Exhibit 2.2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: :
: CHAPTER 11
ONCO INVESTMENT COMPANY, :
A DELAWARE CORPORATION, ET AL., : JOINTLY ADMINISTERED
----- : CASE NO. 04-10558 (JBR)
DEBTORS. :
SECOND AMENDED MODIFICATIONS TO SECOND AMENDED JOINT PLAN
OF REORGANIZATION OF DEBTORS AND DEBTORS IN POSSESSION
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The above-captioned debtors and debtors in possession (collectively,
the "Debtors") hereby propose the following additions and modifications to the
Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession
(in the form dated as of July 30, 2004 and included in the contents of the
solicitation packages distributed to certain creditors entitled to vote thereon,
the "Plan"), pursuant to section 1127 of the Bankruptcy Code, 11 U.S.C. ss.ss.
101-1330, and Section XIII.C of the Plan:(1)
1. Section I.A.60 of the Plan is modified and restated as follows:
"New Warrants" means the warrants [exercisable for 30 days after
the Effective Date to buy] to purchase New Common Stock on the terms set
forth on Exhibit I.A.[60.] 60, which will be exercisable for 30 days after
the later to occur of the Effective Date or the effectiveness of the
Registration Statement.
2. *Section I.A.96 of the Plan is deleted in its entirety as follows
and replaced with the notation "[Intentionally Omitted]":
["Rights Offering" means the rights offering relating to the New
Preferred Stock and conducted pursuant to the Registration Statement.]
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(1) All modified and restated Plan provisions are marked to reflect the
modifications thereto. In addition, sections of the Plan that have been
added or further modified since the First Amended Modifications (D.I.
1689) filed with the Court on September 28, 2004 are marked with an
asterisk (*). These Second Amended Modifications were identified in
open Court on October 4, 2004. Among other things, they reflect the
Debtors' settlement with the objecting Shareholders that resolved the
latter's objection to confirmation of the Plan.
Language indicated as being shown by strike out in the typeset document
is enclosed in brackets "[" and "]" in the electronic format.
3. *Section III.B.3.a of the Plan is modified and restated as follows:
On the Effective Date, the Old Senior Secured Notes and the Old
Senior Secured Notes Purchase Agreement will be Reinstated pursuant to
Section I.A.91.b and section 1124(2) of the Bankruptcy Code, and any and
all defaults thereunder shall be cured with a Cash payment equal to the
accrued and unpaid interest (including paid-in-kind interest) on the Old
Senior Secured Notes at the non-default rate through the Effective Date.
Immediately thereafter, the Reinstated Old Senior Secured Notes will be
redeemed and satisfied in full by the Reorganized Debtors with a Cash
payment of 106% of principal amount of the Old Senior Secured Notes (which,
for purposes of calculating the 6% prepayment premium, such principal
amount shall include the paid-in-kind interest, including any paid-in-kind
interest paid on the Effective Date in connection with Reinstatement),
[plus the] and a Cash payment of any accrued and unpaid interest thereon at
the non-default rate through the date of such payment, in accordance with
the terms of the Old Senior Secured Notes Purchase Agreement.
4. Section III.C.2 of the Plan is modified and restated as follows:
Class 7 Claims (Old Senior Subordinated Note Claims) are
impaired. The Old Senior Subordinated Note Claims are hereby allowed in the
aggregate principal amount of $105,611,111.11. On the Effective Date (but
subsequent to the redemption of the Reinstated Old Senior Secured Notes as
described in this Article III), 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 approximately 2,928,571
shares of New Common Stock [(and any accompanying Share Purchase Rights in
accordance with the Share Purchase Rights Agreement and Section IV.I)].
5. Section III.C.4 of the Plan is modified and restated as follows:
Class 10 Interests (Old Common Stock of Oglebay) are impaired.
[On the Effective Date, each] Each holder of an Allowed Interest on account
of Old Common Stock of Oglebay will receive New Warrants to purchase
one-tenth (1/10th) of a share of New Common Stock [(and any accompanying
Share Purchase Rights in accordance with the Share Purchase Rights
Agreement and Section IV.I)] for each share of Old Common Stock held on the
Distribution Record Date. 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.
6. *Section IV.C.3.a of the Plan is modified and restated as follows:
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 or terminate existing employment, retirement, welfare,
incentive, severance, indemnification and other
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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, implement and make the initial grants under the Management
Stock Plan. On the Effective Date, Reorganized Oglebay will enter into new
change in control 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. In addition, without limiting the generality of
the foregoing, on the Effective Date, the Debtors will Reinstate, among
other things, the TRA Supplemental Benefit Retirement Plan and the Oglebay
Norton Company Supplemental Savings and Stock Ownership Plan.
7. *Section IV.E.1 of the Plan is modified and restated as follows:
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.][Intentionally Omitted]
8. *Section IV.E.3.a of the Plan is modified and restated as follows:
Except as otherwise expressly set forth in the Plan (including
with respect to Reinstated Claims), on and after the Effective Date, the
Debtors are released from all Liabilities from the beginning of time.
9. *Section IV.E.3.b of the Plan is deleted in its entirety as follows
and replaced with the notation "[Intentionally Omitted]":
[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.]
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10. Section IV.F.2 of the Plan is modified and restated as follows:
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] its 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] V.A of the Plan. Nothing in the Plan, including the
injunction and release provisions of Sections IV.E.3, XI.A and XI.B of the
Plan, shall affect, impair or prejudice the rights of the insurance
carriers or the Reorganized Debtors under the insurance policies in any
manner, and such insurance carriers and Reorganized Debtors shall retain
all rights and defenses under such insurance policies, and such insurance
policies shall apply to, and be enforceable by and against, the Reorganized
Debtors in the same manner and according to the same terms and practices,
if any, applicable to the Debtors, as existed prior to the Effective Date.
11. Section IV.G.1 of the Plan is modified and restated as follows:
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; provided, however, that such cancellation of the Old
Senior Subordinated Note Indenture and the Old Senior Subordinated Notes
and the related distributions to holders of Claims in Class 7 as described
in Article III shall only take effect after the redemption of the
Reinstated Old Senior Secured Notes as described in Article III. 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 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. Upon the cancellation of the Old Senior
Subordinated Note Indenture on the Effective Date as described herein, the
Indenture Trustee shall have no further duties or obligations under such
Indenture from and after the Effective Date, including, without limitation,
any duties or obligations with respect to distributions to or for the
benefit of the holders of the Old Senior Subordinated Notes under the Plan.
Notwithstanding anything to the contrary contained herein, (a) the
indemnification provisions relating to the Indenture Trustee in the Old
Senior Subordinated Note Indenture shall survive until the entry of a Final
Order resolving Adversary Proceeding No. 04-54122(JBR) in the Chapter 11
Cases, (b) any valid claims under such indemnification provisions that
arise after Confirmation and prior to the Effective Date shall constitute
an obligation of the Debtors, pursuant to the provisions of Article
III.A.1.e. and (c) any valid claims under such indemnification
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provisions that arise after the Effective Date shall constitute an
obligation of the Reorganized Debtors.
12. Section IV.G.2 of the Plan is modified and restated as follows:
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 on 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.].
13. Section IV.H of the Plan is modified and restated as follows:
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 consistent
with the treatment provided for Claims and Interests in 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-3 Termination Statements or such other forms as may be necessary or
appropriate to implement the provisions of this Section IV.H.
Notwithstanding the foregoing, any security interests or lien rights
relating to Claims Reinstated under Article III of the Plan shall be
retained and/or Reinstated on the Effective Date. In addition,
notwithstanding the foregoing, on and after the Effective Date, the
security interests of the holders of the Old Senior Secured Notes will
continue in substantially all of the Debtors' or Reorganized Debtors'
assets, as applicable, until the earlier to occur of: (1) the Old Senior
Secured Notes are redeemed and satisfied in full in accordance with Old
Senior Secured Notes Purchase Agreement, as contemplated by the Plan, or
(2) the Bankruptcy Court enters a Final Order providing otherwise.
14. Section IV.J of the Plan is modified and restated as follows:
On the Effective Date, Reorganized Oglebay and certain of the New
Equity Investors [may] shall enter into the New Registration Rights
Agreement[. If the New Registration Rights Agreement is executed, each of
the parties thereto will be bound thereby on and after the Effective Date.]
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15. Section IV.K of the Plan is modified and restated as follows:
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,
mortgage recording Tax or similar Tax: (1) the issuance, transfer or
exchange of New Common Stock, New Warrants 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.
16. Section VI.A of the Plan is modified and restated as follows:
Except as otherwise provided in this Article VI, distributions of
Cash[,] and New Common Stock [and] to be made on the Effective Date and
distributions of New Warrants to be made on the Effective Date or
thereafter to holders of Claims or Interests as provided by Article III or
Article V that are allowed as of the Effective Date shall 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 later to
occur of the Effective Date or the effectiveness of the Registration
Statement; 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 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.
17. Section VI.D.1.b.ii of the Plan is modified and restated as
follows:
With respect to the Allowed Old Senior Subordinated Note Claims,
on the Effective Date (or as soon as practicable thereafter in accordance
with Section VI.A), the Reorganized Debtors will distribute the New Common
Stock on account of the Allowed Old Senior Subordinated Note Claims to DTC,
which is the sole record holder of the Old Senior Subordinated Notes;
provided, however, that such distribution shall be made only after the
redemption of the Reinstated Old Senior Secured Notes as described in
Article III. DTC then will distribute the New Common Stock in accordance
with the Plan to the holders of the Allowed Old Senior Subordinated Note
Claims who surrender
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the Old Senior Subordinated Notes to DTC in accordance with Sections
IV.G.1 and VI.I and DTC procedures. For purposes of distributions under
this Section, DTC shall be considered a Disbursing Agent.
18. Section VI.D.1.b.iv of the Plan is modified and restated as
follows:
[Subject to the requirements of Section VI.I, distributions]
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.
19. Sections VI.I.4, VI.I.5 and VI.I.6 of the Plan are deleted in
their entirety as follows:
[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. 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]
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[asserting any such Interest or related Claims against the Reorganized
Debtors or their respective property.]
20. *Section VII.A.3 of the Plan is modified and restated as follows:
The resolution of Disputed Claims that also are Insured Claims,
including Tort Claims, pursuant to this Section VII.A shall be subject to
the provisions of Section IV.F of the Plan.
21. Section XI.A.1 of the Plan is modified and restated as follows:
Except as provided in the Plan (including with respect to
Reinstated Claims) 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 (including with respect to Reinstated
Claims) 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.
22. Section XI.B of the Plan is deleted in its entirety and replaced
with the following modified language:
As of the Effective Date, except as provided in the Plan
(including with respect to Reinstated Claims) or the Confirmation Order or
agreed to by the Debtors or the Reorganized Debtors, 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 discharged or released 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 against the Debtors, the Reorganized Debtors, any
released party or any of their respective property on account of any such
discharged or released claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action or liabilities or terminated
Interests or rights: (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, other than with respect to litigation
related to Reinstated Tort Claims; (c) creating, perfecting or enforcing
any lien or encumbrance (except with respect to any Reinstated liens); (d)
asserting a setoff, right of subrogation or recoupment of any kind against
any debt, liability or obligation
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due to any Debtor, Reorganized Debtor or 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.
[Remainder of page intentionally left blank.]
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Dated: November 12, 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)
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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
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