless otherwise ordered by the
Bankruptcy Court, all such Claims that are timely filed as
provided herein shall be treated as Other Unsecured Claims under
the Plan.
ARTICLE III
CONFIRMATION OF THE PLAN
SECTION 3.1 CONDITIONS PRECEDENT TO CONFIRMATION OF THE PLAN.
It is a condition to confirmation of the Plan that the Clerk of the
Bankruptcy Court shall have entered the Confirmation Order which, among other
things, shall
(a) authorize and approve in all respects the Plan and all
transactions contemplated thereby or in connection therewith,
including but not limited to (i) the New Charter and New Bylaws,
(ii) the issuance of the New WHX Common Stock, (iii) the
assumption and assignment of all executory contracts and
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unexpired leases that the Debtor may seek to assume and assign
under the Plan, and (iv) the rejection of all unexpired leases
and executory contracts that the Debtor may seek to reject under
the Plan; and
(b) be in form and substance and contain findings and conclusions
in support of confirmation of the Plan that are reasonably
satisfactory to the Debtor.
SECTION 3.2 CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE EFFECTIVE DATE.
It is a condition to the occurrence of the Effective Date that the
following shall have occurred on or before July 31, 2005:
(a) the Confirmation Order shall have been (i) entered by the
Bankruptcy Court, and (ii) become a Final Order;
(b) all necessary and material consents, authorizations, and
approvals, including, without limitation, consents and
authorizations under each Plan Document, shall have been given or
waived for the transfers and transactions described in the Plan,
including, without limitation, the transfers of property and the
payments described in the Plan, as applicable;
(c) the Debtor shall have purchased directors and officers
liability insurance for New WHX in form, substance and amount
that is reasonably acceptable to the initial board of directors
of New WHX.
(d) the Debtor shall have executed and delivered all documents
necessary to effectuate the issuance of the New WHX Common
Shares.
SECTION 3.3 WAIVER OF CONDITIONS.
(a) The Debtor expressly reserves the right to waive the
conditions to confirmation of the Plan described in Section 3.1.
(b) The Debtor may waive the conditions to the occurrence of the
Effective Date described in Section 3.2.
SECTION 3.4 EFFECT OF FAILURE OF CONDITIONS
In the event that one or more of the conditions specified in Section 3.2
hereof shall not have occurred or been waived pursuant to Section 3.3 on or
before July 31, 2005, (a) the Confirmation Order shall be vacated; (b) no
distributions under the Plan shall be made; (c) the Debtor and holders of Claims
and Equity Interests shall be restored to the STATUS QUO ANTE as of the day
immediately preceding the Confirmation Date as though the Confirmation Order had
never been entered; and (d) the Debtor's obligations with respect to Claims and
Equity Interests shall remain unchanged and nothing contained in this Plan shall
constitute or be deemed a waiver or release of any Claims, Equity Interests or
Causes of Action, or to prejudice in any manner the rights of the Debtor or any
other Entity in any further proceedings involving the Debtor.
ARTICLE IV
EFFECT OF CONFIRMATION AND EFFECTIVENESS OF THE PLAN
SECTION 4.1 DEBTOR'S AUTHORITY
Until the Effective Date, the Bankruptcy Court shall retain custody and
jurisdiction of the Debtor and its Assets and operations. On and after the
Effective Date, the Debtor and its Assets and operations shall be released from
the custody and jurisdiction of the Bankruptcy Court, except for those matters
as to which the Bankruptcy Court specifically retains jurisdiction under the
Plan or the Confirmation Order; PROVIDED, HOWEVER, that the Cash and New WHX
Common Stock to be distributed pursuant to the Plan will remain subject to the
jurisdiction and custody of the Bankruptcy Court until they are distributed or
become unclaimed property as provided herein.
SECTION 4.2 VESTING OF ASSETS
On the Effective Date, title to all Assets of the Debtor shall vest in New
WHX free and clear of all Liens, Causes of Action, Claims, encumbrances, Equity
Interests, and interests against, in, or on such Assets except as may be
provided in Section 2.4(b)(ii) of the Plan.
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SECTION 4.3 DISCHARGE OF THE DEBTOR
Except as may be provided herein or in the Confirmation Order, the rights
afforded in the Plan and the payments and distributions to be made hereunder
shall discharge all Causes of Action against the Debtor or its Estate that arose
before the Effective Date to the extent permitted by Section 1141 of the
Bankruptcy Code, including but not limited to all Causes of Action of the kind
specified in Section 502(g), 502(h), or 502(i) of the Bankruptcy Code, whether
or not (i) a proof of claim based upon such debt is filed or deemed filed under
Section 501 of the Bankruptcy Code; (ii) a Claim based upon such debt is allowed
under Section 502 of the Bankruptcy Code; or (iii) the holder of a Claim based
upon such debt has accepted the Plan. The Confirmation Order, except as provided
herein or therein, shall be a judicial determination of discharge of all Causes
of Action against the Debtor, such discharge shall void any judgment against the
Debtor at any time obtained to the extent it relates to a discharged Cause of
Action, and all Entities shall be precluded from asserting against the Debtor,
or any of the Assets, any Cause of Action based upon any act or omission,
transaction, or other activity of any kind or nature that occurred prior to the
Effective Date, whether or not such holder filed a proof of claim. As provided
in Section 524 of the Bankruptcy Code, entry of the Confirmation Order shall
operate as an injunction against the prosecution of any action against the
Debtor or its property to the extent it relates to a discharged Cause of Action.
SECTION 4.4 INJUNCTION
On the Effective Date, except as otherwise provided herein or in the
Confirmation Order, all Entities who have been, are, or may be holders of Claims
against or Equity Interests in the Debtor shall be enjoined from taking any of
the following actions against or affecting the Debtor, its Estate, or the Assets
and property with respect to such Claims or Equity Interests (other than actions
brought to enforce any rights or obligations under the Plan and appeals, if any,
from the Confirmation Order):
(a) commencing, conducting, or continuing in any manner, directly
or indirectly, any suit, action, or other proceeding of any kind
against the Debtor, its Estate, the Assets, any direct or
indirect successor in interest to the Debtor (including New WHX),
or any assets or property of a direct or indirect transferee or
successor of the Debtor (including, without limitation, all
suits, actions, and proceedings that are pending as of the
Effective Date, which must be withdrawn or dismissed with
prejudice).;
(b) enforcing, levying, attaching, collecting, or otherwise
recovering by any manner or means whether directly or indirectly
any judgment, award, decree or order against the Debtor, its
Estate, the Assets, any direct or indirect successor in interest
to the Debtor (including New WHX), or any assets or property of a
direct or indirect transferee or successor of the Debtor;
(c) except as contemplated by the Plan, creating, perfecting, or
otherwise enforcing in any manner, directly or indirectly, any
Lien against the Debtor, its Estate, the Assets, any direct or
indirect successor in interest to the Debtor (including New WHX),
or any assets or property of a direct or indirect transferee or
successor of the Debtor;
(d) except as provided herein, asserting any setoff, right of
subrogation, or recoupment of any kind, directly or indirectly
against any obligation due to the Debtor, its Estate, the Assets,
any direct or indirect successor in interest to the Debtor
(including New WHX), or any assets or property of a direct or
indirect transferee or successor of the Debtor; and
(e) proceeding in any manner in any place whatsoever that does
not conform to or comply with the provisions of the Plan or the
settlements set forth herein to the extent such settlements have
been approved by the Bankruptcy Court in connection with
confirmation of the Plan.
SECTION 4.5 EXCULPATION
From and after the Effective Date, neither the Debtor, its Affiliates, the
Committees, nor any of their respective directors, officers, employees, members,
attorneys, consultants, advisors, and agents (acting in such capacity), shall
have or incur any liability to any Entity for any act taken or omitted to be
taken in connection with the Debtor's restructuring, including the formulation,
preparation, dissemination, implementation, confirmation or approval of the
Plan, the Plan Documents, the Disclosure Statement, or any contract, instrument,
release or other agreement or document provided for, or contemplated in
connection with, the consummation of the transactions set forth in the Plan;
11
PROVIDED, HOWEVER, that the foregoing provisions shall not affect the liability
of any Person that otherwise would result from any such act or omission to the
extent that act or omission is determined in a Final Order to have constituted
gross negligence or willful misconduct. Any of the foregoing parties in all
respects shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan.
SECTION 4.6 CORPORATE EXISTENCE.
On the Effective Date: (a) New WHX shall be incorporated and shall exist
thereafter as a separate corporate entity, with all corporate powers in
accordance with the laws of the State of its incorporation, the New Charter, and
the New Bylaws, and (b) WHX shall cease to exist as the Debtor.
SECTION 4.7 GOVERNANCE.
(a) SELECTION OF DIRECTORS AND OFFICERS OF NEW WHX
(i) On the Effective Date, the initial board of directors
of New WHX shall be composed of the same individuals that composed the
Debtor's board of directors immediately preceding the Effective Date.
(ii) After the Effective Date, the terms and manner of
selection of directors of New WHX shall be as provided in the New Bylaws
and the New Charter.
(b) Upon the occurrence of the Effective Date and subject to the
provisions of the Plan, the management, control, and operation of
New WHX shall become the general responsibility of its board of
directors, as constituted herein and pursuant to the New Charter
and the New Bylaws.
SECTION 4.8 THE NEW CHARTER; NEW BYLAWS.
Upon the occurrence of the Effective Date, the New Charter and the New
Bylaws shall become effective.
SECTION 4.9 EMPLOYMENT, RETIREMENT AND OTHER RELATED AGREEMENTS AND BENEFITS
(a) As of the Effective Date, New WHX will have authority to: (i)
maintain, reinstate, amend, revise or terminate existing
employment, retirement, welfare, incentive, severance,
indemnification and other agreements with its active and retired
directors, officers and employees, subject to the terms and
conditions of any such agreement; and (ii) enter into new
employment, retirement, welfare, incentive, severance,
indemnification and other agreements for active and retired
employees.
(b) From and after the Effective Date, New WHX will be obligated
to pay retiree benefits (as defined in section 1114(a) of the
Bankruptcy Code), if any, in accordance with the terms of the
retiree benefit plans or other agreements governing the payment
of such benefits, subject to any rights to amend, modify or
terminate such benefits under the terms of the applicable retiree
benefits plan, other agreement or applicable nonbankruptcy law.
(c) Upon the Effective Date, New WHX shall assume and continue
the Pension Plan, satisfy the minimum funding standards pursuant
to 26 U.S.C. ss. 412 and 29 U.S.C. ss. 1082 and administer the
Pension Plan in accordance with its terms and the provisions of
ERISA and the Internal Revenue Code. Nothing in the Plan shall be
construed as discharging, releasing or relieving New WHX from any
liability imposed under any law or regulatory provision with
respect to the Pension Plan. Notwithstanding anything to the
contrary contained herein, neither the PBGC nor the administrator
of the Pension Plan shall be enjoined or otherwise precluded from
enforcing such liability with respect to the Pension Plan.
SECTION 4.10 EFFECTUATING PLAN DOCUMENTS.
On or before ten (10) Business Days prior to the deadline for parties to
vote to accept or reject the Plan, the Debtor shall file with the Bankruptcy
Court substantially final forms of the agreements, instruments, and other
documents that have been identified herein as Plan Documents, which agreements,
instruments, and documents shall implement and be governed by the Plan. Entry of
the Confirmation Order shall authorize the officers of the Debtor and New WHX to
execute, enter into, and deliver all documents, instruments, and agreements,
including, but not limited to, the Plan Documents, and to take all actions
12
necessary or appropriate to implement the Plan. To the extent the terms of any
of the Plan Documents conflict with the terms of the Plan, the Plan shall
control.
SECTION 4.11 TRANSACTIONS ON THE EFFECTIVE DATE.
On the Effective Date, unless otherwise provided by the Confirmation Order,
the following shall occur, shall be deemed to have occurred simultaneously, and
shall constitute substantial consummation of the Plan:
(a) WHX shall cease to exist as the Debtor;
(b) the New Charter and New Bylaws shall be authorized, approved
and effective in all respects without further action under
applicable law, regulation, order, or rule, including, without
express or implied limitation, any action by the stockholders or
directors of the Debtor or New WHX; except that the New Charter
shall be filed with the appropriate Secretary of State of the
State on the Effective Date or as soon thereafter as practicable;
(c) the Debtor's property deemed transferred to New WHX shall
automatically vest in New WHX without further action on the part
of the Debtor or any other Person;
(d) the New WHX Common Stock shall be authorized for issuance as
provided in the Plan; and
(e) all payments, deliveries, and other distributions to be made
pursuant to the Plan on or as soon as practicable after the
Effective Date shall be made or duly provided for.
SECTION 4.12 DISSOLUTION OF THE COMMITTEES
On the Effective Date, the Committees shall be dissolved and its members
shall be released of all of their duties, responsibilities, and obligations in
connection with the Chapter 11 Case.
SECTION 4.13 CANCELLATION OF INSTRUMENTS AND AGREEMENTS
Upon the occurrence of the Effective Date, except as otherwise provided
herein or in the Confirmation Order, all agreements, instruments, indentures,
notes, warrants, options, share certificates, or other documents (other than any
insurance policy of the Debtor) evidencing, giving rise to, or governing any
Claim or Equity Interest shall be deemed canceled and annulled without further
act or action under any applicable agreement, law, regulation, order, or rule,
and the obligations of the Debtor under such agreements, instruments,
indentures, notes, warrants, options, share certificates, or other documents
shall be discharged; PROVIDED, HOWEVER, that the Senior Notes Indenture shall
continue in effect solely for the purposes of (a) allowing the holders of the
Senior Notes Claims to receive their distributions hereunder, (b) allowing the
Indenture Trustee to make the distributions to be made on account of the Senior
Notes, and (c) permitting the Indenture Trustee to recover the Indenture Trustee
Fees in accordance with Section 2.2(e) of this Plan.
SECTION 4.14 TREATMENT OF AFFILIATE CLAIMS
Except as otherwise expressly provided herein, all rights, claims, Causes
of Action, obligations, and liabilities between and among the Debtor and its
Affiliates shall be reinstated and/or unimpaired on the Effective Date as if the
Chapter 11 Case had not been filed.
SECTION 4.15 RELEASE OF INDENTURE TRUSTEE
As of the Effective Date, each holder of a Senior Notes Claim to the
fullest extent permissible under applicable law, as such law may be extended or
interpreted subsequent to the Effective Date, shall be deemed to forever
release, waive, and discharge all Causes of Action that are based in whole or in
part on any act, omission, transaction, or other occurrence taking place on or
prior to the Effective Date in any way relating to the Indenture Trustee or its
agents, attorneys, and advisors that such entity has, had or may have, against
the Indenture Trustee or its agents, attorneys, and advisors. This release,
waiver and discharge will be in addition to the discharge of claims and
termination of interests provided herein and under the Confirmation Order and
the Bankruptcy Code.
13
SECTION 4.16 RELEASE BY DEBTOR
As of the Effective Date, the Debtor shall be deemed to have waived and
released its present and former directors, officers, employees, members,
attorneys, consultants, advisors, and agents (acting in such capacity) who were
directors, officers, employees, members, attorneys, consultants, advisors or
agents, respectively, at any time during the Chapter 11 Case from any and all
Causes of Action of the Debtor, including without limitation, Causes of Action
which the Debtor as the Debtor in possession otherwise has legal power to
assert, compromise, or settle in connection with the Chapter 11 Case, arising on
or prior to the Effective Date; PROVIDED, HOWEVER, that the foregoing provisions
shall not operate as a waiver or release of (i) contractual obligations owed by
such person to the Debtor or (ii) Causes of Action relating to such person's
actions or omissions determined in a Final Order to have constituted gross
negligence or willful misconduct.
In addition, notwithstanding anything in the Plan, the Debtor's
reorganization proceedings and the Plan shall not discharge, release, or relieve
any person from any fiduciary liability under ERISA with respect to the WHX
Pension Plan. Notwithstanding anything to the contrary contained herein, neither
the PBGC nor the administrator of the WHX Pension Plan shall be enjoined or
otherwise precluded from enforcing such liability with respect to the WHX
Pension Plan.
ARTICLE V
PROVISIONS GOVERNING DISTRIBUTIONS AND
FOR RESOLVING AND TREATING CONTESTED CLAIMS
SECTION 5.1 POWERS AND DUTIES OF THE DISBURSING AGENT.
Pursuant to the terms and provisions of the Plan, the Disbursing Agent
shall be empowered and directed to (a) take all steps and execute all
instruments and documents necessary to make distributions on account of Allowed
Claims and Allowed Preferred Equity Interests; (b) make distributions
contemplated by the Plan; (c) comply with the Plan and the Disbursing Agent's
obligations thereunder; (d) employ, retain, or replace professionals to
represent it with respect to its responsibilities; (e) object to Claims and
Equity Interests as specified herein, and prosecute such objections; (f) make
annual and other periodic reports regarding the status of distributions under
the Plan to the holders of Allowed Claims and Allowed Preferred Equity Interests
(such reports to be made available upon request to the holders of any Contested
Claim or Preferred Equity Interest); and (g) exercise such other powers as may
be vested in the Disbursing Agent pursuant to an order of the Bankruptcy Court
or the Plan.
SECTION 5.2 DISBURSING AGENT.
The Disbursing Agent shall make or direct all distributions required under
this Plan.
SECTION 5.3 MEANS OF CASH PAYMENT.
Subject to the provisions of the Plan, Cash payments made pursuant to the
Plan shall be by check drawn on a domestic bank, or by wire transfer from a
domestic bank, except that payments made to foreign creditors holding Allowed
Claims, to foreign governmental units holding Allowed Priority Tax Claims or to
foreign holders of Allowed Preferred Equity Interests shall be in such funds and
by such means as are customary or as may be necessary in a particular foreign
jurisdiction.
SECTION 5.4 DELIVERY OF DISTRIBUTIONS.
Subject to Bankruptcy Rule 9010, distributions and deliveries to holders of
Allowed Claims and Allowed Preferred Equity Interests shall be made at the
address of each such holder (a) as set forth on the proof of Claim or proof of
Equity Interest filed by such holder, or (b) at the last known address of such
holder if the Disbursing Agent has been notified of a change of address, except
as otherwise provided herein. If any holder's distribution is returned as
undeliverable, no further distributions to such holder shall be made unless and
until the Disbursing Agent receives notification of such holder's then-current
address, at which time any missed distributions shall be made to such holder
without interest. Amounts in respect of undeliverable distributions shall be
returned to the Disbursing Agent until such distributions are claimed. All
claims for undeliverable distributions shall be made on or before the first
anniversary of the Distribution Date. After such date, all unclaimed property
shall revert to New WHX.
14
SECTION 5.5 FRACTIONAL SHARES
No fractional shares of New WHX Common Stock shall be distributed under the
Plan. When any distribution pursuant to the Plan would otherwise result in the
issuance of a number of shares of New WHX Common Stock that is not a whole
number, the actual distribution of shares of New WHX Common Stock shall be
rounded as follows: (a) fractions of one-half (1/2) or greater shall be rounded
to the next higher whole number; and (b) fractions of less than one-half (1/2)
shall be rounded to the next lower whole number with no further payment or other
distribution therefor. However, no distribution pursuant to the Plan an account
of an Allowed Claim or Allowed Preferred Equity Interest will be less than one
(1) share of New WHX Common Stock. The total amount of authorized shares of New
WHX Common Stock to be distributed to holders of Allowed Claims and Allowed
Preferred Equity Interests shall be adjusted as necessary to account for the
rounding provided in this Section 5.5.
SECTION 5.6 SURRENDER OF NOTES, INSTRUMENTS, AND SECURITIES.
Subject to the provisions of the Plan and the Confirmation Order, as a
condition to receiving distributions provided for by the Plan, each holder of a
promissory note or other instrument evidencing a Claim (other than the holder of
a Senior Notes Claim) shall surrender such promissory note or instrument to the
Disbursing Agent within sixty (60) days of the Effective Date. All promissory
notes and other instruments surrendered pursuant to the preceding sentence shall
be marked "Compromised and Settled Only as Provided in the Plan." Except as set
forth above or unless waived by the Disbursing Agent, any Person seeking the
benefits of being a holder of an Allowed Claim evidenced by a promissory note or
other instrument (other than the holder of a Senior Notes Claim), that fails to
surrender such promissory note or other instrument must (a) establish the
unavailability of such promissory note or other instrument to the reasonable
satisfaction of the Disbursing Agent, and (b) provide an indemnity bond in form
and amount acceptable to the Disbursing Agent holding harmless the Debtor and
the Disbursing Agent from any damages, liabilities, or costs incurred a result
of treating such Person as a holder of an Allowed Claim. Thereafter, such Person
shall be treated as the holder of an Allowed Claim for all purposes under the
Plan. Notwithstanding the foregoing, any holder of a promissory note, share
certificate, or other instrument evidencing a Claim (other than a holder of a
Senior Notes Claim) that fails within one year of the Effective Date to
surrender to the Debtor such note or other instrument or, alternatively, fails
to satisfy the requirements of the second sentence of this paragraph shall be
deemed to have forfeited all rights and Claims against the Debtor and shall not
be entitled to receive any distribution under the Plan.
SECTION 5.7 EXPENSES INCURRED ON OR AFTER THE EFFECTIVE DATE AND CLAIMS OF
THE DISBURSING AGENT.
The amount of any expenses incurred by the Disbursing Agent on or after the
Effective Date and any compensation and expenses (including any
post-confirmation fees, costs, or expenses) to be paid to or by the Disbursing
Agent shall be borne by New WHX. Reasonable professional fees and expenses
incurred by the Disbursing Agent after the Effective Date in connection with the
effectuation of the Plan shall be paid by each in the ordinary course of
business.
SECTION 5.8 TIME BAR TO CASH PAYMENTS.
Checks issued by the Disbursing Agent in respect of Allowed Claims shall be
null and void if not negotiated within one hundred eighty (180) days after the
date of issuance thereof. Requests for reissuance of any check shall be made
directly to the Disbursing Agent by the holder of the Allowed Claim to whom such
check originally was issued. Any claim with respect to such a voided check shall
be made on or before the later of (a) the first anniversary of the Distribution
Date or (b) one hundred eighty (180) days after the date of issuance of such
check. After such date, all claims in respect of void checks shall be discharged
and forever barred.
SECTION 5.9 EXCULPATION OF THE DISBURSING AGENT.
Subject to the provisions of this Section, the Disbursing Agent, in its
capacity as such, together with its officers, directors, employees, agents, and
representatives (acting in that capacity), is hereby exculpated by all holders
of Claims, holders of Equity Interests, and parties in interest, from any and
all Causes of Action including other assertions of liability (such as breach of
fiduciary duty) arising out of the discharge of the powers and duties conferred
upon the Disbursing Agent, as the case may be, by the Plan, any Final Order of
the Bankruptcy Court entered pursuant to or in the furtherance of the Plan, or
applicable law, except for Causes of Action solely arising out of the Disbursing
Agent's gross negligence or willful misconduct. No holder of a Claim or an
Equity Interest, or representative thereof, shall have or pursue any Cause of
Action (a) against the Disbursing Agent, in its capacity as such, or its
officers, directors, employees, agents, and representatives (acting in that
capacity) for making payments in accordance with the Plan, or for liquidating
assets to make payments under the Plan, or (b) against any holder of a Claim or
an Equity Interest for receiving or retaining payments or transfers of assets as
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provided for by the Plan. Nothing contained in this Section shall preclude or
impair any holder of an Allowed Claim or an Allowed Preferred Equity Interest
from bringing an action in the Bankruptcy Court to compel the making of
distributions contemplated by the Plan on account of such Claim or Preferred
Equity Interest against the Debtor or New WHX.
SECTION 5.10 NO DISTRIBUTIONS PENDING ALLOWANCE.
Notwithstanding any other provision of the Plan, no payment or distribution
shall be made with respect to any Claim or Preferred Equity Interest unless and
until it becomes an Allowed Claim or Allowed Preferred Equity Interest. Any
distributions and deliveries to be made under the Plan on account of an Allowed
Claim or Allowed Preferred Equity Interest shall be made on the Distribution
Date with respect to such Allowed Claim or Allowed Preferred Equity Interest, as
otherwise provided for herein, or as may be ordered by the Bankruptcy Court and
shall be made in accordance with the provision of the Plan governing the class
of Claims or Equity Interests to which such Allowed Claim or Allowed Preferred
Equity Interest belongs.
SECTION 5.11 OBJECTION DEADLINE.
As soon as practicable, but in no event later than sixty (60) days after
the Effective Date (subject to being extended by the Bankruptcy Court upon
motion of the Debtor with notice and a hearing), objections to Claims or
Preferred Equity Interests shall be filed with the Bankruptcy Court and served
upon the holder of each of the Claims or Preferred Equity Interests to which
objections are made; PROVIDED, HOWEVER, that no objection may be filed with
respect to any Claim or Preferred Equity Interest that is Allowed on or before
the Effective Date.
SECTION 5.12 PROSECUTION OF OBJECTIONS.
Upon occurrence of the Effective Date, only the Disbursing Agent shall have
authority to file, litigate, settle, or withdraw objections to Claims and
Preferred Equity Interests.
SECTION 5.13 ESTIMATION OF CLAIMS.
The Disbursing Agent may, at any time and from time to time, request that
the Bankruptcy Court estimate any Contested Claim pursuant to Section 502(c) of
the Bankruptcy Code regardless of whether the Disbursing Agent, or a Committee
(as applicable) previously objected to such Claim, or whether the Bankruptcy
Court has ruled on any such objection, and the Bankruptcy Court will retain
jurisdiction to estimate any Claim at any time during litigation concerning any
objection to any Claim, including during the pendency of any appeal relating to
any such objection. In the event that the Bankruptcy Court estimates any
Contested Claim, that estimated amount will constitute either the Allowed amount
of such Claim or a maximum limitation on such Claim, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on
such Claim, the Disbursing Agent, or a Committee may elect to pursue any
supplemental proceedings to object to any ultimate payment on such Claim. All of
the objection, estimation, settlement, and resolution procedures set forth in
the Plan are cumulative and not necessarily exclusive of one another. Claims may
be estimated and subsequently compromised, settled, withdrawn, or resolved by
any mechanism approved by the Bankruptcy Court.
SECTION 5.14 INDENTURE TRUSTEE AS CLAIM HOLDER.
Consistent with Bankruptcy Rule 3003(c), the Debtor shall recognize proofs
of claim filed by the Indenture Trustee with respect to the Senior Notes Claims.
Accordingly, any Claim, proof of which is filed by the registered or beneficial
holder of a Claim, may be disallowed as duplicative of the Claim of the
Indenture Trustee, without need for any further action or Bankruptcy Court
order.
SECTION 5.15 DISTRIBUTIONS TO CLAIM HOLDERS.
All distributions to holders of Claims will be deemed to apply first to the
principal amount of such Claims until such principal amount is paid in full, and
then the remaining portion of such distribution, if any, will be deemed to apply
to any pre-petition accrued interest included in such Claims.
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ARTICLE VI
RETENTION OF JURISDICTION
SECTION 6.1 SCOPE OF JURISDICTION.
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court shall retain such jurisdiction over the
Chapter 11 Case after the Effective Date so long as is legally permissible,
including, but not limited to, jurisdiction to:
(a) allow, disallow, determine, liquidate, classify, estimate, or
establish the priority or secured, unsecured or subordinated
status of any Claim or Equity Interest, including the resolution
of any request for payment of any Administrative Claim and the
resolution of any and all objections to the allowance or priority
of Claims;
(b) grant or deny any applications for allowance and payment of
any Fee Claim for periods ending on or before the Effective Date;
(c) resolve any matters related to the assumption, assumption and
assignment, or rejection of any executory contract or unexpired
lease to which the Debtor is a party or with respect to which the
Debtor may be liable and to hear, determine and, if necessary,
liquidate, any Claims arising therefrom;
(d) ensure that distributions to holders of Allowed Claims and
Allowed Preferred Equity Interests are accomplished pursuant to
the provisions of the Plan, including ruling on any motion or
other pleading filed pursuant to the Plan;
(e) decide or resolve any motions, adversary proceedings,
contested or litigated matters, and any other matters, and grant
or deny any applications involving the Debtor or the Disbursing
Agent that may be pending on or commenced after the Effective
Date;
(f) enter such orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all
contracts, instruments, releases, indentures, and other
agreements or documents created in connection with the Plan or
the Disclosure Statement, or to correct any defect, cure any
omission, or reconcile any inconsistency therein;
(g) resolve any cases, controversies, suits, or disputes that may
arise in connection with the consummation, interpretation, or
enforcement of the Plan, or any Person's obligations incurred in
connection therewith, or any other agreements governing,
instruments evidencing, or documents relating to the Plan,
including the interpretation or enforcement of any rights,
remedies, or obligations under the Plan;
(h) issue injunctions, enter and implement other orders, or take
such other actions as may be necessary or appropriate to restrain
interference by any entity with consummation or enforcement of
the Plan, except as otherwise provided herein;
(i) enter and implement such orders as are necessary or
appropriate if the Confirmation Order is for any reason modified,
stayed, reversed, revoked, or vacated;
(j) determine any other matters that may arise in connection with
or relate to the Plan, the Disclosure Statement, the Confirmation
Order, or any contract, instrument, release, indenture, or other
agreement or document created in connection with the Plan or the
Disclosure Statement; and
(k) enter a final decree as contemplated by Bankruptcy Rule 3022.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 PAYMENT OF STATUTORY FEES.
All fees payable pursuant to Section 1930 of title 28 of the United States
Code that come due prior to the Effective Date, as determined by the Bankruptcy
Court at the Confirmation Hearing, shall be paid by the Debtor on or before the
Effective Date. After the Effective Date, and until the Chapter 11 Case is
closed, converted, or dismissed, the Disbursing Agent shall pay fees pursuant to
Section 1930 of title 28 of the United States Code as they become due.
SECTION 7.2 NO INTEREST OR ATTORNEYS' FEES.
Subject to the provisions of the Plan, or as allowed by the Bankruptcy
Court, (a) no interest, penalty, or late charge arising after the Petition Date
shall be allowed on, or in connection with, any Claim and (b) no award or
reimbursement of attorneys fees or related expenses or disbursements shall be
allowed on, or in connection with, any Claim or Equity Interest.
SECTION 7.3 MODIFICATIONS TO THE PLAN.
(a) The Debtor reserves the right to amend or modify the Plan at any time
prior to the entry of the Confirmation Order in accordance with the Bankruptcy
Code and Bankruptcy Rules. The Debtor reserves the right to include any amended
exhibits in the Plan Documents, whereupon each such amended exhibit shall be
deemed substituted for the original of such exhibit.
(b) After the entry of the Confirmation Order, the Debtor may amend or
reconcile any inconsistency in the Plan in such manner as may be necessary to
carry out the purpose and intent of the Plan, in accordance with the provisions
of the Bankruptcy Code and Bankruptcy Rules.
(c) A holder of a Claim or Equity Interest that has accepted the Plan shall
be deemed to have accepted the Plan as modified if the proposed modification
does not materially and adversely change the treatment of the Claim or Equity
Interest of such holder.
SECTION 7.4 REVOCATION OF PLAN.
The Debtor reserves the right in the good faith exercise of its fiduciary
duties to revoke and withdraw the Plan prior to the occurrence of the Effective
Date in accordance with Section 1127 of the Bankruptcy Code. If the Debtor
revokes or withdraws the Plan, or if the Effective Date does not occur, then the
Plan shall be deemed null and void and nothing contained herein shall be deemed
to constitute a waiver or release of any claims by or against the Debtor or any
other Person or to prejudice in any manner the rights of the Debtor or any
Person in any proceedings involving the Debtor.
SECTION 7.5 EXEMPTION FROM TRANSFER TAXES.
Pursuant to Section 1146(c) of the Bankruptcy Code, the issuance, transfer,
or exchange of notes or equity securities under the Plan, the creation of any
mortgage, deed of trust, or other security interest, the making or assignment of
any lease or sublease, or the making or delivery of any deed or other instrument
of transfer under, in furtherance of, or in connection with, the Plan,
including, without limitation, those contemplated by any agreements of
consolidation, deeds, bills of sale, or assignments executed in connection with
any of the transactions contemplated under the Plan shall not be subject to any
stamp, real estate, transfer, mortgage recording, sales, use, or other similar
tax.
SECTION 7.6 SETOFF RIGHTS.
Subject to the provisions of Section 553 of the Bankruptcy Code, in the
event that the Debtor has a Cause of Action of any nature whatsoever against the
holder of a Claim or Equity Interest, the Debtor may, but is not required to,
setoff against the Claim or Equity Interest (and any payments or other
distributions to be made in respect of such Claim or Equity Interest hereunder)
the Debtor's Cause of Action against the holder. Neither the failure to set off
nor the allowance of any Claim or Equity Interest under the Plan shall
constitute a waiver or release by the Debtor of any Cause of Action that the
Debtor has against the holder of a Claim or Equity Interest.
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SECTION 7.7 COMPLIANCE WITH TAX REQUIREMENTS.
In connection with the Plan, the Debtor and the Disbursing Agent shall
comply with all withholding and reporting requirements imposed by federal,
state, local, and foreign taxing authorities and all distributions hereunder
shall be subject to such withholding and reporting requirements.
SECTION 7.8 COMPLIANCE WITH ALL APPLICABLE LAWS.
If notified by any governmental authority that it is in violation of any
applicable law, rule, regulation, or order of such governmental authority
relating to its businesses, the Debtor shall take whatever action as may be
required to comply with such law, rule, regulation, or order; PROVIDED, HOWEVER,
that nothing contained herein shall require such compliance if the legality or
applicability of any such requirement is being contested in good faith and, if
appropriate, an adequate reserve for such requirement has been set aside.
SECTION 7.9 BINDING EFFECT.
The Plan shall be binding upon and inure to the benefit of the Debtor, the
WHX Entities, the holders of all Claims and Equity Interests, and their
respective successors and assigns.
SECTION 7.10 NOTICES.
Whenever service is required in the Plan, such service shall be made so as
to be received by 5:00 p.m. Eastern Time on or before the date required.
SECTION 7.11 GOVERNING LAW.
Unless a rule of law or procedure is supplied by federal law (including the
Bankruptcy Code and Bankruptcy Rules), the laws of the State of New York shall
govern the construction and implementation of the Plan and any agreements,
documents, and instruments executed in connection with the Plan or the Chapter
11 Case, including the Plan Documents, except as may otherwise be provided in
such agreements, documents, instruments, and Plan Documents.
SECTION 7.12 SEVERABILITY.
If the Bankruptcy Court determines that any provision of the Plan would be
unenforceable or would prevent the Plan from being confirmed, either on its face
or as applied to any Claim or Equity Interest or transaction, the Debtor may
modify the Plan so that such provision shall not be applicable to the holder of
any Claim or Equity Interest or in such manner as will allow the Plan to be
confirmed. Such a determination by the Bankruptcy Court and modification by the
Debtor shall not (a) limit or affect the enforceability and operative effect of
any other provision of the Plan, or (b) require the resolicitation of any
acceptance or rejection of the Plan.
SECTION 7.13 SECTION 1125(E) OF THE BANKRUPTCY CODE.
As of the Confirmation Date, the Debtor shall be deemed to have solicited
acceptances hereof in good faith and in compliance with the applicable
provisions of the Bankruptcy Code. As of the Confirmation Date, the Debtor and
each of its affiliates, agents, directors, officers, employees, investment
bankers, financial advisors, attorneys, and other professionals shall be deemed
to have participated in good faith and in compliance with the applicable
provisions of the Bankruptcy Code in the offer and issuance of the New WHX
Common Stock hereunder, and therefore are not, and on account of such offer,
issuance and solicitation shall not be, liable at any time for the violation of
any applicable law, rule or regulation governing the solicitation of acceptances
or rejections hereof or the offer and issuance of New WHX Common Stock
hereunder.
WHX CORPORATION
/s/ Neale X. Trangucci
---------------------------
By: Neale X. Trangucci
Its: Chief Executive Officer
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