EXHIBIT 99.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
- --------------------------------------------------- X
IN RE : CHAPTER 11 CASE NO.
:
ARMSTRONG WORLD INDUSTRIES, : 00-4471 (RJN)
INC., ET AL., :
:
DEBTORS. : (JOINTLY ADMINISTERED)
- --------------------------------------------------- X
THIRD AMENDED PLAN OF REORGANIZATION
OF ARMSTRONG WORLD INDUSTRIES, INC.
THIS PLAN OF REORGANIZATION PROVIDES FOR THE ISSUANCE OF AN ASBESTOS
PI PERMANENT CHANNELING INJUNCTION AND A CLAIMS TRADING INJUNCTION.
SEE SECTIONS 1.24 (DEFINITION OF "ASBESTOS PERSONAL INJURY CLAIM"),
1.27 (DEFINITION OF "ASBESTOS PI PERMANENT CHANNELING INJUNCTION"),
1.98 (DEFINITION OF "PI PROTECTED PARTY"), AND 3.2(G)(II) (TREATMENT
OF ASBESTOS PERSONAL INJURY CLAIMS UNDER THE PLAN) FOR DETAILS
RELATING TO THE ASBESTOS PI PERMANENT CHANNELING INJUNCTION AND
SECTIONS 1.24 (DEFINITION OF "ASBESTOS PERSONAL INJURY CLAIM"), 1.32
(DEFINITION OF "ASBESTOS PROPERTY DAMAGE CLAIM"), AND 1.46 (DEFINITION
OF "CLAIMS TRADING INJUNCTION") FOR DETAILS REGARDING THE CLAIMS
TRADING INJUNCTION.
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ARTICLE I DEFINITIONS..........................................................................................1
A. Defined Terms........................................................................................1
1.1 144A Debt Securities.......................................................................1
1.2 144A Offering..............................................................................1
1.3 144A Offering Proceeds.....................................................................1
1.4 Administrative Bar Date Order..............................................................1
1.5 Administrative Expense.....................................................................1
1.6 Administrative Expense Creditor............................................................2
1.7 Administrative Expense Objection Deadline..................................................2
1.8 Affiliate..................................................................................2
1.9 Affiliate Claims...........................................................................2
1.10 Agent Bank.................................................................................2
1.11 Allowed....................................................................................2
1.12 Allowed Amount.............................................................................3
1.13 Amended and Restated Articles of Incorporation.............................................3
1.14 Amended and Restated By-Laws...............................................................4
1.15 Articles of Incorporation..................................................................4
1.16 Asbestos PD Bar Date.......................................................................4
1.17 Asbestos PD Claims Resolution Procedures...................................................4
1.18 Asbestos PD Committee......................................................................4
1.19 Asbestos PD Insurance Asset................................................................4
1.20 Asbestos PD Trust..........................................................................4
1.21 Asbestos PD Trust Agreement................................................................4
1.22 Asbestos PD Trust Funding Obligation.......................................................4
1.23 Asbestos PD Trustees.......................................................................5
1.24 Asbestos Personal Injury Claim.............................................................5
1.25 Asbestos PI Claimants' Committee...........................................................5
1.26 Asbestos PI Insurance Asset................................................................5
1.27 Asbestos PI Permanent Channeling Injunction................................................6
1.28 Asbestos PI Trust..........................................................................6
1.29 Asbestos PI Trust Agreement................................................................6
1.30 Asbestos PI Trust Distribution Procedures..................................................6
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1.31 Asbestos PI Trustees.......................................................................7
1.32 Asbestos Property Damage Claim.............................................................7
1.33 Asbestos Property Damage Contribution Claim................................................7
1.34 Available Cash.............................................................................7
1.35 AWWD.......................................................................................8
1.36 AWI........................................................................................8
1.37 Ballot.....................................................................................8
1.38 Bankruptcy Code............................................................................8
1.39 Bankruptcy Court...........................................................................8
1.40 Bankruptcy Rules...........................................................................8
1.41 Board of Directors.........................................................................8
1.42 Business Day...............................................................................8
1.43 Chapter 11 Case............................................................................8
1.44 Claim......................................................................................8
1.45 Claims Settlement Guidelines...............................................................9
1.46 Claims Trading Injunction..................................................................9
1.47 Class......................................................................................9
1.48 COLI Claims................................................................................9
1.49 Commencement Date..........................................................................9
1.50 Confirmation Date..........................................................................9
1.51 Confirmation Deadline......................................................................9
1.52 Confirmation Order.........................................................................9
1.53 Contingent Claim...........................................................................9
1.54 Convenience Claim.........................................................................10
1.55 Creditor..................................................................................10
1.56 Debtor....................................................................................10
1.57 Debtor in Possession......................................................................10
1.58 Debt Security Claim.......................................................................10
1.59 Demand....................................................................................10
1.60 DIP Credit Facility.......................................................................10
1.61 DIP Credit Facility Claim.................................................................10
1.62 DIP Lenders...............................................................................10
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1.63 Disallowed Claim..........................................................................10
1.64 Disbursing Agent..........................................................................10
1.65 Disputed Claim............................................................................10
1.66 Disputed Claim Amount.....................................................................10
1.67 Disputed Unsecured Claims Reserve.........................................................11
1.68 Distribution..............................................................................11
1.69 Distribution Date.........................................................................11
1.70 District Court............................................................................11
1.71 DTC.......................................................................................11
1.72 Employee Benefit Claim....................................................................11
1.73 Effective Date............................................................................11
1.74 Encumbrance...............................................................................11
1.75 Entity....................................................................................12
1.76 Environmental Claim.......................................................................12
1.77 Equity Interest...........................................................................12
1.78 Equity Value..............................................................................12
1.79 Estimated Amount..........................................................................12
1.80 Existing AWI Common Stock.................................................................12
1.81 Final Distribution Date...................................................................12
1.82 Final Order...............................................................................12
1.83 Future Claimants' Representative..........................................................13
1.84 Holdings..................................................................................13
1.85 Holdings Plan of Liquidation..............................................................13
1.86 Indentures................................................................................13
1.87 Indenture Trustees........................................................................13
1.88 Indenture Trustees' Fees and Expenses.....................................................13
1.89 Indirect PI Trust Claim...................................................................13
1.90 Initial Distribution Date.................................................................13
1.91 Internal Revenue Code.....................................................................14
1.92 IRS.......................................................................................14
1.93 Lazard....................................................................................14
1.94 New Common Stock..........................................................................14
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1.95 New Long-Term Incentive Plan..............................................................14
1.96 New Warrants..............................................................................14
1.97 Pennsylvania BCL..........................................................................14
1.98 PI Protected Party........................................................................14
1.99 Plan......................................................................................16
1.100 Plan Note Amount..........................................................................16
1.101 Plan Note Indenture.......................................................................16
1.102 Plan Notes................................................................................16
1.103 Priority Claim............................................................................16
1.104 Priority Tax Claim........................................................................16
1.105 Pro Rata Share............................................................................16
1.106 Qualified Appraisal.......................................................................17
1.107 Record Date...............................................................................17
1.108 Reorganized AWI...........................................................................17
1.109 Reorganization Consideration..............................................................17
1.110 Retention Period..........................................................................17
1.111 Schedules.................................................................................17
1.112 SEC.......................................................................................17
1.113 Secured Claim.............................................................................17
1.114 Stockholder and Registration Rights Agreement.............................................17
1.115 Subsidiary Debt Guarantee Claim...........................................................17
1.116 Treasury Regulations......................................................................17
1.117 Unliquidated Claim........................................................................17
1.118 Unsecured Claim...........................................................................17
1.119 Unsecured Creditors' Committee............................................................18
1.120 Voting Deadline...........................................................................18
1.121 Voting Procedures Order...................................................................18
B. Other Terms.........................................................................................18
C. Exhibits............................................................................................18
ARTICLE II PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS...........................18
2.1 Payment of Allowed Administrative Expenses................................................18
2.2 Compensation and Reimbursement Claims.....................................................19
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2.3 DIP Credit Facility Claim.................................................................19
2.4 Priority Tax Claims.......................................................................19
ARTICLE III CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS.........................................19
3.1 Summary...................................................................................19
3.2 Classification and Treatment..............................................................21
ARTICLE IV MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN.................................................28
4.1 Modification of the Plan..................................................................28
4.2 Revocation or Withdrawal..................................................................29
4.3 Amendment of Plan Documents...............................................................29
ARTICLE V PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS.........................................................29
5.1 Objections to Claims; Prosecution of Disputed Claims......................................29
5.2 Claims Settlement Guidelines..............................................................29
5.3 Distributions on Account of Disputed Claims...............................................29
5.4 Disputed Unsecured Claims Reserve.........................................................29
5.5 Tax Treatment of Disputed Unsecured Claims Reserve........................................30
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN.................................................................30
6.1 Impaired Classes to Vote..................................................................30
6.2 Acceptance by Class of Claims.............................................................30
6.3 Nonconsensual Confirmation................................................................30
ARTICLE VII IMPLEMENTATION OF THE PLAN..........................................................................30
7.1 Creation of Asbestos PI Trust.............................................................30
7.2 Appointment of Asbestos PI Trustees.......................................................31
7.3 Creation of Asbestos PD Trust.............................................................31
7.4 144A Offering.............................................................................31
7.5 Amendment of Articles of Incorporation....................................................31
7.6 Amendment of By-Laws.....................................................................31
7.7 Stockholder and Registration Rights Agreement.............................................32
7.8 Distributions under the Plan..............................................................32
7.9 Timing of Distributions under the Plan....................................................32
7.10 Disbursing Agent..........................................................................33
7.11 Record Date...............................................................................33
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7.12 Distributions to Holders of Debt Security Claims Administered
by the Indenture Trustees.................................................................33
7.13 Manner of Payment under the Plan..........................................................33
7.14 Hart-Scott-Rodino Compliance..............................................................34
7.15 Fractional Shares or Other Distributions..................................................34
7.16 Occurrence of the Confirmation Date.......................................................34
7.17 Occurrence of the Effective Date..........................................................37
7.18 Cancellation of Existing Debt Securities..................................................38
7.19 Expiration of the Retention Period........................................................38
7.20 Compensation of the Applicable Indenture Trustees.........................................38
7.21 Distribution of Unclaimed Property........................................................38
7.22 Management of Reorganized AWI.............................................................39
7.23 Listing of Reorganized AWI Common Stock...................................................39
7.24 Corporate Reorganization Actions..........................................................39
7.25 Holdings Transactions.....................................................................40
7.26 Compliance with QSF Regulations...........................................................40
7.27 Effectuating Documents and Further Transactions...........................................40
7.28 Allocation of Plan Distributions Between Principal and Interest...........................41
ARTICLE VIII EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................................................41
8.1 Assumption of Executory Contracts and Unexpired Leases....................................41
8.2 Rejection of Executory Contracts and Unexpired Leases.....................................41
8.3 Claims Arising from Rejection, Termination or Expiration..................................41
8.4 Previously Scheduled Contracts............................................................42
8.5 Insurance Policies and Agreements.........................................................42
8.6 Indemnification and Reimbursement Obligations.............................................43
8.7 Compensation and Benefit Programs.........................................................43
8.8 Management Agreements.....................................................................45
ARTICLE IX RETENTION OF JURISDICTION...........................................................................46
ARTICLE X TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS PI TRUST.............47
10.1 Transfer of Certain Property to the Asbestos PI Trust.....................................47
10.2 Assumption of Certain Liabilities by the Asbestos PI Trust................................49
10.3 Cooperation with Respect to Insurance Matters.............................................49
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10.4 Authority of AWI..........................................................................49
ARTICLE XI ASBESTOS PROPERTY DAMAGE CLAIMS.....................................................................50
11.1 Transfer of Certain Property to the Asbestos PD Trust.....................................50
11.4 Assumption of Certain Liabilities by the Asbestos PD Trust................................50
11.5 Cooperation with Respect to Insurance Matters.............................................51
11.6 Authority of AWI..........................................................................51
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................51
12.1 Payment of Statutory Fees.................................................................51
12.2 Discharge of AWI..........................................................................51
12.3 Rights of Action..........................................................................52
12.4 Third Party Agreements....................................................................52
12.5 Dissolution of Committees.................................................................52
12.6 Exculpation...............................................................................53
12.7 Title to Assets; Discharge of Liabilities.................................................53
12.8 Surrender and Cancellation of Instruments.................................................53
12.9 Notices...................................................................................53
12.10 Headings..................................................................................55
12.11 Severability..............................................................................55
12.12 Governing Law.............................................................................55
12.13 Compliance with Tax Requirements..........................................................55
12.14 Exemption from Transfer Taxes.............................................................55
12.15 Expedited Determination of Postpetition Taxes.............................................55
vii
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
- ------------------------------------------------- X
IN RE : CHAPTER 11 CASE NO.
:
ARMSTRONG WORLD INDUSTRIES, : 00-4471 (RJN)
INC., ET AL., :
:
DEBTORS. : (JOINTLY ADMINISTERED)
- ------------------------------------------------- X
THIRD AMENDED PLAN OF REORGANIZATION
OF ARMSTRONG WORLD INDUSTRIES, INC.
Armstrong World Industries, Inc. hereby proposes the following
plan of reorganization:
ARTICLE I
DEFINITIONS
A. DEFINED TERMS. As used herein, the following terms shall have
the respective meanings specified below, unless the context otherwise requires:
1.1 144A Debt Securities: Debt securities issued by Reorganized
AWI in a 144A Offering, having terms and conditions as determined by AWI and the
initial purchasers in their sole discretion; provided, however, that if the 144A
Offering Proceeds are less than the Plan Note Amount, then AWI may not issue the
144A Debt Securities without the consent of the Asbestos PI Claimants'
Committee, the Future Claimants' Representative, and, if Class 6 votes to accept
the Plan, the Unsecured Creditors' Committee.
1.2 144A Offering: One or more private offerings of 144A Debt
Securities, pursuant to Rule 144A and/or Regulation S under the Securities Act
of 1933, through initial purchasers to institutional and other investors,
completed on or after the Effective Date but prior to the Initial Distribution
Date.
1.3 144A Offering Proceeds: The amount of the aggregate net cash
proceeds of any 144A Offerings.
1.4 Administrative Bar Date Order: An order of the Bankruptcy
Court setting a deadline for the filing of certain Administrative Expenses.
1.5 Administrative Expense: Any Claim constituting a cost or
expense of administration in the Chapter 11 Case under section 503 of the
Bankruptcy Code, including, without express or implied limitation, any actual
and necessary costs and expenses of preserving the estate of AWI, any expenses
of professionals under sections 330 and 331 of the Bankruptcy Code, any actual
and necessary costs and expenses of operating the businesses of AWI, any
indebtedness or obligations incurred or assumed by AWI, as debtor in possession,
in connection with the conduct of its business or for the acquisition or lease
of property or the rendition of services, any allowed compensation or
reimbursement of expenses under section 503(b)(2)-(5) of the Bankruptcy Code,
and any fees or charges assessed against the estate of AWI under section 1930,
chapter 123, title 28, United States Code.
1.6 Administrative Expense Creditor: Any Creditor entitled to
payment of an Administrative Expense.
1.7 Administrative Expense Objection Deadline: The first Business
Day that is thirty (30) days after the Effective Date, as such date may be
extended from time to time by order of the Bankruptcy Court.
1.8 Affiliate: Any Entity, other than (a) an Entity in which AWI
has less than a fifty percent (50%) direct or indirect interest, (b) AWWD, or
(c) Holdings, that is an "affiliate" of AWI, as of the date immediately
preceding the Effective Date, within the meaning of section 101(2) of the
Bankruptcy Code.
1.9 Affiliate Claims: All Claims against AWI held by an
Affiliate.
1.10 Agent Bank: The JPMorgan Chase Bank, or such other Entity
acting as agent under the DIP Credit Facility from time to time.
1.11 Allowed:
(a) With respect to any Claim (other than an Administrative
Expense, Asbestos Property Damage Claim or Asbestos Personal Injury Claim),
proof of which was filed within the applicable period of limitation fixed in
accordance with Bankruptcy Rule 3003(c)(3) by the Bankruptcy Court, (i) as to
which no objection to the allowance thereof has been interposed within the
applicable period of limitation fixed by the Plan, the Bankruptcy Code, the
Bankruptcy Rules, or a Final Order of the Bankruptcy Court, such Claim to the
extent asserted in the proof of such Claim, or (ii) as to which an objection has
been interposed, such Claim to the extent that it has been allowed in whole or
in part by a Final Order of the Bankruptcy Court or by an agreement with AWI or
Reorganized AWI, as the case may be, in accordance with the Claims Settlement
Guidelines as in effect at the time of such agreement.
(b) With respect to any Claim (other than an Administrative
Expense or Asbestos Personal Injury Claim), as to which no proof of claim was
filed within the applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Bankruptcy Rules, or a Final Order of the Bankruptcy Court,
such Claim to the extent that it has been listed by AWI in its Schedules as
liquidated in amount and not disputed or contingent.
(c) With respect to any Claim that is asserted to constitute an
Administrative Expense
(i) that represents an actual or necessary expense of
preserving the estate or operating the business of AWI for
payment of goods, services, wages, or benefits or for credit
extended to AWI, as debtor in possession, any such Claim to the
extent that such claim is reflected as a postpetition liability
of AWI on AWI's books and records as of the Effective Date;
(ii) in an action against AWI pending as of the Confirmation
Date or not required to be filed against AWI pursuant to the
Administrative Bar Date Order, any such Claim to the extent (x)
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it is allowed by a Final Order of a court of competent
jurisdiction or by agreement between Reorganized AWI and the
holder of such Administrative Expense, and (y) if AWI disputes
that such claim is a cost or expense of administration under
sections 503(b) and 507(a)(1) of the Bankruptcy Code, to the
extent the Bankruptcy Court determines by a Final Order that it
constitutes a cost or expense of administration under sections
503(b) and 507(a)(1) of the Bankruptcy Code;
(iii) timely filed in accordance with the Administrative Bar
Date Order, any such Claim to the extent (i) no objection is
interposed by the Administrative Expense Objection Deadline or
(ii) if an objection is interposed by the Administrative Expense
Objection Deadline, is allowed in whole or in part by a Final
Order of the Bankruptcy Court and only to the extent that such
allowed portion is deemed, pursuant to a Final Order of the
Bankruptcy Court, to constitute a cost or expense of
administration under sections 503(b) and 507(a)(1) of the
Bankruptcy Code; or
(iv) that represents a Claim of a professional person
employed under section 327 or 1103 of the Bankruptcy Code that is
required to apply to the Bankruptcy Court for the allowance of
compensation and reimbursement of expenses pursuant to section
330 of the Bankruptcy Code or an Administrative Expense arising
under section 503(b)(2), 503(b)(3), 503(b)(4), 503(b)(5), or
503(b)(6) of the Bankruptcy Code, such Claim to the extent it is
allowed by a Final Order of the Bankruptcy Court.
(d) With respect to any Asbestos Personal Injury Claim, such
Claim to the extent that it is Allowed in accordance with the procedures
established pursuant to the Asbestos PI Trust Agreement and the Asbestos PI
Trust Distribution Procedures. Pursuant to the Confirmation Order, an Allowed
Claim, with respect to any Asbestos Personal Injury Claim, shall establish the
amount of legal liability against the Asbestos PI Trust in the amount of the
liquidated value of such Claim, as determined in accordance with the Asbestos PI
Trust Distribution Procedures.
(e) With respect to any Asbestos Property Damage Claim, proof of
which was filed by the Asbestos PD Bar Date, such Claim to the extent that it is
allowed by an order of the Bankruptcy Court prior to the Effective Date or is
allowed in accordance with the Asbestos PD Claims Resolution Procedures and such
other procedures as may be established in connection with the Asbestos PD Trust.
Pursuant to the Confirmation Order, an Allowed Claim, with respect to any
Asbestos Property Damage Claim, shall establish the amount of legal liability
against the Asbestos PD Trust in the allowed amount of such Claim, as determined
by an order of the Bankruptcy Court allowing such Claim prior to the Effective
Date or in accordance with the Asbestos PD Claims Resolution Procedures.
1.12 Allowed Amount: The lesser of (a) the dollar amount of an
Allowed Claim or (b) the Estimated Amount of such Claim. Unless otherwise
specified herein, in the Asbestos PI Trust Distribution Procedures or by Final
Order of the Bankruptcy Court, the Allowed Amount of an Allowed Claim shall not
include interest accruing on such Allowed Claim from and after the Commencement
Date.
1.13 Amended and Restated Articles of Incorporation: The Articles
of Incorporation of Reorganized AWI, to be amended and restated in accordance
with section 7.1 hereof, in substantially the form of Exhibit 1.13 to the Plan.
3
1.14 Amended and Restated By-Laws: The By-Laws of Reorganized
AWI, to be amended and restated in accordance with section 7.5 hereof, in
substantially the form of Exhibit 1.14 to the Plan.
1.15 Articles of Incorporation: The Articles of Incorporation of
AWI, as such Articles of Incorporation may be amended by the Amended and
Restated Articles of Incorporation or otherwise.
1.16 Asbestos PD Bar Date: March 20, 2002.
1.17 Asbestos PD Claims Resolution Procedures: The procedures to
be used for the allowance of Asbestos Property Damage Claims that have not
become Allowed or Disallowed Claims as of the Effective Date. If Class 4 votes
to accept the Plan, the Asbestos PD Claims Resolution Procedures will be
developed by the Asbestos PD Committee. If Class 4 rejects the Plan, the
Asbestos PD Claims Resolution Procedures will be substantially in the form
annexed hereto as Exhibit 1.17, with such modifications to such Exhibit as may
be ordered by the Bankruptcy Court.
1.18 Asbestos PD Committee: The Asbestos Property Damage
Committee, consisting of Entities appointed as members in the Chapter 11 Case by
the United States Trustee for the District of Delaware and their duly appointed
successors, if any, as the same may be reconstituted from time to time.
1.19 Asbestos PD Insurance Asset: All rights arising under
liability insurance policies issued to AWI with inception dates prior to January
1, 1982 with respect to the liability for Asbestos Property Damage Claims
channeled to, and assumed by, the Asbestos PD Trust pursuant to Article XI of
the Plan and the Asbestos PD Trust Agreement, subject to a maximum total limit
equal to the aggregate value of Asbestos PD Claims, as estimated by the
Bankruptcy Court, applicable solely to settlement payments or judgments (but not
to defense costs). The foregoing includes, but is not limited to, rights under
insurance policies, rights under settlement agreements made with respect to such
insurance policies, rights against the estates of insolvent insurers that issued
such policies or entered into such settlements, and rights against state
insurance guaranty associations arising out of any such insurance policies
issued by insolvent insurers.
1.20 Asbestos PD Trust: The trust established by AWI in
accordance with the Asbestos PD Trust Agreement.
1.21 Asbestos PD Trust Agreement: That certain AWI Asbestos
Property Damage Settlement Trust Agreement, executed by AWI and the Asbestos PD
Trustees, substantially in the form of Exhibit 1.21 to the Plan.
1.22 Asbestos PD Trust Funding Obligation: If Class 4 votes to
accept the Plan, $2 million (which will be funded solely from insurance proceeds
as provided in section 11.2 of the Plan and which will be reduced to $1 million
if fewer than ten (10) but more than five (5) Asbestos Property Damage Claims
constitute Disputed Claims as of the Effective Date or reduced to $500,000 if
fewer than five (5) Asbestos Property Damage Claims constitute Disputed Claims
as of the Effective Date) or, if Class 4 votes to reject the Plan, the Asbestos
PD Insurance Asset having a value equal to the aggregate value of all Asbestos
Property Damage Claims that remain Disputed Claims as estimated by the
Bankruptcy Court.
4
1.23 Asbestos PD Trustees: Collectively, the Entities confirmed
by the Bankruptcy Court to serve as trustees of the Asbestos PD Trust, pursuant
to the terms of the Asbestos PD Trust Agreement, or as subsequently may be
appointed pursuant to the provisions of the Asbestos PD Trust Agreement.
1.24 ASBESTOS PERSONAL INJURY CLAIM: ANY CLAIM OR REMEDY,
LIABILITY, OR DEMAND AGAINST AWI NOW EXISTING OR HEREAFTER ARISING, WHETHER OR
NOT SUCH CLAIM, REMEDY, LIABILITY, OR DEMAND IS REDUCED TO JUDGMENT, LIQUIDATED,
UNLIQUIDATED, FIXED, CONTINGENT, MATURED, UNMATURED, DISPUTED, UNDISPUTED,
LEGAL, EQUITABLE, SECURED, OR UNSECURED, WHETHER OR NOT THE FACTS OF OR LEGAL
BASES THEREFOR ARE KNOWN OR UNKNOWN, UNDER ANY THEORY OF LAW, EQUITY, ADMIRALTY,
OR OTHERWISE, FOR DEATH, BODILY INJURY, SICKNESS, DISEASE, OR OTHER PERSONAL
INJURIES (WHETHER PHYSICAL, EMOTIONAL, OR OTHERWISE) TO THE EXTENT CAUSED OR
ALLEGEDLY CAUSED, DIRECTLY OR INDIRECTLY, BY THE PRESENCE OF OR EXPOSURE
(WHETHER PRIOR TO OR AFTER THE COMMENCEMENT DATE) TO ASBESTOS OR
ASBESTOS-CONTAINING PRODUCTS THAT WAS OR WERE INSTALLED, MANUFACTURED, SOLD,
SUPPLIED, PRODUCED, DISTRIBUTED, RELEASED, OR MARKETED BY AWI OR AN ENTITY FOR
WHOSE PRODUCTS OR OPERATIONS AWI ALLEGEDLY HAS LIABILITY OR FOR WHICH AWI IS
OTHERWISE LIABLE, INCLUDING, WITHOUT EXPRESS OR IMPLIED LIMITATION, ANY CLAIM,
REMEDY, LIABILITY, OR DEMAND FOR COMPENSATORY DAMAGES (SUCH AS LOSS OF
CONSORTIUM, WRONGFUL DEATH, SURVIVORSHIP, PROXIMATE, CONSEQUENTIAL, GENERAL, AND
SPECIAL DAMAGES) AND PUNITIVE DAMAGES, AND ANY CLAIM, REMEDY, LIABILITY OR
DEMAND FOR REIMBURSEMENT, INDEMNIFICATION, SUBROGATION AND CONTRIBUTION
(INCLUDING, WITHOUT LIMITATION, ANY INDIRECT PI TRUST CLAIM), AND ANY CLAIM
UNDER ANY SETTLEMENT ENTERED INTO BY OR ON BEHALF OF AWI PRIOR TO THE
COMMENCEMENT DATE RELATING TO AN ASBESTOS PERSONAL INJURY CLAIM. AN ASBESTOS
PROPERTY DAMAGE CLAIM OR A WORKERS' COMPENSATION CLAIM BROUGHT DIRECTLY BY A
PAST OR PRESENT EMPLOYEE OF AWI UNDER AN APPLICABLE WORKERS' COMPENSATION
STATUTE AGAINST AWI SHALL NOT CONSTITUTE AN ASBESTOS PERSONAL INJURY CLAIM.
1.25 Asbestos PI Claimants' Committee: The Official Committee of
Asbestos Claimants, consisting of Entities appointed as members in the Chapter
11 Case by the United States Trustee for the District of Delaware and their duly
appointed successors, if any, as the same may be reconstituted from time to
time.
1.26 Asbestos PI Insurance Asset: All rights arising under
liability insurance policies issued to AWI with inception dates prior to January
1, 1982 with respect to the liability for Asbestos Personal Injury Claims (with
the exception of AWI's claim against Liberty Mutual Insurance Company for costs,
expenses and fees incurred in connection with an Alternative Dispute Resolution
Proceeding initiated in 1996 under the Agreement Concerning Asbestos Related
Claims of June 19, 1985, AWI's claim against Century Indemnity Company for
payments due and owing to AWI before February 2003 under a settlement agreement
dated February 8, 2000, together with applicable interest to the date of
payment, and AWI's rights to insurance relating to workers' compensation
claims). The foregoing includes, but is not limited to, rights under insurance
policies, rights under settlement agreements made with respect to such insurance
policies (with the exception of AWI's claim against Century Indemnity Company
for amounts, including, without limitation, interest, due and owing under a
settlement agreement dated February 8, 2000), rights against the estates of
insolvent insurers that issued such policies or entered into such settlements,
and rights against state insurance guaranty associations arising out of any such
insurance policies issued by insolvent insurers. The foregoing also includes the
right, on behalf of AWI and its subsidiaries as of the Effective Date, to give a
full release of the insurance rights of AWI and its subsidiaries as of the
Effective Date under any such policy or settlement agreement with the exception
of rights to coverage for Asbestos Property Damage Claims and rights to coverage
5
for the amount that AWI agreed to pay to plaintiffs in Maertin et al. v.
Armstrong World Industries, Inc. et al., No. 95-CV-20849 (JBS) (D.N.J.) in a
settlement agreement executed November 22, 2000 and rights to coverage with
respect to workers' compensation claims.
1.27 ASBESTOS PI PERMANENT CHANNELING INJUNCTION: AN ORDER OR
ORDERS OF THE DISTRICT COURT IN ACCORDANCE WITH, AND PURSUANT TO, SECTION 524(G)
OF THE BANKRUPTCY CODE PERMANENTLY AND FOREVER STAYING, RESTRAINING, AND
ENJOINING ANY ENTITY FROM TAKING ANY OF THE FOLLOWING ACTIONS FOR THE PURPOSE
OF, DIRECTLY OR INDIRECTLY, COLLECTING, RECOVERING, OR RECEIVING PAYMENT OF, ON,
OR WITH RESPECT TO ANY ASBESTOS PERSONAL INJURY CLAIMS, ALL OF WHICH SHALL BE
CHANNELED TO THE ASBESTOS PI TRUST FOR RESOLUTION AS SET FORTH IN THE ASBESTOS
PI TRUST DISTRIBUTION PROCEDURES (OTHER THAN ACTIONS BROUGHT TO ENFORCE ANY
RIGHT OR OBLIGATION UNDER THE PLAN, ANY EXHIBITS TO THE PLAN, OR ANY OTHER
AGREEMENT OR INSTRUMENT BETWEEN AWI OR REORGANIZED AWI AND THE ASBESTOS PI
TRUST, WHICH ACTIONS SHALL BE IN CONFORMITY AND COMPLIANCE WITH THE PROVISIONS
HEREOF), INCLUDING, BUT NOT LIMITED TO:
(a) COMMENCING, CONDUCTING, OR CONTINUING IN ANY MANNER, DIRECTLY
OR INDIRECTLY, ANY SUIT, ACTION, OR OTHER PROCEEDING (INCLUDING, WITHOUT EXPRESS
OR IMPLIED LIMITATION, A JUDICIAL, ARBITRAL, ADMINISTRATIVE, OR OTHER
PROCEEDING) IN ANY FORUM AGAINST OR AFFECTING ANY PI PROTECTED PARTY OR ANY
PROPERTY OR INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY;
(b) ENFORCING, LEVYING, ATTACHING (INCLUDING, WITHOUT EXPRESS OR
IMPLIED LIMITATION, ANY PREJUDGMENT ATTACHMENT), COLLECTING, OR OTHERWISE
RECOVERING BY ANY MEANS OR IN ANY MANNER, WHETHER DIRECTLY OR INDIRECTLY, ANY
JUDGMENT, AWARD, DECREE, OR OTHER ORDER AGAINST ANY PI PROTECTED PARTY OR ANY
PROPERTY OR INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY;
(c) CREATING, PERFECTING, OR OTHERWISE ENFORCING IN ANY MANNER,
DIRECTLY OR INDIRECTLY, ANY ENCUMBRANCE AGAINST ANY PI PROTECTED PARTY OR ANY
PROPERTY OR INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY;
(d) SETTING OFF, SEEKING REIMBURSEMENT OF, CONTRIBUTION FROM, OR
SUBROGATION AGAINST, OR OTHERWISE RECOUPING IN ANY MANNER, DIRECTLY OR
INDIRECTLY, ANY AMOUNT AGAINST ANY LIABILITY OWED TO ANY PI PROTECTED PARTY OR
ANY PROPERTY OR INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY; AND
(e) PROCEEDING IN ANY MANNER IN ANY PLACE WITH REGARD TO ANY
MATTER THAT IS SUBJECT TO RESOLUTION PURSUANT TO THE ASBESTOS PI TRUST, EXCEPT
IN CONFORMITY AND COMPLIANCE THEREWITH.
1.28 Asbestos PI Trust: The trust established by AWI in
accordance with the Asbestos PI Trust Agreement.
1.29 Asbestos PI Trust Agreement: That certain AWI Asbestos
Personal Injury Settlement Trust Agreement, executed by AWI and the Asbestos PI
Trustees, substantially in the form of Exhibit 1.29 to the Plan.
1.30 Asbestos PI Trust Distribution Procedures: The AWI Asbestos
Personal Injury Settlement Trust Distribution Procedures to be implemented by
the Asbestos PI Trustees pursuant to the terms and conditions of the Plan and
6
the Asbestos PI Trust Agreement to process, liquidate, and pay Asbestos Personal
Injury Claims, substantially in the form of Exhibit 1.30 to the Plan.
1.31 Asbestos PI Trustees: Collectively, the persons confirmed by
the Bankruptcy Court to serve as trustees of the Asbestos PI Trust, pursuant to
the terms of the Asbestos PI Trust Agreement, or as subsequently may be
appointed pursuant to the terms of the Asbestos PI Trust Agreement.
1.32 Asbestos Property Damage Claim: Any Claim or remedy or
liability against AWI, whether or not such Claim, remedy, or liability is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured,
whether or not the facts of or legal bases therefor are known or unknown, under
any theory of law, equity, admiralty, or otherwise, for damages for property
damage, including but not limited to, the cost of inspecting, maintaining,
encapsulating, repairing, decontaminating, removing or disposing of asbestos or
asbestos-containing products in buildings, other structures, or other property
arising from the installation in, presence in or removal from buildings or other
structures of asbestos or asbestos-containing products that was or were
installed, manufactured, sold, supplied, produced, distributed, released or
marketed by AWI prior to the Commencement Date, or for which AWI is allegedly
liable, including, without express or implied limitation, any such Claims,
remedies and liabilities for compensatory damages (such as proximate,
consequential, general, and special damages) and punitive damages, and any
Claim, remedy or liability for reimbursement, indemnification, subrogation and
contribution, including, without limitation, any Asbestos Property Damage
Contribution Claim. Asbestos Property Damage Claims shall not include Asbestos
Personal Injury Claims.
1.33 Asbestos Property Damage Contribution Claim: Any Claim or
remedy or liability against AWI, whether or not such Claim, remedy or liability
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured,
whether or not the facts of or legal bases for such Claim, remedy or liability
are known or unknown, that is (i) held by (A) any Entity (other than a director
or officer entitled to indemnification pursuant to section 8.6 of the Plan) who
has been, is, or may be a defendant in an action seeking damages for property
damage, including but not limited to, the cost of inspecting, maintaining,
encapsulating, repairing, decontaminating, removing or disposing of asbestos or
asbestos-containing products in buildings, other structures, or other property,
or (B) any assignee or transferee of such Entity, and (ii) on account of alleged
liability by AWI for reimbursement, indemnification, subrogation, or
contribution of any portion of any damages such Entity has paid or may pay to
the plaintiff in such action.
1.34 Available Cash: The sum of the following: (a) all cash on
hand of AWI and its subsidiaries as of the last day of the month immediately
preceding the Effective Date less the sum of the following as of such date: (i)
One Hundred Million and 00/100 Dollars ($100,000,000.00) or such lesser amount
as AWI, in its sole discretion (after consultation with the Asbestos PI
Claimants' Committee, Unsecured Creditors' Committee, and the Future Claimants'
Representative), determines it requires for working capital purposes, (ii) the
Allowed Amount of Allowed Administrative Expenses, (iii) a reasonable estimate
by AWI of additional Administrative Expenses (such as professional fees and
expenses) that may become Allowed thereafter (other than Administrative Expenses
of the type specified in section 1.11(c)(i) of the Plan) and fees and expenses
payable in connection with any exit facility referred to in section 7.17(h) of
the Plan, (iv) the Allowed Amount of Allowed Priority Tax Claims, (v) a
reasonable estimate by AWI of additional Priority Tax Claims that may become
Allowed thereafter, (vi) the Allowed Amount of all Priority Claims, (vii) a
reasonable estimate of all Priority Claims that may became Allowed thereafter,
7
(viii) the DIP Credit Facility Claim, (ix) the cash required to make the
distributions for Class 3 (Convenience Claims) for those that are Allowed and a
reasonable estimate by AWI of additional Convenience Claims that may become
Allowed thereafter, (x) any other cash required to be paid or distributed by AWI
pursuant to the Plan (other than in respect of "Available Cash" and in respect
of the Asbestos PD Trust Funding Obligation), and (xi) the amount reasonably
estimated by AWI to be the cost of curing any defaults under the executory
contracts and unexpired leases to be assumed by AWI under the Plan, (b) any
amounts drawn, in AWI's sole discretion, under the working capital facility
referenced in section 7.17(h) of the Plan for the purpose of funding the
Distributions under the Plan, and (c) any proceeds of insurance received and
retained by Reorganized AWI from the Effective Date to the Final Distribution
Date on account of an Allowed Environmental Claim that is treated as an Allowed
Unsecured Claim in accordance with sections 3.2(f) and 3.2(h) of the Plan.
1.35 AWWD: Armstrong Worldwide, Inc., a Delaware corporation.
1.36 AWI: Armstrong World Industries, Inc., a Pennsylvania
corporation.
1.37 Ballot: The form or forms distributed to holders of impaired
Claims and Equity Interests on which is to be indicated the acceptance or
rejection of the Plan.
1.38 Bankruptcy Code: The Bankruptcy Reform Act of 1978, as
amended, and as codified in title 11 of the United States Code, as applicable to
the Chapter 11 Case.
1.39 Bankruptcy Court: The United States District Court for the
District of Delaware, having jurisdiction over the Chapter 11 Case and, to the
extent of any reference made pursuant to section 157 of title 28 of the United
States Code, the unit of such District Court constituted pursuant to section 151
of title 28 of the United States Code.
1.40 Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure,
as amended, as applicable to the Chapter 11 Case, including the Local Rules of
the Bankruptcy Court.
1.41 Board of Directors: The Board of Directors of AWI or
Reorganized AWI, as it may exist from time to time.
1.42 Business Day: Any day on which commercial banks are required
to be open for business in New York, New York.
1.43 Chapter 11 Case: The chapter 11 case of AWI pending in the
Bankruptcy Court as In re Armstrong World Industries, Inc., et al., Case No.
00-4471 (RJN) (Jointly Administered).
1.44 Claim: (a) A "claim," as defined in section 101(5) of the
Bankruptcy Code, against AWI, as debtor or Debtor in Possession, whether or not
asserted, whether or not the facts of or legal bases therefor are known or
unknown, and specifically including, without express or implied limitation, any
rights under sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, any
claim of a derivative nature, any potential or unmatured contract claims, and
any other Contingent Claim, and (b) any Environmental Claim, whether or not it
constitutes a "claim" under section 101(5) of the Bankruptcy Code, but in either
case, not including a Demand.
8
1.45 Claims Settlement Guidelines: The settlement guidelines and
authority contained in that certain Order Granting Motion of the Debtors for
Order Pursuant to Section 105(a) of the Bankruptcy Code and Bankruptcy Rule
9019(b) Authorizing the Establishment of Procedures to Settle Certain
Prepetition Claims Against the Debtors' Estates dated May 31, 2002, as amended
by the amendments set forth in Exhibit 1.45 to the Plan.
1.46 CLAIMS TRADING INJUNCTION: AN ORDER OR ORDERS OF THE
BANKRUPTCY COURT PERMANENTLY AND FOREVER STAYING, RESTRAINING, AND ENJOINING ANY
ENTITY FROM, DIRECTLY OR INDIRECTLY, PURCHASING, SELLING, TRANSFERRING,
ASSIGNING, CONVEYING, PLEDGING, OR OTHERWISE ACQUIRING OR DISPOSING OF ANY
ASBESTOS PERSONAL INJURY CLAIM OR ASBESTOS PROPERTY DAMAGE CLAIM; PROVIDED,
HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO (I) THE TRANSFER OF AN ASBESTOS
PERSONAL INJURY CLAIM OR ASBESTOS PROPERTY DAMAGE CLAIM TO THE HOLDER OF AN
INDIRECT PI TRUST CLAIM OR ASBESTOS PROPERTY DAMAGE CONTRIBUTION CLAIM, AS THE
CASE MAY BE, SOLELY AS A RESULT OF SUCH HOLDER'S SATISFACTION OF SUCH ASBESTOS
PERSONAL INJURY CLAIM OR ASBESTOS PROPERTY DAMAGE CONTRIBUTION CLAIM, AS THE
CASE MAY BE, OR (II) THE TRANSFER OF AN ASBESTOS PERSONAL INJURY CLAIM OR
ASBESTOS PROPERTY DAMAGE CLAIM BY WILL OR UNDER THE LAWS OF DESCENT AND
DISTRIBUTION. ANY SUCH ORDER OR ORDERS ALSO WILL PROVIDE THAT ANY ACTION TAKEN
IN VIOLATION THEREOF WILL BE VOID AB INITIO.
1.47 Class: Any group of Claims or Equity Interests classified by
the Plan pursuant to section 1122(a)(1) of the Bankruptcy Code.
1.48 COLI Claims: All amounts due to Pacific Life Insurance
Company for loans made by Pacific Life Insurance Company to AWI against (and
collateralized by) certain life insurance policies for which AWI is the holder
and beneficiary and for which certain of AWI's employees are insureds.
1.49 Commencement Date: December 6, 2000.
1.50 Confirmation Date: The date on which the Confirmation Order
is entered by the Clerk of the Bankruptcy Court.
1.51 Confirmation Deadline: The date that is two hundred seventy
(270) days after the filing of the Plan with the Bankruptcy Court or such later
date as AWI, the Asbestos PI Claimants' Committee, the Future Claimants'
Representative, and the Unsecured Creditors' Committee may agree in writing.
1.52 Confirmation Order: The order or orders of the Bankruptcy
Court confirming the Plan in accordance with the provisions of chapter 11 of the
Bankruptcy Code, which will contain, inter alia, the Asbestos PI Permanent
Channeling Injunction and the Claims Trading Injunction.
1.53 Contingent Claim: Any Claim (other than an Asbestos Personal
Injury Claim), the liability for which attaches or is dependent upon the
occurrence or happening, or is triggered by, an event, which event has not yet
occurred, happened, or been triggered, as of the date on which such Claim is
sought to be estimated or an objection to such Claim is filed, whether or not
such event is within the actual or presumed contemplation of the holder of such
Claim and whether or not a relationship between the holder of such Claim and AWI
now or hereafter exists or previously existed.
9
1.54 Convenience Claim: As to each holder of an Unsecured Claim,
other than a Debt Security Claim, (a) an Unsecured Claim held by such holder in
an Allowed Amount of Ten Thousand and 00/100 Dollars ($10,000.00) or less or (b)
an Unsecured Claim of such holder the Allowed Amount of which has been reduced
to Ten Thousand and 00/100 Dollars ($10,000.00) by the election of the holder
thereof, as provided on the Ballot.
1.55 Creditor: Any Entity that holds a Claim against AWI as
Debtor or Debtor in Possession.
1.56 Debtor: AWI.
1.57 Debtor in Possession: AWI in its capacity as a debtor in
possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
1.58 Debt Security Claim: Any Unsecured Claim represented by a
series of notes or debt securities issued pursuant to an indenture, bank credit
agreement, or a note purchase agreement prior to the Commencement Date or any
guarantee by AWI of any obligations of another Entity under any series of notes
or debt securities issued pursuant to an indenture, bank credit agreement, or a
note purchase agreement prior to the Commencement Date.
1.59 Demand: A demand for payment, present or future, that (i)
was not a Claim during the Chapter 11 Case; (ii) arises out of the same or
similar conduct or events that gave rise to the Claims addressed by the Asbestos
PI Permanent Channeling Injunction; and (iii) pursuant to the Plan, is to be
paid by the Asbestos PI Trust.
1.60 DIP Credit Facility: Revolving Credit and Guaranty Agreement
dated as of December 6, 2000 among Armstrong World Industries, Inc., a
Pennsylvania corporation, and its subsidiaries, Nitram Liquidators, Inc., a
Delaware corporation, and Desseaux Corporation of North America, a Delaware
corporation, the banks party thereto, and the Agent Bank, as amended, modified
or supplemented from time to time.
1.61 DIP Credit Facility Claim: Collectively, all Claims of the
DIP Lenders arising under the DIP Credit Facility.
1.62 DIP Lenders: The financial institutions party to the DIP
Credit Facility.
1.63 Disallowed Claim: A Claim that is disallowed in its entirety
by an order of the Bankruptcy Court or such other court of competent
jurisdiction or that is disallowed in its entirety pursuant to the Asbestos PI
Trust Distribution Procedures or the Asbestos PD Claims Resolution Procedures,
as the case may be.
1.64 Disbursing Agent: Any Entity in its capacity as a disbursing
agent under section 7.10 hereof.
1.65 Disputed Claim: A Claim (other than an Asbestos Personal
Injury Claim) that is neither an Allowed Claim nor a Disallowed Claim.
1.66 Disputed Claim Amount: The Estimated Amount of a Disputed
Claim, or, if no Estimated Amount exists, the amount set forth in the proof of
claim relating to such Disputed Claim as the liquidated amount of such Disputed
Claim.
10
1.67 Disputed Unsecured Claims Reserve: The trust established
pursuant to section 5.4 of the Plan to hold the portion of Plan Notes reserved
for Distribution pending the resolution of Disputed Claims in Class 6 of the
Plan.
1.68 Distribution: The payment or distribution under the Plan of
property or interests in property to the holders of Allowed Claims (other than
Asbestos Personal Injury Claims and Asbestos Property Damage Claims), the holder
of the Equity Interest, and to the Asbestos PI Trust and the Asbestos PD Trust.
1.69 Distribution Date: (a) The Initial Distribution Date, (b)
the first Business Day after the end of the months of March, June, September,
and December, commencing with the first such date to occur more than one hundred
eighty (180) days after the Effective Date and until the second anniversary of
the Effective Date, (c) after the second anniversary of the Effective Date, the
first Business Day after the end of the month of December, and (d) the Final
Distribution Date; provided, however, that (i) a Distribution Date (other than
the Initial Distribution Date and the Final Distribution Date) shall not occur
if the aggregate amount of Plan Notes and/or 144A Offering Proceeds and
Available Cash to be distributed on any Distribution Date is less than One
Million and 00/100 Dollars ($1,000,000.00), in which case the amount to be
distributed shall be retained and added to the amount to be distributed on the
next Distribution Date, and (ii) any Unsecured Claim that becomes Allowed less
than twenty (20) Business Days prior to a Distribution Date shall be treated as
a Disputed Claim for the purposes of the Distribution occurring on such
Distribution Date and shall not receive a Distribution until the Distribution
Date immediately succeeding such Distribution Date. 1.70 District Court: The
United States District Court for the District of Delaware having jurisdiction
over the Chapter 11 Case.
1.71 DTC: Depository Trust Company.
1.72 Employee Benefit Claim: Any Claim of a current or former
employee of AWI, a current or former employee of any current or former
subsidiary of AWI, or of the Pension Benefit Guaranty Corporation, for benefits
payable or arising under any of the plans being assumed pursuant to section
8.7(a) of the Plan; provided, however, that any Claim for damages or other
relief arising from any termination of any plans pursuant to section 8.7(b) of
the Plan, any "rejection" of any plans as to any party that objects to any
amendment under section 8.7(c) of the Plan, based upon any alleged breach by AWI
of its responsibilities or duties under any plan specified in section 8.7(a) of
the Plan (other than any obligation to pay the benefits arising thereunder, as
modified), or related to the allegations made by the plaintiffs in those certain
two class action complaints asserting various federal law claims under ERISA
filed in the United States District Court for the Eastern District of
Pennsylvania by Dean A. Markley, Michael Resetar, and Lori Shearer shall be
deemed an Unsecured Claim.
1.73 Effective Date: The first Business Day of the month
immediately following the date by which all of the conditions precedent to the
effectiveness of the Plan specified in Section 7.17 have been satisfied or
waived or, if a stay of the Confirmation Order is in effect on such date, the
first Business Day of the month immediately following the date of the
expiration, dissolution, or lifting of such stay.
1.74 Encumbrance: With respect to any asset, any mortgage, lien,
pledge, charge, security interest, assignment, or encumbrance of any kind or
nature in respect of such asset (including, without express or implied
limitation, any conditional sale or other title retention agreement, any
11
security agreement, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
1.75 Entity: An individual, corporation, partnership, limited
liability company, association, joint stock company, joint venture, estate,
trust, unincorporated organization, or government or any political subdivision
thereof, or other person or entity.
1.76 Environmental Claim: Any Claim as to which the treatment
thereof is set forth in an agreement by and between AWI and any party asserting
a Claim against AWI relating to alleged contamination under the federal or state
environmental laws or regulations, pursuant to which agreement all or a portion
of such Claim (to the extent and subject to the limitations imposed by such
agreement) may be asserted by the holder thereof after the Effective Date, to
the extent that such agreement is approved and authorized by a Final Order of
the Bankruptcy Court or otherwise in accordance with the Claims Settlement
Guidelines.
1.77 Equity Interest: Any interest in AWI represented by shares
of Existing AWI Common Stock.
1.78 Equity Value: For purposes of calculating the exercise price
on the New Warrants, the value of each share of New Common Stock as of the
Effective Date, based upon the residual value of the equity of Reorganized AWI,
as agreed among Lazard and the financial consultants for the Asbestos PI
Claimants' Committee, the Future Claimants' Representative, and the Unsecured
Creditors' Committee and as set forth in the disclosure statement approved by
the Bankruptcy Court.
1.79 Estimated Amount: The estimated dollar value of an
Unliquidated Claim, Disputed Claim, or Contingent Claim pursuant to section
502(c) of the Bankruptcy Code.
1.80 Existing AWI Common Stock: Common stock, par value of $0.01
per share, of AWI, authorized pursuant to the Articles of Incorporation as in
effect immediately prior to the Effective Date.
1.81 Final Distribution Date: A date on or after the Initial
Distribution Date and after all Disputed Claims (other than Asbestos Personal
Injury Claims and Asbestos Property Damage Claims) have become either Allowed
Claims or Disallowed Claims that is selected by Reorganized AWI in its
discretion but, in any event, is no later than thirty (30) days thereafter, or
such later date as the Bankruptcy Court may establish, upon request by
Reorganized AWI, for cause shown.
1.82 Final Order: An order as to which the time to appeal,
petition for certiorari, or move 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 as to which any right to appeal, petition
for certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to AWI or Reorganized AWI, as the case may be, and its
counsel or, in the event that an appeal, writ of certiorari, or reargument or
rehearing thereof has been sought, such order shall have been affirmed by the
highest court to which such order was appealed, or certiorari has been denied or
from which reargument or rehearing was sought, and the time to take any further
appeal, petition for certiorari or move for reargument or rehearing shall have
expired.
12
1.83 Future Claimants' Representative: Dean M. Trafelet, the
Legal Representative for Future Claimants appointed pursuant to the order dated
on or about March 1, 2002.
1.84 Holdings: Armstrong Holdings, Inc., a Pennsylvania
corporation.
1.85 Holdings Plan of Liquidation: The dissolution of Holdings as
approved by its Board of Directors and shareholders as required by Sections
1972, 1973 and 1974 of the Pennsylvania BCL and the liquidation and winding up
of the business and affairs of Holdings (and, as part thereof, the dissolution
and winding up, or other termination of the corporate existence, of AWWD) in
accordance with a plan of liquidation and winding up approved by the Board of
Directors and shareholders of Holdings as may be required by Subchapter F or H
of Chapter 19 of the Pennsylvania BCL (which plan may provide for the
distribution by Holdings of the New Warrants to Holdings' shareholders), or such
other plan and manner of dissolution, liquidation and winding up of Holdings as
is consistent with the terms of the Plan and permitted by law.
1.86 Indentures: The indenture agreements between the Indenture
Trustees and AWI relating to the Debt Security Claims.
1.87 Indenture Trustees: Bank One Trust Company, N.A., as
indenture trustee for the holders of AWI's 9 3/4% Debentures due 2008 and for
the holders of the 8 3/4%-9% Medium Term Notes, and Wells Fargo Minnesota, N.A.,
as indenture trustee for the holders of AWI's 6.35% Senior Notes due 2003, 6
1/2% Senior Notes due 2005, 7.45% Senior Notes due 2029, and the 7.45% Senior
Quarterly Interest Bonds due 2038.
1.88 Indenture Trustees' Fees and Expenses: All the fees and
expenses, including the reasonable fees and expenses of their attorneys,
incurred by the Indenture Trustees under their respective indentures from the
Commencement Date to the Effective Date, up to a maximum of Twenty-Five Thousand
and 00/100 Dollars ($25,000.00) for the Indenture Trustee for each series of
Debt Security Claims for which it acts as Indenture Trustee.
1.89 Indirect PI Trust Claim: Any Claim or remedy, liability, or
Demand against AWI now existing or hereafter arising, whether or not such Claim,
remedy, liability, or Demand is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured, whether or not the facts of or legal bases for such
Claim, remedy, liability, or Demand are known or unknown, that is (x) (i) held
by (A) any Entity (other than a director or officer entitled to indemnification
pursuant to section 8.6 of the Plan) who has been, is, or may be a defendant in
an action seeking damages for death, bodily injury, sickness, disease, or other
personal injuries (whether physical, emotional, or otherwise) to the extent
caused or allegedly caused, directly or indirectly, by exposure to asbestos or
asbestos-containing products or (B) any assignee or transferee of such Entity
and (ii) on account of alleged liability of AWI for reimbursement,
indemnification, subrogation, or contribution of any portion of any damages such
Entity has paid or may pay to the plaintiff in such action or (y) held by any
Entity that is seeking reimbursement, indemnification, subrogation, or
contribution from AWI with respect to any surety bond, letter of credit or other
financial assurance issued by any Entity on account of, or with respect to,
Asbestos Personal Injury Claims.
1.90 Initial Distribution Date: A date on or after the Effective
Date that is selected by Reorganized AWI in its discretion but, in any event, is
within fifteen (15) days after the Effective Date, or such later date as the
13
Bankruptcy Court may establish upon request by Reorganized AWI, for cause shown;
provided, however, that in no event shall the Initial Distribution Date be more
than forty-five (45) days after the Effective Date.
1.91 Internal Revenue Code: The Internal Revenue Code of 1986, as
amended from time to time, and any applicable rulings, Treasury Regulations,
judicial decisions, and notices, announcements, and other releases of the United
States Treasury Department or the IRS.
1.92 IRS: The United States Internal Revenue Service.
1.93 Lazard: Lazard Freres & Co. LLC, or such other investment
bank or financial advisor retained by AWI.
1.94 New Common Stock: Common stock, par value $0.01 per share,
of Reorganized AWI which is to be authorized and issued pursuant to the Plan and
subject to dilution for equity to be issued under the New Long-Term Incentive
Plan and for the New Warrants.
1.95 New Long-Term Incentive Plan: The Management Incentive Plan,
substantially in the form of Exhibit 1.95 to the Plan.
1.96 New Warrants: Warrants to purchase the New Common Stock
pursuant to a warrant agreement substantially in the form of Exhibit 1.96 to the
Plan on terms and conditions determined in a manner agreed to by Lazard and the
financial consultants for the Asbestos PI Claimants' Committee, the Future
Claimants' Representative, and the Unsecured Creditors' Committee; provided,
however, that such New Warrants (a) shall comprise 5% of the New Common Stock on
a fully diluted basis determined as of the Effective Date, (b) shall have an
exercise price equal to 125% of the Equity Value, and (iii) shall have a term of
seven years from the Effective Date.
1.97 Pennsylvania BCL: Pennsylvania Business Corporation Law of
1988, as amended from time to time and as applicable to the events described in
the Plan.
1.98 PI PROTECTED PARTY: ANY OF THE FOLLOWING PARTIES:
(a) AWI;
(b) REORGANIZED AWI;
(c) HOLDINGS;
(d) AWWD;
(e) ANY AFFILIATE;
(f) INTERFACE SOLUTIONS, INC., A CORPORATION ORGANIZED UNDER THE
LAWS OF PENNSYLVANIA, OR ARMACELL LLC, A LIMITED LIABILITY COMPANY ORGANIZED
UNDER THE LAWS OF DELAWARE, BUT ONLY TO THE EXTENT THAT EITHER SUCH ENTITY IS
ALLEGED TO BE DIRECTLY OR INDIRECTLY LIABLE FOR THE CONDUCT OF, CLAIMS AGAINST,
OR DEMANDS ON AWI, REORGANIZED AWI, OR THE ASBESTOS PI TRUST ON ACCOUNT OF
ASBESTOS PERSONAL INJURY CLAIMS;
14
(g) ANY ENTITY THAT, PURSUANT TO THE PLAN OR AFTER THE EFFECTIVE
DATE, BECOMES A DIRECT OR INDIRECT TRANSFEREE OF, OR SUCCESSOR TO, ANY ASSETS OF
AWI, REORGANIZED AWI, OR THE ASBESTOS PI TRUST (BUT ONLY TO THE EXTENT THAT
LIABILITY IS ASSERTED TO EXIST BY REASON OF IT BECOMING SUCH A TRANSFEREE OR
SUCCESSOR);
(h) ANY ENTITY THAT, PURSUANT TO THE PLAN OR AFTER THE EFFECTIVE
DATE, MAKES A LOAN TO REORGANIZED AWI OR THE ASBESTOS PI TRUST OR TO A SUCCESSOR
TO, OR TRANSFEREE OF, ANY ASSETS OF AWI, REORGANIZED AWI OR THE ASBESTOS PI
TRUST (BUT ONLY TO THE EXTENT THAT LIABILITY IS ASSERTED TO EXIST BY REASON OF
SUCH ENTITY BECOMING SUCH A LENDER OR TO THE EXTENT ANY PLEDGE OF ASSETS MADE IN
CONNECTION WITH SUCH A LOAN IS SOUGHT TO BE UPSET OR IMPAIRED); OR
(i) ANY ENTITY TO THE EXTENT HE, SHE, OR IT IS ALLEGED TO BE
DIRECTLY OR INDIRECTLY LIABLE FOR THE CONDUCT OF, CLAIMS AGAINST, OR DEMANDS ON
AWI, REORGANIZED AWI OR THE ASBESTOS PI TRUST ON ACCOUNT OF ASBESTOS PERSONAL
INJURY CLAIMS BY REASON OF ONE OR MORE OF THE FOLLOWING:
(i) SUCH ENTITY'S OWNERSHIP OF A FINANCIAL INTEREST IN AWI,
REORGANIZED AWI, A PAST OR PRESENT AFFILIATE OF AWI OR
REORGANIZED AWI (OTHER THAN ACANDS, INC. F/K/A ARMSTRONG
CONTRACTING AND SUPPLY CORP.), OR A PREDECESSOR IN INTEREST OF
AWI, OR REORGANIZED AWI;
(ii) SUCH ENTITY'S INVOLVEMENT IN THE MANAGEMENT OF AWI,
AWWD, HOLDINGS, AN AFFILIATE, REORGANIZED AWI, OR ANY PREDECESSOR
IN INTEREST OF AWI, OR REORGANIZED AWI;
(iii) SUCH ENTITY'S SERVICE AS AN OFFICER, DIRECTOR, OR
EMPLOYEE OF AWI, REORGANIZED AWI, AWWD, HOLDINGS, AN AFFILIATE,
ANY PAST OR PRESENT AFFILIATE OF AWI OR REORGANIZED AWI (OTHER
THAN ACANDS, INC. F/K/A ARMSTRONG CONTRACTING AND SUPPLY CORP.),
ANY PREDECESSOR IN INTEREST OF AWI OR REORGANIZED AWI, OR ANY
ENTITY THAT OWNS OR AT ANY TIME HAS OWNED A FINANCIAL INTEREST IN
AWI OR REORGANIZED AWI, ANY PAST OR PRESENT AFFILIATE OF AWI OR
REORGANIZED AWI (OTHER THAN ACANDS, INC. F/K/A ARMSTRONG
CONTRACTING AND SUPPLY CORP.), OR ANY PREDECESSOR IN INTEREST OF
AWI OR REORGANIZED AWI.
(iv) SUCH ENTITY'S PROVISION OF INSURANCE TO (A) AWI, (B)
REORGANIZED AWI, (C) ANY PAST OR PRESENT AFFILIATE OF AWI OR
REORGANIZED AWI (OTHER THAN ACANDS, INC. F/K/A ARMSTRONG
CONTRACTING AND SUPPLY CORP.), (D) ANY PREDECESSOR IN INTEREST OF
AWI OR REORGANIZED AWI; OR (E) ANY ENTITY THAT OWNS OR AT ANY
TIME HAS OWNED A FINANCIAL INTEREST IN AWI OR REORGANIZED AWI,
ANY PAST OR PRESENT AFFILIATE OF AWI OR REORGANIZED AWI (OTHER
THAN ACANDS, INC. F/K/A ARMSTRONG CONTRACTING AND SUPPLY CORP.),
OR ANY PREDECESSOR IN INTEREST OF AWI OR REORGANIZED AWI, BUT
ONLY TO THE EXTENT THAT AWI, REORGANIZED AWI, OR THE ASBESTOS PI
TRUST ENTERS INTO A SETTLEMENT WITH SUCH ENTITY THAT IS APPROVED
BY THE BANKRUPTCY COURT AND EXPRESSLY PROVIDES THAT SUCH ENTITY
SHALL BE ENTITLED TO THE PROTECTION OF THE ASBESTOS PI PERMANENT
CHANNELING INJUNCTION AS A PI PROTECTED PARTY; OR
15
(v) SUCH ENTITY'S INVOLVEMENT IN A TRANSACTION CHANGING THE
CORPORATE STRUCTURE, OR IN A LOAN OR OTHER FINANCIAL TRANSACTION
AFFECTING THE FINANCIAL CONDITION, OF AWI, AWWD, HOLDINGS, AN
AFFILIATE, REORGANIZED AWI, ANY PAST OR PRESENT AFFILIATE OF AWI
OR REORGANIZED AWI (OTHER THAN AC AND S, INC. F/K/A ARMSTRONG
CONTRACTING AND SUPPLY CORP.), ANY PREDECESSOR IN INTEREST OF AWI
OR REORGANIZED AWI, OR ANY ENTITY THAT OWNS OR AT ANY TIME HAS
OWNED A FINANCIAL INTEREST IN AWI OR REORGANIZED AWI, ANY PAST OR
PRESENT AFFILIATE OF AWI OR REORGANIZED AWI (OTHER THAN ACANDS,
INC. F/K/A ARMSTRONG CONTRACTING AND SUPPLY CORP.), OR ANY
PREDECESSOR IN INTEREST OF AWI OR REORGANIZED AWI;
1.99 Plan: This plan of reorganization, either in its present
form or as it may be amended, supplemented, or otherwise modified from time to
time, and the exhibits and schedules to the foregoing, as the same may be in
effect at the time such reference becomes operative.
1.100 Plan Note Amount: An amount equal to the greater of (x)
$1.125 billion less the amount of Available Cash and (y) $775 million.
1.101 Plan Note Indenture: An indenture, substantially in the
form of Exhibit 1.101 to the Plan, by and between AWI, as the issuer, and a
trustee selected by AWI prior to the date of the commencement of the hearing on
confirmation of the Plan, pursuant to which the Plan Notes will be issued, which
will be qualified under the Trust Indenture Act of 1939, as amended.
1.102 Plan Notes: Unsecured notes issued pursuant to the Plan
Note Indenture (a) in an aggregate principal amount equal to the Plan Note
Amount less the 144A Offering Proceeds, (b) bearing a fixed or floating interest
rate based upon U.S. Treasury Notes or three-month U.S dollar LIBOR,
respectively, with like maturities plus a spread determined to be the average
corporate spread over such Treasury Notes or LIBOR for outstanding issues of
comparable maturity and comparably rated U.S. industrial companies over the
30-day period ending on the last day of the month immediately preceding the
Effective Date, (c) with a maturity, as selected by AWI, of not less than five
years, but not more than ten years and no principal payments required to be paid
prior to the maturity date, (d) callable at par at the option of Reorganized
AWI, in whole or in part, at any time during the first six months following the
Effective Date, and (e) having such other terms, covenants, and conditions
substantially similar to those contained in indentures for issues of comparable
maturity of comparably rated U.S. industrial companies and, with respect to any
floating rate tranche, structured in a manner similar to, and as liquid as,
marketable bank debt.
1.103 Priority Claim: Any Claim to the extent such claim is
entitled to priority in right of payment under section 507(a) of the Bankruptcy
Code, other than an Administrative Expense, DIP Credit Facility Claim, or
Priority Tax Claim.
1.104 Priority Tax Claim: A Claim against AWI that is of a kind
specified in section 507(a)(8) of the Bankruptcy Code.
1.105 Pro Rata Share: Means the ratio (expressed as a percentage)
of the amount of an Allowed Claim in a Class to the aggregate amount of all
Allowed Claims plus the Disputed Claim Amount of all Disputed Claims in the same
Class.
16
1.106 Qualified Appraisal: A "qualified appraisal" within the
meaning of Treasury Regulations section 1.468B-3(b)(3).
1.107 Record Date: The first Business Day that is five (5) days
from and after the Confirmation Date.
1.108 Reorganized AWI: AWI, as reorganized as of the Effective
Date in accordance with this Plan, or any successors in interest thereto, from
and after the Effective Date.
1.109 Reorganization Consideration: Collectively, the Available
Cash, the Plan Notes and/or the 144A Offering Proceeds, the New Common Stock,
and the New Warrants.
1.110 Retention Period: Five (5) years from and after the
Effective Date, or such shorter period as the Bankruptcy Court may set.
1.111 Schedules: The schedules of assets and liabilities and the
statements of financial affairs filed by AWI with the Bankruptcy Court, as
required by section 521 of the Bankruptcy Code and the Official Bankruptcy Forms
of the Bankruptcy Rules, as such schedules and statements have been and may be
amended by AWI from time to time in accordance with Bankruptcy Rule 1009.
1.112 SEC: The United States Securities and Exchange Commission.
1.113 Secured Claim: Any Claim against AWI to the extent of the
value of any interest in property of the estate of AWI securing such Claim,
except for the DIP Credit Facility Claim and the COLI Claims.
1.114 Stockholder and Registration Rights Agreement: The
Stockholder and Registration Rights Agreement to be entered into by Reorganized
AWI and the Asbestos PI Trustees on behalf of the Asbestos PI Trust, pursuant to
section 7.7 hereof, in substantially the same form of Exhibit 1.114 to the Plan.
1.115 Subsidiary Debt Guarantee Claim: Any Claim against AWI
arising from the guaranty by AWI of an obligation of one or more Entities that
are subsidiaries of AWI as of the date immediately preceding the Effective Date
so long as such obligation has not been accelerated or declared in default prior
to the Effective Date (and such acceleration has not been rescinded or such
default waived), other than any Claim relating to any obligations of Nitram
Liquidators, Inc. or Desseaux Corporation of North America and other than any
Claim relating to obligations arising from the sale or disposition of the
business, operations, or assets of any Entity.
1.116 Treasury Regulations: Regulations (including temporary and
proposed) promulgated under the Internal Revenue Code by the United States
Treasury Department, as amended from time to time.
1.117 Unliquidated Claim: Any Claim (other than an Asbestos
Personal Injury Claim), the amount of liability for which has not been fixed,
whether pursuant to agreement, applicable law, or otherwise, as of the date on
which such Claim is sought to be estimated.
1.118 Unsecured Claim: Any Claim other an Administrative Expense,
Subsidiary Debt Guarantee Claim, a COLI Claim, a Priority Tax Claim, a Priority
Claim, an Asbestos Personal Injury Claim, an Asbestos Property Damage Claim, an
17
Environmental Claim (except to the extent provided in section 3.2(h)(ii) of the
Plan), an Affiliate Claim, an Employee Benefit Claim, or a Secured Claim.
Unsecured Claims include Debt Security Claims administered by the Indenture
Trustees.
1.119 Unsecured Creditors' Committee: The Official Unsecured
Creditors' Committee, consisting of Entities appointed as members in the Chapter
11 Case by the United States Trustee for the District of Delaware in accordance
with section 1102(a) of the Bankruptcy Code and their duly appointed successors,
if any, as the same may be reconstituted from time to time.
1.120 Voting Deadline: The date set by the Bankruptcy Court by
which all completed ballots must be received.
1.121 Voting Procedures Order: An order of the Bankruptcy Court
approving procedures relating to the solicitation and tabulation of votes with
respect to the Plan.
B. OTHER TERMS. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in the masculine, feminine, or neuter gender
shall include the masculine, the feminine, and the neuter. 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. An initially capitalized term used herein that is not defined herein
shall have the meaning ascribed to such term, if any, in the Bankruptcy Code,
unless the context shall otherwise require.
C. EXHIBITS. All Exhibits to the Plan shall be contained in a
separate Exhibit Volume, which shall be filed with the Clerk of the Bankruptcy
Court not later than the earlier of (i) thirty (30) days prior to the
commencement of the hearing on confirmation of the Plan and (ii) fifteen (15)
days prior to the deadline for filing objections to confirmation of the Plan.
Such Exhibits may be inspected in the office of the Clerk of the Bankruptcy
Court during normal hours of operation of the Bankruptcy Court. Such Exhibits
shall also be available for download from the following website:
www.armstrongplan.com. Holders of Claims or shareholders of Holdings may also
obtain a copy of such Exhibit Volume, once filed, from AWI by a written request
sent to the following address:
Armstrong World Industries, Inc.
Post Office Box 3666
Lancaster, Pennsylvania 17604-3666
ARTICLE II
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSES
AND PRIORITY TAX CLAIMS
2.1 Payment of Allowed Administrative Expenses. The Allowed
Amount of each Administrative Expense that is Allowed as of the Effective Date
shall be paid in full, in cash, on the Effective Date; provided, however, that
Administrative Expenses of the type specified in section 1.11(c)(i) of the Plan
shall be assumed and paid by Reorganized AWI in accordance with the terms and
18
conditions of the particular transactions and any agreements relating thereto.
Each Administrative Expense of the type specified in section 1.11(c)(ii) or
1.11(c)(iii) of the Plan shall be paid the Allowed Amount of such Administrative
Expense in full, in cash, as soon as practicable after such Administrative
Expense is Allowed.
2.2 Compensation and Reimbursement Claims. The Bankruptcy Court
shall fix in the Confirmation Order a date for the filing of, and a date to hear
and determine, all applications for final allowances of compensation or
reimbursement of expenses under section 330 of the Bankruptcy Code or
applications for allowance of Administrative Expenses arising under section
503(b)(2), 503(b)(3), 503(b)(4), 503(b)(5), or 503(b)(6) of the Bankruptcy Code.
The Allowed Amount of all Administrative Expenses arising under section 330,
331, 503(b)(2), 503(b)(3), 503(b)(4), 503(b)(5), or 503(b)(6) of the Bankruptcy
Code shall be paid in full, in cash, (a) upon the later of (i) the Effective
Date and (ii) the date upon which any such Administrative Expense becomes
Allowed or (b) at such later date or upon such other terms as may be mutually
agreed upon between each such Administrative Expense Creditor and Reorganized
AWI.
2.3 DIP Credit Facility Claim. On the Effective Date, the DIP
Credit Facility Claim shall be paid in full, in cash. Unless otherwise agreed by
the DIP Lenders, to the extent that any letters of credit issued pursuant to the
DIP Credit Facility remain outstanding on the Effective Date, AWI will pay to
the Agent Bank, for the ratable benefit of the DIP Lenders, cash in an amount
equal to the face amount of such letters of credit, which shall be held by the
Agent Bank for the repayment of all amounts due in respect of such letters of
credit.
2.4 Priority Tax Claims. Each holder of an Allowed Priority Tax
Claim shall be paid the Allowed Amount of its Allowed Priority Tax Claim either
(a) in full, in cash, on the latest of (i) the Effective Date, (ii) the date
such Allowed Priority Tax Claim becomes Allowed, and (iii) the date such Allowed
Priority Tax Claim is payable under applicable non-bankruptcy law or (b) upon
such other terms as may be mutually agreed upon between each holder of a
Priority Tax Claim and Reorganized AWI.
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
3.1 Summary. Claims and Equity Interests are classified for all
purposes, including, without express or implied limitation, voting,
confirmation, and distribution pursuant to the Plan, as follows:
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
ENTITLED
CLASS TREATMENT STATUS TO VOTE?
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 1: Priority Claims Paid in full, in cash, on the
later of the Effective Date or as soon as practicable Unimpaired No
after such Priority Claim becomes Allowed.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 2: Secured Claims Reinstated - Any defaults related to Secured Claims will Unimpaired No
be cured.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 3: Convenience Payment of 75% of Allowed Amount of Convenience Claim, in Impaired Yes
Claims cash, on later of the Effective Date or as soon as
practicable after such Convenience Claim becomes Allowed.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
19
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 4: Asbestos All Asbestos Property Damage Claims will be channeled to Impaired Yes
Property Damage Claims the Asbestos PD Trust, which will be funded exclusively
with the Asbestos PD Trust Funding Obligation;
provided, however, if fewer than 25 Disputed
Asbestos Property Damage Claims remain outstanding
as of the Effective Date, AWI may elect, in its
sole discretion, not to channel Asbestos Property
Damage Claims to the Asbestos PD Trust, but to
litigate the merits of each Disputed Asbestos
Property Damage Claim before the Bankruptcy Court
and pay the Allowed Amount of each such Asbestos
Property Damage Claim in full, in cash, from the
proceeds of insurance.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 5: COLI Claims Reinstated - Any defaults related to
the COLI Claims will be cured. Unimpaired No
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 6: Unsecured Claims Each holder of an Allowed Unsecured Claim will receive Impaired Yes
other than Convience other than its Pro Rata Share of (i) 34.43% of the
Claims New Common Stock, Claims (ii) 34.43% of the first $1.05
billion of (x) up to $300 million of Available Cash and (y)
the principal amount of Plan Notes and/or 144A Offering
Proceeds, (iii) 60% of the next $50 million of the remaining
Available Cash, (iv) 60% of the remaining amount of Plan
Notes and/or 144A Offering Proceeds to the extent that
Available Cash in (iii) is less than $50 million, and (v)
34.43% of the remaining Available Cash and Plan Notes and/or
144A Offering Proceeds.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 7: Asbestos All Asbestos Personal Injury Claims will be channeled to Impaired Yes
Personal Injury Claims the Asbestos PI Trust, which will be funded pursuant to
section 10.1 of the Plan.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 8: Environmental Each Environmental Claim will be treated as an Allowed Impaired Yes
Claims Unsecured Claim to the extent it becomes Allowed prior to
any Distribution Date. Other treatment determined as
applicable under the relevant settlement agreement.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 9: Affiliate Claims Reinstated Unimpaired No
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
20
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 10: Subsidiary Debt Reinstated Unimpaired No
Guarantee Claims
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 11: Employee Reinstated Unimpaired No
Benefit Claims
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 12: Equity Interests The holder of the Equity Interests in AWI will receive Impaired Yes
the New Warrants (which will be distributed in accordance
with the Holdings Plan of Liquidation, if the Holdings
Plan of Liquidation is approved).
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
3.2 Classification and Treatment.
(a) CLASS 1. PRIORITY CLAIMS.
(i) Classification: Class 1 consists of all Allowed Priority
Claims.
(ii) Treatment: Each holder of an Allowed Priority Claim
shall be paid the Allowed Amount of its Allowed Priority Claim,
in full, in cash, on the later of the Effective Date and as soon
as practicable after the date such Priority Claim becomes
Allowed.
(iii) Status: Class 1 is not impaired. The holders of the
Claims in Class 1 are deemed to accept the Plan and, accordingly,
are not entitled to vote to accept or reject the Plan.
(b) CLASS 2. SECURED CLAIMS.
(i) Classification: Class 2 consists of all Allowed Secured
Claims. Although placed in one class for purposes of convenience,
each Allowed Secured Claim shall be treated as though in a
separate class for all purposes under the Plan.
(ii) Treatment: At the option of AWI and in accordance with
section 1124 of the Bankruptcy Code, each Allowed Secured Claim
shall be treated in one of the following ways:
1. The legal, equitable and contractual rights to which
such Allowed Secured Claim entitles the holder of such Claim
shall be unaltered.
or
2. Notwithstanding any contractual provision or
applicable law that entitles the holder of an Allowed
Secured Claim to demand or receive payment of such Claim
prior to the stated maturity of such Claim from and after
21
the occurrence of a default under the agreements governing
or instruments evidencing such Claim, such Claim shall be
reinstated, and AWI shall (i) cure all defaults that
occurred before or from and after the Commencement Date
(other than defaults of a kind specified in section
365(b)(2) of the Bankruptcy Code), (ii) reinstate the
maturity of such Claim as such maturity existed prior to the
occurrence of such default, (iii) compensate the holder of
such Claim for any damages incurred as a consequence of any
reasonable reliance by such holder on such contractual
provision or such applicable law, and (iv) not otherwise
alter the legal, equitable, or contractual rights to which
the holder of such Claim is entitled.
(iii) Status: Class 2 is not impaired. The holders of the
Claims in Class 2 are deemed to accept the Plan and, accordingly,
are not entitled to vote to accept or reject the Plan.
(c) CLASS 3. CONVENIENCE CLAIMS.
(i) Classification: Class 3 consists of all Allowed
Convenience Claims.
(ii) Treatment: Each holder of an Allowed Convenience Claim
shall be paid 75% of the Allowed Amount of its Allowed
Convenience Claim, in cash, on the later of the Effective Date
and as soon as practicable after such Convenience Claim becomes
Allowed.
(iii) Election: Any holder of an Unsecured Claim in an
amount equal to or less than Ten Thousand and 00/100 Dollars
($10,000.00) and which otherwise constitutes a Convenience Claim
automatically shall be treated as a Convenience Claim. Any holder
of any other Unsecured Claim that desires treatment of such Claim
as a Convenience Claim shall make such election on the Ballot to
be provided to holders of Unsecured Claims in Class 6 and return
such Ballot to the address specified therein on or before the
Voting Deadline. Any election made after the Voting Deadline
shall not be binding on AWI unless the Voting Deadline is
expressly waived in writing by AWI with respect to any such
Claim.
(iv) Status: Class 3 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holders of
the Claims in Class 3 are entitled to vote to accept or reject
the Plan.
(d) CLASS 4. ASBESTOS PROPERTY DAMAGE CLAIMS.
(i) Classification: Class 4 consists of all Allowed Asbestos
Property Damage Claims.
(ii) Treatment: (x) Except as provided in section
3.2(d)(ii)(y) of the Plan, all Allowed Asbestos Property Damage
Claims shall be determined and paid pursuant to the terms,
provisions, and procedures of the Asbestos PD Trust and the
Asbestos PD Trust Agreement and the Asbestos PD Claims Resolution
Procedures. The Asbestos PD Trust will be funded in accordance
22
with the provisions of sections 11.2 and 11.3 of the Plan. The
sole recourse of the holder of an Allowed Asbestos Property
Damage Claim shall be the Asbestos PD Trust, and such holder
shall have no right whatsoever at any time to assert its Asbestos
Property Damage Claim against Reorganized AWI. Without limiting
the foregoing, on the Effective Date, all entities shall be
permanently and forever stayed, restrained, and enjoined from
taking any of the following actions for the purpose of, directly
or indirectly, collecting, recovering, or receiving payment of,
on, or with respect to any Asbestos Property Damage Claims (other
than actions brought to enforce any right or obligation under the
Plan, any Exhibits to the Plan, or any other agreement or
instrument between AWI or Reorganized AWI and the Asbestos PD
Trust, which actions shall be in conformity and compliance with
the provisions hereof):
1. commencing, conducting, or continuing in any manner,
directly or indirectly, any suit, action, or other
proceeding (including, without express or implied
limitation, a judicial, arbitral, administrative, or other
proceeding) in any forum against or affecting Reorganized
AWI, any property or interests in property of Reorganized
AWI, the Asbestos PI Trust, or any property or interests in
property of the Asbestos PI Trust;
2. enforcing, levying, attaching (including, without
express or implied limitation, any prejudgment attachment),
collecting, or otherwise recovering by any means or in any
manner, whether directly or indirectly, any judgment, award,
decree, or other order against Reorganized AWI, any property
or interests in property of Reorganized AWI, the Asbestos PI
Trust, or any property or interests in property of the
Asbestos PI Trust;
3. creating, perfecting, or otherwise enforcing in any
manner, directly or indirectly, any Encumbrance against
Reorganized AWI, any property or interests in property of
Reorganized AWI, the Asbestos PI Trust, or any property or
interests in property of the Asbestos PI Trust;
4. setting off, seeking reimbursement of, contribution
from, or subrogation against, or otherwise recouping in any
manner, directly or indirectly, any amount against any
liability owed to Reorganized AWI, any property or interests
in property of Reorganized AWI, the Asbestos PI Trust, or
any property or interests in property of the Asbestos PI
Trust; and
5. proceeding in any manner in any place with regard to
any matter that is subject to resolution pursuant to the
Asbestos PD Trust Agreement, except in conformity and
compliance therewith.
(y) Notwithstanding section 3.2(d)(ii)(x) of the Plan, if, at the
time of the Effective Date, fewer than twenty-five (25) Asbestos Property Damage
Claims remain as Disputed Claims, AWI may elect, in its sole discretion, not to
create an Asbestos PD Trust. In such case, AWI will continue to litigate
objections to Asbestos Property Damage Claims in the Bankruptcy Court, and each
holder of an Allowed Asbestos Property Damage Claim shall be paid the Allowed
Amount of such Asbestos Property Damage Claim, in full, in cash, with such
23
payment to be funded exclusively from the proceeds of insurance available with
respect to Asbestos Property Damage Claims.
(iii) Selection of Trustees for the Asbestos PD Trust: If
Class 4 votes to accept the Plan and the Asbestos PD Trust is
created pursuant to section 3.2(d)(ii)(x) of the Plan, the
Asbestos PD Trustees shall be selected by the Asbestos PD
Committee. If Class 4 votes to reject the Plan and the Asbestos
PD Trust is created pursuant to section 3.2(d)(ii)(x) of the
Plan, AWI will select the Asbestos PD Trustees, by notice filed
with the Bankruptcy Court on or before ten (10) days prior to the
date of the commencement of the hearing on confirmation of the
Plan.
(iv) Claims Resolution Procedures: If the Asbestos PD Trust
is created pursuant to section 3.2(d)(ii)(x) of the Plan, the
Asbestos PD Claims Resolution Procedures will govern and control
in all respects the allowance and payment of Asbestos Property
Damage Claims. Otherwise, the allowance of Asbestos Property
Damage Claims shall be governed by applicable bankruptcy and
non-bankruptcy law.
(v) Status: Class 4 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holders of
the Claims in Class 4 are entitled to vote to accept or reject
the Plan.
(e) CLASS 5. COLI CLAIMS.
(i) Classification: Class 5 consists of all Allowed COLI
Claims.
(ii) Treatment: In accordance with section 1124 of the
Bankruptcy Code, notwithstanding any contractual provision or
applicable law that entitles the holder of an Allowed COLI Claim
to demand or receive payment of such Claim prior to the stated
maturity of such Claim from and after the occurrence of a default
under the agreements governing or instruments evidencing such
Claim, such Claim shall be reinstated, and AWI shall (i) cure all
defaults that occurred before or from and after the Commencement
Date (other than defaults of a kind specified in section
365(b)(2) of the Bankruptcy Code), (ii) reinstate the maturity of
such Claim as such maturity existed prior to the occurrence of
such default, (iii) compensate the holder of such Claim for any
damages incurred as a consequence of any reasonable reliance by
such holder on such contractual provision or such applicable law,
and (iv) not otherwise alter the legal, equitable, or contractual
rights to which the holder of such Claim is entitled.
(iii) Status: Class 5 is not impaired. The holders of the
Claims in Class 5 are deemed to accept the Plan and, accordingly,
are not entitled to vote to accept or reject the Plan.
(f) CLASS 6. UNSECURED CLAIMS OTHER THAN CONVENIENCE CLAIMS.
(i) Classification: Class 6 consists of Unsecured Claims
other than Convenience Claims.
24
(ii) Treatment: Each holder of an Allowed Unsecured Claim in
Class 6 will receive on each Distribution Date its Pro Rata Share
of the following elements of Reorganization Consideration:
1. 34.43% of the New Common Stock,
2. 34.43% of the first $1.05 billion of (x) up to $300
million of Available Cash and (y) the Plan Notes and/or 144A
Offering Proceeds,
3. 60% of the first $50 million of the amount of
Available Cash remaining after making provision for the
Distribution provided in section 3.2(f)(ii)2 of the Plan and
the funding of the Asbestos PI Trust in section 10.1(b)(ii)
of the Plan,
4. 60% of the amount of Plan Notes and/or 144A Offering
Proceeds equal to the difference (if positive) of $50
million less the amount of Available Cash remaining after
making provision for the Distribution provided in section
3.2(f)(ii)2 of the Plan and the funding of the Asbestos PI
Trust in section 10.1(b)(ii) of the Plan, and
5. 34.43% of the remaining Available Cash and Plan
Notes and/or 144A Offering Proceeds after making provision
for the Distribution provided in sections 3.2(f)(ii)2,
3.2(f)(ii)3, and 3.2(f)(ii)4 of the Plan and the funding of
the Asbestos PI Trust in sections 10.1(b)(ii), 10.1(b)(iii)
and 10.1(b)(iv) of the Plan.
In any Distribution made to the holder of an Allowed
Unsecured Claim, there shall be deducted from such
Distribution the amount of each element of the
Reorganization Consideration (computed as provided in this
section 3.2(f)(ii)) previously distributed to such holder on
account of such Allowed Unsecured Claim in any Distribution
made prior thereto.
(iii) Interest: Interest shall neither accrue nor be payable
from and after the Commencement Date with respect to Allowed
Unsecured Claims.
(iv) Status: Class 6 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holders of
the Claims in Class 6 are entitled to vote to accept or reject
the Plan.
(g) CLASS 7. ASBESTOS PERSONAL INJURY CLAIMS.
(i) Classification: Class 7 consists of all Asbestos
Personal Injury Claims.
(ii) Treatment: All Asbestos Personal Injury Claims shall be
determined and paid pursuant to the terms, provisions, and
procedures of the Asbestos PI Trust, the Asbestos PI Trust
Distribution Procedures, and the Asbestos PI Trust Agreement. The
Asbestos PI Trust will be funded in accordance with the
provisions of section 10.1 of the Plan. The sole recourse of the
holder of an Asbestos Personal Injury Claim shall be the Asbestos
PI Trust, and such holder shall have no right whatsoever at any
25
time to assert its Asbestos Personal Injury Claim against any PI
Protected Party. WITHOUT LIMITING THE FOREGOING, ON THE EFFECTIVE
DATE, ALL ENTITIES SHALL BE PERMANENTLY AND FOREVER STAYED,
RESTRAINED, AND ENJOINED FROM TAKING ANY OF THE FOLLOWING ACTIONS
FOR THE PURPOSE OF, DIRECTLY OR INDIRECTLY, COLLECTING,
RECOVERING, OR RECEIVING PAYMENT OF, ON, OR WITH RESPECT TO ANY
ASBESTOS PERSONAL INJURY CLAIM (OTHER THAN ACTIONS BROUGHT TO
ENFORCE ANY RIGHT OR OBLIGATION UNDER THE PLAN, ANY EXHIBITS TO
THE PLAN, OR ANY OTHER AGREEMENT OR INSTRUMENT BETWEEN AWI OR
REORGANIZED AWI AND THE ASBESTOS PI TRUST, WHICH ACTIONS SHALL BE
IN CONFORMITY AND COMPLIANCE WITH THE PROVISIONS HEREOF):
1. COMMENCING, CONDUCTING, OR CONTINUING IN ANY MANNER,
DIRECTLY OR INDIRECTLY, ANY SUIT, ACTION, OR OTHER
PROCEEDING (INCLUDING, WITHOUT EXPRESS OR IMPLIED
LIMITATION, A JUDICIAL, ARBITRAL, ADMINISTRATIVE, OR OTHER
PROCEEDING) IN ANY FORUM AGAINST OR AFFECTING ANY PI
PROTECTED PARTY OR ANY PROPERTY OR INTERESTS IN PROPERTY OF
ANY PI PROTECTED PARTY;
2. ENFORCING, LEVYING, ATTACHING (INCLUDING, WITHOUT
EXPRESS OR IMPLIED LIMITATION, ANY PREJUDGMENT ATTACHMENT),
COLLECTING, OR OTHERWISE RECOVERING BY ANY MEANS OR IN ANY
MANNER, WHETHER DIRECTLY OR INDIRECTLY, ANY JUDGMENT, AWARD,
DECREE, OR OTHER ORDER AGAINST ANY PI PROTECTED PARTY OR ANY
PROPERTY OR INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY;
3. CREATING, PERFECTING, OR OTHERWISE ENFORCING IN ANY
MANNER, DIRECTLY OR INDIRECTLY, ANY ENCUMBRANCE AGAINST ANY
PI PROTECTED PARTY OR ANY PROPERTY OR INTERESTS IN PROPERTY
OF ANY PI PROTECTED PARTY;
4. SETTING OFF, SEEKING REIMBURSEMENT OF, CONTRIBUTION
FROM, OR SUBROGATION AGAINST, OR OTHERWISE RECOUPING IN ANY
MANNER, DIRECTLY OR INDIRECTLY, ANY AMOUNT AGAINST ANY
LIABILITY OWED TO ANY PI PROTECTED PARTY OR ANY PROPERTY OR
INTERESTS IN PROPERTY OF ANY PI PROTECTED PARTY; AND
5. PROCEEDING IN ANY MANNER IN ANY PLACE WITH REGARD TO
ANY MATTER THAT IS SUBJECT TO RESOLUTION PURSUANT TO THE
ASBESTOS PI TRUST AGREEMENT, EXCEPT IN CONFORMITY AND
COMPLIANCE THEREWITH.
Nothing contained herein shall constitute or be deemed a
waiver of any claim, right, or cause of action that AWI,
Reorganized AWI, or the Asbestos PI Trust may have against
any Entity in connection with or arising out of an Asbestos
Personal Injury Claim, and the injunction shall not apply
to the assertion of any such claim, right, or cause of
action by AWI, Reorganized AWI, or the Asbestos PI Trust.
(iii) Status: Class 7 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holders of
the Claims in Class 7 are entitled to vote to accept or reject
the Plan.
(h) CLASS 8. ENVIRONMENTAL CLAIMS.
(i) Classification: Class 8 consists of all Environmental
Claims.
(ii) Treatment: Each holder of an Environmental Claim shall
be entitled to treatment of its Environmental Claim and receive
such consideration as is provided in the settlement agreement
applicable to such Environmental Claim. Without limiting the
provisions of such settlement agreement, to the extent any
portion of an Environmental Claim becomes Allowed prior to any
Distribution Date, such Environmental Claim shall be deemed to
constitute, and will be treated as, an Allowed Unsecured Claim
under Class 6 of the Plan. The sole recourse of the holders of
Environmental Claims shall be in accordance with the rights of
such holders set forth in such settlement agreement. Nothing
contained herein or in any settlement agreement relating to an
Environmental Claim shall constitute or be deemed a waiver of any
claim, right, or cause of action that AWI or Reorganized AWI may
have against any Entity that is not a party to such settlement
agreement.
(iii) Status: Class 8 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holders of
the Claims in Class 8 are entitled to vote to accept or reject
the Plan.
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(i) CLASS 9. AFFILIATE CLAIMS.
(i) Classification: Class 9 consists of Affiliate Claims.
(ii) Treatment: In accordance with section 1124 of the
Bankruptcy Code, the legal, equitable, and contractual rights to
which such Allowed Affiliate Claims entitle the holder of any
such Claims shall be unaltered.
(iii) Status. Class 9 is unimpaired. The holders of the
Claims in Class 9 are deemed to accept the Plan and, accordingly,
are not entitled to vote to accept or reject the Plan.
(j) CLASS 10. SUBSIDIARY DEBT GUARANTEE CLAIMS.
(i) Classification: Class 10 consists of all Subsidiary Debt
Guarantee Claims.
(ii) Treatment: In accordance with section 1124 of the
Bankruptcy Code, each Subsidiary Debt Guarantee Claim shall be
reinstated.
(iii) Status: Class 10 is not impaired. The holders of
Claims in Class 10 are deemed to accept the Plan and,
accordingly, are not entitled to vote to accept or reject the
Plan.
(k) CLASS 11. EMPLOYEE BENEFIT CLAIMS.
(i) Classification: Class 11 consists of all Employee
Benefit Claims.
27
(ii) Treatment: In accordance with section 1124 of the
Bankruptcy Code, each Employee Benefit Claim shall be reinstated.
(iii) Status: Class 11 is not impaired. The holders of
Claims in Class 11 are deemed to accept the Plan and,
accordingly, are not entitled to vote to accept or reject the
Plan.
(l) CLASS 12. EQUITY INTERESTS.
(i) Classification: Class 12 consists of Equity Interests.
(ii) Treatment: On or as soon as practicable after the
Effective Date, Reorganized AWI shall issue the New Warrants in
respect of the Equity Interests in AWI as provided in section
7.25 hereof; provided, however, that, if Class 6 votes to reject
the Plan, no distribution shall be made under the Plan from AWI's
estate in respect of the Equity Interests in AWI but, in such
event, Reorganized AWI shall issue the New Warrants as provided
in section 7.25 hereof in respect of the Asbestos Personal Injury
Claims and in accordance with section 10.1(b) hereof. On the
Effective Date, the certificates that previously evidenced
ownership of Existing AWI Common Stock shall be cancelled and
shall be null and void, the holder(s) thereof shall no longer
have any rights in respect of the Equity Interests in AWI, and
such certificates shall not evidence any rights under the Plan.
(iii) Status: Class 12 is impaired. To the extent and in the
manner provided in the Voting Procedures Order, the holder of the
Equity Interests in Class 12 is entitled to vote to accept or
reject the Plan; provided, however, if Class 6 votes to reject
the Plan, Class 12 shall be deemed to have rejected the Plan.
3.3 In the event of a controversy as to whether any class of
Claims or Equity Interests is impaired under the Plan, the Bankruptcy Court
shall, after notice and a hearing, determine such controversy prior to the
Confirmation Date.
ARTICLE IV
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
4.1 Modification of the Plan. AWI may only, with the written
consent of the Future Claimants' Representative, the Asbestos PI Claimants'
Committee, and, if Class 6 has not voted to reject the Plan at the time of the
requested alteration, amendment, or modification, the Unsecured Creditors'
Committee, alter, amend, or modify the Plan under section 1127(a) of the
Bankruptcy Code at any time prior to the Confirmation Date so long as the Plan,
as modified, meets the requirements of sections 1122 and 1123 of the Bankruptcy
Code. After the Confirmation Date and prior to the Effective Date, AWI, with the
written consent of the Future Claimants' Representative, the Asbestos PI
Claimants' Committee, and, if Class 6 votes to accept the Plan, the Unsecured
Creditors' Committee, may only alter, amend, or modify the Plan in accordance
with section 1127(b) of the Bankruptcy Code.
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4.2 Revocation or Withdrawal.
(a) Right to Revoke. The Plan may be revoked or withdrawn prior
to the Confirmation Date by AWI, with the written consent of the Future
Claimants' Representative, the Asbestos PI Claimants' Committee, and, if Class 6
has not voted to reject the Plan at the time of the requested revocation or
withdrawal, the Unsecured Creditors' Committee, or, after the Confirmation
Deadline, by AWI.
(b) Effect of Withdrawal or Revocation. If the Plan is revoked or
withdrawn prior to the Confirmation Date, then the Plan shall be deemed null and
void. In such event, nothing contained herein shall be deemed to constitute a
waiver or release of any claims or defenses or any admission or statement
against interest by AWI, the Asbestos PI Claimants' Committee, the Future
Claimants' Representative, the Unsecured Creditors' Committee, or any other
Entity or to prejudice in any manner the rights of AWI, the Asbestos PI
Claimants' Committee, the Future Claimants' Representative, the Unsecured
Creditors' Committee, or any Entity in any further proceedings involving AWI.
4.3 Amendment of Plan Documents. From and after the Effective
Date, the authority to amend, modify, or supplement the Exhibits to the Plan and
any documents attached to such Exhibits shall be as provided in such Exhibits
and their respective attachments.
ARTICLE V
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
5.1 Objections to Claims; Prosecution of Disputed Claims.
Reorganized AWI shall object to the allowance of Claims filed with the
Bankruptcy Court (other than Asbestos Personal Injury Claims and Asbestos
Property Damage Claims) with respect to which Reorganized AWI disputes liability
in whole or in part. Notwithstanding the foregoing, Reorganized AWI, at its
option, may continue to prosecute objections to Asbestos Property Damage Claims
if such objections are pending as of the Effective Date, and AWI elects,
pursuant to section 3.2(d)(ii)(y) of the Plan, not to create the Asbestos PD
Trust. All objections that are filed and prosecuted by Reorganized AWI as
provided herein shall be litigated to Final Order by Reorganized AWI or
compromised and settled in accordance with the Claims Settlement Guidelines.
Unless otherwise provided herein or ordered by the Bankruptcy Court, all
objections by Reorganized AWI to Claims shall be served and filed no later than
ninety (90) days after the Effective Date.
5.2 Claims Settlement Guidelines. The Confirmation Order shall
approve the amendment to the Claims Settlement Guidelines, as set forth in
Exhibit 1.45 to the Plan.
5.3 Distributions on Account of Disputed Claims. Notwithstanding
section 3.2 hereof, a Distribution shall only be made by Reorganized AWI to the
holder of a Disputed Claim when, and to the extent that, such Disputed Claim
becomes Allowed. No interest shall be paid on account of Disputed Claims that
later become Allowed except to the extent that payment of interest is required
under section 506(b) of the Bankruptcy Code. No Distribution shall be made with
respect to all or any portion of any Disputed Claim pending the entire
resolution thereof in the manner prescribed by section 5.1 hereof.
5.4 Disputed Unsecured Claims Reserve. On the Initial
Distribution Date, if the Plan Notes are issued, Reorganized AWI will establish
the Disputed Unsecured Claims Reserve, pursuant to which Plan Notes not
29
distributed on the Initial Distribution Date or on any subsequent Distribution
will be issued but held in trust by the Disbursing Agent pending the resolution
of Disputed Claims. In accordance with and subject to the provisions of sections
3.2(f)(ii), 5.3, and 7.9 of the Plan, any Distribution of Plan Notes with
respect to a Disputed Claim that becomes Allowed shall include interest and
other accretions with respect to such Plan Notes, net of the portion of expenses
(including, without limitation, taxes payable by the Disputed Unsecured Claims
Reserve) attributable to such Plan Notes.
5.5 Tax Treatment of Disputed Unsecured Claims Reserve.
(a) Subject to definitive guidance from the IRS or a court of
competent jurisdiction to the contrary (including the receipt by the Disbursing
Agent of a private letter ruling if the Disbursing Agent so requests one, or the
receipt of an adverse determination by the IRS upon audit if not contested by
the Disbursing Agent), the Disbursing Agent shall (i) treat the Disputed
Unsecured Claims Reserve established to hold Plan Notes and any earnings with
respect thereto as a discrete trust for federal income tax purposes, consisting
of separate and independent shares to be established in respect of each Disputed
Claim in Class 6, in accordance with the trust provisions of the Tax Code
(sections 641 et seq.), and (ii) to the extent permitted by applicable law,
report consistently with the foregoing for state and local income tax purposes.
All parties (including Reorganized AWI and all holders of Claims in Class 6)
shall report, for tax purposes, consistently with such treatment.
(b) The Disbursing Agent may request an expedited determination
of taxes under section 505(b) of the Bankruptcy Code for all tax returns filed
for, or on behalf of, the Disputed Unsecured Claims Reserve for all taxable
periods through the termination of such reserve.
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE PLAN
6.1 Impaired Classes to Vote. Each holder of a Claim in an
impaired Class of Claims shall be entitled to vote to accept or reject the Plan
to the extent and in the manner provided by the Voting Procedures Order.
6.2 Acceptance by Class of Claims. Acceptance of the Plan by any
impaired Class of Claims shall be determined in accordance with the Voting
Procedures Order.
6.3 Nonconsensual Confirmation. In the event that any impaired
Class of Claims shall fail to accept the Plan in accordance with section 1129(a)
of the Bankruptcy Code, AWI reserves the right to (a) request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code with respect to such non-accepting Class, in which case the Plan
shall constitute a motion for such relief, or (b) amend the Plan in accordance
with section 4.1 hereof.
ARTICLE VII
IMPLEMENTATION OF THE PLAN
7.1 Creation of Asbestos PI Trust. Effective as of the later of
(i) the date the Asbestos PI Trustees have executed the Asbestos PI Trust
Agreement and (ii) the Effective Date, the Asbestos PI Trust shall be created.
The Asbestos PI Trust is intended to be a "qualified settlement fund" within the
30
meaning of section 468B of the Internal Revenue Code. The purpose of the
Asbestos PI Trust shall be to, among other things, (a) direct the processing,
liquidation, and payment of all Asbestos Personal Injury Claims in accordance
with the Plan, the Asbestos PI Trust Distribution Procedures, and the
Confirmation Order and (b) preserve, hold, manage, and maximize the assets of
the Asbestos PI Trust for use in paying and satisfying Asbestos Personal Injury
Claims.
7.2 Appointment of Asbestos PI Trustees. On the Confirmation
Date, effective as of the Effective Date, the Bankruptcy Court shall appoint the
individuals selected jointly by the Asbestos PI Claimants' Committee and the
Future Claimants' Representative (as identified in Exhibit 7.2 to the Plan),
which individuals shall be appointed after consultation with AWI, to serve as
the Asbestos PI Trustees for the Asbestos PI Trust.
7.3 Creation of Asbestos PD Trust. Subject to section
3.2(d)(ii)(y) of the Plan, effective as of the later of (i) the date the
Asbestos PD Trustees have executed the Asbestos PD Trust Agreement and (ii) the
Effective Date, the Asbestos PD Trust shall be created. The Asbestos PD Trust is
intended to be a "qualified settlement fund" within the meaning of section 468B
of the Internal Revenue Code. The purpose of the Asbestos PD Trust shall be to,
among other things, (a) direct the processing, liquidation, and payment of all
Asbestos Property Damage Claims in accordance with the Plan, the Asbestos PD
Claims Resolution Procedures, and the Confirmation Order and (b) preserve, hold,
manage, and maximize the assets of the Asbestos PD Trust for use in paying and
satisfying Asbestos Property Damage Claims.
7.4 144A Offering. AWI will use reasonable efforts to effect the
144A Offering on or as soon as practicable after the Effective Date such that
the 144A Offering yields net proceeds in an amount at least equal to the Plan
Note Amount, in which case the Plan Notes will not be issued under the Plan. AWI
will not complete a 144A Offering that yields net proceeds less than the amount
of the Plan Note Amount without the consent of the Asbestos PI Claimants'
Committee, the Future Claimants' Representative, and, if Class 6 votes to accept
the Plan, the Unsecured Creditors' Committee. If a 144A Offering is completed,
but yields net proceeds less than the Plan Note Amount, then Reorganized AWI
will issue Plan Notes in an aggregate amount equal to the Plan Note Amount less
the net proceeds of the 144A Offering.
7.5 Amendment of Articles of Incorporation. The Articles of
Incorporation shall be amended and restated as of the Effective Date in
substantially the form of the Amended and Restated Articles of Incorporation,
inter alia, (a) to prohibit the issuance of nonvoting equity securities as
required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such Amended and Restated Articles of Incorporation as permitted by
applicable law, and (b) to authorize 215 million (215,000,000) shares of capital
stock of which (i) 200 million (200,000,000) shares will be shares of common
stock, and (ii) 15 million shares will be preferred stock of Reorganized AWI,
with such rights, preferences and privileges as may be determined by the Board
of Directors. Pursuant to the Plan, of the 200 million shares of common stock
(A) sixty to seventy million (60,000,000-70,000,000) shares shall be New Common
Stock issued under the Plan, (B) an amount equal to 5% of the New Common Stock
on a fully diluted basis determined as of the Effective Date shall be reserved
for issuance upon exercise of the New Warrants, and (C) a portion shall be
reserved for issuance under the New Long-Term Incentive Plan, and (D) the
remainder shall be reserved for future issuance.
7.6 Amendment of By-Laws. The By-Laws of AWI shall be amended and
restated as of the Effective Date in substantially the form of the Amended and
Restated By-Laws.
31
7.7 Stockholder and Registration Rights Agreement: On the
Effective Date, AWI and the Asbestos PI Trust shall enter into the Stockholder
and Registration Rights Agreement, which will provide, among other things, for
the registration by Reorganized AWI of shares of New Common Stock and Plan Notes
owned by the Asbestos PI Trust for public sale in certain circumstances, will
provide for rights of others to participate in certain sales of New Common Stock
and Plan Notes by the Asbestos PI Trust, and will establish certain requirements
for amendment of provisions of the Amended and Restated Articles of
Incorporation and the Amended and Restated Bylaws.
7.8 Distributions under the Plan. Whenever any Distribution to be
made under this Plan shall be due on a day other than a Business Day, such
Distribution shall instead be made, without interest, on the immediately
succeeding Business Day, but shall be deemed to have been made on the date due.
7.9 Timing of Distributions under the Plan. Any Distribution to
be made by AWI or Reorganized AWI pursuant to the Plan shall be deemed to have
been timely made if made within ten (10) days after the time therefore specified
in the Plan. No interest shall accrue or be paid with respect to any
Distribution as a consequence of such Distribution not having been made on the
Effective Date; provided, however, that any Plan Notes distributed from the
Disputed Unsecured Claims Reserve after the Initial Distribution Date shall
include accrued interest and any other accretions thereon (net of the portion of
the expenses of the Disputed Unsecured Claims Reserve (including, without
limitation, taxes) attributable to such Plan Notes) from and after the Initial
Distribution Date in accordance with the terms of the Plan Note Indenture, and
New Common Stock issued to holders of Allowed Claims in Classes 6 and 8 after
the Effective Date shall include all dividends declared and paid and other
distributions made in respect thereto after the Effective Date.
(a) Distributions with Respect to Unsecured Claims and
Environmental Claims. Distributions with respect to Classes 6 and 8 shall only
be made on each Distribution Date; provided, however, that, if a Claim in any of
Classes 6 or 8 becomes Allowed subsequent to the Initial Distribution Date, AWI
may, in its sole discretion, make a Distribution with respect to such Claim
prior to a Distribution Date. For purposes of treatment and Distribution under
the Plan, except as provided with respect to treatment of Claims in the voting
procedures approved by the Voting Procedures Order, all Unsecured Claims held by
a Creditor shall be aggregated and treated as a single Claim. At the written
request of AWI or the Disbursing Agent, any Creditor holding multiple Unsecured
Claims shall provide to AWI or the Disbursing Agent, as the case may be, a
single address to which any Distributions shall be sent. At the written request
of any Creditor holding multiple Unsecured Claims made to the Disbursing Agent
within thirty (30) days prior to a Distribution Date, such Creditor shall
receive an itemized statement of the Unsecured Claims for which the Distribution
is being made.
(b) Distribution to the Asbestos PI Trust. The Distribution to
the Asbestos PI Trust shall be made on the later of (a) the date the Asbestos PI
Trustees have executed the Asbestos PI Trust Agreement and (b) the Effective
Date; provided, however, that if AWI intends to complete the 144A Offering, then
the Distribution of the 144A Offering Proceeds and/or Plan Notes to the Asbestos
PI Trust shall occur as soon as practicable after the 144A Offering is completed
or Reorganized AWI determines not to complete a 144A Offering, but in no event
shall such Distribution occur after the Initial Distribution Date.
(c) Distribution to the Asbestos PD Trust. If Class 4 votes to
accept the Plan and the Asbestos PD Trust is created pursuant to section
3.2(d)(ii)(x) of the Plan, the Distribution of the Asbestos PD Trust Funding
32
Obligation will be made on the later of (i) the date the Asbestos PD Trustees
are selected for the Asbestos PD Trust and have executed the Asbestos PD Trust
Agreement and (ii) the Effective Date. If Class 4 votes to reject the Plan and
the Asbestos PD Trust is created pursuant to section 3.2(d)(ii)(x) of the Plan,
the Distribution of the Asbestos PD Trust Funding Obligation will be made on the
latest of (x) the date an order of the Bankruptcy Court estimating the aggregate
value of all Asbestos Property Damage Claims becomes a Final Order, (y) the
Effective Date, and (z) the date the Asbestos PD Trustees have executed the
Asbestos PD Trust Agreement.
7.10 Disbursing Agent. All distributions under the Plan shall be
made by Reorganized AWI as Disbursing Agent or such other entity designated by
Reorganized AWI as a Disbursing Agent. The Disbursing Agent shall not be
required to give any bond or surety or other security for the performance of its
duties unless otherwise ordered by the Bankruptcy Court, and, in the event that
a Disbursing Agent is so otherwise ordered, all costs and expenses of procuring
any such bond or surety shall be borne by Reorganized AWI. Distributions on
account of Debt Security Claims shall be made to the Indenture Trustee under the
applicable Indenture for subsequent distribution to the holders of the Debt
Security Claims, and upon such Distribution to the Indenture Trustees, AWI and
Reorganized AWI shall have no further obligations with respect thereto.
7.11 Record Date. Except as and to the extent otherwise required
by customary procedures of the DTC with respect to Debt Security Claims, as of
the close of business on the Record Date, the various transfer and claims
registers for each of the classes of Claims as maintained by AWI, its respective
agents, or the Indenture Trustees shall be deemed closed, and there shall be no
further changes in the record holders of any of the Claims. AWI and Reorganized
AWI shall have no obligation to recognize any transfer of the Claims occurring
after the close of business on the Record Date. AWI, Reorganized AWI, the
Disbursing Agent, and the Indenture Trustees shall be entitled to recognize and
deal hereunder only with those record holders stated on the transfer ledgers as
of the close of business on the Record Date, to the extent applicable.
7.12 Distributions to Holders of Debt Security Claims
Administered by the Indenture Trustees.
(a) Distributions to holders of Debt Security Claims administered
by the Indenture Trustees will be made on each Distribution Date by means of
book-entry exchange through the facilities of the DTC in accordance with the
customary practices of the DTC, as and to the extent practicable. In connection
with such book-entry exchange, each Indenture Trustee will deliver instructions
to the DTC directing the DTC to effect distributions on a pro rata basis of the
elements of Reorganization Consideration as provided under the Plan with respect
to the Debt Security Claims upon which such Indenture Trustee acts as trustee.
(b) The Indenture Trustees providing services related to
Distributions pursuant to the Plan will receive from Reorganized AWI reasonable
compensation for such services and reimbursement of reasonable out-of-pocket
expenses incurred in connection with such services in an amount pursuant to the
procedures set forth in section 7.20 herein.
7.13 Manner of Payment under the Plan. Unless the Entity
receiving a payment agrees otherwise, any payment in cash to be made by AWI or
Reorganized AWI shall be made, at the election of AWI or Reorganized AWI (as the
case may be), by check drawn on a domestic bank or by wire transfer from a
domestic bank.
33
7.14 Hart-Scott-Rodino Compliance. Any shares of New Common Stock
to be distributed under the Plan to any Entity required to file a Premerger
Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvement
Act of 1976, as amended, shall not be distributed until the notification and
waiting periods applicable under such Act to such Entity shall have expired or
been terminated.
7.15 Fractional Shares or Other Distributions. Notwithstanding
anything to the contrary contained herein, no fractional shares of New Common
Stock shall be distributed, no Plan Notes will be issued in an amount less than
$1,000, and no cash payments of fractions of cents will be made. Fractional
cents shall be rounded to the nearest whole cent (with .5 cent or less to be
rounded down). Fractional shares shall be rounded to the nearest whole share
(with .5 share or less to be rounded down). Plan Notes in denominations of less
than $1,000 shall be rounded to the nearest $1,000 increment (with Plan Notes in
denominations of $500 or less to be rounded down). No cash will be paid in lieu
of such fractional shares or Plan Notes in increments of less than $1,000.
7.16 Occurrence of the Confirmation Date. The following shall
constitute conditions to confirmation of the Plan:
(a) The Bankruptcy Court makes the following findings, each of
which shall be contained in the Confirmation Order:
(i) With respect to any Asbestos Personal Injury Claim that
is Allowed by the Asbestos PI Trust in accordance with the
Asbestos PI Trust Agreement and the Asbestos PI Trust
Distribution Procedures, such allowance shall establish the
amount of legal liability against the Asbestos PI Trust in the
amount of the liquidated value of such Claim, as determined in
accordance with the Asbestos PI Trust Distribution Procedures.
(ii) With respect to any Asbestos Property Damage Claim that
is Allowed by the Asbestos PD Trust in accordance with the
Asbestos PD Trust Agreement and the Asbestos PD Trust Claims
Resolution Procedures or is Allowed by a Final Order of the
Bankruptcy Court, such allowance shall establish the amount of
legal liability against the Asbestos PD Trust in the allowed
amount of such Claim, as determined in accordance with the
Asbestos PD Claims Resolution Procedures or such Bankruptcy Court
order, as the case may be.
(iii) The Asbestos PI Permanent Channeling Injunction is to
be implemented in connection with the Plan and the Asbestos PI
Trust.
(iv) The Plan and its Exhibits are a fair, equitable, and
reasonable resolution of the liabilities of AWI for Asbestos
Personal Injury Claims and Asbestos Property Damage Claims.
(v) The Plan complies with section 524(g) of the Bankruptcy
Code.
(vi) In light of the benefits provided, or to be provided,
to the Asbestos PI Trust on behalf of each PI Protected Party,
the Asbestos PI Permanent Channeling Injunction is fair and
equitable with respect to the persons that might subsequently
34
assert Asbestos Personal Injury Claims against any PI Protected
Party.
(vii) At the time of the order for relief with respect to
AWI, AWI had been named as a defendant in personal injury,
wrongful death, and property damage actions seeking recovery for
damages allegedly caused by the presence of, or exposure to,
asbestos or asbestos-containing products.
(viii) The Asbestos PI Trust, as of the Effective Date, will
assume the liabilities of AWI with respect to all Asbestos
Personal Injury Claims and, upon such assumption, Reorganized AWI
shall have no liability for any Asbestos Personal Injury Claim.
(ix) The Asbestos PI Trust is to be funded in whole or in
part by securities of Reorganized AWI and by the obligation of
Reorganized AWI to make future payments, including dividends.
(x) The Asbestos PI Trust is to own, or by the exercise of
rights granted under the Plan would be entitled to own if
specified contingencies occur, a majority of the voting shares of
AWI.
(xi) AWI is likely to be subject to substantial future
Demands for payment arising out of the same or similar conduct or
events that gave rise to the Claims that are addressed by the
Asbestos PI Permanent Channeling Injunction.
(xii) The actual amounts, numbers, and timing of the future
Demands referenced in section 7.16(a)(xi) of the Plan cannot be
determined.
(xiii) Pursuit of the Demands referenced in section
7.16(a)(xi) of the Plan outside the procedures prescribed by the
Plan is likely to threaten the Plan's purpose to deal equitably
with Claims and future Demands.
(xiv) The terms of the Asbestos PI Permanent Channeling
Injunction, including any provisions barring actions against
third parties pursuant to section 524(g)(4)(A) of the Bankruptcy
Code, are set out in the Plan and in any disclosure statement
supporting the Plan.
(xv) The Plan establishes, in Class 7 (Asbestos Personal
Injury Claims), a separate class of the claimants whose Claims
are to be addressed by the Asbestos PI Trust.
(xvi) The Future Claimants' Representative was appointed as
part of the proceedings leading to issuance of the Asbestos PI
Permanent Channeling Injunction for the purpose of protecting the
rights of persons that might subsequently assert unknown Asbestos
Personal Injury Claims and Demands that are addressed in the
Asbestos PI Permanent Channeling Injunction and transferred to
the Asbestos PI Trust. The Future Claimants' Representative has
fulfilled his duties, responsibilities, and obligations as the
future representative in accordance with section 524(g) of the
Bankruptcy Code.
35
(xvii) Identifying each PI Protected Party in the Asbestos
PI Permanent Channeling Injunction is fair and equitable with
respect to persons that might subsequently assert Demands against
each such PI Protected Party, in light of the benefits provided,
or to be provided, to the Asbestos PI Trust by or on behalf of
any such PI Protected Party.
(xviii) Class 7 (Asbestos Personal Injury Claims) has voted,
by at least 75 percent (75%) of those voting, in favor of the
Plan.
(xix) Pursuant to court orders or otherwise, the Asbestos PI
Trust will operate through mechanisms such as structured,
periodic, or supplemental payments, pro rata distributions,
matrices, or periodic review of estimates of the numbers and
values of Asbestos Personal Injury Claims and Demands, or other
comparable mechanisms, that provide reasonable assurance that the
Asbestos PI Trust will value, and be in a financial position to
pay, Asbestos Personal Injury Claims and Demands that involve
similar Claims in substantially the same manner.
(xx) If Class 4 votes to accept the Plan and the Asbestos PD
Trust is established pursuant to section 3.2(d)(ii)(x) of the
Plan, Travelers Indemnity Company, Travelers Casualty and Surety
Company, and Liberty Mutual Insurance Company (collectively) are
obligated under insurance policies that they issued to AWI with
inception dates prior to January 1, 1982 to distribute on the
Initial Distribution Date cash in the amount equal to the
Asbestos PD Trust Funding Obligation to the Asbestos PD Trust,
and are not entitled to obtain reimbursement of all or any part
of that amount from Reorganized AWI, including, but not limited
to, reimbursement under insurance policy provisions relating to
deductibles, premiums, retrospective premiums, or other charges.
(xxi) If Class 6 votes to reject the Plan, the transfer of
the New Warrants to the holder of the Equity Interests will not
be subject to prior registration under the Securities Act of
1933, as amended.
(b) Class 7 (Asbestos Personal Injury Claims) has voted, by at
least 75 percent (75%) of those voting, in favor of the Plan.
(c) The Confirmation Order shall be, in form and substance,
acceptable to the Asbestos PI Claimants' Committee, the Future Claimants'
Representative, and, if Class 6 votes to the accept the Plan, the Unsecured
Creditors' Committee.
(d) If Class 4 does not vote to accept the Plan and the Asbestos
PD Trust is established pursuant to section 3.2(d)(ii)(x) of the Plan, the
Bankruptcy Court has entered an Order estimating the aggregate value of all
Asbestos Property Damage Claims and determining that such value is not greater
than the amount of the insurance available to pay such claims under Section 11.3
of the Plan.
The Plan shall not be confirmed and the Confirmation Order shall not be entered
until and unless each of the foregoing conditions to confirmation is either
satisfied or waived in writing by each of AWE, the Asbestos PI Claimants'
Committee, the Future Claimants' Representative, and the Unsecured Creditors'
Committee.
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7.17 Occurrence of the Effective Date. The "effective date of the
plan," as used in section 1129 of the Bankruptcy Code, shall not occur, and the
Plan shall be of no force and effect, until the Effective Date. The occurrence
of the Effective Date is subject to satisfaction of the following conditions
precedent:
(a) The Confirmation Order has become a Final Order.
(b) The Bankruptcy Court and/or the District Court, as required,
shall have entered the Asbestos PI Permanent Channeling Injunction (which may be
included in the Confirmation Order), which shall contain terms satisfactory to
AWI, the Asbestos PI Claimants' Committee, the Future Claimants' Representative,
and, if Class 6 votes to accept the Plan, the Unsecured Creditors' Committee.
(c) The Confirmation Order, the Claims Trading Injunction and the
Asbestos PI Permanent Channeling Injunction shall be in full force and effect.
(d) No proceedings to estimate any Claims shall be pending.
(e) All Asbestos PI Trustees shall have been selected and shall
have executed the Asbestos PI Trust Agreement.
(f) If Class 4 votes to reject the Plan, all Asbestos PD Trustees
shall have been selected and shall have executed the Asbestos PD Trust
Agreement.
(g) A favorable ruling shall have been obtained from the IRS with
respect to the qualification of the Asbestos PI Trust as a "qualified settlement
fund" within the meaning of Treasury Regulation section 1.468B-1, or AWI shall
have received an opinion of counsel with respect to the tax status of the
Asbestos PI Trust as a "qualified settlement fund" reasonably satisfactory to
AWI, the Asbestos PI Claimants' Committee, the Future Claimants' Representative,
and, if Class 6 votes to accept the Plan, the Unsecured Creditors' Committee.
(h) Reorganized AWI shall have entered into and shall have credit
availability under a credit facility to provide Reorganized AWI with working
capital (including letters of credit) in an amount sufficient to meet the needs
of Reorganized AWI, as determined by Reorganized AWI.
(i) Each of the Exhibits shall be in form and substance
acceptable to AWI, the Asbestos PI Claimants' Committee, the Future Claimants'
Representative, and the Unsecured Creditors' Committee.
Notwithstanding the foregoing, AWI reserves, in its sole discretion, the right,
with the written consent of the Asbestos PI Claimants' Committee, the Future
Claimants' Representative, and, if Class 6 votes to accept the Plan, the
Unsecured Creditors' Committee, to waive the occurrence of any of the foregoing
conditions precedent to the Effective Date or to modify any of such conditions
precedent. Any such written waiver of a condition precedent set forth in this
section may be effected at any time, without notice, without leave or order of
the Bankruptcy Court or the District Court, and without any formal action other
than proceeding to consummate the Plan. Any actions required to be taken on the
Effective Date shall take place and shall be deemed to have occurred
simultaneously, and no such action shall be deemed to have occurred prior to the
taking of any other such action. If AWI decides that one of the foregoing
37
conditions cannot be satisfied, and the occurrence of such condition is not
waived in writing by each of AWI, the Asbestos PI Claimants' Committee, the
Future Claimants' Representative, and, if required, the Unsecured Creditors'
Committee, then AWI shall file a notice of the failure of the Effective Date
with the Bankruptcy Court, at which time the Plan and the Confirmation Order
shall be deemed null and void.
7.18 Cancellation of Existing Debt Securities.
(a) As of the Effective Date, all notes, agreements, and
securities evidencing Unsecured Claims and the rights of the holders thereof
thereunder shall be cancelled and deemed null and void and of no further force
and effect, and the holders thereof shall have no rights, and such instruments
shall evidence no rights, except the right to receive the Distributions provided
herein.
(b) Notwithstanding any other provisions in the Plan, each
Indenture or other agreement that governs the rights of a holder of a Debt
Security Claim that is administered by an Indenture Trustee shall continue in
effect solely for the purposes of permitting the applicable Indenture Trustee
thereunder (i) to make distributions to such holder pursuant to the terms of the
applicable Indenture; (ii) maintain any rights and liens it may have for any
unpaid fees, costs, expenses, and indemnification under such Indenture or other
agreement, provided, however, such rights and liens are limited to the
Distributions, if any, to such holders; and (iii) to be paid by such holders or
reimbursed for such prepetition and postpetition fees, costs, expenses, and
indemnification (to the extent not paid as an Administrative Expense or
otherwise) from the Distributions, if any, to such holders (until payment in
full of such fees, costs, expenses or indemnification) on the terms and
conditions set forth by the respective Indenture, other agreement, or applicable
law.
7.19 Expiration of the Retention Period. Upon the expiration of
the Retention Period, all monies or other property held for distribution by any
trustee under any indenture governing any of the Unsecured Claims shall be
returned to Reorganized AWI by such trustee, free and clear of any claim or
interest of any nature whatsoever, including, without express or implied
limitation, escheat rights of any governmental unit under applicable law.
7.20 Compensation of the Applicable Indenture Trustees.
Reorganized AWI will pay the Indenture Trustees' Fees and Expenses to the extent
that an Indenture Trustee makes a written request for Indenture Trustees' Fees
and Expenses within thirty (30) days after the Effective Date. Although it will
not be necessary for the Indenture Trustees to apply to the Bankruptcy Court for
approval of the Indenture Trustees' Fees and Expenses, any dispute between
Reorganized AWI and an Indenture Trustee regarding the reasonableness of any
such fees and expenses shall be resolved by the Bankruptcy Court. Each Indenture
Trustee shall be compensated by Reorganized AWI for services rendered from and
after the Effective Date, including the reasonable compensation, disbursements,
and expenses of the agents and legal counsel of such trustee in connection with
the performance after the Effective Date of its duties under this section, and
shall be indemnified by Reorganized AWI for any loss, liability, or expense
incurred by it in connection with the performance of such duties to the same
extent and in the same manner as provided in the related indenture.
7.21 Distribution of Unclaimed Property. Any Distribution under
the Plan that is unclaimed after one hundred eighty (180) days following the
date such property is distributed shall be deemed not to have been made and
shall be transferred to Reorganized AWI, free and clear of any claims or
interests of any Entities, including, without express or implied limitation, any
claims or interests of any governmental unit under escheat principles. Nothing
38
contained herein shall affect the discharge of the Claim with respect to which
such Distribution was made, and the holder of such Claim shall be forever barred
from enforcing such Claim against Reorganized AWI or Reorganized AWI's assets,
estate, properties, or interests in property.
7.22 Management of Reorganized AWI. On the Effective Date, the
Board of Directors shall consist of at least three individuals who at that time
qualify under the prevailing standards of the New York Stock Exchange or the
NASDAQ Stock Market (depending upon on which of such markets the common stock of
Reorganized AWI will be listed for trading purposes upon the Effective Date) and
applicable laws as independent, outside directors, and are eligible to serve on
the audit committee of the Board of Directors, as an SEC-reporting public
company, and at least three individuals who qualify as outside directors under
section 162(m) of the Internal Revenue Code eligible to serve on the committee
of the Board of Directors of Reorganized AWI responsible for matters of
executive compensation. Each of the members of such Board of Directors shall be
identified on Exhibit 7.22 to the Plan and shall serve in accordance with the
Amended and Restated Articles of Incorporation, the Amended and Restated
By-Laws, and the Stockholder and Registration Rights Agreement. The officers of
AWI immediately prior to the Effective Date shall serve as the officers of
Reorganized AWI in accordance with the terms of any employment agreements
pursuant to section 8.8 of the Plan and the requirements of applicable
nonbankruptcy law.
7.23 Listing of Reorganized AWI Common Stock. Reorganized AWI
shall use its best efforts to obtain, as of or as soon as practicable after the
Effective Date, the listing of its common stock for trading on the New York
Stock Exchange or for quotation in the NASDAQ Stock Market and, for so long as
there are at least 300 holders of shares of its common stock, to continue the
listing of its common stock for trading on either of such markets.
7.24 Corporate Reorganization Actions. On or as soon as
practicable after the Effective Date, Reorganized AWI shall take such actions as
may be or become necessary to effectuate the following, all of which shall be
authorized and approved in all respects, in each case without further action
being required under applicable law, regulation, order, or rule (including,
without limitation, any action by the shareholders or directors of AWI or
Reorganized AWI or the Asbestos PI Trust or the Asbestos PI Trustees):
(a) AWI will file the Amended and Restated Articles of
Incorporation with the Secretary of State for the Commonwealth of Pennsylvania.
(b) Certain wholly owned, non-operating subsidiaries of AWI will
merge with and into AWI on or as soon as practicable after the Effective Date.
(c) The Existing AWI Common Stock will be cancelled.
(d) Subject to section 7.4 hereof, the Plan Note Indenture will
become effective and, upon such effectiveness, the Plan Notes will be issued and
delivered in accordance with sections 3.2(f) and 12.8 hereof and sections 3.2(g)
and 10.1(b) hereof; the New Common Stock will be issued and delivered in
accordance with sections 3.2(f) and 12.8 hereof and sections 3.2(g) and 10.1(b)
hereof; and the New Warrants will be issued and delivered as provided in section
7.25 hereof (and, if applicable, in accordance with section 10.1(b) hereof), in
each case such issuance and delivery to be subject to the other provisions of
ARTICLE VII of the Plan regarding the conditions to and manner of delivery of
Plan Notes, New Common Stock and New Warrants.
39
(e) Reorganized AWI may consummate the 144A Offering.
(f) Reorganized AWI will enter into the working capital facility
referenced in section 7.17 of the Plan.
(g) Reorganized AWI will enter into the New Long-Term Incentive
Plan.
7.25 Holdings Transactions. On or as soon as is practicable after
the Effective Date and, if applicable, in accordance with section 10.1(b)
hereof, the New Warrants will be issued to the holder of the Equity Interests,
which will be Holdings if the Holdings Plan of Liquidation has been approved on
or before such date. From and after the Effective Date, other than as provided
in the Plan (including, without limitation, provisions of the Plan relating to
the indemnification rights of Holdings' officers, directors, and employees and
the requirement to provide insurance for the benefit of such persons),
Reorganized AWI shall have no ongoing obligations to Holdings or AWWD; provided,
however, that Reorganized AWI shall bear (i) all costs and expenses related to
the preparation and submission to a vote of Holdings' shareholders of the
Holdings Plan of Liquidation, which shall be undertaken as soon as reasonably
practicable, and (ii) all other operating expenses of Holdings and AWWD until
the time of such vote (and for a reasonable time thereafter to permit an orderly
transition on the administration of Holdings' affairs), and (iii) if the
requisite approval of the Holdings Plan of Liquidation is obtained, all costs
and expenses of administering the performance and consummation of the Holdings
Plan of Liquidation, including any taxes incurred by Holdings in connection
therewith.
7.26 Compliance with QSF Regulations.
(a) Tax Status of Asbestos PI Trust. AWI shall timely seek a
private letter ruling from the IRS substantially to the effect that, among other
things, the Asbestos PI Trust shall be a "qualified settlement fund" within the
meaning of section 468B of the Internal Revenue Code and the Treasury
Regulations thereunder.
(b) Qualified Appraisal. Within sixty (60) days before or after
the funding of the Asbestos PI Trust (but not later than February 14th of the
following calendar year), AWI or Reorganized AWI shall obtain a Qualified
Appraisal of the fair market value of the New Common Stock transferred (or to be
transferred) to the Asbestos PI Trust.
(c) Delivery of Statement of Transfers. Following the funding of
the Asbestos PI Trust and the receipt of the Qualified Appraisal (and in no
event later than February 15th of the calendar year following the funding of the
Asbestos PI Trust), Reorganized AWI shall provide a "ss. 1.468B-3 Statement" to
the Asbestos PI Trustees in accordance with Treasury Regulations section
1.468B-3(e). Similarly, following the funding of the Asbestos PD Trust (and in
no event later than February 15th of the following calendar year), Reorganized
AWI shall provide a "ss. 1.468B-3 Statement" to the Asbestos PD Trustees in
accordance with Treasury Regulations section 1.468B-3(e).
7.27 Effectuating Documents and Further Transactions. Each of the
officers of AWI and Reorganized AWI is authorized, in accordance with his or her
authority under the resolutions of the Board of Directors, to execute, deliver,
file, or record such contracts, instruments, releases, indentures, and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate and further evidence the terms and conditions of the Plan and any
notes or securities issued pursuant to the Plan.
40
7.28 Allocation of Plan Distributions Between Principal and
Interest. To the extent that any Allowed Unsecured Claim or Allowed Convenience
Claim entitled to a Distribution under the Plan is comprised of indebtedness and
accrued but unpaid interest thereon, such Distribution shall be allocated to the
principal amount of the Claim (as determined for federal income tax purposes)
first and then, to the extent the consideration exceeds the principal amount of
the Claim, to accrued but unpaid interest.
ARTICLE VIII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 Assumption of Executory Contracts and Unexpired Leases. Any
executory contracts or unexpired leases listed on Exhibit 8.1 to the Plan shall
be deemed to have been assumed by Reorganized AWI as of the Effective Date, and
the Plan shall constitute a motion to assume such executory contracts and
unexpired leases. Subject to the occurrence of the Effective Date, entry of the
Confirmation Order by the Clerk of the Bankruptcy Court shall constitute
approval of such assumptions pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such assumption is in the best
interest of AWI, its estate, and all parties in interest in the Chapter 11 Case.
With respect to each such executory contract or unexpired lease assumed by
Reorganized AWI, unless otherwise determined by the Bankruptcy Court pursuant to
a Final Order or agreed to by the parties thereto prior to the Effective Date,
the dollar amount required to cure any defaults of AWI existing as of the
Confirmation Date shall be conclusively presumed to be the amount set forth in
Exhibit 8.1 with respect to such executory contract or unexpired lease. Subject
to the occurrence of the Effective Date, any such cure amount shall be treated
as an Allowed Administrative Expense under the Plan, and, upon payment of such
Allowed Administrative Expense, all defaults of AWI existing as of the
Confirmation Date with respect to such executory contract or unexpired lease
shall be deemed cured.
8.2 Rejection of Executory Contracts and Unexpired Leases. Any
executory contracts or unexpired leases of AWI that either (x) are set forth on
Exhibit 8.2 to the Plan or (y)(i) are not listed on Exhibit 8.1 to the Plan,
(ii) have not been assumed by AWI with the approval of the Bankruptcy Court, and
(iii) are not the subject of pending motions to assume at the Confirmation Date
shall be deemed to have been rejected by AWI, the Plan shall constitute a motion
to reject such executory contracts and unexpired leases, and Reorganized AWI
shall have no liability thereunder except as is specifically provided in the
Plan. Entry of the Confirmation Order by the Clerk of the Bankruptcy Court shall
constitute approval of such rejections pursuant to section 365(a) of the
Bankruptcy Code and a finding by the Bankruptcy Court that each such rejected
executory contract or unexpired lease is burdensome and that the rejection
thereof is in the best interest of AWI, its estate, and all parties in interest
in the Chapter 11 Case. Without limiting the foregoing, any agreement entered
into prior to the Commencement Date by or on behalf of AWI with respect to the
settlement of any Asbestos Personal Injury Claim shall be deemed rejected as of
the Effective Date to the extent such settlement agreement is deemed to be an
executory contract within the meaning of section 365(a) of the Bankruptcy Code.
8.3 Claims Arising from Rejection, Termination or Expiration.
Claims created by the rejection of executory contracts or unexpired leases
(including, without limitation, the rejection provided in section 8.2 of the
Plan) or the expiration or termination of any executory contract or unexpired
lease prior to the Confirmation Date, other than Asbestos Personal Injury
Claims, must be filed with the Bankruptcy Court and served on AWI no later than
thirty (30) days after (i) in the case of an executory contract or unexpired
41
lease that was terminated or expired by its terms prior to the Confirmation
Date, the Confirmation Date, (ii) in the case of an executory contract or
unexpired lease rejected by AWI, the entry of the order of the Bankruptcy Court
authorizing such rejection, or (iii) in the case of an executory contract or
unexpired lease that is deemed rejected pursuant to section 8.2 of the Plan, the
Confirmation Date. Notwithstanding the foregoing, Exhibit 8.2 to the Plan sets
forth AWI's value of the rejection claim for each executory contract or
unexpired lease set forth thereon, which claim shall be deemed an Allowed
Unsecured Claim if no proof of claim is timely filed and served in accordance
with the immediately preceding sentence. Any Claims for which a rejection claim
is not set forth on Exhibit 8.2 to the Plan and for which a proof of claim is
not filed and served within the time provided herein will be forever barred from
assertion and shall not be enforceable against AWI, its estate, assets,
properties, or interests in property, or Reorganized AWI or its estate, assets,
properties, or interests in property. Unless otherwise ordered by the Bankruptcy
Court, all such Claims (other than Asbestos Personal Injury Claims) that are
timely filed as provided herein shall be treated as Unsecured Claims under the
Plan and shall be subject to the provisions of Article V of the Plan.
8.4 Previously Scheduled Contracts. Exhibit 8.4 to the Plan sets
forth a list of agreements that were listed on the Schedules as executory
contracts, but which AWI believes should not be considered executory contracts
(either because they were not executory contracts as of the Commencement Date or
because they have expired or terminated in accordance with their terms prior to
the Effective Date). If any such agreements are determined to be executory
contracts, AWI or Reorganized AWI, as the case may be, reserves the right to
seek the assumption or rejection of any such contract, and the time within which
AWI or Reorganized AWI, as the case may be, may seek to assume or reject any
such agreements shall be tolled until twenty (20) Business Days after the date
on which an order determining that any such agreement is an executory contract
becomes a Final Order. Set forth on Exhibit 8.4 to the Plan is the amount that
AWI intends to treat as an Allowed Unsecured Claim for each such agreement. Such
amount and the treatment of each such agreement shall be binding unless, on or
before ten (10) days after the Confirmation Date, the other party to any such
agreement either (i) files a proof of claim (which proof of claim shall be
deemed timely filed) or (ii) files a motion seeking to compel assumption or
rejection of such agreement.
8.5 Insurance Policies and Agreements.
(a) Assumed Insurance Policies and Agreements. AWI does not
believe that the insurance policies issued to, or insurance agreements entered
into by, AWI prior to the Commencement Date constitute executory contracts. To
the extent that such insurance policies or agreements are considered to be
executory contracts, then, notwithstanding anything contained in sections 8.1 or
8.2 of the Plan to the contrary, the Plan shall constitute a motion to assume
such insurance policies and agreements, and, subject to the occurrence of the
Effective Date, the entry of the Confirmation Order by the Clerk of the
Bankruptcy Court shall constitute approval of such assumption pursuant to
section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court that
each such assumption is in the best interest of AWI, its estate, and all parties
in interest in the Chapter 11 Case. Unless otherwise determined by the
Bankruptcy Court pursuant to a Final Order or agreed to by the parties thereto
prior to the Effective Date, no payments are required to cure any defaults of
AWI existing as of the Confirmation Date with respect to each such insurance
policy or agreement. In accordance with section 10.1 hereof, the rights under
the insurance policies and agreements constituting the Asbestos PI Insurance
Asset shall, to the extent necessary, be deemed assigned to the Asbestos PI
Trust as of the Effective Date and, pursuant to section 365 of the Bankruptcy
Code, AWI shall have no further liability thereunder from and after the
Effective Date.
42
(b) Reservation of Rights. Nothing contained in the Plan,
including this section 8.5, shall constitute a waiver of any claim, right, or
cause of action that AWI, the Asbestos PI Trust, the Asbestos PD Trust (if
created), or Reorganized AWI, as the case may be, may hold against the insurer
under any policy of insurance or insurance agreement.
8.6 Indemnification and Reimbursement Obligations. For purposes
of the Plan, the obligations of AWI to indemnify and reimburse persons who are
or were directors, officers, or employees of Holdings, AWWD, or AWI on the
Commencement Date or at any time thereafter against and for any obligations
(including, without limitation, fees and expenses incurred by the board of
directors of Holdings, or the members thereof, in connection with the Chapter 11
Case) pursuant to articles of incorporation, codes of regulations, bylaws,
applicable state law, or specific agreement, or any combination of the
foregoing, shall survive confirmation of the Plan, remain unaffected thereby,
and not be discharged in accordance with section 1141 of the Bankruptcy Code,
irrespective of whether indemnification or reimbursement is owed in connection
with an event occurring before, on, or after the Commencement Date. In
furtherance of the foregoing, Reorganized AWI shall maintain insurance for the
benefit of such directors, officers, or employees at levels no less favorable
than those existing as of the date of entry of the Confirmation Order for a
period of no less than four years following the Effective Date.
8.7 Compensation and Benefit Programs. Except as set forth below
in sections 8.7(b) and 8.7(c) of the Plan, all employment and severance
policies, workers' compensation programs, and all compensation and benefit
plans, policies and programs of AWI applicable to its present and former
employees, officers, and directors, including, without express or implied
limitation, all savings plans, retirement plans, health care plans, disability
plans, severance benefit plans, incentive plans, and life, accidental death, and
dismemberment insurance plans, shall be deemed to be, and shall be treated as
though they are, executory contracts that are deemed assumed under the Plan, and
AWI's obligations under such plans, policies, and programs shall be deemed
assumed pursuant to section 365(a) of the Bankruptcy Code, survive confirmation
of the Plan, remain unaffected thereby, and not be discharged in accordance with
section 1141 of the Bankruptcy Code. Any defaults existing under any of such
plans, policies, and programs shall be cured promptly after they become known by
Reorganized AWI.
(b) Notwithstanding section 8.7(a) of the Plan, on the Effective
Date (unless an earlier date is specified herein),
(i) the Employment Protection Plan for Salaried Employees
will be deemed to have been terminated, cancelled, and of no
further force and effect prior to the Effective Date, and the
participants thereunder shall have no further rights thereunder;
(ii) the 1993 Long-Term Stock Incentive Plan will be deemed
terminated, cancelled, and of no further force and effect, and
the participants thereunder shall have no further rights
thereunder; provided that any and all remaining restrictions on
restricted stock awards under the 1993 Long-Term Stock Incentive
Plan will lapse on the Effective Date to the extent participants
do not elect to waive their right to such awards prior to such
date;
(iii) the 1999 Long-Term Incentive Plan will be deemed
terminated, cancelled, and of no further force and effect, and
the participants thereunder shall have no further rights
thereunder; provided that any and all remaining restrictions on
restricted stock awards under the 1999 Long-Term Incentive Plan
43
will lapse on the Effective Date to the extent participants do
not elect to waive their right to such awards prior to such date;
and
(iv) the Armstrong Holdings Stock Award Plan will be deemed
terminated, cancelled, and of no further force and effect, and
the participants thereunder shall have no further rights
thereunder; provided that any and all remaining restrictions on
restricted stock awards under the Armstrong Holdings Stock Award
Plan will lapse on the Effective Date to the extent participants
do not elect to waive their right to such awards prior to such
date.
(c) Notwithstanding section 8.7(a) of the Plan, on the Effective
Date (unless an earlier date is specified herein),
(i) the Armstrong Deferred Compensation Plan will be
modified so that Reorganized AWI, and not Holdings, will be the
sponsor of such plan and to provide that Reorganized AWI has the
right, in its sole discretion, not to honor single-sum withdrawal
requests, and the Armstrong Deferred Compensation Plan will be
assumed, as amended; provided, however, as to any party that
objects to such amendment by the deadline for filing objections
to confirmation of the Plan, the Armstrong Deferred Compensation
Plan will be deemed rejected, and such party will have an
Unsecured Claim for any benefits thereunder in accordance with
section 8.3 of the Plan, and, as of any date immediately prior to
the Effective Date designated by Holdings, the Armstrong Deferred
Compensation Plan will be deemed amended to exclude the
occurrence of the Effective Date, the creation of the Asbestos PI
Trust, and the issuance of the New Common Stock to the Asbestos
PI Trust from triggering a change in control thereunder;
(ii) the Severance Pay Plan for Salaried Employees will be
amended as of the Effective Date as follows: If the participant
is in a position at a grade level of 15 or higher on Reorganized
AWI's organizational management system on the date of
termination, the participant will be eligible for severance
benefits based on two weeks of pay for each year of service,
subject to a minimum of 8 weeks pay and a maximum of 52 weeks
pay, and the Severance Pay Plan for Salaried Employees will be
assumed, as amended;
(iii) the Retirement Income Plan (Pension) will be amended
prior to the Effective Date in the manner described below and, as
amended, will be assumed as of the Effective Date:
1. to eliminate the Social Security retirement
enhancement that may become payable due to job loss
following a Change in Control (as defined in the Retirement
Income Plan (Pension)), and
2. to eliminate future accruals of all other retirement
enhancements that may become payable due to job loss
following a Change in Control to the fullest extent
permitted by applicable law; and
(iv) the Retirement Benefit Equity Plan will be amended as of any
date prior to the Effective Date designated by AWI in the manner described below
and, as amended, will be assumed as of the Effective Date:
44
1. to exclude in the definition of Change in Control
(as defined in the Retirement Benefit Equity Plan) the
occurrence of the Effective Date, the creation of the
Asbestos PI Trust, and the issuance of the New Common Stock
to the Asbestos PI Trust,
2. to eliminate the Extraordinary Event provisions as
covered under the Retirement Income Plan,
3. to eliminate any and all retirement enhancements,
related to past and future service, that may become payable
due to job loss following a Change in Control as covered
under the Retirement Income Plan, and
4. to terminate any right or obligation of Reorganized
AWI to honor single-sum withdrawal requests;
provided, however, as to any party that objects to such
amendments by the deadline for filing objections to
confirmation of the Plan, such plan will be deemed
rejected, and such party will have an Unsecured Claim for
any benefits thereunder in accordance with section 8.3 of
the Plan.
(d) On the Effective Date, the assumption, rejection, and
amendment of the foregoing plans provided in this section 8.7 shall be deemed to
have occurred as of such date or earlier date specified in such section, shall
be authorized, and shall be deemed approved in all respects, and shall be in
effect from and after the Effective Date or such other date in each case without
requiring further action under applicable law, regulation, order, or rule,
including, without express or implied limitation, any action by any party or
Entity, including any administrative committee of any plan or the stockholders
or directors of AWI or Reorganized AWI. On the Effective Date or as soon
thereafter as is practicable, Reorganized AWI shall restate the plans amended
above as provided in section 8.7(c) and shall communicate such amendments in
such manner and as may be required without any further order of the Bankruptcy
Court. Each of the officers of AWI and Reorganized AWI is authorized, in
accordance with his or her authority under the resolutions of the Board of
Directors, to execute, deliver, file, or record such contracts, instruments,
releases, indentures, and other agreements or documents and take such actions as
may be necessary or appropriate to effectuate and further evidence the terms and
conditions of the plan amendments set forth in this section of the Plan.
8.8 Management Agreements. On the Effective Date, all employment
contracts between AWI and any employee of AWI who was employed by AWI as of the
date immediately preceding the Effective Date (including, without limitation,
any offer letters issued to any such employees to the extent such offer letters
are not superseded by formal employment contracts) shall be deemed assumed by
Reorganized AWI. In addition, Reorganized AWI shall enter into new employment
contracts with those persons listed on Exhibit 8.8-A substantially in the form
of Exhibit 8.8-B to the Plan, which employment contracts shall be deemed
authorized without any further approval of the Board of Directors of AWI or
Reorganized AWI and automatically shall become effective on the Effective Date.
45
ARTICLE IX
RETENTION OF JURISDICTION
Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, the
Bankruptcy Court shall retain and shall have exclusive jurisdiction over any
matter (a) arising under the Bankruptcy Code, (b) arising in or related to the
Chapter 11 Case or the Plan, or (c) to perform any of the following actions:
9.1 To interpret, enforce, and administer the terms of the
Asbestos PI Trust Agreement (including all annexes and exhibits thereto), the
Asbestos PD Trust Agreement (including all annexes and exhibits thereto), and
the restrictions on transfer of Asbestos Personal Injury Claims and Asbestos
Property Damage Claims contained in the Confirmation Order.
9.2 To hear and determine any and all motions or applications
pending on the Confirmation Date (or thereafter if a contract listed on Exhibit
8.4 of the Plan is thereafter determined to be executory, and AWI is required to
assume or reject it) for the assumption and/or assignment or rejection of
executory contracts or unexpired leases to which AWI is a party or with respect
to which AWI may be liable, and to hear and determine any and all Claims
resulting therefrom or from the expiration or termination prior to the
Confirmation Date of any executory contract or unexpired lease;
9.3 To determine any and all adversary proceedings, applications,
motions, and contested or litigated matters that may be pending on the Effective
Date or that, pursuant to the Plan, may be instituted by Reorganized AWI after
the Effective Date, including, without express or implied limitation, any claims
to avoid any preferences, fraudulent transfers, or other voidable transfers, or
otherwise to recover assets for the benefit of AWI's estate;
9.4 To hear and determine any objections to the allowance of
Claims arising prior to the Effective Date (other than Asbestos Personal Injury
Claims), whether filed, asserted, or made before or after the Effective Date,
including, without express or implied limitation, to hear and determine any
objections to the classification of any Claim and to allow or disallow any
Disputed Claim in whole or in part;
9.5 To issue such orders in aid of execution of the Plan to the
extent authorized or contemplated by section 1142 of the Bankruptcy Code;
9.6 To consider any modifications of the Plan, remedy any defect
or omission, or reconcile any inconsistency in any order of the Bankruptcy
Court, including, without express or implied limitation, the Confirmation Order;
9.7 To hear and determine all applications for allowances of
compensation and reimbursement of expenses of professionals under sections 330
and 331 of the Bankruptcy Code and any other fees and expenses authorized to be
paid or reimbursed under the Plan;
9.8 To hear and determine all controversies, suits, and disputes
that may relate to, impact upon, or arise in connection with the Plan (and all
Exhibits to the Plan) or its interpretation, implementation, enforcement, or
consummation;
46
9.9 To the extent that Bankruptcy Court approval is required, to
consider and act on the compromise and settlement of any Claim (other than an
Asbestos Personal Injury Claim) or cause of action by or against AWI's estate;
9.10 To determine such other matters that may be set forth in the
Plan, the Confirmation Order, the Claims Trading Injunction, or the Asbestos PI
Permanent Channeling Injunction, or that may arise in connection with the Plan,
the Confirmation Order, the Claims Trading Injunction, or the Asbestos PI
Permanent Channeling Injunction;
9.11 To hear and determine any proceeding that involves the
validity, application, construction, enforceability, or modification of the
Claims Trading Injunction or the Asbestos PI Permanent Channeling Injunction or
of the application of section 524(g) of the Bankruptcy Code to the Asbestos PI
Permanent Channeling Injunction;
9.12 To hear and determine matters concerning state, local, and
federal taxes, fines, penalties, or additions to taxes for which AWI, as Debtor
or Debtor in Possession, or the Disputed Unsecured Claims Reserve may be liable,
directly or indirectly, in accordance with sections 346, 505, and 1146 of the
Bankruptcy Code (including any request for expedited determination under section
505(b) of the Bankruptcy Code);
9.13 To enter an order or final decree closing the Chapter 11
Case; and
9.14 To hear and determine all objections to the termination of
the Asbestos PI Trust.
To the extent that the Bankruptcy Court is not permitted under applicable law to
preside over any of the foregoing matters, the reference to the "Bankruptcy
Court" in this ARTICLE IX shall be deemed to be replaced by the "District
Court." Notwithstanding anything in this ARTICLE IX to the contrary, (i) the
allowance of Asbestos Personal Injury Claims and the forum in which such
allowance will be determined will be governed by and in accordance with the
Asbestos PI Trust Distribution Procedures and the Asbestos PI Trust Agreement;
(ii) disputes concerning Asbestos Property Damage Claims shall be resolved in
the Bankruptcy Court in accordance with ARTICLE XI of the Plan; and (iii) the
Bankruptcy Court and/or the District Court shall have concurrent rather than
exclusive jurisdiction with respect to (x) disputes relating to rights under
insurance policies issued to AWI that are included in the Asbestos PI Insurance
Asset or the Asbestos PD Insurance Asset, (y) disputes relating to AWI's claim
for costs, expenses and fees incurred in connection with an Alternative Dispute
Resolution Proceeding initiated in 1996, as referenced in section 1.26 of the
Plan, and (z) disputes relating to AWI's rights to insurance with respect to
workers' compensation claims.
ARTICLE X
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF
CERTAIN LIABILITIES BY THE ASBESTOS PI TRUST
10.1 Transfer of Certain Property to the Asbestos PI Trust.
(a) Transfer of Books and Records. On the Effective Date or as
soon thereafter as is practicable, at the sole cost and expense of the Asbestos
PI Trust and in accordance with written instructions provided to Reorganized AWI
by the Asbestos PI Trust, Reorganized AWI shall transfer and assign, or cause to
47
be transferred and assigned, to the Asbestos PI Trust the books and records of
AWI that pertain directly to Asbestos Personal Injury Claims that have been
asserted against AWI. AWI will request that the Bankruptcy Court, in the
Confirmation Order, rule that such transfer does not result in the destruction
or waiver of any applicable privileges pertaining to such books and records. If
the Bankruptcy Court does not so rule, at the option of the Asbestos PI Trust,
Reorganized AWI will, at the sole cost and expense of the Asbestos PI Trust,
retain the books and records and enter into arrangements to permit the Asbestos
PI Trust to have access to such books and records. If the Asbestos PI Trust does
not issue written instructions for the transfer or retention of such books and
records within one hundred eighty (180) days after the later of the Effective
Date and the date by which all the Asbestos PI Trustees have executed the
Asbestos PI Trust Agreement, or if the Asbestos PI Trust so requests,
Reorganized AWI may (and shall, if the Asbestos PI Trust so requests, but at the
sole cost and expense of the Asbestos PI Trust) destroy any such books and
records, and the order of the District Court entered during the Chapter 11 Case
with respect to the retention of books and records shall be deemed superseded by
this section of the Plan.
(b) Transfer of Plan Consideration. On the later of the Effective
Date and the date by which all the Asbestos PI Trustees have executed the
Asbestos PI Trust Agreement, AWI shall transfer to the Asbestos PI Trust the
Asbestos PI Insurance Asset and the following assets:
(i) 65.57% of the New Common Stock,
(ii) 65.57% of the first $1.05 billion of (x) up to
$300 million of Available Cash and (y) principal amount of
each series of Plan Notes and/or 144A Offering Proceeds,
(iii) 40% of the first $50 million of Available Cash
remaining after making provision for the Distribution
provided in section 3.2(f)(ii)2 of the Plan and the funding
of the Asbestos PI Trust in section 10.1(b)(ii) of the Plan,
(iv) 40% of an amount of each series of Plan Notes
and/or 144A Offering Proceeds equal to the difference (if
positive) of $50 million less the amount of Available Cash
remaining after making provision for the Distribution
provided in section 3.2(f)(ii)2 of the Plan and the funding
of the Asbestos PI Trust in section 10.1(b)(ii) of the Plan,
and
(v) 65.57% of the remaining Available Cash and each
series of Plan Notes and/or 144A Offering Proceeds after
making provision for the Distribution provided in sections
3.2(f)(ii)2, 3.2(f)(ii)3, and 3.2(f)(ii)4 of the Plan and
the funding of the Asbestos PI Trust in sections
10.1(b)(ii), 10.1(b)(iii), and 10.1(b)(iv) of the Plan.
Notwithstanding the foregoing, if AWI intends to complete a 144A Offering and
the 144A Offering has not been completed as of the time for the Distribution to
the Asbestos PI Trust specified herein, then the Distribution of the Plan Notes
and/or 144A Offering Proceeds to the Asbestos PI Trust shall be made as soon as
practicable after the 144A Offering is completed or Reorganized AWI determines
not to complete a 144A Offering, but in no event shall such Distribution occur
after the Initial Distribution Date. In addition, if Class 6 has voted to reject
the Plan, the New Warrants shall be issued by Reorganized AWI on account of the
Asbestos Personal Injury Claims; however, such claimants have waived on behalf
of themselves and the Asbestos PI Trust any right to the New Warrants. The New
Warrants shall be issued by Reorganized AWI to AWWD (or to Holdings as the
successor to AWWD under the Holdings Plan of Liquidation), consistent with
48
section 7.25 hereof (and shall never be issued or delivered to the Asbestos PI
Trust), without any action being required of, or any direction by, the Asbestos
PI Trust or the Asbestos PI Trustees in such regard.
10.2 Assumption of Certain Liabilities by the Asbestos PI Trust.
In consideration for the property transferred to the Asbestos PI Trust pursuant
to section 10.1 hereof and in furtherance of the purposes of the Asbestos PI
Trust and the Plan, the Asbestos PI Trust shall assume all liability and
responsibility for all Asbestos Personal Injury Claims, and Reorganized AWI
shall have no further financial or other responsibility or liability therefor.
The Asbestos PI Trust shall also assume all liability for premiums, deductibles,
retrospective premium adjustments, security or collateral arrangements, or any
other charges, costs, fees, or expenses (if any) that become due to any insurer
in connection with the Asbestos PI Insurance Asset as a result of Asbestos
Personal Injury Claims, asbestos-related personal injury claims against Entities
insured under policies included in the Asbestos PI Insurance Asset by reason of
vendor's endorsements, or under the indemnity provisions of settlement
agreements that AWI made with various insurers prior to the Commencement Date to
the extent that those indemnity provisions relate to Asbestos Personal Injury
Claims, and Reorganized AWI shall have no further financial or other
responsibility or liability for any of the foregoing.
10.3 Cooperation with Respect to Insurance Matters. Reorganized
AWI shall cooperate with the Asbestos PI Trust and use commercially reasonable
efforts to take or cause to be taken all appropriate actions and to do or cause
to be done all things necessary or appropriate to effectuate the transfer of the
Asbestos PI Insurance Asset to the Asbestos PI Trust. By way of enumeration and
not of limitation, Reorganized AWI shall be obligated (i) to provide the
Asbestos PI Trust with copies of insurance policies and settlement agreements
included within or relating to the Asbestos PI Insurance Asset; (ii) to provide
the Asbestos PI Trust with information necessary or helpful to the Asbestos PI
Trust in connection with its efforts to obtain insurance coverage for Asbestos
Personal Injury Claims: and (iii) to execute further assignments or allow the
Asbestos PI Trust to pursue claims relating to the Asbestos PI Insurance Asset
in its name (subject to appropriate disclosure of the fact that the Asbestos PI
Trust is doing so and the reasons why it is doing so), including by means of
arbitration, alternative dispute resolution proceedings or litigation, to the
extent necessary or helpful to the efforts of the Asbestos PI Trust to obtain
insurance coverage under the Asbestos PI Insurance Asset for Asbestos Personal
Injury Claims. To the extent that the transfer of the Asbestos PI Insurance
Asset to the Asbestos PI Trust is determined to be invalid by a court or
arbitrator of competent jurisdiction, upon the request of the Asbestos PI Trust,
Reorganized AWI shall (i) pursue any rights to the Asbestos PI Insurance Asset
for the benefit of, and to the fullest extent required by, the Asbestos PI
Trust, and (ii) immediately transfer any amounts recovered under or on account
of the Asbestos PI Insurance Asset to the Asbestos PI Trust. The Asbestos PI
Trust shall be obligated to compensate Reorganized AWI for costs reasonably
incurred in connection with providing assistance to the Asbestos PI Trust or in
pursuing recovery for the benefit of the Asbestos PI Trust pursuant to this
section 10.3, including, but not limited to, out-of-pocket costs and expenses,
consultant fees, and attorneys' fees.
10.4 Authority of AWI. Effective on the Confirmation Date, AWI
shall be empowered and authorized to take or cause to be taken, prior to the
Effective Date, all actions necessary to enable it to implement effectively the
provisions of the Plan and the Asbestos PI Trust Agreement.
49
ARTICLE XI
ASBESTOS PROPERTY DAMAGE CLAIMS
11.1 Transfer of Certain Property to the Asbestos PD Trust.
Transfer of Books and Records. On the Effective Date or as soon thereafter as is
practicable, if the Asbestos PD Trust is created pursuant to section
3.2(d)(ii)(x) of the Plan. Reorganized AWI, at the sole cost and expense of the
Asbestos PD Trust, and in accordance with written instructions provided to
Reorganized AWI by the Asbestos PD Trust, shall transfer and assign, or cause to
be transferred and assigned, to the Asbestos PD Trust the books and records of
AWI (if any) that pertain directly to Asbestos Property Damage Claims that have
been asserted against AWI (except to the extent that such books and records have
been produced to the Asbestos PD Committee during the course of the Chapter 11
Case). AWI will request that the Bankruptcy Court, in the Confirmation Order,
rule that any such transfer does not result in the destruction or waiver of any
applicable privileges pertaining to such books and records. If the Bankruptcy
Court does not so rule, at the option of the Asbestos PD Trust, Reorganized AWI
will, at the sole cost and expense of the Asbestos PD Trust, retain the books
and records and enter into arrangements to permit the Asbestos PD Trust to have
access to such books and records. If the Asbestos PD Trust is created and does
not issue written instructions for the transfer or retention of such books and
records within one hundred eighty (180) days after the later of the Effective
Date and the date by which all the Asbestos PD Trustees have executed the
Asbestos PD Trust Agreement, or if the Asbestos PD Trust so requests,
Reorganized AWI may (and shall, if the Asbestos PD Trust so requests, but at the
sole cost and expense of the Asbestos PD Trust) destroy any such books and
records, and the order of the District Court entered during the Chapter 11 Case
with respect to the retention of books and records shall be deemed superseded by
this section of the Plan.
11.2 Transfer of Certain Property to the Asbestos PD Trust -
Class 4 Acceptance. If Class 4 votes to accept the Plan and the Asbestos PD
Trust is created pursuant to section 3.2(d)(ii)(x) of the Plan, Travelers
Casualty and Surety Company, Travelers Indemnity Company, and Liberty Mutual
Insurance Company (collectively) shall distribute to the Asbestos PD Trust cash
in an amount equal to the Asbestos PD Trust Funding Obligation, and Reorganized
AWI shall have no further financial or other responsibility for Asbestos
Property Damage Claims. Such distribution is conditioned upon the entry of, and
shall be made pursuant to, the Confirmation Order.
11.3 Transfer of Certain Property For Asbestos PD Claims - Class
4 Rejection. If Class 4 votes to reject the Plan and the Asbestos PD Trust is
created pursuant to section 3.2(d)(ii)(x) of the Plan, on the later of the
Effective Date and the date by which all the Asbestos PD Trustees have executed
the Asbestos PD Trust Agreement, Reorganized AWI shall transfer and assign, or
cause to be transferred and assigned, to the Asbestos PD Trust the Asbestos PD
Trust Funding Obligation.
11.4 Assumption of Certain Liabilities by the Asbestos PD Trust.
In consideration for the property transferred to the Asbestos PD Trust pursuant
to sections 11.2 and 11.3 hereof and in furtherance of the purposes of the
Asbestos PD Trust and the Plan, if the Asbestos PD Trust is created pursuant to
section 3.2(d)(ii)(x) of the Plan, the Asbestos PD Trust shall assume all
50
liability and responsibility for all Asbestos Property Damage Claims, and
Reorganized AWI shall have no further financial or other responsibility or
liability therefor. If Class 4 votes to reject the Plan and the Asbestos PD
Trust is created pursuant to section 3.2(d)(ii)(x) of the Plan, the Asbestos PD
Trust shall also assume all liability for premiums, deductibles, retrospective
premium adjustments, security or collateral arrangements, or any other charges,
costs, fees, or expenses (if any) that become due to any insurer in connection
with the Asbestos PD Insurance Asset as a result of Asbestos Property Damage
Claims, asbestos-related property damage claims against Entities insured under
policies included in the Asbestos PD Insurance Asset by reason of vendor's
endorsements, or under the indemnity provisions of settlement agreements that
AWI made with various insurers prior to the Commencement Date to the extent that
those indemnity provisions relate to Asbestos Property Damage Claims, and
Reorganized AWI and the AWI Progeny shall have no further financial or other
responsibility or liability for any of the foregoing.
11.5 Cooperation with Respect to Insurance Matters. If Class 4
votes to reject the Plan and the Asbestos PD Trust is created pursuant to
section 3.2(d)(ii)(x) of the Plan, Reorganized AWI shall cooperate with the
Asbestos PD Trust and use commercially reasonable efforts to take or cause to be
taken all appropriate actions and to do or cause to be done all things necessary
or appropriate to effectuate the transfer of the Asbestos PD Insurance Asset to
the Asbestos PD Trust. By way of enumeration and not of limitation, Reorganized
AWI shall be obligated (i) to provide the Asbestos PD Trust with copies of
insurance policies and settlement agreements included within or relating to the
Asbestos PD Insurance Asset; (ii) to provide the Asbestos PD Trust with
information necessary or helpful to the Asbestos PD Trust in connection with its
efforts to obtain insurance coverage for Asbestos Property Damage Claims; and
(iii) to execute further assignments or allow the Asbestos PD Trust to pursue
claims relating to the Asbestos PD Insurance Asset in its name (subject to
appropriate disclosure of the fact that the Asbestos PD Trust is doing so and
the reasons why it is doing so), including by means of arbitration, alternative
dispute resolution proceedings or litigation, to the extent necessary or helpful
to the efforts of the Asbestos PD Trust to obtain insurance coverage under the
Asbestos PD Insurance Asset for Asbestos Property Damages Claims. To the extent
that the transfer of the Asbestos PD Insurance Asset to the Asbestos PD Trust is
determined to be invalid by a court or arbitrator of competent jurisdiction,
upon the request of the Asbestos PD Trust, Reorganized AWI shall (i) pursue any
rights to the Asbestos PD Insurance Asset for the benefit of, and to the fullest
extent required by, the Asbestos PD Trust, and (ii) immediately transfer any
amounts recovered under or on account of the Asbestos PD Insurance Asset to the
Asbestos PD Trust. The Asbestos PD Trust shall be obligated to compensate
Reorganized AWI for costs reasonably incurred in connection with providing
assistance to the Asbestos PD Trust or in pursuing recovery for the benefit of
the Asbestos PD Trust pursuant to this section 11.5, including but not limited
to, out-of-pocket costs and expenses, consultant fees, and attorneys' fees.
11.6 Authority of AWI. Effective on the Confirmation Date, AWI
shall be empowered and authorized to take or cause to be taken, prior to the
Effective Date, all actions necessary to enable it to implement effectively the
provisions of the Plan and the Asbestos PD Trust Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Payment of Statutory Fees. All fees payable pursuant to
section 1930 of title 28 of the United States Code, as determined by the
Bankruptcy Court at the hearing on confirmation of the Plan, shall be paid by
AWI on or before the Effective Date.
12.2 Discharge of AWI. The rights afforded in the Plan and the
treatment of all Claims and Equity Interests herein shall be in exchange for and
in complete satisfaction, discharge, and release of all Claims and Equity
51
Interests of any nature whatsoever, including any interest accrued thereon from
and after the Commencement Date, against AWI, or its estate, assets, properties,
or interests in property. Except as otherwise provided herein, on the Effective
Date, all Claims against and Equity Interests in AWI shall be satisfied,
discharged, and released in full. Reorganized AWI shall not be responsible for
any obligations of AWI except those expressly assumed by Reorganized AWI in the
Plan. All Entities shall be precluded and forever barred from asserting against
AWI, Reorganized AWI, their successors or assigns, or their assets, properties,
or interests in property any other or further Claims 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 the facts of or legal bases therefor
were known or existed prior to the Effective Date.
12.3 Rights of Action. Any rights, claims, or causes of action
accruing to AWI pursuant to the Bankruptcy Code or pursuant to any statute or
legal theory, including, without express or implied limitation, any avoidance or
recovery actions under sections 544, 545, 547, 548, 549, 550, 551, and 553 of
the Bankruptcy Code and (except as provided in Articles X and XI hereof) any
rights to, claims or causes of action for recovery under any policies of
insurance issued to or on behalf of AWI shall remain assets of AWI's estate and,
on the Effective Date, shall be transferred to Reorganized AWI. Reorganized AWI
shall be deemed the appointed representative to, and may, pursue, litigate, and
compromise and settle any such rights, claims, or causes of action, as
appropriate, in accordance with what is in the best interests of and for the
benefit of Reorganized AWI.
12.4 Third Party Agreements. The Distributions to the various
classes of Claims hereunder shall not affect the right of any Entity to levy,
garnish, attach, or employ any other legal process with respect to such
Distributions by reason of any claimed subordination rights or otherwise. All of
such rights and any agreements relating thereto shall remain in full force and
effect.
12.5 Dissolution of Committees. On the Effective Date, the Future
Claimants' Representative, the Asbestos PI Claimants' Committee, the Asbestos PD
Committee, and the Unsecured Creditors' Committee shall thereupon be released
and discharged of and from all further authority, duties, responsibilities, and
obligations relating to and arising from and in connection with the Chapter 11
Case, and, except for the limited purpose of presenting final applications for
fee and expenses, all such committees shall be deemed dissolved, and the Future
Claimants' Representative shall continue to serve through the termination of the
Asbestos PI Trust in order to perform the functions required by the Asbestos PI
Trust Agreement; provided, however, (i) if the Effective Date occurs before the
Confirmation Order becomes a Final Order, the Asbestos PI Claimants' Committee,
the Future Claimants' Representative, and, if Class 6 votes to accept the Plan,
the Unsecured Creditors' Committee may continue to exist and to serve for the
purposes of pursuing any appeal of the Confirmation Order, and (ii) if any
adversary proceeding to which any of the Asbestos PI Claimants' Committee, the
Future Claimants' Representative, or, if Class 6 votes to accept the Plan, the
Unsecured Creditors' Committee is participating is pending as of the Effective
Date, any such committee may continue to exist or the Future Claimants'
Representative may continue to serve for the limited purpose of litigating such
adversary proceeding. The fees and expenses of the Future Claimants'
Representative from and after the Effective Date relating to the role of the
Future Claimants' Representative in the Asbestos PI Trust, pursuant to the
Asbestos PI Trust Agreement and the Asbestos PI Trust Distribution Procedures
(including, without limitation, the fees and expenses of any professionals
retained by the Future Claimants' Representative), shall be the sole
responsibility of the Asbestos PI Trust. Notwithstanding the foregoing, if Class
52
4 votes to accept the Plan, the Asbestos PD Committee shall continue to exist
from and after the Effective Date for the sole purpose of the selection of the
Asbestos PD Trustees and the development of the Asbestos PD Claims Resolution
Procedures, but all fees and expenses incurred by the Asbestos PD Committee
(including, without limitation, all fees and expenses of counsel to the Asbestos
PD Committee and other professionals retained by the Asbestos PD Committee)
shall be the sole responsibility of the Asbestos PD Trust.
12.6 Exculpation. None of Reorganized AWI, any of the members of
the Asbestos PI Claimants' Committee, the Future Claimants' Representative, any
of the members of the Unsecured Creditors' Committee, any members of the
Asbestos PD Committee, AWWD, Holdings, or any of their officers, directors,
employees, or agents shall have or incur any liability to any Entity for any act
or omission in connection with or arising out of the Chapter 11 Case, including,
without limitation, the commencement of the Chapter 11 Case, the negotiation of
the Plan, pursuit of confirmation of the Plan, the consummation of the Plan, or
the administration of the Plan or the property to be distributed under the Plan,
except for gross negligence or willful misconduct, and in all respects shall be
entitled to rely upon the advice of counsel with respect to their duties and
responsibilities under, or in connection with, the Plan.
12.7 Title to Assets; Discharge of Liabilities. Except as
otherwise provided in the Plan, on the Effective Date, title to all assets and
properties and interests in property dealt with by the Plan shall vest in
Reorganized AWI free and clear of all Claims, Equity Interests, Encumbrances,
and other interests, and the Confirmation Order shall be a judicial
determination of discharge of the liabilities of AWI arising prior to the
Effective Date, except as may be otherwise provided in the Plan.
12.8 Surrender and Cancellation of Instruments. Except as
otherwise provided in section 7.12 of the Plan with respect to Debt Security
Claims issued under the Indentures, and in addition to the provisions of section
3.2(f) hereof, each holder of a promissory note or other instrument evidencing
an Unsecured Claim shall surrender such promissory note or instrument to
Reorganized AWI, and Reorganized AWI shall distribute or cause to be distributed
to the holder thereof the appropriate Distribution hereunder. At the option of
Reorganized AWI (in its sole and absolute discretion), no Distribution hereunder
shall be made to or on behalf of any holder of such Unsecured Claim unless and
until such promissory note or instrument is received or the unavailability of
such note or instrument is reasonably established to the satisfaction of
Reorganized AWI. In accordance with section 1143 of the Bankruptcy Code, any
such holder of such a Claim that fails to surrender or cause to be surrendered
such promissory note or instrument or to execute and deliver an affidavit of
loss and indemnity reasonably satisfactory to Reorganized AWI and, in the event
that Reorganized AWI requests, furnish a bond in form and substance (including,
without limitation, amount) reasonably satisfactory to Reorganized AWI within
the Retention Period shall be deemed to have forfeited all rights, claims, and
interests and shall not participate in any Distribution hereunder.
12.9 Notices. Any notices, requests, and demands required or
permitted to be provided under the Plan, in order to be effective, shall be in
writing (including, without express or implied limitation, by facsimile
transmission), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when actually delivered or, in the case of
notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
53
If to AWI: Armstrong World Industries, Inc.
Corporate Center
Post Office Box 3666
Lancaster, Pennsylvania 17604-3666
Attention: General Counsel
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Stephen Karotkin, Esq.
Telecopier: (212) 310-8007
Telephone Confirmation: (212) 310-8888
If to the Asbestos PI
Claimants' Committee: Caplin & Drysdale
399 Park Avenue
New York, New York 10022
Attention: Elihu Inselbuch, Esq.
Telecopier: (212) 644-6755
Telephone Confirmation: (212) 319-7125
If to the Future Claimants'
Representative: Dean M. Trafelet, Esq.
9130 Wild Lane
Baileys Harbor, Wisconsin 54292
Telecopier: (920) 839-9438
Telephone Confirmation: (920) 839-1485
and
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Telecopier: (212) 836-7157
Telephone Confirmation: (212) 836-8781
Attention: Michael J. Crames, Esq.
If to the Unsecured Creditors'
Committee:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopier: (212) 757-3990
Telephone Confirmation: (212) 373-3000
Attention: Andrew N. Rosenberg, Esq.
54
12.10 Headings. The headings used in the Plan are inserted for
convenience only and neither constitute a portion of the Plan nor in any manner
affect the construction of the provisions of the Plan.
12.11 Severability. At the unanimous option of AWI, the Asbestos
PI Trust, the Future Claimant's Representative, and the Unsecured Creditors'
Committee, each acting in its or his sole discretion, any provision of the Plan,
the Claims Trading Injunction, the Confirmation Order, the Asbestos PI Permanent
Channeling Injunction, or any of the Exhibits to the Plan that is prohibited,
unenforceable, or invalid shall, as to any jurisdiction in which such provision
is prohibited, unenforceable, or invalidated, be ineffective to the extent of
such prohibition, unenforceability, or invalidation without invalidating the
remaining provisions of the Plan, the Claims Trading Injunction, the
Confirmation Order, the Asbestos PI Permanent Channeling Injunction, and the
Exhibits to the Plan or affecting the validity or enforceability of such
provisions in any other jurisdiction.
12.12 Governing Law. Unless a rule of law or procedure is
supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or
by Pennsylvania corporate law, the laws of the State of Delaware, without giving
effect to the conflicts of laws principles thereof, shall govern the
construction of the Plan and any agreements, documents, and instruments executed
in connection with the Plan, except as otherwise expressly provided in such
instruments, agreements or documents.
12.13 Compliance with Tax Requirements. In connection with the
Plan, AWI and the Disbursing Agent will comply with all withholding and
reporting requirements imposed by federal, state and local taxing authorities,
and all distributions hereunder shall be subject to such withholding and
reporting requirements.
12.14 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 express or
implied limitation, any liens granted in connection with the exit finance
facility referred to in section 7.17(h) hereof, shall not be subject to any
sales and use, stamp, real estate transfer, mortgage recording, or other similar
tax.
12.15 Expedited Determination of Postpetition Taxes. AWI and
Reorganized AWI are authorized (but not required) to request an expedited
determination of taxes under section 505(b) of the Bankruptcy Code for all tax
returns filed for, or on behalf of, AWI for all taxable periods (or portions
thereof) from the Commencement Date through (and including) the Effective Date.
55
Dated: Wilmington, Delaware
April 30, 2003
Respectfully submitted,
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ John N. Rigas
----------------------------------------------
Name: John N. Rigas
Title: Senior Vice President, Secretary, and
General Counsel
WEIL, GOTSHAL & MANGES LLP
Co-Attorneys for Armstrong World
Industries, Inc., et al.
Chapter 11 Debtor in Possession
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
and
RICHARDS, LAYTON & FINGER
Co-Attorneys for Armstrong World
Industries, Inc., et al.
Chapter 11 Debtor in Possession
One Rodney Square
P.O. Box 551 Wilmington, Delaware 19899
(302) 658-6541
56
DISTRICT OF DELAWARE
- ------------------------------------------------------X
IN RE : CHAPTER 11 CASE NO.
:
ARMSTRONG WORLD INDUSTRIES, : 00-4471 (RJN)
INC., ET AL., :
:
DEBTORS. : (JOINTLY ADMINISTERED)
- ------------------------------------------------------X
EXHIBIT LIST
Exhibit 1.13: Amended and Restated Articles of Incorporation (to be
included in Exhibit Volume)
Exhibit 1.14: Amended and Restated By-Laws (to be included in Exhibit
Volume)
Exhibit 1.17: Asbestos PD Claims Resolution Procedures (attached)
Exhibit 1.21: Asbestos PD Trust Agreement (attached)
Exhibit 1.29: Asbestos PI Trust Agreement (attached)
Exhibit 1.30: Asbestos PI Trust Distribution Procedures (attached)
Exhibit 1.45: Claims Settlement Guidelines (to be included in Exhibit
Volume)
Exhibit 1.95: New Long-Term Incentive Plan (to be included in Exhibit
Volume)
Exhibit 1.101: Plan Note Indenture (to be included in Exhibit Volume)
Exhibit 1.96: New Warrants (to be included in Exhibit Volume)
Exhibit 1.114: Stockholder and Registration Rights Agreement (to be
included in Exhibit Volume)
Exhibit 7.2: Individuals Appointed as Asbestos PI Trustees (to be
included in Exhibit Volume)
Exhibit 7.22: Board of Directors of Reorganized AWI (to be included in
Exhibit Volume)
Exhibit 8.1: Assumed Executory Contracts and Unexpired Leases
(to be attached prior to distribution of solicitation
packages)
Exhibit 8.2: Rejected Executory Contracts and Unexpired Leases
(to be attached prior to distribution of solicitation
packages)
Exhibit 8.4: Previously Listed Executory Contracts No Longer Considered
Executory Contracts (to be attached prior to distribution of
solicitation packages)
Exhibit 8.8: Management Agreements (to be included in Exhibit Volume)
Exhibit 8.8-A: Identity of Persons Entering into
Management Agreements (to be included in Exhibit Volume)
Exhibit 8.8-B: Form of Management Agreement (to be included
in Exhibit Volume)