.
.
.
Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
<Table>
IN RE: :
: CHAPTER 11
ONCO INVESTMENT COMPANY, :
A DELAWARE CORPORATION, et al., : JOINTLY ADMINISTERED
: CASE NO. 04-10558 (JBR)
:
DEBTORS. :
: JOINT PLAN OF REORGANIZATION OF DEBTORS
: AND DEBTORS IN POSSESSION
--------------------------------------------------
DANIEL J. DEFRANCESCHI (DE 2732)
PAUL N. HEATH (DE 3704)
RICHARDS, LAYTON & FINGER, P.A.
ONE RODNEY SQUARE
P.O. BOX 551
WILMINGTON, DELAWARE 19899
(302) 651-7700 (TELEPHONE)
(302) 658-6548 (FACSIMILE)
-AND-
DAVID G. HEIMAN (OH 0038271)
HEATHER LENNOX (OH 0059649)
CARL E. BLACK (OH 0069479)
JONES DAY
NORTH POINT
901 LAKESIDE AVENUE
CLEVELAND, OHIO 44114
(216) 586-3939 (TELEPHONE)
(216) 579-0212 (FACSIMILE)
-AND-
MICHELLE MORGAN HARNER (IL 6276282)
JONES DAY
77 W. WACKER DRIVE
CHICAGO, ILLINOIS 60601
(312) 782-3939 (TELEPHONE)
(312) 782-8585 (FACSIMILE)
ATTORNEYS FOR DEBTORS
AND DEBTORS IN POSSESSION
</Table>
April 27, 2004
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
----
ARTICLE I DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF
TIME........................................................ 1
A. Defined Terms............................................... 1
1. "Ad Hoc Noteholders' Committee"....................... 1
2. "Administrative Claim"................................ 1
3. "Administrative Trade Claim".......................... 1
4. "Allowed Claim"....................................... 1
5. "Allowed ... Claim" or "Allowed ... Interest"......... 2
6. "Allowed Interest".................................... 2
7. "Ballot".............................................. 2
8. "Bankruptcy Code"..................................... 2
9. "Bankruptcy Court".................................... 2
10. "Bankruptcy Rules".................................... 2
11. "Business Day"........................................ 2
12. "Cash"................................................ 2
13. "Chapter 11 Cases".................................... 2
14. "Claim"............................................... 2
15. "Claims Objection Bar Date"........................... 2
16. "Class"............................................... 2
17. "Confirmation"........................................ 2
18. "Confirmation Date"................................... 2
19. "Confirmation Facility"............................... 2
20. "Confirmation Facility Agent"......................... 2
21. "Confirmation Hearing"................................ 2
22. "Confirmation Order".................................. 2
23. "Creditors' Committee"................................ 3
24. "Cure Amount Claim"................................... 3
25. "Debtors"............................................. 3
26. "Derivative Claim".................................... 3
27. "Disbursing Agent".................................... 3
28. "Disclosure Statement"................................ 3
29. "Disputed Claim"...................................... 3
30. "Distribution Record Date"............................ 3
31. "Document Website".................................... 3
32. "Effective Date"...................................... 3
33. "ERISA"............................................... 3
34. "Estate".............................................. 3
35. "Executory Contract and Unexpired Lease".............. 3
36. "Fee Claim"........................................... 4
37. "Fee Order"........................................... 4
38. "File," "Filed" or "Filing"........................... 4
39. "Final Order"......................................... 4
40. "First DIP Credit Agreement".......................... 4
</Table>
i
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
41. "First DIP Lender Claims"............................. 4
42. "First DIP Lenders"................................... 4
43. "First Final DIP Order"............................... 4
44. "General Unsecured Claim"............................. 4
45. "Indenture Trustee"................................... 4
46. "Insured Claim"....................................... 4
47. "Intercompany Claim".................................. 4
48. "Interest"............................................ 4
49. "Liabilities"......................................... 5
50. "Management Incentive Plan"........................... 5
51. "Management Stock Plan"............................... 5
52. "MLO Claim"........................................... 5
53. "New Common Stock".................................... 5
54. "New Equity Investors"................................ 5
55. "New Equity Investment"............................... 5
56. "New Preferred Stock"................................. 5
57. "New Stockholders' Agreement"......................... 5
58. "New Warrants"........................................ 5
59. "Oglebay"............................................. 5
60. "Old Common Stock".................................... 5
61. "Old Senior Secured Note Claim"....................... 5
62. "Old Senior Secured Notes"............................ 5
63. "Old Senior Secured Notes Purchase Agreement"......... 5
64. "Old Senior Subordinated Note Claim".................. 6
65. "Old Senior Subordinated Note Fee Claims"............. 6
66. "Old Senior Subordinated Note Indenture".............. 6
67. "Old Senior Subordinated Note Professionals".......... 6
68. "Old Senior Subordinated Notes"....................... 6
69. "ON Marine Services Co.".............................. 6
70. "ON Marine Services LLC".............................. 6
71. "Ordinary Course Professionals Order"................. 6
72. "Other Secured Claim"................................. 6
73. "PBGC"................................................ 6
74. "Petition Date"....................................... 6
75. "Plan"................................................ 6
76. "Prepetition Bank Loan Claim"......................... 6
77. "Prepetition Credit Facility"......................... 6
78. "Prepetition Credit Facility Agent"................... 6
79. "Prepetition Credit Facility Claim"................... 6
80. "Prepetition Lenders"................................. 6
81. "Prepetition Term Loan Agreement"..................... 7
82. "Prepetition Term Loan Agreement Agent"............... 7
</Table>
ii
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
83. "Prepetition Term Loan Claim"......................... 7
84. "Priority Claim"...................................... 7
85. "Priority Tax Claim".................................. 7
86. "Professional"........................................ 7
87. "Pro Rata"............................................ 7
88. "Quarterly Distribution Date"......................... 7
89. "Real Property Executory Contract and Unexpired
Lease"...................................................... 7
90. "Recovery Actions".................................... 7
91. "Registration Statement".............................. 7
92. "Reinstated" or "Reinstatement"....................... 7
93. "Released Parties".................................... 8
94. "Reorganized ..."..................................... 8
95. "Representatives"..................................... 8
96. "Restructuring Transactions".......................... 8
97. "Schedules"........................................... 8
98. "Second DIP Credit Agreement"......................... 8
99. "Second DIP Lender Claims"............................ 8
100. "Second DIP Lenders".................................. 8
101. "Secondary Liability Claim"........................... 8
102. "Secured Claim"....................................... 9
103. "Stipulation of Amount and Nature of Claim"........... 9
104. "Subsidiary Debtor"................................... 9
105. "Subsidiary Debtor Equity Interests".................. 9
106. "Tax"................................................. 9
107. "Third Party Disbursing Agent"........................ 9
108. "Tort Claim".......................................... 9
109. "Trade Claim"......................................... 9
110. "Vessel Term Loan Agreement".......................... 9
111. "Vessel Term Loan Bank"............................... 9
112. "Vessel Term Loan Claim".............................. 9
113. "Voting Deadline"..................................... 9
B. Rules of Interpretation and Computation of Time............. 10
1. Rules of Interpretation............................... 10
2. Computation of Time................................... 10
ARTICLE II. CLASSES OF CLAIMS AND INTERESTS............................. 10
A. Unimpaired Classes of Claims and Interests.................. 10
1. Class 1 (Priority Claims)............................. 10
2. Class 2 (Vessel Term Loan Claims)..................... 10
3. Class 3 (Old Senior Secured Note Claims).............. 10
4. Class 4 (Other Secured Claims)........................ 10
5. Class 5 (General Unsecured Claims).................... 10
6. Class 8 (Subsidiary Debtor Equity Interests).......... 10
</Table>
iii
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
B. Impaired Classes of Claims and Interests.................... 11
1. Class 6 (Old Senior Subordinated Note Claims)......... 11
2. Class 7 (Intercompany Claims)......................... 11
3. Class 9 (Old Common Stock of Oglebay)................. 11
ARTICLE III. TREATMENT OF CLAIMS AND INTERESTS........................... 11
A. Unclassified Claims......................................... 11
1. Payment of Administrative Claims...................... 11
2. Payment of Priority Tax Claims........................ 13
B. Unimpaired Classes of Claims and Interests.................. 13
1. Class 1 Claims (Unsecured Priority Claims)............ 13
2. Class 2 Claims (Vessel Term Loan Claims).............. 13
3. Class 3 Claims (Old Senior Secured Note Claims)....... 13
4. Class 4 Claims (Other Secured Claims)................. 14
5. Class 5 Claims (General Unsecured Claims)............. 14
6. Class 8 (Subsidiary Debtor Equity Interests).......... 14
C. Impaired Classes of Claims and Interests.................... 14
1. Class 6 Claims (Old Senior Subordinated Note
Claims)..................................................... 14
2. Class 7 Claims (Intercompany Claims).................. 14
3. Class 9 Interests (Old Common Stock of Oglebay)....... 14
D. Special Provisions Regarding the Treatment of Allowed
Secondary Liability Claims; Maximum Recovery................ 14
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN........................ 15
A. Continued Corporate Existence and Vesting of Assets in the
Reorganized Debtors......................................... 15
B. Restructuring Transactions.................................. 15
1. Restructuring Transactions Generally.................. 15
2. Obligations of Any Successor Corporation in a
Restructuring Transaction............................. 16
C. Corporate Governance, Directors and Officers,
Employment-Related Agreements and Compensation Programs..... 16
1. Certificates of Incorporation and Bylaws.............. 16
2. Directors and Officers of the Reorganized Debtors..... 16
3. Employment, Retirement and Other Related Agreements
and Management Stock Programs; Retiree Benefits; Workers'
Compensation Programs................................. 16
4. Corporate Action...................................... 17
D. Confirmation Facility; New Equity Investment; Obtaining Cash
for Plan Distributions...................................... 17
1. Confirmation Facility................................. 17
2. New Equity Investment................................. 17
3. Cash for Plan Distributions........................... 17
</Table>
iv
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
E. Preservation of Rights of Action; Settlement Agreements and
Releases.................................................... 18
1. Preservation of Rights of Action by the Debtors and
the Reorganized Debtors; Recovery Actions................... 18
2. Comprehensive Settlement of Claims and
Controversies............................................... 18
3. Releases.............................................. 18
F. Special Provisions Regarding Insured Claims................. 19
1. Limitations on Amounts to Be Distributed to Holders of
Allowed Claims.............................................. 19
2. Reinstatement and Continuation of Insurance
Policies.................................................... 19
G. Cancellation and Surrender of Instruments, Securities and
Other Documentation......................................... 19
1. Prepetition Secured Debt.............................. 19
2. Old Senior Subordinated Notes......................... 19
3. Old Common Stock...................................... 20
H. Release of Liens............................................ 20
I. New Stockholders' Agreement................................. 20
J. Effectuating Documents; Further Transactions; Exemption from
Certain Transfer Taxes...................................... 20
ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES....... 21
A. Executory Contracts and Unexpired Leases to Be Assumed...... 21
1. Assumption Generally.................................. 21
2. Real Property Executory Contracts and Unexpired
Leases...................................................... 21
3. Approval of Assumptions and Assignments; Assignments
Related to Restructuring Transactions....................... 21
B. Payments Related to the Assumption of Executory Contracts
and Unexpired Leases........................................ 21
C. Contracts and Leases Entered Into After the Petition Date... 22
D. Rejection of Executory Contracts and Unexpired Leases....... 22
E. Bar Date for Rejection Damages.............................. 22
F. Obligations to Indemnify Directors, Officers and
Employees................................................... 22
ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS.......................... 22
A. Distributions for Claims and Interests Allowed as of the
Effective Date.............................................. 22
B. Method of Distributions to Holders of Claims and
Interests................................................... 23
C. Compensation and Reimbursement for Services Related to
Distributions............................................... 23
D. Delivery of Distributions and Undeliverable or Unclaimed
Distributions............................................... 23
1. Delivery of Distributions............................. 23
2. Undeliverable Distributions Held by Disbursing
Agents...................................................... 24
E. Timing and Calculation of Amounts to Be Distributed......... 24
1. Allowed Claims........................................ 24
2. Distributions of New Common Stock and New
Warrants -- No Fractional Shares; Rounding.................. 24
3. De Minimis Distributions.............................. 25
F. Distribution Record Date.................................... 25
</Table>
v
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
G. Means of Cash Payments...................................... 25
H. Establishment of Reserves................................... 25
I. Surrender of Canceled Instruments or Securities............. 25
1. Tender of Old Senior Secured Notes and Old Senior
Subordinated Notes.......................................... 25
2. Lost, Stolen, Mutilated or Destroyed Old Senior
Secured Notes or Old Senior Subordinated Notes.............. 25
3. Failure to Surrender Old Senior Secured Notes or Old
Senior Subordinated Notes................................... 26
4. Tender of Old Common Stock of Oglebay................. 26
5. Lost, Stolen, Mutilated or Destroyed Old Common Stock
of Oglebay.................................................. 26
6. Failure to Surrender Old Common Stock of Oglebay...... 26
J. Compliance with Tax Requirements............................ 26
K. Setoffs..................................................... 27
ARTICLE VII. PROCEDURES FOR RESOLVING DISPUTED CLAIMS.................... 27
A. Treatment of Disputed Claims................................ 27
1. General Process....................................... 27
2. Tort Claims........................................... 27
3. Disputed Insured Claims............................... 27
4. No Distributions Pending Allowance.................... 27
B. Prosecution of Objections to Claims......................... 27
1. Objections to Claims.................................. 27
2. Authority to Prosecute Objections..................... 28
3. Authority to Amend Schedules.......................... 28
C. Distributions on Account of Disputed Claims Once Allowed.... 28
ARTICLE VIII. SUBSTANTIVE CONSOLIDATION OF THE DEBTORS.................... 28
A. Substantive Consolidation................................... 28
B. Order Granting Substantive Consolidation.................... 28
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE
PLAN........................................................ 29
A. Conditions to Confirmation.................................. 29
B. Conditions to the Effective Date............................ 29
C. Waiver of Conditions to the Confirmation or Effective
Date........................................................ 29
D. Effect of Nonoccurrence of Conditions to the Effective
Date........................................................ 30
ARTICLE X. CRAMDOWN.................................................... 30
ARTICLE XI. DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION
RIGHTS...................................................... 30
A. Discharge of Claims and Termination of Interests............ 30
1. Complete Satisfaction, Discharge and Release......... 30
2. Discharge and Termination............................ 30
</Table>
vi
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
PAGE
----
B. Injunctions................................................. 31
1. Claims Enjoined...................................... 31
2. Enforcement Enjoined................................. 31
3. Consent to Injunction................................ 31
C. Termination of Subordination Rights and Settlement of
Related Claims and
Controversies............................................... 31
1. Termination.......................................... 31
2. Settlement........................................... 32
3. Preservation of Subordination under Section 510(b)... 32
ARTICLE XII. RETENTION OF JURISDICTION................................... 32
ARTICLE XIII. MISCELLANEOUS PROVISIONS.................................... 33
A. Dissolution of Committee.................................... 33
B. Limitation of Liability..................................... 33
C. Modification of the Plan.................................... 34
D. Revocation of the Plan...................................... 34
E. Severability of Plan Provisions............................. 34
F. Successors and Assigns...................................... 34
G. Service of Documents........................................ 34
1. The Debtors and the Reorganized Debtors............... 34
2. The Ad Hoc Noteholders' Committee..................... 35
3. The Second DIP Facility Agent......................... 35
4. The Creditors' Committee.............................. 36
</Table>
vii
TABLE OF EXHIBITS(1)
<Table>
Exhibit I.A.19 Principal Terms of the Confirmation Facility
Exhibit I.A.25 Debtors in the Chapter 11 Cases
Exhibit I.A.50 Management Incentive Plan
Exhibit I.A.51 Management Stock Plan
Exhibit I.A.57 New Stockholders' Agreement
Exhibit I.A.58 Principal Terms of New Warrants
Exhibit IV.C.1.a Certificate of Incorporation (or Comparable Constituent
Documents) of Reorganized
Oglebay and Each Reorganized Subsidiary Debtor
Exhibit IV.C.1.b Bylaws (or Comparable Constituent Documents) of Reorganized
Oglebay and Each
Reorganized Subsidiary Debtor
Exhibit IV.C.2 Initial Directors and Officers of Reorganized Oglebay and
Each
Reorganized Subsidiary Debtor
Exhibit IV.C.3.a Principal Terms of Management Employment Agreements
</Table>
- ---------------
(1) To be Filed no later than ten days before the deadline to object to
Confirmation of the Plan. All Exhibits will be made available on the
Document Website once they are Filed. The Debtors reserve the right to
modify, amend, supplement, restate or withdraw any of the Exhibits after
they are Filed and shall promptly make such changes available on the
Document Website.
viii
INTRODUCTION
ONCO Investment Company, a Delaware corporation, and the other
above-captioned debtors and debtors in possession (collectively, the "Debtors")
propose the following joint plan of reorganization (the "Plan") for the
resolution of the outstanding claims against and equity interests in the
Debtors. The Debtors are the proponents of the Plan within the meaning of
section 1129 of the Bankruptcy Code, 11 U.S.C. sec. 1129. Reference is made to
the Debtors' disclosure statement, distributed contemporaneously with the Plan
(the "Disclosure Statement"), for a discussion of the Debtors' history,
business, results of operations, historical financial information, projections
and properties, and for a summary and analysis of the Plan. There also are other
agreements and documents, which will be Filed with the Bankruptcy Court, that
are referenced in the Plan or the Disclosure Statement and that will be
available for review. This Plan constitutes the agreement among the Debtors, the
Creditors' Committee (as such term is defined below), certain holders of Old
Senior Subordinated Notes (as such term is defined below) and the Second DIP
Lenders (as such term is defined below) regarding the settlement of claims
against the Debtors' estates.
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION
AND COMPUTATION OF TIME
A. DEFINED TERMS
As used in the Plan, capitalized terms have the meanings set forth below.
Any term that is not otherwise defined herein, but that is used in the
Bankruptcy Code or the Bankruptcy Rules (as each such term is defined below),
will have the meaning given to that term in the Bankruptcy Code or the
Bankruptcy Rules, as applicable.
1. "Ad Hoc Noteholders' Committee" means the unofficial committee of
holders of a majority of principal amount of the Old Senior Secured Notes.
2. "Administrative Claim" means a Claim for costs and expenses of
administration allowed under sections 503(b), 507(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 (such as wages, salaries, commissions for services and
payments for inventories, leased equipment and premises); (b) Claims under the
Second DIP Credit Agreement (including any adequate protection rights granted in
connection with the approval thereof by the Bankruptcy Court); (c) compensation
for legal, financial advisory, accounting and other services and reimbursement
of expenses awarded or allowed under sections 330(a) or 331 of the Bankruptcy
Code, including Fee Claims; (d) Claims for reclamation allowed in accordance
with section 546(c)(2) of the Bankruptcy Code and Section 2-702 of the Uniform
Commercial Code; (e) all fees and charges assessed against the Estates under
chapter 123 of title 28, United States Code, 28 U.S.C. sec.sec. 1911-1930; and
(f) all postpetition Intercompany Claims.
3. "Administrative Trade Claim" means an Administrative Claim (other than a
Tort Claim) arising from or with respect to the sale of goods or provision of
services on or after the Petition Date in the ordinary course of the applicable
Debtor's business, including Administrative Claims of employees for ordinary
course wages, expense reimbursement and health and welfare benefits.
4. "Allowed Claim" means:
a) a Claim that (i) is listed on a Debtor's Schedules as other than
disputed, contingent or unliquidated and (ii) is not otherwise a Disputed
Claim;
b) a Claim (i) as to which no objection to allowance has been
interposed on or before the Claims Objection Bar Date or such other
applicable period of limitation fixed by the Plan, the Confirmation Order,
the Bankruptcy Rules or a Final Order for objecting to such Claims and (ii)
that is not otherwise a Disputed Claim; or
1
c) a Claim that is allowed: (i) in any Stipulation of Amount and
Nature of Claim executed by the applicable Reorganized Debtor and Claim
holder on or after the Effective Date; (ii) in any contract, instrument or
other agreement entered into in connection with the Plan and, if prior to
the Effective Date, approved by the Bankruptcy Court; (iii) pursuant to a
Final Order; or (iv) pursuant to the terms of the Plan.
5. "Allowed ... Claim" or "Allowed ... Interest" means an Allowed Claim or
Allowed Interest, as the case may be, in the particular Class or category
specified.
6. "Allowed Interest" means an Interest registered in the stock register,
membership interest register or any similar register or schedule maintained by
or on behalf of a Debtor as of the Distribution Record Date and not timely
objected to or that is allowed by a Final Order.
7. "Ballot" means the form or forms distributed to each holder of an
impaired Claim or Interest entitled to vote on the Plan on which the holder
indicates acceptance or rejection of the Plan or any election for treatment of
such Claim or Interest under the Plan.
8. "Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C.
sec.sec. 101-1330, as now in effect or hereafter amended.
9. "Bankruptcy Court" means the United States District Court having
jurisdiction over the Chapter 11 Cases and, to the extent of any reference made
pursuant to 28 U.S.C. sec. 157, the bankruptcy unit of such District Court.
10. "Bankruptcy Rules" means, collectively, the Federal Rules of Bankruptcy
Procedure and the local rules of the Bankruptcy Court, as now in effect or
hereafter amended.
11. "Business Day" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
12. "Cash" means legal tender of the United States of America and
equivalents thereof.
13. "Chapter 11 Cases" means the cases commenced under chapter 11 of the
Bankruptcy Code by the Debtors in the Bankruptcy Court.
14. "Claim" means a "claim," as defined in section 101(5) of the Bankruptcy
Code, against a Debtor.
15. "Claims Objection Bar Date" means, for all Claims, other than those
Claims allowed in accordance with Section I.A.4.c, the latest of: (a) 120 days
after the Effective Date; (b) 90 days after the Filing of a proof of Claim for
such Claim; and (c) such other period of limitation as may be specifically fixed
by the Plan, the Confirmation Order, the Bankruptcy Rules or a Final Order for
objecting to such Claim.
16. "Class" means a class of Claims or Interests, as described in Article
II.
17. "Confirmation" means the entry of the Confirmation Order on the docket
of the Bankruptcy Court.
18. "Confirmation Date" means the date on which the Bankruptcy Court enters
the Confirmation Order on its docket, within the meaning of Bankruptcy Rules
5003 and 9021.
19. "Confirmation Facility" means a senior secured credit facility in the
principal amount of $305 million that will be entered into by the Reorganized
Debtors, the Confirmation Facility Agent and the other financial institutions
party thereto on the Effective Date on substantially the terms set forth on
Exhibit I.A.19.
20. "Confirmation Facility Agent" means the agent under the Confirmation
Facility.
21. "Confirmation Hearing" means the hearing held by the Bankruptcy Court
on Confirmation of the Plan, as such hearing may be continued from time to time.
22. "Confirmation Order" means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code.
2
23. "Creditors' Committee" means the statutory official committee of
unsecured creditors appointed by the United States Trustee in the Chapter 11
Cases pursuant to section 1102 of the Bankruptcy Code, as such committee may be
reconstituted from time to time.
24. "Cure Amount Claim" means a Claim based upon a Debtor's monetary
defaults under an Executory Contract or Unexpired Lease at the time such
contract or lease is assumed by such Debtor under section 365 of the Bankruptcy
Code.
25. "Debtors" means, collectively, the above-captioned debtors and debtors
in possession identified on Exhibit I.A.25.
26. "Derivative Claim" means a claim (as defined in section 101(5) of the
Bankruptcy Code) or cause of action that is the property of any of the Debtors'
Estates pursuant to section 541 of the Bankruptcy Code.
27. "Disbursing Agent" means any Reorganized Debtor in its capacity as
disbursing agent pursuant to Section VI.B, or any Third Party Disbursing Agent.
28. "Disclosure Statement" means the disclosure statement (including all
exhibits and schedules thereto or referenced therein) that relates to the Plan
and has been prepared and distributed by the Debtors, as plan proponents, as
approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code, as the same may be amended, modified or supplemented.
29. "Disputed Claim" means:
a) a Claim that is listed on a Debtor's Schedules as disputed,
contingent or unliquidated;
b) a Claim that is listed on a Debtor's Schedules as other than
disputed, contingent or unliquidated, but the nature or amount of the Claim
as asserted by the holder varies from the nature or amount of such Claim as
it is listed on the Schedules;
c) a Claim that is not listed on a Debtor's Schedules;
d) a Claim as to which the applicable Debtor or Reorganized Debtor,
or, prior to the Confirmation Date, any other party in interest, has Filed
an objection by the Claims Objection Bar Date and such objection has not
been withdrawn or denied by a Final Order;
e) a Claim for which a proof of Claim or request for payment of
Administrative Claim is required to be Filed under the Plan and no such
proof of Claim or request for payment of Administrative Claim is timely
filed; or
f) a Tort Claim.
30. "Distribution Record Date" means the close of business on the
Confirmation Date.
31. "Document Website" means the Internet site address
www.oglebaynorton.com at which all of the exhibits and schedules to the Plan and
the Disclosure Statement will be available to any party in interest and the
public.
32. "Effective Date" means a day, as determined by the Debtors, that is the
Business Day as soon as reasonably practicable after all conditions to the
Effective Date in Section IX.B have been met or waived in accordance with
Section IX.C.
33. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. sec.sec. 1301-1461.
34. "Estate" means, as to each Debtor, the estate created for such Debtor
in its Chapter 11 Case pursuant to section 541 of the Bankruptcy Code.
35. "Executory Contract and Unexpired Lease" means a contract or lease to
which a Debtor is a party that is subject to assumption or rejection under
section 365 of the Bankruptcy Code.
3
36. "Fee Claim" means a Claim under sections 328, 330(a), 331, 503 or 1103
of the Bankruptcy Code for compensation of a Professional or other entity for
services rendered or expenses incurred in the Chapter 11 Cases.
37. "Fee Order" means the Administrative Order Establishing Procedures for
Interim Compensation and Reimbursement of Expenses of Professionals, entered by
the Bankruptcy Court on or about March 23, 2004.
38. "File," "Filed" or "Filing" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Chapter 11 Cases.
39. "Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction, as entered on the docket in the Chapter
11 Cases or the docket of any other court of competent jurisdiction, that has
not been reversed, stayed, modified or amended, and as to which the time to
appeal or seek certiorari or move for a new trial, reargument or rehearing has
expired, and no appeal or petition for certiorari or other proceedings for a new
trial, reargument or rehearing has been timely taken, or as to which any appeal
that has been taken or any petition for certiorari that has been timely filed
has been withdrawn or resolved by the highest court to which the order or
judgment was appealed or from which certiorari was sought or the new trial,
reargument or rehearing shall have been denied or resulted in no modification of
such order.
40. "First DIP Credit Agreement" means, collectively: (a) the Financing
Agreement among Oglebay (as borrower), the other Debtors (as guarantors),
General Electric Capital Corporation (as administrative agent), Silver Point
Finance, LLC, (as collateral agent and syndication agent), Silver Point Finance,
LLC and GECC Capital Markets Group, Inc. (as co-lead arrangers), and the other
lenders party thereto; (b) all amendments thereto and extensions thereof; and
(c) all security agreements and instruments related to the documents identified
in (a) and (b).
41. "First DIP Lender Claims" means any Claim against a Debtor under or
evidenced by (a) the First DIP Credit Agreement and (b) the First Final DIP
Order.
42. "First DIP Lenders" means, collectively: (a) those entities identified
as "Lenders" in the First DIP Credit Agreement and their respective permitted
successors and assigns and (b) any agent bank named therein.
43. "First Final DIP Order" means the Final Order (I) Authorizing Debtors
to (A) Obtain Postpetition Financing Pursuant to 11 U.S.C. sec.sec. 105, 361,
362, 363, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1); and (B) Utilize Cash
Collateral Pursuant to 11 U.S.C. sec.sec. 105, 361, 362 and 363; and (II)
Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11
U.S.C. sec.sec. 105, 361, 362 and 363, entered by the Bankruptcy Court on April
8, 2004.
44. "General Unsecured Claim" means any Claim that is not an Administrative
Claim, Cure Amount Claim, Priority Claim, Priority Tax Claim, Prepetition Bank
Loan Claim, Old Senior Secured Note Claim, Vessel Term Loan Claim, Other Secured
Claim, Old Senior Subordinated Note Claim or MLO Claim.
45. "Indenture Trustee" means Norwest Bank Minnesota, National Association,
n/k/a Wells Fargo Bank, MN, National Association, as indenture trustee under the
Old Senior Subordinated Indenture.
46. "Insured Claim" means any Claim arising from an incident or occurrence
alleged to have occurred prior to the Effective Date that is covered under an
insurance policy applicable to the Debtors or their businesses.
47. "Intercompany Claim" means any Claim by any Debtor against another
Debtor.
48. "Interest" means the rights of the holders of the Old Common Stock of
any Debtor, any other instruments evidencing an ownership interest in a Debtor
and the rights of any entity to purchase or demand the issuance of any of the
foregoing, including: (a) redemption, conversion, exchange, voting,
participation and dividend rights (including any rights in respect of accrued
and unpaid dividends); (b) liquidation preferences; and (c) stock options and
warrants.
4
49. "Liabilities" means any claim (as defined in section 101(5) of the
Bankruptcy Code), or cause of action (including any Recovery Action), action,
suit, account, controversy, right to a remedy whether assertable directly or
derivatively, in law, equity, or otherwise.
50. "Management Incentive Plan" means the management incentive plan adopted
as of the Effective Date, in substantially the form of Exhibit I.A.50, for the
benefit of certain employees of the Debtors, as described therein.
51. "Management Stock Plan" means the management stock plan adopted as of
the Effective Date, in substantially the form of Exhibit I.A.51, for the benefit
of certain employees and directors of the Debtors and the other classes of
persons described therein.
52. "MLO Claim" means any Claim against a Debtor under or evidenced by the
Interest Purchase Agreement, dated as of April 14, 2000, by and among Oglebay
and Johnson Mining Inc., The Cary Mining Company Inc., Michigan Minerals
Associates, Inc. and Michigan Limestone Operations Limited Partnership, as the
same may have been amended or modified.
53. "New Common Stock" means the [ ] shares of common stock,
$0.01 par value per share, of Reorganized Oglebay, authorized pursuant to the
certificate of incorporation of Reorganized Oglebay.
54. "New Equity Investors" means, individually and collectively, those
parties who subscribe to purchase the New Preferred Stock.
55. "New Equity Investment" means the investment to be made by the New
Equity Investors on the Effective Date in connection with the purchase of New
Preferred Stock by the New Equity Investors.
56. "New Preferred Stock" means the [ ] shares of convertible
preferred stock, $ par value per share, of Reorganized Oglebay,
authorized pursuant to the certificate of incorporation of Reorganized Oglebay.
57. "New Stockholders' Agreement" means the stockholder agreement in
substantially the form of Exhibit I.A.57 between Reorganized Oglebay and each
holder of an Allowed Claim or Allowed Interest receiving shares of New Common
Stock or New Warrants pursuant to the Plan.
58. "New Warrants" means the warrants exercisable for 30 days after the
Effective Date to buy New Common Stock in an aggregate amount of $5 million at
the price and on the terms set forth on Exhibit I.A.58.
59. "Oglebay" means Debtor Oglebay Norton Company.
60. "Old Common Stock" means, when used with reference to a particular
Debtor, the common stock, membership interests or partnership interests issued
by such Debtor and outstanding immediately prior to the Petition Date, and any
options, warrants or other rights with respect thereto.
61. "Old Senior Secured Note Claim" means any Claim against a Debtor under
or evidenced by the Old Senior Secured Notes Purchase Agreement, including any
Claims pursuant to any guaranty agreement.
62. "Old Senior Secured Notes" means the 18% senior secured notes due on
October 25, 2008 in the aggregate principal amount of $75 million issued
pursuant to the Old Senior Secured Notes Purchase Agreement.
63. "Old Senior Secured Notes Purchase Agreement" means, collectively: (a)
the Senior Secured Notes Agreement, dated as of October 25, 2002, by and among
Oglebay (as borrower), certain of the Debtors (as guarantors), 1818 Mezzanine
Fund II, L.P. (as agent) and the other purchasers party thereto; (b) all
amendments thereto and extensions thereof; and (c) all security agreements and
instruments related to the documents identified in (a) and (b).
64. "Old Senior Subordinated Note Claim" means any Claim against a Debtor
under or evidenced by the Old Senior Subordinated Note Indenture, including any
Claims pursuant to any guaranty agreement.
5
65. "Old Senior Subordinated Note Fee Claims" means, collectively and
individually, (a) the Indenture Trustee's Claims for reasonable fees and
expenses (including reasonable attorneys' fees) payable pursuant to the terms of
the Old Senior Subordinated Note Indenture and (b) the Old Senior Subordinated
Note Professionals' Claims for reasonable fees and expenses incurred by such
professionals in connection with their representation of the ad hoc committee of
holders of Old Senior Subordinated Notes prior to the appointment of the
Creditors' Committee.
66. "Old Senior Subordinated Note Indenture" means, collectively: (a) the
Indenture, dated as of February 1, 1999, between Oglebay (as issuer) and Norwest
Bank Minnesota, National Association n/k/a Wells Fargo Bank MN, National
Association (as Indenture Trustee concerning the Old Senior Subordinated Notes);
(b) all amendments thereto and extensions thereof; and (c) all instruments and
agreements related thereto.
67. "Old Senior Subordinated Note Professionals" means, collectively and
individually, Stroock & Stroock & Lavan, L.L.P. and Jefferies & Company, Inc.
68. "Old Senior Subordinated Notes" means the 10% senior subordinated notes
due February 1, 2009 in the aggregate principal amount of $100 million issued
pursuant to the Old Senior Subordinated Note Indenture.
69. "ON Marine Services Co." means Debtor ON Marine Services Company, a
Delaware corporation.
70. "ON Marine Services LLC" means Debtor Oglebay Norton Marine Services
Company, L.L.C., a Delaware limited liability company.
71. "Ordinary Course Professionals Order" means an order entered by the
Bankruptcy Court on or about March 25, 2004, authorizing the Debtors to retain,
employ and pay professionals, as specified in the order, which are not
materially involved in the administration of the Chapter 11 Cases.
72. "Other Secured Claim" means a Secured Claim other than a Prepetition
Bank Loan Claim, an Old Senior Secured Note Claim or a Vessel Term Loan Claim.
73. "PBGC" means the Pension Benefit Guaranty Corporation, a wholly-owned
United States government corporation and an agency of the United States that
administers the defined benefit pension plan termination insurance program under
Title IV of ERISA.
74. "Petition Date" means February 23, 2004, the date on which the Debtors
Filed their petitions for relief commencing the Chapter 11 Cases.
75. "Plan" means this joint plan of reorganization for the Debtors, and all
Exhibits attached hereto or referenced herein, as the same may be amended,
modified or supplemented.
76. "Prepetition Bank Loan Claim" means a Prepetition Credit Facility Claim
or Prepetition Term Loan Claim.
77. "Prepetition Credit Facility" means, collectively: (a) the Credit
Agreement, dated as of May 15, 1998, as amended and restated as of April 3,
2000, by and among Oglebay (as borrower), the other Debtors (as guarantors),
General Electric Capital Corporation (as successor agent) and the other
Prepetition Lenders party thereto; (b) all amendments thereto and extensions
thereof; and (c) all security agreements and instruments related to the
documents identified in (a) and (b).
78. "Prepetition Credit Facility Agent" means General Electric Capital
Corporation, as successor administrative agent under the Prepetition Credit
Facility, and its permitted successors.
79. "Prepetition Credit Facility Claim" means any Claim against a Debtor
under or evidenced by the Prepetition Credit Facility, including any Claims
pursuant to any guaranty agreement.
80. "Prepetition Lenders" means, collectively: (a) those entities
identified as "Lenders" under the Prepetition Credit Facility and their
respective permitted successors and assigns; (b) those entities identified
6
as "Lenders" under the Prepetition Term Loan Agreement and their respective
permitted successors and assigns; and (c) any agent banks or arrangers named
therein.
81. "Prepetition Term Loan Agreement" means, collectively: (a) the Loan
Agreement, dated April 3, 2000, by and among Oglebay (as borrower), the other
Debtors (as guarantors), General Electric Capital Corporation (as successor
agent) and the other Prepetition Lenders party thereto; (b) all amendments
thereto and extensions thereof; and (c) all security agreements and instruments
related to the documents identified in (a) and (b).
82. "Prepetition Term Loan Agreement Agent" means General Electric Capital
Corporation, as successor administrative agent under the Prepetition Term Loan
Agreement, and its permitted successors.
83. "Prepetition Term Loan Claim" means a Claim against the Debtors under
or evidenced by the Prepetition Term Loan Agreement, including any Claims
pursuant to any guaranty agreement.
84. "Priority Claim" means a Claim that is entitled to priority in payment
pursuant to section 507(a) of the Bankruptcy Code that is not an Administrative
Claim or a Priority Tax Claim.
85. "Priority Tax Claim" means a Claim that is entitled to priority in
payment pursuant to section 507(a)(8) of the Bankruptcy Code.
86. "Professional" means any professional employed in the Chapter 11 Cases
pursuant to sections 327 or 1103 of the Bankruptcy Code or any professional or
other entity seeking compensation or reimbursement of expenses in connection
with the Chapter 11 Cases pursuant to section 503(b)(4) of the Bankruptcy Code.
87. "Pro Rata" means when used with reference to a distribution of Cash,
New Common Stock or New Warrants to holders of Allowed Claims or Allowed
Interests in a particular Class or other specified group of Claims or Interests
pursuant to Article III, proportionately so that with respect to a particular
Allowed Claim or Allowed Interest, as the case may be, in such Class or in such
group, the ratio of (a)(i) the amount of Cash, New Common Stock or New Warrants,
as the case may be, distributed on account of such Claim or Interest to (ii) the
amount of such Claim or Interest, is the same as the ratio of (b)(i) the amount
of Cash, New Common Stock or New Warrants, as the case may be, distributed on
account of all Allowed Claims or Interests in such Class or group of Claims or
Interests to (ii) the amount of all Allowed Claims and Disputed Claims or
Allowed Interests, as the case may be, in such Class or group of Claims or
Interests.
88. "Quarterly Distribution Date" means the last Business Day of the month
following the end of each calendar quarter after the Effective Date; provided,
however, that if the Effective Date is within 45 days of the end of a calendar
quarter, the first Quarterly Distribution Date will be the last Business Day of
the month following the end of the first calendar quarter after the calendar
quarter in which the Effective Date falls.
89. "Real Property Executory Contract and Unexpired Lease" means,
collectively, an Executory Contract and Unexpired Lease relating to a Debtor's
interest in real property and any Executory Contract and Unexpired Lease
granting rights or interests related to or appurtenant to the applicable real
property, including all easements; licenses; permits; rights; privileges;
immunities; options; rights of first refusal; powers; uses; usufructs;
reciprocal easement or operating agreements; vault, tunnel or bridge agreements
or franchises; development rights; and any other interests in real estate or
rights in rem related to the applicable real property.
90. "Recovery Actions" means, collectively and individually, preference
actions, fraudulent conveyance actions and other claims or causes of action
under sections 510, 544, 547, 548, 549 and 550 of the Bankruptcy Code and other
similar state law claims and causes of action.
91. "Registration Statement" means the registration statement filed by the
Debtors with the Securities and Exchange Commission under the Securities Act of
1933, as amended, on or about [ ], 2004.
92. "Reinstated" or "Reinstatement" means rendering a Claim unimpaired
within the meaning of section 1124 of the Bankruptcy Code. Unless the Plan
specifies a particular method of Reinstatement, when
7
the Plan provides that an Allowed Claim will be Reinstated, such Claim will be
Reinstated, at the applicable Reorganized Debtor's sole discretion, in
accordance with one of the following:
a) The legal, equitable and contractual rights to which such Claim
entitles the holder will be unaltered;
b) Notwithstanding any contractual provisions or applicable law that
entitles the holder of such Claim to demand or receive accelerated payment
of such Claim after the occurrence of a default:
i. any such default that occurred before or after the commencement
of the applicable Reorganized Case, other than a default of a kind
specified in section 365(b)(2) of the Bankruptcy Code, will be cured;
ii. the maturity of such Claim as such maturity existed before such
default will be reinstated;
iii. the holder of such Claim will be compensated for any damages
incurred as a result of any reasonable reliance by such holder on such
contractual provision or such applicable law; and
iv. the legal, equitable or contractual rights to which such Claim
entitles the holder of such Claim will not otherwise be altered; or
c) The holder of an Allowed Claim will receive payment of such Allowed
Claim in full principal amount in Cash on the Effective Date.
93. "Released Parties" means, collectively and individually, the Debtors,
the Creditors' Committee and its members (solely in their capacity as such) and
the Representatives of each of the foregoing.
94. "Reorganized ..." means, when used in reference to a particular Debtor,
such Debtor on and after the Effective Date.
95. "Representatives" means, with respect to any entity, any existing or
former successor, predecessor, officer, director, partner, employee, agent,
attorney, advisor, investment banker, financial advisor, accountant or other
Professional of such entity, and committee of which such entity is a member, in
each case in such capacity.
96. "Restructuring Transactions" shall have the meaning ascribed thereto in
Section IV.B.1.
97. "Schedules" means the schedules of assets and liabilities and the
statement of financial affairs Filed by a Debtor, as required by section 521 of
the Bankruptcy Code, as the same may have been or may be amended, modified or
supplemented.
98. "Second DIP Credit Agreement" means, collectively: (a) the Financing
Agreement among Oglebay (as borrower), the other Debtors (as guarantors), Silver
Point Finance, LLC (as collateral agent, syndication agent and lead arranger)
and the other lenders party thereto; (b) all amendments thereto and extensions
thereof; and (c) all security agreements and instruments related to the
documents identified in (a) and (b).
99. "Second DIP Lender Claims" means any Claim against a Debtor under or
evidenced by (a) the Second DIP Credit Agreement and (b) the Final Order entered
by the Bankruptcy Court on [ ], 2004.
100. "Second DIP Lenders" means, collectively: (a) those entities
identified as "Lenders" in the Second DIP Credit Agreement and their respective
permitted successors and assigns and (b) any agent bank named therein.
101. "Secondary Liability Claim" means a Claim that arises from a Debtor
being liable as a guarantor of, or otherwise being jointly, severally or
secondarily liable for, any contractual, tort, guaranty or other obligation of
another Debtor, including any claim based on: (a) vicarious liability; (b)
liabilities arising out of piercing the corporate veil, alter ego liability or
similar legal theories; (c) guaranties of collection, payments or performance;
(d) indemnity bonds, obligations to indemnify or obligations to hold harmless;
(e) performance bonds; (f) contingent liabilities arising out of contractual
obligations or out of undertakings (including any assignment or transfer) with
respect to leases, operating agreements or other similar obligations made or
given
8
by a Debtor or relating to the obligations or performance of another Debtor; or
(g) any other joint or several liability, including claims for identification or
contribution, that any Debtor may have in respect of any obligation that is the
basis of a Claim.
102. "Secured Claim" means a Claim that is secured by a lien on property in
which an Estate has an interest or that is subject to setoff under section 553
of the Bankruptcy Code, to the extent of the value of the Claim holder's
interest in such Estate's interest in such property or to the extent of the
amount subject to setoff, as applicable, as determined pursuant to sections
506(a) and, if applicable, 1129(b) of the Bankruptcy Code.
103. "Stipulation of Amount and Nature of Claim" means a stipulation or
other agreement between a Debtor or Reorganized Debtor and a holder of a Claim
or Interest, or an agreed order of the Bankruptcy Court, establishing the amount
and nature of a Claim or Interest; any such stipulation or other agreement
between a Reorganized Debtor and a holder of a Claim or Interest executed after
the Effective Date will not be subject to approval of the Bankruptcy Court.
104. "Subsidiary Debtor" means any Debtor other than Oglebay.
105. "Subsidiary Debtor Equity Interests" means, as to a particular
Subsidiary Debtor, any Interests in such Debtor.
106. "Tax" means: (a) any net income, alternative or add-on minimum, gross
income, gross receipts, sales, use, ad valorem, value added, transfer,
franchise, profits, license, property, environmental or other tax, assessment or
charge of any kind whatsoever (together in each instance with any interest,
penalty, addition to tax or additional amount) imposed by any federal, state,
local or foreign taxing authority; or (b) any liability for payment of any
amounts of the foregoing types as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any agreement or
arrangement whereby liability for payment of any such amounts is determined by
reference to the liability of any other entity.
107. "Third Party Disbursing Agent" means an entity designated by
Reorganized Oglebay to act as a Disbursing Agent pursuant to Article VI.
108. "Tort Claim" means any Claim that has not been settled, compromised or
otherwise resolved that: (a) arises out of allegations of personal injury,
wrongful death, property damage, products liability or similar legal theories of
recovery; or (b) arises under any federal, state or local statute, rule,
regulation or ordinance governing, regulating or relating to health, safety,
hazardous substances or the environment.
109. "Trade Claim" means any General Unsecured Claim arising from or with
respect to the sale of goods or rendition of services prior to the Petition Date
in the ordinary course of the applicable Debtor's business, including any Claim
of an employee that is not a Priority Claim.
110. "Vessel Term Loan Agreement" means, collectively: (a) the Credit
Agreement, dated as of July 14, 1997, by and among ON Marine Services Co. (as
borrower), ON Marine Services LLC (as borrower) and National City Bank (as
lender); (b) all amendments thereto and extensions thereof; and (c) all security
agreements and instruments related to the documents identified in (a) and (b).
111. "Vessel Term Loan Bank" means National City Bank, as lender under the
Vessel Term Loan Agreement.
112. "Vessel Term Loan Claim" means any Claim against a Debtor under or
evidenced by the Vessel Term Loan Agreement.
113. "Voting Deadline" means the deadline for submitting Ballots to accept
or reject the Plan in accordance with section 1126 of the Bankruptcy Code that
is specified in the Disclosure Statement, the Ballots or related solicitation
documents approved by the Bankruptcy Court.
9
B. RULES OF INTERPRETATION AND COMPUTATION OF TIME
1. RULES OF INTERPRETATION
For purposes of the Plan, unless otherwise provided herein: (a) whenever
from the context it is appropriate, each term, whether stated in the singular or
the plural, will include both the singular and the plural; (b) unless otherwise
provided in the Plan, any reference in the Plan to a contract, instrument,
release or other agreement or document being in a particular form or on
particular terms and conditions means that such document will be substantially
in such form or substantially on such terms and conditions; (c) any reference in
the Plan to an existing document or Exhibit Filed or to be Filed means such
document or Exhibit, as it may have been or may be amended, modified or
supplemented pursuant to the Plan, Confirmation Order or otherwise; (d) any
reference to an entity as a holder of a Claim or Interest includes that entity's
successors, assigns and affiliates; (e) all references in the Plan to Sections,
Articles and Exhibits are references to Sections, Articles and Exhibits of or to
the Plan; (f) the words "herein," "hereunder" and "hereto" refer to the Plan in
its entirety rather than to a particular portion of the Plan; (g) 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; (h) subject to the provisions of any contract, articles or certificates of
incorporation, bylaws, codes of regulation, similar constituent documents,
instrument, release or other agreement or document entered into or delivered in
connection with the Plan, the rights and obligations arising under the Plan will
be governed by, and construed and enforced in accordance with, federal law,
including the Bankruptcy Code and the Bankruptcy Rules; and (i) the rules of
construction set forth in section 102 of the Bankruptcy Code will apply to the
extent not inconsistent with any other provision of this Section I.B.1.
2. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) will apply.
ARTICLE II.
CLASSES OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Claims and Priority Tax
Claims, are placed in the following Classes. In accordance with section
1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax
Claims, as described in Article III.A, have not been classified and thus are
excluded from the following Classes. A Claim or Interest is classified in a
particular Class only to the extent that the Claim or Interest qualifies within
the description of that Class and is classified in other Classes to the extent
that any remainder of the Claim or Interest qualifies within the description of
such other Classes.
A. UNIMPAIRED CLASSES OF CLAIMS AND INTERESTS
1. Class 1 (Priority Claims): Priority Claims against any Debtor that are
entitled to priority under section 507(a)(3), 507(a)(4), 507(a)(5) or 507(a)(6)
of the Bankruptcy Code.
2. Class 2 (Vessel Term Loan Claims): Vessel Term Loan Claims.
3. Class 3 (Old Senior Secured Note Claims): Old Senior Secured Note
Claims.
4. Class 4 (Other Secured Claims): Other Secured Claims.
5. Class 5 (General Unsecured Claims): General Unsecured Claims against any
Debtor, including Claims of the PBGC, Trade Claims, Tort Claims and Secondary
Liability Claims (to the extent that such Claims are General Unsecured Claims).
6. Class 8 (Subsidiary Debtor Equity Interests): Subsidiary Debtor Equity
Interests held directly or indirectly by Oglebay.
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B. IMPAIRED CLASSES OF CLAIMS AND INTERESTS
1. Class 6 (Old Senior Subordinated Note Claims): Old Senior Subordinated
Note Claims.
2. Class 7 (Intercompany Claims): Intercompany Claims that are not
Administrative Claims.
3. Class 9 (Old Common Stock of Oglebay): Interests in respect of the Old
Common Stock of Oglebay and any Claims related thereto.
ARTICLE III.
TREATMENT OF CLAIMS AND INTERESTS
A. UNCLASSIFIED CLAIMS
1. PAYMENT OF ADMINISTRATIVE CLAIMS
a. Administrative Claims in General
Except as specified in this Section III.A.1, and subject to the bar date
provisions herein, unless otherwise agreed by the holder of an Administrative
Claim and the applicable Debtor or Reorganized Debtor or unless an order of the
Bankruptcy Court provides otherwise, each holder of an Allowed Administrative
Claim will receive, in full satisfaction of its Administrative Claim, Cash equal
to the amount of such Allowed Administrative Claim either (i) on the Effective
Date or (ii) if the Administrative Claim is not allowed as of the Effective
Date, 30 days after the date on which an order allowing such Administrative
Claim becomes a Final Order or a Stipulation of Amount and Nature of Claim is
executed by the applicable Reorganized Debtor and the holder of the
Administrative Claim.
b. Statutory Fees
On or before the Effective Date, Administrative Claims for fees payable
pursuant to 28 U.S.C. sec. 1930, as determined by the Bankruptcy Court at the
Confirmation Hearing, will be paid in Cash equal to the amount of such
Administrative Claims. All fees payable pursuant to 28 U.S.C. sec. 1930 will be
paid by the Reorganized Debtors in accordance therewith until the closing of the
Chapter 11 Cases pursuant to section 350(a) of the Bankruptcy Code.
c. Ordinary Course Liabilities
Allowed Administrative Claims based on liabilities incurred by a Debtor in
the ordinary course of its business, including Administrative Trade Claims,
Administrative Claims of governmental units for Taxes (including Tax audit
Claims related to Tax years commencing after the Petition Date), Cure Amount
Claims, Administrative Claims arising from those contracts and leases of the
kind described in Section V.C and Intercompany Claims that are Administrative
Claims, will be paid by the applicable Reorganized Debtor pursuant to the terms
and conditions of the particular transaction giving rise to those Administrative
Claims.
d. Claims Under the First DIP Credit Agreement, Second DIP Credit Agreements
and Related Orders
The Allowed Administrative Claims of the First DIP Lenders were paid in
full by the Debtors prior to the date hereof, and the Debtors have no further
obligations with respect thereto. Unless otherwise agreed by the Second DIP
Lenders pursuant to the Second DIP Credit Agreement, on or before the Effective
Date, Allowed Administrative Claims an account of Second DIP Lender Claims will
be paid in Cash equal to the amount of those Allowed Administrative Claims. The
treatment afforded to holders of Vessel Term Loan Claims and Old Senior Secured
Note Claims as provided in Sections III.B.2 and III.B.3, respectively, shall
satisfy all adequate protection rights related to such Claims.
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e. Special Provisions Regarding the Old Senior Subordinated Note Fee Claims
In full satisfaction of the Old Senior Subordinated Note Fee Claims,
subject to the terms and conditions of this Section III.A.1.e, the Indenture
Trustee and the Old Senior Subordinated Note Professionals will receive from the
Reorganized Debtors Cash equal to the amount of their respective Old Senior
Subordinated Note Fee Claims. Any charging lien held by the Indenture Trustee or
the Old Senior Subordinated Note Professionals against distributions to holders
of the Old Senior Subordinated Notes will be deemed released upon payment of
such Claims; provided, however, that the amount payable to the Indenture Trustee
shall not exceed $ . To receive payment pursuant to this Section
III.A.1.e, (i) the Indenture Trustee and the Old Senior Subordinated Note
Professionals shall provide reasonable detail in support of their respective
Claims to the parties identified in Section XIII.G no later than ten days after
the Effective Date; (ii) such parties shall have the right to File objections to
such Claims based on a "reasonableness" standard within 20 days after receipt of
supporting documentation; and (iii) the Reorganized Debtors shall pay any such
Claims by the later of (A) 30 days after the receipt of supporting documentation
from the Indenture Trustee or the Old Senior Subordinated Note Professionals as
applicable, or (B) ten Business Days after the resolution of any objections to
the Claims of the Indenture Trustee or Old Senior Subordinated Note
Professionals, as applicable. Distributions received by holders of Allowed
Claims in respect of the Old Senior Subordinated Notes pursuant to the Plan will
not be reduced on account of the payment of the Allowed Old Senior Subordinated
Note Fee Claims.
f. Bar Dates for Administrative Claims
I. GENERAL BAR DATE PROVISIONS
Except as otherwise provided in Section III.A.1.f.ii, unless previously
Filed, requests for payment of Administrative Claims must be Filed and served on
the Reorganized Debtors, pursuant to the procedures specified in the
Confirmation Order and the notice of entry of the Confirmation Order, no later
than 30 days after the Effective Date. Holders of Administrative Claims that are
required to File and serve a request for payment of such Administrative Claims
and that do not File and serve such a request by the applicable Bar Date will be
forever barred from asserting such Administrative Claims against the Debtors,
the Reorganized Debtors or their respective property, and such Administrative
Claims will be deemed discharged as of the Effective Date. Objections to such
requests must be Filed and served on the Reorganized Debtors and the requesting
party by the later of (A) 120 days after the Effective Date, (B) 60 days after
the Filing of the applicable request for payment of Administrative Claims or (C)
such other period of limitation as may be specifically fixed by a Final Order
for objecting to such Claims.
II. BAR DATES FOR CERTAIN ADMINISTRATIVE CLAIMS
A. Professional Compensation
Professionals or other entities asserting a Fee Claim for services rendered
before the Effective Date must File and serve on the Reorganized Debtors and
such other entities who are designated by the Bankruptcy Rules, the Confirmation
Order or other order of the Bankruptcy Court an application for final allowance
of such Fee Claim no later than 60 days after the Effective Date; provided,
however, that any professional who may receive compensation or reimbursement of
expenses pursuant to the Ordinary Course Professionals Order may continue to
receive such compensation and reimbursement of expenses for services rendered
before the Effective Date pursuant to the Ordinary Course Professionals Order
without further Bankruptcy Court review or approval (except as provided in the
Ordinary Course Professionals Order). Objections to any Fee Claim must be Filed
and served on the Reorganized Debtors and the requesting party by the later of
(1) 90 days after the Effective Date, (2) 30 days after the Filing of the
applicable request for payment of the Fee Claim or (3) such other period of
limitation as may be specifically fixed by a Final Order for objecting to such
Claims. To the extent necessary, the Confirmation Order will amend and supersede
any previously entered order of the Bankruptcy Court regarding the payment of
Fee Claims.
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B. Ordinary Course Liabilities
Holders of Administrative Claims arising from liabilities incurred by a
Debtor in the ordinary course of its business, including Administrative Trade
Claims, Administrative Claims of governmental units for Taxes (including Tax
Claims relating to audits arising after the Petition Date) Cure Amount Claims,
Administrative Claims arising from those contracts and leases of the kind
described in Section V.C and Intercompany Claims that are Administrative Claims,
will not be required to File or serve any request for payment of such
Administrative Claims. Such Administrative Claims will be satisfied pursuant to
Section III.A.1.c.
C. Claims Under the Second DIP Credit Agreement and Related Orders
Holders of Administrative Claims on account of Second DIP Lender Claims
will not be required to File or serve any request for payment or application for
allowance of such Claims. Such Administrative Claims will be satisfied pursuant
to Section III.A.1.d.
2. PAYMENT OF PRIORITY TAX CLAIMS
a. Priority Tax Claims
Pursuant to section 1129(a)(9)(C) of the Bankruptcy Code, unless otherwise
agreed by the holder of a Priority Tax Claim and the applicable Debtor or
Reorganized Debtor, each holder of an Allowed Priority Tax Claim will receive,
in full satisfaction of its Priority Tax Claim, deferred Cash payments over a
period not exceeding six years from the date of assessment of such Priority Tax
Claim in a principal amount equal to the amount of its Priority Tax Claim.
Payments will be made in equal quarterly installments of principal (commencing
on the later of the first Quarterly Distribution Date or the first Quarterly
Distribution Date following the date such Claim becomes an Allowed Claim), plus
simple interest accruing from the Effective Date at 5% per annum on the unpaid
portion of each Allowed Priority Tax Claim (or upon such other terms determined
by the Bankruptcy Court to provide the holders of Priority Tax Claims with
deferred Cash payments having a value, as of the Effective Date, equal to the
Allowed amount of such Priority Tax Claims). The Reorganized Debtors will have
the right to pay any Allowed Priority Tax Claim, or any remaining balance of
such Priority Tax Claim, in full at any time on or after the Effective Date,
without premium or penalty.
b. Other Provisions Concerning Treatment of Priority Tax Claims
Notwithstanding the provisions of Section III.A.2.a, the holder of an
Allowed Priority Tax Claim will not be entitled to receive any payment on
account of any penalty arising with respect to or in connection with the Allowed
Priority Tax Claim. Any such Claim or demand for any such penalty will be
subject to treatment in Class 5 if not subordinated to Class 5 Claims pursuant
to an Order of the Bankruptcy Court. The holder of an Allowed Priority Tax Claim
will not assess or attempt to collect such penalty from the Debtors, the
Reorganized Debtors or their property.
B. UNIMPAIRED CLASSES OF CLAIMS AND INTERESTS
1. Class 1 Claims (Unsecured Priority Claims) are unimpaired. On the
Effective Date, each holder of an Allowed Claim in Class 1 will receive Cash
equal to the amount of such Allowed Claim, unless the holder of such Claim and
the applicable Debtor or Reorganized Debtor agree to a different treatment.
2. Class 2 Claims (Vessel Term Loan Claims) are unimpaired. The Vessel Term
Loan Claims are hereby allowed in the aggregate principal amount of
$13,400,000.00, plus accrued and unpaid interest at the non-default rate through
the Effective Date. On the Effective Date, all Allowed Vessel Term Loan Claims
will be Reinstated. In addition, each holder of an Allowed Vessel Term Loan
Claim shall be entitled to retain all amounts paid to it or on its behalf as
adequate protection (and receive and retain any other amounts that as of the
Effective Date are due as adequate protection under the First Final DIP Order or
the Final Order authorizing the Debtors to enter into the Second DIP Credit
Agreement but not previously paid).
3. Class 3 Claims (Old Senior Secured Note Claims) are unimpaired. The Old
Senior Secured Note Claims are hereby allowed in the aggregate principal amount
of $75,000,000.00, plus accrued and unpaid
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interest at the non-default rate through the Effective Date. On the Effective
Date, all Allowed Old Senior Secured Note Claims will be paid in Cash in full.
In addition, each holder of an Allowed Senior Secured Note Claim shall be
entitled to retain all amounts paid to it or on its behalf as adequate
protection (and receive and retain any other amounts that as of the Effective
Date are due as adequate protection under the First Final DIP Order and the
Final Order authorizing the Debtors to enter into the Second DIP Credit
Agreement but not previously paid).
4. Class 4 Claims (Other Secured Claims) are unimpaired. On the Effective
Date, unless otherwise agreed by a Claim holder and the applicable Debtor or
Reorganized Debtor, each holder of an Allowed Claim in Class 4 will receive
treatment on account of such Allowed Claim in the manner set forth in Option A,
B or C below, at the election of the applicable Debtor. The applicable Debtor
will be deemed to have elected Option B except with respect to any Allowed Claim
as to which the applicable Debtor elects Option A or Option C in one or more
certifications Filed prior to the conclusion of the Confirmation Hearing.
Option A: On the Effective Date, Allowed Claims in Class 4 with
respect to which the applicable Debtor elects Option A will be paid in Cash
in full.
Option B: On the Effective Date, Allowed Claims in Class 4 with
respect to which the applicable Debtor elects or is deemed to have elected
Option B will be Reinstated.
Option C: On the Effective Date, a holder of an Allowed Claim in
Class 4 with respect to which the applicable Debtor elects Option C will be
entitled to receive (and the applicable Debtor shall release and transfer
to such holder) the collateral securing such Allowed Claim.
5. Class 5 Claims (General Unsecured Claims) are unimpaired. On the
Effective Date, holders of Allowed General Unsecured Claims, at the election of
the applicable Debtor or Reorganized Debtor, will (a) receive Cash equal to the
principal amount of its Allowed General Unsecured Claim or (b) have the
principal amount of its Allowed General Unsecured Claim Reinstated. On the
Effective Date, all Tort Claims will be Reinstated in accordance with Section
I.A.92.a.
6. Class 8 (Subsidiary Debtor Equity Interests) are unimpaired. On the
Effective Date, the Subsidiary Debtor Equity Interests will be Reinstated,
subject to the Restructuring Transactions.
C. IMPAIRED CLASSES OF CLAIMS AND INTERESTS
1. Class 6 Claims (Old Senior Subordinated Note Claims) are impaired. The
Old Senior Subordinated Note Claims are hereby allowed in the aggregate
principal amount of $100,000,000.00. On the Effective Date, each holder of an
Allowed Old Senior Subordinated Note Claim will receive in respect of such
Allowed Claim against all of the Debtors its Pro Rata share of [ ]
shares of New Common Stock.
2. Class 7 Claims (Intercompany Claims) are impaired. As of the Effective
Date, each Allowed Intercompany Claim shall be extinguished by either offset,
distribution, contribution or reconciliation of such Intercompany Claim or as
otherwise deemed appropriate by the applicable Debtors. No property will be
distributed to or retained by the holders of Allowed Intercompany Claims, and
such Claims will be discharged as of the Effective Date. Notwithstanding this
treatment of Class 7 Claims, each of the holders of an Intercompany Claim will
be deemed to have accepted the Plan.
3. Class 9 Interests (Old Common Stock of Oglebay) are impaired. On the
Effective Date, each holder of an Allowed Interest on account of Old Common
Stock of Oglebay will receive New Warrants to purchase shares of New Common
Stock. A holder of Old Common Stock of Oglebay who does not hold an Allowed
Interest on the Distribution Record Date will not receive any New Warrants.
D. SPECIAL PROVISIONS REGARDING THE TREATMENT OF ALLOWED SECONDARY LIABILITY
CLAIMS; MAXIMUM RECOVERY
1. The classification and treatment of Allowed Claims under the Plan take
into consideration all Secondary Liability Claims. Consistent with Article VIII,
holders of Allowed Secondary Liability Claims will
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be entitled to only one distribution on account of such underlying Claim. No
multiple recovery on account of any Allowed Secondary Liability Claim will be
provided or permitted.
2. Notwithstanding any provision hereof to the contrary, a creditor holding
multiple Allowed Claims against more than one Debtor that do not constitute
Secondary Liability Claims and that arise from the contractual joint, joint and
several or several liability of such Debtors, the guaranty by one Debtor of
another Debtor's obligation or other similar circumstances may not receive in
the aggregate from all Debtors more than 100% of the amount of the underlying
Claim giving rise to such multiple Claims.
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. CONTINUED CORPORATE EXISTENCE AND VESTING OF ASSETS IN THE REORGANIZED
DEBTOS
Except as otherwise provided herein (including with respect to the
Restructuring Transactions described in Section IV.B), each Debtor will, as a
Reorganized Debtor, continue to exist after the Effective Date as a separate
corporate entity, with all of the powers of a corporation under applicable law
and without prejudice to any right to alter or terminate such existence (whether
by merger, dissolution or otherwise) under applicable state law. Except as
otherwise provided herein, as of the Effective Date, all property of the Estate
of a Debtor, and any property acquired by a Debtor or Reorganized Debtor under
the Plan, will vest in such Reorganized Debtor, free and clear of all Claims,
liens, charges, other encumbrances, Interests and other interests. On and after
the Effective Date, each Reorganized Debtor may operate its business and may
use, acquire and dispose of property and compromise or settle any Claims without
supervision or approval by the Bankruptcy Court and free of any restrictions of
the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Plan or the Confirmation Order. Without limiting the foregoing,
each Reorganized Debtor may pay the charges that it incurs on or after the
Effective Date for Professionals' fees, disbursements, expenses or related
support services (including fees relating to the preparation of Professional fee
applications) without application to the Bankruptcy Court.
B. RESTRUCTURING TRANSACTIONS
1. RESTRUCTURING TRANSACTIONS GENERALLY
On or after the Confirmation Date, the applicable Debtors or Reorganized
Debtors may enter into such restructuring transactions and may take such actions
as the Debtors or Reorganized Debtors may determine to be necessary or
appropriate to effect a corporate restructuring of their respective businesses
or simplify the overall corporate structure of the Reorganized Debtors
(collectively, the "Restructuring Transactions"), all to the extent not
inconsistent with any other terms of the Plan. Such Restructuring Transactions
may include one or more mergers, consolidations, restructurings, dispositions,
liquidations or dissolutions, as may be determined by the Debtors or the
Reorganized Debtors to be necessary or appropriate. The actions to effect these
transactions may include: (a) the execution and delivery of appropriate
agreements or other documents of merger, consolidation, restructuring,
disposition, liquidation or dissolution containing terms that are consistent
with the terms of the Plan and that satisfy the applicable requirements of
applicable state law and such other terms to which the applicable entities may
agree; (b) the execution and delivery of appropriate instruments of transfer,
assignment, assumption or delegation of any asset, property, right, liability,
duty or obligation on terms consistent with the terms of the Plan and having
such other terms to which the applicable entities may agree; (c) the filing of
appropriate certificates or articles of merger, consolidation, dissolution or
change in corporate form pursuant to applicable state law; and (d) the taking of
all other actions that the applicable entities determine to be necessary or
appropriate, including making filings or recordings that may be required by
applicable state law in connection with such transactions. Consistent with
Section IV.B.2, with respect to any Debtor or Reorganized Debtor, the documents
implementing any Restructuring Transaction shall clearly grant to creditors of
such Debtor or Reorganized Debtor status as third party beneficiaries to such
rights granted in this Plan against the resulting or acquiring corporation or
entity.
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2. OBLIGATIONS OF ANY SUCCESSOR CORPORATION IN A RESTRUCTURING TRANSACTION
The Restructuring Transactions may result in substantially all of the
respective assets, properties, rights, liabilities, duties and obligations of
certain of the Reorganized Debtors vesting in one or more surviving, resulting
or acquiring corporations. In each case in which the surviving, resulting or
acquiring corporation in any such transaction is a successor to a Reorganized
Debtor, such surviving, resulting or acquiring corporation will perform the
obligations of the applicable Reorganized Debtor pursuant to the Plan to pay or
otherwise satisfy the Allowed Claims against such Reorganized Debtor, except as
provided in any contract, instrument or other agreement or document effecting a
disposition to such surviving, resulting or acquiring corporation, which may
provide that another Reorganized Debtor will perform such obligations.
C. CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS, EMPLOYMENT-RELATED AGREEMENTS
AND COMPENSATION PROGRAMS
1. CERTIFICATES OF INCORPORATION AND BYLAWS
As of the Effective Date, the certificates of incorporation and the bylaws
(or comparable constituent documents) of the Reorganized Debtors will be
substantially in the forms set forth in Exhibits IV.C.1.a and IV.C.1.b,
respectively. The certificates of incorporation and bylaws (or comparable
constituent documents) of each Reorganized Debtor, among other things, will: (a)
prohibit the issuance of nonvoting equity securities to the extent required by
section 1123(a) of the Bankruptcy Code; and (b) in the case of Reorganized
Oglebay, effective immediately after the cancellation of the Old Oglebay Common
Stock as set forth in Section IV.G.3 and Section IV.F, (i) authorize the
issuance of New Common Stock in amounts not less than the amounts necessary to
permit the distributions required or contemplated by the Plan and (ii) authorize
the issuance of the New Preferred Stock. After the Effective Date, each
Reorganized Debtor may amend and restate its articles of incorporation or bylaws
(or comparable constituent documents) as permitted by applicable state law,
subject to the terms and conditions of such constituent documents. On the
Effective Date, or as soon thereafter as is practicable, each Reorganized Debtor
shall file such certificate of incorporation (or comparable constituent
documents) with the secretary of state of the state in which such Reorganized
Debtor is incorporated or organized, to the extent required by and in accordance
with the applicable corporate law of such state.
2. DIRECTORS AND OFFICERS OF THE REORGANIZED DEBTORS
Subject to any requirement of Bankruptcy Court approval pursuant to section
1129(a)(5) of the Bankruptcy Code, except as set forth on Exhibit IV.C.2, the
initial officers of each of the Reorganized Debtors will consist of the officers
of such Debtor immediately prior to the Effective Date and the initial board of
directors of each of the Reorganized Debtors will consist of the individuals
identified on, or will be designated pursuant to the procedures specified on,
Exhibit IV.C.2. Each such director and officer will serve from and after the
Effective Date until his or her successor is duly elected or appointed and
qualified or until his or her earlier death, resignation or removal in
accordance with the terms of the certificate of incorporation and bylaws (or
comparable constituent documents) of the respective Reorganized Debtor and state
law.
3. EMPLOYMENT, RETIREMENT AND OTHER RELATED AGREEMENTS AND MANAGEMENT STOCK
PROGRAMS; RETIREE BENEFITS; WORKERS' COMPENSATION PROGRAMS
a. Subject to Section IV.C.3.b, as of the Effective Date, each of the
Reorganized Debtors will have authority to: (i) maintain, reinstate, amend or
revise existing employment, retirement, welfare, incentive, severance,
indemnification and other agreements with its active and retired directors,
officers and employees, subject to the terms and conditions of any such
agreement; (ii) enter into new employment, retirement, welfare, incentive,
severance, indemnification and other agreements for active and retired
employees; (iii) enter into and implement the Management Incentive Plan; and
(iv) enter into and make the initial grants under the Management Stock Plan. On
the Effective Date, Reorganized Oglebay will enter into management employment
agreements with Michael D. Lundin, Julie A. Boland, Sylvie A. Bon, Michael J.
Minkel and Rochelle F. Walk, on the terms set forth in Exhibit IV.C.3.a.
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b. From and after the Effective Date, the Reorganized Debtors will be
obligated to pay retiree benefits (as defined in section 1114(a) of the
Bankruptcy Code), if any, in accordance with the terms of the retiree benefit
plans or other agreements governing the payment of such benefits, subject to any
rights to amend, modify or terminate such benefits under the terms of the
applicable retiree benefits plan, other agreement or applicable nonbankruptcy
law.
c. From and after the Effective Date, the Reorganized Debtors will continue
to administer and pay the Claims arising before the Petition Date under the
Debtors' workers' compensation programs in accordance with the Order Authorizing
Debtors and Debtors in Possession to: (A) Continue Their Workers' Compensation
Insurance Programs; and (B) Pay Certain Prepetition Workers' Compensation
Claims, Premiums and Related Expenses, entered on February 24, 2004.
d. Consummation of the Plan is not intended to and shall not constitute a
change in ownership or change in control, as defined in any employment agreement
or plan in effect on the Effective Date to which a Debtor is a party.
4. CORPORATE ACTION
The Restructuring Transactions; the adoption of new or amended and restated
certificates of incorporation and bylaws (or comparable constituent documents)
for each Reorganized Debtor; the initial selection of directors and officers for
each Reorganized Debtor; the entry into the Confirmation Facility; the
distribution of Cash pursuant to the Plan; the issuance and distribution of New
Common Stock pursuant to the Plan; the issuance and distribution of the New
Preferred Stock; the adoption, execution, delivery and implementation of all
contracts, leases, instruments, releases and other agreements or documents
related to any of the foregoing; the adoption, execution and implementation of
employment, retirement and indemnification agreements, incentive compensation
programs, retirement income plans, welfare benefit plans and other employee
plans and related agreements, including the Management Incentive Plan and the
Management Stock Plan and the other matters provided for under the Plan
involving the corporate structure of the Debtors or Reorganized Debtors or
corporate action to be taken by or required of a Debtor or Reorganized Debtor
will occur and be effective as of the Effective Date, if no such other date is
specified in such other documents, and will be authorized and approved in all
respects and for all purposes without any requirement of further action by the
stockholders or directors of the Debtors or the Reorganized Debtors.
D. CONFIRMATION FACILITY; NEW EQUITY INVESTMENT; OBTAINING CASH FOR PLAN
DISTRIBUTIONS
1. CONFIRMATION FACILITY
On the Effective Date, the Reorganized Debtors are authorized to execute
and deliver those documents necessary or appropriate to obtain the Confirmation
Facility and to take all actions contemplated thereby.
2. NEW EQUITY INVESTMENT
On the Effective Date, the New Equity Investors will make the New Equity
Investment. Also on the Effective Date, the Reorganized Debtors are authorized
to execute and deliver those documents necessary or appropriate to facilitate
the offer and issuance of the New Preferred Stock pursuant to the Registration
Statement to the New Equity Investors and to take the actions contemplated
thereby.
3. CASH FOR PLAN DISTRIBUTIONS
All Cash necessary for the Reorganized Debtors to make payments pursuant to
the Plan will be obtained from the Reorganized Debtors' cash balances and
operations, the issuance of New Preferred Stock and/or the Confirmation
Facility.
17
E. PRESERVATION OF RIGHTS OF ACTION; SETTLEMENT AGREEMENTS AND RELEASES
1. PRESERVATION OF RIGHTS OF ACTION BY THE DEBTORS AND THE REORGANIZED
DEBTORS; RECOVERY ACTIONS
a. Except as otherwise provided in the Plan or in any contract, instrument,
release or other agreement entered into or delivered in connection with the
Plan, in accordance with section 1123(b) of the Bankruptcy Code, the Reorganized
Debtors will retain and may enforce any claims, demands, rights, defenses and
causes of action that the Debtor or the Estate may hold against any entity. Each
Reorganized Debtor or its successor may pursue such retained claims, demands,
rights, defenses or causes of action, as appropriate, in accordance with the
best interests of such Reorganized Debtor or its successor holding such claims,
demands, rights, defenses or causes of action.
b. On the Effective Date, the Debtors will be deemed to have released and
abandoned the Recovery Actions.
2. COMPREHENSIVE SETTLEMENT OF CLAIMS AND CONTROVERSIES
Pursuant to Bankruptcy Rule 9019 and in consideration for the distributions
and other benefits provided under the Plan, the provisions of the Plan,
including the releases set forth in Section IV.E.3, will constitute a good faith
compromise and settlement of all claims or controversies relating to the rights
that a holder of a Claim or Interest may have with respect to any Allowed Claim
or Allowed Interest or any distribution to be made pursuant to the Plan on
account of any Allowed Claim or Allowed Interest. The entry of the Confirmation
Order will constitute the Bankruptcy Court's approval, as of the Effective Date,
of the compromise or settlement of all such claims or controversies and the
Bankruptcy Court's finding that such compromise or settlement is in the best
interests of the Debtors, Reorganized Debtors, Estates and their respective
property and Claim and Interest holders and is fair, equitable and reasonable.
3. RELEASES
a. General Releases of Debtors and Reorganized Debtors
Except as otherwise expressly set forth in the Plan, on and after the
Effective Date, the Debtors are released from all claims (including the right of
a party other than the Debtors, if any, to pursue a Derivative Claim on behalf
of the Debtors or their Estates), obligations, suits, judgments, damages,
demands, debts, rights, causes of action and liabilities, whether liquidated or
contingent, known or unknown, foreseen or unforeseen, in law or in equity, from
the beginning of time through the Effective Date.
b. General Releases by Debtors and Reorganized Debtors
Without limiting any other applicable provisions of or releases contained
in the Plan, as of the Effective Date, the Debtors and the Reorganized Debtors,
on behalf of themselves and their affiliates, the Estates and their respective
successors, assigns and any and all entities who may purport to claim by,
through, for or because of them, including any person appointed pursuant to
section 1123(b)(3) to pursue Recovery Actions, will forever release, waive and
discharge all Liabilities that they have, had or may have against any Released
Party.
c. General Releases by Holders of Claims or Interests
Without limiting any other applicable provisions of or releases contained
in the Plan, as of the Effective Date, 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 entered into or
delivered in connection with the Plan, each holder of a Claim or Interest that
votes in favor of the Plan will be deemed to forever release, waive and
discharge all Liabilities in any way relating to a Debtor, the Chapter 11 Cases,
the Estates, the Plan or the Disclosure Statement that such entity has, had or
may have against any Released Party (which release will be in addition to the
discharge of Claims and termination of Interests provided herein and under the
Confirmation Order and the Bankruptcy Code).
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d. Injunction Related to Releases
As further provided in Section XI.B, the Confirmation Order will
permanently enjoin the commencement or prosecution by any entity or person,
whether directly, derivatively or otherwise, of any claims, obligations, suits,
judgments, damages, demands, debts, rights, causes of action, liabilities,
rights of contribution or rights of indemnification released pursuant to the
Plan, including pursuant to the releases in this Section IV.E.3.
F. SPECIAL PROVISIONS REGARDING INSURED CLAIMS
1. LIMITATIONS ON AMOUNTS TO BE DISTRIBUTED TO HOLDERS OF ALLOWED CLAIMS
Distributions under the Plan to each holder of an Allowed Insured Claim
will be in accordance with the treatment provided under the Plan for the Class
in which such Allowed Insured Claim is classified, but solely to the extent that
such Allowed Insured Claim is not satisfied from proceeds payable to the holder
thereof under any pertinent insurance policies and applicable law. Nothing in
this Section IV.F will constitute a waiver of any claims, obligations, suits,
judgments, damages, demands, debts, rights, causes of action or liabilities that
any entity may hold against any other entity, including the Debtors' insurance
carriers.
2. REINSTATEMENT AND CONTINUATION OF INSURANCE POLICIES
From and after the Effective Date, each of the Debtors' insurance policies
in existence as of the Effective Date shall be reinstated and continued in
accordance with their terms and, to the extent applicable, shall be deemed
assumed or assumed and assigned by the applicable Debtor or Reorganized Debtor
pursuant to section 365 of the Bankruptcy Code and Section V.A of the Plan. Each
insurance carrier under such insurance policies shall continue to honor and
administer the policies with respect to the Reorganized Debtors in the same
manner and according to the same terms and practices applicable to the Debtors
prior to the Effective Date.
G. CANCELLATION AND SURRENDER OF INSTRUMENTS, SECURITIES AND OTHER
DOCUMENTATION
1. PREPETITION SECURED DEBT
Except as provided in any contract, instrument or other agreement or
document entered into or delivered in connection with the Plan, on the Effective
Date and concurrently with the applicable distributions made pursuant to Article
III, the Old Senior Secured Notes Agreement (and, to the extent not already
canceled, the Prepetition Credit Facility and the Prepetition Term Loan
Agreement), and any notes issued in respect thereof, will be canceled and of no
further force and effect, without any further action on the part of the Debtors
or the Reorganized Debtors. The holders of or parties to such canceled
instruments, securities and other documentation will have no rights arising from
or relating to such instruments, securities and other documentation or the
cancellation thereof, except the rights provided pursuant to the Plan; provided,
however, that no distribution under the Plan will be made to or on behalf of any
holder of an Allowed Claim evidenced by such canceled instruments or securities
unless and until such instruments or securities are received by the applicable
Disbursing Agent to the extent required in Section VI.J. Notwithstanding the
foregoing, the cancellation of the Prepetition Credit Facility, the Prepetition
Term Loan Agreement and the Old Senior Secured Notes Agreement shall not affect
the respective rights and obligations between and among the lenders and agents
party thereto.
2. OLD SENIOR SUBORDINATED NOTES
Except as provided in any contract, instrument or other agreement or
document entered into or delivered in connection with the Plan, on the Effective
Date and concurrently with the applicable distributions made pursuant to Article
III, the Old Senior Subordinated Note Indenture and the Old Senior Subordinated
Notes will be deemed canceled and of no further force and effect against the
Debtors, without any further action on the part of any Debtor. The holders of
the Old Senior Subordinated Notes will have no rights against the Debtors
arising from or relating to such instruments and other documentation or the
cancellation thereof, except the rights provided pursuant to the Plan; provided,
however, that no distribution under the Plan will be
19
made to or on behalf of any holder of an Allowed Old Senior Subordinated Note
Claim until such Old Senior Subordinated Notes are received by the applicable
Third Party Disbursing Agent to the extent required in Section VI.I.
3. OLD COMMON STOCK
The Old Common Stock of Oglebay shall be deemed canceled and of no further
force and effect on the Effective Date. The holders of or parties to such
canceled securities and other documentation will have no rights arising from or
relating to such securities and other documentation or the cancellation thereof,
except the rights provided pursuant to the Plan; provided, however, that no
exercise of a New Warrant distributed under the Plan will be recognized, and no
shares of New Common Stock distributed to or behalf of any holder of Old Common
Stock of Oglebay exercising such New Warrant, until such Old Common Stock is
received by Reorganized Oglebay or the applicable Third Party Disbursing Agent
to the extent required in Section VI.I.
H. RELEASE OF LIENS
Except as otherwise provided in the Plan or in any contract, instrument,
release or other agreement or document entered into or delivered in connection
with the Plan, on the Effective Date and concurrently with the applicable
distributions made pursuant to Article III, all mortgages, deeds of trust, liens
or other security interests against the property of any Estate will be fully
released and discharged, and all of the right, title and interest of any holder
of such mortgages, deeds of trust, liens or other security interests, including
any rights to any collateral thereunder, will revert to the applicable
Reorganized Debtor and its successors and assigns. As of the Effective Date, the
Reorganized Debtors shall be authorized to execute and file on behalf of
creditors Form UCC-3s or other forms as may be necessary to implement the
provisions of this Section IV.H.
I. NEW STOCKHOLDERS' AGREEMENT
On and after the Effective Date, Reorganized Oglebay, the holders of all
New Common Stock issued or to be issued under the Plan and all participants in
the Management Stock Plan shall be deemed to be bound by the provisions of the
New Stockholders' Agreement. By accepting distributions of New Common Stock or
New Warrants pursuant to the Plan, holders of Allowed Claims and Allowed
Interests shall be deemed to have executed and delivered the New Stockholders'
Agreement as if such entity had done so manually after due authorization.
J. EFFECTUATING DOCUMENTS; FURTHER TRANSACTIONS; EXEMPTION FROM CERTAIN
TRANSFER TAXES
The President and Chief Executive Officer, the Chief Financial Officer or
any Vice President of each Debtor or Reorganized Debtor will be authorized to
execute, deliver, file or record such contracts, instruments, releases and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate and implement the provisions of the Plan. The Secretary or any
Assistant Secretary of each Debtor or Reorganized Debtor will be authorized to
certify or attest to any of the foregoing actions. Pursuant to section 1146(c)
of the Bankruptcy Code, the following will not be subject to any stamp Tax, real
estate transfer Tax or similar Tax: (1) the issuance, transfer or exchange of
New Common Stock or New Preferred Stock; (2) the making of the New Equity
Investment; (3) the creation of any mortgage, deed of trust, lien or other
security interest; (4) the making or assignment of any lease or sublease; (5)
the execution and delivery of the Confirmation Facility; (6) any Restructuring
Transaction; or (7) the making or delivery of any deed or other instrument of
transfer under, in furtherance of or in connection with the Plan, including any
merger agreements, agreements of consolidation, restructuring, disposition,
liquidation or dissolution, deeds, bills of sale, or assignments executed in
connection with any of the foregoing or pursuant to the Plan.
20
ARTICLE V.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
1. ASSUMPTION GENERALLY
Except as otherwise provided in the Plan, in any contract, instrument,
release or other agreement or document entered into in connection with the Plan
or in a Final Order of the Bankruptcy Court, or as requested in any motion Filed
on or prior to the Effective Date, on the Effective Date, pursuant to section
365 of the Bankruptcy Code, the Debtors will be deemed to assume each Executory
Contract and Unexpired Lease.
2. REAL PROPERTY EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Each Real Property Executory Contract and Unexpired Lease will include any
modifications, amendments, supplements, restatements or other agreements made
directly or indirectly by any agreement, instrument or other document that in
any manner affects such contract or lease.
3. APPROVAL OF ASSUMPTIONS AND ASSIGNMENTS; ASSIGNMENTS RELATED TO
RESTRUCTURING TRANSACTIONS
The Confirmation Order will constitute an order of the Bankruptcy Court
approving the assumption (including any related assignment resulting from the
Restructuring Transactions) of Executory Contracts and Unexpired Leases pursuant
to Section V.A as of the Effective Date, except for Executory Contracts and
Unexpired Leases that (a) have been rejected pursuant to a Final Order of the
Bankruptcy Court, (b) are subject to a pending motion for reconsideration or
appeal of an order authorizing the rejection of such Executory Contract or
Unexpired Lease, (c) are subject to a motion to reject such Executory Contract
or Unexpired Lease Filed on or prior to the Effective Date or (d) are designated
for rejection in accordance with the last sentence of this paragraph. An order
of the Bankruptcy Court entered on or prior to the Confirmation Date will
specify the procedures for providing notice to each party whose Executory
Contract and Unexpired Lease is being assumed pursuant to the Plan of: (a) the
contract or lease being assumed; (b) the Cure Amount Claim, if any, that the
applicable Debtor believes it would be obligated to pay in connection with such
assumption; (c) any assignment of the contract or lease (pursuant to the
Restructuring Transactions or otherwise); and (d) the procedures for such party
to object to the assumption of the applicable contract or lease, the amount of
the proposed Cure Amount Claim or any assignment of the contract or lease. As of
the effective time of an applicable Restructuring Transaction, any Executory
Contract or Unexpired Lease to be held by any Debtor or Reorganized Debtor and
assumed hereunder or otherwise in the Chapter 11 Cases will be deemed assigned
to the surviving, resulting or acquiring corporation in the applicable
Restructuring Transaction, pursuant to section 365 of the Bankruptcy Code. If an
objection to a proposed assumption, assumption and assignment or Cure Amount
Claim is not resolved in favor of the Debtors or the Reorganized Debtors, the
applicable Executory Contract or Unexpired Lease may be designated by the
Debtors or the Reorganized Debtors for rejection, which shall be deemed
effective as of the Effective Date.
B. PAYMENTS RELATED TO THE ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES
To the extent that such Claims constitute monetary defaults, the Cure
Amount Claims associated with each Executory Contract and Unexpired Lease to be
assumed pursuant to the Plan will be satisfied, pursuant to section 365(b)(1) of
the Bankruptcy Code, at the option of the applicable Debtor or Reorganized
Debtor: (1) by payment of the Cure Amount Claim in Cash on the Effective Date or
(2) on such other terms as are agreed to by the parties to such Executory
Contract and Unexpired Lease. If there is a dispute regarding: (1) the amount of
any Cure Amount Claim, (2) the ability of the applicable Reorganized Debtor or
any assignee to provide "adequate assurance of future performance" (within the
meaning of section 365 of the Bankruptcy Code) under the contract or lease to be
assumed or (3) any other matter pertaining to assumption of such contract or
lease, the payment of any Cure Amount Claim required by section 365(b)(1) of the
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Bankruptcy Code will be made within 30 days following the entry of a Final Order
resolving the dispute and approving the assumption.
C. CONTRACTS AND LEASES ENTERED INTO AFTER THE PETITION DATE
Contracts and leases entered into after the Petition Date by a Debtor,
including any Executory Contracts and Unexpired Leases assumed by a Debtor, will
be performed by such Debtor or Reorganized Debtor in the ordinary course of its
business. Accordingly, such contracts and leases (including any assumed
Executory Contracts and Unexpired Leases) will survive and remain unaffected by
entry of the Confirmation Order.
D. REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Any Claims arising from the rejection of any Executory Contract or
Unexpired Lease will be treated as a Class 5 (General Unsecured Claims) or a
Class 7 (Intercompany Claims), subject to the provisions of section 502 of the
Bankruptcy Code.
E. BAR DATE FOR REJECTION DAMAGES
Except as otherwise provided in a Final Order of the Bankruptcy Court
approving the rejection of an Executory Contract or Unexpired Lease, Claims
arising out of the rejection of an Executory Contract or Unexpired Lease must be
Filed with the Bankruptcy Court on or before the later of: (1) 30 days after the
Effective Date or (2) 20 days after such Executory Contract or Unexpired Lease
is rejected pursuant to a Final Order or designated for rejection in accordance
with Section V.A.3. Any Claims not Filed within such applicable time periods
will be forever barred from receiving a distribution from the Debtors, the
Reorganized Debtors or the Estates.
F. OBLIGATIONS TO INDEMNIFY DIRECTORS, OFFICERS AND EMPLOYEES
a. Prior to the Effective Date, Oglebay shall make arrangements to continue
directors and officers liability and fiduciary (including ERISA) insurance, or
purchase a tail policy or policies, for the benefit of its directors, officers
and employees for the period from and after the Effective Date, and, prior to
the Effective Date, shall fully pay the annual premium for such insurance.
b. The obligations of each Debtor or Reorganized Debtor to indemnify any
person who is serving or has served as one of its directors, officers or
employees by reason of such person's prior or future service in such a capacity
or as a director, officer or employee of another corporation, partnership or
other legal entity, to the extent provided in the applicable certificates of
incorporation, by-laws or similar constituent documents, by statutory law or by
written agreement, policies or procedures of or with such Debtor, will be deemed
and treated as executory contracts that are assumed by the applicable Debtor or
Reorganized Debtor pursuant to the Plan and section 365 of the Bankruptcy Code
as of the Effective Date. Accordingly, such indemnification obligations will
survive and be unaffected by entry of the Confirmation Order, irrespective of
whether such indemnification is owed for an act or event occurring before or
after the Petition Date.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. DISTRIBUTIONS FOR CLAIMS AND INTERESTS ALLOWED AS OF THE EFFECTIVE DATE
Except as otherwise provided in this Article VI, distributions of Cash, New
Common Stock and New Warrants to be made on the Effective Date to holders of
Claims or Interests as provided by Article III that are allowed as of the
Effective Date will be deemed made on the Effective Date if made on the
Effective Date or as promptly thereafter as practicable, but in any event no
later than: (1) 60 days after the Effective Date or, with respect to New
Warrants, 15 days after the Effective Date; or (2) with respect to any
particular Claim, such later date when the applicable conditions of Section V.B
(regarding cure payments for Executory Contracts and Unexpired Leases being
assumed), Section VI.D.2 (regarding undeliverable distributions) or
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Section VI.I (regarding surrender of canceled instruments and securities) are
satisfied. Distributions on account of Claims that become Allowed Claims after
the Effective Date will be made pursuant to Section VII.C.
B. METHOD OF DISTRIBUTIONS TO HOLDERS OF CLAIMS AND INTERESTS
The applicable Reorganized Debtor, or such Third Party Disbursing Agents as
Reorganized Oglebay may employ in its sole discretion, will make all
distributions of Cash, New Common Stock, New Warrants and other instruments or
documents required under the Plan. Each Disbursing Agent will serve without
bond, and any Disbursing Agent may employ or contract with other entities to
assist in or make the distributions required by the Plan. The Indenture Trustee
will act as Third Party Disbursing Agent in respect of Class 6 Claims.
C. COMPENSATION AND REIMBURSEMENT FOR SERVICES RELATED TO DISTRIBUTIONS
Each Third Party Disbursing Agent providing services related to
distributions pursuant to the Plan will receive from Reorganized Oglebay,
without further Bankruptcy Court approval, reasonable compensation for such
services and reimbursement of reasonable out-of-pocket expenses incurred in
connection with such services. These payments will be made on terms agreed to
with Reorganized Oglebay and will not be deducted from distributions to be made
pursuant to the Plan to holders of Allowed Claims receiving distributions from a
Third Party Disbursing Agent.
D. DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS
1. DELIVERY OF DISTRIBUTIONS
a. Generally
Except as provided in Section VI.D.1.b, distributions to holders of Allowed
Claims and Allowed Interests will be made by a Disbursing Agent: (a) at the
addresses set forth on the respective proofs of Claim Filed by holders of such
Claims; (b) at the addresses set forth in any written certification of address
change delivered to the Disbursing Agent (including pursuant to a letter of
transmittal delivered to a Disbursing Agent) after the date of Filing of any
related proof of Claim; (c) at the addresses reflected in the applicable
Debtor's Schedules if no proof of Claim has been Filed and the Disbursing Agent
has not received a written notice of a change of address; or (d) if clauses (a),
(b) and (c) are not applicable, at the last address directed by such holder
after such Claim becomes an Allowed Claim.
b. Special Provisions for Distributions to Holders of Old Senior Secured Note
Claims, Old Senior Subordinated Note Claims and Old Common Stock of
Oglebay
i. Subject to the requirements of Section VI.H, distributions to
holders of Allowed Old Senior Secured Note Claims and Allowed Old Senior
Subordinated Note Claims will be made by a Disbursing Agent to the record
holders of the Senior Secured Notes and Senior Subordinated Notes as of the
Distribution Record Date, as identified on a record holder register to be
provided to the Disbursing Agent by the Ad Hoc Noteholders' Committee or
the Indenture Trustee, as applicable, within five Business Days after the
Distribution Record Date. This record holder register (i) will provide the
name, address and holdings of each respective registered holder as of the
Distribution Record Date and (ii) must be consistent with the applicable
holder's Claim, if Filed, or as otherwise determined by the Court or the
Indenture Trustee's Allowed Claim, as applicable.
ii. Subject to the requirements of Section VI.H, distributions to
holders of Allowed Interests on account of Old Common Stock of Oglebay will
be made by a Disbursing Agent at the address of such record holder listed
with the registrar or transfer agent for such Interest, to be provided by
such registrar or transfer agent to the Disbursing Agent within five
Business Days after the Distribution Record Date.
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2. UNDELIVERABLE DISTRIBUTIONS HELD BY DISBURSING AGENTS
a. Holding of Undeliverable Distributions; Undelivered New Common Stock
i. Subject to Section VI.D.2.c, distributions returned to a Disbursing
Agent or otherwise undeliverable will remain in the possession of the
applicable Disbursing Agent pursuant to this Section VI.D.2.a.i until such
time as a distribution becomes deliverable. Subject to Section VI.D.2.c,
undeliverable Cash, New Common Stock or New Warrants will be held by the
applicable Disbursing Agent for the benefit of the potential claimants of
such securities.
ii. Pending the distribution of any New Common Stock, the applicable
Disbursing Agent will cause all of the New Common Stock held by it in its
capacity as Disbursing Agent, whether relating to undeliverable
distributions or simply undelivered distributions, to be (A) represented in
person or by proxy at each meeting of the stockholders of Reorganized
Oglebay, (B) voted in any election of directors of Reorganized Oglebay (as
if such New Common Stock had been delivered to the entity entitled to
receive such stock under the Plan) and (C) voted with respect to any other
matter as recommended by the board of directors of Reorganized Oglebay.
b. After Distributions Become Deliverable
On each Quarterly Distribution Date, the applicable Disbursing Agents will
make all distributions that become deliverable to holders of Allowed Claims
during the preceding calendar quarter.
c. Failure to Claim Undeliverable Distributions
Any holder of an Allowed Claim that does not assert a claim pursuant to the
Plan for an undeliverable distribution to be made by a Disbursing Agent within
two years after the later of (i) the Effective Date and (ii) the last date on
which a distribution was deliverable to such holder will have its claim for such
undeliverable distribution discharged and will be forever barred from asserting
any such claim against the Reorganized Debtors or their respective property. In
such cases, unclaimed distributions will become property of Reorganized Oglebay,
free of any restrictions thereon, and any such unclaimed distribution held by a
Third Party Disbursing Agent will be returned to Reorganized Oglebay. Nothing
contained in the Plan will require any Debtor, Reorganized Debtor or Disbursing
Agent to attempt to locate any holder of an Allowed Claim or an Allowed
Interest.
E. TIMING AND CALCULATION OF AMOUNTS TO BE DISTRIBUTED
1. ALLOWED CLAIMS
Subject to Section VI.A, on the Effective Date, each holder of an Allowed
Claim will receive the full amount of the distributions that the Plan provides
for Allowed Claims in the applicable Class. No later than each Quarterly
Distribution Date, distributions also will be made, pursuant to Section VII.C,
to holders of Disputed Claims in any such Class that were allowed during the
preceding calendar quarter. Such quarterly distributions also will be in the
full amount that the Plan provides for Allowed Claims in the applicable Class.
2. DISTRIBUTIONS OF NEW COMMON STOCK AND NEW WARRANTS -- NO FRACTIONAL
SHARES; ROUNDING
Notwithstanding any other provision of the Plan, only whole numbers of
shares of New Common Stock or New Warrants will be issued. When any distribution
on account of an Allowed Claim or Allowed Interest otherwise would result in the
issuance of a number of shares of New Common Stock or New Warrants that is not a
whole number, the actual distribution of shares of such stock or such New
Warrants will be rounded to the next higher whole number. The total number of
shares of New Common Stock or New Warrants to be distributed on account of
Allowed Claims or Allowed Interests will be adjusted as necessary to account for
the rounding provided for in this Section VI.E.2 and, notwithstanding any other
provision of the Plan, Reorganized Oglebay will make available to the applicable
Disbursing Agent any additional shares of New Common Stock or New Warrants
necessitated by operation of this Section VI.E.2.
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3. DE MINIMIS DISTRIBUTIONS
Unless otherwise directed by Reorganized Oglebay, no Disbursing Agent will
distribute cash to the holder of an Allowed Claim if the amount of cash to be
distributed on account of such Claim is less than $25. Any holder of an Allowed
Claim on account of which the amount of cash to be distributed is less than $25
will have its claim for such distribution discharged and will be forever barred
from asserting any such claim against the Reorganized Debtors or their
respective property.
F. DISTRIBUTION RECORD DATE
As of the close of business on the Distribution Record Date, the transfer
registers for the Old Senior Secured Notes and the Old Senior Subordinated Notes
and the equity register for the Old Common Stock of Oglebay will be closed. The
applicable Disbursing Agent will have no obligation to recognize the transfer or
sale of any Old Senior Secured Note Claim, Old Senior Subordinated Note Claim or
Interest on account of Old Common Stock of Oglebay that occurs after the close
of business on the Distribution Record Date and will be entitled for all
purposes herein to recognize and make distributions only to those holders who
are holders of such Claims or Interests as of the close of business on the
Distribution Record Date.
G. MEANS OF CASH PAYMENTS
Except as otherwise specified herein, Cash payments made pursuant to the
Plan will be in U.S. currency by checks drawn on a domestic bank selected by the
applicable Debtor or Reorganized Debtor or, at the option of the applicable
Debtor or Reorganized Debtor, by wire transfer from a domestic bank; provided,
however, that Cash payments to foreign holders of Allowed Claims may be made, at
the option of the applicable Debtor or Reorganized Debtor, in such funds and by
such means as are necessary or customary in a particular foreign jurisdiction.
H. ESTABLISHMENT OF RESERVES
The Reorganized Debtors may establish any cash reserves that they deem
necessary or advisable to ensure that sufficient funds are available to make
distributions to holders of Allowed Claims or otherwise to satisfy their
obligations under the Plan.
I. SURRENDER OF CANCELED INSTRUMENTS OR SECURITIES
1. TENDER OF OLD SENIOR SECURED NOTES AND OLD SENIOR SUBORDINATED NOTES
Except as provided in Section VI.I.2 for lost, stolen, mutilated or
destroyed Old Senior Secured Notes or Old Senior Subordinated Notes, each holder
of any such note not held through book entry must tender such Note to the
applicable Third Party Disbursing Agent in accordance with a letter of
transmittal to be provided to such holders by the Third Party Disbursing Agent
as promptly as practicable following the Effective Date. The letter of
transmittal will include, among other provisions, customary provisions with
respect to the authority of the holder of such notes to act and the authenticity
of any signatures required thereon. All surrendered Old Senior Secured Notes or
Old Senior Subordinated Notes will be marked as canceled and delivered to
Reorganized Oglebay.
2. LOST, STOLEN, MUTILATED OR DESTROYED OLD SENIOR SECURED NOTES OR OLD
SENIOR SUBORDINATED NOTES
Any holder of an Allowed Old Senior Secured Note Claim or Allowed Old
Senior Subordinated Note Claim with respect to which the underlying Old Senior
Secured Note or Old Senior Subordinated Note has been lost, stolen, mutilated or
destroyed must, in lieu of surrendering such note, deliver to the applicable
Disbursing Agent: (a) evidence satisfactory to the Third Party Disbursing Agent
of the loss, theft, mutilation or destruction; and (b) such security or
indemnity as may be required by the Third Party Disbursing Agent to hold the
Third Party Disbursing Agent and the Reorganized Oglebay, as applicable,
harmless from any damages, liabilities or costs incurred in treating such
individual as a holder of such Note. Upon compliance with this Section VI.I.2 by
a holder of an Allowed Old Senior Secured Note Claim or Allowed Old Senior
25
Subordinated Note Claim, such holder will, for all purposes under the Plan, be
deemed to have surrendered the applicable Old Senior Secured Note or Old Senior
Subordinated Note, as the case may be.
3. FAILURE TO SURRENDER OLD SENIOR SECURED NOTES OR OLD SENIOR SUBORDINATED
NOTES
Any holder of an Old Senior Secured Note or Old Senior Subordinated Note
not held through book entry that fails to surrender or is deemed not to have
surrendered the applicable note within two years after the Effective Date will
have its right to distributions pursuant to the Plan on account thereof
discharged and will be forever barred from asserting any such Claim against the
Reorganized Debtors or their respective property. In such case, any New Common
Stock or Cash held for distribution on account thereof will be treated pursuant
to the provisions set forth in Section VI.D.2.c.
4. TENDER OF OLD COMMON STOCK OF OGLEBAY
Except as provided in Section VI.I.5 for lost, stolen, mutilated or
destroyed Old Common Stock of Oglebay, each holder of any such Old Common Stock
not held through book entry must tender such Old Common Stock to Reorganized
Oglebay in accordance with a letter of transmittal to be provided to such
holders by Reorganized Oglebay as promptly as practicable following the
Effective Date. The letter of transmittal will include, among other provisions,
customary provisions with respect to the authority of the holder of such Old
Common Stock to act and the authenticity of any signatures required thereon. All
surrendered Old Common Stock of Oglebay will be marked as canceled and delivered
to Reorganized Oglebay.
5. LOST, STOLEN, MUTILATED OR DESTROYED OLD COMMON STOCK OF OGLEBAY
Any holder of an Allowed Interest on account of Old Common Stock of Oglebay
with respect to which the underlying Old Common Stock of Oglebay certificate has
been lost, stolen, mutilated or destroyed must, in lieu of surrendering such
certificate, deliver to Reorganized Oglebay: (a) evidence satisfactory to
Reorganized Oglebay of the loss, theft, mutilation or destruction; and (b) such
security or indemnity as may be required by Reorganized Oglebay to hold
Reorganized Oglebay harmless from any damages, liabilities or costs incurred in
treating such individual as a holder of such Old Common Stock. Upon compliance
with this Section VI.I.5 by a holder of an Allowed Interest on account of Old
Common Stock of Oglebay, such holder will, for all purposes under the Plan, be
deemed to have surrendered the applicable stock certificate.
6. FAILURE TO SURRENDER OLD COMMON STOCK OF OGLEBAY
Any holder of an Allowed Interest on account of Old Common Stock of Oglebay
not held through book entry that fails to surrender or is deemed not to have
surrendered the applicable stock certificate by the deadline to exercise the New
Warrant will have its right to exercise the New Warrant or to receive
distributions pursuant to the Plan on account of its Allowed Interest discharged
and will be forever barred from asserting any such Interest or related Claims
against the Reorganized Debtors or their respective property.
J. COMPLIANCE WITH TAX REQUIREMENTS
1. In connection with the Plan, to the extent applicable, each Disbursing
Agent will comply with all Tax withholding and reporting requirements imposed on
it by any governmental unit, and all distributions pursuant to the Plan will be
subject to applicable withholding and reporting requirements. Each Disbursing
Agent will be authorized to take any actions that may be necessary or
appropriate to comply with those withholding and reporting requirements,
including requiring recipients to fund the payment of such withholding as a
condition to delivery.
2. Notwithstanding any other provision of the Plan, each entity receiving a
distribution of Cash, New Common Stock or New Warrants pursuant to the Plan will
have sole and exclusive responsibility for the satisfaction and payment of any
Tax obligations imposed on it by any governmental unit on account of the
distribution, including income, withholding and other Tax obligations.
26
K. SETOFFS
Except with respect to claims of a Debtor or Reorganized Debtor released
pursuant to the Plan or any contract, instrument, release or other agreement or
document entered into or delivered in connection with the Plan, the Reorganized
Debtors or, as instructed by the applicable Reorganized Debtor, a Third Party
Disbursing Agent may, pursuant to section 553 of the Bankruptcy Code or
applicable nonbankruptcy law, set off against any Allowed Claim and the
distributions to be made pursuant to the Plan on account of the Claim (before
any distribution is made on account of the Claim) the claims, rights and causes
of action of any nature that the applicable Debtor or Reorganized Debtor may
hold against the holder of the Allowed Claim; provided that neither the failure
to effect a setoff nor the allowance of any Claim hereunder will constitute a
waiver or release by the applicable Debtor or Reorganized Debtor of any claims,
rights and causes of action that the Debtor or Reorganized Debtor may possess
against the Claim holder.
ARTICLE VII.
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. TREATMENT OF DISPUTED CLAIMS
1. GENERAL PROCESS
Except as otherwise provided in the Plan or a Final Order of the Bankruptcy
Court (including the Confirmation Order), holders of Claims and Interests need
not File proofs of Claim or Interests with the Bankruptcy Court. If a Debtor or
Reorganized Debtor or any other party disputes any Claim, such dispute shall be
determined by the Bankruptcy Court. A Debtor or Reorganized Debtor may elect, at
its sole option, to File an objection to any Claim with the Bankruptcy Court on
or before the Claims Objection Bar Date or such other applicable period of
limitation fixed by the Plan, the Confirmation Order, the Bankruptcy Rules or a
Final Order for objecting to such Claims. All distributions on account of
Disputed Claims resolved in accordance with this Section VII.A.1 shall be
subject to and made in accordance with the Plan.
2. TORT CLAIMS
Any Tort Claim that is not otherwise settled and resolved pursuant to
Section VII.A.1 shall be determined and liquidated in the administrative or
judicial tribunal of appropriate jurisdiction without further relief from the
Bankruptcy Court. All distributions on account of Tort Claims resolved in
accordance with this Section VII.A.2 shall be subject to and made in accordance
with the Plan. All claims, demands, rights, defenses and causes of action that
the Debtors or the Reorganized Debtors may have against any person or entity in
connection with or arising out of any Tort Claim are expressly retained and
preserved.
3. DISPUTED INSURED CLAIMS
The resolution of Disputed Insured Claims, including Tort Claims, pursuant
to this Section VII.A shall be subject to the provisions of Section IV.F of the
Plan.
4. NO DISTRIBUTIONS PENDING ALLOWANCE
Notwithstanding any other provision of the Plan, no payments or
distributions will be made on account of a Disputed Claim until such Claim
becomes an Allowed Claim.
B. PROSECUTION OF OBJECTIONS TO CLAIMS
1. OBJECTIONS TO CLAIMS
All objections to Claims must be Filed and served on the holders of such
Claims, and any amendment to the Schedules to reduce the scheduled Claim of such
holder must be made by the Debtors, by the Claims Objection Bar Date. If an
objection has not been Filed to a Claim or an amendment has not been made to the
27
Schedules with respect to a scheduled Claim by the Claims Objection Bar Date,
the particular Claim will be treated as an Allowed Claim if such Claim has not
been allowed earlier.
2. AUTHORITY TO PROSECUTE OBJECTIONS
After the Confirmation Date, only the Debtors or the Reorganized Debtors
will have the authority to File, settle, compromise, withdraw or litigate to
judgment objections to Claims, including pursuant to any alternative dispute
resolution or similar procedures approved by the Bankruptcy Court. After the
Effective Date, the Reorganized Debtors may settle or compromise any Disputed
Claim without approval of the Bankruptcy Court.
3. AUTHORITY TO AMEND SCHEDULES
The Debtors or the Reorganized Debtors will have the authority to amend the
Schedules with respect to any Claim and to make distributions based on such
amended Schedules without approval of the Bankruptcy Court. If any such
amendment to the Schedules reduces the amount of a Claim or changes the nature
or priority of a Claim, the Debtor or Reorganized Debtor will provide the holder
of such Claim with notice of such amendment and such holder will have 20 days to
File an objection to such amendment with the Bankruptcy Court. If no such
objection is Filed, the Debtor or Reorganized Debtor may proceed with
distributions based on such amended Schedules without approval of the Bankruptcy
Court.
C. DISTRIBUTIONS ON ACCOUNT OF DISPUTED CLAIMS ONCE ALLOWED
No later than each Quarterly Distribution Date, the applicable Disbursing
Agent will make all distributions on account of any Disputed Claim that has
become an Allowed Claim during the preceding calendar quarter. Such
distributions will be made pursuant to the provisions of the Plan governing the
applicable Class.
ARTICLE VIII.
SUBSTANTIVE CONSOLIDATION OF THE DEBTORS
A. SUBSTANTIVE CONSOLIDATION
Pursuant to the Confirmation Order, the Bankruptcy Court will approve the
substantive consolidation of the Debtors for the purpose of implementing the
Plan, including for purposes of voting, Confirmation and distributions to be
made under the Plan. Pursuant to such order: (1) all assets and liabilities of
the Debtors will be deemed merged; (2) all guarantees by one Debtor of the
obligations of any other Debtor will be deemed eliminated so that any Claim
against any Debtor and any guarantee thereof executed by any other Debtor and
any joint or several liability of any of the Debtors will be deemed to be one
obligation of the consolidated Debtors; (3) each and every Claim Filed or to be
Filed in the Chapter 11 Case of any of the Debtors will be deemed Filed against
the consolidated Debtors and will be deemed one Claim against and a single
obligation of the consolidated Debtors; and (4) Intercompany Claims that are not
Administrative Claims will be eliminated and extinguished. Such substantive
consolidation (other than for the purpose of implementing the Plan) will not
affect (1) the legal and corporate structures of the Debtors, subject to the
right of the Debtors to effect restructurings as provided in Section IV.B; and
(2) pre- and post-Effective Date guarantees that are required to be maintained
(a) in connection with contracts or leases that were entered into during the
Chapter 11 Cases or Executory Contracts and Unexpired Leases that have been or
will be assumed or (b) pursuant to the Plan.
B. ORDER GRANTING SUBSTANTIVE CONSOLIDATION
This Plan serves as a motion seeking entry of an order substantively
consolidating the Debtors, as described and to the limited extent set forth in
Section VIII.A above. Unless an objection to such substantive consolidation is
made in writing by any creditor or claimant affected by the Plan, Filed with the
Bankruptcy
28
Court and served on the parties listed in Section XIII.G on or before the Voting
Deadline, or such other date as may be fixed by the Bankruptcy Court, the
substantive consolidation order (which may be the Confirmation Order) may be
entered by the Bankruptcy Court. In the event any such objections are timely
Filed, a hearing with respect thereto will occur at the Confirmation Hearing.
Notwithstanding this provision, nothing herein shall affect the obligation of
each and every Debtor to pay quarterly fees to the Office of the United States
Trustee in accordance with 28 U.S.C. sec. 1930.
ARTICLE IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. CONDITIONS TO CONFIRMATION
The Bankruptcy Court will not be requested to enter the Confirmation Order,
unless and until the following conditions have been satisfied or duly waived
pursuant to Section IX.C:
1. The Confirmation Order will be reasonably acceptable in form and
substance to the Debtors and the Creditors' Committee and will include
substantive consolidation of the Debtors as contemplated by Article VIII of the
Plan.
2. The Plan shall not have been materially amended, altered or modified
from the Plan as Filed on April 27, 2004, unless such material amendment,
alteration or modification has been made in accordance with Section XIII.C of
the Plan.
3. All Exhibits to the Plan are in form and substance reasonably
satisfactory to the Debtors and the Creditors' Committee.
B. CONDITIONS TO THE EFFECTIVE DATE
The Effective Date will not occur, and the Plan will not be consummated
unless and until the following conditions have been satisfied or duly waived
pursuant to Section IX.C:
1. The Bankruptcy Court shall have entered the Confirmation Order.
2. The Bankruptcy Court shall have entered an order (contemplated to be
part of the Confirmation Order) approving and authorizing the Debtors and the
Reorganized Debtors to take all actions necessary or appropriate to implement
the Plan, including completion of the Restructuring Transactions and the other
transactions contemplated by the Plan and the implementation and consummation of
the contracts, instruments, releases and other agreements or documents entered
into or delivered in connection with the Plan.
3. The documents effectuating the Confirmation Facility shall be in form
and substance reasonably satisfactory to the Debtors and shall have been
executed and delivered by the Reorganized Debtors, the Confirmation Facility
Agent and each of the lenders under the Confirmation Facility.
4. The Debtors shall have received at least $ from the issuance of
the New Preferred Stock.
5. The Effective Date shall occur on or before September 15, 2004.
6. The Plan and all Exhibits to the Plan shall not have been materially
amended, altered or modified from the Plan as confirmed by the Confirmation
Order, unless such material amendment, alteration or modification has been made
in accordance with Section XIII.C of the Plan.
C. WAIVER OF CONDITIONS TO THE CONFIRMATION OR EFFECTIVE DATE
The conditions to Confirmation and the conditions to the Effective Date may
be waived in whole or part at any time by the Debtors without an order of the
Bankruptcy Court.
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D. EFFECT OF NONOCCURRENCE OF CONDITIONS TO THE EFFECTIVE DATE
If each of the conditions to the Effective Date is not satisfied or duly
waived in accordance with Section IX.C, then upon motion by the Debtors or any
party in interest made before the time that each of such conditions has been
satisfied and upon notice to such parties in interest as the Bankruptcy Court
may direct, the Confirmation Order will be vacated by the Bankruptcy Court;
provided, however, that, notwithstanding the Filing of such motion, the
Confirmation Order may not be vacated if each of the conditions to the Effective
Date is satisfied before the Bankruptcy Court enters an order granting such
motion. If the Confirmation Order is vacated pursuant to this Section IX.D, (1)
the Plan will be null and void in all respects, including with respect to (a)
the discharge of Claims and termination of Interests pursuant to section 1141 of
the Bankruptcy Code, (b) the assumptions of Executory Contracts and Unexpired
Leases pursuant to Section V.A.1 and (c) the releases described in Section
IV.E.3; and (2) nothing contained in the Plan will (a) constitute a waiver or
release of any claims by or against, or any Interest in, any Debtor or (b)
prejudice in any manner the rights of the Debtors or any other party in
interest.
ARTICLE X.
CRAMDOWN
The Debtors request Confirmation under section 1129(b) of the Bankruptcy
Code with respect to any impaired Class that has not accepted or is deemed not
to have accepted the Plan pursuant to section 1126 of the Bankruptcy Code.
ARTICLE XI.
DISCHARGE, TERMINATION, INJUNCTION
AND SUBORDINATION RIGHTS
A. DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS
1. COMPLETE SATISFACTION, DISCHARGE AND RELEASE
Except as provided in the Plan or in the Confirmation Order, the rights
afforded under the Plan and the treatment of Claims and Interests under the Plan
will be in exchange for and in complete satisfaction, discharge and release of
all Claims and termination of all Interests arising on or before the Effective
Date, including any interest accrued on Claims from and after the Petition Date.
Except as provided in the Plan or in the Confirmation Order, Confirmation will,
as of the Effective Date and immediately after cancellation of the Old Common
Stock of Oglebay: (a) discharge the Debtors from all Claims or other debts that
arose on or before the Effective Date, and all debts of the kind specified in
section 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (i) a
proof of Claim based on such debt is Filed or deemed Filed pursuant to section
501 of the Bankruptcy Code, (ii) a Claim based on such debt is allowed pursuant
to section 502 of the Bankruptcy Code or (iii) the holder of a Claim based on
such debt has accepted the Plan; and (b) terminate all Interests and other
rights of holders of Interests in the Debtors.
2. DISCHARGE AND TERMINATION
In accordance with the foregoing, except as provided in the Plan, the
Confirmation Order will be a judicial determination, as of the Effective Date
and immediately after the cancellation of the Old Common Stock of Oglebay, but
prior to the issuance of the New Common Stock, of a discharge of all Claims and
other debts and liabilities against the Debtors and a termination of all
Interests and other rights of the holders of Interests in the Debtors, pursuant
to sections 524 and 1141 of the Bankruptcy Code, and such discharge will void
any judgment obtained against the Debtor at any time, to the extent that such
judgment relates to a discharged Claim or terminated Interest; provided,
however, that, notwithstanding the extinguishment of any such judgment, the
existence of a validly entered judgment may be treated as evidence of the
entitlement to a
30
Claim in the Chapter 11 Cases, which Claim, subject to other applicable
requirements, will be satisfied by the distribution, if any, provided under the
Plan.
B. INJUNCTIONS
1. CLAIMS ENJOINED
Except as provided in the Plan or the Confirmation Order or agreed to by
the Debtors or the Reorganized Debtors, as of the Effective Date all entities
and persons that have held, currently hold or may hold a Claim or other debt or
liability that is discharged or an Interest or other right of a holder of an
Interest that is terminated pursuant to the terms of the Plan will be
permanently enjoined from taking any of the following enforcement actions on
account of any such discharged Claims, debts or liabilities or terminated
Interests or rights: (a) commencing or continuing in any manner any action or
other proceeding against any Debtor, any Reorganized Debtor or its respective
property, other than to enforce any right pursuant to the Plan to a distribution
or to continue litigation related to Reinstated Tort Claims; (b) enforcing,
attaching, collecting or recovering in any manner any judgment, award, decree or
order against any Debtor, any Reorganized Debtor or its respective property,
other than as permitted pursuant to (a) above; (c) creating, perfecting or
enforcing any lien or encumbrance against any Debtor, any Reorganized Debtor or
its respective property; (d) asserting a setoff, right of subrogation or
recoupment of any kind against any debt, liability or obligation due to any
Debtor or any Reorganized Debtor; and (e) commencing or continuing any action,
in any manner, in any place that does not comply with or is inconsistent with
the provisions of the Plan.
2. ENFORCEMENT ENJOINED
As of the Effective Date, all entities and persons that have held,
currently hold or may hold any claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action or liabilities that are released
pursuant to the Plan will be permanently enjoined from taking any of the
following actions against any released entity or its property on account of such
released claims, obligations, suits, judgments, damages, demands, debts, rights,
causes of action or liabilities: (a) commencing or continuing in any manner any
action or other proceeding other than litigation related to Reinstated Tort
Claims; (b) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order; (c) creating other than litigation related to
Reinstated Tort Claims, perfecting or enforcing any lien or encumbrance; (d)
asserting a setoff, right of subrogation or recoupment of any kind against any
debt, liability or obligation due to any released entity; and (e) commencing or
continuing any action, in any manner, in any place that does not comply with or
is inconsistent with the provisions of the Plan.
3. CONSENT TO INJUNCTION
By accepting distributions pursuant to the Plan, each holder of an Allowed
Claim or Allowed Interest receiving distributions pursuant to the Plan will be
deemed to have specifically consented to the injunctions set forth in Section
XI.B.1 and Section XI.B.2.
C. TERMINATION OF SUBORDINATION RIGHTS AND SETTLEMENT OF RELATED CLAIMS AND
CONTROVERSIES
1. TERMINATION
The classification and manner of satisfying all Claims and Interests under
the Plan take into consideration all subordination rights, whether arising under
general principles of equitable subordination, contract, section 510(c) of the
Bankruptcy Code or otherwise, that a holder of a Claim or Interest may have
against other Claim or Interest holders with respect to any distribution made
pursuant to the Plan. Except as provided in Section XI.C.3 below, all
subordination rights that a holder of a Claim may have with respect to any
distribution to be made pursuant to the Plan will be discharged and terminated,
and all actions related to the enforcement of such subordination rights will be
permanently enjoined. Accordingly, distributions pursuant to the Plan to holders
of Allowed Claims will not be subject to payment to a beneficiary of such
terminated subordination rights or to levy, garnishment, attachment or other
legal process by a beneficiary of such terminated subordination rights.
31
2. SETTLEMENT
Pursuant to Bankruptcy Rule 9019 and in consideration for the distributions
and other benefits provided under the Plan, the provisions of the Plan will
constitute a good faith compromise and settlement of all claims or controversies
relating to the subordination rights that a holder of a Claim may have with
respect to any Allowed Claim or any distribution to be made pursuant to the Plan
on account of any Allowed Claim. The entry of the Confirmation Order will
constitute the Bankruptcy Court's approval, as of the Effective Date, of the
compromise or settlement of all such claims or controversies and the Bankruptcy
Court's finding that such compromise or settlement is in the best interests of
the Debtors, the Reorganized Debtors and their respective property and Claim and
Interest holders and is fair, equitable and reasonable.
3. PRESERVATION OF SUBORDINATION UNDER SECTION 510(B)
Notwithstanding anything to the contrary contained in this Section XI.C,
the provisions of section 510(b) of the Bankruptcy Code, to the extent
applicable, are expressly preserved and shall be enforced pursuant to the Plan.
ARTICLE XII.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court will retain such jurisdiction over the
Chapter 11 Cases after the Effective Date as is legally permissible, including
jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate or establish
the priority or secured or unsecured status of any Claim or Interest (other than
the liquidation of any Tort Claim in litigation that is Reinstated pursuant to
the Plan), including the resolution of any request for payment of any
Administrative Claim and the resolution of any objections to the allowance,
priority or classification of Claims or Interests;
2. Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the Plan
for periods ending on or before the Effective Date;
3. Resolve any matters related to the assumption, assumption and assignment
or rejection of any Executory Contract and Unexpired Lease to which any Debtor
is a party or with respect to which any Debtor or Reorganized Debtor may be
liable and to hear, determine and, if necessary, liquidate any Claims arising
therefrom, including any Cure Amount Claims;
4. Ensure that distributions to holders of Allowed Claims are accomplished
pursuant to the provisions of the Plan;
5. Decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any applications
involving any Debtor or any Reorganized Debtor that may be pending on the
Effective Date or brought thereafter;
6. Enter such orders as may be necessary or appropriate to implement or
consummate the provisions of the Plan and all contracts, instruments, releases
and other agreements or documents entered into or delivered in connection with
the Plan, the Disclosure Statement or the Confirmation Order;
7. Resolve any cases, controversies, suits or disputes that may arise in
connection with the consummation, interpretation or enforcement of the Plan or
any contract, instrument, release or other agreement or document that is entered
into or delivered pursuant to the Plan or any entity's rights arising from or
obligations incurred in connection with the Plan or such documents;
8. Modify the Plan before or after the Effective Date pursuant to section
1127 of the Bankruptcy Code; modify the Disclosure Statement, the Confirmation
Order or any contract, instrument, release or other agreement or document
entered into or delivered in connection with the Plan, the Disclosure Statement
or the Confirmation Order; or remedy any defect or omission or reconcile any
inconsistency in any Bankruptcy Court
32
order, the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release or other agreement or document entered into,
delivered or created in connection with the Plan, the Disclosure Statement or
the Confirmation Order, in such manner as may be necessary or appropriate to
consummate the Plan;
9. Issue injunctions, enforce the injunctions contained in the Plan and the
Confirmation Order, enter and implement other orders or take such other actions
as may be necessary or appropriate to restrain interference by any entity with
consummation, implementation or enforcement of the Plan or the Confirmation
Order;
10. Enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason or in any respect modified, stayed,
reversed, revoked or vacated or distributions pursuant to the Plan are enjoined
or stayed;
11. Determine any other matters that may arise in connection with or relate
to the Plan, the Disclosure Statement, the Confirmation Order or any contract,
instrument, release or other agreement or document entered into or delivered in
connection with the Plan, the Disclosure Statement or the Confirmation Order;
12. Enter a final decree closing the Chapter 11 Cases;
13. Determine matters concerning state, local and federal Taxes in
accordance with sections 346, 505 and 1146 of the Bankruptcy Code, including any
Disputed Claims for Taxes;
14. Recover all assets of the Debtors and their Estates, whenever located;
and
15. Hear any other matter not inconsistent with the Bankruptcy Code.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
A. DISSOLUTION OF COMMITTEE
On the Effective Date, the Creditors' Committee will dissolve, and the
members of the Creditors' Committee and their respective Professionals will
cease to have any role arising from or related to the Chapter 11 Case. The
Professionals retained by the Creditors' Committee and the respective members
thereof will not be entitled to assert any Fee Claim for any services rendered
or expenses incurred after the Effective Date, except for reasonable fees for
services rendered, and actual and necessary expenses incurred, in connection
with any applications for allowance of compensation and reimbursement of
expenses pending on the Effective Date or Filed and served after the Effective
Date pursuant to Section III.A.1.f.ii.A.
B. LIMITATION OF LIABILITY
1. The Released Parties will neither have nor incur any liability to any
entity for any act taken or omitted to be taken in connection with or related to
the Chapter 11 Cases or the consideration, formulation, preparation,
dissemination, implementation, Confirmation or consummation of the Plan, the
Disclosure Statement, or any transaction proposed in connection with the Chapter
11 Cases or any contract, instrument, release or other agreement or document
created or entered into, or any other act taken or omitted to be taken, in
connection therewith; provided, however, that the foregoing provisions of this
Section XIII.B.1 will have no effect on: (a) the liability of any entity that
would otherwise result from the failure to perform or pay any obligation or
liability under the Plan or any contract, instrument, release or other agreement
or document to be entered into or delivered in connection with the Plan or (b)
the liability of any entity that would otherwise result from an such act or
omission to the extent that such act or omission is determined in a Final Order
to have constituted gross negligence or willful misconduct.
2. Notwithstanding any other provision of this Plan, no holder of a Claim
or Interest, no other party in interest, none of their respective agents,
employees, representatives, financial advisors, attorneys or affiliates, and no
successors or assigns of the foregoing, shall have any right of action against
any Released Party for any act or omission in connection with, relating to or
arising out of the Chapter 11 Cases or the consideration,
33
formulation, preparation, dissemination, implementation, Confirmation or
consummation of the Plan, the Disclosure Statement, or any transaction or
document created or entered into, or any other act taken or omitted to be taken,
in connection therewith, except for: (a) the liability of any entity that would
otherwise result from the failure to perform or pay any obligation or liability
under the Plan or any contract, instrument, release or other agreement or
document to be entered into or delivered in connection with the Plan or (b) the
liability of any entity that would otherwise result from any such act or
omission to the extent that such act or omission is determined in a Final Order
to have constituted gross negligence or willful misconduct.
C. MODIFICATION OF THE PLAN
Subject to the restrictions on modifications set forth in section 1127 of
the Bankruptcy Code, the Debtors or the Reorganized Debtors, as applicable,
reserve the right to alter, amend or modify the Plan before the Effective Date.
D. REVOCATION OF THE PLAN
The Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date. If the Debtors revoke or withdraw the Plan, or if
Confirmation does not occur, then the Plan will be null and void in all
respects, and nothing contained in the Plan will: (1) constitute a waiver or
release of any claims by or against, or any Interests in, any Debtor; (2)
prejudice in any manner the rights of any Debtor or any other party in interest;
or (3) constitute an admission of any sort by any Debtor or any other party in
interest.
E. SEVERABILITY OF PLAN PROVISIONS
If, prior to Confirmation, any term or provision of the Plan is held by the
Bankruptcy Court to be invalid, void or unenforceable, the remainder of the
terms and provisions of the Plan will remain in full force and effect and will
in no way be affected, impaired or invalidated by such holding, alteration or
interpretation. The Confirmation Order will constitute a judicial determination
and will provide that each term and provision of the Plan, as it may have been
altered or interpreted in accordance with the foregoing, is valid and
enforceable pursuant to its terms.
F. SUCCESSORS AND ASSIGNS
The rights, benefits and obligations of any entity named or referred to in
the Plan will be binding on, and will inure to the benefit of, any heir,
executor, administrator, successor or assign of such entity.
G. SERVICE OF DOCUMENTS
Any pleading, notice or other document required by the Plan or the
Confirmation Order to be served on or delivered to the Debtors, the Reorganized
Debtors, the Ad Hoc Noteholders' Committee, the Second DIP Facility Agent or the
Creditors' Committee must be sent by overnight delivery service, facsimile
transmission, courier service or messenger to:
1. THE DEBTORS AND THE REORGANIZED DEBTORS
Daniel J. DeFranceschi (DE 2732)
Paul N. Heath (DE 3704)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 651-7700 (Telephone)
(302) 658-6548 (Facsimile)
- and -
34
David G. Heiman, Esq.
Heather Lennox, Esq.
Carl E. Black, Esq.
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939 (Telephone)
(216) 579-0212 (Facsimile)
- and -
Michelle Morgan Harner
JONES DAY
77 West Wacker
Chicago, Illinois 60601
(312) 269-4289 (Telephone)
(312) 782-8585 (Facsimile)
(Counsel to the Debtors and Reorganized Debtors)
2. THE AD HOC NOTEHOLDERS' COMMITTEE
Bruce Bennett, Esq.
HENNIGAN, BENNETT & DORMAN
601 South Figueroa Street, Suite 3300
Los Angeles, California 90017
(213) 694-1012 (Telephone)
(213) 694-1234 (Facsimile)
(Counsel to the Ad Hoc Noteholders' Committee)
3. THE SECOND DIP FACILITY AGENT
Brendan Linehan Shannon, Esq. (DE 3136)
Edward J. Kosmowski, Esq. (DE 3149)
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street
P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6600 (Telephone)
(302) 571-1253 (Facsimile)
- and -
Frederick L. Ragucci, Esq.
James M. Peck, Esq.
Andrew R. Gottesman, Esq.
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
(212) 756-2000 (Telephone)
(212) 593-5955 (Facsimile)
(Counsel to the Second DIP Facility Agent)
35
4. THE CREDITORS' COMMITTEE
Derek C. Abbott, Esq. (DE 3376)
Jason W. Harbour, Esq. (DE 4176)
MORRIS, NICHOLS, ARSHT & TUNNELL
Chase Manhattan Centre, 18th Floor
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
(302) 658-9200 (Telephone)
(302) 658-3989 (Facsimile)
- and -
Wendell H. Adair, Jr., Esq.
Christopher R. Donoho III, Esq.
A. Victor Glaser, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, New York 10038-4982
(212) 806-5400 (Telephone)
(212) 806-6006 (Facsimile)
(Counsel to the Creditors' Committee)
Dated: April 27, 2004
Respectfully submitted,
ONCO INVESTMENT COMPANY, on its own
behalf and on behalf of each affiliate
Debtor
By: /s/ ROCHELLE F. WALK
------------------------------------
Name: Rochelle F. Walk
Title: Vice President and
Secretary
COUNSEL:
Daniel J. DeFranceschi (DE 2732)
Paul N. Heath (DE 3704)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 651-7700 (Telephone)
(302) 658-6548 (Facsimile)
- -and -
36
David G. Heiman (OH 0038271)
Heather Lennox (OH 0059649)
Carl E. Black (OH 0069479)
JONES DAY
901 Lakeside Avenue
North Point
Cleveland, Ohio 44114
(216) 586-3939 (Telephone)
(216) 579 0212 (Facsimile)
Michelle Morgan Harner
JONES DAY
77 West Wacker
Chicago, Illinois 60601
(312) 269-4289 (Telephone)
(312) 782-8585 (Facsimile)
ATTORNEYS FOR DEBTORS
AND DEBTORS IN POSSESSION
37
DEBTORS IN THE CHAPTER 11 CASES
EXHIBIT I.A.25
<Table>
ONCO Investment Company..................................... Case No. 04 - 10558 (JBR)
Oglebay Norton Company...................................... Case No. 04 - 10559 (JBR)
Erie Navigation Company..................................... Case No. 04 - 10560 (JBR)
Erie Sand Steamship Company................................. Case No. 04 - 10562 (JBR)
Erie Sand and Gravel Company................................ Case No. 04 - 10561 (JBR)
GS Lime Company............................................. Case No. 04 - 10572 (JBR)
GS PC, Inc.................................................. Case No. 04 - 10573 (JBR)
Global Stone Chemstone Corporation.......................... Case No. 04 - 10563 (JBR)
Global Stone Corporation.................................... Case No. 04 - 10564 (JBR)
Global Stone Filler Products, Inc........................... Case No. 04 - 10565 (JBR)
Global Stone James River, Inc............................... Case No. 04 - 10566 (JBR)
Global Stone Management Company............................. Case No. 04 - 10567 (JBR)
Global Stone PenRoc, LP..................................... Case No. 04 - 10568 (JBR)
Global Stone Portage, LLC................................... Case No. 04 - 10569 (JBR)
Global Stone St. Clair, Inc................................. Case No. 04 - 10570 (JBR)
Global Stone Tenn Luttrell Company.......................... Case No. 04 - 10571 (JBR)
Michigan Limestone Operations, Inc.......................... Case No. 04 - 10574 (JBR)
Mountfort Terminal Ltd...................................... Case No. 04 - 10575 (JBR)
ON Marine Services Company.................................. Case No. 04 - 10585 (JBR)
ONMS Management Company, LLC................................ Case No. 04 - 10587 (JBR)
ONTEX, Inc.................................................. Case No. 04 - 10588 (JBR)
Oglebay Norton Engineered Materials, Inc.................... Case No. 04 - 10576 (JBR)
Oglebay Norton Industrial Sands, Inc........................ Case No. 04 - 10577 (JBR)
Oglebay Norton Management Company........................... Case No. 04 - 10578 (JBR)
Oglebay Norton Marine Management Company, L.L.C............. Case No. 04 - 10579 (JBR)
Oglebay Norton Marine Services Company, L.L.C............... Case No. 04 - 10580 (JBR)
Oglebay Norton Minerals, Inc................................ Case No. 04 - 10581 (JBR)
Oglebay Norton Specialty Minerals, Inc...................... Case No. 04 - 10582 (JBR)
Oglebay Norton Terminals, Inc............................... Case No. 04 - 10583 (JBR)
On Coast Petroleum Company.................................. Case No. 04 - 10584 (JBR)
Onco WVA, Inc............................................... Case No. 04 - 10586 (JBR)
Saginaw Mining Company...................................... Case No. 04 - 10589 (JBR)
Texas Mining, LP............................................ Case No. 04 - 10590 (JBR)
</Table>
38