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
DEBTORS' AMENDED 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: August 12, 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.
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(1) Capitalized terms used herein shall have the meaning ascribed to them in
Article I of the Plan. This Plan amends and restates the Plan filed on
August 5, 2005.
(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 AD HOC COMMITTEE. The unofficial Trade Claims Committee formed by
certain trade Creditors of the Debtors in April 2005.
1.02 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.
1.03 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.
1.04 AFFILIATE. This term shall have the meaning assigned to it in Section
101(2) of the Bankruptcy Code.
1.05 ALLOWANCE DATE. The date a Claim becomes an Allowed Claim.
1.06 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 or 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
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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 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.
1.07 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.
1.08 ALLOWED PRIORITY CLAIM. Any Priority Claim that is an Allowed Claim.
1.09 ALLOWED REJECTION CLAIM. Any Rejection Claim that is an Allowed Claim.
1.10 ALLOWED SECURED CLAIM. Any Secured Claim that is an Allowed Claim.
1.11 ALLOWED TAX CLAIM. Any Tax Claim that is an Allowed Claim.
1.12 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 G, and in the event of
satisfaction of the Liquidating Plan Condition, in the form of Exhibit H 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.
Exhibits G and H shall be filed with the Bankruptcy Court fifteen (15) days
prior to the Voting Deadline.
1.13 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.
1.14 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 I to the Plan.
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1.15 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 under Article 5 of the Plan to accept or
reject the Plan and make any other applicable elections or agreements pursuant
to the Plan.
1.16 BANKRUPTCY CODE. Title 11 of the United States Code, as amended from
time to time, and made applicable to these Cases.
1.17 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.
1.18 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.
1.19 BOARD OF INTERMET. The board of directors or other similar governing
body of Intermet and the other Debtors.
1.20 BOARD OF REORGANIZED INTERMET. The board of directors or similar
governing body of Reorganized Intermet and the other Reorganized Debtors.
1.21 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.
1.22 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.
1.23 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.
1.24 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.
1.25 CASH-OUT PURCHASE AGREEMENT. The agreement attached hereto as Exhibit
D by and among the Debtors and the Initial Committed Purchasers pursuant to
which the Initial Committed Purchasers shall purchase the Cash-Out Shares at a
purchase price of $10.00 per share.
1.26 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
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exchange for their Claims, and, if necessary the Inducement Cash-Out Shares and
the Convenience Cash-Out Shares.
1.27 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, 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 J to the Plan.
1.28 CLAIM. A claim means a claim against any one of the Debtors as defined
in section 101(5) of the Bankruptcy Code.
1.29 CLAIMS FILING BAR DATE. February 7, 2005, the deadline by which
certain Creditors were obligated to file Proofs of Claim.
1.30 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.
1.31 CLASS. A category as to each Debtor, designated herein, of Claims or
Equity Interests as specified in Article 2 of the Plan.
1.32 CONFIRMATION. The entry of the Confirmation Order by the Bankruptcy
Court on the docket of the Bankruptcy Court.
1.33 CONFIRMATION DATE. The date upon which the Confirmation Order is
entered on the docket of the Bankruptcy Court.
1.34 CONFIRMATION HEARING DATE. The date or dates of the hearing on
Confirmation of the Plan, as may be continued from time to time.
1.35 CONFIRMATION ORDER. The order of the Bankruptcy Court confirming the
Plan under Section 1129 of the Bankruptcy Code.
1.36 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.
1.37 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.
1.38 CONSIGNMENT CLAIMS. The Claims described in Article 3.08 of the Plan.
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1.39 CONVENIENCE CASH AMOUNT. Cash in the amount equal to the Pro Rata
share of the Convenience Cash Pool for such Debtor in Exhibit B to the Plan
(which amount may be augmented by proceeds from Convenience Cash-Out Shares).
1.40 CONVENIENCE CASH POOL. For each Debtor, the amount of Cash allocated
under the Plan, as set forth for each Debtor in Exhibit B to the Plan, plus any
proceeds from the Cash-Out Purchase Agreement attributable to the Convenience
Cash-Out Shares.
1.41 CONVENIENCE CASH-OUT SHARES. Shares of New Common Stock issued to the
Initial Committed Purchasers pursuant to the Cash-Out Purchase Agreement to fund
necessary Cash to pay Noteholders making the Convenience Cash Election.
1.42 CONVENIENCE CLASS ELECTION. An election on its Ballot 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 or if such
General Unsecured Claim is equal to or less than $125,000 and in either case, to
(i) be treated as an Unsecured Convenience Claim; (ii) agree to seek recovery
exclusively from the Debtor that is the primary obligor according to the
Debtors' books and records with respect to its General Unsecured Claim; (iii)
waive its right to seek recovery from any additional Debtor against whom it has
a Claim as an obligor for such Claim; and (iv) vote in favor of the Plan.
1.43 CREDITOR. With respect to any Debtor, a Person defined as a "creditor"
in Section 101(10) of the Bankruptcy Code.
1.44 CREDITORS' COMMITTEE. The official committee of unsecured Creditors
appointed in these Cases pursuant to Section 1102(a) of the Bankruptcy Code.
1.45 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.
1.46 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.
1.47 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.
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1.48 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.
1.49 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 arising under the DIP Facility.
1.50 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.
1.51 DIP LENDERS. The lenders who are parties to the DIP Credit Agreement.
1.52 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.
1.53 DISCLOSURE STATEMENT. The Amended Disclosure Statement of the Debtors
filed with the Bankruptcy Court on August 12, 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.
1.54 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.
1.55 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.
1.56 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.
1.57 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.
1.58 EFFECTIVE DATE EXECUTIVE OFFICERS. The executive officers of Intermet
that have entered into Employment Agreements.
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1.59 EMPLOYMENT AGREEMENTS. The employment agreements proposed to be
entered into by the Effective Date Officers.
1.60 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.
1.61 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.
1.62 ESTATE. The estate of each Debtor in these Cases, created pursuant to
Section 541 of the Bankruptcy Code.
1.63 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.
1.64 EXHIBIT. An exhibit annexed to either this Plan or to the Disclosure
Statement.
1.65 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. Exhibits G and H shall be filed fifteen (15) days prior to the
Voting Deadline.
1.66 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.
1.67 EXISTING PREFERRED STOCK. Shares of preferred stock of Ironton,
authorized, issued, and outstanding prior to the Effective Date.
1.68 EXIT FINANCING FACILITY. The exit financing facility obtained by the
Reorganized Debtors, and described in Article 6.11 of the Plan.
1.69 EXIT LENDERS. The lenders under the Exit Financing Facility.
1.70 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.
1.71 GENERAL UNSECURED CASH POOL. The aggregate total amount of any
Inducement Cash Pools and Convenience Cash Pools for all Debtors, which amount
shall in not event be less than $12 million.
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1.72 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.
1.73 GENERAL UNSECURED CREDITORS. Creditors holding General Unsecured
Claims.
1.74 HOLDER. A holder of a Claim against or Equity Interest in a Debtor.
1.75 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.
1.76 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.
1.77 IMPAIRED EQUITY INTERESTS. Equity Interests in the Impaired Equity
Debtors.
1.78 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.
1.79 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.
1.80 INDENTURE TRUSTEE FEES. Reasonable fees and out-of-pocket expenses of
the Indenture Trustee and its attorneys in connection with these Cases.
1.81 INDUCEMENT CASH AMOUNT. Cash in the amount equal to the Pro Rata share
of the Inducement Cash Pool for such Debtor in Exhibit B to the Plan (which
amount may be augmented by proceeds from Inducement Cash-Out Shares).
1.82 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.
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1.83 INDUCEMENT CASH-OUT SHARES. Shares of New Common Stock issued to the
Initial Committed Purchasers pursuant to the Cash-Out Purchase Agreement to fund
necessary Cash to pay Noteholders making either the Inducement Cash Election or
the Convenience Cash Election.
1.84 INDUCEMENT CASH POOL. For each Debtor, the amount of Cash allocated
under the Plan, as set forth for each Debtor in Exhibit B to the Plan, plus any
proceeds from the Cash-Out Purchase Agreement attributable to the Inducement
Cash-Out Shares.
1.85 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.
1.86 INTERCOMPANY CLAIMS. Claims of a Debtor against another Debtor.
1.87 IRONTON. Ironton Iron, Inc.
1.88 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 K to the Plan.
1.89 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.
1.90 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.
1.91 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.
1.92 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 or if the
Bankruptcy Court does not grant the Wagner 1114 Motion (as defined in the
Disclosure Statement) on or before Confirmation.
1.93 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.
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1.94 NEW COMMON STOCK. The new shares of common stock of Reorganized
Intermet issued pursuant to Article 6.04 of this Plan.
1.95 NOTEHOLDERS. Holders of the Senior Notes.
1.96 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.
1.97 PBGC. The Pension Benefit Guaranty Corporation.
1.98 PENSION CLAIMS. All Claims of the PBGC and/or the Debtors' Pension
Plans against any of the Debtors or Reorganized Debtors.
1.99 PENSION PLANS. All defined benefit pension plans covered by the PBGC's
termination insurance program and sponsored by a Debtor.
1.100 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.
1.101 PETITION DATE. September 29, 2004, the date on which the Debtors
commenced these Cases.
1.102 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.
1.103 PLAN SECURITIES. The New Common Stock, the Rights, and the New Wagner
Castings Common Stock, and the New Wagner Havana Common Stock, if issued.
1.104 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.
1.105 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.
1.106 PRE-PETITION LENDERS. The Lenders, as such term is defined in the
Pre-Petition Credit Facility.
1.107 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.
1.108 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
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extent that such Claims have not been paid, released, or otherwise settled prior
to the Effective Date.
1.109 PRIVATE PLACEMENT PURCHASE AGREEMENT. The agreement attached hereto
as Exhibit C by and among the Debtors and the Initial Committed Purchasers.
1.110 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.
1.111 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 compensation or reimbursement of expenses in connection
with these Cases pursuant to Sections 330, 331, and/or 503(b)(4) of the
Bankruptcy Code.
1.112 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.
1.113 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.
1.114 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.
1.115 RECORD DATE. The deadline set by the Bankruptcy Court for determining
the Holders of Claims entitled to vote on the Plan.
1.116 REGISTRATION RIGHTS AGREEMENT. A registration rights agreement,
attached hereto as Exhibit E, 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.
1.117 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
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Debtors or their respective property. Notwithstanding anything herein to the
contrary, the Released Actions shall not include the Avoidance Actions.
1.118 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.
1.119 RELEASING PARTIES. Intermet, Reorganized Intermet, the Debtors and
the Reorganized Debtors.
1.120 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.
1.121 REORGANIZATION DOCUMENTS. The agreements and other documents set
forth in Article 9 of the Plan.
1.122 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.
1.123 REORGANIZED INTERMET. Intermet as a new operating entity, from and
after the Effective Date, giving effect to the transactions contemplated by the
Plan.
1.124 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.
1.125 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.
1.126 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 "Renewed Motion of the Debtors Pursuant to Section
363(b)(1) and 364 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 August 4, 2005 and approved by the
Bankruptcy Court on August 9, 2005, including the exhibits thereto. The
Restructuring Commitment Letter is attached hereto as Exhibit A to the Plan.
1.127 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
13
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 J to the Plan, but excludes the Released
Actions (and to the extent applicable, Avoidance Actions) released under Article
10.05 of the Plan.
1.128 RETIREE BENEFITS. The term shall have the meaning assigned to it in
Section 1114 of the Bankruptcy Code.
1.129 RETIREE COMMITTEE. The committee of staff retirees appointed by the
Bankruptcy Court pursuant to Section 1114 of the Bankruptcy Code on May 24,
2005.
1.130 RIGHTS. The rights issued to General Unsecured Creditors pursuant to
which General Unsecured Creditors may purchase their Pro Rata portion of New
Common Stock in the Rights Offering.
1.131 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.
1.132 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.
1.133 RIGHTS OFFERING PARTICIPATION CLAIM AMOUNT. The amount set forth in
the chart stated in Article 6.12 of the Plan.
1.134 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.
1.135 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.
1.136 SECURITIES ACT. The Securities Act of 1933, as now in effect or
hereafter amended.
14
1.137 SECURITY. The term shall have the meaning assigned to it in Section
101(49) of the Bankruptcy Code.
1.138 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.
1.139 STOCKHOLDERS' AGREEMENT. The agreement attached to the Plan as
Exhibit F and attached to the Disclosure Statement as Exhibit J, 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
Common Stock.
1.140 SUBSCRIPTION AGENT(S). The applicable entities engaged by the Debtors
to administer the Rights Offering, whose addresses and phone numbers are as
follows:
With respect to non-Noteholders:
JP Morgan Trust Company a/k/a Administar at
JP Morgan Trust Company, N.A.,
P.O. Box 56636
Jacksonville, FL 32241
(904) 807-3023
OR
With respect to Noteholders:
Financial Balloting Group LLC,
Attn: Intermet Balloting Tabulation
757 Third Avenue, 3rd Floor
New York, NY 10017
(646) 282-1800
1.141 SUBSCRIPTION COMMENCEMENT DATE. The date Ballots and Subscription
Forms are mailed to Holders of Claims.
1.142 SUBSCRIPTION EXPIRATION DATE. The Voting Deadline, unless extended by
the Debtors and the Initial Committed Purchasers in their discretion.
1.143 SUBSCRIPTION FORM. The subscription form to be used by participants
in the Rights Offering to exercise the Rights.
1.144 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.
15
1.145 SUBSCRIPTION RECORD DATE. The Subscription Record Date shall be the
date that is fourteen (14) business days after entry of an order by the
Bankruptcy Court approving the adequacy of the Disclosure Statement.
1.146 SUDBURY. Sudbury, Inc.
1.147 SUDM. SUDM, Inc.
1.148 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.
1.149 TAX CLAIMS. All Claims that are entitled to priority under Section
507(a)(8) of the Bankruptcy Code.
1.150 TEMPORARILY ALLOWED CLAIM. A claim temporarily allowed pursuant to
Bankruptcy Rule 3018 and by an order of the Bankruptcy Court.
1.151 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.
1.152 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.
1.153 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.
1.154 UNSECURED CONVENIENCE CLAIM. An unsecured claim: (i) that is less
than or equal to $125,000 and for which only one Debtor is liable, or (ii) for
which the Holder makes a Convenience Class Election.
1.155 U.S. TRUSTEE. The Office of the United States Trustee for the Eastern
District of Michigan.
1.156 U.S. TRUSTEE FEES. The U.S. Trustee's quarterly fees payable pursuant
to 28 U.S.C. Section 1930.
1.157 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.
1.158 WAGNER CASTINGS. Wagner Castings Company
16
1.159 WAGNER HAVANA. Wagner Havana, Inc.
1.160 WORKERS' COMPENSATION CLAIMS. Claims arising under the Workers'
Compensation Programs.
1.161 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.
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.
17
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, 4b and 4c. Class 4 is Impaired.
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 and
Unsecured Convenience Claims against Wagner Havana. Class 4c is Impaired.
2.09 CLASS 5. UNSECURED CONVENIENCE CLAIMS. Class 5 consists of all
Unsecured Convenience Claims against each Debtor other than Class 4b, provided,
however, that in the event that the Liquidating Plan Condition is satisfied,
such Debtors shall not include Wagner Castings or Wagner Havana. 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
18
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.
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, (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.
19
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. Section 1930 on or before the Effective Date. All fees payable
pursuant to 28 U.S.C. Section 1930 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 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 Effective Date, the Debtors will pay into each Pension Plan the
amount then due for the 2004 Pension Plan years unless such payments have
already been made by the Debtors in the ordinary course. 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 so long as (i) the Debtors remain current on
minimum funding for all Pension Plans and do not apply for a waiver; (ii) the
Debtors achieve at least 90% of the EBITDA contained in the financial
projections that they have provided to their creditors in these Cases, provided,
however, that the Debtors will have 30 calendar days to show that failure to
meet such projections does not
20
have a material adverse effect on PBGC or any of the pension plans sponsored by
Intermet or any member of its controlled group; (iii) the Debtors remain current
on their obligations to and in compliance with all covenants with their lenders,
provided, however, that the Debtors will have 15 calendar days to show that the
failure to meet an obligation or comply with a covenant does not have a material
adverse effect PBGC or any of the pension plans sponsored by Intermet or any
member of its controlled group; (iv) no reportable event occurs under 29 C.F.R.
Section 4043.29, provided, however, that the Debtors will have 30 calendar days
to show that if such a reportable event occurs, it will not have a material
adverse effect on PBGC or any of the Pension Plans sponsored by the Debtors or
any member of their controlled group; and (v) the Debtors provides the PBGC with
any reports that they provide to any lender relating to failure to meet an
obligation or comply with a covenant within 15 calendar days. In addition, the
Debtors agree to be treated as subject to and shall not be exempted from advance
reporting of reportable events under 29 C.F.R. Section 4043.61. The Debtors also
will provide to PBGC Forms 5500 and the actuarial valuation reports annually;
notice of changes in actuarial assumptions; and notice of plan mergers or other
plan transactions. The Debtors will provide audited annual and unaudited
quarterly financial statements when provided to their lenders.
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. 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
21
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 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.
22
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 B to the Plan, and
(ii) its Pro Rata share of the Rights allocated to the applicable
Debtor as indicated on Exhibit B 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 makes the
Inducement Cash Election for such Debtor 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.
23
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.
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.
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 Cash-Out Amount with respect to SUDM as indicated in Exhibit B
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 New Common Stock allocated to
SUDM as indicated in Exhibit B to the Plan, and
(ii) its Pro Rata share of the Rights allocated to SUDM and
indicated on Exhibit B 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 makes the
Inducement Cash Election for SUDM 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(b) and (c), 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 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 B to the Plan; OR
24
(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 B to the Plan,
(ii) its Pro Rata share of the Rights allocated to Wagner Havana
and indicated on Exhibit B 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 makes the
Inducement Cash Election for Wagner Havana 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.
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
and Unsecured Convenience Claims against Wagner Havana.
5.08 CLASS 5. UNSECURED CONVENIENCE CLAIMS. On the Effective Date, each
Holder of an Allowed Unsecured Convenience Claim or the Indenture Trustee, on
behalf of each of the Noteholders, shall receive, in full satisfaction of its
Claims, the Convenience Cash Amount.
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.
25
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 in the manner
described in Section I.B. of the Disclosure Statement, 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.
26
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
27
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
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. The
Stockholders' Agreement is attached hereto as Exhibit F.
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
28
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.
29
6.12 RIGHTS OFFERING.
(a) Ability to Participate in Rights Offering
Holders of General Unsecured Claims against any Debtor on the Subscription
Record Date are entitled to participate in the Rights Offering solely to the
extent of their Rights Participation Claim Amount, as described below. If a
General Unsecured Claim is Allowed, the Holder of such Claim will 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 will be
entitled to participate in the Rights Offering, in the amount of the Rights
Participation Claim Amount, as described below.
The chart below summarizes the right of each Holder of a General Unsecured
Claim on the Subscription Record Date to participate in the Rights Offering,
subject to the paragraph below the chart, which describes the determination of
the Rights Participation Claim Amount for Noteholder Claims.
CHARACTERISTICS OF GENERAL UNSECURED
CLAIM RIGHTS PARTICIPATION AMOUNT
- ------------------------------------- ----------------------------------------
Listed on Debtors' Schedules as The undisputed portion, unless otherwise
Disputed, Contingent or allowed by Bankruptcy Court order for
Unliquidated and a proof of claim was purposes of participating in the Rights
timely filed Offering.
Objection to Claim has been filed The undisputed portion, unless otherwise
allowed by Bankruptcy Court order for
purposes of participating in the Rights
Offering.
Claim is listed on Disputed Claims The undisputed portion, unless otherwise
List to be filed with the Bankruptcy allowed by Court order for purposes of
Court by the Debtors participating in the Rights Offering.
If General Unsecured Claim does not
meet any of three criteria above
(i.e. not Disputed and not listed on
Disputed Claims List)
Holder has filed Claim, but no The lesser of the undisputed portion or
corresponding Claim listed on the amount of filed Claim, unless
Debtors' Schedules otherwise allowed by Bankruptcy Court
order for purposes of participating in
the Rights Offering.
Holder has filed Claim, but The lesser of the undisputed portion or
corresponding Scheduled amount is the amount on Schedules, unless
different otherwise allowed by Court order for
purposes of participating in the Rights
Offering.
Holder has not filed Claim or holder The lesser of the undisputed portion or
has filed Claim and Claim is same as the amount on Schedules, unless
Scheduled Amount otherwise allowed by Court order for
purposes of participating in the Rights
Offering.
30
With respect to claims of Noteholders, the Rights Participation Claim
Amount shall be (i) the amount certified by the relevant Nominee in the
applicable Master Noteholder Ballot, and (ii) the amount tendered into the
appropriate election account at DTC (as defined in the Disclosure Statement)
established for that purpose (with the amount so tendered governing in the event
of a discrepancy).
A holder will be bound, for the purpose of the Rights Offering, by (i) the
amount of its Rights Participation Claim Amount listed in its Ballot, or, in the
case of a Noteholder, the Rights Participation Amount for such Noteholder as
provided in the above paragraph and (ii) the Holder's status as disputed,
whether due to its inclusion on the Disputed Claims List to be filed by the
Debtors and served on affected Creditors, or otherwise, except to the extent the
holder timely obtains an order from the Court to the contrary pursuant to a
temporary allowance motion timely filed in accordance with the procedures
established by the Court.
(b) Issuance of Rights
The Rights shall entitle Holders of General Unsecured Claims on the
Subscription Record Date, 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 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 Holder thereof on the
Subscription Record Date must: (i) duly complete the Ballot, and return the
Ballot to the applicable Subscription Agent so that the applicable Subscription
Agent receives the Ballot on or before the Subscription Expiration Date; and
(ii) pay to the applicable Subscription Agent, (on behalf of the Debtors),
immediately available funds in an amount equal to such Holder's aggregated
Subscription
31
Purchase Price to the Subscription Agent on or before the Subscription
Expiration Date, such payment to be made by wire transfer in accordance with the
wire instructions set forth in the Ballot. If, on or prior to the Subscription
Expiration Date, the Subscription Agent for any reason has not received from a
given Holder both a duly completed Ballot, including without limitation
Subscription Form provisions, and Cash, in an amount equal to such Holder's
aggregate Subscription Purchase Price, such Holder will be deemed to have not
exercised its Rights and to have relinquished and waived its ability to
participate in the Rights Offering. By completing and submitting the
Subscription Form, a Holder will be agreeing to be bound by the Stockholders'
Agreement. The Subscription Form provisions of the Ballots 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 on
the Subscription Record Date. The payments made in accordance with the Rights
Offering will be deposited and held by the Subscription Agent in a trust
account, escrow account, or similar segregated account or accounts which will 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, subject to any existing or future Order of the Court.
(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 and the
Restructuring Commitment Letter has not been previously terminated, 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 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 Rights Offering Shares.
(ii) Distribution to Initial Committed Purchasers
On the Effective Date, Reorganized Intermet will distribute directly
to the Initial Committed Purchasers certificates representing the Rights
Offering Shares and the Private Placement Purchase Shares purchased by the
Initial Committed Purchasers.
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(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 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.
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(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 I and J 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) 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.
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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.
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,
except that after the Effective Date the Indenture Trustee's duties and
obligations thereunder shall be limited to making distributions as provided in
Section 7.01 of this Plan. In particular, and without limitation, any rights of
the Indenture Trustee to reasonable compensation, reimbursement and
indemnification (including without limitation reasonable compensation,
reimbursement and indemnification for reasonable fees and expenses, including
reasonable attorneys' fees) under the Indenture, and any lien pursuant to the
Indenture on any money or property held or collected by it securing such right
to reasonable compensation, reimbursement and indemnification, shall remain in
effect, and the Indenture Trustee may at any time, and from time to time, pay or
reserve for such reasonable compensation, reimbursement and indemnification from
any such money or property at any time held by the Indenture Trustee to the
extent provided for in the Indenture. No lien shall exist with respect to any
compensation, reimbursement and indemnification that is not reasonable. To the
extent a dispute arises with respect to any compensation, reimbursement and
indemnification, or extent of any asserted lien, such dispute shall be resolved
by the Bankruptcy Court after notice and a hearing. However, the liability of
the Debtors under the Indenture shall be discharged pursuant to the Plan and
Section 1141 of the Bankruptcy Code on the Effective Date.
6.21 LIQUIDITY TO PAY INDENTURE TRUSTEE FEES. The Indenture Trustee shall
pay or reserve for the reasonable Indenture Trustee Fees and expenses from Cash
and New Common Stock for the benefit of the Noteholders, which shall be
allocated ratably among the Noteholders
35
to the extent practicable. On the Effective Date, the portion of the New Common
Stock, if any, to be used for this purpose shall be purchased by the Initial
Committed Purchasers from Reorganized Intermet at a purchase price of $10.00 per
share, and the cash so generated shall be distributed to the Indenture Trustee.
6.22 APPROVAL OF SETTLEMENTS. The Distributions set forth in the Plan and
the provisions of the Plan incorporate the terms of any compromises and
settlements approved by order of the Bankruptcy Court pursuant to Bankruptcy
Rule 9019, including, but not limited to the settlement (the "Substantive
Consolidation Settlement") resolving issues raised relating to substantive
consolidation, set forth more fully in the motion pertaining to the settlement
placed on the record on August 9, 2005. The entry of the Confirmation Order
shall constitute the Bankruptcy Court's finding and determination that the
settlements reflected in the Plan, including all issues pertaining to claims for
substantive consolidation (which are settled by the distributions in the Plan)
are (a) in the best interests of the Debtors and their Estates, (b) fair,
equitable, and reasonable, (c) made in good faith, and (d) approved by the
Bankruptcy Court. As an integral component of the Substantive Consolidation
Settlement, the Debtors shall (a) pay the fees and expenses incurred by the Ad
Hoc Trade Committee in amount of up to $150,000; and (b) the Ad Hoc Committee
may file an application pursuant to 11 U.S.C. Section 503(b)(4) with respect to
any fees and expenses incurred in excess of $150,000.
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 for
further distribution to or for the benefit of the Noteholders as of the
Distribution Record Date (subject to payments or reserves provided for in
Section 6.21 hereof) pursuant to the terms of the Indenture. The Distribution
Record Date shall be used as the record date for distributions pursuant to the
Indenture. 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
36
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 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 (including, without
limitation, the Inducement Cash Amounts and Convenience Cash Amounts, but
excluding the Rights, attributable to
37
Disputed Claims) to Holders of Disputed Claims. For avoidance of doubt,
there shall be no distribution reserve with respect to the Rights.
(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.
(d) DISTRIBUTIONS AFTER DISALLOWANCE. Upon resolution of all Disputed
Claims, any funds remaining in any reserve created under Section 7.05(b) of
the Plan with respect to Inducement Cash Amounts and Convenience Cash
Amounts attributable to Disputed Claims that do not ultimately become
Allowed Claims shall be distributed on a Pro Rata basis to (i) holders of
Class 4 Claims that have previously made the Inducement Cash Election or
the Convenience Cash Election and (ii) holders of Class 5 Claims.
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 set off against any Allowed Claim
and the 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.
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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.
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 L
attached hereto, which shall be deemed rejected as of the Confirmation Date or
the date set forth in Exhibit L, 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
39
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 M to the Plan. If no Cure amount is set forth in Exhibit M 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.
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:
40
(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) a commitment letter relating to the Exit Financing Facility;
(ii) the Private Placement Purchase Agreement;
(iii) the Cash-Out Purchase Agreement.
(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.
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 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;
41
(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.
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.
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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 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.
43
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 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,
44
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 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.
45
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 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.
46
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;
(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;
47
(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 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.
48
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. The obligation, if any, of Professionals employed pursuant
to the Bankruptcy Court's Order authorizing the retention of ordinary course
professionals to file fee applications shall be governed by that order.
13.07 SUBSTANTIAL CONTRIBUTION COMPENSATION. Except as provided with
respect to the Ad Hoc Trade Committee in section 6.22 of the Plan, 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, 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
49
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 ENVIRONMENTAL LAW MATTERS. With respect to the Plan of Wagner Havana
only, on March 11, 2005, the Illinois EPA issued a Violation Notice Letter (No.
L-2005-01096) to Wagner Havana, regarding the Havana foundry site alleging
various violations involving soil and groundwater contamination. On May 18,
2005, Wagner Havana submitted a Compliance Commitment Agreement to the Illinois
EPA. On August 4, 2005, the Illinois EPA issued a Proposed Modification to the
Compliance Commitment Agreement which set forth a compliance plan and other
terms and conditions to address both the on and off-site contamination, as set
forth in Exhibit N attached hereto. The compliance plan and all of the terms and
conditions of the revised and modified Compliance Commitment Agreement are
expressly incorporated into this Plan and shall be the obligations of
Reorganized Wagner Havana and shall be enforceable by the Bankruptcy Court or
state court in accordance with applicable non-bankruptcy law.
13.11 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.
13.12 IMPLEMENTATION. The Debtors shall take all steps, and execute all
documents including appropriate releases, necessary to effectuate the provisions
contained in the Plan.
13.13 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 inconsistency between the Plan and any Reorganization Document, the
provisions of the Plan shall govern.
13.14 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.
50
13.15 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.
13.16 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.
51
Signature Pages For Debtors' Amended Plans Of Reorganization Dated August 12,
2005
INTERMET CORPORATION,
a Georgia corporation
By: /s/ Gary Ruff
-------------------------------
Its: Chairman & 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
Signature Pages For Debtors' Amended Plans Of Reorganization Dated August
12, 2005
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
LYNCHBURG FOUNDRY COMPANY,
a Virginia corporation
By: /s/ Alan J. Miller
-------------------------------
Its: Vice President
Signature Pages For Debtors' Amended Plans Of Reorganization Dated August
12, 2005
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
WAGNER HAVANA, INC.,
a Delaware corporation
By: /s/ Alan J. Miller
-------------------------------
Its: Vice President
EXHIBIT A
RESTRUCTURING COMMITMENT LETTER
EXECUTION COPY
R2 INVESTMENTS, LDC STANFIELD CAPITAL PARTNERS LLC
August 4, 2005
INTERMET Corporation
5445 Corporate Drive, Suite 200
Troy, Michigan 48098
Attention: Gary F. Ruff
President and Chief Executive Officer
Ladies and Gentlemen:
The undersigned, on behalf of one or more of their related or associated
entities to be designated by them (collectively, the "Initial Committed
Purchasers"), in accordance with the terms and subject to the conditions set
forth in this amended commitment letter and the amended restructuring term sheet
attached hereto as Annex "A" (the "Term Sheet"), the terms and conditions of
which are incorporated by reference herein (collectively, the "Commitment
Letter"), are pleased to provide, on a standby basis:
(a) a commitment to INTERMET Corporation ("Intermet) to purchase 7,500,000
shares of the common stock (the "New Common Stock") of Reorganized Intermet, at
a purchase price of $10.00 per share, in accordance with the terms and subject
to the conditions set forth in the Term Sheet opposite the caption "Private
Placement Purchase Agreement" (the "Private Placement Backstop Investment"); and
(b) a commitment to Intermet to purchase the Cash-Out Shares, at a
purchase price of $10.00 per share, in accordance with the terms and subject to
the conditions set forth in the Term Sheet opposite the captions "Cash-Out
Purchase Agreement" and "Unsecured Claims" (the "Cash-Out Backstop Investment"
and, together with the Private Placement Backstop Investment, the "Backstop
Investment").
Capitalized terms used in this Commitment Letter and not defined herein
shall have the meanings assigned to such terms in the Term Sheet.
The proceeds of the Backstop Investment are to be used by the Reorganized
Company for general working capital and corporate purposes and to make certain
specified payments in connection with and to facilitate the consummation of a
plan of reorganization (the "Plan") that shall be filed by the Company with the
United States Bankruptcy Court for the Eastern District of Michigan, Southern
Division (the "Bankruptcy Court"), in connection with the Company's chapter 11
proceedings (the "Chapter 11 Cases") initiated pursuant to chapter 11 of title
11 of the United States Code, 11 U.S.C. sections. 101-1330, as amended (the
"Bankruptcy Code"). The Plan shall be in form and substance consistent with the
terms and conditions of this Commitment Letter.
The Initial Committed Purchasers are willing to provide the Backstop
Investment, on a several but not joint basis, to Reorganized Internet,
substantially on the terms and conditions set forth in this Commitment Letter.
Intermet Corporation
August 4, 2005
Page 2
The aggregate purchase price (the "Purchase Price") for the foregoing
shares of New Common Stock will be payable in cash, by wire transfer of
immediately available funds, to Reorganized Intermet on the Effective Date.
In accordance with the terms and subject to the conditions set forth in
this Commitment Letter:
(a) R2 Investments, LDC, on behalf of one or more of its related or
associated entities to be designated by it (collectively, "R2 Investments"),
shall be obligated to purchase 50% of the shares of New Common Stock issued by
Reorganized Intermet in connection with the Private Placement Backstop
Investment, and 50% of the shares of New Common Stock issued by Reorganized
Intermet in connection with the Cash-Out Backstop Investment; and
(b) Stanfield Capital Partners, on behalf of one or more of its related or
associated entities to be designated by it (collectively, "Stanfield Capital"),
shall be obligated to purchase 50% of the shares of New Common Stock issued by
Reorganized Intermet in connection with the Private Placement Backstop
Investment, and 50% of the shares of New Common Stock issued by Reorganized
Intermet in connection with the Cash-Out Backstop Investment.
Neither of the Initial Committed Purchasers shall be obligated to pay or
fund any part of the other Initial Committed Purchaser's portion of the Purchase
Price.
Set forth in detail in the Term Sheet are: (a) the conditions precedent to
the obligations of the Initial Committed Purchasers to make the Backstop
Investment; and (b) the provisions relating to the obligation of Intermet to pay
the Commitment Amount and the Reimbursable Expenses.
Each of the Initial Committed Purchaser's commitment to make the Backstop
Investment is subject to, among other things, the satisfaction (or the written
waiver by each of the Initial Committed Purchasers) of the conditions precedent
set forth in the Term Sheet opposite the caption "Initial Committed Purchasers
Conditions Precedent".
The definitive investment documents, including, without limitation, the
Restructuring Documents (collectively, the "Definitive Investment Documents")
shall contain representations, warranties, and covenants customarily included in
subscription and related agreements for similar standby underwriting investments
or financings.
On the Effective Date, Reorganized Intermet and the Initial Committed
Purchasers shall enter into the Registration Rights Agreement. A summary of the
terms and conditions of the Registration Rights Agreement is set forth on Annex
"B" to this Commitment Letter.
On the Effective Date, Reorganized Intermet will complete the Key
Employees Rights Offering, in connection with which the Key Employees shall be
afforded the opportunity to purchase, on a pro rata basis, up to 181,249 shares
of New Common Stock, at a purchase price of $10.00 per share. The names of the
Key Employees and the number of shares of New Common
Intermet Corporation
August 4, 2005
Page 3
Stock that may be purchased by each Key Employee are set forth on Annex "C" to
this Commitment Letter.
Upon reasonable notice and during normal business hours, Intermet will
afford the Initial Committed Purchasers and their counsel, accountants and other
representatives (collectively, the "Representatives") full and complete access
to the books, records and properties of the Company and the opportunity to
discuss the business, affairs and finances of the Company with the officers,
employees, accountants, attorneys and representatives of the Company in order to
enable the Initial Committed Purchasers and their Representatives to make such
investigations of the Company and its business as they deem reasonably
appropriate. Intermet agrees that it will cause the officers and employees of
the Company, and will request their respective legal counsel and accountants, to
cooperate so that the Initial Committed Purchasers can complete such review,
including promptly disclosing to the Initial Committed Purchasers any material
facts known to such parties which have resulted in, or could be expected to
result in, a Material Adverse Change.
Excluding any Indemnity Claim (as defined herein) arising solely from an
Indemnified Party's (as defined herein) breach of this Commitment Letter or
breach of any other agreements between an Indemnified Party and Intermet, or
among an Indemnified Party and the Reorganized Company, Intermet agrees to
indemnify and hold harmless the Initial Committed Purchasers and their
respective affiliates, directors, officers, partners, members, employees,
attorneys, agents and assignees (including affiliates thereof) (each an
"Indemnified Party") from and against any and all losses, claims, damages,
liabilities (or actions or other proceedings commenced or threatened in respect
thereof) or other expenses to which such Indemnified Party may become subject
(each an "Indemnity Claim"), insofar as such losses, claims, damages,
liabilities (or actions or other proceedings commenced or threatened in respect
thereof) or other expenses arise out of or in any way relate to or result from
this Commitment Letter or the proceeds of the Backstop Investment, and Intermet
agrees to reimburse (on an as incurred monthly basis) each Indemnified Party for
any legal or other out-of-pocket expenses incurred in connection with
investigating, defending or participating in any such loss, claim, damage,
liability or action or other proceeding (whether or not such Indemnified Party
is a party to any action or proceeding out of which such indemnified expenses
arise), but excluding therefrom all losses, claims, damages, liabilities and
expenses that are finally determined in a non-appealable decision of a court of
competent jurisdiction to have resulted solely from the gross negligence or
willful misconduct of such Indemnified Party. In the event of any litigation or
dispute involving this Commitment Letter, the Initial Committed Purchasers shall
not be responsible or liable to Intermet or any other person or entity for any
special, indirect, consequential, incidental or punitive damages. The
obligations of Intermet under this paragraph (the "Indemnification Obligations")
shall remain effective whether or not any of the transactions contemplated in
this Commitment Letter are consummated, any Definitive Investment Documents with
respect to the Backstop Investment are executed and notwithstanding any
termination of this Commitment Letter, and shall be binding upon Reorganized
Intermet in the event that any plan of reorganization of Intermet is
consummated.
Except as provided herein, Intermet agrees that, once paid, the fees or
any part thereof payable hereunder shall not be refundable or form the basis of
any defense, setoff, or recoupment claim under any circumstances, regardless of
whether the transactions contemplated by this
Intermet Corporation
August 4, 2005
Page 4
Commitment Letter are consummated. All fees payable hereunder shall be paid in
immediately available funds.
Intermet represents and warrants that: (i) all written information and
other materials concerning the Company and the Plan (the "Information") which
has been, or is hereafter, prepared by, or on behalf of, Intermet and delivered
to the Initial Committed Purchasers were or will be, when delivered, when
considered as a whole, complete and correct in all material respects and did
not, or will not when delivered, contain any untrue statement of material fact
or omit to state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances under which such
statements have been made; and (ii) to the extent that any such Information
contains projections, such projections were prepared in good faith on the basis
of (A) assumptions, methods and tests which are believed by Intermet to be
reasonable at the time made and (B) information believed by Intermet to have
been accurate based upon the information available to Intermet at the time such
projections were furnished to the Initial Committed Purchasers.
Except as otherwise required by law, Intermet shall not issue any press
release or make any other announcement that refers to the Initial Committed
Purchasers or the Backstop Investment without the prior written consent of the
Initial Committed Purchasers. Notwithstanding the sentence immediately
preceding, in no event shall Intermet issue any such press release or make any
such announcement without providing each of the Initial Committed Purchasers at
least one business day to review the proposed press release or announcement and
provide their written comments or suggested revisions with respect thereto.
This Commitment Letter (a) supersedes all prior discussions, agreements,
commitments, arrangements, negotiations or understandings, whether oral or
written, of the parties with respect thereto, including the Commitment Letter
among R2 Investments, Stanfield Capital and Intermet dated June 21, 2005, (b)
shall be governed, except to the extent that the Bankruptcy Code is applicable,
by the laws of the State of New York, without giving effect to the conflict of
laws provisions thereof; (c) shall not be assignable by Intermet or the Initial
Committed Purchasers; (d) is intended to be solely for the benefit of the
parties hereto and is not intended to confer any benefits upon, or create any
rights in favor of, any person other than the parties hereto; and (e) may not be
amended or waived except by an instrument in writing signed by Internet and the
Initial Committed Purchasers.
This Commitment Letter may be executed in any number of counterparts, each
of which shall be an original, and all of which, when taken together, shall
constitute one agreement. Delivery of an executed signature page of this
Commitment Letter by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
Notwithstanding anything herein to the contrary, all of the obligations of
Intermet hereunder are subject to the approval of the Bankruptcy Court. Intermet
shall seek Bankruptcy Court approval of this Commitment Letter at the hearing
scheduled for August 9, 2005 (including the Indemnification Obligations and the
payment of the Commitment Amount and Reimbursable Expenses).
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms hereof by returning to the Initial Committed Purchasers
executed counterparts hereof not later than 4:00 p.m., New York City time, on
August 4, 2005. This Commitment Letter will become effective upon the mutual
exchange of executed counterparts hereof. This Commitment Letter shall expire at
4:00 p.m., New York City time, on August 4, 2005, unless it has previously
become effective.
Very truly yours,
R2 INVESTMENTS, LDC
(on behalf of certain of its
related or associated entities)
By: Amalgamated Gadget, L.P., as its
Investment Manager
By: Scepter Holdings, Inc., its
General Partner
By: /s/ Dave Gillespie
--------------------------------
Name: Dave Gillespie
Title: Chief Financial Officer
STANFIELD CAPITAL PARTNERS LLC
(on behalf of certain of its related
or associated entities)
By: /s/ [ILLEGIBLE]
--------------------------------
Name: ___________________________
Title: __________________________
Agreed and accepted on this
4th day of August, 2005
INTERMET Corporation
By: /s/ Gary F. Ruff
-------------------------------------
Name: Gary F. Ruff
Title: President and Chief Executive Officer
ANNEX "A"
Restructuring Term Sheet
EXECUTION COPY
INTERMET CORPORATION
RESTRUCTURING TERM SHEET
AUGUST 4, 2005
The transactions contemplated by this term sheet are subject to conditions to be
set forth in definitive documents. This term sheet is part of the commitment
letter (the "Commitment Letter"), dated August 4, 2005, addressed to Intermet
(as defined below) by the Initial Committed Purchasers (as defined below) and is
subject to the terms thereof. This term sheet is proffered in the nature of a
settlement proposal in furtherance of settlement discussions and is entitled to
protection from any use or disclosure to any party or person pursuant to Federal
Rule of Evidence 408 and any other rule of similar import.
Until publicly disclosed by INTERMET Corporation, with the prior written consent
of the Initial Committed Purchasers, this term sheet and the information
contained herein is strictly confidential and may not be shared with any person
other than the DIP Lenders (as defined below), the Senior Credit Lenders (as
defined below), the Exit Facility Lenders (as defined below), the Official
Committee of Unsecured Creditors (the "Creditors' Committee") appointed in the
Chapter 11 Cases (as defined below), the Official Committee of Equity Holders
(the "Equity Committee") appointed in the Chapter 11 Cases, the Ad Hoc Committee
of Trade Claimants (the "Ad Hoc Trade Committee") and each such party's
professionals and other advisors.
COMPANY: INTERMET Corporation ("Intermet" and, as reorganized,
"Reorganized Intermet"), and certain of its subsidiaries
(together with Intermet, the "Company" and, as
reorganized with Reorganized Intermet, the "Reorganized
Company").
NOTEHOLDERS: The entities (the "Noteholders") that hold 9.75% Senior
Notes due 2009 issued by Intermet and guaranteed by
certain subsidiaries of Intermet (collectively, the
"Notes"). The claims held by the Noteholders (inclusive
of principal and interest accrued as of the petition
date of the Chapter 11 Cases) against Intermet and all
of the guaranty claims held by the Noteholders against
Intermet's debtor subsidiaries shall be collectively
referred to herein as the "Noteholder Claims".
OTHER UNSECURED Holders of all unsecured obligations (the "GUC Claims")
CLAIMANTS: other than (i) the Notes; and (ii) such obligations
which qualify or elect to be treated in a convenience
class (the "Convenience Class Claims") of Intermet and
its debtor subsidiaries (the "GUC Holders", together
with the Noteholders, the "Unsecured Holders").
INITIAL COMMITTED R2 Investments, LDC and/or one or more of its related
PURCHASERS: or associated entities (collectively, "R2
Investments") and Stanfield Capital Partners and/or one
or more of its related or associated entities
(collectively, "Stanfield Capital" and, together with
R2 Investments, the "Initial Committed Purchasers").
RESTRUCTURING Subject to the terms of the Commitment Letter, Intermet
TRANSACTION: shall restructure its capital structure (the
"Restructuring") through the chapter 11 plans of
reorganization (as amended, modified or
1
supplemented from time to time, the "Plan") and the
related disclosure statement (as amended, modified or
supplemented from time to time, the "Disclosure
Statement") filed with the United States Bankruptcy
Court for the Eastern District of Michigan, Southern
Division (the "Bankruptcy Court") on June 24, 2005 and
June 27, 2005, respectively, in cases commenced by the
Company on September 29, 2004 under chapter 11 of the
Bankruptcy Code (the "Chapter 11 Cases"), which Plan and
Disclosure Statement shall be modified so as to be
consistent with this Term Sheet and acceptable to the
Initial Committed Purchasers.
PRIVATE PLACEMENT In accordance with the terms and subject to the
PURCHASE AGREEMENT: conditions of a purchase agreement (the "Private
Placement Purchase Agreement"), the Initial Committed
Purchasers shall commit (the "Funding Commitment") to
purchase, on a pro rata basis, on the Effective Date (as
defined below), 7,500,000 shares (the "Private Placement
Shares") of newly-issued shares of common stock (the
"New Common Stock") of Reorganized Intermet, at a
purchase price of $10.00 per share, to the extent not
otherwise purchased in the Rights Offering (as defined
below). The Funding Commitment shall be subject to the
right of the Unsecured Holders, including the Initial
Committed Purchasers, pursuant to an election to be made
in conjunction with voting on the Plan, to purchase, on
a ratable basis, the full amount of the Private
Placement Shares (the "Rights Offering"). The Private
Placement Shares shall be subject to dilution by the
Unsecured Shares (as defined below), the Key Employees
Rights Offering (as defined below), the Management
Incentive Plan (as defined below) and the Alternate
Subscription Shares (as defined below). In no event
shall any Unsecured Holder have any right of
over-subscription with respect to the Rights Offering.
Moreover, the rights afforded to all Unsecured Holders
to purchase the New Common Stock shall be
non-transferable provided, however, with respect to each
unsecured claim, the holder of the claim on the tenth
business day after the Bankruptcy Court approves the
adequacy of the Disclosure Statement is the only person
entitled to participate in the Rights Offering with
respect to such claim, assuming such person continues to
hold the claim. The Private Placement Purchase
Agreement, which shall reflect the agreement of the
Initial Committed Purchasers to purchase the Private
Placement Shares to be issued by Reorganized Intermet in
connection with the Plan, shall include representations,
warranties and covenants customary for transactions of
similar type and monetary amount and otherwise
acceptable to the parties thereto. The Private Placement
Purchase Agreement (and the Plan with respect to items
(i) and (ii) below) shall, among other things,
specifically contain:
(i) a provision specifying that Reorganized
Intermet 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 Company on terms and
conditions acceptable to the Company and the Initial
Committed Purchasers; provided, however, that the
2
aggregate cost of such tail insurance shall not exceed
$1.5 million;
(ii) a provision specifying that Reorganized
Intermet shall indemnify all officers and directors of
the Company who served in such capacity at any time
prior to the Effective Date (as defined below) 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 paragraph (i) above, which
policies (or extensions thereof having terms no less
favorable to the officers and directors) shall be
assumed by Reorganized Intermet in the Plan. The
indemnity described in the preceding sentence 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. The provision shall specify
that amounts payable by Reorganized Intermet pursuant to
this provision 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
Reorganized Intermet, so long as Reorganized Intermet
shall have received a written undertaking by each such
officer and director to repay such amounts to
Reorganized Intermet 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;
(iii) a provision that the Private Placement
Purchase Agreement and the Cash-Out Purchase Agreement
(as defined below) shall terminate automatically upon
the termination of the Commitment Letter. Upon any such
termination, the obligations of the parties to the
Private Placement Purchase Agreement and the Cash-Out
Purchase Agreement shall be of no further force or
effect, except as otherwise expressly set forth therein;
and
(iv) a representation and warranty stating that
the Initial Committed Purchasers hold, as of the date of
the Commitment Letter, collectively, on behalf of
certain funds and managed accounts, in excess of $58.0
million in face amount of the Notes.
CASH-OUT PURCHASE The detailed terms and conditions pursuant to which the
AGREEMENT: Initial Committed Purchasers shall purchase the Cash-Out
Shares (as defined below) shall be set forth in a
purchase agreement (the "Cash-Out Purchase Agreement")
by and among Intermet and the Initial Committed
Purchasers. The Cash-Out Purchase Agreement shall
include representations, warranties and covenants
customary for transactions of similar type and monetary
amount and otherwise acceptable to the parties.
3
OTHER FEATURES OF THE
RESTRUCTURING:
TREATMENT OF CLAIMS AND The treatment of claims and interests shall be as set
INTERESTS: forth in the Plan and described in the Disclosure
Statement, in each case as modified to be consistent
with this Term Sheet and acceptable to the Initial
Committed Purchasers.
THE KEY EMPLOYEE RIGHTS The Company will conduct a key employee rights offering
OFFERING: (the "Key Employee Rights Offering"), in connection with
which the Company shall offer to the Key Employees (as
defined below) the right to purchase, on a pro rata
basis, 181,249 shares of New Common Stock, in
consideration for cash in the amount of $10.00 per
share. The Key Employees shall have a right of
over-subscription with respect to the Key Employee
Rights Offering as set forth on Annex C to the
Commitment Letter. 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 Company and the
Initial Committed Purchasers, in consultation with the
Creditors' Committee.
As used herein, the term "Key Employees" means those
persons who: (i) shall be employed by the Company on the
effective date of the Plan (the "Effective Date"); (ii)
upon consummation of the Plan, shall be entitled to
receive stay bonuses under the Intermet Amended and
Restated Employee Retention Plan, dated effective
September 20, 2004 and restated December 8,2004 (the
"KERP"); and (iii) are identified in an annex to the
Commitment Letter.
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.
PURCHASE OF On the Effective Date: (i) the Initial Committed
CASH-OUT SHARES: Purchasers shall purchase, on a pro rata basis, from
Reorganized Intermet the Cash-Out Shares, for an
aggregate consideration equal to the product (the
"Aggregate Cash-Out Payment") determined by multiplying
the Cash-Out Amount by the total number of Cash-Out
Shares; and (ii) the Initial Committed Purchasers shall
deliver to Reorganized Intermet, by wire transfer of
immediately available funds, cash in the amount of the
Aggregate Cash-Out Payment, in consideration of the
Cash-Out Shares.
4
EXIT FACILITY: A term loan facility and a revolving loan/letter of
credit facility the total of which shall not exceed $260
million, or such other higher amount as the Company and
Initial Committed Purchasers, in consultation with the
Creditors' Committee, deem appropriate and necessary
(collectively, the "Exit Facility"), shall be made
available, by one or more lenders (collectively, the
"Exit Facility Lenders"), to the Company, on terms and
conditions acceptable to the Company and the Initial
Committed Purchasers, in consultation with the
Creditors' Committee.
EMPLOYMENT AGREEMENTS: In connection with the Plan, each officer currently a
party to an employment agreement with the Company shall
enter into a new employment agreement between such
officer and the Company, on terms and conditions
acceptable to the Initial Committed Purchasers, in
consultation with the Creditors' Committee, which shall
supersede such officer's existing employment agreement.
MANAGEMENT INCENTIVE On or as soon as reasonably practicable after the
PLAN: Effective Date, a management incentive plan (the
"Management Incentive Plan") shall be implemented to
reserve for designated members of senior management of
the Reorganized Company 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
Directors of Reorganized Intermet.
STOCKHOLDERS' All holders of New Common Stock will be subject to a
AGREEMENT: stockholders' agreement in the form attached hereto as
Exhibit B, as may be amended by mutual agreement of
Intermet and the Initial Committed Purchasers, in
consultation with the Creditors' Committee (the
"Stockholders' Agreement"). The Stockholders' Agreement
will be effective as of the Effective Date.
REIMBURSABLE EXPENSES: The Company shall pay, within 10 days of receipt of an
invoice from the Initial Committed Purchasers, the
reasonable and documented out-of-pocket fees and
expenses incurred by the Initial Committed Purchasers,
including the fees and expenses of their legal counsel,
on and after January 10, 2005 in connection with the
Restructuring, plus all of the reasonable and documented
fees and expenses incurred by the Initial Committed
Purchasers, including the fees and expenses of their
legal counsel, in connection with the drafting,
negotiation, prosecution or defense of the Commitment
Letter (including this term sheet), the Private
Placement Purchase Agreement, the Rights Offering,
corporate governance documents, the Cash-Out Purchase
Agreement, the Plan, the Disclosure Statement, the
Confirmation Order, the Stockholders' Agreement, the
Exit Facility agreements and related documents and any
and all agreements and other documents ancillary hereto
or thereto (collectively, the "Restructuring
Documents"), including any fees and expenses incurred by
the Initial Committed Purchasers in connection with
obtaining all required
5
regulatory approvals (collectively, the "Reimbursable
Expenses"). The accrual of the Reimbursable Expenses to
be paid by Intermet hereunder shall cease in the event
that the Commitment Letter is terminated. So long as the
Initial Committed Purchasers are not in material breach
of their obligations under the Commitment Letter, the
obligations of Intermet to pay the Reimbursable Expenses
provided herein shall remain effective whether or not
any of the transactions contemplated by this Term Sheet
are consummated, any definitive documents with respect
to the Restructuring are executed and notwithstanding
any termination of the Commitment Letter, and shall be
binding upon Reorganized Intermet whether or not any
plan of reorganization with respect to Intermet is
consummated.
Notwithstanding anything contained herein or in the
Commitment Letter to the contrary, the payment of any
amounts due pursuant to the Commitment Letter or this
Term Sheet, including but not limited to the
Reimbursable Expenses due shall be subject to the
approval of the Commitment Letter by the Bankruptcy
Court, and such payment not causing a default pursuant
to the DIP Credit Facility, provided, however, if any
such payment would cause a default pursuant to the DIP
Credit Facility, the Initial Committed Purchasers shall
have a super-priority administrative expense claim for
such unpaid amount subordinate only to the claims of the
DIP Lenders.
CORPORATE GOVERNANCE: On the Effective Date, the Board of Directors of
Reorganized Intermet shall be composed of seven members.
On the Effective Date, five of such members shall be
selected by the Initial Committed Purchasers, one of
such members shall be the Chief Executive Officer of
Reorganized Intermet and 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.
REGISTRATION RIGHTS: On the Effective Date, Reorganized Intermet shall enter
into a Registration Rights Agreement with the Initial
Committed Purchasers, pursuant to which Intermet shall
agree to register the resale of the shares of New Common
Stock issued to the Initial Committed Purchasers in
accordance with the requirements of the Securities Act
of 1933, as amended. The Registration Rights Agreement
shall provide that any holder owning greater than 10% of
the outstanding New Common Stock upon emergence shall be
entitled to piggyback registration rights. A summary of
the material terms and conditions of the Registration
Rights Agreement (including without limitation the time
period which must have lapsed before any demand
registration may be made thereunder) shall be set forth
in an annex to the Commitment Letter.
INITIAL COMMITTED The obligations of the Initial Committed Purchasers to
PURCHASERS CONDITIONS purchase the Private Placement Shares, and the
obligations of the Initial Committed
6
PRECEDENT: Purchasers to purchase the Cash-Out Shares, will be
subject to the following conditions precedent (each, an
"Initial Committed Purchasers Condition Precedent"),
each of which may be waived in writing by both of the
Initial Committed Purchasers:
(i) Intermet shall have amended the Plan and
Disclosure Statement in a manner consistent with
this Commitment Letter, which Plan and Disclosure
Statement, as amended, shall be in form and
substance reasonably satisfactory to the Initial
Committed Purchasers, on or before 5 days after
execution of the Commitment Letter by Intermet;
(ii) a final, non-appealable order confirming the Plan
(the "Confirmation Order"), in form and substance
reasonably satisfactory to the Initial Committed
Purchasers, shall have been entered by the
Bankruptcy Court;
(iii) there shall not have occurred any Material Adverse
Change (as defined below);
(iv) execution and delivery of appropriate legal
documentation regarding the Restructuring,
including without limitation, (A) the amended and
restated certificate of incorporation and bylaws
of Reorganized Intermet and each of its
subsidiaries, (B) the Exit Facility, (C) the
Registration Rights Agreement, (D) Private
Placement Purchase Agreement, (E) the
Stockholders' Agreement, and (F) the Cash-Out
Purchase Agreement, each in form and substance
satisfactory to the Initial Committed Purchasers
and the satisfaction of the conditions precedent
contained therein, which conditions precedent
shall not vary materially from the conditions
precedent set forth herein;
(v) all material governmental, regulatory and third
party approvals, waivers and/or consents in
connection with the Restructuring (collectively,
"Approvals") shall have been obtained and shall
remain in full force and effect, and there shall
exist no claim, action, suit, investigation,
litigation or proceeding, pending or threatened in
any court or before any arbitrator or governmental
instrumentality, which would prohibit the Initial
Committed Purchasers from consummating the
transactions contemplated by the Commitment
Letter;
(vi) the Company realizes year-to-date consolidated
EBITDA for 2005, excluding administrative fees and
expenses associated with the Restructuring,
through the latest calendar month ending at least
25 days prior to the Effective Date, in an amount
that is no less than the amount specified for such
calendar month on Exhibit A hereto, and the
Company shall provide the Initial
7
Committed Purchasers on the Effective Date a
statement, which shall be executed by the
President and Chief Executive Officer and Chief
Financial Officer of Intermet, which shall set
forth the actual year to date EBITDA through such
calendar month;
(vii) issuance by Reorganized Intermet of the shares of
New Common Stock to the Initial Committed
Purchasers as described herein;
(viii) cash (or cash equivalents) and/or availability
under the Exit Facility as of the Effective Date,
after giving effect to the proceeds realized from
the issuance and sale of the Private Placement
Purchase Shares, but taking into account
distributions under the Plan, of at least the
amount required pursuant to the Exit Facility, and
the Company shall provide the Initial Committed
Purchasers, on the business day immediately
preceding the Effective Date, a certificate,
executed by the President and Chief Executive
Officer and the Chief Financial Officer of
Intermet, confirming such availability;
(ix) payment in full of the Commitment Amount (as
defined below) and all Reimbursable Expenses
outstanding on the Effective Date, pursuant to the
terms contained herein;
(x) [INTENTIONALLY LEFT BLANK;]
(xi) the Exit Facility shall have closed on the terms
and conditions acceptable to the Company and the
Initial Committed Purchasers, in consultation with
the Creditors' Committee, and not materially
inconsistent with the terms of the Commitment
Letter;
(xii) on the Effective Date, all representations and
warranties of the Company contained in the
Commitment Letter, Private Placement Purchase
Agreement and the Cash-Out Purchase Agreement
shall be true, complete and accurate in all
material respects; and
(xiii) on the Effective Date, all covenants of the
Company contained in the Commitment Letter,
Private Placement Purchase Agreement and the
Cash-Out Purchase Agreement shall have been
complied with by the Company in all material
respects.
INTERMET CONDITIONS The obligations of Intermet to consummate the transactions
PRECEDENT: contemplated by the Commitment Letter will be subject to the
following conditions precedent (each an "Intermet Condition
Precedent"), each of which may be waived in writing by
Intermet, in
8
consultation with the Creditors' Committee:
(i) on the Effective Date, all representations and
warranties of the Initial Committed Purchasers
contained in the Commitment Letter, Private
Placement Purchase Agreement and the Cash-Out
Purchase Agreement shall be true, complete and
accurate in all material respects;
(ii) on the Effective Date, all covenants of the
Initial Committed Purchasers contained in the
Commitment Letter, Private Placement Purchase
Agreement and the Cash-Out Purchase Agreement
shall have been complied with by the Initial
Committed Purchasers in all material respects;
(iii) the Confirmation Order, in form and substance
satisfactory to the Company, shall have been
entered by the Bankruptcy Court;
(iv) execution and delivery of appropriate legal
documentation regarding the Restructuring,
including without limitation, (A) the amended and
restated certificate of incorporation and bylaws
of Reorganized Intermet and each of its
Subsidiaries, (B) the Exit Facility, (C) the
Registration Rights Agreement, (D) the Private
Placement Purchase Agreement, (E) the
Stockholders' Agreement and (F) the Cash-Out
Purchase Agreement, each in form and substance
satisfactory to the Company and the satisfaction
of the conditions precedent contained therein,
which conditions precedent shall not vary
materially from the conditions precedent set forth
herein;
(v) all material Approvals shall have been obtained
and shall remain in full force and effect, and
there shall exist no claim, action, suit,
investigation, litigation or proceeding, pending
or threatened in any court or before any
arbitrator or governmental instrumentality, which
would prohibit the Company from consummating the
transactions contemplated by the Commitment
Letter,
(vi) the Exit Facility shall have closed on the terms
and conditions acceptable to the Company, and
(vii) (A) Reorganized Intermet 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 Company on terms and conditions acceptable to
the Company and the Initial Committed Purchasers;
provided, however, that the aggregate cost of such
tail insurance shall not exceed $1.5 million and
(B)
9
Reorganized Intermet shall indemnify all officers
and directors of the Company who served in such
capacity at any time prior to the Effective Date
(as defined below) 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 paragraph (A) above, which
policies (or extensions thereof having terms no
less favorable to the officers and directors)
shall 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, amounts payable by
Reorganized Intermet pursuant to the
aforementioned 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 Reorganized Intermet, so long
as Reorganized Intermet shall have received a
written undertaking by each such officer and
director to repay such amounts to Reorganized
Intermet 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.
TERMINATION OF The Commitment Letter shall terminate and all of the
COMMITMENT LETTER: obligations of the parties thereto (other than the
obligations of Intermet to pay the Reimbursable Expenses and
to satisfy its indemnification obligations thereunder in
accordance with the terms and conditions of the Commitment
Letter) shall be of no further force or effect, upon the
giving of written notice of termination by the Initial
Committed Purchasers or, with respect to (xiii)(B) and (xvi)
only, Intermet, in the event that any of the following
occurs (each, a "Termination Event"), each of which may be
waived in writing by both of the Initial Committed
Purchasers or, with respect to (xiii)(B) and (xvi) only,
Intermet, as applicable:
(i) the Board of Directors of Intermet shall fail to
approve of the terms and conditions of the
Commitment Letter on or before the filing of a
motion with the Bankruptcy Court seeking entry of
the Approval Order (as defined below);
(ii) Intermet shall fail to file a motion with the
Bankruptcy Court (or provide other notice) seeking
an order (the "Approval Order"), approving the
terms and conditions of the Commitment Letter and
designating the payment of any indemnification or
the payment of the Commitment
10
Amount and the Reimbursable Expenses payable
thereunder as administrative expenses and
obligations of Intermet, one business day after
execution of the Commitment Letter by Intermet;
(iii) the Bankruptcy Court shall fail to enter the
Approval Order on or before the 14th day following
the filing of the motion seeking entry of the
Approval Order;
(iv) Intermet and the Initial Committed Purchasers
shall fail to agree upon, execute and deliver the
Private Placement Purchase Agreement and the
Cash-Out Purchase Agreement on or before 30 days
after the entry of the Approval Order;
(v) the Company shall fail to amend the Plan and
Disclosure Statement in a manner consistent with
this Commitment Letter, which Plan and Disclosure
Statement, as amended, shall be in form and
substance reasonably satisfactory to the Initial
Committed Purchasers, on or before 5 days after
execution of the Commitment Letter by Intermet;
(vi) the Disclosure Statement or a version thereof that
is not inconsistent with the terms set forth in
the Commitment Letter shall not have been approved
by a final, non-appealable order of the Bankruptcy
Court on or before 24 days after the filing of the
motion seeking the Approval Order,
(vii) the Confirmation Order shall not have been entered
by the Bankruptcy Court within 75 days of the
entry of the Approval Order,
(viii) the Plan shall not have become effective on or
before the 20th day following confirmation of the
Plan;
(ix) there shall be any modification to any provision
of the Plan or the Disclosure Statement that is
inconsistent with the terms and conditions set
forth in the Commitment Letter, without the prior
written consent of the Initial Committed
Purchasers, which consent shall not be
unreasonably withheld, or Intermet shall withdraw,
or file a motion to withdraw, the Plan, except on
terms reasonably acceptable to the Initial
Committed Purchasers;
(x) an event shall have occurred or an order shall
have been entered by the Bankruptcy Court that
shall have the practical effect of preventing
confirmation of the Plan on or before the date
contemplated in clause (vii) above and such order
or event shall not have been vacated or
11
otherwise corrected within 30 days after receipt
of notice from the Initial Committed Purchasers;
(xi) the conversion of one or more of the Chapter 11
Cases to a case under Chapter 7 of the Bankruptcy
Code, unless any such conversion is made with the
prior written consent of the Initial Committed
Purchasers;
(xii) the appointment of a trustee, receiver or examiner
with expanded powers in one or more of the Chapter
11 Cases, unless any such appointment is made with
the prior written consent of the Initial Committed
Purchasers;
(xiii) (A) one or more of the Initial Committed
Purchasers Conditions Precedent shall not have
been satisfied (or waived by the Initial Committed
Purchasers) on or before the Effective Date,
unless such delay is solely due to the fault of
the Initial Committed Purchasers; or (B) one or
more of the Intermet Conditions Precedent shall
not have been satisfied (or waived by the
Intermet) on or before the Effective Date, unless
such delay is solely due to the fault of the
Intermet;
(xiv) 10 days after the receipt of written notice of
termination by Intermet from the Initial Committed
Purchasers that Intermet has failed to perform in
any material respect any of its obligations under
the Commitment Letter and such failure remains
uncured at the conclusion of such ten-day period;
or
(xv) at any time after the occurrence of a Material
Adverse Change. As used herein, the term "Material
Adverse Change" means any change, effect, event,
occurrence, state of facts or development, either
alone or in combination, and either known or
unknown by the Company as of June 21, 2005, that
is materially adverse to the business, financial
condition or results of operation of Intermet and
its subsidiaries, taken as a whole; provided,
however, that in no event shall any change,
effect, event, occurrence, state of facts or
development that is disclosed in Intermet's Annual
Report on Form 10-K for the twelve month period
ended December 31, 2003, or in Intermet's
Quarterly Reports on Form 10-Q for the three-month
periods ended March 31, 2004, June 30,2004 and
September 30, 2004, or on any filing on Form 8-K
made by Intermet prior to June 21, 2005, each in
the form first filed by Intermet with the
Securities and Exchange Commission, or any other
information delivered in writing by the Company to
the Initial Committed Purchasers prior to June 21,
2005, be considered a Material Adverse Change, and
provided further, that in no
12
event shall the prosecution of the Chapter 11
Cases on terms and conditions consistent with the
terms and conditions set forth in the Commitment
Letter be considered a Material Adverse Change.
(xvi) Intermet receives a binding offer with respect to
a financial restructuring that (a) pays the
Company's existing secured creditors in full in
cash, and (b) delivers a dollar recovery to all
Unsecured Holders in excess of the implied dollar
recovery to Unsecured Holders as set forth in the
Disclosure Statement.
REPRESENTATION OF The Initial Committed Purchasers represent to the Debtors
INITIAL COMMITTED that the Initial Committed Purchasers hold, as of the date
PURCHASER of the Commitment Letter, collectively, on behalf of certain
OWNERSHIP: funds and managed accounts, in excess of $58.0 million in
face amount of the Notes. If the Initial Committed
Purchasers, at any time prior to the date on which the Plan
shall be confirmed by the Bankruptcy Court or the
termination of the Commitment Letter, shall fail to hold
collectively, on behalf of such funds and managed accounts,
at least $58 million in face amount of the Notes, the
Initial Committed Purchasers shall promptly deliver written
notice (the "Sell-Down Notice") thereof to Intermet.
So long as Intermet is not in breach of its obligations
under the Commitment Letter, Intermet may terminate the
Commitment Letter at any time within five business days of
its receipt of the Sell-Down Notice by delivering to the
Initial Committed Purchasers written notice (the "Sell-Down
Termination Notice") of such termination. Upon the receipt
of the Sell-Down Termination Notice by the Initial Committed
Purchasers, the Commitment Letter shall terminate and all of
the obligations of the parties thereto (other than the
obligations of Intermet to pay the Reimbursable Expenses and
to satisfy its indemnification obligations thereunder in
accordance with the terms and conditions of the Commitment
Letter) shall be of no further force or effect.
COMMITMENT AMOUNT: In accordance with the terms and conditions of the
Commitment Letter and this Term Sheet, Intermet shall pay
the Initial Committed Purchasers an amount equal to $3.0
million (the "Commitment Amount") on the Effective Date. In
the event that the Commitment Letter is terminated prior to
the Effective Date, the Commitment Amount shall not be
payable. Notwithstanding anything contained herein to the
contrary, in the event that the Commitment Letter is
terminated in accordance herewith prior to the Effective
Date, the Initial Committed Purchasers sole and exclusive
remedy shall be limited to the payment of the Reimbursable
Expenses accrued up until the date of termination and the
Indemnification Obligation (as defined in the Commitment
Letter).
The Initial Committed Purchasers shall have no duties or
obligations under the Commitment Letter, Private Placement
Purchase Agreement
13
or Cash-Out Purchase Agreement, other than those expressly
set forth herein or therein.
Notwithstanding anything contained herein or in the
Commitment Letter to the contrary, the payment of any
amounts due pursuant to the Commitment Letter or this Term
Sheet, including but not limited to the payment of the
Commitment Fee shall be subject to the approval of the
Commitment Letter by the Bankruptcy Court, and such payment
not causing a default under the DIP Credit Facility;
provided, however, if any such payment would cause a default
pursuant to the DIP Credit Facility, the Initial Committed
Purchasers shall have a super-priority administrative
expense claim for such unpaid amount subordinate only to the
claims of the DIP Lenders.
ALTERNATE So long as the 'Commitment Letter has not been previously
APPLICATION OF THE terminated, on the Effective Date, the Initial Committed
COMMITMENT AMOUNT: Purchasers:(i) may purchase up to 300,000 additional shares
of New Common Stock, at a purchase price of $10.00 per
share, by delivering to Reorganized Intermet, by wire
transfer of immediately available funds, cash in an amount
up to the Commitment Amount that the Initial Committed
Purchasers shall have previously received; and (ii) may
apply all or any portion of the Commitment Amount otherwise
payable to the Initial Committed Purchasers toward the
purchase of up to 300,000 additional shares of New Common
Stock at a purchase price of $10.00 per share. Any shares of
New Common Stock purchased by an Initial Committed Purchaser
(collectively, the "Alternate Subscription Shares") pursuant
to this paragraph shall be issued to such Initial Committed
Purchaser on the Effective Date, and the portion of the
Commitment Amount otherwise payable to such Initial
Committed Purchaser shall be correspondingly reduced.
PLAN SUPPORT: Until the termination of the Commitment Letter in accordance
with its terms, the Initial Committed Purchasers agree to
support confirmation of the Plan and agree not to support
any other plan of reorganization with regard to the Company.
14
EXHIBIT A
INTERMET CORPORATION
If the latest calendar month Then the year-to-date
ending at least 25 days 2005 consolidated
prior to the Effective Date EBITDA, excluding
is the month of: administrative fees and
expenses associated
with the Restructuring,
for such calendar
month shall be no less
than:
June 2005 $15,230,000
July 2005 $14,163,000
August 2005 $17,149,000
September 2005 $22,476,000
October 2005 $26,799,000
November 2005 $29,725,000
December 2005 $27,459,000
15
EXHIBIT B
STOCKHOLDERS' AGREEMENT
16
STOCKHOLDERS AGREEMENT
AMONG
INTERMET CORPORATION
AND
THE STOCKHOLDERS SPECIFIED HEREIN
TABLE OF CONTENTS
Page
----
STOCKHOLDERS AGREEMENT among INTERMET CORPORATION and THE
STOCKHOLDERS SPECIFIED HEREIN ............................. 1
TABLE OF CONTENTS ................................................. i
INTERMET CORPORATION STOCKHOLDERS AGREEMENT ....................... 1
Preamble .......................................................... 1
ARTICLE I DEFINITIONS ............................................. 1
1.1 Definitions ...................................... 1
ARTICLE II RESTRICTIONS ON TRANSFER ............................... 3
2.1 Transfers Binding Upon Transferees ............... 3
2.2 Restrictions on Transfer ......................... 3
2.3 Agreement to Become Party; Invalid Transfers ..... 5
2.4 Issuance of New Company Shares ................... 5
2.5 Legends .......................................... 5
ARTICLE III INFORMATION RIGHTS AND CONFIDENTIALITY................. 6
3.1 Information Rights ............................... 6
3.2 Confidentiality .................................. 6
ARTICLE IV MISCELLANEOUS .......................................... 7
4.1 Amendment and Waiver ............................. 7
4.2 Severability ..................................... 7
4.3 Entire Agreement ................................. 7
4.4 Successors and Assigns ........................... 7
4.5 Counterparts .............. ...................... 8
4.6 Remedies ......................................... 8
4.7 Notices .......................................... 8
4.8 Delivery by Facsimile ............................ 8
4.9 Descriptive Headings ............................. 8
4.10 Governing Law .................................... 8
4.11 Submission to Jurisdiction........................ 9
4.12 Agreement Binding and Enforceable ................ 9
i
INTERMET CORPORATION
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of
[Effective Date], among INTERMET Corporation, a Delaware corporation (the
"Company"), each of the holders of the Common Stock (as hereinafter defined), as
set forth on Schedule 1, and each other holder or potential holder of Common
Stock who may be or may become bound by the terms of this Agreement, pursuant to
the provisions of Sections 2.3, 2.4, or 4.12 hereof or otherwise (the
"Stockholders").
PREAMBLE
WHEREAS, pursuant to the Plan (as hereinafter defined), each
Stockholder listed on Schedule I hereto is receiving from the Company, on the
date hereof, the number of shares of Common Stock set forth opposite such
Stockholder's name on Schedule I hereto; and
WHEREAS, pursuant to the Plan, the Company and the Stockholders are
entering into this Agreement to govern certain of their rights relating to the
Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the following meanings:
"Agreement" has the meaning set forth in the first paragraph hereof.
"Beneficial Owner" and "Beneficial Ownership" shall be determined
pursuant to Rules 13d-3 and 13d-5 under the Exchange Act. The term "Beneficially
Owned" shall have a correlative meaning.
"Common Stock" means the Common Stock, $[-] par value per share, of
the Company.
"Company" has the meaning set forth in the first paragraph hereof.
"Company Shares" means any shares of any class or series of capital
stock of the Company (or any securities, options, or warrants convertible into,
or exercisable or exchangeable for, any shares of capital stock of the Company)
held by any Stockholder.
"Effective Date" means the date and time immediately following the
consummation of the Plan.
1
"Exchange Act" means the Securities Exchange Act of 1934, as the
same may be amended from time to time.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Person" has the meaning set forth in Section 2.2.
"Plan" means the Debtors' Plan of Reorganization filed by the
Company with the United States Bankruptcy Court of the Eastern District of
Michigan, Southern District, on June 24, 2005, as amended, modified and
supplemented on or prior to the date hereof.
"Public Offering" means any public offering of Common Stock
registered under the Securities Act.
"R2 Investments" means R2 Investments, LDC and/or one or more of
its related or associated entities.
"Registrant" has the meaning assigned in Rule 12b-2 under the
Exchange Act.
"Securities Act" means the Securities Act of 1933, as the same may
be amended from time to time.
"Stanfield" means Stanfield Capital Partners LLC and/or one or more
of its related or associated entities.
"Stockholders" has the meaning set forth in the Preamble.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (a) if a corporation, capital stock possessing the voting power under
normal circumstances to elect a majority of the directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (b) if a limited liability company, partnership, association or
other business entity, a majority of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more of the other Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of the gains or losses of such limited liability company,
partnership, association or other business entity or shall be or control (or
have the power to control) a managing director, manager or general partner of
such limited liability company, partnership, association or other business
entity.
"Ten Percent Holder" means, the Beneficial Owner of at least 10% of
the outstanding Common Stock on the Effective Date.
2
"Transfer" has the meaning set forth in Section 2.2 of this Agreement. The terms
"Transferee", "Transferor" "Transferred" and other forms of the word "Transfer"
shall have correlative meanings.
ARTICLE II
RESTRICTIONS ON TRANSFER
2.1 TRANSFERS BINDING UPON TRANSFEREES. The terms of this Agreement
shall be binding upon any Transferee of any Company Shares.
2.2 RESTRICTIONS ON TRANSFER. The following restrictions shall apply
to any Transfer of any of the Company Shares:
(a) If an individual, partnership, limited liability company, firm,
company, association, trust, unincorporated organization or other entity, as
well as any syndicate or group deemed to be a person under Section 14(d)(2) of
the Exchange Act (each a "Person"), shall attempt to transfer in any manner
whatsoever, including by way of sale, transfer, assignment, conveyance or other
disposition, including without limitation by merger, operation of law, bequest
or pursuant to any domestic relations order, whether voluntarily or
involuntarily, other than a sale, transfer, assignment, conveyance or other
disposition to the Company, any of the Company Shares (any such transfer or
assignment being a "Transfer"), (provided, however, that a transaction that is a
pledge shall not be deemed a Transfer, but a foreclosure pursuant thereto shall
be deemed to be a Transfer), then such Transfer shall be void and shall not be
recognized by the Company, except as authorized pursuant to this Section 2.2.
(b) The restrictions contained in this Section 2.2 are for the
purpose of ensuring that the Company is not required to become a Registrant
under the Exchange Act due to the number of Stockholders. In connection
therewith, and to provide for the effective policing of these provisions, a
potential transferor or transferee who proposes to effect a Transfer, prior to
the date of the proposed Transfer, must submit a request in writing (a
"Request") that the Company review the proposed Transfer and authorize or not
authorize the proposed Transfer. A Request shall be mailed or delivered to the
attention of the Chief Executive Officer and the General Counsel of the Company
at the Company's principal place of business or telecopied to the Company's
telecopier number at its principal place of business. Such Request shall be
deemed to have been delivered when actually received by the Company. A Request
shall include (i) the name, address and telephone number of the proposed
transferee, (ii) a description of the interest proposed to be Transferred by the
proposed transferee, (iii) the date on which the proposed Transfer is expected
to take place, (iv) the name of the proposed transferor of the interest to be
Transferred, (v) the percentage of the proposed transferor's Company Shares to
be Transferred and (vi) a Request that the Company authorize, if appropriate,
the Transfer and inform the proposed transferor and transferee of its
determination regarding the proposed Transfer. Each such Request shall be
reviewed, on behalf of the Company, by the Company's General Counsel or, if the
Company does not have a General Counsel at the time of such Request, by the
Chief Executive Officer of the Company (such reviewing executive hereinafter
referred to as the "Reviewer"). Subject to subparagraph (c) hereof, the Reviewer
shall conclusively determine whether to authorize or reject the proposed
Transfer, and shall promptly, and in any event within thirty (30) days after
receipt of (i) a properly completed Request and (ii)
3
any additional information the Reviewer may request pursuant to Section 2.2(c),
inform the proposed transferee or transferor making the Request of such
determination.
(c) Notwithstanding anything to the contrary set forth in this
Section 2.2, the Reviewer shall authorize (i) any proposed Transfer by a
Stockholder of the Company to another Stockholder of the Company, and (ii) any
proposed Transfer of all of the Company Shares owned by the proposed transferor
to a Person who is treated as a single record holder under the Exchange Act. The
Reviewer shall reject any proposed Transfer that the Reviewer determines in good
faith could cause the Company to be required to become a Registrant under the
Exchange Act due to the number of Stockholders. For the avoidance of doubt, the
Reviewer shall address requests for Transfers contemplated in the order in which
the Requests are received. In deciding whether to approve any proposed Transfer,
the Reviewer may seek the advice of outside counsel to the Company and may
request all relevant additional information from the proposed Transferor and/or
the Transferee necessary to make her or his determination. The Reviewer may rely
in good faith upon any advice so provided and on information provided in the
Request or pursuant to this Section 2.2(c).
(d) Any Transfer attempted to be made in violation of this Section
2.2 will be null and void. The proposed transferee shall not be entitled to any
rights of stockholders of the Company, including, but not limited to, the rights
to vote or to receive dividends and liquidating distributions, with respect to
the Company Shares that were the subject of such attempted Transfer.
(e) In addition to any remedies available to the Company under
applicable law or in equity, after learning of a Transfer not in compliance with
this Section 2.2, the Company shall demand the immediate surrender, or cause to
be immediately surrendered, to the Company, all certificates representing the
Company Shares that were the subject of such attempted transfer, or any proceeds
received upon a sale of such Company Shares, and any dividends or other
distributions made after such noncompliant transfer with respect to such Company
Shares, if any. Any such surrendered certificates shall be destroyed. If any
such certificates are not immediately surrendered, the Company shall cancel such
certificates, or cause such certificates to be cancelled, on the stock transfer
records and other records of the Company. Any shares attempted to be transferred
pursuant to a destroyed or cancelled certificate shall continue to be registered
in the name of the purported Transferor. Nothing in this subparagraph (e) shall
be deemed inconsistent with the Transfer of such securities being deemed null
and void pursuant to subparagraph (d) hereof.
(f) The Company may require, as a condition precedent to the
registration of the Transfer of any of the Company Shares or the payment of any
distribution on any of the Company Shares, that the proposed transferor and
transferee or payee furnish to the Company all information reasonably requested
by the Company with respect to all the direct or indirect ownership interests in
such Company Shares. The Company may make such arrangements or issue such
instructions to its stock transfer agent as may be determined by the Chief
Executive Officer under the direction of the Board of Directors to be necessary
or advisable to implement this Section 2.2, including, without limitation,
instructing the transfer agent not to register any Transfer of Company Shares on
the Company's stock transfer records if it has knowledge that such Transfer is
prohibited by this Section 2.2. and/or authorizing such transfer agent to
require
4
an affidavit from a transferee or transferor regarding such Person's ownership
of Company Shares and other evidence that a Transfer will not be prohibited by
this Section 2.2, as a condition to registering any Transfer.
(g) Nothing contained in this Section 2.2 shall limit the authority
of the Company, its executive officers or the Board of Directors to take such
other action to the extent permitted by law as it deems necessary or advisable
to ensure that the Company is not required to become a Registrant under the
Exchange Act due to the number of Stockholders.
(h) The provisions of this Section 2.2 shall terminate upon the
earliest of (i) any Public Offering of Common Stock, (ii) the filing by the
Company of a registration statement pursuant to Section 12(g) of the Exchange
Act, and (iii) such time as the Board of Directors determines that the
provisions of this Section 2.2 are no longer necessary for the preservation of
the Company's status as a non-reporting company under the Exchange Act.
(i) This Section 2.2 shall not apply to the Transfer of any Common
Stock offered and sold by a Stockholder in conjunction with a Public Offering.
Upon completion of a Public Offering, the holder of any certificate representing
any Common Stock offered or sold in conjunction with such Public Offering shall
be entitled to receive from the Company, without expense, new securities of like
tenor not bearing either of the legends required under Section 2.5.
2.3 AGREEMENT TO BECOME PARTY; INVALID TRANSFERS. No Stockholder may
Transfer any Company Shares unless, prior to the consummation thereof, such
Stockholder delivers to the Company a counterpart or joinder of this Agreement
executed by the Transferee of such Company Shares.
2.4 ISSUANCE OF NEW COMPANY SHARES. Prior to any issuance of Company
Shares (other than pursuant to a Public Offering) to any Person who is not
already a Stockholder, the Company shall cause such Person to execute and agree
to deliver to the Company a counterpart or joinder of this Agreement.
2.5 LEGENDS. (a) Each certificate evidencing Company Shares subject
to the terms hereof and each certificate issued in exchange for or upon the
Transfer of any such Company Shares shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND OTHER OBLIGATIONS SET FORTH IN
THE STOCKHOLDERS AGREEMENT, DATED AS OF [-], 2005, AS THE SAME MAY
BE AMENDED OR MODIFIED FROM TIME TO TIME, AMONG THE ISSUER OF THESE
SECURITIES (THE "COMPANY") AND ITS STOCKHOLDERS. A COPY OF SUCH
STOCKHOLDERS AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
5
Subject to the prior approval of the Board of Directors, the holder of any
certificate representing Company Shares and bearing such legend shall be
entitled to receive from the Company, without expense, new securities of like
tenor not bearing the legend set forth above.
(b) In addition, each certificate evidencing Company Shares issued to a Ten
Percent Holder shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT
BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED
OR QUALIFIED UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED."
A holder of a certificate representing shares of Company Shares and bearing such
legend shall be entitled to have a new certificate issued without such legend
upon delivery to the Company of an opinion of counsel reasonably acceptable to
the Company to the effect that such legend is no longer required to ensure
compliance with the Securities Act.
ARTICLE III
INFORMATION RIGHTS AND CONFIDENTIALITY
3.1 INFORMATION RIGHTS. After the end of each fiscal year, the
Company shall provide to each Stockholder that shall request such information in
writing (so long as such information may be provided by the Company without
unreasonable effort or expense), an audited balance sheet of the Company as of
the end of such fiscal year, and an audited statement of income and statement of
cash flows of the Company for such year, in each case prepared in accordance
with generally accepted accounting principles and setting forth in comparative
form the figures for the previous fiscal year, all in reasonable detail, and
audited by the Company's independent public accountants.
3.2 CONFIDENTIALITY. Each Stockholder agrees to use commercially
reasonable efforts (equivalent to the efforts such Stockholder applies to
maintaining the confidentiality of its own confidential information) to maintain
as confidential all information regarding the Company and its business provided
to such Stockholder by the Company pursuant to Section 3.1 or otherwise for a
period of two years following receipt thereof, except that such Stockholder may
disclose such information: (a) to its authorized representatives, so long as
such authorized representatives have agreed in writing to comply with the
covenant contained in this Section 3.2; (b) in connection with any Transfer or
proposed Transfer to any bona fide proposed Transferee that has agreed in
writing to comply with the covenant contained in this Section 3.2 (and any such
bona fide proposed Transferee may disclose such information to its authorized
representatives, so long as such authorized representatives have agreed in
writing to comply with
6
the covenant contained in this Section 3.2); (c) as required or requested by any
governmental authority or compelled by any court decree, subpoena or legal or
administrative order or process; (d) in connection with the exercise of any
right or remedy under this Agreement or in connection with any action, claim,
lawsuit, demand, investigation or proceeding to which such Stockholder is a
party before any governmental authority or before any arbitrator or panel of
arbitrators; or (e) that ceases to be confidential through no fault of such
Stockholder.
ARTICLE IV
MISCELLANEOUS
4.1 AMENDMENT AND WAIVER. This Agreement may only be modified or
amended, and the provisions hereof may be waived, by an instrument in writing
signed by the Company and approved by the Board of Directors, provided, however,
that: (a) any amendment, modification or waiver that would adversely affect the
rights or obligations of all Stockholders under Sections 2.2 and 3.1 hereof
shall not be effective without the prior written consent of the holders of at
least 66.6% of all shares of Common Stock then issued and outstanding; (b) any
amendment, modification and waiver that would adversely affect the rights or
obligations of any Stockholder, in its capacity as a Stockholder, without
similarly affecting the rights or obligations hereunder of all Stockholders,
shall not be effective as to such Stockholder without its prior written consent;
and (c) the Company may automatically amend Schedule 1 hereto and may distribute
such amended Schedule 1 to each of the Stockholders upon any change in any
Stockholder's information thereon, such as a change in the Stockholder's notice
information or a change required as a result of a Transfer of Common Stock by a
Stockholder in accordance with this Agreement, or a change required as a result
of the addition of additional Stockholders in accordance with Section 2.3 or
Section 2.4. Any waiver of any provision of this Agreement must be granted in
writing by the party granting such waiver.
4.2 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction, but this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
4.3 ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
4.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and permitted assigns and the Stockholders and their
respective successors and permitted assigns, subject to the restrictions on
transfer set forth herein.
7
4.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
4.6 REMEDIES. The Company and the other Stockholders shall be
entitled to enforce their rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages would not be an adequate remedy for any breach of
the provisions of this Agreement and that the Company and any Stockholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
4.7 NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the Schedule 1 hereto and to any
subsequent holder of Company Shares subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices shall be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
INTERMET Corporation
5445 Corporate Drive
Suite 200
Troy, Michigan 48098
Attn: Chief Executive Officer and General Counsel
4.8 DELIVERY BY FACSIMILE. This Agreement, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto, each other party hereto
shall reexecute original forms thereof and deliver them to all other parties. No
party hereto shall raise the use of a facsimile machine to deliver a signature
or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
4.9 DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
4.10 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware. In
furtherance of the foregoing, the internal law of the State of Delaware shall
control the
8
interpretation and construction of this Agreement, even though under that
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
4.11 SUBMISSION TO JURISDICTION. The Company and each Stockholder
hereby irrevocably submit to any suit, action or proceeding arising out of or
related to this Agreement to the exclusive jurisdiction of any court of the
State of Delaware located in Wilmington and waive any and all objections to
jurisdiction that they may have under the laws of the State of Delaware or the
United States and any claim or objection that any such court is an inconvenient
forum.
4.12 AGREEMENT BINDING AND ENFORCEABLE. This Agreement shall be
binding on and enforceable by each holder of Common Stock that shall receive
such Common Stock pursuant to the terms of the Plan, to the same extent and with
the same effect as if such holder shall have executed and delivered this
Agreement as of the date hereof, irrespective of whether; (a) such holder is a
signatory hereto; (b) such holder's name is set forth on Schedule 1 hereto; and
(c) such holder shall receive the certificate or certificates evidencing such
Common Stock on or after the Effective Date. Upon the written request of the
Company, each holder of Common Stock that is not a signatory to this Agreement
agrees to execute and deliver to the Company a counterpart or joinder to this
Agreement.
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
INTERMET CORPORATION
By: _______________________________
Name:
Title:
[Name of Stockholder]
By: _______________________________
Name: _________________________
Title: ________________________
[Name of Stockholder]
By: _______________________________
Name: _________________________
Title: ________________________
[Name of Stockholder]
By: _______________________________
Name: _________________________
Title: ________________________
[Name of Stockholder]
By: _______________________________
Name: _________________________
Title: ________________________
[Signature Pages to Stockholders Agreement]
10
SCHEDULE 1
STOCKHOLDERS
NAME AND ADDRESS OF SHARES OF COMMON
STOCKHOLDER STOCK
- ------------------- ----------------
ANNEX "B"
Summary of the Terms and Conditions
of the Registration Rights Agreement
The Registration Rights Agreement shall provide, among other things, that:
(i) within sixty days after the date on which Reorganized Intermet shall
receive a written request, signed by either of the Initial Committed Purchasers,
pursuant to which such Initial Committed Purchaser shall request that
Reorganized Intermet register the resale of the shares of New Common Stock held
by such Initial Committed Purchaser under the Securities Act of 1933, as amended
(the "Securities Act"), Reorganized Intermet shall prepare and file, and shall
use its reasonable best efforts to have declared effective within sixty days
thereafter, a registration statement under the Securities Act for the offering
on a continuous basis pursuant to Rule 415 of the Securities Act, of the shares
of New Common Stock held by such Initial Committed Purchaser (the "Shelf
Registration"); and
(ii) Reorganized Intermet shall keep the Shelf Registration effective for
a period ending on the earlier of (a) the date that is the two-year anniversary
of the date upon which such registration statement is declared effective by the
Securities and Exchange Commission (the "SEC"), (b) the date such Registrable
Securities have been disposed of pursuant to an effective registration
statement, (c) the date such Registrable Securities have been disposed of (1)
pursuant to and in accordance with SEC Rule 144 (or any similar provision then
in force) under the Securities Act or (2) pursuant to another exemption from the
registration requirements of the Securities Act pursuant to which the
Registrable Securities are thereafter freely tradeable without restriction under
the Securities Act, (d) the date such Registrable Securities may be disposed of
pursuant to SEC Rule 144 (or any similar provision then in force) within the
volume limitations thereunder within a 90 day period or pursuant to SEC Rule
144(k) (or any similar provision then in force) under the Securities Act or (e)
such Registrable Securities cease to be outstanding.
The Registration Rights Agreement shall include such other provisions,
including provisions relating to indemnification and contribution and the
payment by Reorganized Intermet of the fees and expenses incurred by the Initial
Committed Purchasers, customarily included in registration rights agreements
entered into in connection with similar financings.
The Registration Rights Agreement shall also provide that any person
holding more than 10% of the outstanding New Common Stock on the Effective Date
shall be entitled to piggy-back registration rights.
ANNEX "C"
Key Employee Rights Offering
NUMBER OF SHARES OF NEW
NAME OF KEY EMPLOYEE COMMON STOCK
- ----------------------------------------------- -----------------------
Those persons who upon consummation of the Plan, 181,249*
shall be entitled to receive stay bonuses under
the Intermet Amended and Restated Employee
Retention Plan, dated effective September 20,
2004 and restated December 8, 2004 and are
classified as Tier I Participants or Tier II
Participants
* To the extent that the KERP Shares exercised by TIER I participants plus the
KERP Shares exercised by the TIER II participants is less than 181,249, such
TIER I participants and such TIER II participants may purchase the KERP Shares
that have not otherwise been exercised on a pro rata basis based upon the KERP
payment which would otherwise be due to such participant. In no event will more
than 181,249 shares be issued.
EXHIBIT B
DISTRIBUTION SCHEDULE
DISTRIBUTION SCHEDULE
($)
Cash per Shares $/Share Rights per $/right Recovery
Debtor $1000 Claim $1000 Claim Per Valuation $1000 Claim Per Valuation as a % of Claim
- ------------------------------------- ----------- ----------- ------------- ----------- ------------- ---------------
Intermet Corporation(c) $ 0.00 4.09 $ 16.91 12.28 $ 6.91 15.4%
Columbus Foundry, L.P. 0.00 4.00 16.91 12.00 6.91 15.1%
Diversified Diemakers, Inc. 0.00 3.13 16.91 9.39 6.91 11.8%
Tool Products, Inc. 0.00 3.00 16.91 9.00 6.91 11.3%
Northern Castings Corporation 0.00 2.94 16.91 8.83 6.91 11.1%
Cast-Matic Corporation 0.00 2.90 16.91 8.70 6.91 10.9%
Intermet U.S. Holding, Inc. 0.00 2.75 16.91 8.24 6.91 10.3%
Ganton Technologies, Inc. 0.00 2.67 16.91 8.00 6.91 10.0%
Lynchburg Foundry Company 0.00 2.63 16.91 7.90 6.91 9.9%
Sudbury, Inc. 0.00 2.62 16.91 7.86 6.91 9.9%
Wagner Havana, Inc. 0.00 2.62 16.91 7.86 6.91 9.9%
Intermet Illinois, Inc. 0.00 2.61 16.91 7.84 6.91 9.8%
Ironton Iron, Inc. 0.00 2.61 16.91 7.84 6.91 9.8%
Wagner Castings Company (d) 0.00 2.61 16.91 7.84 6.91 9.8%
SUDM, Inc. 0.00 2.61 16.91 7.84 6.91 9.8%
Alexander City castings Company, Inc. 0.00 2.61 16.91 7.84 6.91 9.8%
Intermet International 0.00 N/A 16.91 N/A 6.91 100.0%
Intermet Holding Company 0.00 N/A 16.91 N/A 6.91 N/A
Intermet et.al.(e) 0.00 4.09 16.91 12.28 6.91 15.4%
Noteholders 12.71 $ 16.91 38.12 $ 6.91 47.8%
($)
Cash Inducement Convenience
Recovery Inducement Class Recovery Convenience
Debtor as a % of Claim Cash Pool(a) as a % of Claim Cash Pool(b)
- ------------------------------------- --------------- --------------- --------------- ------------
Intermet Corporation(c) 16.2% $ l,501,901 16.2% $ 488.681
Columbus Foundry, L.P. 15.8% 1,499,723 15.8% 594,047
Diversified Diemakers, Inc. 12.4% 416,418 12.4% 350,337
Tool Products, Inc. 11.9% 737,597 11.9% 367,900
Northern Castings Corporation 11.7% 180,772 11.7% 130,258
Cast-Matic Corporation 11.5% 375,002 11.5% 134,304
Intermet U.S. Holding, Inc. 10.9% 648,143 10.9% 257,093
Ganton Technologies, Inc. 10.6% 748,563 10.6% 468,922
Lynchburg Foundry Company 10.4% 981,416 10.4% 309,212
Sudbury, Inc. 10.4% 297,963 10.4% 711
Wagner Havana, Inc. 10.4% 149,176 10.4% 26,236
Intermet Illinois, Inc. 10.4% 144,935 10.4% 36
Ironton Iron, Inc. 10.4% 290,373 10.4% 261
Wagner Castings Company (d) 10.4% 481,277 10.4% 305,438
SUDM, Inc. N/A N/A N/A N/A
Alexander City castings Company, Inc. N/A N/A N/A N/A
Intermet International N/A N/A 100.0% 14,000
Intermet Holding Company N/A N/A N/A N/A
Internet et.al.(e) 16.2% 38,205 16.2% 61,103
--------------- ------------
$ 8,491,464 $ 3,508,536
Noteholders N/A N/A N/A N/A
Note: The allocation of shares and rights set forth above reflects current
estimates of claims at each Debtor. Actual distributions may be higher or lower
based on the resolution of disputed claims and actual allowed claims at each
Debtor.
Note: To the extent general unsecured creditors elect to receive shares and
rights in lieu of the Cash Inducement, the Reorganized Company's equity value
per share will increase.
Note: Claims are estimated based on data from Administar as of June 2, 2005.
Note: This distribution schedule assumes and incorporates the settlement of
substantive consolidation issues described in Section VIII.A.4 of the Disclosure
Statement. In particular, this distribution schedule reflects the additional
$6.7 million in value that bondholders are providing to non-bondholder general
unsecured claimants, pursuant to the settlement, as compared to the value that
would have been distributed to such claimants in deconsolidated plans.
(a) If outstanding allowed claims increase or decrease, claimants' recovery may
be higher or lower than indicated, provided that the Inducement Cash Pool may he
supplemented by proceeds from the purchase of Inducement Cash-Out Shares under
the Cash Out Purchase Agreement to the extent that the bondholders elect this
treatment under the Plan.
(b) If outstanding allowed claims increase or decrease, claimants' recovery may
be higher or lower than indicated, provided that the Convenience Cash-Out Shares
may be supplemented by proceeds from the purchase of shares under the Cash Out
Purchase Agreement to the extent that the bondholders elect this treatment under
the Plan.
(c) Recoveries reflect the equity value of Intermet International, the holding
company for Intermet's European operation. Assumes net debt of zero at Intermet
International.
(d) Recovery analyses for Wagner Castings Company, Inc. reflect no retiree
medical claims. Proposed percentage recoveries available under the Plan of
Reorganization to general unsecured creditors and convenience class claimants at
the entity will be adjusted downward based on the wing of any such claims in the
future.
(e) These claims are assumed to have only a single obligor; this presentation
assumes these claims receive treatment equal to the most favorable recovery of
claimants at any of the Debtors (i.e., Intermet Corp.).
EXHIBIT C
PRIVATE PLACEMENT PURCHASE AGREEMENT
EXHIBIT D
CASH-OUT PURCHASE AGREEMENT
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
EXHIBIT F
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS AGREEMENT
AMONG
INTERMET CORPORATION
AND
THE STOCKHOLDERS SPECIFIED HEREIN
TABLE OF CONTENTS
Page
----
STOCKHOLDERS AGREEMENT among INTERMET CORPORATION and THE
STOCKHOLDERS SPECIFIED HEREIN................................. 1
TABLE OF CONTENTS..................................................... i
INTERMET CORPORATION STOCKHOLDERS AGREEMENT........................... 1
Preamble.............................................................. 1
ARTICLE I DEFINITIONS................................................. 1
1.1 Definitions........................................... 1
ARTICLE II RESTRICTIONS ON TRANSFER................................... 3
2.1 Transfers Binding Upon Transferees.................... 3
2.2 Restrictions on Transfer.............................. 3
2.3 Agreement to Become Party; Invalid Transfers.......... 5
2.4 Issuance of New Company Shares........................ 5
2.5 Legends............................................... 5
ARTICLE III INFORMATION RIGHTS AND CONFIDENTIALITY.................... 6
3.1 Information Rights.................................... 6
3.2 Confidentiality....................................... 6
ARTICLE IV MISCELLANEOUS.............................................. 7
4.1 Amendment and Waiver.................................. 7
4.2 Severability.......................................... 7
4.3 Entire Agreement...................................... 7
4.4 Successors and Assigns................................ 7
4.5 Counterparts.......................................... 8
4.6 Remedies.............................................. 8
4.7 Notices............................................... 8
4.8 Delivery by Facsimile................................. 8
4.9 Descriptive Headings.................................. 8
4.10 Governing Law......................................... 8
4.11 Submission to Jurisdiction............................ 9
4.12 Agreement Binding and Enforceable..................... 9
i
INTERMET CORPORATION
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of
[EFFECTIVE DATE], among INTERMET Corporation, a Delaware corporation (the
"Company"), each of the holders of the Common Stock (as hereinafter defined), as
set forth on Schedule 1, and each other holder or potential holder of Common
Stock who may be or may become bound by the terms of this Agreement, pursuant to
the provisions of Sections 2.3, 2.4, or 4.12 hereof or otherwise (the
"Stockholders").
PREAMBLE
WHEREAS, pursuant to the Plan (as hereinafter defined), each
Stockholder listed on Schedule I hereto is receiving from the Company, on the
date hereof, the number of shares of Common Stock set forth opposite such
Stockholder's name on Schedule I hereto; and
WHEREAS, pursuant to the Plan, the Company and the Stockholders are
entering into this Agreement to govern certain of their rights relating to the
Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the following meanings:
"Agreement" has the meaning set forth in the first paragraph hereof.
"Beneficial Owner" and "Beneficial Ownership" shall be determined
pursuant to Rules 13d-3 and 13d-5 under the Exchange Act. The term "Beneficially
Owned" shall have a correlative meaning.
"Common Stock" means the Common Stock, $[-] par value per share, of
the Company.
"Company" has the meaning set forth in the first paragraph hereof.
"Company Shares" means any shares of any class or series of capital
stock of the Company (or any securities, options, or warrants convertible into,
or exercisable or exchangeable for, any shares of capital stock of the Company)
held by any Stockholder.
"Effective Date" means the date and time immediately following the
consummation of the Plan.
1
"Exchange Act" means the Securities Exchange Act of 1934, as the
same may be amended from time to time.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Person" has the meaning set forth in Section 2.2.
"Plan" means the Debtors' Plan of Reorganization filed by the
Company with the United States Bankruptcy Court of the Eastern District of
Michigan, Southern District, on June 24, 2005, as amended, modified and
supplemented on or prior to the date hereof.
"Public Offering" means any public offering of Common Stock
registered under the Securities Act.
"R2 Investments" means R2 Investments, LDC and/or one or more of
its related or associated entities.
"Registrant" has the meaning assigned in Rule 12b-2 under the
Exchange Act.
"Securities Act" means the Securities Act of 1933, as the same may
be amended from time to time.
"Stanfield" means Stanfield Capital Partners LLC and/or one or more
of its related or associated entities.
"Stockholders" has the meaning set forth in the Preamble.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (a) if a corporation, capital stock possessing the voting power under
normal circumstances to elect a majority of the directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; or (b) if a limited liability company, partnership, association or
other business entity, a majority of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more of the other Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of the gains or losses of such limited liability company,
partnership, association or other business entity or shall be or control (or
have the power to control) a managing director, manager or general partner of
such limited liability company, partnership, association or other business
entity.
"Ten Percent Holder" means, the Beneficial Owner of at least 10% of
the outstanding Common Stock on the Effective Date.
2
"Transfer" has the meaning set forth in Section 2.2 of this Agreement. The terms
"Transferee", "Transferor" "Transferred" and other forms of the word "Transfer"
shall have correlative meanings.
ARTICLE II
RESTRICTIONS ON TRANSFER
2.1 TRANSFERS BINDING UPON TRANSFEREES. The terms of this Agreement
shall be binding upon any Transferee of any Company Shares.
2.2 RESTRICTIONS ON TRANSFER. The following restrictions shall apply
to any Transfer of any of the Company Shares:
(a) If an individual, partnership, limited liability company, firm,
company, association, trust, unincorporated organization or other entity, as
well as any syndicate or group deemed to be a person under Section 14(d)(2) of
the Exchange Act (each a "Person"'), shall attempt to transfer in any manner
whatsoever, including by way of sale, transfer, assignment, conveyance or other
disposition, including without limitation by merger, operation of law, bequest
or pursuant to any domestic relations order, whether voluntarily or
involuntarily, other than a sale, transfer, assignment, conveyance or other
disposition to the Company, any of the Company Shares (any such transfer or
assignment being a "Transfer"), (provided, however, that a transaction that is a
pledge shall not be deemed a Transfer, but a foreclosure pursuant thereto shall
be deemed to be a Transfer), then such Transfer shall be void and shall not be
recognized by the Company, except as authorized pursuant to this Section 2.2.
(b) The restrictions contained in this Section 2.2 are for the
purpose of ensuring that the Company is not required to become a Registrant
under the Exchange Act due to the number of Stockholders. In connection
therewith, and to provide for the effective policing of these provisions, a
potential transferor or transferee who proposes to effect a Transfer, prior to
the date of the proposed Transfer, must submit a request in writing (a
"Request") that the Company review the proposed Transfer and authorize or not
authorize the proposed Transfer. A Request shall be mailed or delivered to the
attention of the Chief Executive Officer and the General Counsel of the Company
at the Company's principal place of business or telecopied to the Company's
telecopier number at its principal place of business. Such Request shall be
deemed to have been delivered when actually received by the Company. A Request
shall include (i) the name, address and telephone number of the proposed
transferee, (ii) a description of the interest proposed to be Transferred by the
proposed transferee, (iii) the date on which the proposed Transfer is expected
to take place, (iv) the name of the proposed transferor of the interest to be
Transferred, (v) the percentage of the proposed transferor's Company Shares to
be Transferred and (vi) a Request that the Company authorize, if appropriate,
the Transfer and inform the proposed transferor and transferee of its
determination regarding the proposed Transfer. Each such Request shall be
reviewed, on behalf of the Company, by the Company's General Counsel or, if the
Company does not have a General Counsel at the time of such Request, by the
Chief Executive Officer of the Company (such reviewing executive hereinafter
referred to as the "Reviewer"). Subject to subparagraph (c) hereof, the Reviewer
shall conclusively determine whether to authorize or reject the proposed
Transfer, and shall promptly, and in any event within thirty (30) days after
receipt of (i) a properly completed Request and (ii)
3
any additional information the Reviewer may request pursuant to Section 2.2(c),
inform the proposed transferee or transferor making the Request of such
determination.
(c) Notwithstanding anything to the contrary set forth in this
Section 2.2, the Reviewer shall authorize, within twenty (20) days after receipt
of a Request and any additional information the Reviewer may request pursuant to
this Section 2.2(c): (i) any proposed Transfer by a Stockholder of the Company
to another Stockholder of the Company; and (ii) any proposed Transfer of all of
the Company Shares owned by the proposed transferor to a Person who is treated
as a single record holder under the Exchange Act. The Reviewer shall reject any
proposed Transfer that the Reviewer determines in good faith could cause the
Company to be required to become a Registrant under the Exchange Act due to the
number of Stockholders. For the avoidance of doubt, the Reviewer shall address
requests for Transfers contemplated in the order in which the Requests are
received. In deciding whether to approve any proposed Transfer, the Reviewer may
seek the advice of outside counsel to the Company and may request all relevant
additional information from the proposed Transferor and/or the Transferee
necessary to make her or his determination. The Reviewer may rely in good faith
upon any advice so provided and on information provided in the Request or
pursuant to this Section 2.2(c).
(d) Any Transfer attempted to be made in violation of this Section
2.2 will be null and void. The proposed transferee shall not be entitled to any
rights of stockholders of the Company, including, but not limited to, the rights
to vote or to receive dividends and liquidating distributions, with respect to
the Company Shares that were the subject of such attempted Transfer.
(e) In addition to any remedies available to the Company under
applicable law or in equity, after learning of a Transfer not in compliance with
this Section 2.2 the Company shall demand the immediate surrender, or cause to
be immediately surrendered, to the Company, all certificates representing the
Company Shares that were the subject of such attempted transfer, or any proceeds
received upon a sale of such Company Shares, and any dividends or other
distributions made after such noncompliant transfer with respect to such Company
Shares, if any. Any such surrendered certificates shall be destroyed. If any
such certificates are not immediately surrendered, the Company shall cancel such
certificates, or cause such certificates to be cancelled, on the stock transfer
records and other records of the Company. Any shares attempted to be transferred
pursuant to a destroyed or cancelled certificate shall continue to be registered
in the name of the purported Transferor. Nothing in this subparagraph (e) shall
be deemed inconsistent with the Transfer of such securities being deemed null
and void pursuant to subparagraph (d) hereof.
(f) The Company may require, as a condition precedent to the
registration of the Transfer of any of the Company Shares or the payment of any
distribution on any of the Company Shares, that the proposed transferor and
transferee or payee furnish to the Company all information reasonably requested
by the Company with respect to all the direct or indirect ownership interests in
such Company Shares. The Company may make such arrangements or issue such
instructions to its stock transfer agent as may be determined by the Chief
Executive Officer under the direction of the Board of Directors to be necessary
or advisable to implement this Section 2.2, including, without limitation,
instructing the transfer agent not to register any Transfer of Company Shares on
the Company's stock transfer records if it has knowledge that
4
such Transfer is prohibited by this Section 2.2, and/or authorizing such
transfer agent to require an affidavit from a transferee or transferor regarding
such Person's ownership of Company Shares and other evidence that a Transfer
will not be prohibited by this Section 2.2, as a condition to registering any
Transfer.
(g) Nothing contained in this Section 2.2 shall limit the authority
of the Company, its executive officers or the Board of Directors to take such
other action to the extent permitted by law as it deems necessary or advisable
to ensure that the Company is not required to become a Registrant under the
Exchange Act due to the number of Stockholders.
(h) The provisions of this Section 2.2 shall terminate upon the
earliest of (i) any Public Offering of Common Stock, (ii) the filing by the
Company of a registration statement pursuant to Section 12(g) of the Exchange
Act, and (iii) such time as the Board of Directors determines that the
provisions of this Section 2.2 are no longer necessary for the preservation of
the Company's status as a non-reporting company under the Exchange Act.
(i) This Section 2.2 shall not apply to the Transfer of any Common
Stock offered and sold by a Stockholder in conjunction with a Public Offering.
Upon completion of a Public Offering, the holder of any certificate representing
any Common Stock offered or sold in conjunction with such Public Offering shall
be entitled to receive from the Company, without expense, new securities of like
tenor not bearing either of the legends required under Section 2.5.
2.3 AGREEMENT TO BECOME PARTY; INVALID TRANSFERS. No Stockholder may
Transfer any Company Shares unless, prior to the consummation thereof, such
Stockholder delivers to the Company a counterpart or joinder of this Agreement
executed by the Transferee of such Company Shares.
2.4 ISSUANCE OF NEW COMPANY SHARES. Prior to any issuance of Company
Shares (other than pursuant to a Public Offering) to any Person who is not
already a Stockholder, the Company shall cause such Person to execute and agree
to deliver to the Company a counterpart or joinder of this Agreement.
2.5 LEGENDS. (a) Each certificate evidencing Company Shares subject
to the terms hereof and each certificate issued in exchange for or upon the
Transfer of any such Company Shares shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND OTHER OBLIGATIONS SET FORTH IN
THE STOCKHOLDERS AGREEMENT, DATED AS OF [-], 2005, AS THE SAME MAY
BE AMENDED OR MODIFIED FROM TIME TO TIME, AMONG THE ISSUER OF THESE
SECURITIES (THE "COMPANY") AND ITS STOCKHOLDERS. A COPY OF SUCH
STOCKHOLDERS AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE
5
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
Subject to the prior approval of the Board of Directors, the holder of any
certificate representing Company Shares and bearing such legend shall be
entitled to receive from the Company, without expense, new securities of like
tenor not bearing the legend set forth above.
(b) In addition, each certificate evidencing Company Shares issued to a Ten
Percent Holder shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT
BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS REGISTERED
OR QUALIFIED UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED."
A holder of a certificate representing shares of Company Shares and bearing such
legend shall be entitled to have a new certificate issued without such legend
upon delivery to the Company of an opinion of counsel reasonably acceptable to
the Company to the effect that such legend is no longer required to ensure
compliance with the Securities Act.
ARTICLE III
INFORMATION RIGHTS AND CONFIDENTIALITY
3.1 INFORMATION RIGHTS. After the end of each fiscal year, the
Company shall provide to each Stockholder that shall request such information in
writing (so long as such information may be provided by the Company without
unreasonable effort or expense), an audited balance sheet of the Company as of
the end of such fiscal year, and an audited statement of income and statement of
cash flows of the Company for such year, in each case prepared in accordance
with generally accepted accounting principles and setting forth in comparative
form the figures for the previous fiscal year, all in reasonable detail, and
audited by the Company's independent public accountants.
3.2 CONFIDENTIALITY. Each Stockholder agrees to use commercially
reasonable efforts (equivalent to the efforts such Stockholder applies to
maintaining the confidentiality of its own confidential information) to maintain
as confidential all information regarding the Company and its business provided
to such Stockholder by the Company pursuant to Section 3.1 or otherwise for a
period of two years following receipt thereof, except that such Stockholder may
disclose such information: (a) to its authorized representatives, so long as
such authorized representatives have agreed in writing to comply with the
covenant contained in this Section 3.2 (b) in connection with any Transfer or
proposed Transfer to any bona fide proposed Transferee
6
that has agreed in writing to comply with the covenant contained in this Section
3.2 (and any such bona fide proposed Transferee may disclose such information to
its authorized representatives, so long as such authorized representatives have
agreed in writing to comply with the covenant contained in this Section 3.2)
(c) as required or requested by any governmental authority or compelled by any
court decree, subpoena or legal or administrative order or process; (d) in
connection with the exercise of any right or remedy under this Agreement or in
connection with any action, claim, lawsuit, demand, investigation or proceeding
to which such Stockholder is a party before any governmental authority or before
any arbitrator or panel of arbitrators; or (e) that ceases to be confidential
through no fault of such Stockholder.
ARTICLE IV
MISCELLANEOUS
4.1 AMENDMENT AND WAIVER. This Agreement may only be modified or
amended, and the provisions hereof may be waived, by an instrument in writing
signed by the Company and approved by the Board of Directors, provided, however,
that: (a) any amendment, modification or waiver that would adversely affect the
rights or obligations of all Stockholders under Sections 2.2 and 3.1 hereof
shall not be effective without the prior written consent of the holders of at
least 66.6% of all shares of Common Stock then issued and outstanding; (b) any
amendment, modification and waiver that would adversely affect the rights or
obligations of any Stockholder, in its capacity as a Stockholder, without
similarly affecting the rights or obligations hereunder of all Stockholders,
shall not be effective as to such Stockholder without its prior written consent;
and (c) the Company may automatically amend Schedule 1 hereto and may distribute
such amended Schedule 1 to each of the Stockholders upon any change in any
Stockholder's information thereon, such as a change in the Stockholder's notice
information or a change required as a result of a Transfer of Common Stock by a
Stockholder in accordance with this Agreement, or a change required as a result
of the addition of additional Stockholders in accordance with Section 2.3 or
Section 2.4. Any waiver of any provision of this Agreement must be granted in
writing by the party granting such waiver.
4.2 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction, but this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
4.3 ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
4.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its
7
successors and permitted assigns and the Stockholders and their respective
successors and permitted assigns, subject to the restrictions on transfer set
forth herein.
4.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
4.6 REMEDIES. The Company and the other Stockholders shall be
entitled to enforce their rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages would not be an adequate remedy for any breach of
the provisions of this Agreement and that the Company and any Stockholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
4.7 NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the Schedule 1 hereto and to any
subsequent holder of Company Shares subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices shall be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
INTERMET Corporation
5445 Corporate Drive
Suite 200
Troy, Michigan 48098
Attn: Chief Executive Officer and General Counsel
4.8 DELIVERY BY FACSIMILE. This Agreement, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto, each other party hereto
shall reexecute original forms thereof and deliver them to all other parties. No
party hereto shall raise the use of a facsimile machine to deliver a signature
or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
4.9 DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
4.10 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or
8
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware. In furtherance of the foregoing,
the internal law of the State of Delaware shall control the interpretation and
construction of this Agreement, even though under that jurisdiction's choice of
law or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.
4.11 SUBMISSION TO JURISDICTION. The Company and each Stockholder
hereby irrevocably submit to any suit, action or proceeding arising out of or
related to this Agreement to the exclusive jurisdiction of any court of the
State of Delaware located in Wilmington and waive any and all objections to
jurisdiction that they may have under the laws of the State of Delaware or the
United States and any claim or objection that any such court is an inconvenient
forum.
4.12 AGREEMENT BINDING AND ENFORCEABLE. This Agreement shall be
binding on and enforceable by each holder of Common Stock that shall receive
such Common Stock pursuant to the terms of the Plan, to the same extent and with
the same effect as if such holder shall have executed and delivered this
Agreement as of the date hereof, irrespective of whether: (a) such holder is a
signatory hereto; (b) such holder's name is set forth on Schedule 1 hereto; and
(c) such holder shall receive the certificate or certificates evidencing such
Common Stock on or after the Effective Date. Upon the written request of the
Company, each holder of Common Stock that is not a signatory to this Agreement
agrees to execute and deliver to the Company a counterpart or joinder to this
Agreement.
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
INTERMET CORPORATION
By: ____________________________
Name:
Title:
[Name of Stockholder]
By: ____________________________
Name: ______________________
Title: _____________________
[Name of Stockholder]
By: ____________________________
Name: ______________________
Title: _____________________
[Name of Stockholder]
By: ____________________________
Name: ______________________
Title: _____________________
[Name of Stockholder]
By: ____________________________
Name: ______________________
Title: _____________________
[Signature Pages to Stockholders Agreement]
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SCHEDULE 1
STOCKHOLDERS
NAME AND ADDRESS OF SHARES OF
STOCKHOLDER COMMON STOCK
- ------------------- ------------
___________________ ____________________
___________________ ____________________
___________________ ____________________
___________________ ____________________
___________________ ____________________
1
EXHIBIT G
ARTICLES AND BYLAWS OF REORGANIZED DEBTORS
EXHIBIT H
ARTICLES AND BYLAWS OF REORGANIZED WAGNER CASTINGS COMPANY
EXHIBIT I
AVOIDANCE ACTIONS
EXHIBIT J
CAUSES OF ACTION
EXHIBIT K
KEY EMPLOYEES
EXHIBIT L
REJECTED EXECUTORY CONTRACTS
EXHIBIT M
CURE AMOUNT SCHEDULE
EXHIBIT N
CONFIRMATION ORDER