EXHIBIT 2.2
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE :
:
WHX CORPORATION : CHAPTER 11 CASE NO.
: 05-11444 (ALG)
:
DEBTOR. :
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ORDER CONFIRMING FIRST AMENDED PLAN OF
REORGANIZATION OF WHX CORPORATION
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WHX Corporation, the debtor and debtor in possession (the "DEBTOR")
in the above captioned chapter 11 case (the "CHAPTER 11 CASE") pending under
chapter 11 of title 11 of the United States Code (11 U.S.C. ss.ss. 101 ET SEQ.,
the "BANKRUPTCY CODE"), having proposed and filed the First Amended Chapter 11
Plan of Reorganization of WHX Corporation, dated June 8, 2005 (as modified and
as may be further amended, supplemented, or modified in accordance with this
Order, the "PLAN");(1) and the Court having conducted a hearing to consider
confirmation of the Plan on July 20, 2005 (the "HEARING"); and the Court having
considered (a) the Plan and the Plan Documents, including, without limitation,
the New Charter, the New Bylaws, the Warrant, and certain revisions to the
Debtor's Projections, (b) the testimony, affidavits, and exhibits admitted into
evidence at the Hearing, (c) the arguments of counsel presented at the Hearing,
(d) the formal and informal objections to confirmation of the Plan and the
responses filed thereto, and (e) the pleadings filed in support of confirmation,
including, without limitation, the memorandum of the Debtor; and the Court being
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(1) All capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Plan.
familiar with the Plan and other relevant factors affecting the Chapter 11 Case;
and the Court having taken judicial notice of the entire record of the Chapter
11 Case, including, without limitation, (a) all pleadings and papers filed in
the Chapter 11 Case by the Debtor, the Creditors Committee and the Preferred
Committee (together with the Creditors Committee, the "COMMITTEES"), (b) the
order entered by the Court on March 31, 2005 establishing May 16, 2005 as the
last day for filing proofs of Claim against the Debtor (the "BAR DATE ORDER"),
(c) the order (the "APPROVAL AND PROCEDURES ORDER") entered by the Court on June
8, 2005 (i) approving the Debtor's Second Amended Disclosure Statement with
Respect to the Plan (the "DISCLOSURE STATEMENT"), (ii) approving procedures for
solicitation and tabulation of votes to accept or reject proposed chapter 11
plan of reorganization, and (iii) scheduling the Hearing; and the Court having
found that due and proper notice has been given with respect to the Hearing and
the deadlines and procedures for objections to the Plan; and the appearance of
all interested parties having been duly noted in the record of the Hearing; and
upon the record of the Hearing, and after due deliberation thereon, and
sufficient cause appearing therefor;
IT IS HEREBY FOUND AND CONCLUDED,(2) that
JURISDICTION AND VENUE
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A. The Court has jurisdiction to conduct the Hearing and to confirm
the Plan pursuant to 28 U.S.C. ss. 1334.
B. Confirmation of the Plan is a core proceeding pursuant to 28
U.S.C. ss. 157(b), and this Court has jurisdiction to enter a final order with
respect thereto.
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(2) The Findings of Fact and Conclusions of Law contained herein constitute
the findings of fact and conclusions of law required to be entered by this
Court pursuant to Rule 52 of the Federal Rules of Civil Procedure, as made
applicable herein by Rules 7052 and 9014 of the Federal Rules of
Bankruptcy Procedure (the "BANKRUPTCY RULES"). To the extent any finding
of fact constitutes a conclusion of law, it is adopted as such. To the
extent any conclusion of law constitutes a finding of fact, it is adopted
as such.
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C. The Debtor is a proper Debtor under section 109 of the Bankruptcy
Code and is a proper proponent of the Plan under section 1121(a) of the
Bankruptcy Code.
D. Each of the conditions precedent to the entry of this Order has
been satisfied or properly waived in accordance with sections 3.1 and 3.3 of the
Plan.
JUDICIAL NOTICE
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E. This Court takes judicial notice of the docket of the Chapter 11
Case maintained by the Clerk of the Court and/or its duly-appointed agent,
including, without limitation, all pleadings and other documents filed, all
orders entered, and evidence and arguments made, proffered or adduced at the
hearings held before the Court during the pendency of the Chapter 11 Case.
MODIFICATIONS
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F. The Debtor filed certain modifications to the Plan (the "INITIAL
MODIFICATIONS") ten days prior to the deadline by which the ballots indicating
acceptance or rejection of the Plan must be received (the "VOTING DEADLINE") and
in conjunction with the other Plan Documents. The Debtor also filed certain
revisions to the Projections accompanying the Disclosure Statement (the
"REVISIONS").
G. The Debtor has agreed to further modify Section 4.4 of the Plan
to eliminate references to Indemnitees as parties against whom actions are being
enjoined in accordance with the Court's ruling on the Preferred Committee's
limited objection, dated July 13, 2005 (the "LIMITED OBJECTION"). A blackline
version of the Plan evidencing both the Initial Modifications and the further
modification to Section 4.4 (collectively, the "MODIFICATIONS") is attached
hereto as Exhibit A. The Modifications do not materially or adversely affect or
change the treatment of any Claim against or Equity Interest in the Debtor.
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Pursuant to section 1127(b) of the Bankruptcy Code and Bankruptcy Rule 3019,
neither the Revisions nor the Modifications require additional disclosure under
section 1125 of the Bankruptcy Code, the resolicitation of acceptances or
rejections of the Plan under section 1126 of the Bankruptcy Code, or that
holders of Claims against or Equity Interests in the Debtor be afforded an
opportunity to change previously cast acceptances or rejections of the Plan as
filed with the Bankruptcy Court. The disclosure of the Revisions along with the
Debtor's Plan Documents and the disclosure of the Modifications on the record at
the Hearing constitute due and sufficient notice thereof under the circumstances
of the Chapter 11 Case. Accordingly, the Plan (as modified) is properly before
the Court and all votes cast with respect to the Plan prior to the Modifications
shall be binding and shall be deemed to be cast with respect to the Plan as
modified.
STANDARDS FOR CONFIRMATION UNDER
SECTION 1129 OF THE BANKRUPTCY CODE
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H. SECTION 1129(a)(1). The Plan complies with all applicable
provisions of the Bankruptcy Code. In particular, the Plan complies with the
requirements of sections 1122 and 1123 as follows:
o In accordance with section 1122(a) of the Bankruptcy Code, Article
II of the Plan classifies each Claim against and Equity Interest in
the Debtor into a class containing only substantially similar Claims
or Equity Interests;
o In accordance with section 1123(a)(1) of the Bankruptcy Code,
Article II of the Plan properly classifies all Claims and Equity
Interests that require classification;
o In accordance with section 1123(a)(2) of the Bankruptcy Code,
Article II of the Plan properly identifies and describes each class
of Claims that is unimpaired by the Plan;
o In accordance with section 1123(a)(3) of the Bankruptcy Code,
Article II of the Plan properly identifies and describes the
treatment of each impaired class of Claims or Equity Interests;
o In accordance with section 1123(a)(4) of the Bankruptcy Code, the
Plan provides the same treatment for each Claim or Equity Interest
in a particular class unless the holder of such a Claim or Equity
Interest agrees to less favorable treatment;
o In accordance with section 1123(a)(5) of the Bankruptcy Code, the
Plan provides adequate means for its implementation, including,
without limitation, the provisions regarding Effective Date
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transfers and post-Effective Date corporate management, governance,
and actions in Article IV;
o In accordance with section 1123(a)(6) of the Bankruptcy Code, the
New WHX Charter contains provisions prohibiting the issuance of
non-voting equity securities;
o In accordance with section 1123(a)(7) of the Bankruptcy Code, the
provisions of the Plan and the New WHX Charter regarding the manner
of selection of officers and directors of New WHX are consistent
with the interests of creditors and equity security holders and with
public policy.
I. SECTION 1129(a)(2). The Debtor has complied with all applicable
provisions of the Bankruptcy Code. In particular, the Plan complies with the
requirements of sections 1125 and 1126 as follows:
o On or before June 15, 2005, the Debtor, through its notice and
solicitation agent, Innisfree M&A, Incorporated ("INNISFREE") caused
copies of (a) the notice of the Hearing (the "CONFIRMATION HEARING
NOTICE"); (b) the Disclosure Statement (together with the exhibits
thereto, including the Plan, that had been filed with the Court
before the date of the mailing); (c) the Creditors Committee's
letter recommending acceptance of the Plan; (d) the Preferred
Committee's letter recommending rejection of the Plan; and (e) with
respect to holders of Claims and Preferred Equity Interests in
classes that were entitled to vote to accept or reject the Plan
(I.E., Allowed Claims in Classes 3 and 4, and Allowed Preferred
Equity Interests in Classes 5 and 6) an appropriate form of ballot
and return envelope (collectively, the materials described in
clauses (a) - (e), the "SOLICITATION PACKAGES") to be transmitted to
(i) all persons or entities that had filed proofs of claim or equity
interest on or before the Record Date (or their transferees in
accordance with the procedures set forth in the Approval and
Procedures Order); (ii) all persons or entities listed in the
Debtor's Schedules as holding liquidated, noncontingent, undisputed
claims as of the Record Date (or their transferees in accordance
with the procedures set forth in the Approval and Procedures Order);
(iii) all other known holders of claims against or equity interests
in the Debtor, if any, as of the Record Date; (iv) all parties in
interest that had filed requests for notice in accordance with
Bankruptcy Rule 2002 in the Chapter 11 Case on or before the Record
Date; (v) the Indenture Trustee; (vi) the U.S. Trustee; and (vii)
the persons described in the Approval and Procedures Order in
connection with the special solicitation procedures for holders of
Senior Notes and Preferred Equity Interests;
o On or before June 16, 2005, the Debtor, through Innisfree, caused
copies of the Confirmation Hearing Notice to be transmitted to all
holders of Common Equity Interests as of the Record Date;
o On or before June 20, 2005, the Debtor caused a copy of the
Confirmation Hearing Notice to be published in the national edition
of THE NEW YORK TIMES;
o The Confirmation Hearing Notice provided due and proper notice of
the Hearing and all relevant dates, deadlines, procedures, and other
information relating to the Plan and/or the solicitation of votes
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thereon, including, without limitation, the Voting Deadline, the
deadline to object to confirmation of the Plan, the time, date and
place of the Hearing, and the exculpation and release provisions in
the Plan;
o All Persons entitled to receive notice of the Disclosure Statement,
the Plan and the Hearing have received proper, timely, and adequate
notice in accordance with the Approval and Procedures Order and the
applicable provisions of the Bankruptcy Code and the Bankruptcy
Rules, and have had an opportunity to appear and be heard with
respect thereto;
o The Debtor and the Committees have solicited votes with respect to
the Plan in good faith and in a manner consistent with the
Bankruptcy Code, the Bankruptcy Rules and the Approval and
Procedures Order, including without limitation, the inclusion of the
Creditors Committee's letter recommending acceptance of the Plan and
the Preferred Committee's letter recommending rejection of the Plan
in the Solicitation Packages. Accordingly, the Debtor and the
Committees are entitled to the protections afforded by section
1125(e) of the Bankruptcy Code and the exculpation provisions set
forth in section 4.5 of the Plan;
o The Plan was voted on by all classes of impaired Claims and
Preferred Equity Interests that were entitled to vote pursuant to
the Bankruptcy Code, the Bankruptcy Rules, and the Approval and
Procedures Order;
o Innisfree has made a final determination of the validity of, and
tabulation with respect to, all acceptances and rejections of the
Plan by holders of Claims and Preferred Equity Interests entitled to
vote on the Plan, including the amount and number of accepting and
rejecting Claims in Classes 3 and 4 and the amount of accepting and
rejecting Preferred Equity Interests in Classes 5 and 6;
o Class 3 has accepted the Plan by at least two-thirds in amount and a
majority in number of the Claims in such class actually voting;
o Although Class 4 ballots were received by the Debtors, none were
submitted by holders of allowed claims as required by the Approval
and Procedures Order and, as no valid votes to accept or reject the
Plan were received, Class 4 is deemed to have accepted the Plan;(3)
o Each of Classes 5 and 6 have rejected the Plan; and
o The determination of Innisfree with respect to the voting on the
Plan validly and correctly sets forth the tabulation of votes, as
required by the Bankruptcy Code, Bankruptcy Rules, and the Approval
and Procedures Order.
J. SECTION 1129(a)(3). The Plan has been proposed in good faith and
not by any means forbidden by law. In so finding, the Court has considered the
totality of the circumstances in this Chapter 11 Case. The Plan is the result of
extensive arm's length negotiations and reflects substantial input from the
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principal constituencies having an interest in the Debtor's Chapter 11 Case and
achieves the goal of consensual reorganization embodied by the Bankruptcy Code.
Further, as described in greater detail below, the Plan's indemnification,
exculpation, release, and injunction provisions have been negotiated in good
faith, are consistent with sections 105, 1123(b)(6), 1129, and 1142 of the
Bankruptcy Code, and are each necessary to the Debtor's successful
reorganization.
K. SECTION 1129(a)(4). No payment for services or costs in
connection with the Chapter 11 Case or the Plan has been made by the Debtor
other than payments that have been authorized by order of the Court. Further,
pursuant to sections 2.2 and 6.1 of the Plan, all such payments to be made will
be subject to review and approval by this Court.
L. SECTION 1129(a)(5). The Debtor has disclosed the identity and
nature of compensation of all insiders to be employed or retained by New WHX, as
well as the identities of each Person that is proposed to serve as an officer or
director of New WHX. Such disclosure by the Debtor is due and proper and the
appointment or continuation in office of the identified Persons is consistent
with the interests of creditors, equity security holders, and with public
policy.
M. SECTION 1129(a)(6). The Plan does not provide for any changes in
rates that require regulatory approval of any governmental agency.
N. SECTION 1129(a)(7). Each holder of an impaired Claim or impaired
Preferred Equity Interest that has not accepted the Plan will, on account of
such Claim or Preferred Equity Interest, receive or retain property under the
Plan having a value, as of the Effective Date, that is not less than the amount
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(continued...)
(3) The Court also notes that its finding is unlikely to create any
significant prejudice to any holder of a subsequently Allowed Class 4
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that such holder would receive or retain if the Debtor were liquidated under
chapter 7 of the Bankruptcy Code. The holders of Preferred Equity Interests, who
shall receive only partial payment with respect to their Allowed Preferred
Equity Interests under the Plan, would receive no distribution if the Debtor was
liquidated under chapter 7 of the Bankruptcy Code. The holders of Common Equity
Interests, who shall receive no consideration under the Plan and are therefore
deemed to have rejected the Plan, would receive no distribution if the Debtor
was liquidated under chapter 7 of the Bankruptcy Code.
O. SECTION 1129(a)(8). The Plan has not been accepted by all
impaired classes of Claims and Equity Interests. Nevertheless, as more fully
explained below, the Plan is confirmable because it satisfies 1129(b)(1) of the
Bankruptcy Code with respect to such non-accepting classes of Claims and Equity
Interests.
P. SECTION 1129(a)(9). The Plan provides treatment for
Administrative Claims and priority Claims that is consistent with the
requirements of section 1129(a)(9) of the Bankruptcy Code.
Q. SECTION 1129(a)(10). The Plan has been accepted by at least one
class of impaired Claims that was entitled to vote on the Plan without including
any acceptance of the Plan by any insider.
R. SECTION 1129(a)(11). Confirmation of the Plan is not likely to be
followed by the liquidation or the need for the further financial reorganization
of New WHX.
S. SECTION 1129(a)(12). The Plan provides for the payment of all
fees payable under section 1930, title 28, United States Code by the Debtor on
the Effective Date (or as soon as practicable thereafter). After the Effective
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(continued...)
Claim as the treatment afforded Class 4 Claims under the Plan is payment
in full, in cash, the full amount of such Allowed Claim.
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Date and until this Chapter 11 Case is closed, converted, or dismissed, the Plan
provides for the payment by the Disbursing Agent of all such fees as they become
due.
T. SECTION 1129(a)(13). The Plan provides that, upon the Effective
Date, New WHX will assume and continue the Pension Plan, satisfy the minimum
funding standards and administer the Pension Plan in accordance with its terms
and the provisions of ERISA and the Internal Revenue Code, and that nothing in
the Plan will 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.
U. SECTION 1129(b)(2). The Plan does not discriminate unfairly and
is fair and equitable to each class of Claims or Equity Interests that has not
accepted the Plan. Holders of Allowed Senior Notes Claims and Allowed Other
Unsecured Claims (I.E., those in Classes 3 and 4) under the Plan will receive
consideration that is significantly different in nature and quality than the
cash they are owed that will not be worth more than the full amount of their
Claims. Holders of Preferred Equity Interests (I.E., those in Classes 5 and 6)
will receive partial payment under the Plan with respect to their Allowed
Preferred Equity Interests. Holders of Common Equity Interests will receive no
property under the Plan. Nevertheless, the Plan is fair and equitable because it
does not provide a recovery to any holder of a Claim or Equity Interest that is
junior to the classes of Equity Interests that are not being paid in full (I.E.,
Preferred Equity Interests in Classes 5 and 6). Similarly, the Plan does not
"discriminate unfairly" because each dissenting class is treated substantially
equally to similarly situated classes.
V. SECTION 1129(c). The Plan is the only plan that has been filed in
the Chapter 11 Case that has been found to satisfy the requirements of
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subsections (a) and (b) of section 1129 of the Bankruptcy Code. Accordingly, the
requirements of section 1129(c) of the Bankruptcy Code have been satisfied.
W. SECTION 1129(d). No party in interest, including but not limited
to any governmental unit, has requested that the Court deny confirmation of the
Plan on grounds that the principal purpose of the Plan is the avoidance of taxes
or the avoidance of the application of section 5 of the Securities Act of 1933,
and the principal purpose of the Plan is not such avoidance. Accordingly, the
Plan satisfies the requirements of section 1129(d) of the Bankruptcy Code.
EXECUTORY CONTRACTS
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X. Pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code,
upon the occurrence of the Effective Date, the Plan provides for the assumption
of and assignment to New WHX of each and every executory contract and unexpired
lease of the Debtor. The Debtor's decisions regarding the assumption and
rejection of executory contracts and unexpired leases are based on and are
within the sound business judgment of the Debtor, are necessary to the
implementation of the Plan, and are in the best interests of the Debtor, its
Estate, stakeholders, and other parties in interest in this Chapter 11 Case.
Y. Section 365(b) of the Bankruptcy Code is satisfied because there
are no outstanding cure obligations associated with any executory contract or
unexpired lease that is to be assumed under the Plan.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that
A. GENERAL
1. The Plan is hereby confirmed and the record of the Hearing is
hereby closed.
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2. The Plan Documents, including the specimen of (a) the New WHX
Common Stock and (b) the Warrant are hereby approved as to form.
3. The Effective Date of the Plan shall occur on the date when the
conditions set forth in section 3.2 of the Plan shall have been satisfied or, if
applicable, shall have been waived in accordance with section 3.3 of the Plan.
4. The Confirmation Date shall be the record date for purposes of
determining the holders of Allowed Claims and Allowed Preferred Equity Interests
that are entitled to distributions that are required to be made under the Plan
on the Effective Date.
5. In accordance with the Court's ruling on the merits and the
Debtor's Modification to Section 4.4 of the Plan, the Limited Objection is
overruled. Any other objections to confirmation of the Plan that (a) have not
been withdrawn, waived, or settled prior to the entry of this Confirmation
Order, and any reservations of rights contained therein or (b) are not cured by
the relief granted herein, are hereby overruled in their entirety and on their
merits. All withdrawn objections are hereby deemed withdrawn with prejudice.
6. In accordance with section 1141(a) of the Bankruptcy Code and
upon the occurrence of the Effective Date, the Plan shall be binding upon and
inure to the benefit of (a) the Debtor and its respective successors and
assigns, (b) the holders of Claims and Equity Interests and their respective
successors and assigns (whether or not they voted to accept the Plan, whether or
not they are impaired under the Plan, and whether or not any such holder has
filed, or is deemed to have filed a proof of Claim or proof of Equity Interest),
(c) any other Person giving, acquiring, or receiving property under the Plan,
(d) any party to an executory contract or unexpired lease of the Debtor and (e)
each of the foregoing's respective heirs, successors, assigns, trustees,
executors, administrators, affiliates, officers, directors, agents,
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representatives, attorneys, beneficiaries, or guardians, if any. All
settlements, compromises, releases, discharges, exculpations and injunctions set
forth in the Plan shall be, and hereby are, effective and binding on all Persons
who may have had standing to assert such settled, released, discharged,
exculpated, or enjoined Causes of Action and no other Entity shall possess such
standing to assert such Causes of Action after the Effective Date.
7. On the Effective Date, except as otherwise provided in the Plan,
title to all property of the Estate shall be vested in New WHX free and clear of
all liens, Claims, and encumbrances in accordance with the terms of the Plan and
section 1141 of the Bankruptcy Code and notwithstanding any prohibitions of
such, which are hereby null and void.
8. On the Effective Date, WHX shall cease to exist as the Debtor,
the Equity Interests in the Debtor shall be cancelled, the board of directors of
the Debtor shall be dissolved, and, in accordance with the New WHX Charter and
the New WHX Bylaws, management and control of New WHX shall be changed to and
shall reside in the members of its board of directors and the holders of New WHX
Common Stock.(4)
B. DISCHARGE AND RELEASES.
9. 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
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contemplated in connection with, the consummation of the transactions set forth
in the Plan; 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.
10. On the Effective Date, in accordance with section 4.3 of the
Plan, and except as otherwise provided in the Plan or in this Order, entry of
this Order acts as a discharge of and injunction against 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.
11. As of the Effective Date, except as otherwise provided in the
Plan or in this 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 actions described in section 4.4 of the Plan against or affecting the
Debtor, its Estate, or its Assets, other than actions brought to enforce any
rights or obligations under the Plan and appeals, if any, from this Order.
12. 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
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(4) For the avoidance of doubt, the transactions occurring on the Effective
Date shall constitute a "Change in Control" under the amended and restated
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any and all Causes of Action of the Debtor, including without limitation, Causes
of Action which the Debtor as 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 (i) contractual
obligations owed by such Person to the Debtor and (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 shall not be waived and
released. 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
and 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.
13. 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 taken or failed to
be taken in any way relating to the Indenture Trustees 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
Equity Interests provided in this Order, in the Plan, and under the Bankruptcy
Code.
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(continued...)
employment agreements between the Debtor and Messrs. Arnold, Hynes, Tabin
and Trangucci.
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C. PLAN IMPLEMENTATION.
14. The Debtor and New WHX, as the case may be, and any authorized
officer thereof, are authorized to undertake or cause to be undertaken any and
all acts and actions contemplated by the Plan or required to consummate and
implement the provisions of the Plan, prior to, on, and after the Effective
Date, including without limitation, entering, executing, delivering, filing or
recording any agreements, instruments, or documents necessary to implement the
Plan (including, without limitation, filing amended or new certificates of
incorporation, by-laws or other corporate documents with the appropriate
governmental authorities) and all such actions taken or caused to be taken shall
be deemed to have been authorized and approved by the Bankruptcy Court. All such
actions shall be deemed to have occurred and shall be in effect without any
requirement of further action by the stockholders or directors of the Debtor or
New WHX.
15. On the Effective Date, except as otherwise provided in the Plan
or this Order, all 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 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 described in section
4.13 of the Plan.
16. Each federal, state, commonwealth, local, foreign or other
governmental agency is hereby directed and authorized to accept any and all
documents, and instruments necessary or appropriate to effectuate, implement, or
consummate the transactions contemplated by the Plan and this Order.
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D. PLAN DISTRIBUTIONS.
17. On and after the Effective Date, distributions on account of
Allowed Claims and Allowed Preferred Equity Interests and the resolution and
treatment of Contested Claims shall be effectuated pursuant to Article V of the
Plan.
18. In accordance with section 2.2 of the Plan, all applications for
payment of fees and reimbursement of expenses by professionals retained in this
Chapter 11 Case as well as parties seeking compensation pursuant to section 503
of the Bankruptcy Code must be filed with the Court by the date that is no later
than forty-five (45) days after the Effective Date (or, if such date is not a
Business Day, by the next Business Day thereafter, the "FEE APPLICATION
Deadline"). Notwithstanding the Administrative Order Pursuant to Sections 105(a)
and 331 of the Bankruptcy Code Establishing Procedures for Interim Monthly
Compensation for Professionals [Docket No. 49], professionals need not file
interim applications seeking approval of compensation and expenses, but may
solely file final applications seeking approval of compensation and expenses.
Any Entity that fails to file such an application or request on or before the
Fee Application Deadline shall be forever barred from asserting such
Administrative Claim against the Debtor, New WHX, or their property, and the
holder thereof shall be enjoined from commencing or continuing any action,
employment of process or act to collect, offset or recover such Administrative
Claim. Applications for approval of professionals' fees not previously awarded
during the pendency of the Chapter 11 Case may be included in such
professionals' final applications as set forth herein and in the Plan.
Objections, if any, to Fee Claims shall be filed and served not later than ten
(10) business days prior to the date set by the Court for the hearing to
consider such requests.
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E. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
19. As of the Confirmation Date, but subject to the occurrence of
the Effective Date, each and every executory contract and unexpired lease of the
Debtor shall be assumed, pursuant to sections 365 and 1123 of the Bankruptcy
Code.
20. In the event the Effective Date of the Plan does not occur, the
Court enters an Order revoking confirmation of the Plan, or the Plan otherwise
is not consummated, the Debtor may modify or amend (including, without
limitation, making additions and/or deletions) its Schedule of No Executory
Contracts or Unexpired Leases to be Rejected [Docket No. 145] and all rights of
the Debtor to assume or reject its unexpired leases and executory contracts
shall be reinstated to the date immediately prior to the date of this Order.
F. TAXES AND TRANSFERS.
21. The sale, distribution, exchange, or other transfer of any
security under the Plan or this Order, including, without limitation, the New
WHX Common Stock and the Warrants, has been duly authorized, and when issued as
provided in the Plan, will be validly issued, fully paid, and nonassessable. The
New WHX Common Stock is in exchange for Claims against or Preferred Equity
Interests in the Debtor and the Warrants (including the New WHX Common Stock
issuable on exercise of the Warrants) are in exchange for Preferred Equity
Interests in the Debtor within the meaning of section 1145(a)(1) of the
Bankruptcy Code. In addition, to the extent provided by section 1145 of the
Bankruptcy Code, (a) the offering of the New WHX Common Stock and the Warrants
are exempt, and the issuance and distribution of the New WHX Common Stock and
the Warrants under the Plan shall be exempt from (i) section 5 of the Securities
Act of 1933, as amended (the "SECURITIES ACT") and (ii) any state or local law
requiring registration prior to the offering, issuance, distribution, or sale of
securities and (b) the New WHX Common Stock and the Warrants (including the New
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WHX Common Stock issuable on exercise of the Warrants) will be freely tradeable
by the recipients thereof, subject to (i) the provisions of section 1145(b)(1)
of the Bankruptcy Code relating to the definition of an underwriter in section
2(11) of the Securities Act, and compliance with any rules and regulations of
the SEC, if any, applicable at the time of any future transfer of such
securities or instruments, and (ii) the restrictions on transferability of the
New WHX Common Stock and the Warrants contained in the New Charter. Pursuant to,
and to the fullest extent permitted by, section 1145 of the Bankruptcy Code, the
resale of New WHX Common Stock and the Warrants (including the New WHX Common
Stock issuable on exercise of the Warrants) shall be exempt from section 5 of
the Securities Act and any state or local law requiring registration prior to
the offering, issuance, distribution, or sale of the New WHX Common Stock and
the Warrants (including the New WHX Common Stock issuable on exercise of the
Warrants).
22. Pursuant to section 1146(c) of the Bankruptcy Code: (a) the
issuance, transfer, or exchange of any securities, instruments or documents
under the Plan or (b) 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 or this Order, shall be exempt
from any and all stamp, real estate, transfer, mortgage recording, sales, use,
or other similar taxes, charges or expenses.
23. All filing and recording officers are hereby directed to accept
for filing or recording any and all instruments of transfer to be filed and
recorded in accordance with the Plan, as applicable, and the exhibits thereto,
without payment of any taxes described in the preceding paragraph 22. Notice of
entry of this Order in the form approved by the Court shall (a) have the effect
of an order of the Court, (b) constitute sufficient notice of the entry of this
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Order to such filing and recording officers, and (c) be a recordable instrument
notwithstanding any contrary provision of applicable nonbankruptcy law. This
Court retains jurisdiction to enforce the foregoing direction, by contempt
proceedings or otherwise.
G. MISCELLANEOUS.
24. The business and assets of the Debtor shall remain subject to
the jurisdiction of this Court until the Effective Date. From and after the
Effective Date, this Court shall retain and have jurisdiction of all matters
arising out of this Chapter 11 Case pursuant to, and for purposes of, subsection
105(a) and section 1142 of the Bankruptcy Code, including without limitation,
jurisdiction over the matters set forth in Article VI of the Plan, which is
incorporated herein by reference, as if set forth IN EXTENSO.
25. On the Effective Date, the Committees shall be dissolved and
their members and employees or agents (including, without limitation, attorneys,
investment bankers, financial advisors, accountants and other professionals)
shall be released and discharged from all of their duties, responsibilities, and
obligations in connection with this Chapter 11 Case.
26. The Debtor or its authorized agent(s) shall serve a notice of
entry of this Order, as provided in Bankruptcy Rule 2002(f)(7), to all parties
previously served with the Confirmation Hearing Notice, within ten (10) Business
Days from the date of entry of this Order.
27. Except as otherwise provided in the Plan and this Order, notice
of all subsequent pleadings in the Chapter 11 Case shall be limited to counsel
for the Debtor, the U.S. Trustee and any party known to be directly affected by
the relief sought.
28. In accordance with Section 2.3 of the Plan, any and all holders
of Priority Tax Claims are enjoined from commencing or continuing any action or
proceeding against any otherwise responsible person or officer or director of
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the Debtor or New WHX for so long as New WHX is not in default of its
obligations under Section 2.3 of the Plan.
29. The provisions of Federal Rule of Civil Procedure 62(a) and
Bankruptcy Rules 3020(e) and 7062 shall not apply to this Confirmation Order,
and the Debtor is authorized to consummate the Plan immediately upon entry of
this Order.
30. Failure specifically to include or reference particular sections
or provisions of the Plan or any related agreement or document in this Order
shall not diminish or impair the effectiveness of such sections or provisions,
it being the intent of the Court that the Plan be confirmed, and such related
agreements or documents be approved, in their entirety.
31. All Entities holding Claims against or Equity Interests in the
Debtor that are treated under the Plan are hereby directed to execute, deliver,
file, or record any document, and to take any action necessary to implement,
consummate, and otherwise effect the Plan in accordance with its terms, and all
such entities shall be bound by the terms and provisions of all documents
executed and delivered by them in connection with the Plan.
32. In accordance with section 1142 of the Bankruptcy Code, the
Debtor, New WHX, and any other Entity designated pursuant to the Plan are hereby
authorized, empowered and directed to issue, execute, deliver, file and record
any document, and to take any action necessary or appropriate to implement,
consummate and otherwise effectuate the Plan in accordance with its terms, and
all such Entities shall be bound by the terms and provisions of all documents
issued, executed and delivered by them as necessary or appropriate to implement
or effectuate the transactions contemplated by the Plan and as set forth in
section 7.3 of the Plan.
33. In the event of an inconsistency between the Plan, on the one
hand, and any other Plan Document, agreement, instrument, or document intended
to implement the provisions of the Plan, on the other, the provisions of the
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Plan shall govern (unless otherwise expressly provided for in such agreement,
instrument, or document). In the event of any inconsistency between the Plan,
Plan Document or any agreement, instrument, or document intended to implement
the Plan, on the one hand, and this Order, on the other, the provisions of this
Order shall govern.
34. In accordance with section 7.4 of the Plan, if the Debtor
revokes or withdraws the Plan, or if the Effective Date does not occur, then the
Plan shall be null and void and nothing contained in the Plan shall be deemed to
constitute a waiver or release of any Claims by or against the Debtor or any
other Person or prejudice in any manner the rights of the Debtor or any Person
in any proceedings involving the Debtor.
35. The Debtor is hereby authorized to amend or modify the Plan at
any time prior to the Effective Date, but only in accordance with section 1127
of the Bankruptcy Code. In addition, without the need for a further order or
authorization of this Court, but subject to the express provisions of this
Order, the Debtor shall be authorized and empowered to amend, supplement, or
modify the documents filed with the Court, including, without limitation, the
Plan Documents, exhibits to the Plan or documents forming part of the
evidentiary record at the Hearing, in its reasonable business judgment as may be
necessary.
36. The provisions of this Order are integrated with each other and
are non-severable and mutually dependent.
37. This Confirmation Order is a final order.
38. If any or all of the provisions of this Order are hereafter
reversed, modified or vacated by subsequent order of this Court, such reversal,
modification or vacatur shall not affect the validity of the acts or obligations
incurred or undertaken under or in connection with the Plan prior to the
Debtor's or New WHX's (as applicable) receipt of written notice of such Order.
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Notwithstanding any such reversal, modification or vacatur of this Order, any
such act or obligation incurred or undertaken pursuant to, and in reliance on,
this Order prior to the effective date of such reversal, modification or vacatur
shall be governed in all respects by the provisions of this Order and the Plan
and all related documents or any amendments or modifications thereto.
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39. The Plan shall be substantially consummated on the Effective
Date to the extent that the transactions described in section 4.11 of the Plan
shall have occurred or shall have been provided for.
Dated: July 21, 2005
New York, New York
/s/ Allan L. Gropper
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UNITED STATES BANKRUPTCY JUDGE
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