Exhibit 3.1
Ss. 178.50,
180.0124, State of Wisconsin
181.0124 & DEPARTMENT OF FINANCIAL INSTITUTIONS [SEAL]
183.0122 Division of Corporate & Consumer Services
Wis. Stats.
ARTICLES OF CORRECTION
1. Neenah Foundry Company
-----------------------------------------------------------------------------
(Name of the corporation, limited liability company, or limited liability
partnership BEFORE any correction that may be affected by these articles of
correction)
2. Amended and Restated Cert. of Incorporation filed with the Department of
---------------------------------------------
(Describe the document)
Financial Institutions on October 8, 2003 (date) was
------------------
[X] Incorrect at the time of filing (Complete items 1, {
2, 3, 4 & 6) {
{
[ ] Defectively executed (Complete items 1, 2, 3 & 5) {(x) Check any that apply
{
[ ] Defective in attestation, seal, verification or {
acknowledgment (Complete items 1, 2, 3 & 6) {
3. Describe the defect(s): (Specify the incorrect statement and the reason why
it is incorrect, or the manner in which the execution is defective.)
Article Six refers to the laws of the State of Delaware, which is incorrect
since Neenah Foundry Company is a Wisconsin corporation.
[STAMP: [STAMP:
RECEIVED - DEPT OF STATE OF WISCONSIN
FINANCIAL INSTITUTIONS FILED
STATE OF WISCONSIN DEC 11 2003
DEPARTMENT OF
03 DEC 10 PM 2:22] FINANCIAL INSTITUTIONS]
4. Enter the statement in its corrected condition:
The first sentence in Article Six should read as follows:
"To the fullest extent permitted by the Business Corporation Law of the State of
Wisconsin as the same exists or may hereafter be amended, a director of this
corporation shall not be liable to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty at a director."
- --------------------------------------------------------------------------------
FILING FEE - Business corporation, limited liability company or limited
liability partnership - $40.00; Nonstock (including non-profit) corporation -
$10.00. See instructions, suggestions and procedures on following pages.
DFI/CORP/53(R02-10-03) Use of this form is voluntary. 1 of 4
4. Enter the statement in its corrected condition (cont'd):
5. Make the corrected execution:
Executed on __/__/________ _______________________
(Date) (Signature)
Select and mark (X) below the appropriate title _______________________
of the person executing the document. (Printed name)
For a corporation For a limited liability company
Title: [ ] President [ ] Secretary Title: [ ] Member OR
or other officer title _______________ [ ] Manager
For a limited liability partnership
Title: [ ] Partner
6. Executed on 12/05/03 /s/ Gary LaChey
________ ________________________
(Date) (Signature)
Select and mark (X) below the appropriate title Gary LaChey
of the person executing the document. ________________________
(Printed name)
For a corporation For a limited liability company
Title: [ ] President [ ] Secretary Title: [ ] Member OR
or other officer title Corporate V.P. Finance [ ] Manager
______________________
For a limited liability partnership
Title: [ ] Partner
This document was drafted by Cindy R. Reilly
___________________________________________________
(Name the individual who drafted the document)
DFI/CORP/53(R02-10-03) 2 of 4
AMENDED AND RESTATED STATE OF WISCONSIN
FINANCIAL INSTITUTIONS FILED
STATE OF WISCONSIN CERTIFICATE OF INCORPORATION
OCTOBER 9, 2003
03 OCT 8 PM 3:14 OF
DEPARTMENT OF
NEENAH FOUNDRY COMPANY FINANCIAL INSTITUTIONS
(Under Section 180.1008 of the Business Corporation Law of the
State of Wisconsin)
The undersigned, being a duly elected officer of Neenah Foundry
Company, a corporation organized and existing under and by virtue of the
Business Corporation Law of the State of Wisconsin (the "Corporation"), does
hereby certify as follows:
1. That the Corporation filed its original Articles of
Incorporation with the Wisconsin Secretary of State on February 23, 1987 (the
"Certificate").
2. That the Corporation filed a voluntary petition under chapter
11 of title 11 of the United States Code, as amended with the Bankruptcy Court
of Delaware on August 5, 2003, and that this Certificate is being filed pursuant
to Section 180.1008 of the Business Corporation Law of the State of Wisconsin
and shall become effective pursuant to the Prepackaged Joint Plan of
Reorganization of ACP Holding Company, NFC Castings, Inc., Neenah Foundry
Company and certain of its subsidiaries filed with the Delaware Bankruptcy Court
on August 5, 2003, and amended on September 17, 2003, without further action by
the board of directors or shareholders of the Corporation pursuant to the
Bankruptcy Court Confirmation Order dated September 25, 2003. The Corporation's
Certificate is restated in its entirety to read as set forth in Exhibit A
attached hereto and made a part hereof (the "Restated Certificate").
3. That the Bankruptcy Court of Delaware has jurisdiction of the
bankruptcy proceedings under chapter 11 of title 11 of the United States Code,
as amended.
STATE OF WISCONSIN
FILED
----------------------
OCT-9 2003
----------------------
DEPARTMENT OF
FINANCIAL INSTITUTIONS
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEENAH FOUNDRY COMPANY
The following Amended and Restated Articles of Incorporation duly adopted
pursuant to the authority and provisions of the Wisconsin Business Corporation
Law, Chapter 180 of the Wisconsin Statutes ("WBCL"), supersede and take the
place of the existing articles of incorporation and any amendments thereto.
ARTICLE ONE
The name of the corporation is Neenah Foundry Company (hereinafter called
the "Corporation").
ARTICLE TWO
The purpose for which the Corporation is organized are to engage in any
lawful activity within the purposes for which a corporation may be organized
under the WBCL, chapter 180 of the Wisconsin Statutes.
ARTICLE THREE
The total number of shares which the Corporation shall have the authority
to issue is One Thousand (1,000) shares, all of which shall be shares of Class
A Common Stock, with a par value of $100.00(One Hundred) per share.
ARTICLE FOUR
The number of the board of directors shall be fixed by or in the manner
provided in the Bylaws.
ARTICLE FIVE
The address of the Corporation's registered office in the state of
Wisconsin is 25 West Main Street, Madison, Wisconsin 53703. The name of its
registered agent at such address is CSC-Lawyers Incorporating Service Company.
ARTICLE SIX
To the fullest extent permitted by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended, a director of this
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director. Any repeal or
modification of this ARTICLE SIX shall not adversely affect
any right or protection of a director of the Corporation existing at the time
of such repeal or modification.
ARTICLE SEVEN
The Corporation shall not issue nonvoting equity securities.
ARTICLE EIGHT
The Corporation reserves the right to amend or repeal any provisions
contained in this Certificate of Incorporation from time to time and at any
time in the manner now or hereafter prescribed by the laws of the State of
Wisconsin, and all rights conferred upon stockholders and directors are granted
subject to such reservation.
* * * *
2
IN WITNESS WHEREOF, the undersigned, for the purpose of amending and
restating the Articles of Incorporation of the Corporation pursuant to the
Business Corporation Law of the State of Wisconsin, under penalties of perjury
does hereby declare and certify that this is the act and deed of the Corporation
and the facts stated herein are true, and accordingly has hereunto signed this
Certificate this 8th day of October, 2003.
By: /s/ Gary W. LaChey
-------------------------------------
Gary W. LaChey
Chief Financial Officer,
Vice President - Finance,
Treasurer and Secretary
STATE OF WISCONSIN
FILED
OCT 9 2003
DEPARTMENT OF
FINANCIAL INSTITUTIONS
RECEIVED - DEPT OF CERTIFIED:
FINANCIAL INSTITUTIONS AS A TRUE COPY:
STATE OF WISCONSIN ATTEST: 9/26/03
DAVID D. BIRD, CLERK
03 OCT - 8 PM 3:14 U.S. BANKRUPTCY COURT
BY: /s/ Lillie Lewis
---------------------
Deputy Clerk
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: ) Chapter 11
)
ACP Holding Company, et. al.,(1) ) Case No. 03-12414 (PJW)
) (Jointly Administered)
)
Debtors. ) RELATED DOCKET NO. 137
ORDER CONFIRMING AMENDED PREPACKAGED JOINT PLAN OF
REORGANIZATION OF ACP HOLDING COMPANY, NFC CASTINGS, INC.,
NEENAH FOUNDRY COMPANY AND CERTAIN OF ITS SUBSIDIARIES
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
The above-captioned debtors and debtors in possession (collectively,
the "Debtors") having filed voluntary petitions for relief under chapter 11 of
title 11 of the United States Code (as amended, the "Bankruptcy Code") on
August 5, 2003 (the "Petition Date"); the Debtors having filed on the Petition
Date the Prepackaged Joint Plan of Reorganization of ACP Holding Company, NFC
Castings, Inc., Neenah Foundry Company and Certain of its Subsidiaries Under
Chapter 11 of the Bankruptcy Code (the "Original Plan") and the Disclosure
Statement dated as of July 1, 2003(2); the Debtors having distributed the
Original Plan and the Disclosure Statement to all Holders of Impaired Claims
against the Debtors, together with a solicitation of votes to accept or reject
the Plan, beginning on or about July 2, 2003; the Affidavit
- ----------------------
(1) The Debtors consist of the following entities: ACP Holding Company, NFC
Castings, Inc., Neenah Foundry Company, Cast Alloys, Inc., Neenah Transport,
Inc., Advanced Cast Products, Inc., Gregg Industries, Inc., Mercer Forge
Corporation, Deeter Foundry, Inc., Dalton Corporation, Belcher Corporation,
Peerless Corporation, A&M Specialties, Inc., Dalton Corporation, Warsaw
Manufacturing Facility, Dalton Corporation, Ashland Manufacturing Facility,
Dalton Corporation, Kendallville Manufacturing Facility, Dalton Corporation,
Stryker Machining Facility.
(2) Unless otherwise specified, capitalized terms and phrases used herein have
the meanings assigned to them in the Plan. The rules of interpretation set
forth in Article I.A of the Plan shall apply to these Findings of Fact,
Conclusions of Law and Order (this "Confirmation Order"). In accordance with
Section III.B of this Confirmation Order, if there is any direct conflict
between the terms of the Plan and the terms of this Confirmation Order, the
terms of this Confirmation Order shall control.
of Diane Streany of Bankruptcy Services, L.L.C. ("BSI"), the Certification of
Jane Sullivan of Innisfree M&A, Inc. ("Innisfree") certifying (i) procedures for
distribution of solicitation materials and (ii) tabulation of the Ballots
received for the Plan, and the Supplemental Affidavit of Diane Streany relating
to the Class 11 Mutual Release (collectively, the "Voting Affidavits") having
been filed with this Court on August 5, 2003 and September 15, 2003; the
Debtors' Amended Prepackaged Joint Plan of Reorganization of ACP Holding
Company, NFC Castings, Inc., Neenah Foundry Company and Certain of its
Subsidiaries Under Chapter 11 of the Bankruptcy Code (the "Plan") having been
filed with this Court on September 17, 2003; the Plan Supplement (the "Plan
Supplement") having been filed with this Court on September 17, 2003; the
Debtors' Notice of Disclosure of Identities and Affiliations of Officers and
Directors of the Reorganized Debtors having been filed with this Court on
September 16, 2003 and the Debtors' Amended Notice of Disclosure of Identities
and Affiliations of Officers and Directors of the Reorganized Debtors having
been filed with this Court on September 22, 2003 (collectively, the "Notice");
this Court, upon motion of the Debtors, having entered an order (the
"Scheduling Order") setting September 19, 2003 at 3:00 p.m. prevailing Eastern
Time and the hearing having been continued to September 25, 2003 at 4:30 p.m.
prevailing Eastern Time by the Court as the date and time of a hearing pursuant
to Rules 3017 and 3018 of the Federal Rules of Bankruptcy Procedure (the
"Bankruptcy Rules") and sections 1126 and 1128 of the Bankruptcy Code to
consider the adequacy of the Disclosure Statement and Confirmation of the Plan
(the "Confirmation Hearing"); this Court having reviewed the Plan, the
Disclosure Statement, the documents comprising the Plan Supplement, the
Debtors' Memorandum in Support of Confirmation of Amended Prepackaged Joint
Plan of Reorganization of ACP Holding Company, NFC Castings, Inc., Neenah
Foundry Company and Certain of its Subsidiaries Under Chapter 11
2
of the United States Bankruptcy Code filed on September 17, 2003 (the
"Confirmation Memorandum"), and the Declaration of William M. Barrett in Support
of the Amended Prepackaged Joint Plan of Reorganization of ACP Holding Company,
NFC Castings, Inc., Neenah Foundry Company and Certain of its Subsidiaries Under
Chapter 11 of the Bankruptcy Code filed on September 17, 2003; this Court having
heard the statements of counsel in support of and in opposition to Confirmation
at the Confirmation Hearing; this Court having considered all testimony
presented and evidence admitted by affidavits or otherwise at the Confirmation
Hearing; this Court having taken judicial notice of the papers and pleadings on
file in the above-captioned Chapter 11 Cases; and it appearing to this Court
that (a) notice of the Confirmation Hearing and the opportunity of any party in
interest to object to Confirmation were adequate and appropriate as to all
parties to be affected by the Plan and the transactions contemplated thereby,
and (b) the legal and factual bases set forth in the Confirmation Memorandum and
presented at the Confirmation Hearing establish just cause for the relief
granted herein; this Court hereby makes and issues the following Findings of
Fact, Conclusions of Law and Orders:(3)
1. FINDINGS OF FACT
A. Jurisdiction And Venue.
On the Petition Date, the Debtors commenced the Chapter 11 Cases by filing
voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The
Debtors were and are qualified to be debtors under section 109 of the Bankruptcy
Code. Venue in the District of Delaware was proper as of the Petition Date and
continues to be proper.
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(3) This Confirmation Order constitutes this Court's findings of fact and
conclusions of law under Fed. R. Civ. P. 52, as made applicable by
Bankruptcy Rules 7052 and 9014. Any and all findings of fact shall
constitute findings of fact even if they are stated as conclusions of law,
and any and all conclusions of law shall constitute conclusions of law even
if they are stated as findings of fact.
3
B. Compliance With The Requirements Of Section 1129 Of The Bankruptcy Code.
1. Section 1129(a)(1) -- Compliance of the Plan with Applicable Provisions
of the Bankruptcy Code.
The Plan complies with all applicable provisions of the Bankruptcy Code
as required by section 1129(a)(1) of the Bankruptcy Code, including, without
limitation, sections 1122 and 1123. Pursuant to sections 1122(a) and 1123(a)(1)
of the Bankruptcy Code, Article III of the Plan designates Classes of Claims and
Interests, other than Administrative Claims and Priority Tax Claims. As required
by section 1122(a) of the Bankruptcy Code, each Class of Claims and Interests
contains only Claims or Interests that are substantially similar to the other
Claims or Interests within that Class.
Pursuant to sections 1123(a)(2) and (3) of the Bankruptcy Code, Article
III of the Plan identifies all Claims and Interests that are not Impaired and
specifies the treatment of all Claims and Interests that are Impaired. Pursuant
to section 1123(a)(4) of the Bankruptcy Code, Article III of the Plan also
provides the same treatment for each Claim or Interest within a particular
Class.
Pursuant to section 1123(a)(5) of the Bankruptcy Code, the Plan provides
adequate means for the Plan's implementation. The Debtors will have, immediately
upon the effectiveness of the Plan, sufficient Cash available to make all
payments required to be made on the Effective Date pursuant to the terms of the
Plan. Moreover, Article IV and various other provisions of the Plan specifically
provide adequate means for the Plan's implementation, including, without
limitation: (a) the revesting of the Debtors' property in the Reorganized
Debtors; (b) an adequate amount of Cash on hand or available as a condition to
the occurrence of the Effective Date; (c) the advance of borrowings under the
New Credit Facility; (d) the issuance
4
of the Second Secured Notes, Rights, New Subordinated Notes, New ACP Common
Stock and Warrants; and (e) the amendment of the Debtors' certificates of
incorporation.
Article IV.B of the Plan provides that the Reorganized Debtors will
amend their respective certificates of incorporation to, among other things: (i)
prohibit the issuance of nonvoting equity securities; (ii) authorize the
issuance of New ACP Common Stock, in an amount not less than the amounts
necessary to permit the Distribution thereof required or contemplated by the
Plan and the issuance thereof upon exercise to the Warrants distributed pursuant
to the Plan; and (iii) provide, as to the classes of securities possessing
voting power, an appropriate distribution of such power among such classes all
in compliance with section 1123 of the Bankruptcy Code.
Pursuant to Article IV.B(2) of the Plan, the existing officers of the
Debtors (as identified on pp. 25 and 26 of the Disclosure Statement) will
continue to serve in such capacity for the Reorganized Debtors after the
Effective Date.
Article IV.B(3) of the Plan further provides the manner in which the
directors of the Reorganized Debtors were selected in compliance with section
1123(a)(7) of the Bankruptcy Code. Pursuant to Article IV.B(2) of the Plan, the
Debtors have disclosed in the Notice filed with the Court the individuals
selected as the initial directors of the Reorganized Debtors.
The Debtors' disclosures in the Plan, the Disclosure Statement, and the
Notice concerning the selection of officers and directors for the Reorganized
Debtors satisfy sections 1123(a)(7) and 1129(a)(5) of the Bankruptcy Code.
2. Section 1129(a)(2) -- Compliance Of The Debtors With Applicable
Provision Of The Bankruptcy Code.
The Debtors, as proponents of the Plan, have complied with all
applicable provisions of the Bankruptcy Code as required by section 1129(a)(2)
of the Bankruptcy Code,
5
including without limitation, sections 1125 and 1126 of the Bankruptcy Code and
Bankruptcy Rules 3017, 3018 and 3019. The Debtors solicited acceptances pursuant
to section 1126(b) of the Bankruptcy Code. On July 2, 2003, BSI and Innisfree,
on behalf of the Debtors, distributed copies of the Plan and Disclosure
Statement, and an appropriate ballot with which to vote, to all Holders of
Impaired Claims other than those deemed to reject the Plan. The Disclosure
Statement provides extensive information regarding, among other things, (i) the
Plan, (ii) events preceding the commencement of these Chapter 11 Cases, (iii)
Claims asserted against the Debtors' estates, (iv) securities to be issued under
the Plan, (v) risk factors affecting the Plan, (vi) a liquidation analysis
setting forth the estimated return that creditors would receive in a chapter 7
proceeding, (vii) financial information and valuations that would be relevant to
creditors' determinations of whether to accept or reject the Plan, (viii)
securities law, and (ix) federal tax law consequences of the Plan.
Thus, the solicitation of acceptance or rejection of Plan was, (i) in
compliance with all applicable nonbankruptcy laws, rules, and regulations
governing the adequacy of disclosure in connection with such solicitation, and
(ii) solicited after disclosure to Holders of Claims and Interests of adequate
information as defined in section 1125(a) of the Bankruptcy Code.
The Debtors, their directors, officers, employees, agents, affiliates
and Professionals (acting in such capacity) have acted in "good faith," within
the meaning of section 1125(c) of the Bankruptcy Code.
3. Section 1129(a)(3) -- Proposal Of Plan In Good Faith.
The Debtors proposed the Plan in good faith and not by any means
forbidden by law. Consistent with the overriding purpose of chapter 11 of the
Bankruptcy Code, the Plan is designed to allow the Debtors to reorganize by
providing them with a capital structure that will
6
enable them to satisfy their obligations with sufficient liquidity and capital
resources to conduct their business. Moreover, the Plan itself, and the process
leading to its formulation, provide independent evidence of the Debtors' good
faith.
4. Section 1129(a)(4) -- Bankruptcy Court Approval Of Certain Payments As
Reasonable.
Pursuant to section 1129(a)(4) of the Bankruptcy Code, any payment made
or promised by the Debtors or by any person issuing securities or acquiring
property under the Plan, for services or for costs and expenses in, or in
connection with, the Chapter 11 Cases, or in connection with the Plan and
incident to the Chapter 11 Cases, has been, or will be before payment, disclosed
to this Court. Any such payment made before Confirmation is reasonable. Any such
payment to be fixed after Confirmation is subject to the approval of this Court
as reasonable.
5. Section 1129(a)(5) -- Disclosure Of Identity And Affiliations Of
Proposed Management, Compensation Of Insiders And Consistency Of
Management Proposals With The Interest Of Creditors And Public Policy.
Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors have
disclosed, in the Notice, the identity and affiliations of the proposed
directors and officers of the Reorganized Debtors, as well as compensation of
insiders, if any, who will be employed or retained by the Reorganized Debtors.
The appointment or continuance of the proposed directors and officers is
consistent with the interests of the Holders of Claims and Interests and public
policy.
6. Section 1129(a)(6) -- Approval of Rate Changes.
The Debtors' current business does not involve the establishment of
rates over which any regulatory commission has or will have jurisdiction after
Confirmation.
7
7. Section 1129(a)(7) -- Best Interests Of Creditors And Equity
Interest Holders.
With respect to each Impaired Class of Claims or Interests of the
Debtors, each Holder of a Claim or Interest in such Class has accepted the Plan
or will receive or retain under the Plan on account of such Claim or Interest
property of a value, as of the Effective Date, that is not less than the amount
such Holder would receive or retain if the Debtors were liquidated on the
Effective Date under chapter 7 of the Bankruptcy Code.
8. Section 1129(a)(8) -- Acceptance Of The Plan By Each Impaired Class.
Pursuant to sections 1126 and 1129(a)(8) of the Bankruptcy Code, (a) as
indicated in Article III of the Plan Classes 1, 2, 5, 9 and 10 are unimpaired,
and (b) as indicated in the Voting Affidavits, every Impaired Class that was
entitled to vote voted overwhelmingly in favor of the Plan (Classes 3, 4 and
6). Because the Plan provides that the Holders of Claims in Classes 7, 8 and 11
will not receive or retain any property on account of such Claims, Classes 7 and
8 and 11 are deemed not to have accepted the Plan pursuant to section 1126(g) of
the Bankruptcy Code. Notwithstanding the deemed rejection of the Plan by Classes
7, 8 and 11, the Plan is confirmable because it satisfies section 1129(b)(1) of
the Bankruptcy Code with respect to those Classes. The Plan does not
discriminate unfairly and is fair and equitable with respect to Classes 7, 8 and
11. There is no Holder of a Claim or Interest junior to Classes 7, 8 and 11 who
will receive or retain any property under the Plan on account of such junior
Claim or Interest.
9. Section 1129(a)(9) -- Treatment Of Claims Entitled To Priority
Pursuant To Section 507(a) Of The Bankruptcy Code.
The Plan provides for treatment of Administrative Claims, Priority Tax
Claims and Claims entitled to priority pursuant to sections 507(a)(3)-(6) of the
Bankruptcy Code in the manner required by section 1129(a)(9) of the Bankruptcy
Code.
8
10. Section 1129(a)(10) -- Acceptance By At Least One Impaired Class.
As required by section 1129(a)(10) of the Bankruptcy Code and as
indicated in the Voting Affidavits, at least one Class of Claims or Interests
that is Impaired under the Plan for each Debtor has accepted the Plan, excluding
votes cast by insiders.
11. Section 1129(a)(11) -- Feasibility Of The Plan.
Confirmation of the Plan is not likely to be followed by the
liquidation, or the need for further financial reorganization, of the Debtors,
the Reorganized Debtors or any successor to the Reorganized Debtors under the
Plan, and the Plan complies with section 1129(a)(11) of the Bankruptcy Code.
12. Section 1129(a)(12) -- Payment Of Bankruptcy Fees.
In accordance with section 1129(a)(12) of the Bankruptcy Code, Article
X.E of the Plan provides for the payment of all fees payable under 28 U.S.C.
Section 1930 on or before the Effective Date. The Debtors or Reorganized Debtors
have adequate means to pay all such fees.
13. Section 1129(a)(13) -- Retiree Benefits.
In accordance with section 1129(a)(13) of the Bankruptcy Code, Article
VII.D of the Plan provides for the continuation after the Effective Date of all
retiree benefits, as that term is defined in section 1114 of the Bankruptcy
Code, at the level established pursuant to section 1114(e)(1)(B) or 1114(g) of
the Bankruptcy Code, at any time prior to Confirmation, for the duration of the
period the Debtors have obligated themselves to provide such benefits. Provided,
however, that the treatment of retirement benefits relating to plans under
Title IV of ERISA are addressed exclusively in Section III.C(2) of this
Confirmation Order.
9
14. Treatment of Unimpaired Claims.
The provisions of the Plan with respect to the Holders of unimpaired
Claims are fair and appropriate, and the Plan does not require the Holders of
unimpaired Claims to file proofs of claim with this Court.
15. Satisfaction Of Conditions To Confirmation.
Except as otherwise provided herein, each of the conditions precedent
to the entry of this Confirmation Order, as set forth in Article VIII of the
Plan, has been satisfied or waived in accordance with the Plan.
II. CONCLUSIONS OF LAW
A. Jurisdiction And Venue.
This Court has jurisdiction over this matter pursuant to 28 U.S.C.
Sections 157(a) and 1334. This is a core proceeding pursuant to 28 U.S.C.
Section 157(b)(2). The Debtors were and are qualified to be debtors under
section 109 of the Bankruptcy Code. Venue in the District of Delaware was proper
as of the Petition Date and continues to be proper under 28 U.S.C. Section 1408.
B. Exemptions From Taxation.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer, or exchange of a security, or the making or delivery of an instrument
of transfer under a plan confirmed under section 1129 of the Bankruptcy Code,
may not be taxed under any law imposing a stamp tax or similar tax.
C. Compliance With Section 1129 Of The Bankruptcy Code.
As set forth in Section 1.B of this Confirmation Order, the Plan
complies in all respects with the applicable requirements of section 1129 of the
Bankruptcy Code.
10
D. Solicitation Procedures and Disclosure Statement.
In their solicitation of votes confirming or rejecting the Plan, the
Debtors complied in every respect with section 1126(b) of the Bankruptcy Code.
The Disclosure Statement contains "adequate Information" as required under
section 1125 of the Bankruptcy Code.
E. Releases.
Pursuant to section 1123(b)(3) of the Bankruptcy Code and Bankruptcy
Rule 9019(a):(1) the settlements, compromises, releases, discharges,
exculpations, and injunctions set forth in the Plan and implemented by this
Confirmation Order shall be, and hereby are, approved as fair, equitable,
reasonable and in the best interests of the Debtors, the Reorganized Debtors and
their Estates, and the Holders of Claims and Interests; (2) the settlement or
compromise of all claims or controversies set forth in the Plan relating to the
termination of all contractual, legal and equitable subordination rights that
any Holder of a Claim or Interest (with the exception of the Holders of
Pass-Through Claims and Interests, which shall not be discharged) may have with
respect to any Allowed Claim or Interest, or any Distribution to be made
pursuant to the Plan on account of such Allowed Claim or Interest, is in the
best interests of the Debtors, their Estates, and the Holders of Claims and
Interests, and shall be, and hereby is, approved as fair, equitable and
reasonable
All settlements and compromises of claims and Causes of Action against
non-Debtor entities embodied in the Plan are approved herein as fair, equitable,
reasonable and in the best interests of the Debtors, the Reorganized Debtors and
their Estates, and the Holders of Claims and Interests, and shall be and hereby
are, effective and binding on each Holder of an Existing Credit Facility Claim,
a PIK Note Claim, or an Existing Subordinated Note Claim that voted to accept
the Plan and did not affirmatively reject the Mutual Releases on its Ballot and
11
each Holder of ACP interests that has affirmatively agreed to participate in the
Mutual Releases. See St. Paul Fire & Marine Ins. Co. v. Pepsico, Inc., 884 F.2d
688, 700-01 (2d Cir. 1989).
F. Agreements And Other Documents.
The Debtors have disclosed all material facts regarding: (i) the
amendment of the certificates of incorporation, or similar constituent
documents; (ii) the selection of directors and officers for the Reorganized
Debtors; (iii) the New Credit Facility; (iv) the Distribution of Cash; (v) the
Distribution of New Subordinated Notes; (vi) the Distribution of New ACP Common
Stock; (vii) the issuance of the Second Secured Notes and Warrants; New
Subordinated Notes, New ACP Common Stock and Warrants; (viii) the adoption,
execution and implementation of employment, retirement and indemnification
agreements, incentive compensation programs, incentive equity plans, severance
and change of control plans, retirement income plans, welfare benefit plans and
other employee plans and related agreements; (ix) the adoption, execution and
implementation of the other matters provided for under the Plan involving
corporate action to be taken by or required of the Reorganized Debtors; and (x)
the adoption, execution and delivery of all contracts, leases, instruments,
releases, indentures and other agreements related to any of the foregoing.
Pursuant to section 303 of the Delaware General Corporation Law and any
comparable provision of the business corporation laws of any other state, as
applicable, no action of the directors or stockholders of the Reorganized
Debtors will be required to authorize them to engage in any of the activities
set forth in the preceding sentence or as otherwise contemplated by the Plan or
in furtherance thereof and such activities shall be, and hereby are, deemed to
have occurred and be effective as provided in the Plan and such activities shall
be, and hereby are, authorized and approved in all respects.
12
III. ORDER
A. Approval of Disclosure Statement and Solicitation Procedures.
The Disclosure Statement contains adequate information as defined in
section 1125(a) of the Bankruptcy Code and is hereby approved. The Debtors'
solicitation of acceptances pursuant to section 1126(b) of the Bankruptcy Code
is hereby approved.
B. Confirmation Of The Plan.
The Plan and each of its provisions shall be, and hereby are, confirmed
in each and every respect pursuant to section 1129 of the Bankruptcy Code;
provided, however, that if there is any direct conflict between the terms of the
Plan and the terms of this Confirmation Order, the terms of this Confirmation
Order shall control. All objectives and responses to, and statements and
comments regarding, the Plan, to the extent not already withdrawn, shall be, and
hereby are, overruled.
C. Effects Of Confirmation.
1. Executory Contracts and Unexpired Leases.
Article VII of the Plan is hereby approved.
Except as otherwise provided in the Plan or the Management Compensation
Plans, all employment and severance policies, and all compensation and benefit
plans, policies, and programs of the Debtors applicable to their employees,
retirees, and non-employee directors or members of the boards of directors,
including, without limitation, all savings plans, retirement plans (other than
Title IV Plans, as defined herein), healthcare plans, disability plans,
severance benefit plans, incentive plans, and life, accidental death and
dismemberment insurance plans are treated as executory contracts under the Plan
and on the Effective Date will be assumed pursuant to the provisions of sections
365 and 1123 of the Bankruptcy Code. Provided, however, that Title IV Plans are
not, and shall not be treated as, executory contracts. Notwithstanding anything
13
in the Plan or in this Confirmation Order, Title IV Plans shall be dealt with
exclusively in the manner described in section III.C(2) of this Confirmation
Order.
All directors' and officers' liability insurance policies maintained by
the Debtors are assumed, and such assumptions are hereby approved pursuant to
section 365(a) of the Bankruptcy Code. The Reorganized Debtors shall maintain
for a period of not less than six years from the Effective Date coverage for the
individuals concerned, as of the Commencement Date, by such policies at levels
and on terms no less favorable to such individuals than the terms and levels
provided for under the policies assumed pursuant to the Plan.
2. Treatment of Title IV Plans
The Debtors are contributing sponsors (as defined in 29 U.S.C. section
1301(a)(13)) or controlled group members (as defined in 29 U.S.C. section
1301(a)(14)(A)) of contributing sponsors of defined benefit pension plans
covered by the pension plan termination insurance program established by Title
IV of ERISA ("Title IV Plans"). Notwithstanding any provisions of the Plan or
Disclosure Statement or in this Confirmation Order, or in any proceeding within
the Chapter 11 Cases, after the Effective Date, one or more of the Reorganized
Debtors will continue to be a contributing sponsor or a controlled group member
of a contributing sponsor of all Title IV Plans. The Reorganized Debtors shall
fund the Title IV Plans in accordance with the minimum financing standards under
ERISA, 29 U.S.C. section 1082, pay all required insurance premiums to the
Pension Benefit Guaranty Corporation ("PBGC"), 29 U.S.C. 1307, and comply with
all other applicable statutory and regulatory requirements with respect to the
Title IV Plans.
Notwithstanding any provisions of the Disclosure Statement, the Plan
(including Section 111(A)(2)), this Confirmation Order, or any proceeding within
the Chapter 11 Cases, no liability to or claim against the Debtors regarding any
of the Title IV Plans, including any
14
liability to or claim of the Title IV Plans, PBGC or any other entity, shall be
deemed consolidated for any purpose.
Notwithstanding any provisions of the Plan or Disclosure Statement,
this Confirmation Order, or any proceeding within the Chapter 11 Cases, nothing
shall discharge, release, enjoin, or exculpate the Debtors, Reorganized Debtors,
or any other party in any capacity, from any liability to, claim of, or cause of
action by any of the Title IV Plans, PBGC, or any other entity with respect to
the Title IV Plans.
3. Federal Government Rights and Claims.
Notwithstanding this bankruptcy proceeding, including any provisions of
the Plan or this Confirmation Order, all rights and Claims of the United States
shall not be discharged, impaired or adversely affected by these Chapter 11
Cases. The liabilities due to the United States shall be calculated and paid
and/or determined and compiled with as if these Chapter 11 Cases had not been
commenced. The Claims of the United States shall be calculated and determined
administratively or in judicial forums in the manner in which such liabilities
would have been resolved had these Chapter 11 Cases not been commenced.
D. Matters Relating To Implementation Of The Plan.
1. Immediate Effectiveness; Successors And Assigns.
Immediately upon the entry of this Confirmation Order, the terms of the
Plan shall be, and hereby are, deemed binding upon the Debtors, the Reorganized
Debtors, any and all Holders of Claims or Interests (irrespective of whether
such Claims or Interests are impaired under the Plan or whether the Holders of
such Claims or Interests accepted or are deemed to have accepted the Plan), and
the respective heirs, executors, administrators, successors or assigns, if any,
of any of the foregoing.
15
2. Continued Corporate Existence; Vesting Of Assets.
After the Effective Date, the Reorganized Debtors shall continue to
exist in accordance with the applicable laws in the respective jurisdictions in
which they are incorporated or were otherwise organized and pursuant to their
respective certificate of incorporation, and bylaws in effect prior to the
Effective Date, except to the extent such certificate of incorporation and
bylaws are amended under the Plan. Except as otherwise provided in the Plan, on
or after the Effective Date, all property of the Estates, including all claims,
rights and Causes of Action and any property acquired by the Debtors or the
Reorganized Debtors under or in connection with the Plan, shall vest in the
Reorganized Debtors free and clear of all claims, liens, charges, other
encumbrances, and interests except with respect to any Claims, liens, charges,
or other encumbrances and Interests held by Holders of Pass-Through Claims and
Interests under the Plan. On and after the Effective Date, the Reorganized
Debtors may operate their businesses and may use, acquire, and dispose of
property and compromise or settle any claims or Causes of Action without
Supervision of or approval by this Court and free and clear of any restrictions
of the Bankruptcy Code or the Bankruptcy Rules other than restrictions expressly
imposed by the Plan or by this Confirmation Order. Without limiting the
foregoing, the Reorganized Debtors may pay the charges that they incur on or
after the Effective Date for Professionals' fees, disbursements, expenses or
related support services without application to this Court.
3. Cancellation of Notes and Interests.
On the Effective Date, subject to treatment of such Claims in
accordance with the Plan(a) all notes, instruments, certificates, and other
documents of the Debtors evidencing the Existing Credit Facility Claims, PIK
Note Claims, Existing Subordinated Note Claims, NFC Note Claims and ACP Note
Claims, (b) the Existing Subordinated Notes, (c) the PIK Note, (d) the ACP
Notes, (e) the NFC Note and (f) all ACP Interests shall be cancelled, and the
obligations
16
of the Debtors thereunder shall be discharged. On the Effective Date, except to
the extent provided otherwise in the Plan, any Indenture relating to any of the
foregoing, including, without limitation, the Existing Subordinated Notes
Indentures, shall be deemed to be cancelled, and the obligations of the Debtors
thereunder shall be discharged; provided, however, that the Existing
Subordinated Notes Indentures shall continue in effect solely for the purpose
of allowing the Disbursing Agent, the Note Trustee, its agent, or its servicer
to make Distributions on account of the Existing Subordinated Note Claims
pursuant to the Plan.
4. Issuance Of New Securities And Execution Of Documents.
The Reorganized Debtors are hereby authorized and directed to issue and
deliver all securities to be issued in accordance with the Plan on or prior to
the Effective Date, including, but not limited to, the Second Secured Notes,
Rights, New Subordinated Notes, the New ACP Common Stock and Warrants, each of
which shall be issued or Distributed as referenced in the Plan. The Reorganized
Debtors are hereby authorized and directed to cause the New ACP Common Stock and
Warrants that Neenah will Distribute (i) pursuant to the Plan in exchange for
the Existing Subordinated Notes, (ii) pursuant to the Rights Offering, or (iii)
to Management under the Management Equity Incentive Plan, as applicable, to be
contributed by ACP to NFC, and by NFC to Neenah, immediately before such
Distributions.
The Reorganized Debtors are hereby authorized and directed to execute
and deliver such other agreements, documents and instruments as are required to
be executed in accordance with the terms of the Plan or as may otherwise be
necessary to give effect to the transactions, including the Distributions
contemplated by the Plan.
The Reorganized Debtors are hereby authorized and directed to execute
and deliver and perform their respective obligations under the agreements,
documents, and instruments necessary to give effect to the New Credit Facility
contemplated by the Plan and the
17
commitment letter dated June 1, 2003 from Fleet Capital (the "Fleet Capital
Commitment Letter") filed with the Plan Supplement.
The Reorganized Debtors shall implement as of the Effective Date and
are hereby authorized and directed to execute and deliver and perform their
respective obligations under the agreements, documents and instruments necessary
to give effect to the Management Compensation Plans, including the employment
agreements (as described in Article IV.L(1) of the Plan), Severance Plans,
Change of Control Agreements, Annual Incentive Plan, Management Equity Incentive
Plan, compensation review (as described in Article IV.L(6) of the Plan), and
additional management compensation plans (as described in Article IV.L(7) of the
Plan), forms of which were filed with the Plan Supplement and each of which are
hereby approved in all respects.
5. Transactions Required by the Plan
The Reorganized Debtors are hereby authorized and directed to take any
and all actions necessary or appropriate to implement the transactions required
by the Plan, each of which shall be implemented in accordance with Article IV of
the Plan and with the section of the Disclosure Statement title "Transactions
Required by the Plan."
The Reorganized Debtors are hereby authorized and directed to enter
into all agreements and other instruments contemplated by or to be entered into
pursuant to the Plan without need for further action by the Reorganized Debtors'
directors or shareholders or otherwise.
In accordance with Section 1142 of the Bankruptcy Code, the Reorganized
Debtors are authorized, empowered and directed to execute, deliver, acknowledge,
adopt, ratify, certify, file and record any document and to take any other
action necessary or appropriate to implement, consummate and otherwise give
effect to the Plan in accordance with its terms in all
18
material respects, whereupon such documents, agreements and instruments shall
be legal, valid and binding obligations of the parties thereto and enforceable
in accordance with their terms except as enforceability may be affected by
bankruptcy, insolvency, or other laws of general application affecting the
rights of creditors generally.
6. CORPORATE GOVERNANCE, CORPORATE ACTION AND DIRECTORS AND OFFICERS.
a. CERTIFICATES OF INCORPORATION.
The certificates of incorporation of the Debtors shall be amended as
soon as practicable and as necessary to satisfy the provisions of the Plan and
the Bankruptcy Code, and shall, among other things: (a) authorize the issuance
of the New ACP Common Stock, in an amount not less than the amounts necessary to
permit the Distributions thereof required or contemplated by the Plan and the
issuance thereof upon exercise of the Warrants distributed pursuant to the Plan
and (b) provide for the inclusion of a provision prohibiting the issuance of
non-voting equity securities, and providing, as to the classes of securities
possessing voting power, an appropriate distribution of such power among such
classes. After the Effective Date, the Reorganized Debtors may amend and restate
their respective certificates of incorporation and bylaws as permitted by
applicable law.
b. CORPORATE ACTION.
The adoption of any required New Certificates of Incorporation, the
selection of members of the boards of directors and corporate officers for the
Reorganized Debtors, the New Credit Facility, the Rights Offering, the issuance
of Plan Securities, the Management Compensation Plans and all other actions
contemplated by the Plan, to take effect on the Effective Date, are hereby
approved. All matters provided for in the Plan involving the corporate
structure of the Debtors or the Reorganized Debtors, and any corporate action
required by the Debtors or the Reorganized Debtors in connection with the Plan,
shall be deemed to have
19
occurred and shall be in effect without any requirement of further action by the
security holders or the boards of directors of the Debtors or the Reorganized
Debtors. On the Effective Date, the appropriate officers and boards of directors
of the Reorganized Debtors are authorized to issue, execute and deliver the
agreements, documents, securities and instruments contemplated by the Plan in
the name of or on behalf of the Reorganized Debtors.
c. DIRECTORS AND OFFICERS OF THE REORGANIZED DEBTORS.
The classification, selection, and composition of the boards of directors
are and shall be consistent with each Reorganized Debtor's amended certificate
of incorporation. Each director or officer shall serve from the after the
Effective Date pursuant to the terms of each Reorganized Debtor's certificate of
incorporation, other constituent documents, the applicable state corporation law
and in accordance with the terms of the Shareholders Agreement.
d. AUTHORIZATION.
The Debtors and the Reorganized Debtors and their respective directors,
officers, members, agents, and attorneys, are authorized and empowered to issue,
execute, deliver, file, or record any agreement, document, or security,
including, without limitation, the documents contained in the Plan Supplement,
as modified, amended, and supplemented, in substantially the form included
therein, and to take any action necessary or appropriate to implement,
effectuate, and consummate the Plan in accordance with its terms, or take any or
all corporate actions authorized to be taken pursuant to the Plan, including any
release, amendment, or restatement of any bylaws, certificates of incorporation,
or other organization documents of the Debtors, whether or not specifically
referred to in the Plan or the Plan Supplement, without further order of the
Court, and any or all such documents shall be accepted by each of the respective
state filing offices and recorded in accordance with applicable state law and
shall become effective in accordance with their terms and the provisions of
state law.
20
e. PLAN SUPPLEMENT.
The documents contained in the Plan Supplement and any amendments,
modifications, and supplements thereto, and all documents and agreements
introduced into evidence by the Debtors at the Confirmation Hearing (including
all exhibits and attachments thereto and documents referred to therein), and
the execution, delivery, and performance thereof by the Reorganized Debtors, is
authorized and approved. Without need for further order or authorization of the
Bankruptcy Court, the Debtors and Reorganized Debtors are authorized and
empowered to make any and all modifications to any and all documents included
as part of the Plan Supplement that do not materially modify the terms of such
documents and are consistent with the Plan.
7. SOURCES OF CASH FOR PLAN DISTRIBUTION.
(a) Except as otherwise provided by the Plan or the Confirmation
order, all Cash necessary for the Reorganized Debtors to make payments pursuant
to the Plan shall be obtained from existing Cash balances, borrowings under the
New Credit Facility and the issuance by Neenah of the Second Secured Notes.
(b) The Fleet Capital Commitment Letter is hereby approved
substantially in the form as contained in the Plan Supplement.
8. DISTRIBUTIONS.
Article V of the Plan is hereby approved.
The Existing Credit Facility Claims, PIK Note Claims and the Existing
Subordinated Note Claims are deemed Allowed.
The Reorganized Debtors or the Disbursing Agent shall make all
Distributions required to be distributed under the Plan. However, Distributions
on account of Existing Subordinated Note Claims shall be made to the Notes
Trustee acting as agent for Neenah. The
21
Reorganized Debtors may employ or contract with other Entities to assist in or
make the Distributions required by the Plan.
Unless otherwise specifically provided for in the Plan or in this
Confirmation Order, or required by applicable bankruptcy law, post-petition
interest shall not accrue or be paid on any Claims other than Priority Tax
Claims, Non-Tax Priority Claims, Existing Credit Facility Claims, and PIK Note
Claims, and no Holder of any other Claim shall be entitled to interest accruing
on or after the Commencement Date on any such Claim.
As a condition precedent to receiving any Distribution pursuant to the Plan
on account of an Allowed Existing Subordinated Note Claim or PIK Note Claim,
each Holder of a certificated note or instrument representing such Claim shall
tender the Existing Subordinated Notes of PIK Note, as applicable, to the Notes
Trustee or the Reorganized Debtors, as applicable, unless waived in writing by
the Notes Trustee or the Reorganized Debtors, pursuant to the notice provisions
contained in Article X.G of the Plan. Distributions will be made to Holders of
Allowed Existing Subordinated Note Claims and PIK Note Claims who surrender such
instruments or securities, irrespective of the fact that such Holders may be
different from the Holders on the Record Date entitled to vote to accept or
reject the Plan. It is a condition precedent to the Holders of Existing
Subordinated Note Claims receiving any Distribution pursuant to the Plan that
the Existing Subordinated Notes shall have been received by the Notes Trustee as
agent of Neemah or irrevocably electronically tendered. Any Plan Securities,
including any New Subordinated Notes, New ACP Common Stock, Rights, Second
Secured Notes or Warrants to be distributed pursuant to the Plan on account of
any such Claims shall, pending such surrender, be treated as a undeliverable
Distribution pursuant to Article V.F of the Plan.
22
Any Holder of a certificated note or instrument evidencing an Existing
Subordinated Note Claims or PIK Note Claims that fails to surrender or is deemed
to have failed to surrender the applicable Existing Subordinated Notes or PIK
Note required to be tendered hereunder within one (1) year after the Effective
Date shall have its Claim and its Distribution pursuant to the Plan on account
of such Existing Subordinated Notes or PIK Note discharged and shall be forever
barred from asserting any such Claim against the Reorganized Debtors or their
property. In such cases, Cash or Plan Securities held for Distribution on
account of such Claim shall be disposed of pursuant to Article V.F of the Plan.
9. EXEMPTIONS FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance, transfer,
or exchange of a security, or the making or delivery of an instrument of
transfer under the Plan may not be taxed under any law imposing a stamp tax or
similar tax.
10. RESOLUTION OF DISPUTED CLAIMS AND INTEREST.
Article VI of the Plan is hereby approved. Except as otherwise provided in
the Plan, Holders of Claims and Interests shall not be required to File a proof
of claim or proof of interest, and no parties shall File a proof of claim or
proof of interest. Instead, except as otherwise provided in the Plan, the
Debtors shall make Distributions in accordance with the books and records of the
Debtors.
The Notes Trustee is hereby deemed to File a proof of claim on behalf of
Holders of Existing Subordinated Note Claims and such Claim is deemed Allowed.
Accordingly, any proof of claim Filed by the direct, indirect, or beneficial
Holder of an Existing Subordinated Note is disallowed as duplicative of the
Claim of the Note Trustee.
23
11. RELEASE, INJUNCTIVE AND RELATED PROVISIONS.
a. INJUNCTION.
Except as otherwise provided in the Plan, all Entities or persons that have
held, hold or may hold Claims against or Interests in the Debtors, other than
Pass-Through Claims and Interests, are as of the Effective Date, permanently
enjoined from taking any of the following actions against any of the Debtors,
their Estates, the Reorganized Debtors or any of their property on account of
any Claims or causes of action arising from events occurring prior to the
Effective Date; (i) commencing or continuing, in any manner or in any place, any
action or other proceeding; (ii) enforcing, attaching, collecting or recovering
in any manner any judgment, award, decree or other; (iii) creating, perfecting,
or enforcing any lien or encumbrance; (iv) asserting a set-off of any kind
against any debt, liability or obligation due to the Debtors; and (v) commencing
or continuing, in any manner or in any place, any action that does not comply
with or is inconsistent with the provisions of the Plan; provided, however, that
nothing contained herein shall preclude such Persons from exercising their
rights pursuant to and consistent with the terms of the Plan.
Except for the Pass-Through Claims and Interests, by accepting
Distributions pursuant to the Plan, each Holder of an Allowed Claim or Interest
will be deemed to have specifically consented to the Injunction set forth in
Article IX.B of the Plan.
b. RELEASES.
(i) RELEASES BY THE DEBTORS. As of the Effective Date, for good and
valuable consideration, the adequacy of which is hereby confirmed, the Debtors
and the Reorganized Debtors in their individual capacities and as
Debtors-in-Possession, shall forever release, waive and discharge all claims,
interests, obligations, suits, judgments, damages, demands, debts, rights,
causes of action and liabilities (other than the rights of the Debtors or the
Reorganized
24
Debtors to enforce the Plan and the contracts, instruments, releases,
indentures and other agreements or documents delivered thereunder) whether
direct or derivative, liquidated or unliquidated, fixed or contingent, matured
or unmatured, known or unknown, foreseen or unforeseen, then existing or
thereafter arising in law, equity or otherwise that are based in whole or in
part on any act, omission, transaction, event or other occurrence taking place
on or prior to the Effective Date in any way relating to (i) the Debtors, (ii)
the Reorganized Debtors, (iii) the parties released pursuant to Article IX.C of
the Plan, (iv) the Offering Memorandum, (v) any act taken or omitted to be
taken on or after the Commencement Date, (vi) the Disclosure Statement, the
Plan, and the documents necessary to effectuate the Plan, (vii) the
solicitation of acceptances and rejections of the Plan, (viii) the solicitation
of the Mutual Releases, (ix) the Chapter 11 Cases, (x) the Rights Offering,
(xi) the exercise of rights or fulfillment of obligations under the Standby
Commitment Agreements, (xii) the administration of the Plan, (xiii) the
property to be Distributed under the Plan, or (xiv) any contract, instrument,
release or other agreement or document created or entered into in connection
with the Plan or the Chapter 11 Cases, and that could have been asserted by or
on behalf of the Debtors, their Estates or the Reorganized Debtors, against
each of (i) the current directors, officers and employees of the Debtors (other
than for money borrowed from or owed to the Debtors or their Subsidiaries by
any such directors, officers or employees as set forth in the Debtors' books
and records) and the Debtors' agents, and Professionals; (ii) the Senior
Secured Lenders other than any such party that has affirmatively rejected the
Mutual Releases on its Ballot; (iii) CVC and each other Holder of PIK Note
other than any such party that has affirmatively rejected the Mutual Releases
on its Ballot; (iv) the Noteholders other than any such party that has
affirmatively rejected the Mutual Releases on its Ballot; (v) the ACP Interest
Holders other than any party who has not affirmatively agreed
25
to participate in the Mutual Releases; (vi) the Standby Purchasers who are not
Noteholders and who have agreed in writing to mutual releases, the terms and
conditions of which mirror those of the Mutual Releases; and (vii) the
respective affiliates and current officers, directors, representatives,
employees, agents, members, direct and indirect shareholders, advisors, and
professionals of the foregoing; provided, that nothing herein shall release any
obligation of the Debtors or Reorganized Debtors to indemnify their current and
former directors, officers employees, agents or representatives under their
organizational documents, bylaws, employee-indemnification policies, state law,
or any other agreement. This release in no way applies to any Causes of Action
possessed by the Debtors or Reorganized Debtors against Holders of Pass-Through
Claims or Interests. With regard to the releases granted in this section,
nothing herein shall apply to any act, omission, transaction, event or other
occurrence determined to be the result of gross negligence or willful misconduct
as determined by this Court or any other court of competent jurisdiction.
(ii) Mutual Releases by Holders of Claims and Interests. As of the
Effective Date, in exchange for accepting consideration pursuant to the Plan,
each Holder of an Existing Credit Facility Claim, a PIK Note Claim or an
Existing Subordinated Note Claim that votes to accept the Plan and has not
affirmatively rejected the Mutual Releases on its Ballot and each Holder of ACP
Interests that has affirmatively agreed to participate in the Mutual Releases
shall forever release, waive and discharge all claims, interest, obligations,
suits, judgments, damages, demands, debts, rights, causes of action and
liabilities whether direct or derivative, liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then
existing or thereafter arising, in law, equity or otherwise that are based in
whole or in part on any act, omission, transaction, event or other occurrence
taking place on or prior to
26
the Effective Date in any way relating to (i) the Debtors, (ii) the Reorganized
Debtors, (iii) the parties released pursuant to ARTICLE IX C of the Plan, (iv)
the Offering Memorandum, (v) any act taken or omitted to be taken on or after
the Commencement Date, (vi) the Disclosure Statement, the Plan, and the
documents necessary to effectuate the Plan, (vii) the solicitation of
acceptances and rejections of the Plan, (viii) the solicitation of the Mutual
Releases, (ix) the Chapter 11 Cases, (x) the Rights Offering, (xi) the exercise
of rights or fulfillment of obligations under the Standby Commitment Agreements,
(xii) the administration of the Plan, (xiii) the property to be Distributed
under the Plan, or (xiv) any contract, instrument, release or other agreement or
document created or entered into in connection with the Plan or the Chapter 11
Cases, against each of (i) the Debtors, their Estates and Reorganized Debtors,
(ii) the current directors, officers and employees of the Debtors (other than
Claims or Interests unrelated to the Debtors) and the Debtors' agents and
Professionals; (iii) the Senior Secured Lenders other than any such party who
has affirmatively rejected the Mutual Releases on its Ballot; (iv) CVC and each
Holder of PIK Note other than any such party that has affirmatively rejected the
Mutual Releases on its Ballot; (v) the Noteholders other than any such party
that has affirmatively rejected the Mutual Releases on its Ballot; (vi) the ACP
Interest Holders other than any party who has not affirmatively agreed to
participate in the Mutual Releases; (vii) the Standby Purchasers who are not
Noteholders and who have agreed in writing to mutual releases, the terms and
conditions of which mirror those of the Mutual Releases; and (viii) the
respective affiliates and current officers, directors, representatives,
employees, agents, members, direct and indirect shareholders, advisors, and
professionals of the foregoing; provided, that nothing herein shall release: (1)
any obligation of the Debtors or Reorganized Debtors to indemnify their current
and former directors or officers employees, agents or representatives under
their organizational documents, bylaws.
27
employee-indemnification policies, state law, or any other agreement; or (2)
Holders of any Pass-Through Claims or Interests. With regard to the Mutual
Releases granted in this section, the Mutual Releases shall not apply to any
act, omission, transaction, event or other occurrence determined to be the
result of gross negligence or willful misconduct as determined by this Court or
any other court of competent jurisdiction.
c. EXCULPATION AND LIMITATION OF LIABILITY.
Neither the Debtors, their Estates, the Reorganized Debtors, the
Noteholders, the Standby Purchasers nor any of their respective current
officers, directors, shareholders, employees, advisors, attorneys or agents
acting in such capacity or their respective affiliates, shall have or incur any
liabilities to, or be subject to any right of action by, the Debtors or any
Holder of a Claim or an Interest, or any other party in interest, or any of
their respective agents, shareholders, employees, representatives, financial
advisors, attorneys or affiliates, or any of their successors or assigns, for
any act or omission in connection with, relating to, or arising out of, (a) the
Offering Memorandum, (b) any act taken or omitted to be taken on or after the
Commencement Date, (c) the Disclosure Statement, the Plan, and the documents
necessary to effectuate the Plan, (d) the solicitation of acceptances and
rejections of the Plan, (e) the solicitation of the Mutual Releases, (f) the
Chapter 11 Cases, (g) the Rights Offering, (h) the exercise of rights or
fulfillment of obligations under the Standby Commitment Agreements, (i) the
administration of the Plan, (j) the property to be Distributed under the Plan,
(k) or any contract, instrument, release or other agreement or document created
or entered into in connection with the Plan or the Chapter 11 Cases, and in all
respects shall be entitled to rely reasonably upon the advice of counsel with
respect to their duties and responsibilities under the Plan; provided, that
nothing herein shall exculpate the Debtors or the Reorganized Debtors from any
obligation to indemnify its current and former directors, officers, employees,
agents or
28
representatives under its organizational documents, bylaws,
employee-indemnification policies, state law, or any other agreement. With
regard to the exculpation and limitation of liability granted in this section,
nothing herein shall apply to any act, omission, transaction, event or other
occurrence determined to be the result of gross negligence or willful
misconduct as determined by this Court or any other court of competent
jurisdiction.
d. Injunction Related to Releases and Exculpation.
All Persons and Entities are permanently enjoined from commencing or
prosecuting, whether directly, derivatively or otherwise, any Claims,
Interests, obligations, suits, judgments, damages, demands, debts, rights,
causes of action or liabilities released pursuant to the Plan.
e. Preservation of Causes of Action.
The Reorganized Debtors retain all rights on behalf of the Debtors and
the Post-Confirmation Estates to commence and pursue any and all Causes of
Action (under any theory of law, including, without limitation, the Bankruptcy
Code, and in any court or other tribunal including, without limitation, in an
adversary proceeding filed in the Debtors' Chapter 11 Cases), to the extent the
Reorganized Debtors deem appropriate, other than any Causes of Action against
the Released Parties, as all such Causes of Action have been released by the
Debtors. Such Causes of Action may include, without limitation, (i) the
potential Claims and Causes of Action set forth in the section of the
Disclosure Statement titled "Preservation of Causes of Action; Settlement of
Causes of Action," (ii) Preference Actions, and (iii) other Causes of Action,
including Unknown Causes of Action, as described in Article IX.F of the Plan.
On the Effective Date, and to the extent not otherwise modified
pursuant to the Plan, each Reorganized Debtor shall retain all rights and
obligations relating to Intercompany Claims that it may have against any other
Reorganized Debtor.
29
f. Termination of Subordination Rights.
The classification and manner of satisfying all Claims and
Interest and the respective Distribution and treatments under the Plan take into
account and/or conform to the relative priority and rights of the Claims and
Interest in each Class in connection with any contractual, legal and equitable
subordination right relating thereto whether arising under general principles of
equitable subordination, section 510(b) of the Bankruptcy Code or otherwise, and
any and all such rights are settled, compromised and released pursuant to the
Plan. All Persons and Entities are permanently enjoined from enforcing or
attempting to enforce any such contractual, legal and equitable subordination
right satisfied, compromised and settled in this manner.
12. Retention of Jurisdiction
Notwithstanding the entry of this Confirmation Order and the
occurrence of the Effective Date, this Court shall retain such jurisdiction over
the Chapter 11 Cases after the Effective Date as is legally permissible and
described in Article XI of the Plan.
E. Payment of Statutory Fees.
All fees payable pursuant to 28 U.S.C. ss. 1930, as determined
by this Court at the hearing pursuant to section 1128 of the Bankruptcy Code,
shall be paid on or before the Effective Date.
F. Discharge of Debtors.
Pursuant to section 1141(d) of the Bankruptcy Code, the rights
afforded under the Plan and the treatment of Claims and Interests under the Plan
shall be in exchange for and in complete satisfaction, settlement, discharge,
and release of all Claims and termination of all Interests. Except for the
Pass-Through Claims and Interests, this Court hereby (i) discharges the Debtors
from all Claims and other debts that arose before the Confirmation Date and all
debts of
30
the kind specified in sections 502(g), 502(h), or 502(f) of the Bankruptcy
Code, whether or not (A) a Claim based on such debt is allowed pursuant to
section 502 of the Bankruptcy Code or (B) the Holder of a Claim based on such
debt has accepted the Plan; and (ii) terminates all Interests and other rights
of equity security holders in the Debtors.
As of the Confirmation Date, except for the Pass-Through
Claims and Interests or as provided in this Confirmation Order, all Persons and
Entities shall be precluded from asserting against the Debtors, the Reorganized
Debtors, their successors or their property, any other or further claims, debts,
rights, causes of action, liabilities or equity interests based upon any act,
omission, transaction, or other activity of any nature that occurred prior to
the Confirmation Date. In accordance with the foregoing, except as otherwise
provided in this Confirmation Order, this Confirmation Order constitutes a
judicial determination of discharge of all such Claims and other debts and
liabilities and rights of equity security holders in the Debtors, pursuant to
sections 534 and 1141 of the Bankruptcy Code, and such discharge shall void any
judgement obtained against the Debtors at any time to the extent that such
judgement related to a discharged Claim or Interest, provided however that
Pass-Through Claims or Interests, and any judgement obtained pursuant to such
Pass-Through Claims or Interests, shall not be discharged pursuant to sections
524 or 1141 of the Bankruptcy Code.
G. Substantial Consummation
The substantial consummation of the Plan, within the meaning
of section 1127 of the Bankruptcy Code, shall be, and hereby is, deemed to have
occurred on the Effective Date.
H. Order Effective Upon Entry
This Confirmation Order shall be effective and enforceable
upon entry, and shall not be stayed, under Bankruptcy Rule 3020(e) or otherwise,
unless otherwise expressly ordered by this Court.
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I. Nonoccurrence of Effective Date
In the event that the Effective Date does not occur, then (i) the Plan,
(ii) assumption or rejection of executory contracts or unexpired leases pursuant
to the Plan, (iii) any document or agreement executed pursuant to the Plan, and
(iv) any actions, releases, waivers, or injunctions authorized by this
Confirmation Order or any order in aid of consummation of the Plan shall be
deemed null and void. In such event, nothing contained in this Confirmation
Order, any order in aid of consummation of the Plan, or the Plan, and no acts
taken in preparation for consummation of the Plan, (a) shall be deemed to
constitute a waiver or release of any Claims or Equity Interests by or against
the Debtors or any other persons or entities, to prejudice in any manner the
rights of the Debtors or any person or entity in any further proceedings
involving the Debtors or otherwise, or to constitute an admission of any sort by
the Debtors or any other persons or entities as to any issue, or (b) shall be
construed as a finding of fact or conclusion of law in respect thereof.
J. Nonseverability
The provisions of this Confirmation Order are nonseverable and
mutually dependent.
K. Section 1145 Exemption
The exemption under section 1145 of the Bankruptcy Code shall apply to
the New Subordinated Notes, New ACP Common Stock, Rights, Second Secured Notes
and Warrants except to the extent that any Holders of such Plan Securities are
"underwriters" as that term is defined in section 1145 of the Bankruptcy Code.
32
L. Post-Confirmation Notices And Reports.
1. Notice of Entry of Effective Date.
The Debtors shall be, and hereby are, directed to serve a
Notice of Plan Effective Date substantially in the form attached hereto as
Exhibit A on (i) the Indenture trustee for the Existing Subordinated Notes;
(ii) the Holders of Existing Credit Facility Claims; (iii) the Holders of PIK
Note Claims; (iv) the Holders of ACP Note Claims; (v) the Holders of NFC Note
Claims; (vi) the Holders of ACP Equity Interests; (vii) the Internal Revenue
Service; (viii) the Securities and Exchange Commission; (ix) the taxing
authorities in any jurisdiction where the Debtors transact business; and (x)
all parties having requested papers pursuant to Bankruptcy Rule 2002; within
three business days of the Effective Date. No other or further notice regarding
Confirmation or the Effective Date shall be required.
2. Fee Applications.
All applications for final allowances of compensation and
reimbursement of expenses pursuant to sections 330 and 503(b) of the Bankruptcy
Code in connection with the Chapter 11 Cases for the period from the Filing
Date through and including the Confirmation date shall be filed with this Court
and served upon (i) Pachulski, Stang, Ziehl, Young, Jones & Weintraub, P.C.,
counsel to the Debtors, 919 North Market Street, 16th Floor, P.O. Box 8705,
Wilmington, DE 19899-8705, Attn: Laura Davis Jones, Esq.; (ii) Kirkland & Ellis
LLP, counsel to the Debtors, 200 East Randolph Drive, Chicago, IL 60601, Attn:
James W. Kapp III, Esq.; (iii) the Office of the United States Trustee, 844
North King Street, Wilmington, DE, 19801, Attn: David Buchbinder, Esq.; (iv)
Weil, Gotshal & Manges LLP, counsel to the Ad Hoc Committee of Bondholders, 767
Fifth Avenue, New York, NY 10153, Attn: Eric L. Schondorf, Esq. and Michael F.
Walsh, Esq.; (v) Richards Layton & Finger, counsel to the Ad Hoc Committee of
Bondholders, One Rodney Square, P.O. Box 551, Wilmington, DE 19899-0551,
33
Attn: Mark D. Collins, Esq.; (vi) Morgan, Lewis & Bockius LLP, counsel to the
Lenders, 101 Park Avenue, New York, NY 10178-0060, Attn: Kristin C. Wigness,
Esq.; and (vii) Klett Rooney Lieber & Schorfing, counsel to the Lenders, 1000
West Street, Suite 1410, P.O. Box 1397, Wilmington, DE, 19899-1397, Attn: Teresa
K.D. Currier, Esq. (collectively, the "Notice Parties"), by no later than 4:00
p.m., prevailing Eastern Time, on October 27, 2003. Objections, if any, to such
final applications shall be filed with this Court and served upon the parties to
whom such objection is directed and the Notice Parties, by no later than 4:00
p.m., prevailing Eastern Time, on or before twenty (20) days from the filing and
service of the final fee application. A hearing on all such final applications
shall be held on November 25, 2003 at 3:00 p.m. prevailing Eastern Time.
34
IT IS SO ORDERED.
Wilmington, Delaware
Dated: September 25, 2003
/s/ Peter J. Walsh
------------------------------
Peter J. Walsh
United States Bankruptcy Judge
35
EXHIBIT A
EXHIBIT A
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: ) Chapter 11
)
ACP Holding Company, et al.,(1) ) Case No. 03-12414 (PJW)
) (Jointly Administered)
Debtors. )
NOTICE OF PLAN EFFECTIVE DATE
____________, 2003
The above-captioned debtors and debtors-in-possession (the "Debtors")
hereby submit this Notice of Plan Effective Date (the "Notice").
1. On August 5, 2003 (the "Petition Date"), the Debtors commenced
this action by filing voluntary petitions for relief under chapter 11 of the
Bankruptcy Code. The Debtors continue to operate their businesses and have
continued in possession of their property pursuant to ss. 1107(a) and 1108 of
the Bankruptcy Code.
2. No trustee or examiner has been appointed in any of these cases.
3. On September __, 2003, this Court entered its Order Confirming
Amended Prepackaged Joint Plan of Reorganization of ACP Holding Company, NFC
Castings, Inc.,
____________________
(1) The Debtors consist of the following entities: ACP Holding Company, NFC
Castings, Inc., Neenah Foundry Company, Cast Alloys, Inc., Neenah Transport,
Inc., Advanced Cast Products, Inc., Gregg Industries, Inc., Mercer Forge
Corporation, Doster Foundry, Inc., Dalton Corporation, Belcher Corporation,
Peerless Corporation, A&M Specialties, Inc., Dalton Corporation, Warsaw
Manufacturing Facility, Dalton Corporation, Ashland Manufacturing Facility,
Dalton Corporation, Kendallville Manufacturing Facility, Dalton Corporation,
Stryker Machining Facility.
Neenah Foundry Company and Certain of its Subsidiaries Under Chapter 11 of the
Bankruptcy Code (Docket No. _______) (the "Plan").
NOTICE
4. The Debtors hereby notify all creditors and parties in interest
that ____________, 2003 shall be the Effective Date for the Debtors' Plan.
Dated: __________, 2003
KIRKLAND & ELLIS LLP
James H.M. Sprayrogon, P.C.
James W. Kapp III
200 East Randolph Drive
Chicago, IL 60601
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
and
PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
----------------------------------------
Laura Davis Jones (Bar No. 2436)
James E. O'Neill (Bar No. 4042)
Rachel Lowy Werkheiser (Bar No. 3753)
919 North Market Street, 16th Floor
P.O. Box 8705
Wilmington, DE 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Co-Counsel to the Debtors and
Debtors in Possession
2