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
FOURTH 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 1.18 (DEFINITION OF
"ASBESTOS PERSONAL INJURY CLAIM"), 1.21 (DEFINITION OF
"ASBESTOS PI PERMANENT CHANNELING INJUNCTION"), 1.93
(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 1.18 (DEFINITION OF
"ASBESTOS PERSONAL INJURY CLAIM") AND 1.40 (DEFINITION OF
"CLAIMS TRADING INJUNCTION") FOR DETAILS REGARDING THE
CLAIMS TRADING INJUNCTION.
TABLE OF CONTENTS
PAGE
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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...............................................................3
1.15 Articles of Incorporation..................................................................4
1.16 Asbestos PD Bar Date.......................................................................4
1.17 Asbestos PD Committee......................................................................4
1.18 Asbestos Personal Injury Claim.............................................................4
1.19 Asbestos PI Claimants' Committee...........................................................4
1.20 Asbestos PI Insurance Asset................................................................4
1.21 Asbestos PI Permanent Channeling Injunction................................................5
1.22 Asbestos PI Trust..........................................................................5
1.23 Asbestos PI Trust Agreement................................................................6
1.24 Asbestos PI Trust Distribution Procedures..................................................6
1.25 Asbestos PI Trustees.......................................................................6
1.26 Asbestos Property Damage Claim.............................................................6
1.27 Asbestos Property Damage Contribution Claim................................................6
1.28 Available Cash.............................................................................6
1.29 AWWD.......................................................................................7
1.30 AWI........................................................................................7
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1.31 Ballot.....................................................................................7
1.32 Bankruptcy Code............................................................................7
1.33 Bankruptcy Court...........................................................................7
1.34 Bankruptcy Rules...........................................................................7
1.35 Board of Directors.........................................................................7
1.36 Business Day...............................................................................7
1.37 Chapter 11 Case............................................................................7
1.38 Claim......................................................................................7
1.39 Claims Settlement Guidelines...............................................................8
1.40 Claims Trading Injunction..................................................................8
1.41 Class......................................................................................8
1.42 COLI Claims................................................................................8
1.43 Commencement Date..........................................................................8
1.44 Confirmation Date..........................................................................8
1.45 Confirmation Deadline......................................................................8
1.46 Confirmation Order.........................................................................8
1.47 Contingent Claim...........................................................................8
1.48 Convenience Claim..........................................................................9
1.49 Creditor...................................................................................9
1.50 Debtor.....................................................................................9
1.51 Debtor in Possession.......................................................................9
1.52 Debt Security Claim........................................................................9
1.53 Demand.....................................................................................9
1.54 DIP Credit Facility........................................................................9
1.55 DIP Credit Facility Claim..................................................................9
1.56 DIP Lenders................................................................................9
1.57 Disallowed Claim...........................................................................9
1.58 Disbursing Agent...........................................................................9
1.59 Disputed Claim.............................................................................9
1.60 Disputed Claim Amount.....................................................................10
1.61 Disputed Unsecured Claims Reserve.........................................................10
1.62 Distribution..............................................................................10
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1.63 Distribution Date.........................................................................10
1.64 District Court............................................................................10
1.65 DTC.......................................................................................10
1.66 Employee Benefit Claim....................................................................10
1.67 Effective Date............................................................................10
1.68 Encumbrance...............................................................................11
1.69 Entity....................................................................................11
1.70 Environmental Claim.......................................................................11
1.71 Equity Interest...........................................................................11
1.72 Equity Value..............................................................................11
1.73 Estimated Amount..........................................................................11
1.74 Existing AWI Common Stock.................................................................11
1.75 Final Distribution Date...................................................................11
1.76 Final Order...............................................................................11
1.77 Future Claimants' Representative..........................................................12
1.78 Global Asbestos PD Settlement.............................................................12
1.79 Holdings..................................................................................12
1.80 Holdings Plan of Liquidation..............................................................12
1.81 Indentures................................................................................12
1.82 Indenture Trustees........................................................................12
1.83 Indenture Trustees' Fees and Expenses.....................................................12
1.84 Indirect PI Trust Claim...................................................................12
1.85 Initial Distribution Date.................................................................13
1.86 Internal Revenue Code.....................................................................13
1.87 IRS.......................................................................................13
1.88 Lazard....................................................................................13
1.89 New Common Stock..........................................................................13
1.90 New Long-Term Incentive Plan..............................................................13
1.91 New Warrants..............................................................................13
1.92 Pennsylvania BCL..........................................................................13
1.93 PI Protected Party........................................................................13
1.94 Plan......................................................................................15
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1.95 Plan Note Amount..........................................................................15
1.96 Plan Note Indenture.......................................................................15
1.97 Plan Notes................................................................................15
1.98 Priority Claim............................................................................16
1.99 Priority Tax Claim........................................................................16
1.100 Pro Rata Share............................................................................16
1.101 Qualified Appraisal.......................................................................16
1.102 Record Date...............................................................................16
1.103 Reorganized AWI...........................................................................16
1.104 Reorganization Consideration..............................................................16
1.105 Retention Period..........................................................................16
1.106 Schedules.................................................................................16
1.107 SEC.......................................................................................16
1.108 Secured Claim.............................................................................16
1.109 Stockholder and Registration Rights Agreement.............................................16
1.110 Subsidiary Debt Guarantee Claim...........................................................16
1.111 Treasury Regulations......................................................................17
1.112 Unliquidated Claim........................................................................17
1.113 Unsecured Claim...........................................................................17
1.114 Unsecured Creditors' Committee............................................................17
1.115 Voting Deadline...........................................................................17
1.116 Voting Procedures Order...................................................................17
B. Other Terms.........................................................................................17
C. Exhibits............................................................................................17
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.....................................................18
2.3 DIP Credit Facility Claim.................................................................18
2.4 Priority Tax Claims.......................................................................18
ARTICLE III CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS.........................................18
3.1 Summary...................................................................................18
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3.2 Classification and Treatment..............................................................20
ARTICLE IV MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN.................................................26
4.1 Modification of the Plan..................................................................26
4.2 Revocation or Withdrawal..................................................................26
4.3 Amendment of Plan Documents...............................................................27
ARTICLE V PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS.........................................................27
5.1 Objections to Claims; Prosecution of Disputed Claims......................................27
5.2 Claims Settlement Guidelines..............................................................27
5.3 Distributions on Account of Disputed Claims...............................................27
5.4 Disputed Unsecured Claims Reserve.........................................................27
5.5 Tax Treatment of Disputed Unsecured Claims Reserve........................................27
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN.................................................................28
6.1 Impaired Classes to Vote..................................................................28
6.2 Acceptance by Class of Claims.............................................................28
6.3 Nonconsensual Confirmation................................................................28
ARTICLE VII IMPLEMENTATION OF THE PLAN..........................................................................28
7.1 Creation of Asbestos PI Trust.............................................................28
7.2 Appointment of Asbestos PI Trustees.......................................................28
7.3 144A Offering.............................................................................28
7.4 Amendment of Articles of Incorporation....................................................29
7.5 Amendment of By-Laws.....................................................................29
7.6 Stockholder and Registration Rights Agreement.............................................29
7.7 Distributions under the Plan..............................................................29
7.8 Timing of Distributions under the Plan....................................................29
7.9 Disbursing Agent..........................................................................30
7.10 Record Date...............................................................................30
7.11 Distributions to Holders of Debt Security Claims Administered by the Indenture Trustees...30
7.12 Manner of Payment under the Plan..........................................................31
7.13 Hart-Scott-Rodino Compliance..............................................................31
7.14 Fractional Shares or Other Distributions..................................................31
7.15 Occurrence of the Confirmation Date.......................................................31
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7.16 Occurrence of the Effective Date..........................................................33
7.17 Cancellation of Existing Debt Securities..................................................34
7.18 Expiration of the Retention Period........................................................35
7.19 Compensation of the Applicable Indenture Trustees.........................................35
7.20 Distribution of Unclaimed Property........................................................35
7.21 Management of Reorganized AWI.............................................................35
7.22 Listing of Reorganized AWI Common Stock...................................................36
7.23 Corporate Reorganization Actions..........................................................36
7.24 Holdings Transactions.....................................................................36
7.25 Compliance with QSF Regulations...........................................................37
7.26 Effectuating Documents and Further Transactions...........................................37
7.27 Allocation of Plan Distributions Between Principal and Interest...........................37
ARTICLE VIII EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................................................37
8.1 Assumption of Executory Contracts and Unexpired Leases....................................37
8.2 Rejection of Executory Contracts and Unexpired Leases.....................................38
8.3 Claims Arising from Rejection, Termination or Expiration..................................38
8.4 Previously Scheduled Contracts............................................................38
8.5 Insurance Policies and Agreements.........................................................39
8.6 Indemnification and Reimbursement Obligations.............................................39
8.7 Compensation and Benefit Programs.........................................................40
8.8 Management Agreements.....................................................................42
ARTICLE IX RETENTION OF JURISDICTION...........................................................................42
ARTICLE X TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS PI TRUST.............44
10.1 Transfer of Certain Property to the Asbestos PI Trust.....................................44
10.2 Assumption of Certain Liabilities by the Asbestos PI Trust................................45
10.3 Cooperation with Respect to Insurance Matters.............................................45
10.4 Authority of AWI..........................................................................46
ARTICLE XI MISCELLANEOUS PROVISIONS............................................................................46
11.1 Payment of Statutory Fees.................................................................46
11.2 Discharge of AWI..........................................................................46
11.3 Rights of Action..........................................................................46
11.4 Third Party Agreements....................................................................47
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11.5 Dissolution of Committees.................................................................47
11.6 Exculpation...............................................................................47
11.7 Title to Assets; Discharge of Liabilities.................................................47
11.8 Surrender and Cancellation of Instruments.................................................48
11.9 Notices...................................................................................48
11.10 Headings..................................................................................49
11.11 Severability..............................................................................49
11.12 Governing Law.............................................................................49
11.13 Compliance with Tax Requirements..........................................................50
11.14 Exemption from Transfer Taxes.............................................................50
11.15 Expedited Determination of Postpetition Taxes.............................................50
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
FOURTH 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)
2
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.
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.
1.14 Amended and Restated By-Laws: The By-Laws of
Reorganized AWI, to be amended and restated in accordance with section 7.4
hereof, in substantially the form of Exhibit 1.14 to the Plan.
3
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 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.
1.18 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, MEDICAL MONITORING 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 OR THINGS THAT WAS OR WERE INSTALLED, ENGINEERED,
DESIGNED, MANUFACTURED, FABRICATED, CONSTRUCTED, SOLD, SUPPLIED, PRODUCED,
SPECIFIED, SELECTED, DISTRIBUTED, RELEASED, MARKETED, SERVICED, MAINTAINED,
REPAIRED, PURCHASED, OWNED, OCCUPIED, USED, REMOVED, REPLACED OR DISPOSED BY AWI
OR AN ENTITY FOR WHOSE PRODUCTS OR OPERATIONS AWI ALLEGEDLY HAS LIABILITY OR FOR
WHICH AWI IS OTHERWISE ALLEGEDLY LIABLE, INCLUDING, WITHOUT EXPRESS OR IMPLIED
LIMITATION, ANY CLAIM, REMEDY, LIABILITY, OR DEMAND FOR COMPENSATORY DAMAGES
(SUCH AS LOSS OF CONSORTIUM, WRONGFUL DEATH, MEDICAL MONITORING, 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.
1.19 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.
1.20 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
4
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
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.
1.21 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.
1.22 Asbestos PI Trust: The trust established by AWI in
accordance with the Asbestos PI Trust Agreement.
5
1.23 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 1.23 to the Plan.
1.24 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 the Asbestos PI Trust Agreement to process, liquidate, and pay
Asbestos Personal Injury Claims, substantially in the form of Exhibit 1.24 to
the Plan.
1.25 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.
1.26 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.
1.27 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.
1.28 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
6
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 7.16(g) 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,
(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 (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 7.16(g) 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.
1.29 AWWD: Armstrong Worldwide, Inc., a Delaware
corporation.
1.30 AWI: Armstrong World Industries, Inc., a Pennsylvania
corporation.
1.31 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.
1.32 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.
1.33 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.
1.34 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.
1.35 Board of Directors: The Board of Directors of AWI or
Reorganized AWI, as it may exist from time to time.
1.36 Business Day: Any day on which commercial banks are
required to be open for business in New York, New York.
1.37 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).
1.38 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
7
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.
1.39 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 1.39 to the Plan.
1.40 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; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
APPLY TO (I) THE TRANSFER OF AN ASBESTOS PERSONAL INJURY CLAIM TO THE HOLDER OF
AN INDIRECT PI TRUST CLAIM SOLELY AS A RESULT OF SUCH HOLDER'S SATISFACTION OF
SUCH ASBESTOS PERSONAL INJURY CLAIM OR (II) THE TRANSFER OF AN ASBESTOS PERSONAL
INJURY 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.
1.41 Class: Any group of Claims or Equity Interests
classified by the Plan pursuant to section 1122(a)(1) of the Bankruptcy Code.
1.42 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.
1.43 Commencement Date: December 6, 2000.
1.44 Confirmation Date: The date on which the Confirmation
Order is entered by the Clerk of the Bankruptcy Court.
1.45 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.
1.46 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.
1.47 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
8
Claim and whether or not a relationship between the holder of such Claim and AWI
now or hereafter exists or previously existed.
1.48 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.
1.49 Creditor: Any Entity that holds a Claim against AWI as
Debtor or Debtor in Possession.
1.50 Debtor: AWI.
1.51 Debtor in Possession: AWI in its capacity as a debtor
in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
1.52 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.
1.53 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.
1.54 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.
1.55 DIP Credit Facility Claim: Collectively, all Claims of
the DIP Lenders arising under the DIP Credit Facility.
1.56 DIP Lenders: The financial institutions party to the
DIP Credit Facility.
1.57 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, as the case may be.
1.58 Disbursing Agent: Any Entity in its capacity as a
disbursing agent under section 7.9 hereof.
1.59 Disputed Claim: A Claim (other than an Asbestos
Personal Injury Claim) that is neither an Allowed Claim nor a Disallowed Claim.
9
1.60 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.
1.61 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.
1.62 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.
1.63 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.
1.64 District Court: The United States District Court for
the District of Delaware having jurisdiction over the Chapter 11 Case.
1.65 DTC: Depository Trust Company.
1.66 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.
1.67 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 7.16 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.
10
1.68 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
security agreement, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
1.69 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.
1.70 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.
1.71 Equity Interest: Any interest in AWI represented by
shares of Existing AWI Common Stock.
1.72 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.
1.73 Estimated Amount: The estimated dollar value of an
Unliquidated Claim, Disputed Claim, or Contingent Claim pursuant to section
502(c) of the Bankruptcy Code.
1.74 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.
1.75 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.
1.76 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
11
appeal, petition for certiorari or move for reargument or rehearing shall have
expired.
1.77 Future Claimants' Representative: Dean M. Trafelet,
the Legal Representative for Future Claimants appointed pursuant to the order
dated on or about March 1, 2002.
1.78 Global Asbestos PD Settlement: Agreement with respect
to the resolution of all outstanding Asbestos Property Damage Claims and related
issues relating to Asbestos Property Damage Claims, as such agreement may be
approved by the Bankruptcy Court.
1.79 Holdings: Armstrong Holdings, Inc., a Pennsylvania
corporation.
1.80 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.
1.81 Indentures: The indenture agreements between the
Indenture Trustees and AWI relating to the Debt Security Claims.
1.82 Indenture Trustees: The indenture trustees under Debt
Security Claims (other than Debt Securities Claims representing obligations
guaranteed by AWI), including 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, 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, and Wilmington Trust Company, as successor to Chase Manhattan Trust
Company, National Association, as indenture trustee for the holders of the Solid
Waste Disposal Revenue Bonds (Armstrong World Industries, Inc. Project) Series
1996.
1.83 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.
1.84 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,
12
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.
1.85 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 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.
1.86 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.
1.87 IRS: The United States Internal Revenue Service.
1.88 Lazard: Lazard Freres & Co. LLC, or such other
investment bank or financial advisor retained by AWI.
1.89 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.
1.90 New Long-Term Incentive Plan: The Management Incentive
Plan, substantially in the form of Exhibit 1.90 to the Plan.
1.91 New Warrants: Warrants to purchase the New Common
Stock pursuant to a warrant agreement substantially in the form of Exhibit 1.91
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.
1.92 Pennsylvania BCL: Pennsylvania Business Corporation
Law of 1988, as amended from time to time and as applicable to the events
described in the Plan.
1.93 PI PROTECTED PARTY: ANY OF THE FOLLOWING PARTIES:
(a) AWI;
(b) REORGANIZED AWI;
13
(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;
(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
14
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
(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;
1.94 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.
1.95 Plan Note Amount: An amount equal to the greater of
(x) $1.125 billion less the amount of Available Cash and (y) $775 million.
1.96 Plan Note Indenture: An indenture, substantially in
the form of Exhibit 1.96 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.
1.97 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.
15
1.98 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.
1.99 Priority Tax Claim: A Claim against AWI that is of a
kind specified in section 507(a)(8) of the Bankruptcy Code.
1.100 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.
1.101 Qualified Appraisal: A "qualified appraisal" within
the meaning of Treasury Regulations section 1.468B-3(b)(3).
1.102 Record Date: The first Business Day that is five (5)
days from and after the Confirmation Date.
1.103 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.
1.104 Reorganization Consideration: Collectively, the
Available Cash, the Plan Notes and/or the 144A Offering Proceeds, the New Common
Stock, and the New Warrants.
1.105 Retention Period: Five (5) years from and after the
Effective Date, or such shorter period as the Bankruptcy Court may set.
1.106 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.
1.107 SEC: The United States Securities and Exchange
Commission.
1.108 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.
1.109 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 7.6 hereof, in substantially the same form of Exhibit 1.109 to the Plan.
1.110 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.
16
1.111 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.
1.112 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.
1.113 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 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.
1.114 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.
1.115 Voting Deadline: The date set by the Bankruptcy Court
by which all completed ballots must be received.
1.116 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
17
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
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:
18
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
ENTITLED
CLASS TREATMENT STATUS TO VOTE?
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 1: Priority Claims Paid in full, in cash, on the
later of the Effective Date Unimpaired No or as
soon as practicable 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.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 4: Asbestos All Asbestos Property Damage Claims will be resolved Unimpaired Yes
Property Damage Claims pursuant to the terms of the Global Asbestos PD
Settlement. If the Global Asbestos PD Settlement is
not approved by the Bankruptcy Court at least
fifteen (15) days before the Voting Deadline, AWI
will amend the Plan to provide alternative
treatment for Asbestos Property Damage Claims, in
which case the Asbestos Property Damage Claims will
be treated as impaired and will be entitled to vote
on the Plan.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 5: COLI Claims Reinstated - Any defaults related to
the COLI Claims will Unimpaired No be cured.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
CLASS 6: Unsecured Claims Each holder of an Allowed Unsecured Claim will receive Impaired Yes
other than Convenience its Pro Rata Share of (i) 34.43% of the 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.
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
19
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
ENTITLED
CLASS TREATMENT STATUS TO VOTE?
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
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
- ---------------------------- ----------------------------------------------------------- ----------------- -------------------
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:
20
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
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.
21
(d) CLASS 4. ASBESTOS PROPERTY DAMAGE CLAIMS.
(i) Classification: Class 4 consists of all Allowed
Asbestos Property Damage Claims.
(ii) Treatment: All pending Asbestos Property Damage
Claims will be Allowed and treated in accordance with the terms of
the Global Asbestos PD Settlement.
(iii) Status: Class 4 is unimpaired. The holders of the
Claims in Class 4 are deemed to accept the Plan and, accordingly, are
not 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.
(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
22
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 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):
23
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
24
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.
(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.
(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.
25
(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 7.24
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
7.24 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.
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
26
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. 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 1.39 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
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 7.8 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
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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 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 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
28
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.
7.4 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) fifty to sixty million (50,000,000-60,000,000) 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.
7.5 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.
7.6 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.
7.7 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.
7.8 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.
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(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.
7.9 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.
7.10 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.
7.11 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
30
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 7.19 herein.
7.12 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.
7.13 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.
7.14 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.
7.15 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) The Asbestos PI Permanent Channeling Injunction is to
be implemented in connection with the Plan and the Asbestos PI Trust.
(iii) The Plan and its Exhibits are a fair, equitable, and
reasonable resolution of the liabilities of AWI for Asbestos Personal
Injury Claims.
(iv) The Plan complies with section 524(g) of the
Bankruptcy Code.
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(v) 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 assert Asbestos
Personal Injury Claims against any PI Protected Party.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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.
(xi) The actual amounts, numbers, and timing of the future
Demands referenced in section 7.15(a)(x) of the Plan cannot be
determined.
(xii) Pursuit of the Demands referenced in section
7.15(a)(x) 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.
(xiii) 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.
(xiv) 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.
(xv) 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,
32
responsibilities, and obligations as the future representative in
accordance with section 524(g) of the Bankruptcy Code.
(xvi) 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.
(xvii) Class 7 (Asbestos Personal Injury Claims) has
voted, by at least 75 percent (75%) of those voting, in favor of the
Plan.
(xviii) 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.
(xix) 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.
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 AWI, the Asbestos PI Claimants'
Committee, the Future Claimants' Representative, and the Unsecured Creditors'
Committee.
7.16 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.
33
(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) 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.
(g) 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.
(h) 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
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.
7.17 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
34
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.
7.18 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.
7.19 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.
7.20 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
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.
7.21 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 7.21 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
35
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.
7.22 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.
7.23 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 7.3 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 11.8 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 11.8 hereof and sections 3.2(g)
and 10.1(b) hereof; and the New Warrants will be issued and delivered as
provided in section 7.24 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.
(e) Reorganized AWI may consummate the 144A Offering.
(f) Reorganized AWI will enter into the working capital
facility referenced in section 7.16 of the Plan.
(g) Reorganized AWI will enter into the New Long-Term
Incentive Plan.
7.24 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
36
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.
7.25 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).
7.26 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.
7.27 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
37
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 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
38
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.
(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, 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.
39
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 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
40
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:
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
41
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.
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), and
the restrictions on transfer of Asbestos Personal Injury 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;
42
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;
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.
43
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;
and (ii) 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, (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 1.20 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 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,
44
(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
section 7.24 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)
45
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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 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.
11.2 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
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.
11.3 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
46
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.
11.4 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.
11.5 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.
11.6 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.
11.7 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
47
determination of discharge of the liabilities of AWI arising prior to the
Effective Date, except as may be otherwise provided in the Plan.
11.8 Surrender and Cancellation of Instruments. Except as
otherwise provided in section 7.11 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.
11.9 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:
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
48
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.
11.10 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.
11.11 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.
11.12 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.
49
11.13 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.
11.14 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 7.16(g) hereof, shall not be subject to any
sales and use, stamp, real estate transfer, mortgage recording, or other similar
tax.
11.15 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.
50
Dated: Wilmington, Delaware
May 23, 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
51
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
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 1.23: Asbestos PI Trust Agreement (attached)
Exhibit 1.24: Asbestos PI Trust Distribution Procedures (attached)
Exhibit 1.39: Claims Settlement Guidelines (to be included in Exhibit
Volume)
Exhibit 1.90: New Long-Term Incentive Plan (to be included in Exhibit
Volume)
Exhibit 1.91: New Warrants (to be included in Exhibit Volume)
Exhibit 1.96: Plan Note Indenture (to be included in Exhibit Volume)
Exhibit 1.109: 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 7.21: 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)
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
)
ARMSTRONG WORLD INDUSTRIES, ) Chapter 11
INC., et al., ) Case No. 00-4471 (RJN)
) (Jointly Administered)
Debtors )
- ------------------------------------)
Exhibit 1.23
FORM OF ASBESTOS PI TRUST AGREEMENT
ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST AGREEMENT
This Armstrong World Industries, Inc. Asbestos Personal
Injury Settlement Trust Agreement ("PI TRUST AGREEMENT"), dated the date set
forth on the signature page hereof and effective as of the Effective Date, is
entered into by Armstrong World Industries, Inc. ("AWI," the "SETTLOR," or the
"DEBTOR"), the Debtor and debtor-in-possession in Case No. 00-4471 (RJN) in the
United States Bankruptcy Court for the District of Delaware as Settlor; the
Legal Representative for Asbestos-Related Future Claimants ("FUTURE CLAIMANTS'
REPRESENTATIVE"); the Official Committee of Asbestos Creditors ("ACC"); and the
Trustees ("TRUSTEES") and the members of the PI Trust Advisory Committee ("TAC")
identified on the signature page hereof and appointed at Confirmation pursuant
to Armstrong World Industries, Inc. First Amended Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code, dated March 14, 2003 ("PLAN"),
as such Plan may be amended, modified or supplemented from time to time. All
capitalized terms not otherwise defined herein shall have their respective
meanings as set forth in the Plan, and such definitions are incorporated herein
by reference. All capitalized terms not defined herein or defined in the Plan,
but defined in the Bankruptcy Code or Rules, shall have the meanings ascribed to
them by the Bankruptcy Code and Rules, and such definitions are incorporated
herein by reference.
WHEREAS, at the time of the entry of the order for relief
in the Chapter 11 case, AWI was named as a defendant in actions involving
personal injury ("PI") or death claims caused by exposure to asbestos-containing
products for which AWI, its predecessors, successors and assigns have legal
liability ("ASBESTOS PERSONAL INJURY CLAIMS" as defined in the Plan); and
WHEREAS, AWI has reorganized under the provisions of
Chapter 11 of the Bankruptcy Code in a case pending in the United States
Bankruptcy Court for the District of Delaware, known as In re Armstrong World
Industries, Inc., Debtor, Case No. 00-4471 (RJN); and
WHEREAS, the Plan has been confirmed by the Bankruptcy
Court; and
WHEREAS, the Plan provides, inter alia, for the creation of
the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust
("PI TRUST"); and
WHEREAS, pursuant to the Plan, the PI Trust is to use its
assets and income to satisfy all Asbestos Personal Injury Claims; and
WHEREAS, it is the intent of AWI, the Trustees, the ACC,
the TAC, and the Future Claimants' Representative that the PI Trust be
administered, maintained, and operated at all times through mechanisms that
provide reasonable assurance that the PI Trust will satisfy all Asbestos
Personal Injury Claims pursuant to the AWI Corporation Asbestos Personal Injury
Trust Distribution Procedures ("TDP") that are attached hereto as Exhibit 1 in
substantially the same manner, and in strict compliance with the terms of this
PI Trust Agreement; and
WHEREAS, pursuant to the Plan, the PI Trust is intended to
qualify as a "qualified settlement fund" within the meaning of section 1.468B-1
et seq. of the Treasury Regulations promulgated under section 468B of the
Internal Revenue Code ("IRC"); and
WHEREAS, the Bankruptcy Court has determined that the PI
Trust and the Plan satisfy all the prerequisites for an injunction pursuant to
section 524(g) of the Bankruptcy Code, and such injunction has been entered in
connection with the Confirmation Order;
NOW, THEREFORE, it is hereby agreed as follows:
Exhibit 1.23-1
SECTION 1
AGREEMENT OF TRUST
1.1 CREATION AND NAME. AWI as Settlor hereby creates a
trust known as the "Armstrong World Industries, Inc. Asbestos Personal Injury
Settlement Trust," which is the PI Trust provided for and referred to in the
Plan. The Trustees of the PI Trust may transact the business and affairs of the
PI Trust in the name of the PI Trust.
1.2 PURPOSE. The purpose of the PI Trust is to assume the
liabilities of AWI, its predecessors and successors in interest, for all
Asbestos Personal Injury Claims (as defined in the Plan), and to use the PI
Trust's assets and income to pay the holders of all Asbestos Personal Injury
Claims in accordance with this PI Trust Agreement and the TDP in such a way that
such holders of Asbestos Personal Injury Claims are treated fairly, equitably
and reasonably in light of the limited assets available to satisfy such claims,
and to otherwise comply in all respects with the requirements of a trust set
forth in section 524(g)(2)(B) of the Bankruptcy Code.
1.3 TRANSFER OF ASSETS. Pursuant to the Plan, the PI Trust
Share (as defined in the Plan) has been transferred and assigned to the PI Trust
to settle and discharge all Asbestos Personal Injury Claims. Pursuant to the
Plan, AWI, its successors in interest thereto, from and after the Effective Date
("REORGANIZED AWI") and others may also transfer and assign additional assets to
the PI Trust from time to time (the "PI TRUST ASSETS"). In all events, the PI
Trust Assets will be transferred to the PI Trust free and clear of any liens or
other claims by AWI, Reorganized AWI, any creditor, or other entity. AWI,
Reorganized AWI, and any other transferors shall also execute and deliver such
documents to the PI Trust as the Trustees reasonably request to transfer and
assign the PI Trust Assets to the PI Trust.
1.4 ACCEPTANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
(a) In furtherance of the purposes of the PI Trust, the
Trustees, on behalf of the PI Trust, hereby expressly accept the transfer and
assignment to the PI Trust of the PI Trust Assets in the time and manner
contemplated in the Plan.
(b) In furtherance of the purposes of the PI Trust, the
Trustees, on behalf of the PI Trust, expressly assume all liability for all
Asbestos Personal Injury Claims. Except as otherwise provided in this PI Trust
Agreement and the TDP, the PI Trust shall have all defenses, cross-claims,
offsets, and recoupments, as well as rights of indemnification, contribution,
subrogation, and similar rights, regarding such claims that AWI or Reorganized
AWI has or would have had under applicable law. Regardless of the foregoing,
however, a claimant must meet otherwise applicable federal, state and foreign
statutes of limitations and repose, except as otherwise provided in Section
5.1(a)(2) of the TDP.
(c) No provision herein or in the TDP shall be construed to
mandate distributions on any claims or other actions that would contravene the
PI Trust's compliance with the requirements of a qualified settlement fund
within the meaning of section 1.468B-1 et seq. of the Treasury Regulations
promulgated under section 468B of the IRC.
(d) AWI and Reorganized AWI shall be entitled to
indemnification from the PI Trust for any expenses, costs, and fees (including
attorneys' fees and costs, but excluding any such expenses, costs, and fees
incurred prior to the Effective Date), judgments, settlements, or other
liabilities arising from or incurred in connection with any action related to
Asbestos Personal Injury Claims, including, but not limited to, indemnification
or contribution for such claims prosecuted against Reorganized AWI.
(e) Nothing in this PI Trust Agreement shall be construed
in any way to limit the scope, enforceability, or effectiveness of the Section
524(g) injunction issued in connection with the Plan or the PI Trust's
assumption of all liability for Asbestos Personal Injury Claims, subject to the
provisions of Section 1.4(b) above.
Exhibit 1.23-2
SECTION 2
POWERS AND TRUST ADMINISTRATION
2.1 POWERS.
(a) The Trustees are and shall act as the fiduciaries to
the PI Trust in accordance with the provisions of this PI Trust Agreement and
the Plan. The Trustees shall, at all times, administer the PI Trust and the PI
Trust Assets in accordance with the purposes set forth in Section 1.2 above.
Subject to the limitations set forth in this PI Trust Agreement, the Trustees
shall have the power to take any and all actions that, in the judgment of the
Trustees, are necessary or proper to fulfill the purposes of the PI Trust,
including, without limitation, each power expressly granted in this Section 2.1,
any power reasonably incidental thereto, and any trust power now or hereafter
permitted under the laws of the State of Delaware.
(b) Except as required by applicable law or otherwise
specified herein, the Trustees need not obtain the order or approval of any
court in the exercise of any power or discretion conferred hereunder.
(c) Without limiting the generality of Section 2.1(a)
above, and except as limited below, the Trustees shall have the power to:
(i) receive and hold the PI Trust Assets, vote
the Reorganized AWI common stock, and exercise all rights with
respect to, and sell, any securities issued by Reorganized AWI that
are included in the PI Trust Assets, subject to any restrictions set
forth in the Restated Certificate of Reorganized AWI;
(ii) invest the monies held from time to time by
the PI Trust;
(iii) sell, transfer, or exchange any or all of
the PI Trust Assets at such prices and upon such terms as the
Trustees may consider proper, consistent with the other terms of this
PI Trust Agreement;
(iv) enter into leasing and financing agreements
with third parties to the extent such agreements are reasonably
necessary to permit the PI Trust to operate;
(v) pay liabilities and expenses of the PI Trust,
including, but not limited to, PI Trust expenses;
(vi) establish such funds, reserves and accounts
within the PI Trust estate, as deemed by the Trustees to be useful in
carrying out the purposes of the PI Trust;
(vii) sue and be sued and participate, as a party
or otherwise, in any judicial, administrative, arbitrative, or other
proceeding;
(viii) establish, supervise and administer the PI
Trust in accordance with the TDP and the terms thereof;
(ix) appoint such officers and hire such
employees and engage such legal, financial, accounting, investment,
auditing and forecasting, and other consultants and agents as the
business of the PI Trust requires, and delegate to such persons such
powers and authorities as the fiduciary duties of the Trustees permit
and as the Trustees, in their discretion, deem advisable or necessary
in order to carry out the terms of this PI Trust;
(x) pay employees, legal, financial, accounting,
investment, auditing, and forecasting, and other consultants,
advisors, and agents, including those engaged by the PI Trust in
connection with its alternative dispute resolution activities,
reasonable compensation;
(xi) compensate the Trustees, the TAC members,
and the Future Claimants' Representative as provided below, and their
employees, legal, financial, accounting, investment and other
advisors, consultants, independent contractors, and agents, and
reimburse the Trustees, the TAC members and the Future Claimants'
Exhibit 1.23-3
Representative all reasonable out-of-pocket costs and expenses
incurred by such persons in connection with the performance of their
duties hereunder;
(xii) execute and deliver such instruments as the
Trustees consider proper in administering the PI Trust;
(xiii) enter into such other arrangements with
third parties as are deemed by the Trustees to be useful in carrying
out the purposes of the PI Trust, provided such arrangements do not
conflict with any other provision of this PI Trust Agreement;
(xiv) in accordance with Section 4.6 below,
defend, indemnify and hold harmless (and purchase insurance
indemnifying) (A) the Trustees and (B) the TAC, the Future Claimants'
Representative, the officers and employees of the PI Trust, and any
agents, advisors and consultants of the PI Trust, the TAC or the
Future Claimants' Representative (the "ADDITIONAL INDEMNITEES"), to
the fullest extent that a corporation or trust organized under the
law of the PI Trust's situs is from time to time entitled to
indemnify and/or insure its directors, trustees, officers, employees,
agents, advisors and representatives;
(xv) delegate any or all of the authority herein
conferred with respect to the investment of all or any portion of the
PI Trust Assets to any one or more reputable individuals or
recognized institutional investment advisors or investment managers
without liability for any action taken or omission made because of
any such delegation, except as provided in Section 4.4 below;
(xvi) consult with Reorganized AWI, the TAC and
the Future Claimants' Representative at such times and with respect
to such issues relating to the conduct of the PI Trust as the
Trustees consider desirable; and
(xvii) make, pursue (by litigation or otherwise),
collect, compromise or settle, in the name of the PI Trust or the
name of Reorganized AWI, any claim, right, action, or cause of action
included in the PI Trust Assets including, but not limited to,
insurance recoveries, before any court of competent jurisdiction;
provided that settlement of actions before the Bankruptcy Court
require the approval of the Bankruptcy Court after notice to
Reorganized AWI.
(d) The Trustees shall not have the power to guarantee any
debt of other persons.
(e) The Trustees shall give the TAC, the Future Claimants'
Representative and Reorganized AWI prompt notice of any act performed or taken
pursuant to Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act
proposed to be performed or taken pursuant to Section 2.2(f) below.
2.2 GENERAL ADMINISTRATION.
(a) The Trustees shall adopt and act in accordance with the
PI Trust Bylaws. To the extent not inconsistent with the terms of this PI Trust
Agreement, the PI Trust Bylaws shall govern the affairs of the PI Trust. In the
event of an inconsistency between the PI Trust Bylaws and this PI Trust
Agreement, the PI Trust Agreement shall govern.
(b) The Trustees shall (i) timely file such income tax and
other returns and statements and shall timely pay all taxes required to be paid,
(ii) comply with all withholding obligations, as required under the applicable
provisions of the IRC and of any state law and the regulations promulgated
thereunder, (iii) meet without limitation all requirements necessary to qualify
and maintain qualification of the PI Trust as a qualified settlement fund within
the meaning of section 1.468B-1 et seq. of the Treasury Regulations promulgated
under section 468B of the IRC, and (iv) take no action that could cause the PI
Trust to fail to qualify as a qualified settlement fund within the meaning of
section 1.468B-1 et seq. of the Treasury Regulations promulgated under section
468B of the IRC.
(c) The Trustees shall timely account to the Bankruptcy
Court as follows:
Exhibit 1.23-4
(i) The Trustees shall cause to be prepared and
filed with the Bankruptcy Court, as soon as available, and in any
event within one hundred and twenty (120) days following the end of
each fiscal year, an annual report containing financial statements of
the PI Trust (including, without limitation, a balance sheet of the
PI Trust as of the end of such fiscal year and a statement of
operations for such fiscal year) audited by a firm of independent
certified public accountants selected by the Trustees and accompanied
by an opinion of such firm as to the fairness of the financial
statements' presentation of the cash and investments available for
the payment of claims and as to the conformity of the financial
statements with generally accepted accounting principles. The
Trustees shall provide a copy of such report to the TAC, the Future
Claimants' Representative, and Reorganized AWI when such reports are
filed with the Bankruptcy Court.
(ii) Simultaneously with delivery of each set of
financial statements referred to in Article 2.2(c)(i) above, the
Trustees shall cause to be prepared and filed with the Bankruptcy
Court a report containing a summary regarding the number and type of
claims disposed of during the period covered by the financial
statements. The Trustees shall provide a copy of such report to the
TAC, the Future Claimants' Representatives, and Reorganized AWI when
such report is filed.
(iii) All materials required to be filed with the
Bankruptcy Court by this Section 2.2(c) shall be available for
inspection by the public in accordance with procedures established by
the Bankruptcy Court and shall be filed with the Office of the United
States Trustee for the District of Delaware.
(d) The Trustees shall cause to be prepared as soon as
practicable prior to the commencement of each fiscal year a budget and cash flow
projections covering such fiscal year and the succeeding four fiscal years. The
budget and cash flow projections shall include determining the Maximum Annual
Payment pursuant to Section 2.4 of the TDP, and the Asbestos Personal Injury
Claims Payment Ratio pursuant to Section 2.5 of the TDP. The Trustees shall
provide a copy of the budget and cash flow projections to the TAC and the Future
Claimants' Representative.
(e) The Trustees shall consult with the TAC and the Future
Claimants' Representative (i) on the general implementation and administration
of the PI Trust; (ii) on the general implementation and administration of the
TDP; and (iii) on such other matters as may be required under this PI Trust
Agreement and the TDP.
(f) The Trustees shall be required to obtain the consent of
the TAC and the Future Claimants' Representative pursuant to the Consent Process
set forth in Section 5.7(b) and 6.6(b) below, in addition to any other instances
elsewhere enumerated, in order:
(i) to change the Claims Payment Ratio described in
Section 2.5 of the TDP in the event that the
requirements for such a change as set forth in
said provision have been met;
(ii) to change the Scheduled Diseases, Disease
Levels and/or Medical/Exposure Criteria set
forth in Section 5.3(a)(3) of the TDP, and/or
the Maximum Values set forth in Section
5.3(b)(4) and Section 5.4(a) of the TDP;
(iii) to change the Payment Percentage described in
Section 2.3 of the TDP as provided in Section
4.2 of the TDP;
(iv) to establish and/or to change the Claims
Materials to be provided holders of Asbestos
Personal Injury Claims under Section 6.1 of the
TDP;
(v) to require that claimants provide additional
kinds of medical and/or exposure evidence
pursuant to Section 7.1 of the TDP;
Exhibit 1.23-5
(vi) to change the form of release to be provided
pursuant to Section 7.8 of the TDP;
(vii) to terminate the PI Trust pursuant to Section
7.2 below;
(viii) to settle the liability of any insurer under
any insurance policy or legal action related
thereto;
(ix) to change the compensation of the members of
the TAC, the Future Claimants' Representative
or Trustees, other than to reflect
cost-of-living increases or changes approved by
the Bankruptcy Court as otherwise provided
herein;
(x) to take structural or other actions to minimize
any tax on the PI Trust Assets; or
(xi) to amend the PI Trust Bylaws in accordance with
the terms thereof;
(xii) to amend any provision of this PI Trust
Agreement or the TDP in accordance with the
terms thereof;
(xiii) to appoint members of the Board of Directors of
the Reorganized Debtor; or
(xiv) to merge any asbestos claims resolution
organization formed by the PI Trust with
another asbestos claims resolution organization
that is not specifically created by this PI
Trust Agreement or the TDP, or to contract with
another asbestos claims resolution organization
or other entity that is not specifically
created by this PI Trust Agreement or the TDP,
or permit any other party to join in any
asbestos claims resolution organization that is
formed by the PI Trust pursuant to the PI Trust
Agreement or the TDP; provided that such
merger, contract or joinder shall not (a)
subject Reorganized AWI or any successors in
interest thereto, to any risk of having any PI
Trust Claim asserted against it or them, or (b)
otherwise jeopardize the validity or
enforceability of the section 524(g)
injunction; and provided further that the terms
of such merger will require the surviving
organization to make decisions about the
allowability and value of claims in accordance
with Section 2.1 of the TDP which requires that
such decisions be based on the provisions of
the TDP.
(g) The Trustees shall meet with the TAC and the Future
Claimants' Representative no less often than quarterly. The Trustees shall meet
in the interim with the TAC and the Future Claimants' Representative when so
requested by either.
(h) The Trustees, upon notice from either the TAC or the
Future Claimants' Representative, if practicable in view of pending business,
shall at their next meeting with the TAC or the Future Claimants' Representative
consider issues submitted by the TAC or the Future Claimants' Representative.
(i) Periodically, but not less often than once a year, the
Trustees shall make available to claimants and other interested parties the
number of claims by disease levels that have been resolved both by individual
review and by arbitration, as well as by trial, indicating the amounts of the
awards and the averages of the awards by jurisdiction pursuant to Section 7.10
of the TDP.
Exhibit 1.23-6
2.3 CLAIMS ADMINISTRATION.
The Trustees shall promptly proceed to implement the TDP.
SECTION 3
ACCOUNTS, INVESTMENTS, AND PAYMENTS
3.1 ACCOUNTS. The Trustees may, from time to time, create
such accounts and reserves within the PI Trust estate as they may deem
necessary, prudent, or useful in order to provide for the payment of expenses
and payment of Asbestos Personal Injury Claims and may, with respect to any such
account or reserve, restrict the use of monies therein.
3.2 INVESTMENTS. Investment of monies held in the PI Trust
shall be administered in the manner in which individuals of ordinary prudence,
discretion, and judgment would act in the management of their own affairs,
subject to the following limitations and provisions:
(a) The PI Trust shall not acquire, directly or indirectly,
equity in any entity (other than Reorganized AWI or any successor to Reorganized
AWI) or business enterprise if, immediately following such acquisition, the PI
Trust would hold more than 5% of the equity in such entity or business
enterprise. The PI Trust shall not hold, directly or indirectly, more than 10%
of the equity in any entity (other than Reorganized AWI or any successor to
Reorganized AWI) or business enterprise.
(b) The PI Trust shall not acquire or hold any long-term
debt securities unless (i) such securities are PI Trust Assets under the Plan,
(ii) such securities are rated "Baa" or higher by Moody's, "BBB" or higher by
Standard & Poor's ("S&P'S"), or have been given an equivalent investment grade
rating by another nationally recognized statistical rating agency, or (iii) have
been issued or fully guaranteed as to principal and interest by the United
States of America or any agency or instrumentality thereof.
(c) The PI Trust shall not acquire or hold for longer than
ninety (90) days any commercial paper unless such commercial paper is rated
"Prime-1" or higher by Moody's or "A-1" or higher by S&P's or has been given an
equivalent rating by another nationally recognized statistical rating agency.
(d) Excluding any securities by the Debtor or Reorganized
AWI, the PI Trust shall not acquire or hold any common or preferred stock or
convertible securities unless such stock or securities are rated "A" or high by
Moody's or "A" or higher by S&P's or have been given an equivalent investment
grade rating by another nationally recognized statistical rating agency.
(e) The PI Trust shall not acquire any debt securities or
other instruments issued by any entity (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof) if, following
such acquisition, the aggregate market value of all debt securities and
instruments issued by such entity held by the PI Trust would exceed 2% of the
aggregate value of the PI Trust estate. The PI Trust shall not hold any debt
securities or other instruments issued by any entity (other than debt securities
or other instruments issued or fully guaranteed as to principal and interest by
the United States of America or any agency or instrumentality thereof and other
than debt securities or other instruments of Reorganized AWI or any successor to
Reorganized AWI) to the extent that the aggregate market value of all securities
and instruments issued by such entity held by the PI Trust would exceed 5% of
the aggregate value of the PI Trust Assets.
(f) The PI Trust shall not acquire or hold any certificates
of deposit unless all publicly held, long-term debt securities, if any, of the
financial institution issuing the certificate of deposit and the holding
company, if any, of which such financial institution is a subsidiary, meet the
standards set forth in Section 3.2(b) above.
Exhibit 1.23-7
(g) The PI Trust may acquire and hold any securities or
instruments issued y Reorganized AWI or any successor to Reorganized AWI, or
obtained as proceeds of litigation or otherwise to resolve disputes, without
regard to the limitations set forth in Subsections (a)-(f) above.
(h) The PI Trust shall not acquire or hold any repurchase
obligations unless, in the opinion of the Trustees, they are adequately
collateralized.
(i) The PI Trust shall not acquire or hold any options.
3.3 SOURCE OF PAYMENTS. All PI Trust expenses and payments
and all liabilities with respect to claims shall be payable solely by the
Trustees out of the PI Trust Assets. Neither AWI, Reorganized AWI, their
subsidiaries, any successor in interest, the present or former directors,
officers, employees or agents of AWI, Reorganized AWI, nor the Trustees, the TAC
or Future Claimants' Representative, or any of their officers, agents, advisors,
or employees shall be liable for the payment of any PI Trust expense or any
other liability of the PI Trust.
SECTION 4
TRUSTEES
4.1 NUMBER. There shall be five (5) Trustees. The initial
Trustees shall be those persons named on the signature page hereof.
4.2 TERM OF SERVICE.
(a) The five initial Trustees named pursuant to Article 4.1
above shall each serve an initial two (2) year term. At the expiration of these
initial two (2) year terms, the number of Trustees shall be reduced from five
(5) to three (3). At that time, the five initial Trustees, after consultation
with the TAC and the Future Claimants' Representative, shall decide which three
individuals among their number shall continue to serve, and the three (3)
Trustees so selected shall then serve staggered terms of three (3), four (4) and
five (5) years each. Thereafter, each Trustee's term of service shall be five
(5) years. The initial Trustees shall serve from the Effective Date until the
earlier of (i) the end of his or her term, (ii) his or her death, (iii) his or
her resignation pursuant to Section 4.2(b) below, (iv) his or her removal
pursuant to Section 4.2(c) below, or (v) the termination of the PI Trust
pursuant to Section 7.2 below.
(b) A PI Trustee may resign at any time by written notice
to the remaining Trustees, the TAC and the Future Claimants' Representative.
Such notice shall specify a date when such resignation shall take place, which
shall not be less than 90 days after the date such notice is given, where
practicable.
(c) A Trustee may be removed by unanimous vote of the
remaining Trustees in the event that he or she becomes unable to discharge his
or her duties hereunder due to accident or physical or mental deterioration, or
for other good cause. Good cause shall be deemed to include, without limitation,
any substantial failure to comply with the general administration provisions of
Section 2.2 above, a consistent pattern of neglect and failure to perform or
participate in performing the duties of the Trustees hereunder, or repeated
non-attendance at scheduled meetings. Such removal shall require the approval of
the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court
shall determine.
4.3 APPOINTMENT OF SUCCESSOR TRUSTEES.
(a) In the event of a vacancy in the position of PI
Trustee, whether by term expiration, resignation or removal, the remaining
Trustees shall consult with the TAC and the Future Claimants' Representative
concerning appointment of a successor PI Trustee. The vacancy shall be filled by
the unanimous vote of the remaining Trustees unless a majority of the TAC or the
Future Claimants' Representative vetoes the appointment. In the event that the
remaining Trustees cannot agree on a Successor PI Trustee, or a majority of the
TAC or the Future Claimants' Representative vetoes the appointment of a
successor PI Trustee, the Bankruptcy Court shall make the appointment. Nothing
shall prevent the reappointment of a PI Trustee for an additional term or terms.
Exhibit 1.23-8
(b) Immediately upon the appointment of any Successor PI
Trustee, all rights, titles, duties, powers and authority of the predecessor PI
Trustee hereunder shall be vested in, and undertaken by, the Successor PI
Trustee without any further act. No Successor PI Trustee shall be liable
personally for any act or omission of his or her predecessor Trustees.
(c) Each Successor PI Trustee shall serve until the earlier
of (i) the end of a full term of five (5) years if the predecessor PI Trustee
completed his or her term, (ii) the end of the remainder of the term of the PI
Trustee whom he or she is replacing if said predecessor PI Trustee did not
complete said term, (iii) his or her death, (iv) his or her resignation pursuant
to Section 4.2(b) above, (v) his or her removal pursuant to Section 4.2(c)
above, or (vi) the termination of the PI Trust pursuant to Section 7.2 below.
4.4 LIABILITY OF TRUSTEES, OFFICERS AND EMPLOYEES. The
Trustees and the individuals identified as Additional Indemnitees in Section
2.1(c)(xiv) above shall not be liable to the PI Trust, to any individual holding
an asbestos claim, or to any other person, except for such individual's own
breach of trust committed in bad faith or willful misappropriation. In addition,
the Trustees and the Additional Indemnitees shall not be liable for any act or
omission of any other Trustee or Additional Indemnitee unless such person acted
with bad faith in the selection or retention of such other Trustee or Additional
Indemnitee.
4.5 COMPENSATION AND EXPENSES OF TRUSTEES.
(a) The Trustees shall receive compensation from the PI
Trust for their services as Trustees in the amount of $_____________ per annum,
plus a per diem allowance for meetings or other PI Trust business performed in
the amount of $__________. For purposes of the per diem allowance, PI Trust
business includes, but is not limited to, attendance at meetings of Reorganized
AWI's Board of Directors. For purposes of section 7.4 below, the Trustees shall
determine the scope and duration of activities that constitute a meeting and, if
the Trustees elect to provide for payment for activities of less than a full
day's duration, may provide for partial payment of per diem amounts on a
proportional basis for activities of less than a full day's duration. The per
annum and per diem compensation payable to the Trustees hereunder shall be
reviewed every three (3) years and appropriately adjusted for changes in the
cost of living. Any other changes in compensation of the Trustees shall be made
subject to the approval of the Bankruptcy Court.
(b) The PI Trust will promptly reimburse the Trustees for
all reasonable out-of-pocket costs and expenses incurred by the Trustees in
connection with the performance of their duties hereunder.
(c) The PI Trust shall include a description of the amounts
paid under this Section 4.5 in the accounts to be filed with the Bankruptcy
Court and provided to the TAC, the Future Claimants' Representative, and
Reorganized AWI pursuant to Section 2.2(c)(i).
4.6 INDEMNIFICATION OF TRUSTEES AND ADDITIONAL INDEMNITEES.
(a) The PI Trust shall indemnify and defend the Trustees,
as well as the Additional Indemnitees in the performance of their duties
hereunder to the fullest extent that a corporation or trust organized under the
laws of the PI Trust's situs is from time to time entitled to indemnify and
defend such persons against any and all liabilities, expenses, claims, damages
or losses incurred by them in the performance of their duties. Notwithstanding
the foregoing, the Trustees and the Additional Indemnitees shall not be
indemnified or defended in any way for any liability, expense, claim, damage, or
loss for which he or she is ultimately liable under Section 4.4 above.
(b) Reasonable expenses, costs and fees (including
attorneys' fees and costs) incurred by or on behalf of a PI Trustee or
Additional Indemnitee in connection with any action, suit, or proceeding,
whether civil, administrative or arbitrative from which they are indemnified by
the PI Trust pursuant to Section 4.6(a) above, shall be paid by the PI Trust in
advance of the final disposition thereof upon receipt of an undertaking, by or
on behalf of the Trustees or Additional Indemnitee, to repay such amount in the
Exhibit 1.23-9
event that it shall be determined ultimately by final order that such PI Trustee
or Additional Indemnitee is not entitled to be indemnified by the PI Trust.
(c) The Trustees may purchase and maintain reasonable
amounts and types of insurance on behalf of an individual who is or was a PI
Trustee or Additional Indemnitee including against liability asserted against or
incurred by such individual in that capacity or arising from his or her status
as a PI Trustee, TAC member, Future Claimants' Representative, officer,
employee, agent or other representative.
4.7 TRUSTEES' LIEN. The Trustees and the Additional
Indemnitees shall have a first priority lien upon the PI Trust Assets to secure
the payment of any amounts payable to them pursuant to Section 4.6 above.
4.8 TRUSTEES' EMPLOYMENT OF EXPERTS. The Trustees may, but
shall not be required to, retain and/or consult with counsel, accountants,
appraisers, auditors and forecasters, and other parties deemed by the Trustees
to be qualified as experts on the matters submitted to them, and the written
opinion of or information provided by any such parties on any matters submitted
to them by the Trustees shall be full and complete authorization and protection
in respect of any action taken or not taken by the Trustees hereunder in good
faith and in accordance with the written opinion of or information provided by
any such party.
4.9 TRUSTEES' INDEPENDENCE. The Trustees shall not, during
the term of their service, hold a financial interest in, act as attorney or
agent for, or serve as any other professional for Reorganized AWI.
Notwithstanding the foregoing, any PI Trustee may serve, without any additional
compensation other than the per diem compensation to be paid by the PI Trust
pursuant to Section 4.5(a) above, as a director of Reorganized AWI. No PI
Trustee shall act as an attorney for any person who holds an asbestos claim.
4.10 BOND. The Trustees shall not be required to post any
bond or other form of surety or security unless otherwise ordered by the
Bankruptcy Court.
SECTION 5
TRUST ADVISORY COMMITTEE
5.1 MEMBERS. The TAC shall consist of five (5) members, who
shall initially be the persons named on the signature page hereof.
5.2 DUTIES. The members of the TAC shall serve in a
fiduciary capacity representing all holders of present Asbestos Personal Injury
Claims. The Trustees must consult with the TAC on matters identified in Section
2.2(e) above and in other provisions herein, and must obtain the consent of the
TAC on matters identified in Section 2.2(f) above. Where provided in the TDP,
certain other actions by the Trustees are also subject to the consent of the
TAC.
5.3 TERM OF OFFICE.
(a) Each member of the TAC shall serve until the earlier of
(i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b)
below, (iii) his or her removal pursuant to Section 5.3(c) below, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
(b) A member of the TAC may resign at any time by written
notice to the other members of the TAC, the Trustees and the Future Claimants'
Representative. Such notice shall specify a date when such resignation shall
take effect, which shall not be less than ninety (90) days after the date such
notice is given, where practicable.
(c) A member of the TAC may be removed in the event that he
or she becomes unable to discharge his or her duties hereunder due to accident,
physical deterioration, mental incompetence, or a consistent pattern of neglect
and failure to perform or to participate in performing the duties of such member
hereunder, such as repeated non-attendance at scheduled meetings, or for other
Exhibit 1.23-10
good cause. Such removal shall be made at the recommendation of the remaining
members of the TAC with the approval of the Bankruptcy Court.
5.4 APPOINTMENT OF SUCCESSOR.
(a) In the event of a vacancy caused by the resignation of
a TAC member, his or her successor shall be selected by the TAC member who is
resigning, unless the remaining members unanimously veto the selection, in which
case, the successor shall be selected by a unanimous vote of the remaining
members. If the remaining members cannot unanimously agree, the Bankruptcy Court
shall appoint the successor. In the event of a vacancy caused by removal or
death of a TAC member, or in the event that a resigning or retiring member does
not name his or her successor, the remaining members of the TAC by unanimous
vote shall name the successor. If the remaining members of the TAC cannot reach
unanimous agreement, the Bankruptcy Court shall appoint the successor.
(b) Each successor TAC member shall serve until the earlier
of (i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b)
above, (iii) his or her removal pursuant to Section 5.3(c) above, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
5.5 TAC'S EMPLOYMENT OF PROFESSIONALS.
(a) The TAC may but is not required to retain and/or
consult counsel, accountants, appraisers, auditors, forecasters, experts, and
financial and investment advisors, and such other parties deemed by the TAC to
be qualified as experts on matters submitted to the TAC (the "PROFESSIONALS").
The TAC and its Professionals shall at all times have complete access to the PI
Trust's officers, employees and agents, as well as to the Professionals retained
by the PI Trust, and shall also have complete access to all information
generated by them or otherwise available to the PI Trust or the Trustees. In the
absence of gross negligence, the written opinion of or information provided by
any Professional deemed by the TAC to be qualified as an expert on the
particular matter submitted to the TAC shall be full and complete authorization
and protection in support of any action taken or not taken by the TAC in good
faith and in accordance with the written opinion of or information provided by
the Professional.
(b) The Trust shall promptly reimburse, or pay directly if
so instructed, the TAC for all reasonable fees and costs associated with the
TAC's employment of legal counsel pursuant to this provision in connection with
the TAC's performance of its duties hereunder. The Trust shall also promptly
reimburse, or pay directly if so instructed, the TAC for all reasonable fees and
costs associated with the TAC's employment of any other Professional pursuant to
this provision in connection with the TAC's performance of its duties hereunder;
provided, however, that (i) the TAC has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the TAC desires
to employ such Professional, and (B) why the TAC cannot rely on Professionals
retained by the Trust to meet the need of the TAC for such expertise or advice,
and (ii) the Trust has approved the TAC's request for reimbursement in writing.
If the Trust agrees to pay for the TAC Professional, such reimbursement shall be
treated as a Trust expense. If the Trust declines to pay for the TAC
Professional, it must set forth its reasons in writing. If the TAC still desires
to employ such Professional at Trust expense, the TAC and/or the Trustees shall
resolve their dispute pursuant to Section 7.13 below.
5.6 COMPENSATION AND EXPENSES OF TAC. The members of the
TAC shall receive compensation from the PI Trust for their services as TAC
members in the form of a reasonable hourly rate set by the Trustees for
attendance at meetings or other conduct of PI Trust business. The members of the
TAC shall also be reimbursed promptly for all reasonable out-of-pocket costs and
expenses incurred in connection with the performance of their duties hereunder.
Such reimbursement or direct payment shall be deemed a PI Trust expense. The PI
Trust shall include a description of the amounts paid under this Section 5.6 in
the accounts to be filed with the Bankruptcy Court and provided to the Trustees,
the Future Claimants' Representative, and Reorganized AWI pursuant to Section
2.2(c)(i).
Exhibit 1.23-11
5.7 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE
CONSENT OF THE TAC.
(A) CONSULTATION PROCESS.
(i) In the event the Trustees are required to
consult with the TAC pursuant to Section 2.2(e)
above or on other matters as provided herein,
the Trustees shall provide the TAC with written
advance notice of the matter under
consideration, and with all relevant
information concerning the matter as is
reasonably practicable under the circumstances.
The Trustees shall also provide the TAC with
such reasonable access to Professionals and
other experts retained by the PI Trust and its
staff (if any) as the TAC may reasonably
request during the time that the Trustees are
considering such matter, and shall also provide
the TAC the opportunity, at reasonable times
and for reasonable periods of time, to discuss
and comment on such matter with the Trustees.
(ii) The Trustees shall take into consideration the
time required for the TAC, if its members so
wish, to engage and consult with its own
independent financial or investment advisors as
to such matter.
(B) CONSENT PROCESS.
(i) In the event the Trustees are required to
obtain the consent of the TAC pursuant to
Section 2.2(f) above, the Trustees shall
provide the TAC with a written notice stating
that their consent is being sought pursuant to
that provision, describing in detail the nature
and scope of the action the Trustees propose to
take, and explaining in detail the reasons why
the Trustees desire to take such action. The
Trustees shall provide the TAC as much relevant
additional information concerning the proposed
action as is reasonably practicable under the
circumstances. The Trustees shall also provide
the TAC with such reasonable access to
Professionals and other experts retained by the
PI Trust and its staff (if any) as the TAC may
reasonably request during the time that the
Trustees are considering such action, and shall
also provide the TAC the opportunity, at
reasonable times and for reasonable periods of
time, to discuss and comment on such action
with the Trustees.
(ii) The TAC must consider in good faith and in a
timely fashion any request for its consent by
the Trustees, and must in any event advise the
Trustees in writing of its consent or its
objection to the proposed action within 30 days
of receiving the original request for consent
from the Trustees. The TAC may not withhold its
consent unreasonably. If the TAC decides to
withhold its consent, it must explain in detail
its objections to the proposed action. If the
TAC does not advise the Trustees in writing of
its consent or its objections to the action
within 30 days of receiving notice regarding
such request, the TAC's consent to the proposed
actions shall be deemed to have been
affirmatively granted.
(iii) If, after following the procedures specified in
this Section 5.7(b), the TAC continues to
object to the proposed action and to withhold
its consent to the proposed action, the
Trustees and/or the TAC shall resolve their
dispute pursuant to Section 7.13. However, the
burden of proof with respect to the validity of
Exhibit 1.23-12
the TAC's objection and withholding of its
consent shall be on the TAC.
SECTION 6
THE FUTURE CLAIMANTS' REPRESENTATIVE
6.1 DUTIES. The initial Future Claimants' Representative
shall be the individual identified on the signature pages hereto, namely Dean M.
Trafalet, Esquire. He shall serve in a fiduciary capacity, representing the
interests of the holders of future Asbestos Personal Injury Claims for the
purpose of protecting the rights of such persons. The Trustees must consult with
the Future Claimants' Representative on matters identified in Section 2.2(e)
above and on certain other matters provided herein, and must obtain the consent
of the Future Claimants' Representative on matters identified in Section 2.2(f)
above. Where provided in the TDP, certain other actions by the Trustees are also
subject to the consent of the Future Claimants' Representative.
6.2 TERM OF OFFICE.
(a) The Future Claimants' Representative shall serve until
the earlier of (i) his or her death, (ii) his or her resignation pursuant to
Section 6.2(b) below, (iii) his or her removal pursuant to Section 6.2(c) below,
or (iv) the termination of the PI Trust pursuant to Section 7.2 below.
(b) The Future Claimants' Representative may resign at any
time by written notice to the Trustees. Such notice shall specify a date when
such resignation shall take effect, which shall not be less than ninety (90)
days after the date such notice is given, where practicable.
(c) The Future Claimants' Representative may be removed by
the Bankruptcy Court in the event he or she becomes unable to discharge his or
her duties hereunder due to accident, physical deterioration, mental
incompetence, or a consistent pattern of neglect and failure to perform or to
participate in performing the duties hereunder, such as repeated non-attendance
at scheduled meetings, or for other good cause.
6.3 APPOINTMENT OF SUCCESSOR. A vacancy caused by
resignation shall be filled with an individual nominated prior to the effective
date of the resignation by the resigning Future Claimants' Representative, and a
vacancy caused by death or removal of the Future Claimants' Representative shall
be filled with an individual nominated by the Trustees, the TAC or both. In any
case, the nominee shall be subject to the approval of the Court.
6.4 FUTURE CLAIMANTS' REPRESENTATIVE'S EMPLOYMENT OF
PROFESSIONALS.
(a) The Future Claimants' Representative may but is not
required to retain and/or consult counsel, accountants, appraisers, auditors,
forecasters, experts, and financial and investment advisors, and such other
parties deemed by the Future Claimants' Representative to be qualified as
experts on matters submitted to the Future Claimants' Representative (the
"PROFESSIONALS"). The Future Claimants' Representative and his or her experts
shall at all times have complete access to the PI Trust's officers, employees
and agents, as well as to the Professionals retained by the PI Trust, and shall
also have complete access to all information generated by them or otherwise
available to the PI Trust or the Trustees. In the absence of gross negligence,
the written opinion of or information provided by any Professional deemed by the
Future Claimants' Representative to be qualified as an expert on the particular
matter submitted to the Future Claimants' Representative shall be full and
complete authorization and protection in support of any action taken or not
taken by the Future Claimants' Representative in good faith and in accordance
with the written opinion of or information provided by the Professional.
(b) The Trust shall promptly reimburse, or pay directly if
so instructed, the Future Claimants' Representative for all reasonable fees and
costs associated with the Future Claimants' Representative's employment of legal
counsel pursuant to this provision in connection with the Future Claimants'
Representative's performance of his or her duties hereunder. The Trust shall
also promptly reimburse, or pay directly if so instructed, the Future Claimants'
Representative for all reasonable fees and costs associated with the Future
Exhibit 1.23-13
Claimants' Representative's employment of any other Professionals pursuant to
this provision in connection with the Future Claimants' Representative's
performance of his or her duties hereunder; provided, however, that (i) the
Future Claimants' Representative has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the Future
Claimants' Representative desires to employ the Professional, and (B) why the
Future Claimants' Representative cannot rely on Professionals retained by the
Trust to meet the need of the Future Claimants' Representative for such
expertise or advice, and (ii) the Trust has approved the Future Claimants'
Representative's request for reimbursement in writing. If the Trust agrees to
pay for the Future Claimants' Representative's Professional, such reimbursement
shall be treated as a Trust Expense. If the Trust declines to pay for the Future
Claimants' Representative's Professional, it must set forth its reasons in
writing. If the Future Claimants' Representative still desires to employ the
Professional at Trust expense, the Future Claimants' Representative and/or the
Trustees shall resolve their dispute pursuant to Section 7.13 below.
6.5 COMPENSATION AND EXPENSES OF THE FUTURE CLAIMANTS'
REPRESENTATIVE. The Future Claimants' Representative shall receive compensation
from the PI Trust in the form of the Future Claimants' Representative's normal
hourly rate for services performed. The PI Trust will promptly reimburse the
Future Claimants' Representative for all reasonable out-of-pocket costs and
expenses incurred by the Future Claimants' Representative in connection with the
performance of his or her duties hereunder. Such reimbursement or direct payment
shall be deemed a PI Trust expense. The PI Trust shall include a description of
the amounts paid under this Section 6.5 in the accounts to be filed with the
Bankruptcy Court and provided to the Trustees, the Future Claimants'
Representative, and Reorganized AWI pursuant to Section 2.2(c)(i).
6.6 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE
CONSENT OF THE FUTURE CLAIMANTS REPRESENTATIVE.
(a) CONSULTATION PROCESS.
(i) In the event the Trustees are required to
consult with the Future Claimants'
Representative pursuant to Section 2.2(e) above
or on any other matters specified herein, the
Trustees shall provide the Future Claimants'
Representative with written advance notice of
the matter under consideration, and with all
relevant information concerning the matter as
is reasonably practicable under the
circumstances. The Trustees shall also provide
the Future Claimants' Representative with such
reasonable access to Professionals and other
experts retained by the PI Trust and its staff
(if any) as the Future Claimants'
Representative may reasonably request during
the time that the Trustees are considering such
matter, and shall also provide the Future
Claimants' Representative the opportunity, at
reasonable times and for reasonable periods of
time, to discuss and comment on such matter
with the Trustees.
(ii) The Trustees shall take into consideration the
time required for the Future Claimants'
Representative, if he or she so wishes, to
engage and consult with his or her own
independent financial or investment advisors as
to such matter.
(b) CONSENT PROCESS.
(i) In the event the Trustees are required to
obtain the consent of the Future Claimants'
Representative pursuant to Section 2.2(f)
above, the Trustees shall provide the Future
Claimants' Representative with a written notice
stating that his or her consent is being sought
Exhibit 1.23-14
pursuant to that provision, describing in
detail the nature and scope of the action the
Trustees propose to take, and explaining in
detail the reasons why the Trustees desire to
take such action. The Trustees shall provide
the Future Claimants' Representative as much
relevant additional information concerning the
proposed action as is reasonably practicable
under the circumstances. The Trustees shall
also provide the Future Claimants'
Representative with such reasonable access to
Professional and other experts retained by the
PI Trust and its staff (if any) as the Future
Claimants' Representative may reasonably
request during the time that the Trustees are
considering such action, and shall also provide
the Future Claimants' Representative the
opportunity, at reasonable times and for
reasonable periods of time, to discuss and
comment on such action with the Trustees.
(ii) The Future Claimants' Representative must
consider in good faith and in a timely fashion
any request for his or her consent by the
Trustees, and must in any event advise the
Trustees in writing of his or her consent or
objection to the proposed action within 30 days
of receiving the original request for consent
from the Trustees. The Future Claimants'
Representative may not withhold his or her
consent unreasonably. If the Future Claimants'
Representative decides to withhold consent, he
or she must explain in detail his or her
objections to the proposed action. If the
Future Claimants' Representative does not
advise the Trustees in writing of his or her
consent or objections to the proposed action
within 30 days of receiving the notice from the
Trustees regarding such consent, the Future
Claimants' Representative's consent shall be
deemed to have been affirmatively granted.
(iii) If, after following the procedures specified in
this Section 5.7(b), the Future Claimants'
Representative continues to object to the
proposed action and to withhold its consent to
the proposed action, the Trustees and/or the
Future Claimants' Representative shall resolve
their dispute pursuant to Section 7.13.
However, the burden of proof with respect to
the validity of the Future Claimants'
Representative's objection and withholding of
his or her consent shall be on the Future
Claimants' Representative.
SECTION 7
GENERAL PROVISIONS
7.1 IRREVOCABILITY. The PI Trust is irrevocable.
7.2 TERMINATION.
(a) The PI Trust shall automatically terminate on the date
ninety (90) days after the first to occur of the following events:
(i) the Trustees decide to terminate the PI Trust
because (A) they deem it unlikely that new
asbestos claims will be filed against the PI
Trust, (B) all Asbestos Personal Injury Claims
duly filed with the PI Trust have been
liquidated and paid to the extent provided in
this PI Trust Agreement and the TDP or
Exhibit 1.23-15
disallowed by a final, non-appealable order, to
the extent possible based upon the funds
available through the Plan, and (C) twelve (12)
consecutive months have elapsed during which no
new asbestos claim has been filed with the PI
Trust; or
(ii) if the Trustees have procured and have in place
irrevocable insurance policies and have
established claims handling agreements and
other necessary arrangements with suitable
third parties adequate to discharge all
expected remaining obligations and expenses of
the PI Trust in a manner consistent with this
PI Trust Agreement and the TDP, the date on
which the Bankruptcy Court enters an order
approving such insurance and other arrangements
and such order becomes a final order; or
(iii) to the extent that any rule against
perpetuities shall be deemed applicable to the
PI Trust, twenty-one (21) years less ninety-one
(91) days pass after the death of the last
survivor of all of the descendants of the late
Joseph P. Kennedy, Sr., father of the late
President John F. Kennedy, living on the date
hereof.
(b) On the Termination Date, after payment of all the PI
Trust's liabilities have been provided for, all monies remaining in the PI Trust
estate shall be given to such organization(s) exempt from federal income tax
under section 501(c)(3) of the Internal Revenue Code, which tax-exempt
organization(s) shall be selected by the Trustees using their reasonable
discretion; provided, however, that (i) if practicable, the activities of the
selected tax-exempt organization(s) shall be related to the treatment of,
research on, or the relief of suffering of individuals suffering from asbestos
related lung disorders, and (ii) the tax-exempt organization(s) shall not bear
any relationship to Reorganized AWI within the meaning of section 468B(d)(3) of
the Internal Revenue Code. Notwithstanding any contrary provision of the Plan
and related documents, this Section 7.2(b) cannot be modified or amended.
7.3 AMENDMENTS. The Trustees, after consultation with the
TAC and the Future Claimants' Representative, and subject to the unanimous
consent of the TAC and the Future Claimants' Representative, may modify or amend
this PI Trust Agreement and the PI Trust By-laws. The Trustees, after
consultation with the TAC and the Future Claimants' Representative, and subject
to the consent of the TAC and the Future Claimants' Representative, may modify
or amend the TDP; provided, however, that no amendment to the TDP shall be
inconsistent with the provisions limiting amendments to that document provided
therein, and in particular the provisions limiting amendment of the Claims
Payment Ratio set forth in Section 2.5 of the TDP and of the Payment Percentage
set forth in Section 4.2 of the TDP. Any modification or amendment made pursuant
to this Article must be done in writing. Notwithstanding anything contained in
this PI Trust Agreement to the contrary, neither this PI Trust Agreement, the PI
Trust Bylaws, the TDP, nor any document annexed to the foregoing shall be
modified or amended in any way that could jeopardize, impair, or modify the
applicability of section 524(g) of the Bankruptcy Code, the efficacy or
enforceability of the injunction entered thereunder, or the PI Trust's qualified
settlement fund status under Section 468B of the Internal Revenue Code.
7.4 MEETINGS. The Trustees, the TAC, and the Future
Claimants' Representative, shall be deemed to have attended a meeting in the
event such person spends a substantial portion of the day conferring, in person
or by telephone conference call, on PI Trust matters with the TAC, the Future
Claimants' Representative, or Trustees, as applicable. A Trustee shall also be
deemed to have attended a meeting in the event he or she spends a substantial
portion of the day engaging in activities related to Reorganized AWI, including
attendance at its Board of Directors meetings. The Trustees, the TAC and the
Future Claimants' Representative shall have complete discretion to determine
whether a meeting, as described herein, occurred for purposes of Sections 4.5,
5.6, and 6.5 above.
Exhibit 1.23-16
7.5 SEVERABILITY. Should any provision in this PI Trust
Agreement be determined to be unenforceable, such determination shall in no way
limit or affect the enforceability and operative effect of any and all other
provisions of this PI Trust Agreement.
7.6 NOTICES. Notices to persons asserting claims shall be
given by first class mail, postage prepaid, at the address of such person, or,
where applicable, such person's legal representative, in each case as provided
on such person's claim form submitted to the PI Trust with respect to his or her
PI Trust Claim.
(a) Any notices or other communications required or
permitted hereunder to the following parties shall be in writing and delivered
at the addresses designated below, or sent by telex, telecopy or facsimile
pursuant to the instructions listed below, or mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows, or to
such other address or addresses as may hereafter be furnished in writing to each
of the other parties listed below in compliance with the terms hereof.
To the PI Trust through the Trustees:
To the TAC:
To the Future Claimants' Representative:
To Reorganized AWI:
(b) All such notices and communications if mailed shall be
effective when physically delivered at the designated addresses or, if
electronically transmitted, when the communication is received at the designated
addresses and confirmed by the recipient by return transmission.
7.7 SUCCESSORS AND ASSIGNS. The provisions of this PI Trust
Agreement shall be binding upon and inure to the benefit of AWI, the PI Trust,
the Trustees and Reorganized AWI, and their respective successors and assigns,
except that neither AWI, the PI Trust, the Trustees nor Reorganized AWI may
assign or otherwise transfer any of its, or their, rights or obligations under
this PI Trust Agreement except, in the case of the PI Trust and the Trustees, as
contemplated by Section 2.1 above.
7.8 LIMITATION ON CLAIM INTERESTS FOR SECURITIES LAWS
PURPOSES. Asbestos Personal Injury Claims, and any interests therein (a) shall
not be assigned, conveyed, hypothecated, pledged or otherwise transferred,
voluntarily or involuntarily, directly or indirectly, except by will or under
the laws of descent and distribution; (b) shall not be evidenced by a
certificate or other instrument; (c) shall not possess any voting rights; and
(d) shall not be entitled to receive any dividends or interest; provided,
Exhibit 1.23-17
however, that clause (a) of this Section 7.8 shall not apply to the holder of a
claim that is subrogated to a PI Trust Claim as a result of its satisfaction of
such PI Trust Claim.
7.9 ENTIRE AGREEMENT; NO WAIVER. The entire agreement of
the parties relating to the subject matter of this PI Trust Agreement is
contained herein and in the documents referred to herein, and this PI Trust
Agreement and such documents supersede any prior oral or written agreements
concerning the subject matter hereof. No failure to exercise or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies herein provided are cumulative and
are not exclusive of rights under law or in equity.
7.10 HEADINGS. The headings used in this PI Trust Agreement
are inserted for convenience only and do not constitute a portion of this PI
Trust Agreement, nor in any manner affect the construction of the provisions of
this PI Trust Agreement.
7.11 GOVERNING LAW. This PI Trust Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to Delaware conflict of law principles.
7.12 SETTLOR REPRESENTATIVE AND COOPERATION. AWI is hereby
irrevocably designated as the Settlor, and it is hereby authorized to take any
action required of the Settlor in connection with the PI Trust Agreement. AWI
agrees to cooperate in implementing the goals and objectives of this PI Trust.
7.13 DISPUTE RESOLUTION. Any disputes that arise under this
PI Trust Agreement or under the TDP shall be resolved by submission of the
matter to an alternative dispute resolution ("ADR") process mutually agreeable
to the parties involved. Should any party to the ADR process be dissatisfied
with the decision of the arbitrator(s), that party may apply to the Bankruptcy
Court for a judicial determination of the matter. In either case, if the dispute
arose pursuant to the consent provision set forth in Section 5.7(b) (in the case
of the TAC) or Section 6.6(b) (in the case of the Future Claimants'
Representative), the burden of proof shall be on the party or parties who
withheld consent to show that the objection was valid. Should the dispute not be
resolved by ADR process within thirty (30) days after submission, the parties
are relieved of the requirement to pursue ADR prior to application to the
Bankruptcy Court. Notwithstanding anything else herein contained, to the extent
any provision of this PI Trust Agreement is inconsistent with any provision of
the Plan or the TDP, the Plan or the TDP shall control.
7.14 ENFORCEMENT AND ADMINISTRATION. The provisions of this
PI Trust Agreement and the TDP attached hereto shall be enforced by the
Bankruptcy Court pursuant to the Plan. The parties hereby further acknowledge
and agree that the Bankruptcy Court shall have exclusive jurisdiction over the
settlement of the accounts of the Trustees and over any disputes hereunder not
resolved by alternative dispute resolution in accordance with Section 7.13
above.
7.15 EFFECTIVENESS. This PI Trust Agreement shall not
become effective until it has been executed and delivered by all the parties
hereto.
7.16 COUNTERPART SIGNATURES. This PI Trust Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but such counterparts shall together constitute but one and the same
instrument.
Exhibit 1.23-18
IN WITNESS WHEREOF, the parties have executed this PI Trust
Agreement this _____ day of ________________________, _______.
ARMSTRONG WORLD INDUSTRIES, INC., SETTLOR, BY
Name:
----------------------------------------
Title:
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TRUSTEES
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Exhibit 1.23-19
ASBESTOS CLAIMANTS' COMMITTEE
By:_____________________________________
TRUST ADVISORY COMMITTEE
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FUTURE CLAIMANTS' REPRESENTATIVE
---------------------------------------------
Dean M. Trafelet, Esq.
Exhibit 1.23-20
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
)
ARMSTRONG WORLD INDUSTRIES ) Chapter 11
INC., et al., ) Case No. 00-4471 (RJN)
) (Jointly Administered)
Debtors )
- ----------------------------------)
EXHIBIT 1.24
FORM OF ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST
DISTRIBUTION PROCEDURES
ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST DISTRIBUTION PROCEDURES
The Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust
Distribution Procedures ("TDP") contained herein provide for resolving all
Asbestos Personal Injury Claims (as that term is defined in the Armstrong World
Industries, Inc. Plan of Reorganization ("PLAN")) caused by exposure to
asbestos-containing products for which Armstrong World Industries, Inc. ("AWI")
and its predecessors, successors, and assigns have legal responsibility
(hereinafter for all purposes of this TDP referred to as "PI TRUST CLAIMS"), as
provided in and required by the Plan and by the Armstrong World Industries, Inc.
Asbestos Personal Injury Settlement Trust Agreement ("PI TRUST AGREEMENT"). The
Plan and PI Trust Agreement establish the Armstrong World Industries, Inc.
Asbestos Personal Injury Settlement Trust ("PI TRUST"). The Trustees of the PI
Trust ("TRUSTEES") shall implement and administer this TDP in accordance with
the PI Trust Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Plan and the PI Trust Agreement.
SECTION I
INTRODUCTION
1.1 PURPOSE. This TDP has been adopted pursuant to the PI Trust
Agreement. It is designed to provide fair and equitable treatment for all PI
Trust Claims that may presently exist or may arise in the future in
substantially the same manner.
1.2 INTERPRETATION. Nothing in this TDP shall be deemed to create a
substantive right for any claimant.
SECTION II
OVERVIEW
2.1 PI TRUST GOALS. The goal of the PI Trust is to treat all
claimants equitably. This TDP furthers that goal by setting forth procedures for
processing and paying claims generally on an impartial, first-in-first-out
("FIFO") basis, with the intention of paying all claimants over time as
equivalent a share as possible of the value of their claims based on historical
values for substantially similar claims in the tort system. To this end, the TDP
establishes a schedule of eight asbestos-related diseases ("DISEASE LEVELS"),
all of which have presumptive medical and exposure requirements
("MEDICAL/EXPOSURE CRITERIA"), and seven of which have specific liquidated
values ("SCHEDULED VALUES"), anticipated average values ("AVERAGE VALUES") and
caps on their liquidated values ("MAXIMUM VALUES"). The Disease Levels,
Medical/Exposure Criteria, Scheduled Values, Average Values and Maximum Values,
which are set forth in Sections 5.3 and 5.4 below, have all been selected and
derived with the intention of achieving a fair allocation of the PI Trust funds
as among claimants suffering from different disease processes in light of the
best available information considering the settlement history of AWI and the
rights claimants would have in the tort system absent the bankruptcy.
2.2 CLAIMS LIQUIDATION PROCEDURES. PI Trust Claims shall be processed
based on their place in the FIFO Processing Queue to be established pursuant to
Section 5.1(a) below. The PI Trust shall take all reasonable steps to resolve PI
Trust Claims as efficiently and expeditiously as possible at each stage of
claims processing and arbitration. To this end, the PI Trust, in its sole
discretion, may conduct settlement discussions with claimants' representatives
of more than one claim at a time, provided that the claimants' respective
positions in the FIFO Processing Queue are maintained and each claim is
individually evaluated pursuant to the valuation factors set forth in Section
5.3(b)(2) below. The PI Trust shall also make every effort to resolve each year
at least that number of PI Trust Claims required to exhaust the Maximum Annual
Payment and the Maximum Available Payment for Category A and Category B claims,
as those terms are defined below.
The PI Trust shall liquidate all PI Trust Claims that meet the presumptive
Medical/Exposure Criteria of Disease Levels I - V, VII and VIII under the
Expedited Review Process described in Section 5.3(a) below. Claims involving
Disease Levels I - V, VII and VIII that do not meet the presumptive
Medical/Exposure Criteria for the relevant Disease Level may undergo the PI
Exhibit 1.24-1
Trust's Individual Review Process described in Section 5.3(b) below. In such a
case, notwithstanding that the claim does not meet the presumptive
Medical/Exposure Criteria for the relevant Disease Level, the PI Trust can offer
the claimant an amount up to the Scheduled Value of that Disease Level if the PI
Trust is satisfied that the claimant has presented a claim that would be
cognizable and valid in the tort system.
PI Trust Claims involving Disease Levels II - VIII may in addition or
alternatively seek to establish a liquidated value for the claim that is greater
than its Scheduled Value by electing the PI Trust's Individual Review Process.
However, the liquidated value of a PI Trust Claim that undergoes the Individual
Review Process for valuation purposes may be determined to be less than its
Scheduled Value, and in any event shall not exceed the Maximum Value for the
relevant Disease Level set forth in Section 5.3(b)(4) below, unless the claim
qualifies as an Extraordinary Claim as defined in Section 5.4(a) below, in which
case its liquidated value cannot exceed the Maximum Value specified in that
provision for such claims. Level VI (Lung Cancer 2) claims may be liquidated
only pursuant to the PI Trust's Individual Review Process.
Based upon AWI's claims settlement history in light of applicable tort law, and
current projections of present and future unliquidated claims, the Scheduled
Values and Maximum Values set forth in Section 5.3(b)(4) have been established
for each of the Disease Levels that are eligible for Individual Review of their
liquidated values, with the expectation that the combination of settlements at
the Scheduled Values and those resulting from the Individual Review Process will
result in the Average Values also set forth in that provision.
All unresolved disputes over a claimant's medical condition, exposure history
and/or the liquidated value of the claim shall be subject to binding or
non-binding arbitration as set forth in Section 5.10 below, at the election of
the claimant, under procedures that are provided in Attachment A hereto. PI
Trust Claims that are the subject of a dispute with the PI Trust that cannot be
resolved by non-binding arbitration may enter the tort system as provided in
Sections 5.11 and 7.6 below. However, if and when a claimant obtains a judgment
in the tort system, the judgment will be payable (subject to the Payment
Percentage, Maximum Available Payment, and Claims Payment Ratio provisions set
forth below) as provided in Section 7.7 below.
2.3 APPLICATION OF THE PAYMENT PERCENTAGE. After the liquidated value
of a PI Trust Claim other than a claim involving Other Asbestos Disease (Disease
Level I - Cash Discount Payment), as defined in Section 5.3(a)(3) below, is
determined pursuant to the procedures set forth herein for Expedited Review,
Individual Review, arbitration, or litigation in the tort system, the claimant
will ultimately receive a pro-rata share of that value based on a Payment
Percentage described in Section 4.2 below. The Initial Payment Percentage has
been set at twenty percent (20%), and shall apply to all PI Trust Voting Claims
accepted as valid by the PI Trust, unless adjusted by the PI Trust pursuant to
the consent of the PI Trust Advisory Committee ("TAC") and the Legal
Representative for Future Asbestos Claimants ("FUTURE CLAIMANTS'
REPRESENTATIVE") (who are described in Section 3.1 below) pursuant to Section
4.2 below. The term "PI VOTING TRUST CLAIMS" includes (i) Pre-Petition
Liquidated Claims as defined in Section 5.2(a) below; (ii) claims filed against
AWI in the tort system or actually submitted to AWI pursuant to an
administrative settlement agreement prior to the Petition Date of December 6,
2000; and (iii) all claims filed against another defendant in the tort system
prior to the date the Plan was filed with the Bankruptcy Court (November 1, 2002
(the "PLAN FILING DATE")), provided, however, that the holder of a claim
described in subsection (i), (ii) or (iii) above actually voted to accept or
reject the Plan pursuant to the voting procedures established by the Bankruptcy
Court, and provided further that the claim was subsequently filed with the PI
Trust pursuant to Section 6.1 below by the Initial Claims Filing Date defined in
Section 5.1(a) below. The Initial Payment Percentage has been calculated on the
assumption that the Average Values set forth in Section 5.3(b)(4) below will be
achieved with respect to existing present claims and projected future claims
involving Disease Levels II - VIII.
The Payment Percentage may be adjusted upwards or downwards from time to time by
the PI Trust with the consent of the TAC and the Future Claimants'
Representative to reflect then-current estimates of the PI Trust's assets and
its liabilities, as well as the then-estimated value of pending and future
claims. However, any adjustment to the Initial Payment Percentage shall be made
only pursuant to Section 4.2 below. If the Payment Percentage is increased over
time, claimants whose claims were liquidated and paid in prior periods under the
TDP will not receive additional payments, except as provided in Section 4.2
below relating to circumstances in which the PI Trust has received a substantial
recovery of insurance proceeds. Because there is uncertainty in the prediction
of both the number and severity of future claims, and the amount of the PI
Trust's assets, no guarantee can be made of any Payment Percentage of a PI Trust
Claim's liquidated value, other than of a PI Trust Voting Claim.
2.4 PI TRUST'S DETERMINATION OF THE MAXIMUM ANNUAL PAYMENT AND
MAXIMUM AVAILABLE PAYMENT. The PI Trust shall estimate or model the amount of
cash flow anticipated to be necessary over its entire life to ensure that funds
will be available to treat all present and future claimants as similarly as
possible. In each year, the PI Trust will be empowered to pay out all of the
interest earned during the year, together with a portion of its principal,
Exhibit 1.24-2
calculated so that the application of PI Trust funds over its life shall
correspond with the needs created by the anticipated flow of claims (the
"MAXIMUM ANNUAL PAYMENT"), taking into account the Payment Percentage provisions
set forth in Sections 2.3 above and 4.2 below. The PI Trust's distributions to
all claimants for that year shall not exceed the Maximum Annual Payment
determined for that year.
In distributing the Maximum Annual Payment, the PI Trust shall first allocate
the amount in question to outstanding Pre-Petition Liquidated Claims and to
liquidated PI Trust Claims involving Disease Level I (Cash Discount Payment), in
proportion to the aggregate value of each group of claims. The remaining portion
of the Maximum Annual Payment (the "MAXIMUM AVAILABLE PAYMENT"), if any, shall
then be allocated and used to satisfy all other liquidated PI Trust Claims,
subject to the Claims Payment Ratio set forth in Section 2.5 below. In the event
there are insufficient funds in any year to pay the total number of outstanding
Pre-Petition Liquidated Claims and/or previously liquidated Disease Level I
Claims, the available funds allocated to that group of claims shall be paid to
the maximum extent to claimants in the particular group based on their place in
their respective FIFO Payment Queue. Claims in either group for which there are
insufficient funds shall be carried over to the next year and placed at the head
of their FIFO Payment Queue.
2.5 CLAIMS PAYMENT RATIO. Based upon AWI's claims settlement history
and analysis of present and future claims, a Claims Payment Ratio has been
determined which, as of the Effective Date, has been set at 65% for Category A
claims, which consist of PI Trust Claims involving severe asbestosis and
malignancies (Disease Levels IV - VIII) that were unliquidated as of the
Petition Date, and at 35% for Category B claims, which are PI Trust Claims
involving non-malignant Asbestosis or Pleural Disease (Disease Levels II and
III) that were similarly unliquidated as of the Petition Date. The Claims
Payment Ratio shall not apply to any Pre-Petition Liquidated Claims or to any
claims for Other Asbestos Disease (Disease Level I - Cash Discount Payment). In
each year, after the determination of the Maximum Available Payment described in
Section 2.4 above, 65% of that amount will be available to pay Category A claims
and 35% will be available to pay Category B claims that have been liquidated
since the Petition Date.
In the event there are insufficient funds in any year to pay the liquidated
claims within either or both of the Categories, the available funds allocated to
the particular Category shall be paid to the maximum extent to claimants in that
Category based on their place in the FIFO Payment Queue described in Section
5.1(c) below, which will be based upon the date of claim liquidation. Claims for
which there are insufficient funds allocated to the relevant Category shall be
carried over to the next year where they will be placed at the head of the FIFO
Payment Queue. If there are excess funds in either or both Categories, because
there is an insufficient amount of liquidated claims to exhaust the respective
Maximum Available Payment amount for that Category, then the excess funds for
either or both Categories will be rolled over and remain dedicated to the
respective Category to which they were originally allocated.
The 65%/35% Claims Payment Ratio and its rollover provision shall apply to all
PI Trust Voting Claims as defined in Section 2.3 above, and shall not be amended
until the fifth anniversary of the Effective Date. Thereafter, both the Claims
Payment Ratio and its rollover provision shall be continued absent
circumstances, such as a significant change in law or medicine, necessitating
amendment to avoid a manifest injustice. However, the accumulation, rollover and
subsequent delay of claims resulting from the application of the Claims Payment
Ratio, shall not, in and of itself, constitute such circumstances. Nor may an
increase in the numbers of Category B claims beyond those predicted or expected
be considered as a factor in deciding whether to reduce the percentage allocated
to Category A claims.
In considering whether to make any amendments to the Claims Payment Ratio and/or
its rollover provisions, the Trustees shall consider the reasons for which the
Claims Payment Ratio and its rollover provisions were adopted, the settlement
history that gave rise to its calculation, and the foreseeability or lack of
foreseeability of the reasons why there would be any need to make an amendment.
In that regard, the Trustees should keep in mind the interplay between the
Payment Percentage and the Claims Payment Ratio as it affects the net cash
actually paid to claimants.
In any event, no amendment to the Claims Payment Ratio may be made without the
consent of the TAC and the Future Claimants' Representative pursuant to the
consent process set forth in Sections 5.7(b) and 6.6(b) of the PI Trust
Agreement. However, the Trustees, with the consent of the TAC and the Future
Claimants' Representative, may offer the option of a reduced Payment Percentage
to holders of claims in either Category A or Category B in return for prompter
payment (the "REDUCED PAYMENT OPTION").
Exhibit 1.24-3
2.6 INDIRECT PI TRUST CLAIMS. As set forth in Section 5.6 below, Indirect PI
Trust Claims (as such term is defined in the Plan) ("INDIRECT PI TRUST CLAIMS"),
if any, shall be subject to the same categorization, evaluation, and payment
provisions of this TDP as all other PI Trust Claims.
SECTION III
TDP ADMINISTRATION
3.1 PI TRUST ADVISORY COMMITTEE AND FUTURE CLAIMANTS' REPRESENTATIVE.
Pursuant to the Plan and the PI Trust Agreement, the PI Trust and this TDP shall
be administered by the Trustees in consultation with the TAC, which represents
the interests of holders of present PI Trust Claims, and the Future Claimants'
Representative, who represents the interests of holders of PI Trust Claims that
will be asserted in the future. The Trustees shall obtain the consent of the TAC
and the Future Claimants' Representative on any amendments to these Procedures
pursuant to Section 8.1 below, and on such other matters as are otherwise
required below and in Section 2.2(f) of the PI Trust Agreement. The Trustees
shall also consult with the TAC and the Future Claimants' Representative on such
matters as are provided below and in Section 2.2(e) of the PI Trust Agreement.
The initial members of the TAC and the initial Future Claimants' Representative
are identified in the PI Trust Agreement.
3.2 CONSENT AND CONSULTATION PROCEDURES. In those circumstances in
which consultation or consent is required, the Trustees will provide written
notice to the TAC and the Future Claimants' Representative of the specific
amendment or other action that is proposed. The Trustees will not implement such
amendment nor take such action unless and until the parties have engaged in the
Consultation Process described in Sections 5.7(a) and 6.6(a), or the Consent
Process described in Sections 5.7(b) and 6.6(b) of the PI Trust Agreement,
respectively.
SECTION IV
PAYMENT PERCENTAGE; PERIODIC ESTIMATES
4.1 UNCERTAINTY OF AWI'S PERSONAL INJURY ASBESTOS LIABILITIES. As
discussed above, there is inherent uncertainty regarding AWI's total
asbestos-related tort liabilities, as well as the total value of the assets
available to the PI Trust to pay PI Trust Claims. Consequently, there is
inherent uncertainty regarding the amounts that holders of PI Trust Claims will
receive. To seek to ensure substantially equivalent treatment of all present and
future PI Trust Claims, the Trustees must determine from time to time the
percentage of full liquidated value that holders of present and future PI Trust
Claims will be likely to receive, i.e, the "Payment Percentage" described in
Section 2.3 above and Section 4.2 below.
4.2 COMPUTATION OF PAYMENT PERCENTAGE. As provided in Section 2.3
above, the Initial Payment Percentage shall be twenty percent (20%), and shall
apply to all PI Trust Voting Claims as defined in Section 2.3 above, unless the
Trustees, with the consent of the TAC and the Future Claimants' Representative,
determine that the Initial Payment Percentage should be changed to assure that
the PI Trust will be in a financial position to pay holders of unliquidated
and/or unpaid PI Trust Voting Claims and present and future PI Trust Claims in
substantially the same manner.
In making any such adjustment, the Trustees, the TAC and the Future Claimants'
Representative shall take into account the fact that the holders of PI Trust
Voting Claims voted on the Plan relying on the findings of experts that the
Initial Payment Percentage represented a reasonably reliable estimate of the PI
Trust's total assets and liabilities over its life based on the best information
available at the time, and shall thus give due consideration to the expectations
of PI Trust Voting Claimants that the Initial Payment Percentage would be
applied to their PI Trust Claims.
Except with respect to PI Trust Voting Claims to which the Initial Payment
Percentage applies, the Payment Percentage shall be subject to change pursuant
to the terms of this TDP and the PI Trust Agreement if the Trustees determine
that an adjustment is required. No less frequently than once every three years,
commencing with the first day of January occurring after the Plan is
consummated, the Trustees shall reconsider the then applicable Payment
Percentage to assure that it is based on accurate, current information and may,
after such reconsideration, change the Payment Percentage if necessary with the
consent of the TAC and the Future Claimants' Representative. The Trustees shall
Exhibit 1.24-4
also reconsider the then applicable Payment Percentage at shorter intervals if
they deem such reconsideration to be appropriate or if requested to do so by the
TAC or the Future Claimants' Representative.
The Trustees must base their determination of the Payment Percentage on current
estimates of the number, types, and values of present and future PI Trust
Claims, the value of the assets then available to the PI Trust for their
payment, all anticipated administrative and legal expenses, and any other
material matters that are reasonably likely to affect the sufficiency of funds
to pay a comparable percentage of full value to all holders of PI Trust Claims.
When making these determinations, the Trustees shall exercise common sense and
flexibly evaluate all relevant factors. The Payment Percentage applicable to
Category A or Category B claims may not be reduced to alleviate delays in
payments of claims in the other Category; both Categories of claims shall
receive the same Payment Percentage, but the payment may be deferred as needed,
and a Reduced Payment Option may be instituted as described in Section 2.5
above.
The uncertainty surrounding the amount of the PI Trust's future assets is due in
significant part to the fact that the estimates of those assets do not take into
account the possibility that the PI Trust may receive substantial additional
funds from successful recoveries of insurance proceeds that have been assigned
to the PI Trust with respect to which the coverage is presently in dispute or
the solvency of the carrier is in doubt. If the PI Trust successfully resolves
an insurance coverage dispute or otherwise receives a substantial recovery of
insurance proceeds, the PI Trust will use those proceeds first to maintain the
Payment Percentage then in effect. If the insurance recovery exceeds the amount
estimated to be reasonably necessary to maintain the Payment Percentage then in
effect, the PI Trust, with the consent of the TAC and the Future Claimants'
Representative, shall adjust the Payment Percentage upward to reflect the
increase in available assets, and shall also make supplemental payments to
claimants who previously liquidated their claims against the PI Trust and
received payments based on a lower Payment Percentage. The amount of any such
supplemental payment shall be the liquidated value of the claim in question
times the newly adjusted Payment Percentage, less all amounts previously paid
the claimant with respect to the claim.
4.3 APPLICABILITY OF THE PAYMENT PERCENTAGE. No holder of a PI Trust
Voting Claim, other than a PI Trust Claim for Other Asbestos Disease (Disease
Level I - Cash Discount Payment) as defined in Section 5.3(a)(3) below shall
receive a payment that exceeds the Initial Payment Percentage times the
liquidated value of the claim. Except as otherwise provided in Section 5.1(c)
below for PI Trust Claims involving deceased or incompetent claimants for which
approval of the PI Trust's offer by a court or through a probate process is
required, no holder of any other PI Trust Claim, other than a PI Trust Claim for
Other Asbestos Disease (Disease Level I - Cash Discount Payment), shall receive
a payment that exceeds the liquidated value of the claim times the Payment
Percentage in effect at the time of payment. PI Trust Claims involving Other
Asbestos Disease (Disease Level I - Cash Discount Payment) shall not be subject
to the Payment Percentage, but shall instead be paid the full amount of their
Scheduled Value as set forth in Section 5.3(a)(3) below.
If a redetermination of the Payment Percentage has been proposed in writing by
the Trustees to the TAC and the Future Claimants' Representative but has not yet
been adopted, the claimant shall receive the lower of the current Payment
Percentage or the proposed Payment Percentage. However, if the proposed Payment
Percentage was the lower amount but was not subsequently adopted, the claimant
shall thereafter receive the difference between the lower proposed amount and
the higher current amount. Conversely, if the proposed Payment Percentage was
the higher amount and was subsequently adopted, the claimant shall thereafter
receive the difference between the lower current amount and the higher adopted
amount.
SECTION V
RESOLUTION OF PI TRUST CLAIMS.
5.1 ORDERING, PROCESSING AND PAYMENT OF CLAIMS.
5.1(A) ORDERING OF CLAIMS.
5.1(A)(1) ESTABLISHMENT OF THE FIFO PROCESSING QUEUE. The PI Trust
will order claims that are sufficiently complete to be reviewed for processing
purposes on a FIFO basis except as otherwise provided herein (the "FIFO
PROCESSING QUEUE"). For all claims filed on or before the date six months after
the Effective Date (the "INITIAL CLAIMS FILING Date"), a claimant's position in
the FIFO Processing Queue shall be determined as of the earlier of (i) the date
prior to the Petition Date (if any) that the specific claim was either filed
against AWI in the tort system or was actually submitted to AWI pursuant to an
administrative settlement agreement; (ii) the date before the Petition Date that
Exhibit 1.24-5
a claim was filed against another defendant in the tort system if at the time
the claim was subject to a tolling agreement with AWI; (iii) the date after the
Petition Date (if any) but before the Effective Date that the claim was filed
against another defendant in the tort system; (iv) the date after the Petition
Date (if any) but before the Effective Date that a proof of claim was filed
against AWI in AWI's Chapter 11 case; (v) the date a ballot was submitted in
AWI's Chapter 11 case for purposes of voting on the Plan in accordance with the
voting procedures adopted by the Bankruptcy Court; or (vi) the date after the
Effective Date but on or before the Initial Claims Filing Date that the claim
was filed with the PI Trust.
Following the Initial Claims Filing Date, the claimant's position in the FIFO
Processing Queue shall be determined by the date the claim was filed with the PI
Trust. If any claims are filed on the same date, the claimant's position in the
FIFO Processing Queue shall be determined by the date of the diagnosis of the
claimant's asbestos-related disease. If any claims are filed and diagnosed on
the same date, the claimant's position in the FIFO Processing Queue shall be
determined by the date of the claimant's birth, with older claimants given
priority over younger claimants.
5.1(A)(2) EFFECT OF STATUTES OF LIMITATIONS AND REPOSE. To be
eligible for a place in the FIFO Processing Queue, a claim must meet either (i)
for claims first filed in the tort system against AWI prior to the Petition
Date, the applicable federal, state and foreign statute of limitation and repose
that was in effect at the time of the filing of the claim in the tort system, or
(ii) for claims that were not filed against AWI in the tort system prior to the
Petition Date, the applicable statute of limitation and repose that was in
effect at the time of the filing with the PI Trust. However, the running of the
relevant statute of limitation shall be tolled as of the earliest of (A) the
actual filing of the claim against AWI prior to the Petition Date, whether in
the tort system or by submission of the claim to AWI pursuant to an
administrative settlement agreement; (B) the filing of the claim against another
defendant in the tort system prior to the Petition Date if the claim was tolled
against AWI at the time by an agreement or otherwise; (C) the filing of a claim
after the Petition Date but prior to the Effective Date against another
defendant in the tort system; (D) the date after the Petition Date (if any) but
before the Effective Date that a proof of claim was filed against AWI in AWI's
Chapter 11 case; (E) the date a ballot was submitted in AWI's Chapter 11 case
for purposes of voting on the Plan in accordance with the voting procedures
adopted by the Bankruptcy Court; or (F) the filing of a proof of claim with the
requisite supporting documentation with the PI Trust after the Effective Date.
If a PI Trust Claim meets any of the tolling provisions described in the
preceding sentence and the claim was not barred by the applicable statute of
limitation at the time of the tolling event, it will be treated as timely filed
if it is actually filed with the PI Trust within three (3) years after the
Effective Date. In addition, any claims that were first diagnosed after the
Petition Date, irrespective of the application of any relevant statute of
limitation or repose, may be filed with the PI Trust within three (3) years
after the date of diagnosis or within three (3) years after the Effective Date,
whichever occurs later. However, the processing of any PI Trust Claim by the PI
Trust may be deferred at the election of the claimant pursuant to Section 6.3
below.
5.1(B) PROCESSING OF CLAIMS. As a general practice, the PI Trust will
review its claims files on a regular basis and notify all claimants whose claims
are likely to come up in the FIFO Processing Queue in the near future. However,
claims that were not filed (i) against AWI in the tort system or actually
submitted to AWI pursuant to an administrative settlement agreement prior to the
Petition Date, or (ii) against another defendant in the tort system prior to the
Plan Filing Date, shall not be processed until after the Initial Claims Filing
Date.
5.1(C) PAYMENT OF CLAIMS. PI Trust Claims that have been liquidated
by the Expedited Review Process as provided in Section 5.3(a) below, by the
Individual Review Process as provided in Section 5.3(b) below, by arbitration as
provided in Section 5.10 below, or by litigation in the tort system provided in
Section 5.11 below, shall be paid in FIFO order based on the date their
liquidation became final (the "FIFO PAYMENT QUEUE"), all such payments being
subject to the applicable Payment Percentage, the Maximum Available Payment, and
the Claims Payment Ratio, except as otherwise provided herein.
Where the claimant is deceased or incompetent, and the settlement and payment of
his or her claim must be approved by a court of competent jurisdiction or
through a probate process prior to acceptance of the claim by the claimant's
representative, an offer made by the PI Trust on the claim shall remain open so
long as proceedings before that court or in that probate process remain pending,
provided that the PI Trust has been furnished with evidence that the settlement
offer has been submitted to such court or probate process for approval. If the
offer is ultimately approved by the court or through the probate process and
accepted by the claimant's representative, the PI Trust shall pay the claim in
the amount so offered, multiplied by the Payment Percentage in effect at the
time the offer was first made.
Exhibit 1.24-6
If any claims are liquidated on the same date, the claimant's position in the
FIFO Payment Queue shall be determined by the date of the diagnosis of the
claimant's asbestos-related disease. If any claims are liquidated on the same
date and the respective claimants' asbestos-related diseases were diagnosed on
the same date, the position of those claimants in the FIFO Payment Queue shall
be determined by the PI Trust based on the dates of the claimants' birth, with
older claimants given priority over younger claimants.
5.2 RESOLUTION OF PRE-PETITION LIQUIDATED PI TRUST CLAIMS.
5.2(A) PROCESSING AND PAYMENT. As soon as practicable after the
Effective Date, the PI Trust shall pay, upon submission by the claimant of the
applicable PI Trust proof of claim form (included in Attachment B) together with
all documentation required thereunder, all PI Trust Claims that were liquidated
by (i) a binding settlement agreement for the particular claim entered into
prior to the Petition Date that is judicially enforceable by the claimant, (ii)
a jury verdict or non-final judgment in the tort system obtained prior to the
Petition Date, or (iii) by a judgment that became final and non-appealable prior
to the Petition Date (collectively "PRE-PETITION LIQUIDATED CLAIMS").
The liquidated value of a Pre-Petition Liquidated Claim shall be AWI's share of
the unpaid portion of the amount agreed to in the binding settlement agreement,
the unpaid portion of the amount awarded by the jury verdict or non-final
judgment, or the unpaid portion of the amount of the final judgment, as the case
may be, plus interest, if any, that has accrued on that amount in accordance
with the terms of the agreement, if any, or under applicable state law for
settlements or judgments as of the Petition Date; however, pursuant to Section
7.4 below, the liquidated value of a Pre-Petition Liquidated Claim shall not
include any punitive or exemplary damages. In the absence of a final order of
the Bankruptcy Court determining whether a settlement agreement is binding and
judicially enforceable, a dispute between the claimant and the PI Trust over
this issue shall be resolved pursuant to the same procedures in this TDP that
are provided for resolving the validity and/or liquidated value of a PI Trust
Claim (i.e., arbitration and litigation in the tort system as set forth in
Sections 5.10 and 5.11 below).
Pre-Petition Liquidated Claims shall be processed and paid in accordance with
their order in a separate FIFO queue to be established by the PI Trust based on
the date the PI Trust received a completed proof of claim form with all required
documentation for the particular claim; provided, however, the amounts payable
with respect to such claims shall not be subject to or taken into account in
consideration of the Claims Payment Ratio, but shall be subject to the Maximum
Annual Payment and Payment Percentage provisions set forth above. If any
Pre-Petition Liquidated Claims were filed on the same date, the claimants'
position in the FIFO queue for such claims shall be determined by the date on
which the claim was liquidated. If any Pre-Petition Liquidated Claims were both
filed and liquidated on the same dates, the position of those claimants in the
FIFO queue shall be determined by the dates of the claimants' birth, with older
claimants given priority over younger claimants.
5.2(B) MARSHALLING OF SECURITY. Holders of Pre-Petition Liquidated
Claims that are secured by letters of credit, appeal bonds, or other security or
sureties shall first exhaust their rights against any applicable security or
surety before making a claim against the PI Trust. Only in the event that such
security or surety is insufficient to pay the Pre-Petition Liquidated Claim in
full shall the deficiency be processed and paid as a Pre-Petition Liquidated
Claim.
5.3 RESOLUTION OF UNLIQUIDATED PI TRUST CLAIMS. Within six months
after the establishment of the PI Trust, the Trustees with the consent of the
TAC and the Future Claimants' Representative shall adopt procedures for
reviewing and liquidating all unliquidated PI Trust Claims, which shall include
deadlines for processing such claims. Such procedures shall also require
claimants seeking resolution of unliquidated PI Trust claims to first file a
proof of claim form, together with the required supporting documentation, in
accordance with the provisions of Sections 6.1 and 6.2 below. It is anticipated
that the PI Trust shall provide an initial response to the claimant within six
months of receiving the proof of claim form.
The proof of claim form shall require the claimant to assert his or her claim
for the highest Disease Level for which the claim qualifies at the time of
filing. Irrespective of the Disease Level alleged on the proof of claim form,
all claims shall be deemed to be a claim for the highest Disease Level for which
the claim qualifies at the time of filing, and all lower Disease Levels for
which the claim may also qualify at the time of filing or in the future shall be
treated as subsumed into the higher Disease Level for both processing and
payment purposes.
Upon filing of a valid proof of claim form with the required supporting
documentation, the claimant shall be placed in the FIFO Processing Queue in
accordance with the ordering criteria described in Section 5.1(a) above, and
shall advise the PI Trust whether the claim should be liquidated under the PI
Trust's Expedited Review Process described in Section 5.3(a) below or, in
Exhibit 1.24-7
certain circumstances, the PI Trust's Individual Review Process described in
Section 5.3(b) below.
5.3(A) EXPEDITED REVIEW PROCESS.
5.3(A)(1) IN GENERAL. The PI Trust's Expedited Review Process is
designed primarily to provide an expeditious, efficient and inexpensive method
for liquidating all claims (except those involving Lung Cancer 2 - Disease Level
VI) where the claim can easily be verified by the PI Trust as meeting the
presumptive Medical/Exposure Criteria for the relevant Disease Level. Expedited
Review thus provides claimants with a substantially less burdensome process for
pursuing PI Trust Claims than does the Individual Review Process described in
Section 5.3(b) below. Expedited Review is also intended to provide qualifying
claimants a fixed and certain claims payment.
Thus, claims that undergo Expedited Review and meet the presumptive
Medical/Exposure Criteria for the relevant Disease Level shall be paid the
Scheduled Value for such Disease Level set forth in Section 5.3(a)(3) below.
However, except for claims involving Other Asbestos Disease (Disease Level I),
all claims liquidated by Expedited Review shall be subject to the applicable
Payment Percentage, the Maximum Available Payment, and the Claims Payment Ratio
limitations set forth above. Claimants holding claims that cannot be liquidated
by Expedited Review because they do not meet the presumptive Medical/Exposure
Criteria for the relevant Disease Level may elect the PI Trust's Individual
Review Process set forth in Section 5.3(b) below.
5.3(A)(2) CLAIMS PROCESSING UNDER EXPEDITED REVIEW. All claimants
seeking liquidation of their claims pursuant to Expedited Review shall file the
PI Trust's proof of claim form provided in Attachment B hereto. As a proof of
claim form is reached in the FIFO Processing Queue, the PI Trust shall determine
whether the claim described therein meets the Medical/Exposure Criteria for one
of the seven Disease Levels eligible for Expedited Review, and shall advise the
claimant of its determination. If a Disease Level is determined, the PI Trust
shall tender to the claimant an offer of payment of the Scheduled Value (as
adjusted by the applicable Payment Percentage) for the relevant Disease Level
multiplied by the applicable Payment Percentage, together with a form of release
approved by the PI Trust. If the claimant accepts the Scheduled Value and
returns the release properly executed, the claim shall be placed in the FIFO
Payment Queue, following which the PI Trust shall disburse payment subject to
the limitations of the Maximum Available Payment and Claims Payment Ratio, if
any.
5.3(A)(3) DISEASE LEVELS, SCHEDULED VALUES AND MEDICAL/EXPOSURE
CRITERIA. The eight Disease Levels covered by this TDP, together with the
Medical/Exposure Criteria for each and the Scheduled Values for the seven
Disease Levels eligible for Expedited Review, are set forth below. These Disease
Levels, Scheduled Values, and Medical/Exposure Criteria shall apply to all PI
Trust Voting Claims filed with the PI Trust on or before the Initial Claims
Filing Date provided in Section 5.1 above. Thereafter, with the consent of the
TAC and the Future Claimants' Representative, the Trustees may add to, change or
eliminate Disease Levels, Scheduled Values, or Medical/Exposure Criteria;
develop subcategories of Disease Levels, Scheduled Values or Medical/Exposure
Criteria; or determine that a novel or exceptional asbestos personal injury
claim is compensable even though it does not meet the Medical/Exposure Criteria
for any of the then current Disease Levels.
DISEASE LEVEL SCHEDULED VALUE MEDICAL/EXPOSURE CRITERIA
- ------------- --------------- -------------------------
Mesothelioma (Level VIII) $110,000 (1) Diagnosis (1) of mesothelioma;
and (2) credible evidence of AWI
Exposure (as defined in Section
5.7(b)(3) below).
Lung Cancer 1 (Level VII) $ 42,500 (1) Diagnosis of a primary lung
cancer plus evidence of an
underlying Bilateral
Asbestos-Related Nonmalignant
- -------------------------------
(1) The requirements for a diagnosis of an asbestos-related disease that may be
compensated under the provisions of this TDP are set forth in Section 5.7 below.
Exhibit 1.24-8
Disease (2), (2) six months AWI
Exposure prior to December 31, 1982,
(3) Significant Occupational
Exposure to asbestos (as defined in
Section 5.7(b)(2) below), and (4)
supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the
lung cancer in question.
Lung Cancer 2 (Level VI) None (1) Diagnosis of a primary lung
cancer; (2) AWI Exposure prior to
December 31, 1982, and (3)
supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the
lung cancer in question.
Lung Cancer 2 (Level VI) claims are
claims that do not meet the more
stringent medical and/or exposure
requirements of Lung Cancer (Level
VII) claims. All claims in this
Disease Level will be individually
evaluated. The estimated likely
average of the individual evaluation
awards for this category is $15,000,
with such awards capped at $50,000,
unless the claim qualifies for
Extraordinary Claim treatment (as
described in Section 5.4(a) below).
Level VI claims that show no
evidence of either an underlying
Bilateral Asbestos-Related
Non-malignant Disease or Significant
Occupational Exposure may be
individually evaluated, although it
is not expected that such claims
will be treated as having any
significant value, especially if the
claimant is also a Smoker.3 In any
event, no presumption of validity
will be available for any claims in
this category.
- ----------------------------
(2) Evidence of "Bilateral Asbestos-Related Nonmalignant Disease" for purposes
of meeting the criteria for establishing Disease Levels I, II, V, and VII, means
a report submitted by a qualified physician stating that the claimant has or had
either (i) a chest X-ray read by a qualified B reader of 1/0 or higher on the
ILO scale, or (ii) a chest X-ray read by a qualified B reader showing bilateral
pleural plaques, bilateral pleural thickening, or bilateral pleural
calcification, or (iii) a CT scan read by a qualified physician showing
bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural
calcification. Solely for claims filed against AWI or another asbestos defendant
in the tort system prior to the Petition Date, if an ILO reading is not
available, either (x) a chest X-ray read by a qualified B reader or (y) a CT
scan read by a qualified physician, showing bilateral interstitial fibrosis,
bilateral interstitial markings, bilateral pleural plaques, bilateral pleural
thickening, or bilateral pleural calcification consistent with, or compatible
with, a diagnosis of asbestos-related disease shall be evidence of a Bilateral
Asbestos-Related Nonmalignant Disease for purposes of meeting the presumptive
medical requirements of Disease Levels I, II, V and VII.
(3) There is no distinction between Non-Smokers and Smokers for either Lung
Cancer (Level VII) or Lung Cancer (Level VI), although a claimant who meets the
more stringent requirements of Lung Cancer (Level VII) (evidence of an
underlying Bilateral Asbestos-Related Nonmalignant Disease plus Significant
Occupational Exposure), and who is also a Non-Smoker, may wish to have his or
her claim individually evaluated by the PI Trust. In such a case, absent
circumstances that would otherwise reduce the value of the claim, it is
anticipated that the liquidated value of the claim might well exceed the $42,500
Scheduled Value for Lung Cancer (Level VII) shown above. "Non-Smoker" means a
claimant who either (a) never smoked or (b) has not smoked during any portion of
the twelve (12) years immediately prior to the diagnosis of the lung cancer.
Exhibit 1.24-9
Other Cancer (Level V) $ 21,500 (1) Diagnosis of a primary
colo-rectal, laryngeal, esophageal,
pharyngeal, or stomach cancer, plus
evidence of an underlying Bilateral
Asbestos-Related Nonmalignant
Disease, (2) six months AWI Exposure
prior to December 31, 1982, (3)
Significant Occupational Exposure to
asbestos, and (4) supporting medical
documentation establishing asbestos
exposure as a contributing factor in
causing the other cancer in
question.
Severe Asbestosis (Level IV) $ 42,500 (1) Diagnosis of asbestosis with ILO
of 2/1 or greater, or asbestosis
determined by pathological evidence
of asbestos (4), plus (a)TLC less
than 65%, or (b) FVC less than 65%
and FEV1/FVC ratio greater than 65%,
(2) six months AWI Exposure prior to
December 31, 1982, (3) Significant
Occupational Exposure to asbestos,
and (4) supporting medical
documentation establishing asbestos
exposure as a contributing factor in
causing the pulmonary disease in
question.
Asbestosis/
Pleural Disease (Level III) $ 9,700 (1) Diagnosis of asbestosis with ILO
of 1/0 or greater or asbestosis
determined by pathology, or
bilateral pleural disease of B2 or
greater, plus (a) TLC less than 80%,
or (b) FVC less than 80% and
FEV1/FVC ratio greater than or equal
to 65%, and (2) six months AWI
Exposure prior to December 31, 1982,
(3) Significant Occupational
Exposure to asbestos, and (4)
supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the
pulmonary disease in question.
Asbestosis/
Pleural Disease (Level II) $ 3,700 (1) Diagnosis of a Bilateral
Asbestos-Related Nonmalignant
Disease, and (2) six months AWI
Exposure prior to December 31, 1982,
and (3) five years cumulative
occupational exposure to asbestos.
Other Asbestos Disease (Level I -
Cash Discount Payment) $ 400 (1) Diagnosis of a Bilateral
Asbestos-Related Nonmalignant
Disease or an asbestos-related
malignancy other than mesothelioma,
and (2) AWI Exposure prior to
December 31, 1982.
5.3(B) INDIVIDUAL REVIEW PROCESS
5.3(B)(1) IN GENERAL.
5.3(B)(1)(A) REVIEW OF MEDICAL/EXPOSURE CRITERIA. The PI Trust's
Individual Review Process provides a claimant with an opportunity for individual
consideration and evaluation of a PI Trust Claim that fails to meet the
presumptive Medical/Exposure Criteria for Disease Levels I - V, and VII-VIII. In
such a case, the PI Trust shall either deny the claim, or, if the PI Trust is
satisfied that the claimant has presented a claim that would be cognizable and
- ----------------------------------
(4) Proof of asbestosis may be based on the pathological grading system for
asbestosis described in the Special Issue of the Archives of Pathology and
Laboratory Medicine, "Asbestos-associated Diseases," Vol. 106, No. 11, App. 3
(October 8, 1982).
Exhibit 1.24-10
valid in the tort system, the PI Trust can offer the claimant a liquidated value
amount up to the Scheduled Value for that Disease Level, unless the claim
qualifies as an Extraordinary Claim as defined in Section 5.4(a) below, in which
case its liquidated value cannot exceed the Maximum Value for such a claim.
5.3(B)(1)(B) REVIEW OF LIQUIDATED VALUE. Claimants holding claims
involving Disease Levels II - VIII shall also be eligible to seek Individual
Review of the liquidated value of their claims, as well as of their
medical/exposure evidence. The Individual Review Process is intended to result
in payments equal to the full liquidated value for each claim multiplied by the
Payment Percentage; however, the liquidated value of any PI Trust Claim that
undergoes Individual Review may be determined to be less than the Scheduled
Value the claimant would have received under Expedited Review. Moreover, the
liquidated value for a claim involving Disease Levels II - VIII shall not exceed
the Maximum Value for the relevant Disease Level set forth in Section 5.3(b)(4)
below, unless the claim meets the requirements of an Extraordinary Claim
described in Section 5.4(a) below, in which case its liquidated value cannot
exceed the Maximum Value set forth in that provision for such claims. Because
the detailed examination and valuation process pursuant to Individual Review
requires substantial time and effort, claimants electing to undergo the
Individual Review Process will necessarily be paid the liquidated value of their
PI Trust Claims later than would have been the case had the claimant elected the
Expedited Review Process.
5.3(B)(2) VALUATION FACTORS TO BE CONSIDERED IN INDIVIDUAL REVIEW.
The PI Trust shall liquidate the value of each PI Trust Claim that undergoes
Individual Review based on the historic liquidated values of other similarly
situated claims in the tort system for the same Disease Level. The PI Trust will
thus take into consideration the factors that affect the severity of damages and
values within the tort system including, but not limited to (i) the degree to
which the characteristics of a claim differ from the presumptive
Medical/Exposure Criteria for the Disease Level in question; (ii) factors such
as the claimant's age, disability, employment status, disruption of household,
family or recreational activities, dependencies, special damages, and pain and
suffering; (iii) evidence that the claimant's damages were (or were not) caused
by asbestos exposure, including exposure to an asbestos-containing product for
which AWI has legal responsibility prior to December 31, 1982 (for example,
alternative causes, and the strength of documentation of injuries); (iv) the
industry of exposure; and (v) settlements, verdicts, and the claimant's and
other law firms' experience in the Claimant's Jurisdiction for similarly
situated claims.
For these purposes, the "CLAIMANT'S JURISDICTION" is the jurisdiction in which
the claim was filed (if at all) against AWI in the tort system prior to the
Petition Date. If the claim was not filed against AWI in the tort system prior
to the Petition Date, the claimant may elect as the Claimant's Jurisdiction
either (i) the jurisdiction in which the claimant resides at the time of
diagnosis or when the claim is filed with the PI Trust; or (ii) a jurisdiction
in which the claimant experienced exposure to an asbestos-containing product for
which AWI has legal responsibility.
5.3(B)(3) PROCESSING AND PAYMENT LIMITATIONS FOR CLAIMS INVOLVING
DISEASE LEVELS III AND II. The PI Trust shall administer Individual Review for
Disease Levels III and II so that Individual Review does not reduce payments to
claimants electing the Scheduled Value for such PI Trust Claims under Expedited
Review. As one means of implementing this requirement, the following shall apply
for Disease Levels III and II claims:
5.3(B)(3)(A) DISEASE LEVEL III CLAIMS. No more than 8 percent of
Disease Level III claims paid in any year shall be PI Trust Claims allowed under
Individual Review, and the total payments to such Disease Level III claims
allowed under Individual Review shall be no more than 12 percent of payments to
all Disease Level III claimants during any year.
5.3(B)(3)(B) DISEASE LEVEL II CLAIMS. No more than 15 percent of
Disease Level II claims paid in any year shall be PI Trust Claims allowed under
Individual Review, and the total payments to such Disease Level II claims
allowed under Individual Review shall be no more than 25 percent of payments to
all Disease Level II claimants during any year.
5.3(B)(4) SCHEDULED, AVERAGE AND MAXIMUM VALUES. The Scheduled,
Average and Maximum Values for the Disease Levels compensable under this TDP are
the following:
Exhibit 1.24-11
SCHEDULED DISEASE SCHEDULED VALUE AVERAGE VALUE MAXIMUM VALUE
- ----------------- --------------- ------------- -------------
Mesothelioma (Level VIII) $110,000 $130,500 $400,000
Lung Cancer1 (Level VII) $ 42,500 $ 43,800 $150,000
Lung Cancer 2 (Level VI) None $ 15,000 $ 50,000
Other Cancer (Level V) $ 21,500 $ 21,800 $ 75,000
Severe Asbestosis (Level IV) $ 42,500 $ 44,300 $140,000
Asbestosis/Pleural Disease (Level III) $ 9,700 $ 10,100 $ 20,000
Asbestosis/Pleural Disease (Level II) $ 3,700 $ 4,200 $ 10,000
Other Asbestos Disease
Cash Discount Payment (Level I) $ 400 None None
These Scheduled Values, Average Values and Maximum Values shall apply to all PI
Trust Voting Claims filed with the PI Trust on or before the Initial Claims
Filing Date as provided in Section 5.1 above. Thereafter, the PI Trust, with the
consent of the TAC and the Future Claimants' Representative pursuant to Sections
5.7(b) and 6.6(b) of the PI Trust Agreement, may change these valuation amounts
for good cause and consistent with other restrictions on the amendment power.
5.4 CATEGORIZING CLAIMS AS EXTRAORDINARY AND/OR EXIGENT HARDSHIP
5.4(A) EXTRAORDINARY CLAIMS. "EXTRAORDINARY CLAIM" means a PI Trust
Claim that otherwise satisfies the Medical Criteria for Disease Levels II -
VIII, and that is held by a claimant whose exposure to asbestos (i) occurred
predominately as the result of working in a manufacturing facility of AWI during
a period in which AWI was manufacturing asbestos-containing products at that
facility, or (ii) was at least 75% the result of exposure to asbestos-containing
product for which AWI has legal responsibility, and there is little likelihood
of a substantial recovery elsewhere. All such Extraordinary Claims shall be
presented for Individual Review and, if valid, shall be entitled to an award of
up to a Maximum Value of five (5) times the Scheduled Value for claims
qualifying for Disease Levels II - V, VII and VIII, and five (5) times the
Average Value for claims in Disease Level VI, multiplied by the applicable
Payment Percentage.
Any dispute as to Extraordinary Claim status shall be submitted to a special
Extraordinary Claims Panel established by the PI Trust with the consent of the
TAC and the Future Claimants' Representative. All decisions of the Extraordinary
Claims Panel shall be final and not subject to any further administrative or
judicial review. An Extraordinary Claim, following its liquidation, shall be
placed in the PI Trust's FIFO Queue ahead of all other PI Trust Claims except
Exigent Hardship Claims, which shall be first in said Queue, based on its date
of liquidation and shall be subject to the Maximum Available Payment and Claims
Payment Ratio described above.
5.4(B) EXIGENT HARDSHIP CLAIMS. At any time the PI Trust may
liquidate and pay certain PI Trust Claims that qualify as Exigent Hardship
Claims as defined below. Such claims may be considered separately no matter what
the order of processing otherwise would have been under this TDP. An Exigent
Hardship Claim, following its liquidation, shall be placed first in the FIFO
Payment Queue ahead of all other liquidated PI Trust Claims, and shall be
subject to the Maximum Available Payment and Claims Payment Ratio described
above. A PI Trust Claim qualifies for payment as an Exigent Hardship Claim if
the claim meets the Medical/Exposure Criteria for Severe Asbestosis (Disease
Level IV) or an asbestos-related malignancy (Disease Levels V-VIII), and the PI
Trust, in its sole discretion, determines (i) that the claimant needs financial
Exhibit 1.24-12
assistance on an immediate basis based on the claimant's expenses and all
sources of available income, and (ii) that there is a causal connection between
the claimant's dire financial condition and the claimant's asbestos-related
disease.
5.5 SECONDARY EXPOSURE CLAIMS. If a claimant alleges an
asbestos-related disease resulting solely from exposure to an occupationally
exposed person, such as a family member, the claimant may seek Individual Review
of his or her claim pursuant to Section 5.3(b) above. In such a case, the
claimant must establish that the occupationally exposed person would have met
the exposure requirements under this TDP that would have been applicable had
that person filed a direct claim against the PI Trust. In addition, the claimant
with secondary exposure must establish that he or she is suffering from one of
the eight Disease Levels described in Section 5.3(a)(3) above, that his or her
own exposure to the occupationally exposed person occurred within the same time
frame as the occupationally exposed person was exposed to asbestos products
produced by AWI, and that such secondary exposure was a cause of the claimed
disease. The proof of claim form included in Attachment B hereto contains an
additional section for Secondary Exposure Claims. All other liquidation and
payment rights and limitations under this TDP shall be applicable to such
claims.
5.6 INDIRECT PI TRUST CLAIMS. An Indirect PI Trust Claim may not be
processed or paid by the PI Trust unless (a) such claim satisfied the
requirements of the Bar Date established by the Bankruptcy Court for such
claims, if applicable, and is not otherwise discharged by Section 502(e) of the
Code, and (b) the holder of such claim (the "INDIRECT CLAIMANT") establishes to
the satisfaction of the Trustees that (i) the Indirect Claimant has paid in full
the liability and obligations of the PI Trust to the individual claimant to whom
the PI Trust would otherwise have had a liability or obligation under these
Procedures (the "DIRECT CLAIMANT"), (ii) the Direct Claimant and the Indirect
Claimant have forever released the PI Trust from all liability to the Direct
Claimant, and (iii) the claim is not otherwise barred by a statute of limitation
or repose or by other applicable law. In no event shall any Indirect Claimant
have any rights against the PI Trust superior to the rights of the related
Direct Claimant against the PI Trust, including any rights with respect to the
timing, amount or manner of payment. In addition, no Indirect Claim may be
liquidated and paid in an amount that exceeds what the Indirect Claimant has
actually paid the related Direct Claimant.
The PI Trust shall not pay any Indirect Claimant unless and until the Indirect
Claimant's aggregate liability for the Direct Claimant's claim has been fixed,
liquidated and paid fully by the Indirect Claimant by settlement (with an
appropriate full release in favor of the PI Trust) or a Final Order (as defined
in the Plan) provided that such claim is valid under the applicable state law.
In any case where the Indirect Claimant has satisfied the claim of a Direct
Claimant against the PI Trust under applicable law by way of a settlement, the
Indirect Claimant shall obtain for the benefit of the PI Trust a release in form
and substance satisfactory to the Trustees. The Trustees may develop and approve
a separate proof of claim form for such Indirect PI Trust Claims.
Indirect PI Trust Claims that have not been disallowed, discharged, or otherwise
resolved by prior order of the Bankruptcy Court shall be processed in accordance
with procedures to be developed and implemented by the Trustees, which
procedures (a) shall determine the validity, allowability and enforceability of
such claims; and (b) shall otherwise provide the same liquidation and payment
procedures and rights to the holders of such claims as the PI Trust would have
afforded the holders of the underlying valid PI Trust Claims.
5.7 EVIDENTIARY REQUIREMENTS
5.7(A) MEDICAL EVIDENCE.
5.7(A)(1) IN GENERAL. All diagnoses of a Disease Level shall be
accompanied by either (i) a statement by the physician providing the diagnosis
that at least 10 years have elapsed between the date of first exposure to
asbestos or asbestos-containing products and the diagnosis, or (ii) a history of
the claimant's exposure sufficient to establish a 10-year latency period. A
finding by a physician after the Petition Date that a claimant's disease is
"consistent with" or "compatible with" asbestosis will not alone be treated by
the PI Trust as a diagnosis.
5.7(A)(1)(A). DISEASE LEVELS I-IV. Except for claims filed against
AWI or another asbestos defendant in the tort system prior to the Petition Date,
all diagnoses of a non-malignant asbestos-related disease (Disease Levels I-IV)
shall be based (i) in the case of a claimant who was living at the time the
claim was filed, upon (A) a physical examination of the claimant by the
physician providing the diagnosis of the asbestos-related disease; (B) either an
X-ray reading by a certified B-reader showing bilateral pleural disease or
Exhibit 1.24-13
bilateral interstitial fibrosis or a CT scan read by a qualified physician
showing bilateral pleural disease or bilateral interstitial fibrosis, and (C)
pulmonary function testing (5) if the claim involves Asbestosis/Pleural Disease
(Level III) or Severe Asbestosis (Level IV)(6), and (ii) in the case of a
claimant who was deceased at the time the claim was filed, upon (A) a physical
examination of the claimant by the physician providing the diagnosis of the
asbestos-related disease, or (B) pathological evidence of the non-malignant
asbestos-related disease, or (C) either an X-ray reading by a certified B reader
showing bilateral pleural disease or bilateral interstitial fibrosis or a CT
scan read by a qualified physician showing bilateral pleural disease or
bilateral interstitial fibrosis.
5.7(A)(1)(B). DISEASE LEVELS V-VIII. Except for claims filed against
AWI or another asbestos defendant in the tort system prior to the Petition Date,
diagnoses of an asbestos-related malignancy (Disease Levels V - VIII) shall be
based upon either (i) a physical examination of the claimant by the physician
providing the diagnosis of the malignant asbestos-related disease, or (ii) on a
diagnosis of such a malignant Disease Level by a board-certified pathologist.
5.7(A)(1)(C). TREATMENT OF CERTAIN PRE-PETITION CLAIMS. If the holder
of a PI Trust Claim has available the medical evidence described in Sections
5.7(a)(1)(A) and 5.7(a)(1)(B), or if the holder has filed such medical evidence
with another asbestos-related personal injury settlement trust that requires
such evidence, the holder shall provide such medical evidence to the PI Trust
notwithstanding the exceptions in Sections 5.7(a)(1)(A) and 5.7(a)(1)(B).
5.7(A)(2) CREDIBILITY OF MEDICAL EVIDENCE. Before making any payment
to a claimant, the PI Trust must have reasonable confidence that the medical
evidence provided in support of the claim is credible and consistent with
recognized medical standards. The PI Trust may require the submission of X-rays,
CT scans, detailed results of pulmonary function tests, laboratory tests, tissue
samples, results of medical examination or reviews of other medical evidence,
and may require that medical evidence submitted comply with recognized medical
standards regarding equipment, testing methods and procedures to assure that
such evidence is reliable. Medical evidence (i) that is of a kind shown to have
been received in evidence by a state or federal judge at trial, (ii) that is
consistent with evidence submitted to AWI to settle for payment similar disease
cases prior to AWI's bankruptcy, or (iii) a diagnosis by a physician shown to
have previously qualified as a medical expert with respect to the
asbestos-related disease in question before a state or federal judge, is
presumptively reliable, although the PI Trust may seek to rebut the presumption.
In addition, claimants who otherwise meet the requirements of this TDP for
payment of a PI Trust Claim shall be paid irrespective of the results in any
litigation at anytime between the claimant and any other defendant in the tort
system. However, any relevant evidence submitted in a proceeding in the tort
system involving another defendant, other than any findings of fact, a verdict,
or a judgment, may be introduced by either the claimant or the PI Trust in any
Individual Review proceeding conducted pursuant to Section 5.3(b) or any
Extraordinary Claim proceeding conducted pursuant to Section 5.4(a).
5.7(B) EXPOSURE EVIDENCE
5.7(B)(1) IN GENERAL. As set forth in Section 5.3(a)(3) above, to
qualify for any Disease Level, the claimant must demonstrate a minimum exposure
to an asbestos-containing product manufactured or distributed by AWI. Claims
based on conspiracy theories that involve no exposure to an asbestos-containing
product produced by AWI are not compensable under this TDP. To meet the
presumptive exposure requirements of Expedited Review set forth in Section
5.3(a)(3) above, the claimant must show (i) for all Disease Levels, AWI Exposure
as defined in Section 5.7(b)(3) below prior to December 31, 1982; (ii) for
Asbestos/Pleural Disease Level II, six months AWI Exposure prior to December 31,
1982, plus five years cumulative occupational asbestos exposure; and (iii) for
- --------------------------------
(5) "PULMONARY FUNCTION TESTING" shall mean spirometry testing that is in
material compliance with the quality criteria established by the American
Thoracic Society ("ATS") and is performed on equipment which is in material
compliance with ATS standards for technical quality and calibration.
(6) All diagnoses of Asbestos/Pleural Disease (Disease Levels II and III) not
based on pathology shall be presumed to be based on findings of bilateral
asbestosis or pleural disease, and all diagnoses of Mesothelioma (Disease Level
VIII) shall be presumed to be based on findings that the disease involves a
malignancy. However, the PI Trust may rebut such presumptions.
Exhibit 1.24-14
Asbestosis/Pleural Disease (Disease Level III), Severe Asbestosis (Disease Level
IV), Other Cancer (Disease Level V) or Lung Cancer 1 (Disease Level VII), the
claimant must show six months AWI Exposure prior to December 31, 1982, plus
Significant Occupational Exposure to asbestos as defined below. If the claimant
cannot meet the relevant presumptive exposure requirements for a Disease Level
eligible for Expedited Review, the claimant may seek Individual Review of his or
her claim based on exposure to an asbestos-containing product manufactured or
distributed by AWI.
5.7(B)(2) SIGNIFICANT OCCUPATIONAL EXPOSURE. "SIGNIFICANT
OCCUPATIONAL EXPOSURE" means employment for a cumulative period of at least five
years, with a minimum of two years prior to December 31, 1982, in an industry
and an occupation in which the claimant (a) handled raw asbestos fibers on a
regular basis; (b) fabricated asbestos-containing products so that the claimant
in the fabrication process was exposed on a regular basis to raw asbestos
fibers; (c) altered, repaired or otherwise worked with an asbestos-containing
product such that the claimant was exposed on a regular basis to asbestos
fibers; or (d) was employed in an industry and occupation such that the claimant
worked on a regular basis in close proximity to workers engaged in the
activities described in (a), (b) and/or (c).
5.7(B)(3) AWI EXPOSURE. The claimant must demonstrate meaningful and
credible exposure prior to December 31, 1982, to asbestos or asbestos-containing
products supplied, specified, manufactured, installed, maintained, or repaired
by AWI and/or any entity, including an AWI contracting unit, for which AWI has
legal responsibility. That meaningful and credible exposure evidence may be
established by an affidavit of the claimant, by an affidavit of a co-worker or
the affidavit of a family member in the case of a deceased claimant (providing
the PI Trust finds such evidence reasonably reliable), by invoices, employment,
construction or similar records, or by other credible evidence. The specific
exposure information required by the PI Trust to process a claim under either
Expedited or Individual Review is set forth on the proof of claim form to be
used by the PI Trust, which is attached as Attachment B hereto. The PI Trust can
also require submission of other or additional evidence of exposure when it
deems such to be necessary.
5.7 CLAIMS AUDIT PROGRAM. The PI Trust with the consent of the TAC
and the Futures Claimants' Representative may develop methods for auditing the
reliability of medical evidence, including additional reading of x-rays, CT
scans and verification of pulmonary function tests, as well as the reliability
of evidence of exposure to asbestos, including exposure to asbestos-containing
products manufactured or distributed by AWI prior to December 31, 1982. In the
event that the PI Trust reasonably determines that any individual or entity has
engaged in a pattern or practice of providing unreliable medical evidence to the
PI Trust, it may decline to accept additional evidence from such provider in the
future.
Further, in the event that an audit reveals that fraudulent information has been
provided to the PI Trust, the PI Trust may penalize any claimant or claimant's
attorney by disallowing the PI Trust Claim or by other means including, but not
limited to, requiring the source of the fraudulent information to pay the costs
associated with the audit and any future audit or audits, reordering the
priority of payment of all affected claimants' PI Trust Claims, raising the
level of scrutiny of additional information submitted from the same source or
sources, refusing to accept additional evidence from the same source or sources,
seeking the prosecution of the claimant or claimant's attorney for presenting a
fraudulent claim in violation of 18 U.S.C. ss. 152, and seeking sanctions from
the Bankruptcy Court.
5.9 SECOND DISEASE (MALIGNANCY) CLAIMS. The holder of a PI Trust
Claim involving a non-malignant asbestos-related disease (Disease Levels I
through IV) may assert a new PI Trust Claim against the PI Trust for a malignant
disease (Disease Levels V - VIII) that is subsequently diagnosed. Any additional
payments to which such claimant may be entitled with respect to such malignant
asbestos-related disease shall not be reduced by the amount paid for the
non-malignant asbestos-related disease, provided that the malignant disease had
not been diagnosed by the time the claimant was paid with respect to his or her
original claim involving the non-malignant disease.
5.10 ARBITRATION.
5.10(A) ESTABLISHMENT OF ADR PROCEDURES. The PI Trust, with the
consent of the TAC and the Future Claimants' Representative, shall institute
binding and non-binding arbitration procedures in accordance with the
Alternative Dispute Resolution ("ADR") Procedures included in Attachment A
hereto for resolving disputes concerning whether a Pre-Petition settlement
agreement with AWI is binding and judicially enforceable in the absence of a
final order of the Bankruptcy Court determining the issue, whether the PI
Trust's outright rejection or denial of a claim was proper, or whether the
claimant's medical condition or exposure history meets the requirements of this
TDP for purposes of categorizing a claim involving Disease Levels I - VIII.
Exhibit 1.24-15
Binding and non-binding arbitration shall also be available for resolving
disputes over the liquidated value of a claim involving Disease Levels II -
VIII.
In all arbitrations, the arbitrator shall consider the same medical and exposure
evidentiary requirements that are set forth in Section 5.7 above. In the case of
an arbitration involving the liquidated value of a claim involving Disease
Levels II - VIII, the arbitrator shall consider the same valuation factors that
are set forth in Section 5.3(b)(2) above. With respect to all claims eligible
for arbitration, the claimant, but not the PI Trust, may elect either
non-binding or binding arbitration. The Arbitration Rules set forth in
Attachment A hereto may be modified by the PI Trust with the consent of the TAC
and the Future Claimants' Representative. Such amendments may include adoption
of mediation procedures as well as establishment of an Extraordinary Claims
Panel to review such claims pursuant to Section 5.4(a) above.
5.10(B) CLAIMS ELIGIBLE FOR ARBITRATION. In order to be eligible for
arbitration, the claimant must first complete the Individual Review Process as
well as either Pro Bono Evaluation or Mediation under the ADR Procedures with
respect to the disputed issue. Individual Review will be treated as completed
for these purposes when the claim has been individually reviewed by the PI
Trust, the PI Trust has made an offer on the claim, the claimant has rejected
the liquidated value resulting from the Individual Review, and the claimant has
notified the PI Trust of the rejection in writing.
5.10(C) LIMITATIONS ON AND PAYMENT OF ARBITRATION AWARDS. In the case
of a non-Extraordinary Claim involving Disease Levels II - VIII, the arbitrator
shall not return an award in excess of the Maximum Value for the appropriate
Disease Level as set forth in Section 5.3(a)(4) above, and for an Extraordinary
Claim involving one of those Disease Levels, the arbitrator shall not return an
award greater than the Maximum Extraordinary Value for such a claim as set forth
in Section 5.4(a) above. A claimant who submits to arbitration and who accepts
the arbitral award will receive payments in the same manner as one who accepts
the PI Trust's original valuation of the claim.
5.11 LITIGATION. Claimants who elect non-binding arbitration and then
reject their arbitral awards retain the right to institute a lawsuit in the tort
system against the PI Trust pursuant to Section 7.6 below. However, a claimant
shall be eligible for payment of a judgment for monetary damages obtained in the
tort system from the PI Trust's available cash only as provided in Section 7.7
below.
SECTION VI
CLAIMS MATERIALS
6.1 CLAIMS MATERIALS. The PI Trust shall prepare suitable and
efficient claims materials ("CLAIMS MATERIALS") for all PI Trust Claims, and
shall provide such Claims Materials upon a written request for such materials to
the PI Trust. The proof of claim form to be submitted to the PI Trust shall
require the claimant to assert the highest Disease Level for which the claim
qualifies at the time of filing. The proof of claim form shall also include a
certification by the claimant or his or her attorney sufficient to meet the
requirements of Rule 11(b) of the Federal Rules of Civil Procedure. A copy of
the proof of claim form to be used by the PI Trust for Pre-Petition Liquidated
Claims and unliquidated PI Trust Claims is included in Attachment B hereto. The
proof of claim form may be changed by the PI Trust with the consent of the TAC
and the Future Claimants' Representative.
6.2 CONTENT OF CLAIMS MATERIALS. The Claims Materials shall include a
copy of this TDP, such instructions as the Trustees shall approve, and a
detailed proof of claim form. If feasible, the forms used by the PI Trust to
obtain claims information shall be the same or substantially similar to those
used by other asbestos claims resolution organizations. Instead of collecting
some or all of the claims information from a claimant or the claimant's
attorney, the PI Trust may also obtain such information from electronic data
bases maintained by any other asbestos claims resolution organization. However,
the PI Trust shall inform the claimant that it plans to obtain information as
available from such other organizations and may do so unless the claimant
objects in writing or provides such information directly to the PI Trust. If
requested by the claimant, the PI Trust shall accept information provided
electronically. The claimant may, but will not be required to, provide the PI
Trust with evidence of recovery from other asbestos defendants and claims
resolution organizations.
6.3 WITHDRAWAL OR DEFERRAL OF CLAIMS. A claimant can withdraw a PI
Trust Claim at any time upon written notice to the PI Trust and file another
such claim subsequently without affecting the status of the claim for statute of
limitations purposes, but any such claim filed after withdrawal shall be given a
place in the FIFO Processing Queue based on the date of such subsequent filing.
Exhibit 1.24-16
A claimant can also request that the processing of his or her PI Trust Claim by
the PI Trust be deferred for a period not to exceed three (3) years without
affecting the status of the claim for statute of limitation purposes, in which
case the claimant shall also retain his or her original place in the FIFO
Processing Queue. Except for PI Trust Claims held by representatives of deceased
or incompetent claimants for which court or probate approval of the PI Trust's
offer is required, or a PI Trust Claim for which deferral status has been
granted, a claim will be deemed to have been withdrawn if the claimant neither
accepts, rejects, nor initiates arbitration within six months of the PI Trust's
offer of payment or rejection of the claim. Upon written request and good cause,
the PI Trust may extend either the deferral or withdrawal period for an
additional six months.
6.4 FILING REQUIREMENTS AND FEES. The Trustees shall have the
discretion to determine, with the consent of the TAC and the Futures
Representative, (a) whether a claimant must have previously filed a PI Trust
Claim in the tort system to be eligible to file the claim with the PI Trust and
(b) whether a filing fee should be required for any PI Trust claims.
SECTION VII
GENERAL GUIDELINES FOR LIQUIDATING AND PAYING CLAIMS
7.1 SHOWING REQUIRED. To establish a valid PI Trust Claim, a claimant
must meet the requirements set forth in this TDP. The PI Trust may require the
submission of X-rays, CT scans, laboratory tests, medical examinations or
reviews, other medical evidence, or any other evidence to support or verify the
claim, and may further require that medical evidence submitted comply with
recognized medical standards regarding equipment, testing methods, and
procedures to assure that such evidence is reliable.
7.2 COSTS CONSIDERED. Notwithstanding any provisions of this TDP to
the contrary, the Trustees shall always give appropriate consideration to the
cost of investigating and uncovering invalid PI Trust Claims so that the payment
of valid PI Trust Claims is not further impaired by such processes with respect
to issues related to the validity of the medical evidence supporting a PI Trust
Claim. The Trustees shall also have the latitude to make judgments regarding the
amount of transaction costs to be expended by the PI Trust so that valid PI
Trust Claims are not unduly further impaired by the costs of additional
investigation. Nothing herein shall prevent the Trustees, in appropriate
circumstances, from contesting the validity of any claim against the PI Trust
whatever the costs, or to decline to accept medical evidence from sources that
the Trustees have determined to be unreliable pursuant to the Claims Audit
Program described in Section 5.7 above.
7.3 DISCRETION TO VARY THE ORDER AND AMOUNTS OF PAYMENTS IN EVENT OF
LIMITED LIQUIDITY. Consistent with the provisions hereof and subject to the FIFO
Processing and Liquidation Queues, the Maximum Annual Payment, the Maximum
Available Payment and the Claims Payment Ratio requirements set forth above, the
Trustees shall proceed as quickly as possible to liquidate valid PI Trust
Claims, and shall make payments to holders of such claims in accordance with
this TDP promptly as funds become available and as claims are liquidated, while
maintaining sufficient resources to pay future valid claims in substantially the
same manner.
Because the PI Trust's income over time remains uncertain, and decisions about
payments must be based on estimates that cannot be done precisely, they may have
to be revised in light of experiences over time, and there can be no guarantee
of any specific level of payment to claimants. However, the Trustees shall use
their best efforts to treat similar claims in substantially the same manner,
consistent with their duties as Trustees, the purposes of the PI Trust, the
established allocation of funds to claims in Categories A and B, and the
practical limitations imposed by the inability to predict the future with
precision. In the event that the PI Trust faces temporary periods of limited
liquidity, the Trustees may, with the consent of the TAC and the Future
Claimants' Representative, suspend the normal order of payment and may
temporarily limit or suspend payments altogether, and may offer a Reduced
Payment Option as described in Section 2.5 above.
7.4 PUNITIVE DAMAGES. In determining the value of any liquidated or
unliquidated PI Trust Claim, punitive or exemplary damages, i.e., damages other
than compensatory damages, shall not be considered or allowed, notwithstanding
their availability in the tort system.
7.5 INTEREST.
7.5(A) IN GENERAL. Except for PI Trust Claim involving Other Asbestos
Disease (Disease Level I - Cash Discount Payment) and subject to the limitations
set forth below, interest shall be paid on all PI Trust Claims with respect to
Exhibit 1.24-17
which the claimant has had to wait a year or more for payment, provided,
however, that no claimant shall receive interest for a period in excess of seven
(7) years. The applicable interest rate shall be six percent (6%) simple
interest per annum for the first five (5) years after the Effective Date;
thereafter, the PI Trust shall have the discretion to change the annual interest
rate with the consent of the TAC and the Future Claimants' Representative.
7.5(B) UNLIQUIDATED PI TRUST CLAIMS. Interest shall be payable on the
Scheduled Value of any unliquidated PI Trust Claim that meets the requirements
of Disease Levels II - V, VII and VIII, whether the claim is liquidated under
Expedited Review, Individual Review, or by arbitration. Interest on an
unliquidated PI Trust Claim that meets the requirements of Disease Level VI
shall be based on the Average Value of such a claim. Interest on all such
unliquidated claims shall be measured from the date of payment back to the
earliest of the date that is one year after the date on which (a) the claim was
filed against AWI prior to the Petition Date; (b) the claim was filed against
another defendant in the tort system on or after the Petition Date but before
the Effective Date; or (c) the claim was filed with the PI Trust after the
Effective Date.
7.5(C) LIQUIDATED PRE-PETITION CLAIMS. Interest shall also be payable
on the liquidated value of all Pre-Petition Liquidated Claims described in
Section 5.2(a) above. In the case of Pre-Petition Liquidated Claims liquidated
by verdict or judgment, interest shall be measured from the date of payment back
to the date that is one year after the date that the verdict or judgment was
entered. In the case of Pre-Petition Liquidated Claims liquidated by a binding,
judicially enforceable settlement, interest shall be measured from the date of
payment back to the date that is one year after the Petition Date.
7.6 SUITS IN THE TORT SYSTEM. If the holder of a disputed claim
disagrees with the PI Trust's determination regarding the Disease Level of the
claim, the claimant's exposure history or the liquidated value of the claim, and
if the holder has first submitted the claim to non-binding arbitration as
provided in Section 5.10 above, the holder may file a lawsuit in the Claimant's
Jurisdiction as defined in Section 5.3(b)(2) above. Any such lawsuit must be
filed by the claimant in her or her own right and name and not as a member or
representative of a class, and no such lawsuit may be consolidated with any
other lawsuit. All defenses (including, with respect to the PI Trust, all
defenses which could have been asserted by AWI) shall be available to both sides
at trial; however, the PI Trust may waive any defense and/or concede any issue
of fact or law. If the claimant was alive at the time the initial pre-petition
complaint was filed or on the date the proof of claim was filed with the PI
Trust, the case will be treated as a personal injury case with all personal
injury damages to be considered even if the claimant has died during the
pendency of the claim.
7.7 PAYMENT OF JUDGMENTS FOR MONEY DAMAGES. If and when a claimant
obtains a judgment in the tort system, the claim shall be placed in the FIFO
Payment Queue based on the date on which the judgment became final. Thereafter,
the claimant shall receive from the PI Trust an initial payment (subject to the
applicable Payment Percentage, the Maximum Available Payment, and the Claims
Payment Ratio provisions set forth above) of an amount equal to one-hundred
percent (100%) of the greater of (i) the PI Trust's last offer to the claimant
or (ii) the award that the claimant declined in non-binding arbitration. The
claimant shall receive the balance of the judgment, if any, in five equal
installments in years six (6) through ten (10) following the year of the initial
payment (also subject to the applicable Payment Percentage, the Maximum
Available Payment and the Claims Payment Ratio provisions set forth above).
In the case of non-Extraordinary claims involving Disease Levels II - VIII, the
total amounts paid with respect to such claims shall not exceed the Maximum
Values for such Disease Levels set forth in Section 5.3(b)(4). In the case of
Extraordinary Claims, the total amounts paid with respect to such claims shall
not exceed the Maximum Value for such claims set forth in Section 5.4(a) above.
Under no circumstances shall interest be paid pursuant to Section 7.5 or under
any statute on any judgments obtained in the tort system.
7.8 RELEASES. The Trustees shall have the discretion to determine the
form and substance of the releases to be provided to the PI Trust in order to
maximize recovery for claimants against other tortfeasors without increasing the
risk or amount of claims for indemnification or contribution from the PI Trust.
As a condition to making any payment to a claimant, the PI Trust shall obtain a
general, partial, or limited release as appropriate in accordance with the
applicable state or other law. If allowed by state law, the endorsing of a check
or draft for payment by or on behalf of a claimant shall constitute such a
release.
7.9 THIRD-PARTY SERVICES. Nothing in this TDP shall preclude the PI
Trust from contracting with another asbestos claims resolution organization to
provide services to the PI Trust so long as decisions about the categorization
Exhibit 1.24-18
and liquidated value of PI Trust Claims are based on the relevant provisions of
this TDP, including the Disease Levels, Scheduled Values, Average Values,
Maximum Values, and Medical/Exposure Criteria set forth above.
7.10 PI TRUST DISCLOSURE OF INFORMATION. Periodically, but not less
often than once a year, the PI Trust shall make available to claimants and other
interested parties, the number of claims by disease levels that have been
resolved both by the Individual Review Process and by arbitration as well as by
litigation in the tort system indicating the amounts of the awards and the
averages of the awards by jurisdiction.
SECTION VIII
MISCELLANEOUS
8.1 AMENDMENTS. Except as otherwise provided herein, the Trustees may
amend, modify, delete, or add to any provisions of this TDP (including, without
limitation, amendments to conform this TDP to advances in scientific or medical
knowledge or other changes in circumstances), provided they first obtain the
consent of the TAC and the Future Claimants' Representative pursuant to the
Consent Process set forth in Sections 5.7(b) and 6.6(b) of the PI Trust
Agreement, except that the right to amend the Claims Payment Ratio is governed
by the restrictions in Section 2.5 above, and the right to adjust the Payment
Percentage is governed by Section 4.2 above.
8.2 SEVERABILITY. Should any provision contained in this TDP be
determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any and all other provisions
of this TDP. Should any provision contained in this TDP be determined to be
inconsistent with or contrary to AWI obligations to any insurance company
providing insurance coverage to AWI in respect of claims for personal injury
based on exposure to asbestos-containing products manufactured or produced by
AWI, the PI Trust with the consent of the TAC and the Future Claimants'
Representative, may amend this TDP and/or the PI Trust Agreement to make the
provisions of either or both documents consistent with the duties and
obligations of AWI to said insurance company.
8.3 GOVERNING LAW. Except for purposes of determining the liquidated
value of any PI Trust Claim, administration of this TDP shall be governed by,
and construed in accordance with, the laws of the State of Delaware. The law
governing the liquidation of PI Trust Claims in the case of Individual Review,
arbitration or litigation in the tort system shall be the law of the Claimant's
Jurisdiction as described in Section 5.3(b)(2) above.
Exhibit 1.24-19
ATTACHMENT "A"
ARMSTRONG WORLD INDUSTRIES, INC.
ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
Exhibit 1.24-A-1
ARMSTRONG WORLD INDUSTRIES, INC. ASBESTOS PI TRUST
ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
Pursuant to Section 5.10 of the Armstrong World Industries, Inc. Asbestos PI
Trust Distribution Procedures (the "TDP"), the Armstrong World Industries, Inc.
Asbestos PI Trust (the "PI TRUST") hereby establishes the following Alternative
Dispute Resolution ("ADR") Procedures to resolve all present and future Asbestos
Personal Injury Claims as that term is defined in the Armstrong World
Industries, Inc. Plan of Reorganization (hereinafter referred to for all
purposes "PI TRUST CLAIMS"). All capitalized terms herein shall be as defined
and/or referenced within the TDP.
I. OVERVIEW
The PI Trust shall appoint a Private Adjudication Coordinator, at the
cost of the PI Trust, to administer these ADR procedures. To initiate
these procedures, the claimant must make a written request to the PI
Trust. Within twenty (20) days of a claimant's request for ADR, the
PI Trust will send the claimant an ADR packet containing the
documents necessary to pursue the ADR process. These ADR procedures
shall not be construed as imparting to any claimant any substantive
or procedural rights beyond those conferred by the TDP.
The ADR process available to the claimant includes both non-binding
and binding elements. In addition, there are mandatory as well as
voluntary options to be utilized by the claimant and the PI Trust in
proceeding toward settlement. These ADR procedures must be pursued by
claimants on an individual basis. As a general matter, claims of
different claimants cannot be grouped together even if the claimants
are represented by the same counsel, unless the PI Trust, in its sole
discretion, decides it would be expeditious to conduct ADR
proceedings with respect to more than one claim involving differently
exposed claimants with those claimants' representative. In such a
case, however, the arbitrator, mediator or other neutral must
individually value each such claim using the valuation factors set
forth in Section 5.3(b)(2) of the TDP, and the claimants' positions
in the PI Trust's FIFO Processing and Payment Queues must be
separately maintained.
The requisite steps in the ADR process are as follows, in order:
MANDATORY ADR PROCEEDINGS (TWO STAGES)
STAGE ONE (CLAIMANT MUST SELECT ONE):
1. Pro Bono Evaluation
2. Mediation
STAGE TWO: ARBITRATION (BINDING OR NON-BINDING)
INITIATION OF ADR
Within twenty (20) days of a claimant's request for ADR, the PI Trust
will send the claimant an ADR packet containing a copy of these
procedures and the following:
Exhibit 1.24-A-2
1. A Summary Outline of the ADR procedures with the time
limits identified;
2. Form Affidavit of Completeness;
3. Election Form for Pro Bono Evaluation;
4. Request for Mediation Form;
5. Election Form and Agreement to submit to Binding
Arbitration; and
6. Election Form and Agreement to submit to Non-binding
Arbitration.
A claimant who wishes to proceed through the ADR process must engage
in one of the two ADR options (pro bono evaluation or mediation)
before any form of arbitration. Only after either party rejects a
non-binding arbitration award may a claimant proceed to then commence
a lawsuit in the tort system. It is the claimant's responsibility to
comply with the ADR time deadlines. Although the deadlines may be
extended by agreement or for cause shown, failure to comply with a
deadline without obtaining an extension may result in withdrawal of
the claim. Promptly after a claimant fails to comply with a specified
deadline without obtaining an extension, the PI Trust shall send the
claimant written notice of the failure to comply. If the claimant
does not take any action on the claim, then thirty (30) days
thereafter the claim will be deemed withdrawn.
If the claimant requests arbitration, either binding or non-binding,
the PI Trust shall execute the appropriate election form and
agreement. If both parties agree to binding arbitration, then the
claimant and the PI Trust waive their respective rights to seek a
jury trial as set forth in the TDP.
If either party rejects a non-binding arbitration award, and the
claimant has otherwise complied with the requirements of these ADR
procedures and the Plan, then the claimant may commence a lawsuit
against the PI Trust in the Claimant's Jurisdiction, as that term is
defined in Section 5.3(b)(2) of the TDP.
II. ADR PROCEEDINGS SUMMARY
A. SHOWING REQUIRED
As set forth in the TDP, in order to establish a valid PI
Trust Claim, a claimant must make a demonstration of
exposure to asbestos-containing products for which
Armstrong World Industries, Inc. ("AWI") bears legal
responsibility.
B. PRO BONO EVALUATION
This ADR alternative consists of an evaluation of the claim
by an evaluator selected from a pro bono panel. The panel
shall be comprised of asbestos litigation attorneys as
mutually agreed upon between the PI Trust Advisory
Committee (the "TAC") and the PI Trustees. The TAC will be
provided, on a quarterly basis, with a list of the pro bono
panelists. Each evaluation will have a pro bono evaluator
randomly selected by the Private Adjudication Coordinator
from the list of pro bono panelists. Within fifteen (15)
days of the claimant's request for the pro bono evaluation,
the individual pro bono evaluator shall be randomly chosen
from the approved panel.
A pro bono evaluation will be done by document submission.
The identity of the pro bono evaluator will not be
disclosed to the claimant or the claimant's attorney. The
PI Trust encourages identification of and not anonymity as
to the alleged injured party so that medical records can be
transmitted in their original form. The Private
Adjudication Coordinator will communicate to the parties
the pro bono evaluator's written evaluation. The parties
Exhibit 1.24-A-3
will communicate their respective rejection or acceptance
of settlement upon the terms of the written evaluation. If
either or both parties reject settlement upon those terms,
then the claimant may submit an Election Form and Agreement
for Binding or Non-binding Arbitration.
C. MEDIATION
The claimant may request telephone mediation as an ADR
alternative. This process will require the submission of
detailed mediation briefs to familiarize the mediator with
the respective positions. The PI Trust shall establish and
maintain a list of qualified regional mediators compensated
by the PI Trust. The Private Adjudication Coordinator shall
select a qualified mediator from the list based upon
location of claimant within fifteen (15) days after receipt
of the Request for Mediation Form signed by the claimant
and the PI Trust.
Claims shall be handled by each mediator in the order
received by him or her, to the extent practicable. Any
party may be represented by legal counsel. The mediator
shall review the claim and the positions of the parties,
such information as the parties may wish to submit as to a
fair and equitable settlement, and all documents and
medical reports relevant to the claim as submitted by the
parties. At least five (5) business days prior to the
mediation conference, claimant and the PI Trust shall each
submit to the mediator a mediation brief consisting of a
confidential statement outlining the claimant's medical
condition, exposure to AWI products and each party's
detailed position on overall claim value. The mediator
shall confer with the parties and/or their legal
representatives, individually and jointly. Such conference
shall be conducted by telephone unless both parties agree
otherwise. A representative of the PI Trust with settlement
authority must participate in the conference. The mediator
may request, but not require, that the claimant personally
participate in the conference. Such conference shall be in
the nature of a settlement conference. The mediator shall
work with both sides toward reaching an acceptable,
reasonable settlement. The mediator does not have the
authority to impose a settlement on the parties. Ten (10)
days after the conclusion of the mediation, if the parties
have not settled the matter, the claimant may submit to the
PI Trust an Election Form and Agreement for Binding or
Non-binding Arbitration.
D. BINDING AND NON-BINDING ARBITRATION PROCEDURES
Upon completion of either pro bono evaluation or mediation,
the claimant may request non-binding and/or binding
arbitration. Binding arbitration will be conducted in the
"final offer" format also known as "baseball style"
arbitration. If the claim is arbitrated in either the
binding or non-binding format, then the arbitrator shall
return an award no greater than the Maximum Value for the
relevant Disease Category set forth in Section 5.3(b)(4) of
the TDP, unless the claim qualifies as an Extraordinary
Claim pursuant to Section 5.4(a) of the TDP. In that case,
the arbitrator shall return an award no greater than the
Maximum Value for such claims as also set forth in Section
5.4(a) of the TDP.
If the claimant requests arbitration, either binding or
non-binding, then the PI Trust shall execute the
appropriate Election Form and Agreement. The PI Trust may
not decline the claimant's election of either binding or
non-binding arbitration, but reserves all rights to reject
any award in a non-binding arbitration proceeding. If the
parties agree to engage in binding arbitration, then the
claimant and the PI Trust waive their respective rights to
seek a jury trial as set forth in the TDP.
Exhibit 1.24-A-4
III. RULES GOVERNING PRO BONO EVALUATION AND MEDIATION
Within ninety (90) days of a claimant's receipt of the ADR
packet from the PI Trust, the claimant must elect one of the
two ADR procedures and return the appropriate form to the PI
Trust along with an executed Affidavit of Completeness.
A. RULES GOVERNING PRO BONO EVALUATION
1. ELECTION AND TIME LIMITS
a. If the claimant chooses pro bono
evaluation, then within ninety (90)
days of claimant's receipt of the ADR
packet, the claimant must send the PI
Trust the Election Form for Pro Bono
Evaluation. (See Attachment A). The
claimant or his/her attorney shall
personally sign the Election Form for
Pro Bono Evaluation.
b. The claimant must also sign an
Affidavit of Completeness (See
Attachment B) and return it to the PI
Trust with a copy to the Private
Adjudication Coordinator within ninety
(90) days of receipt of the ADR
packet. The claim will not proceed
until the PI Trust has received a
completed election form and Affidavit
of Completeness from the claimant. The
Affidavit of Completeness shall verify
that all information to be considered
in the ADR process has been provided
to the PI Trust while the claim was
under review by the PI Trust.
c. After receiving the signed election
form and Affidavit of Completeness,
the PI Trust shall review and sign the
election form within five (5) business
days of receipt.
d. Within fifteen (15) days from the
date the PI Trust notifies the
claimant's counsel of the PI Trust's
consent to the election form, the PI
Trust shall send a copy of the
signed election form, the Affidavit
of Completeness together with
complete copies of all materials
submitted to the PI Trust by the
claimant and factual information in
the PI Trust file, if any, gathered
by the PI Trust from other sources,
and a completed Affidavit of
Accuracy to the claimant's counsel
and the Private Adjudication
Coordinator who will forward the
materials to the selected pro bono
evaluator at the time the evaluator
is selected. The PI Trust may not
send the Private Adjudication
Coordinator any materials in the PI
Trust file that have not previously
been provided to the claimant.
2. SELECTION OF THE PRO BONO EVALUATOR
Within fifteen (15) days of the date the Private
Adjudication Coordinator received the claimant's
election agreement, the Private Adjudication
Coordinator shall randomly select the pro bono
evaluator from the list of pro bono panelists and
notify the parties that the evaluator has been
designated without disclosing the identity of the
evaluator. The pro bono evaluator shall be
selected from a panel of asbestos litigation
plaintiff attorneys who have volunteered to serve
the PI Trust at the request of the TAC. Pro bono
assignments will be made on a rotating basis.
Exhibit 1.24-A-5
The identity of the pro bono evaluator shall not
be disclosed to the claimant and the claimant's
attorney. The identity of the claimant should be
disclosed so that medical records can be
transmitted in their original form.
3. SUBMISSION OF WRITTEN ARGUMENTS
Fifteen (15) days after the PI Trust sends the
complete file materials to the Private
Adjudication Coordinator, the claimant and the PI
Trust shall simultaneously exchange and submit
written arguments to the Private Adjudication
Coordinator. The Private Adjudication Coordinator
will immediately forward the written arguments to
the pro bono evaluator. The written arguments
shall comply with the following rules:
a. The argument shall not exceed ten (10)
double spaced typewritten pages. In
order to preserve anonymity in a pro
bono evaluation, the name of counsel
should not be mentioned. The argument
may not introduce factual matter not
contained in the documents in the PI
Trust's file. The evaluator shall
disregard any argument that does not
comply with this rule.
b. When a party fails to submit the
written argument within the fifteen
(15) days, the party waives written
argument and the pro bono evaluator
shall disregard any argument received
after that time.
4. EVALUATION OF DOCUMENTS
The pro bono evaluation is only a document review
with complete anonymity preserved between
claimant's counsel and the pro bono evaluator.
The documents that the pro bono evaluator may
consider shall be limited to the following:
a. The documents in PI Trust's file
forwarded to the pro bono evaluator.
b. The claimant's Affidavit of
Completeness and the PI Trust's
Affidavit of Accuracy.
c. The written arguments of the claimant
and the PI Trust that comply with the
rules for written arguments set forth
above.
d. Before the Private Adjudication
Coordinator forwards any documents to
the pro bono evaluator it will redact
all references to claimant's counsel.
5. WRITTEN EVALUATION AND PROCEDURE FOR
ACCEPTANCE/REJECTION
Within fifteen (15) days after the submission of
written arguments, the pro bono evaluator shall
submit a written evaluation of the claim to the
Private Adjudication Coordinator who will
promptly mail it to the parties.
Within fifteen (15) days after receipt of the pro
bono evaluator's written evaluation, the claimant
and the PI Trust will each communicate in writing
Exhibit 1.24-A-6
to the Private Adjudication Coordinator whether
they will accept the amount of the pro bono
evaluator's written evaluation to settle the
claim. If both parties accept, then the Private
Adjudication Coordinator will immediately inform
both parties that they have achieved a settlement
and the PI Trust shall pay the claim pursuant to
the TDP. If either or both parties reject the pro
bono evaluator's written evaluation, then within
five (5) business days of receipt of both
parties' written communication, the Private
Adjudication Coordinator shall send each party a
notice of rejection of pro bono evaluator's
written evaluation that will not indicate whether
the opposing party has accepted or rejected the
pro bono evaluator's written evaluation amount.
6. ARBITRATION MAY PROCEED AFTER REJECTION OF PRO
BONO EVALUATOR'S WRITTEN EVALUATION
Within sixty (60) days after receipt of the
notice of rejection of pro bono evaluator's
written evaluation, the claimant may request
arbitration by returning to the PI Trust a signed
Election Form and Agreement for either Binding or
Non-binding Arbitration.
B. RULES GOVERNING MEDIATION
1. ELECTION
If the claimant chooses mediation, then the
claimant shall submit to the PI Trust a signed
Request for Mediation Form (Attachment C) along
with an executed Affidavit of Completeness within
ninety (90) days of claimant's receipt of the ADR
packet. Within five (5) business days of the PI
Trust's receipt of the signed Request for
Mediation Form, the PI Trust shall review and
sign the form and forward a signed copy along
with an executed Affidavit of Accuracy to the
claimant and the Private Adjudication
Coordinator.
2. SELECTION OF MEDIATOR
Within fifteen (15) days of the signed Request
for Mediation Form, the Private Adjudication
Coordinator shall retain a mediator from the
approved list of mediators. The Private
Adjudication Coordinator shall select the
mediator based upon the region in which the
claimant is located. The mediator shall be
compensated by the PI Trust. The Private
Adjudication Coordinator shall schedule a
mediation conference within sixty (60) days after
receipt of the signed request for mediation form.
The mediation will be conducted by telephone
conference unless the parties agree otherwise.
Scheduling of the conference shall be coordinated
with the mediator and the conferences shall take
place in the order received by the mediator, to
the extent practicable.
3. SUBMISSION OF BRIEFS AND OTHER MATERIALS TO
MEDIATOR
At least five (5) business days prior to the
mediation conference, the claimant and the PI
Trust shall each submit to the mediator,
mediation briefs consisting of a confidential
statement outlining the claimant's medical
condition, exposure to AWI products, and each
party's position on overall claim value. The
parties may also submit to the mediator documents
and medical reports that they believe are
Exhibit 1.24-A-7
relevant to the claim. The mediator shall review
the claim and the positions of the parties and
the other information that the parties submit
prior to the mediation conference. The mediation
briefs shall comply with the following rules:
a. The brief should not exceed ten (10)
double spaced typewritten pages
exclusive of attachments.
b. The brief may not introduce factual
matter not contained in the documents
in the PI Trust's file as certified by
the Affidavit of Completeness.
4. MEDIATION CONFERENCE
Any party may be represented by legal counsel at
the mediation conference. The mediator shall
confer with the parties legal representatives
and, if the claimant is present and consents,
with the claimant. A representative of the PI
Trust with settlement authority must participate
in the conference. The mediator may request, but
not require, that the claimant personally
participate in the conference.
5. NEGOTIATIONS AT THE MEDIATION CONFERENCE
The mediator may facilitate settlement in any
manner the mediator believes is appropriate. The
mediator will help the parties focus on their
underlying interests, explore resolution
alternatives and develop settlement options. The
mediator will decide when to hold joint
conferences, and when to confer separately with
each party.
The parties are expected to initiate and convey
to the mediator proposals for settlement. Each
party shall provide a rationale for any
settlement terms proposed. Finally, if the
parties fail to develop mutually acceptable
settlement terms, before terminating the
procedure, and only with the consent of the
parties, (a) the mediator may submit to the
parties a final settlement proposal; and (b) if
the mediator believes he/she is qualified to do
so, the mediator may give the parties an
evaluation (which if all parties choose, and the
mediator agrees, may be in writing) of the likely
outcome of the case if it were tried to final
judgment, subject to any limitations under the
Plan, the TDP and ethical codes.
6. CONFIDENTIALITY OF MEDIATION
The entire mediation process is confidential.
Unless agreed among all the parties or required
to do so by law, the parties and the mediator
shall not disclose to any person who is not
associated with participants in the process,
including any judicial officer, any information
regarding the process (including pre-process
exchanges and agreements), contents (including
written and oral information), settlement terms
or outcome of the proceeding.
Under this procedure, the entire process is a
compromise negotiation subject to Federal Rule of
Evidence 408 and all state counterparts, together
with any applicable statute protecting the
confidentiality of mediation. All offers,
promises, conduct and statements, whether oral or
written, made in the course of the proceeding by
any of the parties, their agents, employees,
experts and attorneys, and by the mediator are
Exhibit 1.24-A-8
confidential. Such offers, promises, conduct and
statements are privileged under any applicable
mediation privilege and are inadmissible and not
discoverable for any purpose, including
impeachment, in litigation between the parties.
However, any written or oral information or other
materials submitted to the mediator by either the
PI Trust or the claimant may be submitted by
either party to the arbitrator in an arbitration
that takes place under these ADR procedures. In
addition, evidence that is otherwise admissible
or discoverable shall not be rendered
inadmissible or non-discoverable solely as a
result of its presentation or use during the
mediation.
The exchange of any tangible material shall be
without prejudice to any claim that such material
is privileged or protected as work-product within
the meaning of Federal Rule of Civil Procedure 26
and all state and local counterparts.
The mediator and any documents and information in
the mediator's possession will not be subpoenaed
in any such investigation, action or proceeding,
and all parties will oppose any effort to have
the mediator or documents subpoenaed. The
mediator will promptly advise the parties of any
attempt to compel him/her to divulge information
received in mediation.
7. SUBMISSION OF WRITTEN OFFERS AFTER MEDIATION
At the conclusion of the mediation, the mediator
shall require the parties to exchange written
settlement offers that shall remain open for ten
(10) days. If after the expiration of that ten
(10) day period neither party accepts the other's
written offer or the parties do not otherwise
settle the matter, then the claimant may request
binding or non-binding arbitration by sending to
the PI Trust the appropriate signed Election Form
and Agreement for either Binding or Non-binding
Arbitration.
IV. RULES GOVERNING NON-BINDING AND BINDING ARBITRATION
A. ELECTION BY THE PI TRUST
The PI Trust shall review the Election Form and Agreement
for Binding or Non-binding Arbitration (Attachments D and
E) and within five (5) business days of receipt the PI
Trust shall sign the Agreement and shall immediately send a
fully signed Arbitration Agreement to the Private
Adjudication Coordinator.
B. SELECTION OF THE ARBITRATOR
1. As soon as reasonably possible after the
receipt of the signed Arbitration Agreement,
but no more than fifteen (15) days after the
receipt of the signed arbitration agreement,
the Private Adjudication Coordinator shall
select three potential arbitrators from a
rotating list kept by the Private Adjudication
Coordinator. Arbitrator's assignments will be
made on a rotating basis nationally, by the
Private Adjudication Coordinator. The Private
Adjudication Coordinator shall promptly notify
the arbitrator and the parties of the potential
arbitrators' selection. If a potential
arbitrator is unable or unwilling to serve,
then a replacement selection will be made prior
to notifying the PI Trust and the claimant of
the potential arbitrators selected.
Exhibit 1.24-A-9
2. Within seven (7) days of receipt of the list of
potential arbitrators, the PI Trust may select,
and identify to the Private Adjudication
Coordinator, one potential arbitrator to be
stricken from the list. The Private
Adjudication Coordinator shall then promptly
notify the claimant of the PI Trust's
selection, whereupon, within seven (7) days of
the receipt of such notification, the claimant
may select, and identify to the Private
Adjudication Coordinator, a second potential
arbitrator to be stricken from the list. The
Private Adjudication Coordinator shall then
notify all parties which potential arbitrator
remains and will conduct the arbitration. If
either the PI Trust or the claimant, or both,
fails to exercise the right to strike an
arbitrator from the list of potential
arbitrators, the Private Adjudication
Coordinator shall appoint from those potential
arbitrators remaining the arbitrator next in
rotation on the PI Trust's rotating list.
3. Any appointed arbitrator shall disclose to the
Private Adjudication Coordinator any
circumstances likely to affect impartiality
including any bias or any financial or personal
interest in the result of the arbitration or
any past or present relationship with the
parties or representatives. Upon receipt of
such information from the arbitrator or another
source, the Private Adjudication Coordinator
shall communicate the information to the
parties and, if the administrator deems
necessary, to the arbitrator and others. Upon
objection of a party to the continued service,
the Private Adjudication Coordinator shall
determine whether the arbitrator should be
disqualified and shall inform the parties of
the decision, which shall be final.
C. EXTRAORDINARY CLAIMS AND THOSE REVIEWED BY THE
EXTRAORDINARY CLAIMS REVIEW PANEL
In the event that the Extraordinary Claims Review Panel has
deemed the claim worthy of extraordinary treatment, the
Private Adjudication Coordinator shall forward to the
arbitrator the written decision of the Extraordinary Claims
Review Panel, and the parties may submit a final request
that exceeds the values ascribed to the type of injury in
the TDP. In such circumstances, the arbitrator may issue an
award in accordance with such a final offer/request.
In the event that the Extraordinary Claims Review Panel
declined to give extraordinary treatment to the claim, the
arbitrator shall not be informed of the extraordinary
claims review panel's decision, and the claimant must
confine his/her award to the values ascribed to the type of
injury in the TDP because the arbitrator may not award an
amount in excess of the Maximum Value assigned to the
appropriate category for the injury in the TDP. The PI
Trust will not engage in non-binding or binding
arbitration, and reserves the unilateral right to withdraw
from a signed non-binding or binding arbitration agreement
at any time, where the claimant's final offer and award
demand exceeds the Maximum Value assigned to the type of
injury in the TDP and the Extraordinary Claims Review Panel
has declined to give extraordinary treatment to the claim.
D. FINAL OFFER OR "BASEBALL STYLE" BINDING ARBITRATION
All binding arbitration shall be conducted in the "final
offer" format also known as "baseball style" arbitration.
In the course of submitting the arbitration materials, as
explained in these rules, the parties shall submit their
final offer of settlement which shall also serve as the
Exhibit 1.24-A-10
party's demand for arbitration award. The arbitrator must
choose from one of these two demands in determining the
amount of the arbitration award.
E. SUBMISSION OF PRE-HEARING BRIEFS
Within twenty (20) days of the appointment of an arbitrator
each party shall submit to the opposing party and to the
arbitrator a brief (not to exceed ten (10) double spaced
pages) containing that party's positions and arguments.
Each party may then submit a supplement to its position
paper (not to exceed five (5) double-spaced pages)
following the initial pre-hearing conference to respond to
the opposing party's positions and arguments and addressing
issues raised at the initial pre-hearing conference.
Supplements must be sent to the opposing party and to the
arbitrator within ten (10) days after the date of the
pre-hearing conference.
The Private Adjudication Coordinator will provide the
arbitrator with a complete schedule of categories of
injuries and Scheduled and Maximum Values therefor in the
TDP.
F. INITIAL PRE-HEARING CONFERENCE, SCHEDULING HEARING DATE,
OPTIONAL VIDEO CONFERENCE FOR ARBITRATION HEARING
1. Within fifteen (15) calendar days of the receipt
of both party's briefs, the Private Adjudication
Coordinator shall contact the claimant, the
arbitrator, and the PI Trust to schedule the
initial pre-hearing conference. The pre-hearing
conference shall be presided over by the
arbitrator and held by telephone conference call.
2. During the initial pre-hearing conference, the
arbitrator shall schedule the date and select the
location of the arbitration hearing either at the
location of the arbitrator or a location mutually
agreeable by the parties. The arbitration hearing
should be scheduled not less than forty-five (45)
days, and not more than sixty (60) days, from the
date of the initial pre-hearing conference. The
Private Adjudication Coordinator will mail a
confirmation notice of this date to the claimant
and the PI Trust.
3. At the election of the claimant, the arbitration
hearing may be conducted by video conference. If
the claimant so elects, then the claimant must
state that election in writing prior to the
initial pre-hearing conference. The Private
Adjudication Coordinator will make appropriate
arrangements for the PI Trust and the arbitrator
to participate by video conference. The PI Trust
shall pay for its and the arbitrator's cost for
use of video conference equipment and facilities.
The claimant shall only be responsible for
his/her costs (including participation by
claimant's counsel).
4. During the initial pre-trial conference, the
arbitrator shall seek to achieve agreement
between the parties on:
a. narrowing the issues (through
methods including but not limited to
stipulation of facts);
b. whether the claimant will appear at
the hearing (at the claimant's sole
discretion);
Exhibit 1.24-A-11
c. any legal issues;
d. and any other matters that will
expedite the arbitration
proceedings.
If appropriate or if the parties do not agree on
these issues, then the arbitrator must issue
orders governing the process.
G. NO DISCOVERY WITH LIMITED EXCEPTIONS
There shall be no discovery except as specifically provided
below. The purpose of the arbitration is to resolve
differences between the PI Trust and the claimant based
only on the documents that have been previously submitted
to the PI Trust by the claimant and upon the documents
relied upon by the PI Trust to make a settlement offer to
the claimant or to disallow the claim. Except, however, if
the PI Trust commissions an independent medical examination
or a third-party medical review upon which the PI Trust
relies in evaluating the claimant's claim, then the
claimant may depose the medical professional conducting the
review or examination after having a reasonable opportunity
to study any report or written opinion generated by the
medical professional.
H. NO RECORD OF PROCEEDINGS UNLESS REQUESTED BY ARBITRATOR
There will be no record or transcript of the proceedings
unless and except the arbitrator requests a transcript to
assist him/her in reviewing the evidence or otherwise to
aid in the decision making process. In the event an
arbitrator requests a transcript prior to the arbitration,
then the PI Trust shall arrange for a court reporter and
shall pay all expenses associated with the preparation of
the transcript. In no event, however, will the transcript
be made available to the parties, nor shall any time
required for preparation of the transcript affect the time
for the arbitrator to render a decision.
I. POSTPONEMENT OF HEARING
The arbitrator for good cause may postpone any hearing upon
the request of a party or upon the arbitrator's own
initiative, and shall also grant such postponement when all
of the parties agree.
J. DURATION OF HEARINGS
The arbitrator shall complete the hearing in one day except
for good cause shown. The arbitrator shall set time limits
on the respective presentations, and shall enforce those
set limits. The parties shall request no more than three
hours apiece for presentation of their cases.
K. PROCEDURE AT ARBITRATION HEARING
1. TESTIMONY UNDER OATH OR AFFIRMATION
If the claimant or any other witness testifies
such testimony shall be under oath or affirmation
administered by the arbitrator.
Exhibit 1.24-A-12
2. CONDUCT OF HEARING
At the opening of the arbitration hearing, the
arbitrator shall make a written record of the
time, place, and date of the hearing, and the
presence of the parties and counsel.
3. EVIDENCE
A. RULES OF EVIDENCE: The arbitrator is
not required to apply the rules of
evidence used in judicial proceedings,
provided, however that the arbitrator
shall apply the attorney-client
privilege and the work product
privilege. The arbitrator shall
determine the applicability of any
privilege or immunity and the
admissibility, relevance, materiality
and weight of the evidence offered.
B. ADMISSION OF EVIDENCE: The evidence
that the arbitrator may consider shall
be limited to the following:
(i) The documents supplied to
the PI Trust prior to the
execution of the
Affidavit of
Completeness;
(ii) Non-binding or binding
arbitration election
agreement;
(iii) Testimony of the
claimant. The claimant
may offer evidence
regarding the nature and
extent of compensable
damages, including
physical injuries, and/or
the market share of AWI
products, if there is a
claim of greater than
average market share. The
PI Trust may
cross-examine on these
issues. At the claimant's
option, a claimant's
deposition, including
videotaped testimony,
shall be admissible into
evidence in lieu of live
testimony.
(iv) Any additional deposition
testimony taken by the PI
Trust or the claimant,
and provided to both
sides, prior to the
initiation of ADR.
(v) Any evidence submitted in
mediation.
(vi) Arguments of the claimant
and the PI Trust. The
arguments shall be
limited to the evidence
contained and the issues
raised in the documents
or testimony referred to
above and shall be
limited to 1/2 hour. The
arbitrator shall
disregard any effort to
introduce further
evidence or issues in
argument.
L. ARBITRATION IN THE ABSENCE OF A PARTY OR REPRESENTATIVE
The claimant may choose whether or not to attend the
arbitration in person in his/her sole discretion. The
arbitration may proceed in the absence of any party or
representative who, after due notice, chooses not to be
present, fails to be present or fails to obtain a
postponement if he/she desires to be present but cannot. An
award shall not be made against a party solely for the
failure to appear. The arbitrator shall require the party
Exhibit 1.24-A-13
who is present to submit such evidence as the arbitrator
may require for the making of an award.
M. CONCLUSION OF HEARING AND SUBMISSION OF POST-HEARING BRIEFS
When the parties state that they have no further evidence
or witnesses to offer, and after the parties have made
their closing arguments, if any, the arbitrator shall
declare the hearing closed. Post-hearing briefs will be
permitted only upon order of the arbitrator and shall be
served upon the arbitrator no later than ten (10) ten days
after the hearing is closed. Such briefs shall be no longer
than five (5) double spaced pages. The time limit within
which the arbitrator is required to make the award shall
commence to run upon the closing of the hearing or the
submission of post-hearing briefs whichever is later.
N. OPTION TO WAIVE ORAL HEARINGS
The parties may request a waiver of oral hearings. Oral
hearings will only be waived if all parties consent.
O. ARBITRATION DECISION
1. The arbitrator shall issue a decision no later
than fifteen (15) calendar days after the date
of the close of the hearing or submission of
post-hearing briefs, whichever is later.
2. The decision shall state only the amount of the
award, if any.. The decision shall not state
reasons for the award. An arbitrator shall not
be permitted to make punitive, exemplary,
trebled or other like damages or attorneys'
fees, prejudgment and post-judgment interest
and costs shall not be sought or allowed. The
award shall dispose of all monetary claims
presented to the arbitrator and shall determine
fully the only issue to be decided pursuant to
the arbitration agreement: the amount, if any,
at which the claim value should be fixed. To
assist the arbitrator, the Private Adjudication
Coordinator will provide the arbitrator with a
schedule setting forth the Disease Levels and
the Scheduled, Average and Maximum Values
associated with each category. Unless the
Extraordinary Claims Review Panel has
determined that a claim is entitled to
extraordinary treatment during the claims
review process, the arbitrator's award shall
not exceed the Maximum Value amount for the
appropriate Category in the TDP.
P. PAYMENT OF AWARD
Pursuant to the terms of the arbitration agreement, the PI
Trust will promptly send to the claimant the appropriate
release. The PI Trust will then pay the claim based upon
the binding or, if accepted by both parties, the
non-binding award, in accordance with the TDP provisions in
effect at that time.
Q. REJECTION OF NON-BINDING AWARD
1. A party in a non-binding arbitration proceeding that
wishes to reject the award must notify the other party
within thirty (30) days from the date a non-binding award
is issued. If no rejection is received or sent by the PI
Trust, then the decision will stand and the award will be
Exhibit 1.24-A-14
deemed accepted by both parties and the PI Trust will
promptly send to the claimant the appropriate release. The
PI Trust will then pay the claim in accordance with the TDP
in effect at that time.
2. PROCEDURE FOR REJECTED AWARD
A. REJECTION BY CLAIMANT
If claimant has sent the PI Trust
timely notification of rejection of a
non-binding award and wishes to pursue
the claim, then the claimant must
notify the PI Trust through
correspondence postmarked no later
than sixty (60) days from the date of
the non-binding award. If notification
is received within the sixty (60) day
deadline and claimant wishes to pursue
the claim, then the PI Trust will
within fifteen (15) days of receipt of
this notification send the claimant an
authorization to commence litigation.
B. REJECTION BY PI TRUST
If the PI Trust rejects the
non-binding award, then claimant may
elect binding arbitration or request
that the PI Trust forward the
authorization to commence litigation.
V. GENERAL ADR PROCEDURES GOVERNING PRO BONO EVALUATION, MEDIATION,
NON-BINDING ARBITRATION, AND BINDING ARBITRATION
A. ADR SUBMISSIONS
The claimant's submissions (with the exception of the
binding arbitration's written argument) will be reviewed by
the ADR administrator before they are submitted to the pro
bono evaluator, mediator or arbitrator. If they contain
materials not previously submitted in support of the claim,
then the PI Trust claims department will review the
additional information and determine the effect, if any, it
would have on the PI Trust's evaluation of the claim. In
appropriate situations, a new offer may be made to the
claimant.
If an attorney or other agent represents the claimant, both
the attorney and the claimant must also sign the Election
and Agreement for Binding Arbitration. The attorney or
agent may not sign in place of, or for, the claimant unless
the claimant is incapacitated, incompetent or deceased and
the attorney or agent has been designated legally to act on
the claimant's behalf. Documentation of this legal
designation will be required.
B. NO GROUPING OR BUNDLING OF CLAIMS
AS A GENERAL MATTER, there shall be no grouping or bundling
of claims by separate claimants at any stage of the ADR or
arbitrations even if the claims are related and/or the
claimants have the same counsel. Each claimant must proceed
individually through the ADR and arbitration processes with
all claims that claimant may have or represent. This
provision is intended to separate claims of different
exposed persons and has no effect upon multiple claims
brought by a claimant's representative, such as heirs of a
deceased worker. However, the PI Trust, in its sole
discretion, may decide that it would be expeditious to
allow the conduct of arbitration proceeding with respect to
Exhibit 1.24-A-15
more than one claim of different exposed persons, provided
that the arbitrator individually values each such claim in
accordance with the valuation factors set forth in Section
5.3(b)(2) of the TDP, and the respective claimants'
separate positions in the PI Trust's FIFO Processing and
Payment Queues are maintained.
C. NO EX PARTE COMMUNICATION
There shall be no ex parte communication between the
arbitrator or pro bono evaluator and any counsel or party
in any matter. All correspondence between the arbitrator or
pro bono evaluator and the parties will be facilitated by
the Private Adjudication Coordinator.
D. CLAIMS AND DEFENSES
All available claims and defenses which exist under the law
subject to the claimant's election under the TDP shall be
available to both sides.
E. COSTS OF ADR
1. ADR EXPENSES
The PI Trust will pay the arbitrator's fee for
non-binding or binding arbitration up to two
thousand dollars ($2,000.00) per claim depending
on the length of the hearing. The pro bono
evaluator is a volunteer and thus no fee will be
incurred. The PI Trust will assume costs of
meeting and hearing facilities for arbitration.
Claimants will pay their costs and attorney fees
including any expenses incurred should the
claimant testify.
2. FILING FEE
No filing fee is required of the claimant for any
ADR selection, unless the PI Trust with the
consent of the TAC and the Future Claimants'
Representative decide that it would be in the
best interests of the PI Trust and its
beneficiaries to adopt such a fee.
F. WAIVER OF OBJECTION TO RULES INFRACTION
Either party who continues with the pro bono evaluation,
mediation, non-binding arbitration, or binding arbitration
proceeding after knowing that any provision or requirement
of the applicable rules has not been complied with, and who
fails to state a timely objection in writing to the
arbitrator, mediator or pro bono evaluator, shall be deemed
to have waived the right to object. A timely objection by a
claimant must be stated in writing and mailed to the PI
Trust with instructions to forward the objection to the
Private Adjudication Coordinator and to the arbitrator,
mediator or pro bono evaluator. A timely objection by the
PI Trust will be mailed to the claimant and to the Private
Adjudication Coordinator with instructions to forward to
the arbitrator, mediator or pro bono evaluator.
G. SERVING OF NOTICES AND OTHER PAPERS
Each party to the ADR and arbitration agreements shall be
deemed to have consented that any papers, notices, or
processes necessary or proper for the initiation or
Exhibit 1.24-A-16
continuation of ADR and Arbitration proceedings under these
rules may be served upon such party as follows:
1. By regular U.S. mail or overnight courier
addressed to such party or their attorneys at
their last known address;
2. By facsimile, transmission, if a copy of the
transmitted papers is mailed addressed to the
party or their attorney at their last known
address within twenty-four (24) hours of the
facsimile transmission; or,
3. By personal service, within or without the state
where the pro bono evaluation, mediation or
arbitration is to be held, whether the party is
within or without the United States of America.
H. TIME LIMITS TRIGGERED UPON RECEIPT
1. Documents sent by U.S. mail under these rules
shall be deemed received three (3) business days
after the date of postmark. Documents sent via
overnight mail shall be deemed received on the
next business day after mailing.
2. Documents sent via facsimile transmission shall
be deemed received on the business day that the
transmission is received.
I. EXCLUSION OF LIABILITY
Neither the Private Adjudication Coordinator nor the
mediator, nor the arbitrator nor pro bono evaluator shall
be liable to any party for any act or omission in
connection with any evaluation conducted under these rules.
J. RELATIONSHIP OF RULES TO ELECTION FORM FOR PRO BONO
EVALUATION, REQUEST FOR MEDIATION, NON-BINDING ARBITRATION
AGREEMENT OR BINDING ARBITRATION AGREEMENT
These Rules shall be deemed a part of, and incorporated by
reference in, every duly executed ADR agreement or
arbitration agreement and shall be binding on all parties.
K. ARBITRATOR/PRO BONO EVALUATOR IMMUNITY
Arbitrators or pro bono evaluators who serve pursuant to
these rules shall have the same immunity as judges for
their official acts.
L. JURISDICTION
Any dispute under these rules shall be subject to the
jurisdiction of the United States Bankruptcy Court for the
District of Delaware.
M. STATEMENT OF CONFIDENTIALITY
1. All ADR and arbitration proceedings and
information relating to the proceeding will be
confidential. Neither party shall disclose the
information obtained during the proceedings,
nor the valuation placed on the case by an
arbitrator or pro bono evaluator to anyone or
use such information or valuation in any
Exhibit 1.24-A-17
further proceeding except as necessary to
maintain the PI Trust's obligation to report to
the Bankruptcy Court and to provide ongoing
evaluation by the PI Trust and TAC. Except for
documents prepared by a non-party which are
introduced as evidence before an arbitrator or
pro bono evaluator, any document prepared by
another party, attorney or other participant in
anticipation of the ADR is privileged and shall
not be disclosed to any court or arbitrator/pro
bono evaluator or construed for any purpose as
an admission against interest.
2. All ADR and arbitration proceedings shall be
deemed a settlement conference pursuant to Rule
408 of the Federal Rules of Evidence. Except by
agreement of the parties, the parties will not
introduce into evidence in any other
proceedings the fact that there was an
arbitration, the nature or amount of the award,
and written submissions, may be used for
purposes of showing accord and satisfaction or
res judicata. In binding arbitration, the
decision of the arbitrator may be admissible in
the event the claimant improperly seeks to
litigate the claim. The binding arbitration
award shall be admissible in support of a
motion to enjoin such litigation. No arbitrator
or pro bono evaluator will ever be subpoenaed
or otherwise required by any party or any third
party, to testify or produce records, notes or
work product in any future proceedings.
N. AMENDMENTS
Except as otherwise ruled by the Bankruptcy Court, these
rules, as they may from time to time be amended by the PI
Trustees, will be binding on all parties in the form in
which they are in force on the date the claimant signs the
election agreement.
O. TIME LIMITS
The time limits included in these procedures are to be
strictly enforced. Any time limit set forth herein may be
extended by agreement of the parties or for cause shown to
the neutral party presiding over the particular ADR or
arbitration proceeding. Any request for extension, however,
shall first be made to the opposing party and then if the
parties cannot agree, shall be submitted to the Private
Adjudication Coordinator who will request a ruling from the
pro bono evaluator, mediator, or arbitrator as the case may
be.
Although the deadlines may be extended by agreement or for
cause shown, failure to comply with a deadline without
obtaining an extension may result in withdrawal of the
claim. Promptly after a claimant fails to comply with a
specified deadline without obtaining an extension, the PI
Trust shall send the claimant written notice of the failure
to comply. If the claimant does not take any action on the
claim, then thirty (30) days thereafter the claim will be
deemed withdrawn.
Exhibit 1.24-A-18
AWI PI TRUST
ELECTION FORM FOR PRO BONO EVALUATION
I, ___________________________________ ("CLAIMANT"), Claim No.
_____________, hereby elect and agree to:
Non-Binding document evaluation of my claim by an individual selected
from a Panel of Pro Bono Evaluators who volunteered to serve at the
request of the PI Trust Advisory Committee.
Unless the box below is initialed, the undersigned waives anonymity
of the claimant in the Pro Bono Evaluation of this claim. The PI
Trust encourages leaving this box blank and waiving anonymity so that
medical records may be transmitted in their original form.
[ ]
Dated: _____________________________, ______.
------------------------------------
Claimant or Claimant's Attorney
Accepted and Consented to:
AWI PI TRUST
By:_________________________________
________________________________Title
Dated:_______________________________
Exhibit 1.24-A-19
STATE OF _____________________ )
) SS:
COUNTY OF ____________________ )
AFFIDAVIT OF COMPLETENESS
I, ______________________________________, as the person [or legal
representative of the person] who has filed a claim against the AWI PI Trust,
being duly sworn, depose and say:
I have furnished all information which I wish to be considered in the
valuation of claim number
----------------------.
I certify (or declare) under penalty of perjury, that the foregoing
is true and correct.
By_____________________________________________
Claimant or Legal Representative of Claimant
Date_________________________
Sworn to before me this _______ day of __________________________, _______.
------------------------------------------
Exhibit 1.24-A-20
AWI PI TRUST
REQUEST FOR MEDIATION FORM
I, ___________________________________ ("CLAIMANT"), Claim No.
_____________, hereby elect and agree to:
Attempt in good faith to resolve the dispute with the PI Trust
relating to my claim promptly by confidential Mediation under the
terms set forth for Mediation procedure established by the PI Trust.
I have been provided with a copy of the rules relating to Mediation
established by the PI Trust. I understand and agree to those rules in
the course of the Mediation.
Dated: _____________________________, ______.
------------------------------------
Claimant or Claimant's Attorney
Accepted and Consented to:
AWI PI TRUST
By:_________________________________
________________________________Title
Dated:_______________________________
Exhibit 1.24-A-21
AWI PI TRUST
ELECTION FORM AND AGREEMENT FOR
BINDING ARBITRATION
I, ___________________________________ ("CLAIMANT"), Claim No.
_____________, hereby elect and agree to:
Submit all disputes with the PI Trust relating to my claim to Binding
Arbitration under the terms set forth for Binding Arbitration
procedure established by the PI Trust. I have been provided with a
copy of the rules relating to Binding Arbitration established by the
PI Trust. I understand and agree to those rules in the course of the
Binding Arbitration. I understand that as a result of this agreement
if accepted by the PI Trust, I will waive my rights to litigate my
claim in Court including the right to trial by jury and I will be
bound by the arbitration award.
Dated: _____________________________, _______.
------------------------------------
Claimant
------------------------------------
Claimant's Attorney
CLAIMANT AND ATTORNEY MUST BOTH SIGN
Accepted and Consented to:
By accepting this agreement the PI Trust waives its rights to litigate the
claimant's claim in Court including the right to trial by jury and agrees to be
bound by the arbitration award.
AWI PI TRUST
By:_________________________________
________________________________Title
Dated:_______________________________
Exhibit 1.24-A-22
AWI PI TRUST
ELECTION FORM AND AGREEMENT FOR
NON-BINDING ARBITRATION
I, ___________________________________ ("CLAIMANT"), Claim No.
_____________, hereby elect and agree to:
Submit all disputes with the PI Trust relating to my claim to
Non-Binding Arbitration under the terms set forth for Non-Binding
Arbitration procedure established by the PI Trust. I have been
provided with a copy of the rules relating to Non-Binding Arbitration
established by the PI Trust. I understand and agree to those rules in
the course of the Non-Binding Arbitration.
Dated: _____________________________, _______.
------------------------------------
Claimant or Claimant's Attorney
Accepted and Consented to:
AWI PI TRUST
By:_________________________________
________________________________Title
Dated:_______________________________
Exhibit 1.24-A-23
ATTACHMENT B
THE ARMSTRONG WORLD INDUSTRIES, INC. ASBESTOS PERSONAL
INJURY SETTLEMENT TRUST
PROOF OF CLAIM FORMS
Exhibit 1.24-B-1
ARMSTRONG PI SETTLEMENT TRUST
PROOF OF CLAIM FORM
UNLIQUIDATED PI TRUST CLAIMS
- --------------------------------------------------------------------------------
Submit completed claims
- --------------------------------------------------------------------------------
INSTRUCTIONS FOR THE CLAIM FORM
Complete this claim form as thoroughly and accurately as possible. Please type
or print neatly. Should there be insufficient space to list all relevant
information, please attach additional sheets. In addition to filing the forms
that follow, please ensure the following are enclosed, if applicable:
- Death Certificate (if applicable)
- Certificate of Official Capacity (if personal representative is
filing form)
- Medical records as requested in instructions
- Proof of Armstrong World Industries, Inc.("AWI") product exposure
as set out in the instructions
- Copy of cover sheet of complaint (if applicable - see Part 8 below)
- Copy of W-2 and first page of IRS Form 1040 (if applicable - see
Part 9 below)
REPRESENTATION
IF COUNSEL REPRESENTS CLAIMANT, PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION:
Attorney Name: ______________________________________________________
Paralegal or Contact Name: _____________________________________________
Name of Law Firm: ___________________________________________________
Firm Address: ________________________________________________________
--------------------------------------------------------
Attorney Phone: __________________________ Fax: ______________________
Contact Phone: ___________________________ Fax: ______________________
Attorney's or Law Firm's Tax ID Number __________________________________
Exhibit 1.24-B-2
AWI UNLIQUIDATED CLAIM FORM
PART 1: CHOICE OF CLAIM PROCESS
Please choose the applicable claim process (choose only one):
[ ] 1. Expedited review (not available for Disease Level VI)
[ ] 2. Individual Review
[ ] 3. Extraordinary Claim (must also undergo Individual Review)
[ ] 4. Cash Discount Payment ($400) (available for Disease Level I Other
Asbestos Disease)
Exhibit 1.24-B-3
AWI UNLIQUIDATED CLAIM FORM
PART 2: INJURED PARTY INFORMATION
- --------------------------------------------------------------------------------
NAME: _____________________________ SOCIAL SECURITY #: ______-______-______
GENDER: MALE ______ FEMALE ______ DATE OF BIRTH: _____/_____/_____
- --------------------------------------------------------------------------------
I. Is injured party living? Yes _____ No _____
II. If injured party is living and not represented by counsel, please
complete the following:
MAILING ADDRESS: _____________________________________________
---------------------------------------------
DAYTIME PHONE: ( ) ______-________
III. If injured party is deceased: (Death certificate must be enclosed)
Date of death: _____/_____/_____
Was death asbestos related? Yes _____ No _____
IV. If injured party has personal representative other than, or in
addition to his/her attorney, please indicate the following
information for the representative (Certificate of Official Capacity
must be enclosed)
Name: _________________________ Social Security#: _____/_____/_____
Mailing Address: ___________________________________________________
---------------------------------------------------
Daytime Phone: ( ) _____-_______
Relationship to injured Party: I am party's: ______________________
(spouse, child, other)
Exhibit 1.24-B-4
AWI UNLIQUIDATED CLAIM FORM
PART 3: DIAGNOSED ASBESTOS-RELATED INJURIES
Place an X next to the highest level (most serious) asbestos-related Disease
Level that has been diagnosed for the injured party and for which medical
documentation is attached to this claim form. See instructions for listing of
the specific medical criteria and records that must be enclosed for each Disease
Level. (Check only the most serious.)
- --------------------------------------------------------------------------------
[ ] Level I. Other Asbestos Disease Date of Diagnosis ___/___/___
[ ] Level II Asbestosis/Pleural Disease Date of Diagnosis ___/___/___
[ ] Level III. Asbestosis/Pleural Disease Date of Diagnosis ___/___/___
[ ] Level IV. Severe Asbestosis Date of Diagnosis ___/___/___
[ ] Level V. Other Cancer:
Colo-rectal Date of Diagnosis ___/___/___
Laryngeal Date of Diagnosis ___/___/___
Esophageal Date of Diagnosis ___/___/___
Pharyngeal Date of Diagnosis ___/___/___
Stomach Date of Diagnosis ___/___/___
[ ] Level VI. Lung Cancer 2 Date of Diagnosis ___/___/___
[ ] Level VII. Lung Cancer 1 Date of Diagnosis ___/___/___
[ ] Level VIII. Malignant Mesothelioma Date of Diagnosis ___/___/___
- --------------------------------------------------------------------------------
THE CLAIMS MUST MEET THE RELEVANT MEDICAL CRITERIA AND BE SUPPORTED BY
APPROPRIATE MEDICAL DOCUMENTATION AS DELINEATED IN THE TRUST DISTRIBUTION
PROCEDURES ("TDP"). THE PRESUMPTIVE MEDICAL CRITERIA FOR THE EIGHT DISEASE
LEVELS SET FORTH ABOVE ARE ATTACHED TO THIS CLAIM FORM.
Exhibit 1.24-B-5
AWI UNLIQUIDATED CLAIM FORM
PART 4: DEPENDENTS AND BENEFICIARIES
List any other persons represented by counsel for claimant who may have rights
associated with this claim. Be sure to include the injured party's spouse, any
dependents who derive (or who did derive at the time of the injured person's
death) at least one-half of their financial support from the injured party.
Also list beneficiaries represented by counsel for claimant who are entitled to
pursue an action for wrongful death under applicable state law.
If more than four, please photocopy this page, and insert after current page.
- --------------------------------------------------------------------------------
Name: _______________________________ Date of Birth: ____/____/____
Relationship: Spouse Financially Dependent? Yes / No
--------
Child (Circle One)
Other: _____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Name: _______________________________ Date of Birth: ____/____/____
Relationship: Spouse Financially Dependent? Yes / No
--------
Child (Circle One)
Other: _____
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- --------------------------------------------------------------------------------
Name: _______________________________ Date of Birth: ____/____/____
Relationship: Spouse Financially Dependent? Yes / No
--------
Child (Circle One)
Other: _____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Name: _______________________________ Date of Birth: ____/____/____
Relationship: Spouse Financially Dependent? Yes / No
--------
Child (Circle One)
Other: _____
- --------------------------------------------------------------------------------
Exhibit 1.24-B-6
AWI UNLIQUIDATED CLAIM FORM
Part 5: Armstrong World Industries, Inc. ("AWI") Exposure, Significant
Occupational Exposure and/or 5-Year Cumulative Occupational Exposure
PROOF OF AWI PRODUCT EXPOSURE MUST BE ENCLOSED AS REQUIRED BY TDP SECTION
5.7(B). (SEE INSTRUCTIONS)
PLEASE PHOTOCOPY THIS PAGE AND LIST SEPARATELY EACH SITE, INDUSTRY OR OCCUPATION
UPON WHICH CLAIMANT RELIES TO ESTABLISH:
A. AWI EXPOSURE;
B. SIGNIFICANT AND/OR 5-YEAR CUMULATIVE OCCUPATIONAL EXPOSURE.
A. AWI EXPOSURE:
1. Name of Plant/Site of Exposure: _____________________________________
City: _______________ State ________________
2. Month/Year Exposure Began: ____/____ Month/Year Exposure Ended: ____/____
3. Occupation at time of Exposure (e.g., Laborer, etc.) _____________
- --------------------------------------------------------------------------------
4. Industry in which exposure occurred: ____ (Industry codes listed
below.) If code is 37 (other), specify the other industry:
---------------------------
- --------------------------------------------------------------------------------
INDUSTRY CODES
10. Asbestos mining 24. Petrochemical
11. Aerospace/aviation 25. Insulation
12. Asbestos abatement 27. Railroad
13. Automobile/mechanical friction 30. Shipyard-construction/repair
16. Chemical 31. Textile
17. Construction trades 32. Tire/rubber
18. Iron/steel 33. Utilities
19. Longshore 34. Asbestos products manufacturing
20. Maritime 36. Building occupant/bystander
21. Military 37. Other
23. Non-asbestos products manufacturing
Exhibit 1.24-B-7
5. Circumstances of Injured Party's AWI Exposure. _____________________________
- --------------------------------------------------------------------------------
B. SIGNIFICANT AND/OR 5-YEAR CUMULATIVE OCCUPATIONAL EXPOSURE:
Does the AWI exposure described above satisfy the Significant Occupational
Exposure and/or the 5-year cumulative occupational exposure requirements
contained in TDP Section 5.7(b)?
________ Yes _________ No
IF YES, THERE IS NO NEED TO COMPLETE THIS SECTION UNLESS CLAIMANT WISHES
TO SUBMIT SUCH EVIDENCE FOR INDIVIDUAL EVALUATION. IF NO, GIVE THE FOLLOWING
INFORMATION FOR EACH JOB SITE CLAIMANT IS RELYING UPON TO ESTABLISH THE
SIGNIFICANT OCCUPATIONAL EXPOSURE OR 5-YEAR CUMULATIVE OCCUPATIONAL EXPOSURE
REQUIREMENTS IN THE TDP (PLEASE PHOTOCOPY AND USE SEPARATE PAGE FOR EACH JOB
SITE):
1. Job Site City/State Years of Exposure
-----------------------------------------------------------------
2. Occupation at time of exposure: _______________________________________
3. Industry _______ (Industry Codes listed above). If code is 37 (other),
specific the other industry
----------------------------------------------
4. Indicate circumstances of exposure:
a. Claimant handled raw asbestos fibers on a regular basis _________; or
b. Claimant fabricated asbestos-containing products such that the
claimant in the fabrication process was exposed on a regular basis to
raw asbestos fibers ________; or
c. Claimant altered, repaired or otherwise worked with an
asbestos-containing product such that the claimant was exposed on a
regular basis to raw asbestos fibers_________; or
d. Claimant was employed in an industry or occupation such that the
claimant worked on a regular basis in close proximity to workers who
did one or more of the above three activities. ___________
Exhibit 1.24-B-8
AWI UNLIQUIDATED CLAIM FORM
PART 6: EXPOSURE TO AN OCCUPATIONALLY EXPOSED PERSON
Is the claimant alleging an asbestos-related disease resulting in whole or in
part from another person's occupational exposure, such as a family member
(spouse, father, sister, etc.)?
Yes ______ No ______ If yes, Part 5 must also be completed for each
occupationally exposed person.
Date Exposure to other person began: Month ________ Year _______
Date Exposure to other person Ended: Month ________ Year _______
Relationship to occupationally exposed individual:
I am his/her ________________________________________
(brother, son, spouse, etc.)
Describe how injured party was exposed to the Armstrong World Industries, Inc.
product:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
REMINDER: PART 5 MUST BE COMPLETED FOR THE OCCUPATIONALLY EXPOSED PERSON.
Exhibit 1.24-B-9
AWI UNLIQUIDATED CLAIM FORM
PART 7: SMOKING HISTORY
NOTE: THIS INFORMATION IS RELEVANT ONLY TO CLAIMS INVOLVING DISEASE LEVEL VII,
LUNG CANCER 1, FOR WHICH THE CLAIMANT ELECTS INDIVIDUAL REVIEW, OR TO CLAIMS
INVOLVING DISEASE LEVEL VI, LUNG CANCER 2, FOR WHICH INDIVIDUAL REVIEW IS
REQUIRED. THUS, THIS SECTION DOES NOT NEED TO BE COMPLETED IF YOUR CLAIM IS FOR
DISEASE LEVELS I THROUGH V, DISEASE LEVEL VII (EXPEDITED REVIEW), OR DISEASE
LEVEL VIII.
For each item, indicate whether injured party has smoked or used the given
product. If cigarettes were smoked, indicate the dates they were used, and the
amount per day. Indicate fractional packs as appropriate, e.g. three and
one-half packs would be entered as 3.5.
- --------------------------------------------------------------------------------
Has the injured party ever:
SMOKED CIGARETTES? Yes _____ No _____
From _____/_____ To: _____/_____ Packs per day: _____._____
From _____/_____ To: _____/_____ Packs per day: _____._____
From _____/_____ To: _____/_____ Packs per day: _____._____
From _____/_____ To: _____/_____ Packs per day: _____._____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Has the injured party ever:
SMOKED CIGARS? Yes _____ No _____
From _____/_____ To: _____/_____
From _____/_____ To: _____/_____
From _____/_____ To: _____/_____
From _____/_____ To: _____/_____
- --------------------------------------------------------------------------------
Exhibit 1.24-B-10
AWI UNLIQUIDATED CLAIM FORM
PART 8: ASBESTOS LITIGATION
Has a lawsuit ever been filed on behalf of the injured party? Yes _____ No_____
Two-letter abbreviation of the state in which the suit was originally filed:
Name of court in which suit was originally filed:
_________________________________
Date on which the suit was originally filed: _________________________________
Has injured party received settlement money from Armstrong World Industries,
Inc.?
Yes ___No___
What is the current status of this suit? [ ] Pending [ ] Judgment
[ ] Dismissed [ ] Settled
PLEASE ATTACH A PHOTOCOPY OF THE ENDORSED COVER SHEET OF THE FILED COMPLAINT.
Exhibit 1.24-B-11
AWI UNLIQUIDATED CLAIM FORM
PART 9: EMPLOYMENT INFORMATION
NOTE: THIS SECTION IS OPTIONAL AND ONLY NEEDS TO BE COMPLETED IF YOU WISH THIS
INFORMATION CONSIDERED IN CONNECTION WITH A CLAIM TO BE PROCESSED BY INDIVIDUAL
REVIEW.
Current Employment Status:
[ ] Full-time, outside the home
[ ] Full-time, within the home
[ ] Part-time, outside the home
[ ] Part-time, within the home
[ ] Retired
[ ] Disabled
Amount of last annual wages: $__________,__________.______
Date of last wage received:________/________
(Month) (Year)
(Enter current month and year if currently earning work-related compensation)
W-2 AND FIRST PAGE OF FORM 1040 FOR LAST YEAR OF FULL EMPLOYMENT MUST BE
ENCLOSED IF LOST WAGES ARE BEING CLAIMED.
Exhibit 1.24-B-12
AWI UNLIQUIDATED CLAIM FORM
PART 10: SIGNATURE PAGE
ALL CLAIMS MUST BE SIGNED BY THE CLAIMANT, OR THE PERSON FILING ON HIS/HER
BEHALF (SUCH AS THE PERSONAL REPRESENTATIVE OR ATTORNEY).
I have reviewed the information submitted on this claim form and all documents
submitted in support of this claim. To the best of my knowledge under penalty of
perjury, the information submitted is accurate and complete.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature of claimant or Representative
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print the name and relationship to the claimant of the signatory above.
PLEASE REVIEW YOUR SUBMISSION TO ENSURE IT IS COMPLETE.
[ ] Death Certificate (if applicable)
[ ] Certificate of Official Capacity (if personal
representative is filing form)
[ ] Medical Records as required by the TDP and as requested in
the instructions.
[ ] Proof of Armstrong World Industries, Inc. product exposure
as required in the TDP and requested in the instructions.
[ ] Cover sheet of filed complaint (if Part 8 is applicable).
[ ] W-2 and first page of IRS form 1040 (if Part ( is
applicable).
Exhibit 1.24-B-13
ARMSTRONG WORLD INDUSTRIES, INC. TDP
PRESUMPTIVE MEDICAL CRITERIA
MESOTHELIOMA (LEVEL VIII) (1) Diagnosis (1) of mesothelioma; and (2)
credible evidence of AWI Exposure (as defined
in Section 5.7(b)(3) below).
LUNG CANCER 1 (LEVEL VII) (1) Diagnosis of a primary lung cancer plus
evidence of an underlying Bilateral
Asbestos-Related Nonmalignant Disease (2), (2)
six months AWI Exposure prior to December 31,
1982, (3) Significant Occupational Exposure to
asbestos (as defined in Section 5.7(b)(2)
below), and (4) supporting medical
documentation establishing asbestos exposure as
a contributing factor in causing the lung
cancer in question.
LUNG CANCER 2 (LEVEL VI) (1) Diagnosis of a primary lung cancer; (2) AWI
Exposure prior to December 31, 1982, and (3)
supporting medical documentation establishing
asbestos exposure as a contributing factor in
causing the lung cancer in question.
Lung Cancer 2 (Level VI) claims are claims that
do not meet the more stringent medical and/or
exposure requirements of Lung Cancer (Level
VII) claims. All claims in this Disease Level
will be individually evaluated. The estimated
likely average of the individual evaluation
awards for this category is $15,000, with such
awards capped at $50,000 unless the claim
qualifies for Extraordinary Claim treatment (as
described in Section 5.4(a) below).
Level VI claims that show no evidence of either
an underlying Bilateral Asbestos-Related
Non-malignant Disease or Significant
Occupational Exposure may be individually
- ------------------------------
(1) The requirements for a diagnosis of an asbestos-related disease that may be
compensated under the provisions of this TDP are set forth in Section 5.7 below.
(2) Evidence of "Bilateral Asbestos-Related Nonmalignant Disease" for purposes
of meeting the criteria for establishing Disease Levels I, II, V, and VII, means
a report submitted by a qualified physician stating that the claimant has or had
either (i) a chest X-ray read by a qualified B reader of 1/0 or higher on the
ILO scale or, (ii) a chest X-ray read by a qualified B reader showing bilateral
pleural plaques, bilateral pleural thickening, or bilateral pleural
calcification, or (iii) a CT scan read by a qualified physician showing
bilateral pleural plaques, bilateral pleural thickening, or bilateral pleural
calcification. Solely for claims filed against AWI or another asbestos defendant
in the tort system prior to the Petition Date, if an ILO reading is not
available, either (x) a chest x-ray read by a qualified B reader or (y) a CT
scan read by a qualified physician, showing bilateral interstitial fibrosis,
bilateral interstitial markings, bilateral pleural plaques, bilateral pleural
thickening, or bilateral pleural calcification consistent with, or compatible
with, a diagnosis of asbestos-related disease shall be evidence of Bilateral
Asbestos-Related Nonmalignant Disease for purposes of meeting the presumptive
medical requirements of Disease Level I, II, V and VII.
Exhibit 1.24-B-14
evaluated, although it is not expected that
such claims will be treated as having any
significant value, especially if the claimant
is also a Smoker. (3) In any event, no
presumption of validity will be available for
any claims in this category.
OTHER CANCER (LEVEL V) (1) Diagnosis of a primary colo-rectal,
laryngeal, esophageal, pharyngeal, or stomach
cancer, plus evidence of an underlying
Bilateral Asbestos-Related Nonmalignant
Disease, (2) six months AWI Exposure prior to
December 31, 1982, (3) Significant Occupational
Exposure to asbestos, and (4) supporting
medical documentation establishing asbestos
exposure as a contributing factor in causing
the other cancer in question.
SEVERE ASBESTOSIS (LEVEL IV) (1) Diagnosis of asbestosis with ILO of 2/1 or
greater, or asbestosis determined by
pathological evidence of asbestos (4), plus (a)
TLC less than 65%, or (b) FVC less than 65% and
FEV1/FVC ratio greater than 65%, (2) six months
AWI Exposure prior to December 31, 1982, (3)
Significant Occupational Exposure to asbestos,
and (4) supporting medical documentation
establishing asbestos exposure as a
contributing factor in causing the pulmonary
disease in question.
ASBESTOSIS/
PLEURAL DISEASE (LEVEL III) Diagnosis of asbestosis with ILO of 1/0 or
greater or asbestosis determined by pathology,
or bilateral pleural disease of B2 or greater,
plus (a) TLC less than 80%, or (b) FVC less
than 80% and FEV1/FVC ratio greater than or
equal to 65%, and (2) six months AWI Exposure
prior to December 31, 1982, (3) Significant
Occupational Exposure to asbestos, and (4)
supporting medical documentation establishing
asbestos exposure as a contributing factor in
causing the pulmonary disease in question.
- ---------------------------
(3) There is no distinction between Non-Smokers and Smokers for either Lung
Cancer (Level VII) or Lung Cancer (Level VI), although a claimant who meets the
more stringent requirements of Lung Cancer (Level VII) (evidence of an
underlying Bilateral Asbestos-Related Nonmalignant Disease plus Significant
Occupational Exposure), and who is also a Non-Smoker, may wish to have his or
her claim individually evaluated by the PI Trust. In such a case, absent
circumstances that would otherwise reduce the value of the claim, it is
anticipated that the liquidated value of the claim might well exceed the $42,500
Scheduled Value for Lung Cancer 1 (Level VII) shown above. "NON-SMOKER" means a
claimant who either (a) never smoked or (b) has not smoked during any portion of
the twelve (12) years immediately prior to the diagnosis of the lung cancer.
(4) Proof of asbestosis may be based on the pathological grading system for
asbestosis described in the Special Issue of the Archives of Pathology and
Laboratory Medicine, "Asbestos-associated Diseases," Vol. 106, No. 11, App. 3
(October 8, 1982).
Exhibit 1.24-B-15
ASBESTOSIS/
PLEURAL DISEASE (LEVEL II) (1) Diagnosis of a Bilateral
Asbestos-Related Nonmalignant Disease, and (2)
six months AWI Exposure prior to December 31,
1982, and (3) five years cumulative
occupational exposure to asbestos.
OTHER ASBESTOS DISEASE (LEVEL I -
CASH DISCOUNT PAYMENT) (1) Diagnosis of a Bilateral
Asbestos- Related Nonmalignant Disease or an
asbestos-related malignancy other than
mesothelioma, and (2) AWI Exposure prior to
December 31, 1982.
Exhibit 1.24-B-16
ARMSTRONG WORLD INDUSTRIES, INC.
PI SETTLEMENT TRUST
PROOF OF CLAIM FORM
PRE-PETITION LIQUIDATED CLAIMS
- --------------------------------------------------------------------------------
Submit completed claims
- --------------------------------------------------------------------------------
INSTRUCTIONS FOR THE CLAIM FORM
Complete this claim form as thoroughly and accurately as possible. Please type
or print neatly. Should there be insufficient space to list all relevant
information, please attach additional sheets. In addition to filing the forms
that follow, please ensure the following are enclosed, if applicable:
- Death Certificate (if applicable)
- Certificate of Official Capacity (if personal representative is
filing form)
- Documentary evidence of the Pre-Petition Liquidated Claim
REPRESENTATION
IF COUNSEL REPRESENTS CLAIMANT, PLEASE PRINT OR TYPE THE FOLLOWING INFORMATION:
Attorney Name: ______________________________________________________
Paralegal or Contact Name: _____________________________________________
Name of Law Firm: ___________________________________________________
Firm Address: ________________________________________________________
--------------------------------------------------------
Attorney Phone: __________________________ Fax: ______________________
Contact Phone: ___________________________ Fax: ______________________
Attorney's or Law Firm's Tax ID Number __________________________________
Exhibit 1.24-B-17
AWI PRE-PETITION LIQUIDATED
CLAIM FORM
PART 1: INJURED PARTY INFORMATION
- --------------------------------------------------------------------------------
NAME: _____________________________ SOCIAL SECURITY #: ______-______-______
GENDER: MALE ______ FEMALE ______ DATE OF BIRTH: _____/_____/_____
- --------------------------------------------------------------------------------
I. Is injured party living? Yes _____ No _____
II. If injured party is living and not represented by counsel, please complete
the following:
MAILING ADDRESS: _____________________________________________
---------------------------------------------
DAYTIME PHONE: ( ) ______-________
III. If injured party is deceased: (Death certificate must be enclosed)
Date of death: _____/_____/_____
Was death asbestos related? Yes _____ No _____
IV. If injured party has personal representative other than, or in
addition to his/her attorney, please indicate the following
information for the representative (Certificate of Official Capacity
must be enclosed)
Name: ____________________________ Social Security#: ____/_____/___
Mailing Address:___________________________________________________
---------------------------------------------------
Daytime Phone: ( ) _____-_______
Relationship to injured Party: I am party's: _____________________
(spouse, child, other)
Exhibit 1.24-B-18
AWI PRE-PETITION LIQUIDATED
CLAIM FORM
PART 2: CLAIM INFORMATION
1. What was the Pre-Petition Liquidated Value $____________
2. What was the date of Pre-Petition Liquidated Claim ___/___/___
3. What proof is being submitted that documents your Pre-Petition Liquidated
Claim?
MARK AN X WHERE APPROPRIATE
- ---------------------------
[ ] Binding agreement entered into prior to the December 6, 2000 Petition
Date for the particular claim that is judicially enforceable by the
claimant
[ ] Jury verdict or non-final judgment in the tort system obtained prior
to the December 6, 2000 Petition Date
[ ] Judgment that became final and non-appealable prior to the December
6, 2000 Petition Date
[ ] If you believe you have other evidence of a pre-petition liquidated
settlement, please described the type of document being submitted:
--------------------------------------------------
Exhibit 1.24-B-19
AWI PRE-PETITION LIQUIDATED
CLAIM FORM
PART 3: SIGNATURE PAGE
THE CLAIMANT OR THE PERSON FILING ON HIS/HER BEHALF (SUCH AS THE PERSONAL
REPRESENTATIVE OR ATTORNEY) MUST SIGN ALL CLAIMS.
I have reviewed the information submitted on this claim form and all documents
submitted in support of this claim. To the best of my knowledge under penalty of
perjury, the information submitted is accurate and complete.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature of claimant or Representative
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print the name and relationship to the claimant of the signatory above.
PLEASE REVIEW YOUR SUBMISSION TO ENSURE IT IS COMPLETE.
[ ] Death Certificate (if applicable)
[ ] Certificate of Official Capacity (if personal representative is
filing form)
[ ] Documentary evidence of the Pre-Petition Liquidated Claim
Exhibit 1.24-B-20