EXHIBIT 99.1
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: )
) Case No. 04-67597
INTERMET CORPORATION et al., ) Chapter 11
) (Jointly Administered)
)
Debtors. ) Honorable Marci B. McIvor
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DEBTORS' PLANS OF REORGANIZATION
Foley & Lardner LLP
Judy A. O'Neill (P32142)
Daljit S. Doogal (P57181)
David G. Dragich (P63234)
500 Woodward Avenue; Suite 2700
Detroit, Michigan 48226
Dated: June 24, 2005
Counsel for Debtors and Debtors-in-Possession
INTRODUCTION TO PLAN
The above-captioned debtors and debtors-in-possession, Intermet
Corporation ("Intermet"), Alexander City Casting Company, Inc., Cast-Matic
Corporation, Columbus Foundry, L.P., Diversified Diemakers, Inc., Ganton
Technologies, Inc., Intermet Holding Company, Intermet Illinois, Inc., Intermet
International, Inc., Intermet U.S. Holding, Inc., Ironton Iron, Inc., Lynchburg
Foundry Company, Northern Castings Corporation, Sudbury, Inc., SUDM, Inc., Tool
Products, Inc., Wagner Castings Company, and Wagner Havana, Inc. (each,
including Intermet, a "Debtor" and collectively, the "Debtors"), jointly propose
the following plans of reorganization, (each a separate plan for the applicable
Debtor and collectively, the "Plan") pursuant to Chapter 11 of the Bankruptcy
Code.(1)
Under Section 1125(b) of the Bankruptcy Code, a vote to accept or reject
this Plan cannot be solicited from a Holder of a Claim until such time as the
Disclosure Statement has been approved by the Bankruptcy Court and distributed
to Holders of Claims. ALL HOLDERS OF CLAIMS ARE ENCOURAGED TO READ THE PLAN AND
DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE
PLAN.
The Plan contemplates that each of the Debtors will be reorganized
entities after consummation of the Plan.(2) These reorganization Cases have been
consolidated for procedural purposes only and are jointly administered pursuant
to an order of the Bankruptcy Court. The Distributions to be made to Holders of
Claims, in each of the Classes of Claims and Equity Interests for each Debtor,
are set forth in Article 3 herein.
THE PLAN IS PROPOSED JOINTLY BY ALL OF THE DEBTORS, BUT CONSTITUTES A
SEPARATE PLAN FOR EACH DEBTOR. THE ESTATES OF THE DEBTORS HAVE NOT BEEN
CONSOLIDATED, SUBSTANTIVELY OR OTHERWISE. ANY CLAIMS HELD AGAINST ONE OF THE
DEBTORS WILL BE SATISFIED SOLELY FROM THE CASH AND ASSETS OF SUCH DEBTOR. EXCEPT
AS SPECIFICALLY SET FORTH IN THE PLAN, NOTHING IN THE PLAN OR THE DISCLOSURE
STATEMENT SHALL CONSTITUTE OR BE DEEMED TO CONSTITUTE AN ADMISSION THAT ONE OF
THE DEBTORS IS SUBJECT TO OR LIABLE FOR ANY CLAIM AGAINST THE OTHER DEBTORS. THE
CLAIMS OF CREDITORS THAT HOLD CLAIMS AGAINST MULTIPLE DEBTORS WILL BE TREATED AS
SEPARATE CLAIMS WITH RESPECT TO EACH DEBTOR'S ESTATE FOR ALL PURPOSES
(INCLUDING, BUT NOT LIMITED TO, DISTRIBUTIONS AND VOTING), AND SUCH CLAIMS WILL
BE ADMINISTERED AS PROVIDED HEREIN. THEREFORE, EXCEPT AS EXPRESSLY SPECIFIED
HEREIN, THE CLASSIFICATIONS OF CLAIMS AND EQUITY INTERESTS SET FORTH BELOW SHALL
BE DEEMED TO APPLY SEPARATELY WITH RESPECT TO EACH PLAN PROPOSED BY EACH DEBTOR.
_________________________________
(1) Capitalized terms used herein shall have the meaning ascribed to them
in Article I of the Plan.
(2) As noted in the Disclosure Statement, the liquidation of substantially
all of the Assets of certain of the Debtors after the Effective Date is
contemplated.
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ARTICLE 1
DEFINITIONS
The following terms used in the Plan shall have the meanings specified
below, and such meanings shall be equally applicable to both the singular and
plural forms of such terms, unless the context otherwise requires. Any term used
in the Plan, whether or not capitalized, that is not defined in the Plan, but
that is defined in the Disclosure Statement, the Bankruptcy Code or the
Bankruptcy Rules, shall have the meaning set forth in the Disclosure Statement,
the Bankruptcy Code or the Bankruptcy Rules.
1.01 ADMINISTRATIVE CLAIMS. The collective reference to all Claims for
post-Petition Date costs and expenses of administration of these Cases with
priority under Section 507(a)(1), 503(b) or 1114(e)(2) of the Bankruptcy Code,
including: (a) the actual and necessary costs and expenses incurred after the
Petition Date of preserving the Estates and operating the businesses of the
Debtors, (b) any indebtedness or obligations entitled to such priority under the
Bankruptcy Code, including Professional Fees, in each case to the extent allowed
by a Final Order of the Bankruptcy Court under Sections 330(a) or 331 of the
Bankruptcy Code (unless such Claims are incurred in the ordinary course of the
Debtors' businesses), and (c) all fees and charges assessed against the Estates
under Section 1930, Chapter 123 of Title 28, United States Code.
1.02 ADMINISTRATIVE CLAIM BAR DATE. The date by which all applications for
treatment of a Claim as an Allowed Administrative Claim, other than Professional
Fees, must be filed with the Bankruptcy Court and which date shall be, unless
subject to an assumed Executory Contract which shall be afforded the treatment
under Article 8 of the Plan, the 60th day after the Effective Date for
Professional Fees and the 30th day after the Confirmation Date for all other
Administrative Claims other than for goods and services provided to the Debtors
during the Cases in the ordinary course of business.
1.03 AFFILIATE. This term shall have the meaning assigned to it in Section
101(2) of the Bankruptcy Code.
1.04 ALLOWANCE DATE. The date a Claim becomes an Allowed Claim.
1.05 ALLOWED. With respect to any Claim against a Debtor to the extent
that (i) such Claim has not been withdrawn, paid in full, or otherwise deemed
satisfied in full, (ii) a Proof of Claim or Interest was filed on or before the
Claims Filing Bar Date, Supplemental Bar Date or the Administrative Claim Bar
Date, as applicable (or, if not filed by such date, a Proof of Claim was filed
with leave of the Bankruptcy Court, after notice and a hearing and entry of a
Final Order) or was deemed timely filed or, if no Proof of Claim or Interests so
filed, which Claim Interest, as of the Confirmation Date, is listed by the
Debtors in their Schedules as liquidated in amount, not disputed, and not
contingent, and (iii) no objection to the allowance of such Claim or action to
subordinate, avoid, reclassify, classify, exchange, estimate, disallow or
otherwise limit recovery with respect thereto has been filed or interposed on or
before the Claims Objection Deadline or such an objection or action having been
so interposed, to the extent that such Claim is allowed by a Final Order;
provided, however, that notwithstanding anything to the contrary contained
herein, any Claim or Equity Interest specifically deemed allowed or disallowed
in the Plan shall be, or not be (as the case may be), an Allowed Claim or
Allowed Equity Interest to the
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extent so specifically provided in the Plan. Unless otherwise ordered by the
Bankruptcy Court prior to Confirmation, or as specifically provided to the
contrary in the Plan with respect to any particular Claim, an "Allowed Claim" or
"Allowed Equity Interest" shall not include, except as provided in the Plan with
respect to any Allowed Secured Claim (i) any interest on such Claim to the
extent accruing or maturing on or after the Petition Date, (ii) punitive or
exemplary damages, or (iii) any fine, penalty, or forfeiture.
1.06 ALLOWED ADMINISTRATIVE CLAIM. Any Administrative Claim that is an
Allowed Claim; provided, however, that, unless an extension of time is granted
in writing by the appropriate Debtor, a Holder of any Administrative Claim
arising prior to the Confirmation Date, other than for goods or services
provided to the Debtors during the Cases in the ordinary course of business, and
unless subject to an assumed Executory Contract as described in Article 1.02,
must file a request for payment on or before the Administrative Claim Bar Date
in order to have such Administrative Claim eligible to be considered an Allowed
Administrative Claim.
1.07 ALLOWED PRIORITY CLAIM. Any Priority Claim that is an Allowed Claim.
1.08 ALLOWED REJECTION CLAIM. Any Rejection Claim that is an Allowed
Claim.
1.09 ALLOWED SECURED CLAIM. Any Secured Claim that is an Allowed Claim.
1.10 ALLOWED TAX CLAIM. Any Tax Claim that is an Allowed Claim.
1.11 ARTICLES OF INCORPORATION AND BYLAWS. The Articles of Incorporation
and Bylaws (or other similar documents) of the Reorganized Debtors, which shall
be in substantially the forms attached hereto as Exhibit H, and in the event of
satisfaction of the Liquidating Plan Condition, in the form of Exhibit I as to
Wagner Castings. The Articles of Incorporation and Bylaws as to all other
Debtors shall be amended and restated, as provided in the Plan, but will remain
subject to the laws of the jurisdictions in which such Debtors were incorporated
or formed prior to the Effective Date, subject to the modifications otherwise
provided for in the Plan which Articles of Incorporation and Bylaws (or other
similar documents) and the Certificate of Incorporation described in Article
6.01 of this Plan, shall be in form and substance satisfactory to the Initial
Committed Purchasers and which shall be effective on the Effective Date.
1.12 ASSETS. All of the right, title, and interest of the Debtors in and
to any and all assets and property, whether tangible, intangible, real, or
personal, that constitute property of the Debtors' Estates within the purview of
Section 541 of the Bankruptcy Code, including without limitation, any and all
claims, Causes of Action, or rights of the Debtors under federal or state law.
1.13 AVOIDANCE ACTIONS. All Causes of Action the Debtors may assert under
Chapter 5 of the Bankruptcy Code, whether or not Causes of Action are commenced
to prosecute such Avoidance Actions. A non-exclusive list of potential Avoidance
Actions is attached as Exhibit J to the Plan.
1.14 BALLOT. Each of the ballot forms that are distributed with the
Disclosure Statement to Holders of Claims included in Classes that are Impaired
under the Plan and entitled to vote
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under Article 5 of the Plan to accept or reject the Plan and make any other
applicable elections or agreements pursuant to the Plan.
1.15 BANKRUPTCY CODE. Title 11 of the United States Code, as amended from
time to time, and made applicable to these Cases.
1.16 BANKRUPTCY COURT. The United States Bankruptcy Court for the Eastern
District of Michigan, Southern Division, or any other court of competent
jurisdiction exercising jurisdiction over these Cases.
1.17 BANKRUPTCY RULES. The Federal Rules of Bankruptcy Procedure,
promulgated under Section 2075, Title 28, United States Code, as amended from
time to time, and made applicable to these Cases and the local rules of the
Bankruptcy Court as amended from time to time and made applicable to these
Cases.
1.18 BOARD OF INTERMET. The board of directors or other similar governing
body of Intermet and the other Debtors.
1.19 BOARD OF REORGANIZED INTERMET. The board of directors or similar
governing body of Reorganized Intermet and the other Reorganized Debtors.
1.20 BUSINESS DAY. A day other than a Saturday, Sunday, "legal holiday"
(as such term is defined in Bankruptcy Rule 9006(a)), or any other day on which
commercial banks in Detroit, Michigan are authorized or required by law to
close.
1.21 CASE OR CASES. Each of the Cases under Chapter 11 of the Bankruptcy
Code commenced by the Debtors on the Petition Date in the Bankruptcy Court,
styled and jointly administered under the case caption In re Intermet
Corporation, et al., and bearing case number 04-67597.
1.22 CASH. Legal tender of the United States of America payable, in the
case of a Distribution, as set forth in Article 7.06, or payable in immediately
available funds, such as a wire transfer, bank or cashier's check.
1.23 CASH-OUT AMOUNT. With respect to a Holder of a General Unsecured
Claim, Cash equal to such Holder's Pro Rata portion of the New Common Stock
allocated to a particular Debtor multiplied by $10.00 per share.
1.24 CASH-OUT PURCHASE AGREEMENT. The agreement attached hereto as Exhibit
E by and among the Debtors and the Initial Committed Purchasers pursuant to
which the Initial Committed Purchasers shall purchase the Cash-Out Shares.
1.25 CASH-OUT SHARES. The shares of New Common Stock that otherwise would
have been distributed to Holders of General Unsecured Claims that receive the
Cash-Out Amount in exchange for their Claims.
1.26 CAUSES OF ACTION. Any and all actions, proceedings, causes of action,
suits, accounts, controversies, promises to pay, rights to legal remedies,
rights to equitable remedies,
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rights to payment and claims, whether known, unknown, reduced to judgment, not
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured and whether asserted or
assertable directly or derivatively, in law, equity or otherwise by, on behalf
of or in the name of any of the Debtors against any Person which exists on or
before the Effective Date, including, without limitation, the Avoidance Actions.
Causes of Action shall include, but shall not be limited to, all claims and
causes of action described in the Disclosure Statement, the Schedules, and
Exhibit K to the Plan.
1.27 CLAIM. A claim means a claim against any one of the Debtors as
defined in section 101(5) of the Bankruptcy Code.
1.28 CLAIMS FILING BAR DATE. February 7, 2005, the deadline by which
certain Creditors were obligated to file Proofs of Claim.
1.29 CLAIMS OBJECTION DEADLINE. The date which is 180 days after the
Effective Date, as the same may be from time to time extended by the Bankruptcy
Court.
1.30 CLASS. A category as to each Debtor, designated herein, of Claims or
Equity Interests as specified in Article 2 of the Plan.
1.31 CONFIRMATION. The entry of the Confirmation Order by the Bankruptcy
Court on the docket of the Bankruptcy Court.
1.32 CONFIRMATION DATE. The date upon which the Confirmation Order is
entered on the docket of the Bankruptcy Court.
1.33 CONFIRMATION HEARING DATE. The date or dates of the hearing on
Confirmation of the Plan, as may be continued from time to time.
1.34 CONFIRMATION ORDER. The order of the Bankruptcy Court confirming the
Plan under Section 1129 of the Bankruptcy Code, the proposed form of which is
attached hereto as Exhibit A.
1.35 CONSENTING PRE-PETITION LENDERS. Any of the Pre-Petition Lenders who
fail to object to the releases set forth in Article 10.05 of the Plan on or
before the deadline set for objections to the Plan, to the extent such release
is binding on it.
1.36 CONSENTING DIP LENDERS. Any of the DIP Lenders who fail to object to
the releases set forth in Article 10.05 of the Plan on or before the deadline
set for objections to the Plan, to the extent such release is binding on it.
1.37 CONSIGNMENT CLAIMS. The Claims described in Article 3.08 of the Plan.
1.38 CONVENIENCE CLASS ELECTION. An election by a Holder of a General
Unsecured Claim in an amount greater than $125,000 to reduce the aggregate
amount of its General Unsecured Claim to such amount, on its Ballot to (i) be
treated as an Unsecured Convenience Claim; (ii) agree to seek recovery
exclusively from the Debtor that is the primary obligor with respect to its
General Unsecured Claim; (iii) waive its right to seek recovery from any
additional
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Debtor against whom it has a Claim as an obligor for such Claim; and (iv) vote
in favor of the Plan.
1.39 CREDITOR. With respect to any Debtor, a Person defined as a
"creditor" in Section 101(10) of the Bankruptcy Code.
1.40 CREDITORS' COMMITTEE. The official committee of unsecured Creditors
appointed in these Cases pursuant to Section 1102(a) of the Bankruptcy Code.
1.41 CURE. With respect to the assumption of an Executory Contract
pursuant to Section 365(b) of the Bankruptcy Code: (a) the Distribution of Cash,
or the Distribution of such other property as may be agreed upon by the parties
or ordered by the Bankruptcy Court, in an amount equal to all unpaid monetary
obligations, without interest or penalty, or such other amount as may be agreed
upon by the parties under an Executory Contract or unexpired lease, to the
extent such obligations are enforceable under the Bankruptcy Code and applicable
non-bankruptcy law, or (b) the taking of such other actions as may be agreed
upon by the parties or ordered by the Bankruptcy Court.
1.42 DEBTOR(S). Any, or a collective reference to all, of Intermet
Corporation, Alexander City Casting Company, Inc., Cast-Matic Corporation,
Columbus Foundry, L.P., Diversified Diemakers, Inc., Ganton Technologies, Inc.,
Intermet Holding Company, Intermet Illinois, Inc., Intermet International, Inc.,
Intermet U.S. Holding, Inc., Ironton Iron, Inc., Lynchburg Foundry Company,
Northern Castings Corporation, Sudbury, Inc., SUDM, Inc., Tool Products, Inc.,
Wagner Castings Company, and Wagner Havana, Inc.
1.43 DIP AGENTS. The Bank Of Nova Scotia, as administrative agent for the
DIP Lenders and as a lead DIP Lender, and Deutsche Bank Trust Company Americas,
as collateral agent and co-agent for the DIP Lenders, and as a lead DIP Lender.
1.44 DIP FACILITY. That certain Debtor-In-Possession Revolving Credit
Agreement dated as of October 22, 2004, as amended, restated, supplemented or
otherwise modified from time to time, and all documents executed in connection
therewith, among the Debtors, the DIP Agents, and the DIP Lenders.
1.45 DIP FACILITY CLAIM. All Claims of the DIP Agents and the DIP Lenders
arising under or pursuant to the DIP Facility, including, without limitation,
principal and interest on the DIP Facility, plus all reasonable fees and
expenses (including Professional Fees) arising under the DIP Facility.
1.46 DIP FINANCING ORDER. The Final Order entered by the Bankruptcy Court
on November 5, 2004, Pursuant To Bankruptcy Code Sections 105, 361, 363, 364,
503 And 507: (A) Authorizing Debtors-In-Possession To (i) Obtain Senior And
Junior Secured Post-Petition Financing And (ii) Utilize Cash Collateral, (B)
Granting Superpriority Claims To Post-Petition Lenders And (C) Granting Adequate
Protection To Pre-Petition Lenders.
1.47 DIP LENDERS. The lenders who are parties to the DIP Credit Agreement.
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1.48 DISBURSING AGENT. The Reorganized Debtors or any Person designated by
the Reorganized Debtors to serve as a disbursing agent under Article 7 of the
Plan.
1.49 DISCLOSURE STATEMENT. The Disclosure Statement of the Debtors filed
with the Bankruptcy Court on June ____, 2005 that relates to and accompanies the
Plan, as it may be supplemented, amended, or modified from time to time and that
was prepared and distributed, and was approved by the Bankruptcy Court, in
accordance with Section 1125 of the Bankruptcy Code. The Restructuring
Commitment Letter requires such amendments to be made with the consent of the
Initial Committed Purchasers, which consent shall not be unreasonably withheld.
1.50 DISPUTED CLAIM. A Claim as to which a Proof of Claim has been filed,
or deemed filed under applicable law, as to which an objection has been or may
be timely filed and which objection, if timely filed, has not been withdrawn or
has not been overruled, denied or resolved by a Final Order. A Claim shall not
be considered a Disputed Claim for purposes of voting, as applicable, to the
extent it has been Temporarily Allowed for such purpose.
1.51 DISTRIBUTIONS. The distributions to be made in accordance with the
Plan, as the case may be: (a) Cash, (b) shares of New Common Stock, (c) Rights,
and (d) any other distributions to Holders of Claims under the terms and
provisions of the Plan.
1.52 DISTRIBUTION RECORD DATE. The date specified in the Confirmation
Order as the Distribution Record Date. If no such date is specified in the
Confirmation Order, then the Distribution Record Date shall be the Confirmation
Date.
1.53 EFFECTIVE DATE. The first Business Day: (a) on which no stay of the
Confirmation Order is in effect; and (b) on which all conditions in Article 9 of
the Plan have been satisfied or have been waived in accordance with the Plan.
1.54 EFFECTIVE DATE EXECUTIVE OFFICERS. The executive officers of Intermet
that have entered into Employment Agreements.
1.55 EMPLOYMENT AGREEMENTS. The employment agreements proposed to be
entered into by the Effective Date Officers.
1.56 EQUITY COMMITTEE. The official committee of equity security holders
of the Debtors appointed in these Cases pursuant to Section 1102(a) of the
Bankruptcy Code.
1.57 EQUITY INTEREST. Any equity security, as that term is defined in
section 101(16) of the Bankruptcy Code, of a Debtor as such equity security
exists immediately prior to the Effective Date, only to the extent that such
equity security is an Equity Interest and the Equity Interest has not been paid,
released, or otherwise settled prior to the Effective Date, including any rights
to any dividends or distributions as a result of such ownership, and any option,
warrant, or right to acquire any such ownership interest.
1.58 ESTATE. The estate of each Debtor in these Cases, created pursuant to
Section 541 of the Bankruptcy Code.
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1.59 EXECUTORY CONTRACT. Any executory contract or unexpired lease as of
the Petition Date, subject to Section 365 of the Bankruptcy Code, between a
Debtor and any other Person or Persons, specifically excluding contracts and
agreements entered into pursuant to the Plan.
1.60 EXHIBIT. An exhibit annexed to either this Plan or to the Disclosure
Statement.
1.61 EXHIBIT FILING DATE. The date on which certain Exhibits to the Plan
shall be filed with the Bankruptcy Court, which date shall be at least ten (10)
days prior to the Voting Deadline or such later date as may be approved by the
Bankruptcy Court.
1.62 EXISTING COMMON STOCK. Shares of common stock of Intermet or any of
the Debtors that are authorized, issued and outstanding prior to the Effective
Date.
1.63 EXISTING PREFERRED STOCK. Shares of preferred stock of Ironton,
authorized, issued, and outstanding prior to the Effective Date, excluding any
right to dividends accrued prior to the Effective Date, which shall be treated
as General Unsecured Claims or Convenience Claims, as applicable.
1.64 EXIT FINANCING FACILITY. The exit financing facility obtained by the
Reorganized Debtors, and described in Article 6.11 of the Plan.
1.65 EXIT LENDERS. The lenders under the Exit Financing Facility.
1.66 FINAL ORDER. An order or judgment entered by the Bankruptcy Court,
which has not been reversed, vacated, or stayed, that may no longer be appealed
from or otherwise reviewed or reconsidered, as a result of which such order or
judgment shall have become final and non-appealable in accordance with
Bankruptcy Rule 8002.
1.67 GENERAL UNSECURED CLAIMS. To the extent that such Claim has not been
paid, released, or otherwise settled prior to the Effective Date, all Claims
which are not Priority Claims, Pre-Petition Lender Claims, Secured Claims,
Unsecured Convenience Claims, Equity Interests, Administrative Claims, Tax
Claims, DIP Facility Claims, Workers' Compensation Claims (except as specified
in Article 3.06 of the Plan), Pension Claims, Consignment Claims, and are not
otherwise entitled to priority under the Bankruptcy Code or an order of the
Bankruptcy Court, including but not limited to the Noteholder Claims.
1.68 GENERAL UNSECURED CREDITORS. Creditors holding General Unsecured
Claims.
1.69 HOLDER. A holder of a Claim against or Equity Interest in a Debtor.
1.70 IMPAIRED. With respect to any Claim or Equity Interest, such Claim or
Equity Interest that is impaired within the meaning of Section 1124 of the
Bankruptcy Code.
1.71 IMPAIRED EQUITY DEBTORS. Intermet Corporation and, in the event of
satisfaction of the Liquidating Plan Condition, Wagner Castings and Wagner
Havana shall also be Impaired Equity Debtors. Ironton is an Impaired Equity
Debtor but only as to the Existing Preferred Stock of Ironton.
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1.72 IMPAIRED EQUITY INTERESTS. Holders of Equity Interests in the
Impaired Equity Debtors.
1.73 INDENTURE. That certain Indenture, dated as of June 13, 2002, by and
among Intermet Corporation, as issuer, Lynchburg Foundry Company, Northern
Castings Corporation, Ironton Iron, Inc., Intermet U.S. Holding, Inc., Columbus
Foundry, L.P., SUDM, Inc., Alexander City Casting Company, Inc., Tool Products,
Inc., Sudbury, Inc., Cast-Matic Corporation, Intermet Illinois, Inc. (formerly
known as Frisby P.M.C., Incorporated), Wagner Castings Company, Wagner Havana,
Inc., Diversified Diemakers, Inc., and Ganton Technologies, Inc., as guarantors,
and the Indenture Trustee, as trustee.
1.74 INDENTURE TRUSTEE. The U.S. Bank National Association as the trustee
under the Indenture, the entity currently serving as indenture trustee under the
Senior Notes, or any successor trustee appointed thereunder from time to time.
1.75 INDENTURE TRUSTEE FEES. Reasonable fees and out-of-pocket expenses of
the Indenture Trustee and its attorneys in connection with these Cases in an
amount up to $500,000 in Cash.
1.76 INDENTURE TRUSTEE FEE AMOUNT. The amount of the Indenture Trustee
Fees, as of the Effective Date, as indicated by a fee statement provided by the
Indenture Trustee to the Debtors, the Initial Committed Purchasers, and the
Creditors Committee, no later than 3 days before the Effective Date and which is
acceptable to the Debtors, the Initial Committed Purchasers, and the Creditors'
Committee.
1.77 INDUCEMENT CASH AMOUNT. Cash in the amount equal to the lesser of (i)
a fixed percentage of a General Unsecured Creditor's Allowed Claim as set forth
for each Debtor in Exhibit C to the Plan, or (ii) a Pro Rata share of the
Inducement Cash Pool for such Debtor in Exhibit C to the Plan, provided that,
the Inducement Cash Pool may be increased to ensure a fixed percentage at least
equal to the applicable recovery to which such Holder is entitled to under the
treatment specified in Article 5.04(b) with respect to each applicable Debtor
indicated in Exhibit C to the Plan.
1.78 INDUCEMENT CASH ELECTION. An election by a Holder of a General
Unsecured Claim to take the Inducement Cash Amount in lieu of the Plan
Securities or the Cash-Out Amount pursuant to Articles 5.04, 5.06, and 5.07 of
the Plan, and by which election a Holder of a General Unsecured Claim (i) agrees
to prosecute its Claim(s) exclusively against the Debtor that is the primary
obligor according to the Debtors' books and records, (ii) agrees to waive its
rights to seek recovery from any other Debtor on account of such Claim(s), and
(iii) votes in favor of the Plan.
1.79 INDUCEMENT CASH POOL. A fixed amount of Cash allocated under the
Plan, as set forth for each Debtor in Exhibit C to the Plan, to pay all
Inducement Cash Amounts.
1.80 INITIAL COMMITTED PURCHASERS. R2 Investments, LDC and/or one or more
of its related or associated entities and Stanfield Capital Partners LLC and/or
one or more of its related or associated entities.
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1.81 INTERCOMPANY CLAIMS. Claims of a Debtor against another Debtor.
1.82 IRONTON. Ironton Iron, Inc.
1.83 KEY EMPLOYEES. Those persons who: (i) shall be employed by the
Reorganized Debtors on the Effective Date; (ii) upon consummation of the Plan,
shall be entitled to receive stay bonuses under the Key Employee Retention Plan;
and (iii) are identified in Exhibit L to the Plan.
1.84 KEY EMPLOYEE RETENTION PLAN (KERP). The Amended and Restated Employee
Retention Plan effective September 20, 2004, and as amended and restated on
December 8, 2004, and as approved by a Final Order of the Bankruptcy Court on
December 22, 2004.
1.85 KEY EMPLOYEE RIGHTS OFFERING. A rights offering in connection with
which Reorganized Intermet shall offer to the Key Employees the right to
purchase, on a Pro Rata basis (based upon any payments that may be due to Key
Employees under the KERP), 181,249 shares of New Common Stock, in consideration
of $10.00 per share, with the right to overscribe for the shares, but in no
event shall the total number of shares exceed 181,249.
1.86 LIEN. A charge against or interest in property to secure payment of a
debt or performance of an obligation; provided, however, that a charge or
interest that has been or may be avoided pursuant to an Avoidance Action shall
not constitute a Lien.
1.87 LIQUIDATING PLAN CONDITION. The failure of Classes 4 and 5 to accept
the Plan for Wagner Castings, and confirmation of the Plan for Wagner Casting
under Section 1129(b) of the Bankruptcy Code is not obtained, with respect to
the treatment set forth in Articles 5.05 and 5.07 of the Plan.
1.88 MANAGEMENT INCENTIVE PLAN. A management plan that shall be
implemented to reserve for designated members of senior management of the
Reorganized Debtors Equity Interests (including, without limitation, restricted
New Common Stock and/or options) in an amount up to 5.0% of the New Common Stock
issued on the Effective Date. The Management Incentive Plan will contain terms
and conditions that shall be determined by the Board of Reorganized Intermet.
1.89 NEW COMMON STOCK. The new shares of common stock of Reorganized
Intermet issued pursuant to Article 6.04 of this Plan.
1.90 NOTEHOLDERS. Holders of the Senior Notes.
1.91 NOTEHOLDER CLAIMS. The Claims held by the Noteholders (inclusive of
principal, interest, and other fees and expenses under the Indenture, accrued as
of the Petition Date) arising from the Indenture or the Senior Notes.
1.92 PBGC. The Pension Benefit Guaranty Corporation.
1.93 PENSION CLAIMS. All Claims of the PBGC and/or the Debtors' Pension
Plans against any of the Debtors or Reorganized Debtors.
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1.94 PENSION PLANS. All defined benefit pension plans covered by the
PBGC's termination insurance program and sponsored by a Debtor.
1.95 PERSON. An individual, a corporation, a partnership, a limited
liability company, an association, a joint stock company, an estate, a trust, an
unincorporated organization, a government or any political subdivision thereof,
or any other entity.
1.96 PETITION DATE. September 29, 2004, the date on which the Debtors
commenced these Cases.
1.97 PLAN. The Plans of Reorganization for each Debtor and all supplements
and Exhibits hereto, as the same may be amended or modified by the Debtors from
time to time pursuant to and in accordance with the Plan, the Bankruptcy Code,
and the Bankruptcy Rules.
1.98 PLAN SECURITIES. The New Common Stock, the Rights, and the New Wagner
Castings Common Stock, and the New Wagner Havana Common Stock, if issued.
1.99 PRE-PETITION AGENT. The Bank of Nova Scotia, in its capacity as
administrative agent under the Pre-Petition Credit Facility, or any successor
administrative agent.
1.100 PRE-PETITION CREDIT FACILITY. The credit agreement dated as of
January 8, 2004, as amended, restated, supplemented or otherwise modified from
time to time, and all documents executed in connection therewith, among the
Debtors, the Pre-Petition Agent, and the Pre-Petition Lenders.
1.101 PRE-PETITION LENDERS. The Lenders, as such term is defined in the
Pre-Petition Credit Facility.
1.102 PRE-PETITION LENDER CLAIMS. All Claims of the Pre-Petition Lenders
against any of the Debtors, only to the extent that such Claims have not been
paid, released, or otherwise settled prior to the Effective Date.
1.103 PRIORITY CLAIMS. All Claims that are entitled to priority pursuant
to Section 507(a) of the Bankruptcy Code and that are not Administrative Claims
or Tax Claims, only to the extent that such Claims have not been paid, released,
or otherwise settled prior to the Effective Date.
1.104 PRIVATE PLACEMENT PURCHASE AGREEMENT. The agreement attached hereto
as Exhibit D by and among the Debtors and the Initial Committed Purchasers.
1.105 PRIVATE PLACEMENT PURCHASE SHARES. The Rights Offering Shares that
are not purchased by General Unsecured Creditors in the Rights Offering and
which the Initial Committed Purchasers are obligated to purchase pursuant to the
Private Placement Purchase Agreement, at a purchase price of $10.00 per share.
1.106 PROFESSIONAL[S]. Any professional(s) employed in these Cases
pursuant to Sections 327, 328, 1103, or 1114 of the Bankruptcy Code, and any
professional(s) seeking
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compensation or reimbursement of expenses in connection with these Cases
pursuant to Sections 330, 331, and/or 503(b)(4) of the Bankruptcy Code.
1.107 PROFESSIONAL FEES. All fees due and owing to any Professional for
compensation or reimbursement of costs and expenses relating to services
rendered after the Petition Date and prior to and including the Effective Date.
1.108 PROOF OF CLAIM. Any written statement filed under oath in these
Cases by or on behalf of a Creditor, in conformance with the Bankruptcy Code and
Bankruptcy Rules, which sets forth sufficient detail to identify the basis for a
Claim, and the amount owed.
1.109 PRO RATA. Proportionately, so that for example, a pro rata
Distribution with respect to an Allowed Claim of a particular Class for a
particular Debtor bears the same ratio to all Distributions on account of a
particular Class or Classes for a particular Debtor, as the dollar amount of
such Allowed Claim bears to the dollar amount of all Allowed Claims in such
Class or Classes.
1.110 RECORD DATE. The deadline set by the Bankruptcy Court for
determining the Holders of Claims entitled to vote on the Plan which shall be,
in any case, not later than the date of entry of an order approving the
Disclosure Statement.
1.111 REGISTRATION RIGHTS AGREEMENT. A registration rights agreement,
attached hereto as Exhibit F, whereby Reorganized Intermet will be obligated to
register certain shares of New Common Stock for resale under the Securities Act
pursuant to the terms and conditions of such agreement, which must be acceptable
to the Initial Committed Purchasers pursuant to the Restructuring Commitment
Letter.
1.112 RELEASED ACTIONS. Any actions, proceedings, causes of action, suits,
accounts, controversies, promises to pay, rights to legal remedies, rights to
equitable remedies, rights to payment, claims, obligations, litigations,
judgments, damages, rights and liabilities of any nature whatsoever, whether
known or unknown, reduced to judgment or not reduced to judgment, liquidated or
unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed,
secured or unsecured, foreseen or unforeseen, assertable directly or assertable
derivatively, existing or hereafter arising, in law, equity, or otherwise, based
in whole or in part upon any act, omission, transaction, event or other
occurrence relating to or in connection with any of the Debtors or their
respective property. Notwithstanding anything herein to the contrary, the
Released Actions shall not include the Avoidance Actions.
1.113 RELEASED PARTIES. Intermet, the Debtors, Reorganized Intermet, the
Reorganized Debtors, each Initial Committed Purchaser, the Creditors' Committee
in such capacity and only in such capacity, the Pre-Petition Agent, the
Consenting Pre-Petition Lenders, the DIP Agents, the Consenting DIP Lenders, and
the Indenture Trustee, and each of their respective current and former members,
officers, directors, agents, financial advisors, attorneys, employees, equity
holders, partners, affiliates and representatives and their respective
properties.
1.114 RELEASING PARTIES. Intermet, Reorganized Intermet, the Debtors and
the Reorganized Debtors.
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1.115 REJECTION CLAIMS. All Claims arising as a result of a Debtor's
rejection of Executory Contracts pursuant to the Bankruptcy Code, subject to the
limitations provided in Section 502(b) of the Bankruptcy Code. To the extent a
Rejection Claim is secured, it will be considered a Secured Claim for purposes
of treatment in this Plan, but solely to the extent of the value of the
collateral securing such Secured Claim.
1.116 REORGANIZATION DOCUMENTS. The agreements and other documents set
forth in Article 9 of the Plan.
1.117 REORGANIZED DEBTOR(S). Any new operating entity, or any Debtor, in
each case from and after the Effective Date, giving effect to the transactions
contemplated by the Plan.
1.118 REORGANIZED INTERMET. Intermet from and after the Effective Date,
giving effect to the transactions contemplated by the Plan.
1.119 REORGANIZED WAGNER CASTINGS NEW COMMON STOCK. The new shares of
common stock of Reorganized Wagner Castings issued pursuant to Article 6.04 of
this Plan.
1.120 REORGANIZED WAGNER HAVANA NEW COMMON STOCK. The new shares of common
stock of Reorganized Wagner Havana issued pursuant to Article 6.04 of this Plan.
1.121 RESTRUCTURING COMMITMENT LETTER. The Agreement by and among the
Initial Committed Purchasers and the Debtors and filed with the Bankruptcy Court
as an exhibit to the "Motion of the Debtors Pursuant to Section 363(b)(1) of the
Bankruptcy Code for Authority to (i) Enter into Restructuring Commitment Letter,
(ii) Pay Associated Fees and Expenses, and (iii) Furnish Related Indemnities,"
filed on June 24, 2005 and approved by the Bankruptcy Court on July ___, 2005,
including the exhibits thereto. The Restructuring Commitment Letter is attached
hereto as Exhibit B to the Plan.
1.122 RETAINED ACTIONS. Means any Cause of Action, including but not
limited to (a) all claims, rights of action, setoffs, recoupments, suits and
proceedings, whether in law or in equity, whether known or unknown, which any
Debtor may hold against any Person, including, without limitation, any Avoidance
Actions and any Causes of Action brought by any Debtor prior to the Petition
Date, and actions against any Persons for failure to pay for products or
services provided or rendered by the Debtors, (b) all claims, Causes of Action,
suits and proceedings relating to strict enforcement of the Debtors'
intellectual property rights, including patents, copyrights and trademarks, (c)
all warranty and indemnification claims under any contract or agreement with any
Debtor for goods and services, (d) all claims or Causes of Action seeking the
recovery of the Debtors' accounts receivable or other receivables or rights to
payment created or arising in the ordinary course of the Debtors' businesses,
and such other claims or Causes of Action, as are identified in the Debtors'
Schedules, the Disclosure Statement, or Exhibit K to the Plan, but excludes the
Released Actions (and to the extent applicable, Avoidance Actions) released
under Article 10.05 of the Plan.
1.123 RETIREE BENEFITS. The term shall have the meaning assigned to it in
Section 1114 of the Bankruptcy Code.
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1.124 RETIREE COMMITTEE. The committee of staff retirees appointed by the
Bankruptcy Court pursuant to Section 1114 of the Bankruptcy Code on May 24,
2005.
1.125 RIGHTS. The rights of General Unsecured Creditors to purchase their
Pro Rata portion of New Common Stock in the Rights Offering.
1.126 RIGHTS OFFERING. The offering by the Debtors to Holders of Allowed
General Unsecured Claims, including the Initial Committed Purchasers, pursuant
to an election made in conjunction with voting on the Plan, to purchase on a Pro
Rata basis, the Rights Offering Shares, the terms and conditions of which are
set forth in Article 6.12 hereof.
1.127 RIGHTS OFFERING SHARES. 7,500,000 shares of New Common Stock, to be
offered in the Rights Offering for purchase, on a Pro Rata basis, by General
Unsecured Creditors, at a purchase price of $10.00 per share.
1.128 RIGHTS OFFERING PARTICIPATION CLAIM AMOUNT. The amount set forth in
the chart stated in Article 6.12 of the Plan.
1.129 SCHEDULES. The schedules of assets and liabilities and the
statements of financial affairs filed in the Bankruptcy Court by the Debtors, if
any, as such schedules or statements may be amended or supplemented from time to
time in accordance with Bankruptcy Rule 1009 or orders of the Bankruptcy Court.
1.130 SECURED CLAIMS. To the extent that such Claims have not been paid,
released, or otherwise settled prior to the Effective Date, all Claims (other
than Pre-Petition Lender Claims) that are secured by a valid, perfected,
enforceable, and non-avoidable Lien on any of the Assets of a Debtor or that are
subject to setoff under applicable non-bankruptcy law or Section 553 of the
Bankruptcy Code, to the extent of the value of the interest of each Holder of
such Claim in such Debtor's interest in the Assets subject to a Lien or to the
extent of the amount of the setoff, as applicable; provided, however, that if
the Holder of a Secured Claim elects application of Section 1111(b)(2) of the
Bankruptcy Code, then such Holder's Claim shall be a Secured Claim to the extent
such Claim is Allowed.
1.131 SECURITIES ACT. The Securities Act of 1933, as now in effect or
hereafter amended.
1.132 SECURITY. The term shall have the meaning assigned to it in Section
101(49) of the Bankruptcy Code.
1.133 SENIOR NOTES. The 9.75% interest-bearing notes issued by Intermet
that will mature on June 15, 2009, with interest due each June 15 and December
15 and which are unconditionally guaranteed, jointly and severally, by all of
the other Debtors except Intermet International, Inc. and Intermet Holding
Company.
1.134 STOCKHOLDERS' AGREEMENT. The agreement attached to the Disclosure
Statement as Exhibit G, which sets forth the rights of holders of New Common
Stock. The Stockholders' Agreement shall be effective as of the Effective Date
and binding on all holders of New
14
Common Stock. The Stockholders' Agreement shall be in form and substance
satisfactory to the Initial Committed Purchasers.
1.135 SUBSCRIPTION AGENT. The entity engaged by the Debtors to
administer the Rights Offering, whose address and phone is as follows:
[Name]
[Address]
[Address]
(Attn: [ ])
Phone: ______________
1.136 SUBSCRIPTION COMMENCEMENT DATE. The date Ballots and Subscription
Forms are mailed to Holders of Claims.
1.137 SUBSCRIPTION EXPIRATION DATE. The Voting Deadline, unless
extended by the Debtors and the Initial Committed Purchasers in their
discretion.
1.138 SUBSCRIPTION FORM. The subscription form to be used by
participants in the Rights Offering to exercise the Rights.
1.139 SUBSCRIPTION PURCHASE PRICE. The purchase price of $10.00 per
share that a Holder must pay in Cash in order to exercise its Rights and
purchase the New Common Stock pursuant to the Rights Offering.
1.140 SUBSCRIPTION RECORD DATE. The Subscription Record Date shall be
the Voting Deadline.
1.141 SUDBURY. Sudbury, Inc.
1.142 SUDM. SUDM, Inc.
1.143 SUPPLEMENTAL BAR DATE. April 29, 2005, or such other date as
established by order of the Bankruptcy Court, the deadline by which certain
Creditors were obligated to file Proofs of Claims.
1.144 TAX CLAIMS. All Claims that are entitled to priority under
Section 507(a)(8) of the Bankruptcy Code.
1.145 TEMPORARILY ALLOWED CLAIM. A claim temporarily allowed pursuant
to Bankruptcy Rule 3018 and by an order of the Bankruptcy Court.
15
1.146 UNIMPAIRED. The term shall mean, with respect to any Claim or
Equity Interest, that such Claim or Equity Interest is not Impaired within the
meaning of Section 1124 of the Bankruptcy Code.
1.147 UNIMPAIRED EQUITY DEBTORS. All Debtors except Intermet
Corporation, provided, however, that in the event that the Liquidating Plan
Condition is satisfied, Wagner Castings and Wagner Havana shall not be
Unimpaired Equity Debtors. Ironton is an Unimpaired Equity Debtor but only with
respect to the Existing Common Stock of Ironton.
1.148 UNIMPAIRED EQUITY INTERESTS. Holders of Equity Interests of all
Debtors except Intermet Corporation, provided, however, that in the event that
the Liquidating Plan Condition is satisfied, Holders of Equity Interests in
Wagner Castings and Wagner Havana shall not hold Unimpaired Equity Interests.
1.149 UNSECURED CONVENIENCE CLAIM. An unsecured claim: (i) that is less
than or equal to $125,000, or (ii) for which the Holder makes a Convenience
Class Election.
1.150 U.S. TRUSTEE. The Office of the United States Trustee for the
Eastern District of Michigan.
1.151 U.S. TRUSTEE FEES. The U.S. Trustee's quarterly fees payable
pursuant to 28 U.S.C.Section1930.
1.152 VOTING DEADLINE. The deadline established by the Bankruptcy Court
as the last date by which Creditors are required to submit Ballots in favor of
or against the Plan, as such deadline may be extended from time to time.
1.153 WAGNER CASTINGS. Wagner Castings Company
1.154 WAGNER HAVANA. Wagner Havana, Inc.
1.155 WORKERS' COMPENSATION CLAIMS. Claims arising under the Workers'
Compensation Programs.
1.156 WORKERS' COMPENSATION PROGRAMS. Collectively, the Debtors'
workers' compensation programs in all states in which they operate pursuant to
which the Debtors provide their employees with workers' compensation coverage
for claims arising from or related to their employment with the Debtors.
Terms not expressly defined in the Plan shall have the meaning ascribed
to them as set forth in the Bankruptcy Code, other federal or state statutes,
rules, regulations, or the Disclosure Statement, as applicable. Terms not
expressly defined in the Exhibits to the Plan shall have the meaning ascribed to
them as set forth in the Plan.
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ARTICLE 2
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Pursuant to Section 1122 of the Bankruptcy Code, set forth below is a
designation of Classes of Claims against and Equity Interests in the Debtors. A
Claim or Equity Interest is placed in a particular Class for purposes of voting
on the Plan and of receiving Distributions pursuant to the Plan. In accordance
with Section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Tax
Claims, DIP Facility Claims, U.S. Trustee Fees, Workers' Compensation Claims,
Pension Claims, and Consignment Claims have not been classified.
THE PLAN IS PROPOSED JOINTLY BY ALL OF THE DEBTORS, BUT CONSTITUTES A
SEPARATE PLAN FOR EACH DEBTOR. THE ESTATES OF THE DEBTORS HAVE NOT BEEN
CONSOLIDATED, SUBSTANTIVELY OR OTHERWISE. ANY CLAIMS HELD AGAINST ONE OF THE
DEBTORS WILL BE SATISFIED SOLELY FROM THE CASH AND ASSETS OF SUCH DEBTOR. EXCEPT
AS SPECIFICALLY SET FORTH IN THE PLAN, NOTHING IN THE PLAN OR THE DISCLOSURE
STATEMENT SHALL CONSTITUTE OR BE DEEMED TO CONSTITUTE AN ADMISSION THAT ONE OF
THE DEBTORS IS SUBJECT TO OR LIABLE FOR ANY CLAIM AGAINST THE OTHER DEBTORS. THE
CLAIMS OF CREDITORS THAT HOLD CLAIMS AGAINST MULTIPLE DEBTORS WILL BE TREATED AS
SEPARATE CLAIMS WITH RESPECT TO EACH DEBTOR'S ESTATE FOR ALL PURPOSES
(INCLUDING, BUT NOT LIMITED TO, DISTRIBUTIONS AND VOTING), AND SUCH CLAIMS WILL
BE ADMINISTERED AS PROVIDED HEREIN. THEREFORE, EXCEPT AS EXPRESSLY SPECIFIED
HEREIN, THE CLASSIFICATIONS SET FORTH BELOW SHALL BE DEEMED TO APPLY SEPARATELY
WITH RESPECT TO EACH PLAN PROPOSED BY EACH DEBTOR.
For the purposes of the Plan, Claims against, or Equity Interests in
the Debtors are grouped as follows in accordance with Section 1122(a) of the
Bankruptcy Code:
2.01 CLASS 1. PRIORITY CLAIMS AGAINST ANY DEBTOR. Class 1 for each
Debtor consists of all Priority Claims. Class 1 is Unimpaired.
2.02 CLASS 2. PRE-PETITION LENDER CLAIMS AGAINST ANY DEBTOR. Class 2
for each Debtor consists of all Pre-Petition Lender Claims. Class 2 is
Unimpaired.
2.03 CLASS 3. SECURED CLAIMS AGAINST ANY DEBTOR EXCEPT CLAIMS IN CLASS
3A AS TO WAGNER CASTINGS COMPANY. Class 3 consists of all Secured Claims for
each Debtor except those against Wagner Castings which are in Class 3a. Class 3
is Unimpaired.
2.04 CLASS 3A. SECURED CLAIMS HELD BY DANA CORPORATION AGAINST WAGNER
CASTINGS COMPANY. Class 3a consists of all Secured Claims held by Dana
Corporation against Wagner Castings. Class 3a is Impaired.
2.05 CLASS 4. GENERAL UNSECURED CLAIMS. Class 4 consists of all General
Unsecured Claims except those in Class 4a and 4b. Class 4 is Impaired.
17
2.06 CLASS 4A. GENERAL UNSECURED CLAIMS AGAINST WAGNER CASTINGS
COMPANY. Class 4a shall only exist in the event that the Liquidating Plan
Condition is satisfied and, in such event, shall consist of all General
Unsecured Claims and Unsecured Convenience Claims against Wagner Castings. Class
4a is Impaired.
2.07 CLASS 4B. GENERAL UNSECURED CLAIMS AGAINST SUDM, INC. Class 4b
consists of all General Unsecured Claims and Unsecured Convenience Claims
against SUDM, Inc. Class 4b is Impaired.
2.08 CLASS 4C. GENERAL UNSECURED CLAIMS AGAINST WAGNER HAVANA, INC.
Class 4c shall only exist in the event that the Liquidating Plan Condition is
satisfied and, in such event, shall consist of all General Unsecured Claims
against Wagner Havana, Inc. Class 4c is Impaired.
2.09 CLASS 5. UNSECURED CONVENIENCE CLAIMS. Class 5 consists of all
Unsecured Convenience Claims against each Debtor, provided, however, that in the
event that the Liquidating Plan Condition is satisfied, such Debtors shall not
include Wagner Castings or SUDM. Class 5 is Impaired.
2.10 CLASS 6A. UNIMPAIRED EQUITY INTERESTS. Class 6a consists of all
Unimpaired Equity Interests. Class 6a is Unimpaired.
2.11 CLASS 6B. IMPAIRED EQUITY INTERESTS. Class 6b consists of all
Impaired Equity Interests. Class 6b is Impaired.
ARTICLE 3
TREATMENT OF UNCLASSIFIED CLAIMS
3.01 INTRODUCTION. In accordance with Section 1123(a)(1) of the
Bankruptcy Code, Administrative Claims, Tax Claims, DIP Facility Claims, U.S.
Trustee Fees, Workers' Compensation Claims (to the extent such Workers'
Compensation Claims are not General Unsecured Claims as described in Article
3.06 of the Plan), Pension Claims, and Consignment Claims have not been
classified, and the respective treatment of such unclassified Claims is set
forth below.
3.02 ADMINISTRATIVE CLAIMS AGAINST ANY DEBTOR. Except for Holders of
DIP Facility Claims, each Holder of an Allowed Administrative Claim, shall
receive, in full satisfaction of such Allowed Claim, Cash equal to the amount of
such Claim on the later of (i) the Effective Date and (ii) the date that is ten
(10) days after the Allowance Date, unless such Holder shall have agreed to
different treatment of such Allowed Claim; provided, however, that Allowed
Administrative Claims representing obligations incurred in the ordinary course
of business by a Debtor shall be paid or performed in accordance with the terms
and conditions of the particular transactions and any agreements relating
thereto. Nothing herein shall be deemed to accelerate a Debtor's obligation to
make payment on account of any Administrative Claim that is not due and owing as
of the Confirmation Date, is not Allowed, or is subject to ongoing objections in
the Bankruptcy Court or other court of competent jurisdiction.
18
3.03 TAX CLAIMS AGAINST ANY DEBTOR. Each Holder of an Allowed Tax Claim
against any Debtor shall receive in full satisfaction of such Allowed Tax Claim,
at the election of the relevant Debtor, in its sole discretion, either (i) Cash
equal to the amount of such Claim on the later of (1) the Effective Date, and
(2) the date that is 10 days after the Allowance Date, unless such Holder shall
have agreed to different treatment of such Allowed Claim, or (ii) in accordance
with Section 1129(a)(9)(C) of the Bankruptcy Code, Cash payments in equal
monthly installments commencing on the first Business Day of the month
succeeding the month in which the Effective Date occurs and continuing on the
first Business Day of each month thereafter, until the month which is six (6)
years after the date of assessment of such Claim totaling the principal amount
of such Claim plus interest on any outstanding balance from the Effective Date
calculated at the interest rate equal to the applicable federal rate as
determined in accordance with Section 1274(d) of the Internal Revenue Code of
1986, as amended and the regulations promulgated thereunder, or (iii) such other
treatment as to which the Holder of such Allowed Tax Claim shall have agreed in
writing; provided, however, that any Claim or demand for payment of a penalty
(other than a penalty of the type specified in Section 507(a)(8)(G) of the
Bankruptcy Code) shall be disallowed pursuant to this Plan and the Holder of an
Allowed Tax Claim shall not assess or attempt to collect such penalty from the
Debtors, their Estates, the Reorganized Debtors, or their property.
3.04 DIP FACILITY CLAIMS AGAINST ANY DEBTOR. On the Effective Date, in
full satisfaction of the DIP Facility Claims against each Debtor, the DIP Agents
(for the benefit of the DIP Lenders, as applicable) shall receive Cash in an
amount equal to the then outstanding amount of the DIP Facility Claims
(including, without limitation, all accrued and unpaid interest, fees and
expenses and any other amounts that may then be due and payable under the DIP
Facility) and any undrawn letters of credit issued pursuant to the DIP Facility
shall be returned and marked cancelled and shall be replaced by letters of
credit issued under the Exit Financing Facility. On the Effective Date, the DIP
Agents' and the DIP Lenders' commitments and obligations under the DIP Facility
shall be irrevocably terminated and the Debtors shall be deemed to have
unconditionally and irrevocably released the DIP Lenders and the DIP Agents from
all obligations, claims and liabilities arising thereunder or relating thereto.
3.05 U.S. TRUSTEE FEES OWED BY ANY DEBTOR. The U.S. Trustee's quarterly
fees owed by any Debtor shall be paid in full without prior approval pursuant to
28 U.S.C.Section1930 on or before the Effective Date. All fees payable pursuant
to 28 U.S.C.Section1930 will be paid by each of the Reorganized Debtors in
accordance therewith until the closing of its respective Case pursuant to
Section 350(a) of the Bankruptcy Code.
3.06 WORKERS' COMPENSATION CLAIMS AGAINST ANY DEBTOR. Upon the
Effective Date of the Plan, with the exception of the Workers' Compensation
Program for the State of Ohio, which relates to Ironton and Sudbury, the
Reorganized Debtors shall continue the Workers' Compensation Programs for all
states in which they operate. Nothing in the Plan shall be deemed to discharge,
release, or relieve the Debtors or Reorganized Debtors from any current or
future liability with respect to any of its/their obligations under the Workers'
Compensation Programs provided that in the case of the Workers' Compensation
Program for the State of Ohio, which relates to Ironton and Sudbury, Claims
arising thereunder shall be General Unsecured Claims. The Reorganized Debtors
shall be responsible for all valid Claims for benefits and liabilities under the
applicable Workers' Compensation Programs, provided that, in the case of
19
the Workers' Compensation Program for the State of Ohio, which relates to
Ironton and Sudbury, such Claims arising thereunder shall be General Unsecured
Claims under the Plan, regardless of when the applicable injuries occurred. All
obligations under the applicable Workers' Compensation Programs shall be paid in
accordance with the terms and conditions of applicable Workers' Compensation
Programs and all other applicable laws other than the Workers' Compensation
Program for the State of Ohio, which relates to Ironton and Sudbury, which
Claims shall be General Unsecured Claims under the Plan, regardless of when the
applicable injuries occurred. For all states in which the Debtors currently
operate or have operated, with the exception of the State of Ohio, the Workers
Compensation Programs are either (i) self-insured, or (ii) insured with a third
party insurance carrier, and are in all cases secured by letters of credit.
Accordingly, Claims resulting from the Workers' Compensation Program for the
State of Ohio, which relates to Ironton and Sudbury, shall be Class 4 General
Unsecured Claims or Class 5 Unsecured Convenience Claims as applicable.
3.07 PENSION CLAIMS AGAINST ANY DEBTOR. Upon Confirmation and
substantial consummation of the Plan, the Reorganized Debtors will continue all
Pension Plans in accordance with applicable law, and the Debtors' obligations
under applicable law with respect to continued funding of the Pension Plans will
remain unaltered. Nothing in the Plan shall be deemed to discharge, release, or
relieve the Debtors, the Reorganized Debtors, or their control group of or from
any current or future liability under applicable law with respect to the Pension
Plans. On the earlier of September 15, 2005 or the Effective Date, the Debtors
will pay into each Pension Plan the amount then due for the 2004 Pension Plan
years. On the Effective Date, the Debtors will pay into each Pension Plan the
remaining amounts then due under applicable minimum funding standards and the
PBGC will be deemed to have withdrawn its Claims with respect to the Pension
Plans. The PBGC is enjoined from seeking relief against the Reorganized Debtors
under 29 U.S.C. Section 1362(e) as a consequence of the closure of the Debtors'
Racine, Wisconsin or Decatur, Illinois facilities.
3.08 CONSIGNMENT CLAIMS AGAINST ANY DEBTOR. Notwithstanding section
1141(c) or any other provision of the Bankruptcy Code, all Liens, if any, of
Persons who provided goods to the Debtors on consignment (i) prior to the
Petition Date and who hold valid, enforceable, and perfected Liens in such goods
(a) pursuant to a written agreement with the Debtors and (b) in accordance with
applicable law, or (ii) after the Petition Date pursuant to any order of the
Bankruptcy Court shall, in each case, survive the Effective Date and continue in
accordance with the contractual terms of the underlying agreements between the
Debtors and such Persons and shall remain enforceable as of the Effective Date
with the same extent, validity and priority as existed as of the Petition Date
or pursuant to such order, as the case may be. All other Persons who provided
goods to the Debtors on consignment shall be deemed to hold General Unsecured
Claims under this Plan. No request for payment of an Administrative Claim need
be filed with respect to any Claim contemplated by this Article 3.08, which
Claim shall be payable by the Debtors in the ordinary course of business.
ARTICLE 4
TREATMENT OF CLASSES THAT ARE UNIMPAIRED UNDER THE PLAN
4.01 CLASSES THAT ARE UNIMPAIRED. Classes 1, 2, and 3 are Unimpaired
for all Debtors. Holders of Equity Interests in the Unimpaired Equity Debtors
are Unimpaired.
20
Therefore, pursuant to Section 1126(f) of the Bankruptcy Code, the Holders of
Allowed Claims and Interests in such Classes are conclusively presumed to have
accepted the Plan. Nothing herein shall be deemed to accelerate any Debtor's
obligation to make payment on account of any Claim in a Class which is
Unimpaired under the Plan or affect the timing of payment under applicable
non-bankruptcy law. Additionally, the Debtors shall retain all rights to dispute
or challenge any Claim or Interest asserted hereunder which shall constitute a
Claim or Interest in a Class that is Unimpaired under the Plan.
4.02 CLASS 1 FOR ALL DEBTORS - PRIORITY CLAIMS AGAINST ANY DEBTOR.
Unless the Holder of a Priority Claim and the Debtors agree to a different
treatment, each Holder of an Allowed Priority Claim against any Debtor, shall
receive, in full satisfaction of such Allowed Claim, Cash equal to the amount of
such Allowed Claim on the latest of (i) the Effective Date, (ii) the date that
is 10 days after the Allowance Date of such Claim, and (iii) the date when such
Allowed Claim becomes due and payable according to its terms and conditions.
4.03 CLASS 2 FOR ALL DEBTORS - PRE-PETITION LENDER CLAIMS AGAINST ANY
DEBTOR. The Pre-Petition Lender Claims shall be Allowed in an amount equal to
the sum of (i) the principal amount of the Pre-Petition Lender Claims as of the
Petition Date, plus all unpaid interest and fees which have accrued and are
unpaid through the Petition Date, plus (ii) all interest and fees (if any) to
which the Pre-Petition Lenders are entitled under Section 506(b) of the
Bankruptcy Code, and (iii) any other amounts owed by the Debtors under the DIP
Order, to the extent not already paid to the Pre-Petition Lenders pursuant to
the DIP Financing Order. On the Effective Date, in full satisfaction of all of
the obligations of the Debtors in respect of the Pre-Petition Lender Claims, the
Disbursing Agent shall distribute to the Pre-Petition Agent (for the benefit of
the Pre-Petition Lenders) and without further notice, application or hearing,
Cash in an amount equal to the principal and all interest accrued on the
Pre-Petition Lender Claims through the Effective Date plus all unreimbursed fees
and expenses incurred by the Pre-Petition Agent through the Effective Date. The
Pre-Petition Lenders shall be entitled to retain all payments made to the
Pre-Petition Lenders prior to the Effective Date. In addition, as of the
Effective Date, the Consenting Pre-Petition Lenders will be deemed to have been
unconditionally and irrevocably released from all obligations, claims and
liabilities arising under or related to the Pre-Petition Credit Facility or its
lending relationship to the Debtors, whether arising before or after the
Petition Date.
4.04 CLASS 3 FOR ALL DEBTORS EXCEPT AS TO CLASS 3A CLAIMS AGAINST
WAGNER CASTINGS COMPANY. Unless the Holder of an Allowed Secured Claim and the
Debtors agree to a different treatment, either (a) the legal, equitable, and
contractual rights of Holders of Secured Claims shall be reinstated on the
Effective Date, or (b) the relevant Debtor shall (i) Cure any pre-petition
default (other than defaults of the kind specified in Section 365(b)(2) of the
Bankruptcy Code), (ii) reinstate the maturity of such Secured Claim, (iii)
compensate the Holder of such Allowed Secured Claim to the extent required by
Section 1124(2)(c) of the Bankruptcy Code, and (iv) not otherwise alter the
legal, equitable or contractual rights to which such Secured Claim entitles the
Holder. The Debtors' failure to object to such Secured Claims in the Case shall
be without prejudice to the Debtors' right to contest or otherwise defend
against such Claims in the Bankruptcy Court or other appropriate non-bankruptcy
forum (at the option of the Debtors) when and if such Claims are sought to be
enforced by the Holder of the Secured Claim. All pre-Petition Date Liens on
property of the Debtors held by or on behalf of the Holder of Secured
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Claims with respect to such Claims shall survive the Effective Date and continue
in accordance with the contractual terms of the underlying agreements with such
Holders until, as to each such Holder, the Allowed Claims of such Holder of such
Secured Claims are paid in full.
4.05 CLASS 6A. UNIMPAIRED EQUITY INTERESTS IN UNIMPAIRED EQUITY
DEBTORS. On the Effective Date, Equity Interests in the Unimpaired Equity
Debtors will be Allowed and retained by the applicable Reorganized Debtor.
Holders of Equity Interests in the Unimpaired Equity Debtors will not be
entitled to vote and are deemed to have accepted the Plan.
ARTICLE 5
TREATMENT OF CLASSES THAT ARE IMPAIRED UNDER THE PLAN
5.01 IMPAIRED CLASSES. Classes 3a, 4, 4a, 4b, 4c, 5 and Class 6b
Impaired Equity Interests are Impaired. Holders of Allowed Claims in Classes 3a,
4, 4a, 4b, 4c, and 5 are, to the extent that such Claims are Allowed, not
Disputed, or Temporarily Allowed, allowed to vote to accept or reject the Plan.
Holders of Equity Interests in the Impaired Equity Debtors are deemed to have
rejected the Plan pursuant to Section 1126(g) of the Bankruptcy Code.
5.02 ACCEPTANCE BY AN IMPAIRED CLASS. In accordance with Section
1126(c) of the Bankruptcy Code, and except as provided in Section 1126(e) of the
Bankruptcy Code, an Impaired Class of Claims shall have accepted the Plan if the
Plan is accepted by the Holders of at least two-thirds (2/3) in dollar amount
and more than one-half (1/2) in number of the Allowed Claims of such Class that
have timely and properly voted to accept or reject the Plan.
5.03 CLASS 3A. SECURED CLAIMS HELD BY DANA CORPORATION AGAINST WAGNER
CASTINGS COMPANY. On the Effective Date, in full satisfaction of its Allowed
Secured Claim for setoff, Dana shall be allowed to setoff such Claim from
amounts owed to Wagner Castings, Columbus Foundry, L.P., Lynchburg Foundry
Company, and Intermet, on the condition that Dana provides the amendments to its
purchase orders with the aforementioned Debtors, set forth in an agreement by
and among such Debtors and Dana, dated April, 2005.
5.04 CLASS 4. GENERAL UNSECURED CLAIMS OTHER THAN THOSE IN CLASSES 4A,
4B, OR 4C. On or as soon as reasonably practicable after the Effective Date, in
full satisfaction of its Allowed General Unsecured Claims in such Class, the
Indenture Trustee, on behalf of each of the Noteholders, or each Holder of the
Allowed General Unsecured Claims, respectively, shall receive in full
satisfaction of its Claims against such Debtor:
(a) the Cash-Out Amount; OR
(b) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot:
(i) a Pro Rata portion of shares of New Common Stock
allocated to the applicable Debtor as indicated in Exhibit C
to the Plan, and
(ii) its Pro Rata share of the Rights allocated to
the applicable Debtor as indicated on Exhibit C to the Plan;
OR
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(c) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot, the Inducement Cash Amount.
For the avoidance of doubt, in the event a Holder of a General
Unsecured Claim fails to elect the options set forth in Article 5.04(b) and (c),
such Holder shall receive Cash equal to the Cash-Out Amount.
5.05 CLASS 4A. GENERAL UNSECURED CLAIMS AGAINST WAGNER CASTINGS
COMPANY. On or as soon as reasonably practicable after the Effective Date, in
full satisfaction of the Allowed General Unsecured Claims in such Class, the
Indenture Trustee, on behalf of each of the Noteholders, or each Holder of the
Allowed General Unsecured Claims, respectively, shall receive in full
satisfaction of their Claims against Wagner Castings:
Cash equal to each Holder's Pro Rata share of all proceeds
remaining after liquidation of all assets of Wagner Castings and the
satisfaction of all Liens thereon, including those arising after the Effective
Date, such as the Liens arising under the Exit Financing Facility.
5.06 CLASS 4B. GENERAL UNSECURED CLAIMS AGAINST SUDM, INC. On or as
soon as reasonably practicable after the Effective Date, in full satisfaction of
its Allowed General Unsecured Claims in such Class, the Indenture Trustee, on
behalf of each of the Noteholders, or each Holder of the Allowed General
Unsecured Claims, respectively, shall receive:
(a) the Indenture Trustee Fee Amount which shall be paid to
the Indenture Trustee in satisfaction of the Indenture Trustee Fees,
and
(b) the Cash-Out Amount with respect to SUDM as indicated in
Exhibit C to the Plan; OR
(c) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot:
(i) a Pro Rata portion of shares of New Common Stock
allocated to SUDM as indicated in Exhibit C to the Plan, and
(ii) its Pro Rata share of the Rights allocated to
SUDM and indicated on Exhibit C to the Plan; OR
(d) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot, the Inducement Cash Amount with respect
to SUDM.
For the avoidance of doubt, in the event a Holder of a General
Unsecured Claim fails to elect the options set forth in Article 5.06(c) and (d),
such Holder shall receive Cash equal to the Cash-Out Amount.
5.07 CLASS 4C. GENERAL UNSECURED CLAIMS AGAINST WAGNER HAVANA, INC. On
the Effective Date, the Indenture Trustee, on behalf of each of the Noteholders,
or a Holder of
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Allowed General Unsecured Claims against Wagner Havana, Inc., shall receive in
full satisfaction of their Claims:
(a) the Cash-Out Amount with respect to Wagner Havana as
indicated in Exhibit C to the Plan; OR
(b) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot:
(i) a Pro Rata portion of shares of the New Common
Stock allocated to Wagner Havana as indicated in Exhibit C to
the Plan,
(ii) its Pro Rata share of the Rights allocated to
Wagner Havana and indicated on Exhibit C to the Plan; and
(iii) its Pro Rata share of the Reorganized Wagner
Havana New Common Stock which shall be conveyed immediately to
Reorganized Intermet upon the Effective Date; OR
(c) at the option of each such Holder of a General Unsecured
Claim and only to the extent that such Holder of General Unsecured
Claims so elects on the Ballot, the Inducement Cash Amount.
In the event a Holder of a General Unsecured Claim fails to elect the
options set forth in Article 5.07(b) or (c), such Holder shall receive the
Cash-Out Amount.
5.08 CLASS 5. UNSECURED CONVENIENCE CLAIMS. All Allowed Unsecured
Convenience Claims shall be paid as soon as practicable after the Effective
Date, in full satisfaction of such Claims, according to Exhibit C to the Plan.
5.09 CLASS 6B. IMPAIRED EQUITY INTERESTS. On the Effective Date,
Impaired Equity Interests in the Impaired Equity Debtors shall be cancelled.
Holders of Equity Interests in the Impaired Equity Debtors shall be deemed to
have rejected the Plan.
5.10 INTERCOMPANY CLAIMS. All Intercompany Claims will be released,
waived and discharged as of the Effective Date. Claims held by Non-Debtor
Affiliates against the Debtors will, to the maximum extent practicable, be (a)
released, waived, and discharged as of the Effective Date, (b) offset against
claims held by Debtors against Non-Debtor Affiliates, or (c) converted to equity
with respect to the obligee Debtor.
5.11 NON-CONSENSUAL CONFIRMATION. In the event that any Classes
entitled to vote on the Plan, fail to accept the Plan, the Debtors reserve the
right (i) to modify the Plan in accordance with Article 11 of the Plan, and (ii)
to request that the Bankruptcy Court confirm the Plan in accordance with Section
1129(b) of the Bankruptcy Code notwithstanding such lack of acceptance by
finding that the Plan does not discriminate unfairly and is fair and equitable
with respect to the treatment to any Impaired Class of Claims voting to reject
the Plan.
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ARTICLE 6
MEANS FOR IMPLEMENTATION OF THE PLAN
6.01 REORGANIZED INTERMET AND REORGANIZED DEBTORS. Each of the Debtors
will continue to exist after the Effective Date as a separate entity, except as
otherwise provided herein, with all the powers under applicable law in the
jurisdiction in which each applicable Debtor is incorporated or otherwise formed
and pursuant to its certificate of incorporation and bylaws or other
organizational documents in effect on the Effective Date, without prejudice to
any right to terminate such existence (whether by merger or otherwise) under
applicable law after the Effective Date. On the Effective Date, Reorganized
Intermet shall re-domesticate, by merger or other appropriate means, as a new
corporation under the laws of the State of Delaware with a new Certificate of
Incorporation and Bylaws. The Articles of Incorporation and Bylaws for all other
Debtors continuing after the Effective Date shall be amended and restated but
such Debtors shall remain subject to the laws of the jurisdictions in which such
Debtors were incorporated or formed prior to the Effective Date.
6.02 NON-DEBTORS. There are certain Affiliates of the Debtors that are
not Debtors in these Chapter 11 Cases. The continued existence, operation and
ownership of such non-Debtor Affiliates is a material component of the Debtors'
businesses, and, as set forth in Article 10.01 of this Plan, all of the Debtors'
Equity Interests and other property interests in such non-Debtor Affiliates
shall revest in the applicable Reorganized Debtor or its successor on the
Effective Date.
6.03 AGREEMENTS ON THE EFFECTIVE DATE. In order to implement the Plan,
the Debtors anticipate that the following agreements, among others, will be
executed or implemented, on or prior to the Effective Date:
(a) the Exit Financing Facility;
(b) the Employment Agreements;
(c) the certificate of incorporation or Articles of Incorporation,
as applicable, and Bylaws or other corporate governance documents;
(d) the Registration Rights Agreement;
(e) the Cash-Out Purchase Agreement;
(f) the Private Placement Purchase Agreement;
(g) the Stockholders' Agreement; and
(h) all other documents necessary to effectuate the Plan.
All of the above documents shall be (a) filed by the Debtors with the
Bankruptcy Court not later than the Exhibit Filing Date unless otherwise
specified herein, and (b) satisfactory to the Initial Committed Purchasers and
the Debtors.
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6.04 CORPORATE ACTION.
(a) The Certificate of Incorporation and Bylaws of Reorganized
Intermet, shall, among other things: (i) authorize the issuance of the New
Common Stock, (ii) prohibit the issuance of nonvoting equity securities, as
required by Section 1123(a)(6) of the Bankruptcy Code, subject to amendment of
such certificate of incorporation and bylaws as permitted by applicable law, and
(iii) effectuate the provisions of the Plan, in each case without any further
action by the officers, stockholders or directors of the Debtors or the
Reorganized Debtors.
(b) The Certificate of Incorporation (or other similar document) and
Bylaws of all of the Debtors other than Reorganized Intermet, shall, among other
things: (i) prohibit the issuance of nonvoting equity securities, as required by
Section 1123(a)(6) of the Bankruptcy Code, subject to amendment of such
certificate of incorporation and bylaws as permitted by applicable law, and (ii)
effectuate the provisions of the Plan, in each case without any further action
by the officers, stockholders or directors of the Debtors or the Reorganized
Debtors.
(c) On the Effective Date, the execution and delivery of each agreement
on the Effective Date and any other document necessary to effectuate the
transactions contemplated herein and therein, and all other actions contemplated
by the Plan, or such other documents shall be authorized and approved in all
respects (subject to the provisions of the Plan). All matters provided for in
the Plan involving the corporate structure of the Reorganized Debtors, and any
corporate action required by the Debtors or Reorganized Debtors in connection
with the Plan, shall be deemed to have occurred and shall be in effect, without
any requirement of further action by the security holders or directors of the
Debtors or Reorganized Debtors. On the Effective Date, the appropriate officers
of the Reorganized Debtors and members of the Boards of the Reorganized Debtors
are authorized and directed to issue, execute and deliver the agreements,
documents, securities and instruments contemplated by the Plan in the name of,
and on behalf of, the Reorganized Debtors.
(d) On or as soon as reasonably practicable after the Effective Date,
Reorganized Intermet, shall issue shares of the New Common Stock to those
Persons entitled to receive such pursuant to the Plan.
(e) On or as soon as reasonably practicable after the Effective Date,
if the Liquidating Plan Condition is satisfied, then the Articles of
Incorporation and Bylaws of Wagner Castings shall authorize the issuance of one
(1) share of Reorganized Wagner Castings New Common Stock and such share will be
issued and delivered to a third-party liquidating trustee acceptable to the
Reorganized Debtors, the Initial Committed Purchasers, and the Creditors'
Committee for the purpose of liquidating Wagner Castings and making the
Distributions set forth in Class 4a.
(f) On or as soon as reasonably practicable after the Effective Date,
if the Liquidating Plan Condition is satisfied, then the Articles of
Incorporation and Bylaws of Wagner Havana shall authorize the issuance of the
Reorganized Wagner Havana New
26
Common Stock and Reorganized Wagner Havana shall issue Reorganized
Wagner Havana New Common Stock to Holders of Claims against Wagner
Havana which such Holders will immediately transfer to Reorganized
Intermet.
6.05 STOCKHOLDERS' AGREEMENT. All holders of New Common Stock will be
subject to the Stockholders' Agreement which will, among other things, govern
appointment of the Board of Directors of Reorganized Intermet, each holder of
New Common Stock's access to information with respect to the Reorganized
Debtors, and ability to transfer such holder's New Common Stock. An election by
a Person to receive New Common Stock on the Ballot shall constitute such
Person's agreement to be bound by the Stockholders' Agreement. Each certificate
representing share(s) of New Common Stock shall bear a legend indicating that
the New Common Stock is subject to the Stockholders' Agreement. The
Stockholders' Agreement will be effective as of the Effective Date.
6.06 CANCELLATION OF EXISTING STOCK AND EXISTING PREFERRED STOCK. On or
as soon as reasonably practicable after the Effective Date, except as otherwise
specifically provided for herein (a) the Existing Common Stock of the Impaired
Equity Debtors and any other note, bond, indenture, or other instrument or
document evidencing or creating any indebtedness or obligation of or ownership
interest in the Impaired Equity Debtors, except such notes or other instruments
evidencing indebtedness or obligations of the Impaired Equity Debtors that are
reinstated under this Plan, will be cancelled, and (b) the Existing Preferred
Stock will be cancelled; and (c) obligations of, Claims against, and/or Equity
Interests in the Impaired Equity Debtors under, relating, or pertaining to any
agreements, indentures, certificates of designation, bylaws, or certificates or
articles of incorporation or similar documents evidencing or creating any
indebtedness or obligation of the Impaired Equity Debtors, except such notes,
instruments, or other documents evidencing indebtedness or obligations of the
Impaired Equity Debtors that are reinstated or otherwise expressly assumed or
preserved under this Plan, as the case may be, will be released and discharged.
The Unimpaired Equity Interests will be retained by the applicable Reorganized
Debtor.
6.07 MANAGEMENT INCENTIVE PLAN. On or as soon as reasonably practicable
after the Effective Date, the Management Incentive Plan shall be implemented to
reserve for designated members of senior management of the Reorganized Debtors
Equity interests (including, without limitation, restricted common stock and/or
options) in Reorganized Intermet in an amount up to 5.0% of the New Common Stock
issued on the Effective Date. The Management Incentive Plan will contain terms
and conditions that shall be determined by the Board of Reorganized Intermet.
6.08 THE KEY EMPLOYEE RIGHTS OFFERING. The Reorganized Debtors will
conduct the Key Employee Rights Offering in connection with which Reorganized
Intermet shall offer to the Key Employees the right to purchase, on a Pro Rata
basis (based upon payments due to Key Employees under the KERP), 181,249 shares
of New Common Stock, in consideration for Cash in the amount of $10.00 per
share. Key Employees shall have the right of over subscription with respect to
the Key Employee Rights Offering, provided that, in no event shall the total
shares in the Key Employee Rights Offering exceed 181,249 shares. Moreover, the
rights to purchase shares of New Common Stock in connection with the Key
Employee Rights Offering shall be non-transferable. Other terms and conditions
of the Key Employee Rights Offering are to be determined by the Debtors and the
Initial Committed Purchasers, in consultation with the
27
Creditors' Committee. The Key Employees either: (i) may receive in cash any
unpaid stay bonuses to which they may be entitled in accordance with the terms
and subject to the conditions of the KERP, including, without limitation, the
stay bonus payment schedule set forth therein; or (ii) upon consummation of the
Plan, may purchase shares of New Common Stock in connection with the Key
Employee Rights Offering by authorizing Reorganized Intermet to apply, on their
behalf, on a dollar-for-dollar basis, any such stay bonuses toward the purchase
of the shares of New Common Stock covered by the Key Employee Rights Offering.
Any New Common Stock issued pursuant to the Key Employee Rights Offering shall
be subject to the Stockholders' Agreement.
6.09 BOARD OF REORGANIZED INTERMET. On the Effective Date, the Board of
Directors of Reorganized Intermet shall be composed of seven members. On the
Effective Date, (i) five of such members shall be selected by the Initial
Committed Purchasers, (ii) one of such members shall be the Chief Executive
Officer of Reorganized Intermet, and (iii) one of such members shall be selected
by the Creditors' Committee. The member selected by the Creditors' Committee
shall be acceptable to the Initial Committed Purchasers. Two of the five members
selected by the Initial Committed Purchasers may not be officers, directors or
employees of either of the Initial Committed Purchasers.
6.10 OFFICERS. The Effective Date Executive Officers shall become
employed by Reorganized Intermet on the Effective Date pursuant to the
Employment Agreements. The other officers of the Debtors immediately prior to
the Effective Date shall serve as the officers of the applicable Reorganized
Debtor until their successors are duly appointed in accordance with Reorganized
Intermet's governance documents and applicable law. Each officer shall serve
from and after the Effective Date pursuant to the terms of Reorganized
Intermet's governance documents and applicable law. The Employment Agreements
shall be in form and substance satisfactory to the Initial Committed Purchasers
and shall supercede such officer's pre-Effective Date employment agreement.
6.11 EXIT FINANCING. On the Effective Date, the Reorganized Debtors
shall enter into the Exit Financing Facility in order to obtain the funds
necessary to: (a) repay in full the DIP Facility Claims and replace any letters
of credit issued pursuant to the DIP Facility, or in the alternative the Exit
Lenders may issue letters of credits to the DIP Lenders to secure payment of any
undrawn letters of credit issued pursuant to the DIP Facility which may remain
outstanding after the Effective Date; (b) make other payments required to be
made on the Effective Date, including, but not limited to, the payment in full
in Cash of the Pre-Petition Lender Claims and any undrawn letters of credit
issued pursuant to the Pre-Petition Credit Facility shall be returned and marked
cancelled and shall be replaced by letters of credit issued under the Exit
Financing Facility or in the alternative the Exit Lenders may issue letters of
credit to the Pre-Petition Lender to secure payment off any undrawn letters of
credit issued pursuant to the Pre-Petition Credit Facility which may remain
outstanding after the Effective Date. In the Confirmation Order, the Bankruptcy
Court shall approve the Exit Financing Facility in substantially the form filed
with the Bankruptcy Court and authorize the Reorganized Debtors to execute the
same together with such other documents as the Exit Lenders may reasonably
require to effectuate the treatment afforded to such parties under the Exit
Financing Facility.
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6.12 RIGHTS OFFERING.
(a) Ability to Participate in Rights Offering
Holders of General Unsecured Claims against any Debtor are entitled to
participate in the Rights Offering solely to the extent of their Rights
Participation Claim Amount set forth below. If a General Unsecured Claim is
Allowed, the Holder of such Claim shall be entitled to participate to the extent
of the amount of such Allowed General Unsecured Claim. If a General Unsecured
Claim is Disputed, the Holder of such Claim shall be entitled to participate in
the Rights Offering, in the amount of the Rights Participation Claim Amount, and
as illustrated below:
CHARACTERISTICS OF CLAIM RIGHTS PARTICIPATION CLAIM AMOUNT
Objection to Claim has been filed The undisputed portion of the claim, if any.
Holder has filed Proof of Claim, but The amount of the Proof of Claim.
no corresponding Claim listed on Debtors' Schedules and
no objection filed
Holder has filed Proof of Claim but The lesser of the amount listed on the Schedules
corresponding amount listed in Schedules is different and the Proof of Claim amount.
and no objection has been filed, and the Claim has not
been Temporarily Allowed.
Allowed Claim Amount of Allowed Claim
Holders of Disputed Claims shall be entitled to participate in the
Rights Offering solely to the extent of their Rights Offering Participation
Claim Amounts. If any Holder of a Disputed General Unsecured Claim has obtained
an order of the Bankruptcy Court estimating its General Unsecured Claim for the
purpose of participating in the Rights Offering prior to the Subscription
Expiration Date, such Holder shall be entitled to participate in the Rights
Offering as set forth in this Article 6.12. In the event that any such
estimation shall occur, each exercising claimant shall be cut back Pro Rata and
the difference between the price paid by such exercising claimant and the
adjusted Subscription Purchase Price shall be refunded to such exercising
claimant, without interest, as soon as practicable after the Effective Date.
(b) Issuance of Rights
The Rights shall entitle the Holders of General Unsecured Claims the
right to purchase, on a Pro Rata basis using the Rights Offering Participation
Claim Amount, the Rights Offering Shares at a price of $10.00 per share pursuant
to the terms and conditions set forth in Article 6.12 of the Plan, provided that
the Holder executes a Subscription Form, which will be distributed to
29
each Holder of a General Unsecured Claim together with the Ballot. The number of
Rights Offering Shares shall not exceed 7,500,000 shares.
(c) Subscription Period
The Rights Offering shall commence on the Subscription Commencement
Date and shall expire on the Subscription Expiration Date. After the
Subscription Expiration Date, unexercised Rights shall terminate and any
purported exercise of any such unexercised Rights by any Person shall be null
and void and Reorganized Intermet shall not honor any such purported exercise
received by the Subscription Agent after the Subscription Expiration Date,
regardless of when the documents relating to such exercise were sent.
(d) Exercise of Rights
In order to exercise the Rights, each such Holder thereof must: (i)
return a duly completed Subscription Form to the Subscription Agent so that such
form is received by the Subscription Agent on or before the Subscription
Expiration Date and make the appropriate election on its Ballot; and (ii) pay to
the Subscription Agent (on behalf of the Debtors) on or before the Subscription
Expiration Date immediately available funds in an amount equal to such Holder's
aggregated Subscription Purchase Price, such payment to be made either by wire
transfer to the Subscription Agent in accordance with the wire instructions set
forth on the Subscription Form, in the case of a wire. If, on or prior to the
Subscription Expiration Date, the Subscription Agent for any reason has not
received from a given Holder of Rights both a duly completed Subscription Form
and Cash, in an amount equal to such Holder's aggregate Subscription Purchase
Price, such Holder shall be deemed to have not exercised its Rights and to have
relinquished and waived its ability to participate in the Rights Offering. By
completing the Subscription Form, a Holder will be agreeing to be bound by the
Stockholders' Agreement. A Subscription Form must also be accompanied by
sufficient indication of ownership of the Claim giving rise to the Rights, as
well as appropriate executed representations as to ownership. The payments made
in accordance with the Rights Offering shall be deposited and held by the
Subscription Agent in a trust account, escrow account, or similar segregated
account or accounts which shall be separate and apart from Reorganized
Intermet's general operating funds and any other funds subject to any cash
collateral arrangements, and which segregated account or accounts will be
maintained for the purpose of holding the money for administration of the Rights
Offering until the Effective Date, or such other later date, at the option of
the Reorganized Debtors, but not later than 20 days after the Effective Date.
(e) Transfer Restriction; Revocation
The Rights are not transferable. Additionally, once a Holder of Rights
has properly exercised its Rights such exercise cannot to be revoked for any
reason.
(f) Initial Committed Purchasers
Pursuant to the terms of the Restructuring Commitment Letter and
provided that all conditions precedent set forth therein have been satisfied,
including but not limited to the negotiation and execution of the Private
Placement Purchase Agreement, the Initial Committed Purchasers will be obligated
to purchase, on a Pro Rata basis on the Effective Date, any and all
30
of the Private Placement Purchase Shares. The Initial Committed Purchasers shall
pay to Reorganized Intermet, Cash on or prior to the Effective Date, in an
amount equal to the Subscription Purchase Price for the Private Placement
Purchase Shares.
(g) Distribution of Rights Offering Shares
(i) Distribution To Exercising Claimants
On, the Effective Date, the Disbursing Agent will distribute to the
exercising claimants certificates representing the Cash-Out Shares and the
Rights Offering Shares.
(ii) Distribution to Initial Committed Purchasers With Respect to
Private Placement Purchase Agreement
On the Effective Date, Reorganized Intermet will distribute to the
Initial Committed Purchasers certificates representing the Rights Offering
Shares purchased by the Initial Committed Purchasers.
(h) No Interest
In the event any Subscription Purchase Price is repaid to any Person
making such payment, no interest shall be paid thereon.
(i) Validity Of Exercise Of Rights
All questions concerning the timeliness, viability, form and
eligibility of any exercise of Rights shall be determined by Reorganized
Intermet, with the consent of the Initial Committed Purchasers, in consultation
with the Creditors' Committee. Such determinations shall be final and binding.
Reorganized Intermet, with the consent of the Initial Committed Purchasers, may
waive any defect or irregularity, or permit a defect or irregularity to be
corrected within such times as it may determine, or reject the purported
exercise of any Rights. Subscription Forms shall be deemed not to have been
received or accepted until all irregularities have been waived or cured within
such time as Reorganized Intermet with the consent of the Initial Committed
Purchasers determines. Neither Reorganized Intermet nor the Subscription Agent
shall be under any duty to give notification of any defect or irregularity in
connection with the submission of Subscription Forms or incur any liability for
failure to give such notification.
(j) Use of Proceeds
On the Effective Date, the proceeds received by Reorganized Intermet
from the Rights Offering shall be used to fund the Cash payments required under
the Plan and for general corporate purposes.
6.13 ADMINISTRATION OF THE PLAN.
(a) After the Effective Date, the Reorganized Debtors shall
perform those responsibilities, duties, and obligations set forth in
this Plan, including, without
31
limitation, to prosecute any litigation pertaining thereto and to
oversee and govern the continuing affairs and operations of the
Reorganized Debtors on a going forward basis.
(b) After the Effective Date, the Reorganized Debtors may
retain such management, law firms, accounting firms, experts, advisors,
agents, consultants, investigators, appraisers, auctioneers, or other
Professionals, including the Subscription Agent, as it may deem
necessary, including, without limitation, the Disbursing Agent, to aid
it in the performance of its responsibilities pursuant to the terms of
the Plan. It shall not be a requirement that any such parties retained
by the Reorganized Debtors be a "disinterested person" (as such term is
defined in Section 101(14) of the Bankruptcy Code), and such retained
parties may include Professionals or other Persons who had previously
been active in these Cases on behalf of the Debtors, any Creditor or
other party-in-interest. The Debtors may retain and pay these
Professionals without Bankruptcy Court approval including without
limitation any approval of any of their post-Effective Date fees and
expenses, and such Professionals shall not be required to file any
statements with respect to the receipt of payment by the Reorganized
Debtors.
(c) The Board and the management of the Reorganized Debtors
shall perform the duties and obligations imposed on them by the Plan
with reasonable diligence and care under the circumstances.
(d) Reorganized Intermet shall be responsible for filing any
federal, state, and local tax returns for the Reorganized Debtors.
(e) To the extent the manner of performance is not specified,
the Reorganized Debtors will have the discretion to carry out and
perform all other obligations or duties imposed on them by the Plan or
by law in any manner its respective Board so chooses, as long as such
performance is not inconsistent with the intents and purposes of the
Plan.
6.14 PRESERVATION OF CAUSES OF ACTION. In accordance with Section
1123(b)(3) of the Bankruptcy Code, and except as otherwise provided in the Plan
and/or the Confirmation Order, including, without limitation, as provided in
Article 10.05 of the Plan, the Reorganized Debtors shall retain and may (but are
not required to) enforce all Retained Actions, including Avoidance Actions and
other similar claims arising under applicable state laws, including, without
limitation, fraudulent transfer claims, if any, and all other Causes of Action
of a trustee and debtor-in possession under the Bankruptcy Code. The Debtors or
the Reorganized Debtors, in their sole discretion, will determine whether to
bring, settle, release, compromise, or enforce any rights (or decline to do any
of the foregoing) with respect to the Retained Actions and the Avoidance
Actions. The Reorganized Debtors or any successor may pursue such litigation
claims in accordance with the best interests of the Reorganized Debtors or any
successors holding such rights of action. The failure of the Debtors to
specifically list any Claim, Causes of Action, right of action, suit or
proceeding in the Schedules, the Disclosure Statement, or on Exhibits J and K of
the Plan does not, and will not be deemed to, constitute a waiver or release by
the Debtors of such Claim, Causes of Action, right of action, suit or
proceedings, and the Reorganized Debtors will retain the right to pursue such
Claims, Causes of Action, rights of action, suits or proceedings in their sole
discretion and, therefore, no preclusion doctrine, collateral estoppel, issue
preclusion, claim preclusion, estoppel (judicial, equitable or otherwise)
32
or laches will apply to such claim, right of action, suit or proceeding upon or
after the Confirmation or consummation of the Plan. Further, recovery of any
proceeds of Causes of Action shall be deemed "for the benefit of the Estates" as
set forth in section 550(a) of the Bankruptcy Code.
6.15 CONTINUATION OF RETIREE BENEFITS. All payments of Retiree Benefits
shall continue as they existed prior to the Petition Date at the level
established pursuant to subsection (e)(1)(B) or (g) of Section 1114 of the
Bankruptcy Code as such payments may be modified prior to the Effective Date,
for the duration of the period the applicable Debtor has obligated itself to
provide such benefits. After the Effective Date, the Reorganized Debtors will
retain their rights to amend, modify or terminate Retiree Benefits in accordance
with all relevant agreements and applicable law.
6.16 EMPLOYMENT AGREEMENTS. On or before the Effective Date, the
Employment Agreements shall be entered into by Reorganized Intermet and deemed
approved by the Bankruptcy Court.
6.17 CONTINUATION OF BUSINESS. On and after the Effective Date, the
Reorganized Debtors shall continue to engage in the Debtors' businesses,
including, without limitation, performing under all purchase orders existing as
of the Effective Date and assumed. Certain Reorganized Debtors may liquidate
Assets as described in the Disclosure Statement. Except as provided herein, the
Reorganized Debtors retain all claims, defenses, counterclaims and offsets with
respect to such purchase orders in existence as of the Effective Date.
6.18 DISBANDING OF COMMITTEES. On the Effective Date, all committees,
including the Creditors' Committee, the Equity Committee, and the Retiree
Committee, will be disbanded and their members shall be discharged from all
further authority, duties, responsibilities and obligations relating to the
Cases, and the retention and employment of the Professionals retained by such
committees shall also terminate as of the Effective Date; provided, however,
that the Creditors' Committee and the Equity Committee and their Professionals
shall be maintained solely with respect to applications filed pursuant to
sections 330 and 331 of the Bankruptcy Code and shall be compensated for
reasonable fees and expenses incurred with respect to such applications as
approved by the Bankruptcy Court. The Reorganized Debtors will not be
responsible for fees or expenses of any committees, including the Creditors'
Committee, Equity Committee, or Retiree Committee or of their Professionals and
agents, incurred after the Effective Date unless otherwise ordered by the
Bankruptcy Court.
6.19 DISBURSING AGENT. As soon as practicable after the Effective Date,
the Disbursing Agent shall be paid all of its fees and expenses incurred in
connection with performing its duties under this Plan.
6.20 POST-CONFIRMATION EFFECT OF INDENTURE. Anything in the Plan, the
Confirmation Order, or any other document to the contrary notwithstanding, and
notwithstanding the confirmation and effectiveness of and distributions under
the Plan and the discharge of the Debtors, the Indenture shall remain in effect
for the sole purpose of allowing the Indenture Trustee to make distributions as
provided in Section 7.01 of this Plan. However, the liability of
33
the Debtors under the Indenture shall be discharged pursuant to the Plan and
Section 1141 of the Bankruptcy Code.
ARTICLE 7
PROVISIONS GOVERNING DISTRIBUTIONS
7.01 DISTRIBUTIONS. The Disbursing Agent will make all Distributions
required under this Plan except with respect to (i) the Claims of the
Pre-Petition Lenders, such Distributions shall be made by the Disbursing Agent
to the Pre-Petition Agent; and (ii) the Claims of Noteholders, which
Distributions shall be made by the Disbursing Agent to the Indenture Trustee
which is directed to immediately distribute the Distributions to the Noteholders
as of the Distribution Record Date. Distributions shall be made at the times
provided herein or as otherwise ordered by the Bankruptcy Court.
7.02 NO INTEREST ON CLAIMS OR EQUITY INTERESTS. Unless otherwise
specifically provided for in this Plan, the Confirmation Order, the DIP
Financing Order, or the DIP Facility, post-Petition Date interest shall not
accrue or be paid on Claims or Equity Interests, and no Holder of any Claim or
Equity Interest shall be entitled to interest accruing on or after the Petition
Date.
7.03 CLAIMS ADMINISTRATION RESPONSIBILITY.
(a) REORGANIZED DEBTORS. The Reorganized Debtors will retain
responsibility for administering, disputing, objecting to, compromising or
otherwise resolving, subject to Bankruptcy Court approval, except as
provided herein, with respect to all Claims against the Debtors. The
Reorganized Debtors shall retain any counter-claims which the Debtors may
have to any Claims. Pursuant to Bankruptcy Rule 9019(a) and Section 363 of
the Bankruptcy Code, the Debtors may, up to and including the Effective
Date, compromise and settle various (i) Claims against them, and (ii)
Causes of Action that they have against other Persons without Bankruptcy
Court approval if the amount in controversy is less than $300,000. After
the Effective Date, such rights shall pass to the Reorganized Debtors as
contemplated by Article 10.01 of the Plan, without the need for further
approval of the Bankruptcy Court, except as otherwise set forth in the
Plan.
(b) FILING OF OBJECTIONS. Unless otherwise extended by the
Bankruptcy Court, any objections to Claims shall be served and filed on or
before the Claims Objection Deadline.
7.04 DELIVERY OF DISTRIBUTIONS. Other than Distributions made to the
Pre-Petition Agent on behalf of the Pre-Petition Lenders and the Indenture
Trustee on behalf of the Noteholders, Distributions to Holders of Allowed Claims
shall be made by the Disbursing Agent (a) at the addresses set forth on the
Proofs of Claim filed by such Holders (or at the last known addresses of such
Holders if no Proof of Claim is filed or if the Debtors have been notified in
writing of a change of address), (b) at the addresses set forth in any written
notices of address changes delivered to the Disbursing Agent after the date of
any related Proof of Claim, or (c) at the addresses reflected in the Schedules
if no Proof of Claim has been filed and the Disbursing
34
Agent has not received a written notice of a change of address. Other than
Distributions made to the Pre-Petition Agent on behalf of the Pre-Petition
Lenders and the Indenture Trustee on behalf of the Noteholders, (a) if any
Creditor's Distribution is returned as undeliverable, no further Distribution to
such Creditor shall be made unless and until the Disbursing Agent is notified of
such Creditor's then-current address, at which time all missed Distributions
shall be made to such Creditor without interest; (b) amounts in respect of
undeliverable Distributions shall be returned to the Reorganized Debtors until
such Distributions are claimed; (c) all funds or other undeliverable
Distributions returned to the Reorganized Debtors and not claimed within three
(3) months of return shall be Distributed to the other Creditors of the Class of
which the Creditor to whom the Distribution was originally made is a member in
accordance with the provisions of the Plan applicable to Distributions to that
Class; and (d) upon such reversion, the Claim of any Creditor or their
successors with respect to such property shall be discharged and forever barred
notwithstanding any federal or state escheat laws to the contrary. Nothing
contained in the Plan shall require the Disbursing Agent and the Indenture
Trustee to attempt to locate any Creditor holding an Allowed Claim, other than
as set forth above.
7.05 PROCEDURES FOR TREATING AND RESOLVING DISPUTED CLAIMS.
(a) NO DISTRIBUTION PENDING ALLOWANCE. Except as provided in this
Article 7.05 of this Plan, no Distributions will be made with respect to
all or any portion of a Disputed Claim unless and until all objections to
such Disputed Claim have been settled or withdrawn or have been determined
by a Final Order, and the Disputed Claim has become an Allowed Claim.
(b) DISTRIBUTION RESERVE. The Disbursing Agent, after consultation
with Reorganized Intermet, will create a reserve from the property to be
distributed by the Disbursing Agent under the Plan to Holders of Disputed
Claims, other than Rights for which there will be no reserve.
(c) DISTRIBUTION AFTER ALLOWANCE. Payments and Distributions from
any reserve created under Section 7.05(b) of the Plan to a Creditor on
account of a Disputed Claim, to the extent that it ultimately becomes an
Allowed Claim, will be made in accordance with provisions of this Plan
that govern Distributions to such Creditor.
7.06 MANNER OF CASH DISTRIBUTION UNDER THE PLAN. Any Cash payment to be
made by the Disbursing Agent as a Distribution pursuant to the Plan may be made
by a check or wire transfer on a United States bank selected by the Disbursing
Agent.
7.07 DIRECTION TO PARTIES. From and after the Effective Date, the
Disbursing Agent, or Reorganized Intermet may apply to the Bankruptcy Court for
an order directing any necessary party to execute or deliver or to join in the
execution or delivery of any instrument required to effect a transfer of
property dealt with by the Plan, and to perform any other act, including the
satisfaction of any Lien, that is necessary for the consummation of the Plan,
pursuant to Section 1142(b) of the Bankruptcy Code.
7.08 SETOFFS. The Reorganized Debtors may, pursuant to Section 553 of the
Bankruptcy Code or other applicable law, set off against any Allowed Claim and
the
35
Distributions to be made pursuant to the Plan on account of such Allowed Claim,
all claims, rights, and Causes of Action of any nature that any such Debtor may
hold against the Holder of such Allowed Claim that are not otherwise waived,
released, or compromised in accordance with the Plan; provided, however, that
neither the failure to effect such a setoff nor the allowance of any Claim
hereunder shall constitute a waiver or release by such Debtor of any such
claims, rights, and Causes of Action that the Debtor may possess against such
Holder, notwithstanding any compulsory counterclaim rules or requirements to the
contrary.
7.09 EXEMPTION FROM CERTAIN TRANSFER TAXES. Pursuant to Section 1146(c) of
the Bankruptcy Code and applicable non-bankruptcy law, any transfers from the
Debtors to Reorganized Intermet, or any other Person or entity pursuant to this
Plan in the United States shall not be subject to any document recording tax,
stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate
transfer tax, mortgage recording tax or other similar tax or governmental
assessment. The Confirmation Order shall direct the appropriate state or local
governmental officials or agents to forego the collection of any such tax or
governmental assessment and to accept for filing and recordation any of the
foregoing instruments or other documents without the payment of any such tax or
governmental assessment.
7.10 WITHHOLDING AND REPORTING REQUIREMENTS. In connection with this Plan
and all Distributions hereunder, the Disbursing Agent shall comply with all
applicable tax withholding and reporting requirements imposed by any federal,
state, provincial, local or foreign taxing authority, and all Distributions
hereunder shall be subject to any such withholding and reporting requirements.
The Disbursing Agent shall be authorized to take any and all actions that may be
necessary or appropriate to comply with such withholding and reporting
requirements. Notwithstanding any other provision of this Plan, each Holder of
an Allowed Claim or Interest that is to receive a Distribution pursuant to this
Plan shall have sole and exclusive responsibility for the satisfaction and
payment of any tax obligations imposed by any governmental unit, including
income, withholding and other tax obligations, on account of such Distribution.
7.11 NO FRACTIONAL DISTRIBUTIONS. No fractional shares or amounts of the
Plan Securities will be issued or Distributed under the Plan. Each Person
entitled to receive Plan Securities will receive the total whole number of
shares to which such Person is entitled. Whenever any Distributions to a Person
would otherwise call for Distribution of a fraction of any Plan Security, the
actual Distribution of such Plan Security will be rounded to the next higher or
lower whole number with fractions of less than or equal to one-half (1/2) being
rounded to the next lower whole number. No consideration will be provided in
lieu of fractional amounts of Plan Securities that are rounded down. The total
amount of Plan Securities to be Distributed to each Class of Claims will be
adjusted as necessary to account for the rounding provided herein. Any other
provision of the Plan notwithstanding, neither the Debtors, nor the Disbursing
Agent will be required to make Distributions or payments of fractions of
dollars. Whenever any payment of a fraction of one dollar under the Plan would
otherwise be called for, the actual payment made will reflect a rounding of such
fraction to the nearest whole dollar (up or down), with one-half (1/2) dollars
being rounded down.
36
ARTICLE 8
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.01 ASSUMPTION AND REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
As of the Confirmation Date, but subject to the occurrence of the Effective
Date, all Executory Contracts (and all insurance contracts and/or policies
providing coverage to the Debtors' current and former directors, officers,
shareholders, agents, employees, representatives, and others for conduct in
connection with the Debtors) will be deemed assumed by the relevant Debtor and
retained by the applicable Reorganized Debtor, as appropriate, in accordance
with the provisions and requirements of Sections 365 and 1123 of the Bankruptcy
Code, except those Executory Contracts and unexpired leases that (i) have been
rejected by or pursuant to an order of the Bankruptcy Court, (ii) are the
subject of a motion to reject pending on the Confirmation Date which is later
granted by the Bankruptcy Court, (iii) which are identified on Exhibit M
attached hereto, which shall be deemed rejected as of the Confirmation Date or
the date set forth in Exhibit M, or (iv) Executory Contracts which are
identified in any modifications made pursuant to Article 13.05 of the Plan.
Entry of the Confirmation Order by the Bankruptcy Court shall constitute
approval of such assumptions pursuant to Sections 365(a) and 1123 of the
Bankruptcy Code, subject to the occurrence of the Effective Date. Each Executory
Contract assumed pursuant to this Article 8 shall revest in and be fully
enforceable by Reorganized Intermet or the relevant Reorganized Debtor, as
appropriate, in accordance with its terms, except as may be modified by (i) the
provisions of the Plan, (ii) any order of the Bankruptcy Court approving and
authorizing its assumption, (iii) applicable law, or (iv) agreement of the
parties to such Executory Contracts.
8.02 CURE OF DEFAULTS OF ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Any monetary amounts by which each Executory Contract or unexpired lease to be
assumed pursuant to the Plan is in default shall be Cured, pursuant to Section
365(b)(1) of the Bankruptcy Code, by the relevant Debtor, by payment of the Cure
amount (as such amount has been agreed upon by Reorganized Intermet, or in the
event of a dispute regarding such Cure amount, as such amount has been
determined by a Final Order of the Bankruptcy Court) in Cash on or before thirty
(30) days after the Effective Date or on such other terms as the parties to such
Executory Contracts may otherwise agree. Notice of the Cure amount is set forth
in Exhibit N to the Plan. If no Cure amount is set forth in Exhibit N to the
Plan, the Debtors believe no Cure amount is due. Notwithstanding the foregoing,
in the event of a dispute regarding: (1) the amount of any Cure payments, (2)
the ability of Reorganized Intermet, the relevant Reorganized Debtor or any
assignee to provide "adequate assurance of future performance" (within the
meaning of Section 365 of the Bankruptcy Code) under the Executory Contract to
be assumed, or (3) any other matter pertaining to assumption, the Cure payments
required by Section 365(b)(1) of the Bankruptcy Code shall be made following the
entry of a Final Order resolving the dispute and approving the assumption.
8.03 CURE PROCEDURE. The Plan shall constitute notice to any non-Debtor
party to any Executory Contract to be assumed pursuant to the Plan of the amount
of any Cure amount owed, if any, under the applicable Executory Contract. Any
non-Debtor party that fails to respond or object on or before the deadline
scheduled by the Bankruptcy Court for objections to the Plan, shall be deemed to
have consented to such proposed amount.
37
8.04 REJECTION CLAIMS. Each Person who is a party to an Executory Contract
rejected pursuant to this Article 8 shall be entitled to file, not later than
thirty (30) days after the Confirmation Date, a Proof of Claim for alleged
Rejection Claims. If no such Proof of Claim for Rejection Claims is timely
filed, any such Claim shall be forever barred and shall not be enforceable
against any Debtor, any Reorganized Debtor, or any of the Estates. The
Bankruptcy Court shall retain jurisdiction to determine any objections to
Rejection Claims.
8.05 CLASSIFICATION OF REJECTION CLAIMS. Except as otherwise provided
under the Plan, Rejection Claims against any Debtor shall be treated as Allowed
General Unsecured Claims against such Debtor to the extent they are deemed to be
Allowed Claims, and shall be satisfied in accordance with the Plan and the
Confirmation Order.
ARTICLE 9
CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS
9.01 CONDITIONS PRECEDENT TO CONFIRMATION. The following are conditions
precedent to the Confirmation of the Plan, unless and until each of the
following conditions has been satisfied or waived, in accordance with Section
9.04, in writing by the Debtors and each of the Initial Committed Purchasers:
(a) The Bankruptcy Court shall have entered the Confirmation Order.
(b) The following documents shall be executed and delivered to the
Initial Committed Purchasers in form and substance satisfactory to the
Initial Committed Purchasers:
(i) the Restructuring Commitment Letter;
(ii) a commitment letter relating to the Exit Financing
Facility;
(iii) the Private Placement Purchase Agreement;
(iv) the Cash-Out Purchase Agreement, and
(c) The Restructuring Commitment Letter shall have been approved by
the Bankruptcy Court pursuant to a Final Order.
(d) The Restructuring Commitment Letter shall not have been
terminated and all conditions precedent thereunder shall have been
satisfied or waived, unless such conditions precedent relate to
post-Confirmation events.
(e) The form of Stockholders' Agreement shall have been agreed to by
the Debtors and the Initial Committed Purchasers.
9.02 CONDITIONS PRECEDENT TO EFFECTIVENESS. Notwithstanding any other
provision of the Plan or the Confirmation Order, the Effective Date of the Plan
shall not occur, and the Plan shall not be binding on any party, unless and
until each of the following conditions has been
38
satisfied or waived, in accordance with Section 9.04, in writing by the Debtors
and each of the Initial Committed Purchasers:
(a) The Confirmation Order in form and substance reasonably
satisfactory to the Initial Committed Purchasers, shall have become a
Final Order.
(b) The closing and an initial funding shall have occurred under the
Exit Financing Facility and all conditions precedent to the consummation
thereof (other than the occurrence of the Effective Date of the Plan)
shall have been waived or satisfied in accordance with the terms thereof.
(c) The closing and funding shall have occurred under the Rights
Offering and/or Private Placement Purchase Agreement and the Cash-Out
Purchase Agreement and all conditions precedent to the consummation
thereof (other than the occurrence of the Effective Date of the Plan)
shall have been waived or satisfied in accordance with the terms thereof.
(d) The certificate of incorporation for Reorganized Intermet, and
the bylaws of Reorganized Intermet (and similar corporate governance
documents), the Registration Rights Agreement, the Stockholders'
Agreement, and the Exit Financing Facility shall each be in form and
substance acceptable to the Initial Committed Purchasers and shall be
effective on the Effective Date.
(e) The New Common Stock shall have been issued in accordance with
the Plan;
(f) The Restructuring Commitment Letter shall not have been
terminated and all conditions precedent thereunder shall have been
satisfied or waived.
(g) All other actions, documents and agreements necessary to
implement the Plan as of the Effective Date shall have been delivered and
all conditions precedent thereto shall have been satisfied or waived; and
(h) Reorganized Intermet and the Initial Committed Purchasers shall
have approved the terms of the Employment Agreements.
9.03 EFFECT OF FAILURE OF CONDITIONS TO EFFECTIVE DATE. In the event that
one or more of the conditions set forth in Section 9.02 has not occurred or duly
been waived by the Debtors and each of the Initial Committed Purchasers pursuant
to Section 9.04 of the Plan on or before One Hundred Twenty (120) days after the
Confirmation Date, upon notification submitted by the Debtors to the Bankruptcy
Court, (a) the Confirmation Order shall be vacated, (b) no Distributions under
the Plan shall be made, (c) the Debtors and all Holders of Claims and Equity
Interests shall be restored to the status quo ante as of the day immediately
preceding the Confirmation Date as though Confirmation never occurred, and (d)
the parties' respective obligations with respect to the Claims and Equity
Interests shall remain unchanged and nothing contained herein shall constitute
or be deemed a waiver or release of any Claims or Equity Interests by or against
the Debtors or any other Person in any further proceeding involving any Debtor.
39
9.04 WAIVER OF CONDITIONS. The Debtors and each Initial Committed
Purchaser, may but shall have no obligation to, waive any conditions set forth
in Articles 9.01 and 9.02, without notice and without leave of or a Final Order
of the Bankruptcy Court. To be effective, any such waiver shall be in writing
and signed by the Debtors and each Initial Committed Purchaser, or shall be a
stipulation on the record in these Cases agreed to by the Debtors and each
Initial Committed Purchaser.
ARTICLE 10
TITLE TO PROPERTY AND RELEASES
10.01 VESTING OF PROPERTY. Except as otherwise provided in the Plan or the
Confirmation Order, upon the Effective Date, (a) the Debtors shall continue to
exist as the Reorganized Debtors, with all the powers of corporations under
applicable law and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under applicable state law, and (b)
all property of the Estates, wherever situated, shall vest in the relevant
Reorganized Debtor, as appropriate, subject to the provisions of the Plan and
the Confirmation Order. Thereafter, the Reorganized Debtors may operate their
businesses and may use, acquire, and dispose of property free of any
restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy
Court. After the Effective Date, all property retained by the Reorganized
Debtors pursuant hereto shall be free and clear of all Claims, debts, Liens,
security interests, encumbrances, and interests, except as contemplated hereby
and except for the obligation to perform according to the Plan and the
Confirmation Order.
10.02 DISCHARGE, RELEASE, AND INJUNCTION. Except as may otherwise be
provided herein or in the Confirmation Order, the rights afforded and the
payments and Distributions to be made and the treatment under the Plan shall be
in complete exchange for, and in full and unconditional settlement,
satisfaction, discharge, and release of any and all existing debts and Claims
and termination of all Equity Interests of any kind, nature, or description
whatsoever against the Debtors, the Reorganized Debtors, the Assets, their
property or their Estates, and shall effect a full and complete release,
discharge, and termination of all Liens, security interests, or other claims,
interests, or encumbrances upon all of the Debtors' Assets and property.
Further, all Persons are precluded from asserting, against any of the Debtors or
the Reorganized Debtors or their respective successors, or any property that is
to be Distributed under the terms of the Plan, any Claims, obligations, rights,
causes of action, liabilities, or Equity Interests based upon any act, omission,
transaction, or other activity of any kind or nature that occurred prior to the
Effective Date, other than as expressly provided for in the Plan, or the
Confirmation Order, whether or not (a) a Proof of Claim based upon such debt is
filed or deemed filed under Section 501 of the Bankruptcy Code; (b) a Claim
based upon such debt is Allowed; or (c) the Holder of a Claim based upon such
debt has accepted the Plan. Except as otherwise provided in the Plan or the
Confirmation Order, all Holders of Allowed Claims and Equity Interests arising
prior to the Effective Date shall be permanently barred and enjoined from
asserting against the Reorganized Debtors or any of the Debtors, or their
successors or property, or the Assets, any of the following actions on account
of such Allowed Claim or Equity Interest: (i) commencing or continuing in any
manner any action or other proceeding on account of such Claim or Equity
Interest against the Reorganized Debtors, any of the Debtors, or the property to
be distributed under the terms of the Plan, other than to enforce any right to
Distribution with respect to such property under the
40
Plan; (ii) enforcing, attaching, collecting, or recovering in any manner any
judgment, award, decree, or order against the Reorganized Debtors, the Debtors
or any of the property to be distributed under the terms of the Plan, other than
as permitted under sub-paragraph (i) above; (iii) creating, perfecting, or
enforcing any Lien or encumbrance against property of the Reorganized Debtors,
any of the Debtors, or any property to be Distributed under the terms of the
Plan; (iv) asserting any right of setoff, subrogation, or recoupment of any
kind, directly or indirectly, against any obligation due any Debtor, the
Reorganized Debtors, the Assets or any other property of the Debtors, the
Reorganized Debtors, or any direct or indirect transferee of any property of, or
successor in interest to, any of the foregoing Persons; and (v) acting or
proceeding in any manner, in any place whatsoever, that does not conform to, or
comply with, the provisions of the Plan. The foregoing discharge, release and
injunction are an integral part of the Plan and are essential to its
implementation. Each of the Debtors and the Reorganized Debtors shall have the
right to independently seek the enforcement of the discharge, release and
injunction set forth in this Article 10.02.
10.03 NO WAIVER OF DISCHARGE. Except as otherwise specifically provided
herein, nothing in the Plan shall be deemed to waive, limit, or restrict in any
way the discharge granted to the Debtors upon Confirmation of the Plan by
Section 1141 of the Bankruptcy Code.
10.04 TERM OF INJUNCTIONS OR STAYS. Unless otherwise provided in the Plan,
all injunctions or stays provided for in these Cases pursuant to Sections 105 or
362 of the Bankruptcy Code, or otherwise, and in effect on the Confirmation
Date, shall remain in full force and effect until the Effective Date, at which
time they are replaced with the injunction set forth in Article 10.02 herein.
10.05 RELEASE.
(a) On the Effective Date, effective as of the Confirmation Date,
and except as otherwise provided herein or in the Confirmation Order,
Intermet, Reorganized Intermet, the Debtors, the Reorganized Debtors, each
Initial Committed Purchaser, the Pre-Petition Agent, the Consenting
Pre-Petition Lenders, the DIP Agents on their own behalf and on behalf of
each of the DIP Lenders, the Creditors' Committee and its members in such
capacity and only in such capacity, and the Indenture Trustee shall have,
and shall be deemed to have, conclusively, absolutely unconditionally,
irrevocably, forever and completely released and discharged each of the
current and former directors and officers, employees, agents, managers,
advisors, attorneys or representatives (in their capacity as such and in
no other capacity) of each of the Debtors from any and all Released
Actions and Avoidance Actions based in whole or in part upon any act,
omission, transaction, event or other occurrence taking place at any time
on or before the Effective Date, with the sole exception of acts or
omissions resulting from intentional fraud or willful misconduct as
determined by a Final Order of the Bankruptcy Court.
(b) On the Effective Date, effective as of the Confirmation Date,
and except as otherwise provided herein or in the Confirmation Order,
Intermet, Reorganized Intermet, the Debtors and the Reorganized Debtors as
Releasing Parties have and shall be deemed to have, conclusively,
absolutely, unconditionally, irrevocably, forever and completely released
and discharged each Initial Committed Purchaser, the Pre-Petition
41
Agent, the Consenting Pre-Petition Lenders, the DIP Agents on their own
behalf and on behalf of each of the DIP Lenders, the Creditors' Committee,
and the Indenture Trustee, and each of their respective current and former
members, officers, directors, agents, financial advisors, attorneys,
employees, equity holders, partners, affiliates and representatives (in
their capacity as such and in no other capacity) and their respective
properties, from any and all Released Actions other than Avoidance Actions
based in whole or in part upon any act, omission, transaction, event or
other occurrence taking place at any time after the Petition Date through
and including the Effective Date, with the sole exception of acts or
omissions resulting from intentional fraud or willful misconduct as
determined by a Final Order of the Bankruptcy Court.
(c) On the Effective Date, effective as of the Confirmation Date,
and except as otherwise provided herein or in the Confirmation Order, (i)
each Person that votes to accept the Plan, (ii) all Holders of Claims, in
consideration for the obligations of the Debtors and the Reorganized
Debtors under the Plan and the Cash and other contracts, instruments,
releases, agreements or documents to be delivered in connection with the
Plan, and the treatment under the Plan, and (iii) each Person (other than
the Debtors) that has held, holds or may hold a claim, as applicable,
shall have, and shall be deemed to have, conclusively, absolutely,
unconditionally, irrevocably, forever and completely, released and
discharged each Released Party from any and all of Released Actions based
in whole or in part upon any act, omission, transaction, event or other
occurrence taking place at any time on or before the Effective Date, with
the sole exception of acts or omissions resulting from intentional fraud
or willful misconduct as determined by a Final Order of the Bankruptcy
Court, and in all respects, each Released Party shall be entitled to rely
upon the advice of counsel with respect to their duties and
responsibilities, if any, under the Plan; provided, however, that any
party in interest may enforce the terms of the Plan. Nothing in the Plan
shall prejudice any right, remedy, defense, claim, cross-claim,
counterclaim, or third party claim that any Person may have against any
Person other than with respect to the Released Actions against the
Released Parties.
(d) Notwithstanding any provision of the Plan to the contrary, the
foregoing releases in Articles 10.05 (b) and (c) shall not apply to (i)
any indebtedness of any Person to the Debtors for money borrowed by such
Person, (ii) any setoff or counterclaim that the Debtors may have or
assert against any Person, provided that the aggregate amount thereof
shall not exceed the aggregate amount of any Claims held or asserted by
such Person against the Debtors, and (iii) any garnishments.
Notwithstanding any provision in the Plan to the contrary, the releases
contained in Article 10.05 (b) of this Plan shall not be construed as or
operate as a release of any Retained Actions, including Avoidance Actions.
(e) On the Effective Date, effective as of the Confirmation Date,
and except as otherwise provided herein or in the Confirmation Order, all
Persons that hold, have held, or may hold a Released Action (or, to the
extent applicable, an Avoidance Action or other action), proceeding, cause
of action, suit, account, controversy, promise to pay, right to legal
remedies, right to equitable remedies, right to payment, claim,
obligation, litigation, judgment, damage, right or liability of any nature
whatsoever (including, without limitation, those arising under the
Bankruptcy Code) that is released pursuant to
42
the provisions of this Plan (including, without limitation, Articles
10.05(a), (b) and (c) of the Plan) are hereby and shall be permanently
enjoined and barred from taking any of the following actions on account
of, relating to or based upon any such Released Action (or, to the extent
applicable, an Avoidance Action) or other action, proceeding, cause of
action, suit, account, controversy, promise to pay, right to legal
remedies, right to equitable remedies, right to payment, claim,
obligation, litigation, judgment, damage, right or liability of any nature
whatsoever (including, without limitation, those arising under the
Bankruptcy Code): (i) commencing or continuing in any manner any action or
other proceeding against any of the Released Parties or its respective
property; (ii) enforcing, attaching, collecting or recovering in any
manner any judgment, award, decree or order against any of the Released
Parties or its respective property; (iii) creating, perfecting or
enforcing any Lien or encumbrance against any of the Released Parties or
its respective property; (iv) asserting any setoff, right of subrogation
or recoupment of any kind directly or indirectly against any debt,
liability or obligation due any of the Released Parties or against its
respective property; and (v) acting or proceeding in any manner, in any
place whatsoever, that does not conform to, or comply with, the provisions
of the Plan or the Confirmation Order.
(f) Each of the releases and injunction provided in this Article
10.05 is an integral part of the Plan and is essential to its
implementation. Each of the Released Parties and any other Persons being
released under, or protected by the injunction set forth in, this Article
10.05 shall have the right to independently seek the enforcement of such
release and injunction.
10.06 INSURANCE AND INDEMNIFICATION. Notwithstanding anything provided
herein to the contrary, the Plan shall not be deemed in any way to diminish or
impair the enforceability of any insurance policies that may cover claims
against a Debtor or any other Person. Effective as of the Effective Date, the
Reorganized Debtors shall obtain and maintain in full force tail insurance
covering such risks as are presently covered for a period of not less than 5
years after the Effective Date in favor of the former and current officers and
directors of the Debtors on terms no less favorable to the officers and
directors than the terms of the existing insurance policies covering the
officers and directors and otherwise on terms and conditions acceptable to the
Debtors and the Initial Committed Purchasers; provided, however, that the
aggregate cost of such tail insurance shall not exceed $1.5 million. Effective
on the Effective Date and at all relevant times thereafter, the Reorganized
Debtors shall indemnify all officers and directors of the Debtors who served in
such capacity at any time prior to the Effective Date for any amounts such
officers and directors are required to pay as a result of any retentions or
deductibles applicable under policies of insurance in effect on the date hereof
or as contemplated by this Article 10.06, which policies (or extensions thereof
having terms no less favorable to the officers and directors) shall be (and are
hereby deemed to be) assumed by Reorganized Intermet in the Plan. The indemnity
described herein shall not include liability relating to any action, omission,
transaction, event, occurrence or other circumstance that would constitute an
exclusion under the applicable policies of insurance or liability in excess of
the limits of such policies. Furthermore, the amounts payable by the Reorganized
Debtors pursuant to this Article 10.06 shall be paid on a current basis on
behalf of the officers and directors, without requiring the officers and
directors to first pay such amounts from their own funds and then seek
reimbursement from the Reorganized Debtors, so long as the Reorganized Debtors
shall have received a written
43
undertaking by each such officer and director to repay such amounts to the
Reorganized Debtors if it shall be determined by a court of competent
jurisdiction pursuant to a final, non-appealable order that such officer or
director is not entitled to coverage under such policies of insurance. Each of
the provisions set forth in this Article 10.06 is an integral part of the Plan
and is essential to its implementation. Each Person entitled to indemnification
and insurance pursuant to this Article 10.06 shall have the right to
independently seek the enforcement of each of the terms of this Article 10.06.
ARTICLE 11
MODIFICATION AND RESERVATION OF RIGHTS
IN THE EVENT OF NONACCEPTANCE OF THE PLAN
Each Debtor hereby reserves the right to request that the Bankruptcy Court
confirm the Plan over the objection of any Impaired Class in accordance with the
applicable provisions of Section 1129(b) of the Bankruptcy Code. In addition, in
the event that any Impaired Class or Classes of Allowed Claims shall not accept
the Plan, upon the written request of the Debtors filed with the Bankruptcy
Court, the Plan shall be modified, revised, and amended, with the consent of the
Initial Committed Purchasers, which consent shall not be unreasonably withheld
to provide such treatment as set forth in such request, to assure that the Plan
does not discriminate unfairly, and is fair and equitable, with respect to the
Classes rejecting the Plan, and, in particular, to provide the treatment
necessary to meet the requirements of Sections 1129(a) and (b) of the Bankruptcy
Code with respect to (i) the rejecting Classes and (ii) any other Classes
adversely affected by the modifications caused by this Article.
ARTICLE 12
RETENTION OF JURISDICTION
12.01 RETENTION OF JURISDICTION. Following the Effective Date, the
Bankruptcy Court shall retain such jurisdiction over these Cases as is legally
permissible, including without limitation, such jurisdiction as is necessary to
ensure that the purposes and intent of the Plan are carried out. The Bankruptcy
Court shall also expressly retain jurisdiction: (a) to hear and determine all
Claims against the Debtors; (b) to hear, determine and enforce all Causes of
Action that may exist on behalf of any Debtor; and (c) for all purposes
pertaining to the treatment, allowance or classification of Claims and Equity
Interests, including issues arising under Section 502(c) of the Bankruptcy Code
proceedings for estimation of Claims. The Bankruptcy Court shall further retain
jurisdiction for the following additional purposes:
(a) to determine all questions and disputes regarding title to the
Assets of the Debtors, all Causes of Action, controversies, disputes, or
conflicts, whether or not subject to any pending action as of the
Effective Date, between any Debtor and any other party, including, without
limitation, the Causes of Actions, the Avoidance Actions, and any other
right to recover Assets pursuant to the provisions of the Bankruptcy Code;
(b) to modify the Plan after the Confirmation Date in accordance
with the terms of the Plan and pursuant to the Bankruptcy Code and the
Bankruptcy Rules;
(c) to enforce and interpret the terms and conditions of the Plan;
44
(d) to enter such orders, including, but not limited to, such future
injunctions as are necessary to enforce the respective title, rights, and
powers of the Debtors, the terms of the Plan, and to impose such
limitations, restrictions, terms, and conditions on such title, rights,
and powers as the Bankruptcy Court may deem necessary;
(e) to enter an order closing these Cases;
(f) to correct any defect, cure any omission, or reconcile any
inconsistency in the Plan or the Confirmation Order as may be necessary to
implement the purposes and intent of the Plan;
(g) to determine any and all applications for allowances of
compensation and reimbursement of expenses and the reasonableness of any
fees and expenses authorized to be paid or reimbursed under the Bankruptcy
Code or the Plan or resolve any disputes regarding fees to be paid
pursuant to the Plan;
(h) to determine any applications or motions pending on the
Effective Date or thereafter for the rejection of any Executory Contract
and to hear and determine, and, if need be, to liquidate any and all
Claims arising therefrom;
(i) to determine any and all motions, applications, adversary
proceedings, and contested matters that may be pending on the Effective
Date;
(j) to consider any modification of the Plan, whether or not the
Plan has been substantially consummated, and to remedy any defect or
omission or to reconcile any inconsistency in any order of the Bankruptcy
Court, to the extent authorized by the Plan or the Bankruptcy Court and
all matters pertinent to modification;
(k) to determine all controversies, suits, and disputes that may
arise in connection with the interpretation, enforcement, or consummation
of the Plan or the Reorganization Documents;
(l) to consider and act on the compromise and settlement of any
Claim against or Cause of Action by or against any Debtor or Reorganized
Debtor arising under or in connection with the Plan;
(m) to issue such orders in aid of execution of the Plan as may be
authorized by Section 1142 of the Bankruptcy Code;
(n) to determine such other matters or proceedings as may be
provided for under Title 28 or any other title of the United States Code,
the Bankruptcy Code, the Bankruptcy Rules, other applicable law, the Plan,
or in any order or orders of the Bankruptcy Court, including, but not
limited to, the Confirmation Order or any order that may arise in
connection with the Plan, the Cases, or the Confirmation Order; and
(o) to interpret and enforce, and determine all questions and
disputes regarding, the injunctions, releases, exculpations, and
indemnifications provided for or
45
set forth in the Plan (including, without limitation, Articles 10.02,
10.05, 10.06 and 13.08 of the Plan) or the Confirmation Order.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.01 GOVERNING LAW. Except to the extent the Bankruptcy Code or
Bankruptcy Rules are applicable, and subject to the provisions of the
Reorganization Documents and any other contract, instrument, release, indenture,
or other agreement or document entered into in connection with the Plan, the
rights and obligations arising under the Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of Michigan,
without giving effect to the principles of conflicts of law thereof.
13.02 REVOCATION OR WITHDRAWAL OF THE PLAN. The Debtors reserve the right
to revoke or withdraw the Plan prior to the Confirmation Date. If the Debtors so
revoke or withdraw the Plan, then the Plan shall be null and void and, in such
event, nothing contained herein shall be deemed to constitute a waiver or
release of any Claims by or against, or any Equity Interests in, any Debtor or
any other Person or to prejudice in any manner the rights of any Debtor or any
Person in any further proceedings involving any Debtor.
13.03 SUCCESSORS AND ASSIGNS. The rights, benefits, and obligations of any
Person named or referred to in the Plan shall be binding upon, and shall inure
to the benefit of, the heirs, executors, administrators, successors, or assigns
of such Person.
13.04 TIME. In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
13.05 MODIFICATION OF THE PLAN AND AMENDMENTS. The Debtors may alter,
amend, or modify the Plan or any Exhibits thereto under Section 1127(a) of the
Bankruptcy Code at any time prior to the Confirmation Hearing Date with the
consent of the Initial Committed Purchasers which consent shall not be
unreasonably withheld. The Debtors may, under Section 1127(b) of the Bankruptcy
Code, institute proceedings in the Bankruptcy Court to remedy any defect or
omission or reconcile any inconsistencies in the Plan, the Disclosure Statement
or the Confirmation Order, and such matters as may be necessary to carry out the
purposes and effects of the Plan.
13.06 PROFESSIONAL FEES. All final applications for Professional Fees for
services rendered in connection with these Cases prior to the Confirmation Date
shall be filed with the Bankruptcy Court not later than sixty (60) days after
the Effective Date.
13.07 SUBSTANTIAL CONTRIBUTION COMPENSATION. No Person shall be entitled
to request compensation or expense reimbursement for making a substantial
contribution in the Cases pursuant to sections 503(b)(3), (4), and (5) of the
Bankruptcy Code.
13.08 EXCULPATION. The Debtors, Reorganized Intermet, the Indenture
Trustee, each Initial Committed Purchaser, the Pre-Petition Lenders, the
Pre-Petition Agent, the DIP Agents, the Creditors' Committee, and their
respective current and former members, shareholders,
46
officers, directors, employees and agents (including any attorneys, financial
advisors, investment bankers and other Professionals retained by such Persons)
and any other Released Party shall have no, and shall not incur any, liability
or obligation to any Person for any act or omission made in connection with, or
arising out of the Cases, the Plan (and the Confirmation Order and any other
Bankruptcy Court orders related thereto), the solicitation of votes for the
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,
with the sole exception of acts or omissions resulting from intentional fraud or
willful misconduct as determined by a Final Order and, in all respects, such
Persons shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities, if any, under the Plan. The foregoing
exculpation is an integral part of the Plan and is essential to its
implementation. Each Person being exculpated pursuant to this Article 13.08
shall have the right to independently seek the enforcement of the terms of such
exculpation.
13.09 SECURITIES LAW MATTERS. It is an integral and essential element of
the Plan that the issuance of the Plan Securities pursuant to the Plan shall be
exempt from registration under the Securities Act, pursuant to Section 1145 of
the Bankruptcy Code and from registration under state securities laws. Any Plan
Securities issued to an "affiliate" of the Debtors within the meaning of the
Securities Act or any Person the Debtors reasonably determine to be an
"underwriter," and which does not agree to resell such securities only in
"ordinary trading transactions," within the meaning of Section 1145(b)(1) of the
Bankruptcy Code shall be subject to such transfer restrictions and bear such
legends as shall be appropriate to ensure compliance with the Securities Act.
Nothing in the Plan is intended to preclude the Securities and Exchange
Commission from exercising its police and regulatory powers relating to the
Debtors or any other entity.
13.10 RULES OF INTERPRETATION. For purposes of the Plan: (i) whenever from
the context it is appropriate, each term, whether stated in the singular or the
plural, shall include both the singular and the plural, and pronouns stated in
the masculine, feminine, or neuter gender shall include the masculine, feminine,
and the neuter gender; (ii) any reference in the Plan to a contract, instrument,
release, indenture, or other agreement or document being in a particular form or
on particular terms and conditions means that such document shall be
substantially in such form or substantially on such terms and conditions; (iii)
any reference in the Plan to an existing document or Exhibit filed, or to be
filed, shall mean such document or Exhibit, as it may have been or may be
amended, modified, or supplemented in accordance with its terms; (iv) unless
otherwise specified, all references in the Plan to Sections, Articles, and
Exhibits are references to Sections, Articles, and Exhibits of or to the Plan;
(v) the words "herein" and "hereto" refer to the Plan in its entirety rather
than to a particular portion of the Plan; (vi) captions and headings to Articles
and Sections are inserted for convenience of reference only and are not intended
to be a part of or to affect the interpretation of the Plan; and (vii) the rules
of construction set forth in Section 102 of the Bankruptcy Code shall apply.
13.11 IMPLEMENTATION. The Debtors shall take all steps, and execute all
documents including appropriate releases, necessary to effectuate the provisions
contained in the Plan.
13.12 INCONSISTENCY. In the event of any inconsistency between the Plan
and the Disclosure Statement, the provisions of the Plan shall govern, and in
the event of any
47
inconsistency between the Plan and any Reorganization Document, the provisions
of the Plan shall govern.
13.13 NO ADMISSIONS. Notwithstanding anything herein to the contrary,
nothing contained in the Plan shall be deemed as an admission by any Person with
respect to any matter set forth herein.
13.14 FILING OF ADDITIONAL DOCUMENTS. On or before the Effective Date, the
Debtors may file with the Bankruptcy Court such agreements and other documents
as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of the Plan.
13.15 SUBSTANTIAL CONSUMMATION. Substantial consummation of the Plan under
Section 1101(2) of the Bankruptcy Code shall not be deemed to occur, the Cases
shall remain open and not be deemed fully administered, and no final decree
closing these Cases shall be entered pursuant to Section 350(a) of the
Bankruptcy Code and Bankruptcy Rule 3022, until the Effective Date, at the
earliest.
48
INTERMET CORPORATION
a Georgia corporation
By: /s/ Gary F. Ruff
------------------------
Its: Chairman and CEO
------------------------
ALEXANDER CITY CASTING COMPANY INC.
an Alabama corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
CAST-MATIC CORPORATION,
a Michigan corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
COLUMBUS FOUNDRY, L.P.,
a Delaware limited partnership
By: /s/ Alan J. Miller
------------------------
Its: Vice President, Intermet
U.S. Holding, Inc.,
General Partner
------------------------
DIVERSIFIED DIEMAKERS, INC.,
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
GANTON TECHNOLOGIES, INC.,
an Illinois corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
49
INTERMET HOLDING COMPANY,
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
INTERMET ILLINOIS, INC.,
an Illinois corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
INTERMET INTERNATIONAL, INC.,
a Georgia corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
INTERMET U.S. HOLDING, INC.,
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
IRONTON IRON, INC.,
an Ohio corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
50
LYNCHBURG FOUNDRY COMPANY
a Virginia corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
NORTHERN CASTINGS CORPORATION
a Georgia corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
SUDBURY, INC.
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
SUDM, INC.
a Michigan corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
TOOL PRODUCTS, INC.
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
WAGNER CASTINGS COMPANY
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
51
WAGNER HAVANA, INC.
a Delaware corporation
By: /s/ Alan J. Miller
------------------------
Its: Vice President
------------------------
Foley & Lardner LLP
Judy A. O'Neill (P32142)
Daljit S. Doogal (P57181)
David G. Dragich (P63234)
500 Woodward Avenue, Suite 2700
Detroit, Michigan 48226
Telephone: (313) 234-7100
Attorneys for the Debtors
52