Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - - - - - - x
:
In re: : Chapter 11
:
STONE & WEBSTER, INCORPORATED : Case No. 00-2142 (PJW)
et al. :
Debtors. : Jointly Administered
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AMENDED JOINT PLAN OF REORGANIZATION OF DEBTORS-IN-
POSSESSION, OFFICIAL COMMITTEE OF UNSECURED
CREDITORS AND FEDERAL INSURANCE COMPANY WITH RESPECT
TO (I) STONE & WEBSTER, INCORPORATED AND CERTAIN OF ITS
SUBSIDIARIES AND AFFILIATES AND (II) STONE & WEBSTER ENGINEERS &
CONSTRUCTORS, INC. AND CERTAIN OF ITS SUBSIDIARIES AND AFFILIATES
Dated: Wilmington, Delaware
April 22, 2003
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
Gregg M. Galardi (I.D. No. 2991)
Eric M. Davis (I.D. No. 3621)
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
-and-
Edward J. Meehan
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Attorneys for Debtors and
Debtors-in-Possession
ORRICK, HERRINGTON &
SUTCLIFFE LLP
Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
666 Fifth Avenue
New York, New York 10103
- and -
KLETT, ROONEY, LIEBER & SCHORLING PC
Adam G. Landis (I.D. No. 3407)
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, Delaware 19801
Attorneys for the Official Committee
of Unsecured Creditors
-and-
MANIER & HEROD
J. Michael Franks Sam H. Poteet, Jr.
Thomas T. Pennington
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
(615) 244-0030
-and-
DUANE MORRIS LLP
Michael R. Lastowski (I.D. No. 3892)
1100 North Market Street
Suite 1200
Wilmington, Delaware 19801-1246
(302) 657-4900
Attorneys for Federal Insurance
Company
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INTRODUCTION
Stone and Webster, Incorporated ("SWINC") and Stone & Webster
Engineers & Constructors, Inc. ("SWE&C) and their respective subsidiaries and
affiliates that are debtors and debtors- in-possession in the above-captioned
Chapter 11 Cases (together with SWINC and SWE&C, the "Debtors"), the Official
Committee of Unsecured Creditors (the "Creditors' Committee") and Federal
Insurance Company, an Indiana corporation ("Federal"), hereby collectively
propose the following plan of reorganization (the "Plan") for the resolution of
outstanding creditor claims against and equity interests in the Debtors. All
capitalized terms not defined in this Introduction have the meanings ascribed
in Article I of the Plan. Reference is made to the Disclosure Statement,
distributed contemporaneously herewith, for a discussion of the Debtors'
history, business, properties and operations, a summary and analysis of the
Plan, and certain related matters. The Debtors, the Creditors' Committee and
Federal are the proponents of the Plan within the meaning of section 1129 of
the Bankruptcy Code. These Chapter 11 Cases were consolidated for procedural
purposes only and are being jointly administered pursuant to an order of the
Court.
Under section 1125(b) of the Bankruptcy Code, a vote to
accept or reject the Plan cannot be solicited from holders of Claims or
Interests until such time as the Disclosure Statement has been approved by the
Court and distributed to such holders. ALL HOLDERS OF CLAIMS AND ALL HOLDERS OF
INTERESTS ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT IN
THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THIS PLAN. Subject to certain
restrictions and requirements set forth in section 1127 of the Bankruptcy Code
and Bankruptcy Rule 3019, the Debtors reserve the right to alter, amend,
modify, revoke or withdraw this Plan prior to its substantial consummation.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. Scope of Definitions; Rules of Construction
For purposes of this Plan, except as expressly provided or
unless the context otherwise requires, all capitalized terms not otherwise
defined shall have the meanings ascribed to them in Article I of this Plan. Any
term used in this Plan that is not defined herein, but is defined in the
Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to
that term in the Bankruptcy Code or the Bankruptcy Rules. Whenever the context
requires, such terms shall include the plural as well as the singular number,
the masculine gender shall include the feminine and the feminine gender shall
include the masculine.
B. Definitions
1.1 "Administrative Claim" means a Claim for payment of an
administrative expense of a kind specified in section 503(b) or 1114(e)(2) of
the Bankruptcy Code and entitled to priority pursuant to section 507(a)(1) of
the Bankruptcy Code, including, but not limited to, (a) the actual, necessary,
costs and expenses, incurred after the Petition Date, of preserving the Estates
and operating the businesses of the Debtors, including wages, salaries or
commissions for services rendered after the commencement of the Chapter 11
Cases, (b) Professional Fee Claims, (c) all fees and charges assessed
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against the Estates under 28 U.S.C.ss. 1930 and (d) all Allowed Claims pursuant
to a Final Order of the Court under section 546(c)(2)(A) of the Bankruptcy
Code.
1.2 "Administrative Claims Bar Date" means the last day for filing
Administrative Claims, which day shall be sixty (60) days after the
Confirmation Date.
1.3 "AEC International" means AEC International Projects, Inc., a
debtor and debtor-in- possession in Chapter 11 Case No. 00-2145 (PJW) pending
in the United States District Court for the District of Delaware.
1.4 "Allowed" means, when used in reference to a Claim or Interest a
Claim or Interest as to which no objection has been filed by the respective
Claim Objection Deadline set forth in this Plan or an Order of the Court.
1.5 "Allowed Federal Claim" means Federal's Allowed Claim as more
particularly described in Article XII.G.2 of the Plan.
1.6 "Allowed SWE&C Claim" or "Allowed SWE&C Interest" means a Claim or
any portion thereof, or an Interest or any portion thereof, against SWE&C or a
SWE&C Subsidiary (a) as to which no objection to allowance or request for
estimation has been filed on or before the SWE&C Claims Objection Deadline, (b)
that has been expressly allowed by a Final Order, (c) that either (x) has been
Scheduled as a liquidated, non-contingent, undisputed claim or interest in an
amount greater than zero in the Debtors' Schedules, as such schedules may from
time to time be amended or modified in accordance with the Bankruptcy Code,
Bankruptcy Rules, or orders of the Court before the SWE&C Claims Objection
Deadline or (y) is the subject of a timely proof of claim or interest as to
which either (i) no objection to its allowance has been filed (either by way of
objection or amendment to the Schedules) within the periods of limitation fixed
by the Bankruptcy Code, the SWE&C Claims Objection Deadline or by any order of
the Court or (ii) any objection to its allowance has been settled, waived
through payment, or withdrawn, or has been denied by a Final Order, or (d) that
is expressly allowed in a liquidated amount in the Plan; provided, however,
that, with respect to a SWE&C Administrative Claim, "Allowed SWE&C
Administrative Claim" means a SWE&C Administrative Claim as to which a timely
request for payment has been made in accordance with Article XIV.A hereof (if
such written request is required) or other SWE&C Administrative Claim, in each
case as to which the Debtors (1) have not interposed a timely objection or (2)
have interposed a timely objection and such objection has been settled, waived
through payment, or withdrawn, or has been denied by a Final Order.
1.7 "Allowed SWINC Claim" or "Allowed SWINC Interest" means a Claim or
any portion thereof, or an Interest or any portion thereof, against SWINC or a
SWINC Subsidiary (a) as to which no objection to allowance or request for
estimation has been filed on or before the SWINC Claims Objection Deadline, (b)
that has been expressly allowed by a Final Order, (c) that either (x) has been
Scheduled as a liquidated, non-contingent, undisputed claim or interest in an
amount greater than zero in the Debtors' Schedules, as such schedules may from
time to time be amended or modified in accordance with the Bankruptcy Code,
Bankruptcy Rules, on orders of the Court before the SWINC Objection Deadline or
(y) is the subject of a timely proof of claim or interest as to which either
(i) no objection to its allowance has been filed (either by way of objection or
amendment to the Schedules) within the periods of limitation fixed by the
Bankruptcy Code, the SWINC Claims Objection Deadline or by any order of the
Court or (ii) any objection to its allowance has been settled,
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waived through payment, or withdrawn, or has been denied by a Final Order, or
(d) that is expressly allowed in a liquidated amount in the Plan; provided,
however, that, with respect to a SWINC Administrative Claim, "Allowed SWINC
Administrative Claim" means an Administrative Claim as to which a timely
request for payment has been made in accordance with Article XIV.A hereof (if
such written request is required) or other SWINC Administrative Claim, in each
case as to which the Debtors (1) have not interposed a timely objection or (2)
have interposed a timely objection and such objection has been settled, waived
through payment, or withdrawn, or has been denied by a Final Order.
1.8 "Allowed Class ... Claim" or "Allowed Class ... Interest" means an
Allowed Claim or Allowed Interest in the particular Class described.
1.9 "Amended Certificate of Incorporation and By-laws of SWINC" means
Reorganized SWINC's certificate of incorporation and by-laws in effect under
the laws of the State of Delaware, as amended and restated pursuant to the
Plan.
1.10 "Asbestos Claim" means any Claim whenever or wherever arising or
asserted against the Debtors, their predecessors, successors or their present
or former officers, directors or employees (whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, bonded, secured or unsecured) sounding in tort,
contract, warranty, or any other theory of law, equity or admiralty for,
relating to, or arising by reason of physical, emotional, bodily or other
personal injury or damages, diagnosable or manifested before the Effective Date
of the Plan, (x) caused or allegedly caused, in whole or in part (i) by
asbestos or asbestos-containing products sold, installed, or removed by the
Debtors, (ii) by services, actions or operations provided, completed or taken
by the Debtors in connection with asbestos or asbestos- containing products, or
(y) caused or allegedly caused by asbestos for which Debtors are otherwise
liable under any applicable law, whether or not arising or allegedly arising
from acts or omissions of the Debtors, their predecessors, successors or their
present or former officers, directors or employees. Notwithstanding the
foregoing, "Asbestos Claim" shall not include any Claim or demand (i) for loss
of or damage to property or (ii) based on exposure to asbestos or
asbestos-containing products solely during the course of the claimant's
employment with the Debtors, their predecessors or successors.
1.11 "Asbestos Insurance Carriers" means Travelers Insurance Company
Aetna Casualty & Surety Company, Kemper National Insurance Company, Centennial
Insurance Company, United States Fidelity & Guaranty Co., Argonaut Insurance
Company, Royal Insurance Company and any other insurance companies that issued
policies covering an Asbestos Claim.
1.12 "Asbestos Trust" means the segregated trust fund established
pursuant to the Asbestos Trust Agreement.
1.13 "Asbestos Trust Agreement" means that certain agreement,
effective as of the Effective Date, substantially in the form annexed hereto as
Plan Exhibit A, as it may be modified from time to time.
1.14 "Asbestos Trust Assets" means the Asbestos Trust Payment and an
Allowed Class 5B Claim in the amount of $1.0 million, as well as the Debtors'
rights with respect to, among other things, indemnification, contribution or
reimbursement under the insurance policies issued by the
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Asbestos Insurance Carriers (but not the policies themselves) and all of their
rights under any other policies that provide coverage for Asbestos Claims (but
not those policies themselves), but only to the extent of such coverage under
those policies, which rights shall be transferred to the Asbestos Trustee.
1.15 "Asbestos Trust Payment" means the Cash payment in the amount of
$4.5 million made by the Debtors to the Asbestos Trust pursuant to the Asbestos
Trust Agreement.
1.16 "Asbestos Trustee" means Mr. James Carroll, the Person appointed
to administer the Asbestos Trust in accordance with the terms of the Plan and
the Asbestos Trust Agreement, and any successor thereto.
1.17 "Asset Purchase Agreement" means the asset purchase agreement,
dated as of July 14, 2000, as subsequently amended, between the Debtors as
sellers and Shaw as purchaser.
1.18 "Associated Engineers" means Associated Engineers & Consultants,
Inc., a debtor and debtor-in-possession in Chapter 11 Case No. 00-2146 (PJW)
pending in the United States District Court for the District of Delaware.
1.19 "Auburn GC" means Auburn VPS General Corporation, a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2147 (PJW) pending in the
United States District Court for the District of Delaware.
1.20 "Auburn LC" means Auburn VPS Limited Corporation, a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2148 (PJW) pending in the
United States District Court for the District of Delaware.
1.21 "Available Asbestos Trust Cash" means any Cash remaining in the
Asbestos Trust after deducting the amount determined by the Asbestos Trustee to
be necessary and appropriate to reserve for future costs of administration of
the Asbestos Trust (including, without limitation, the compensation, fees and
costs of the Asbestos Trustee and the compensation, fees and costs of all
professionals, consultants, agents and employees retained or to be retained by
the Asbestos Trustee).
1.22 "Available Cash" means the SWINC Available Cash or the SWE&C
Liquidating Trust Available Cash.
1.23 "Ballot" means each of the ballot forms distributed with the
Disclosure Statement to holders of Impaired Claims and/or Interests entitled to
vote under Article V hereof in connection with the solicitation of acceptances
of the Plan.
1.24 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in title 11 of the United States Code, 11 U.S.C. ss.ss. 101-1330, as
now in effect or hereafter amended.
1.25 "Bankruptcy Rules" means collectively the Federal Rules of
Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the Federal
Rules of Civil Procedure, as amended, as applicable to the Chapter 11 Cases or
proceedings therein, and the Local Rules of the Bankruptcy Court as applicable
to the Chapter 11 Cases or proceedings therein, as the case may be.
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1.26 "Bar Date(s)" means the date(s), if any, designated by the Court
as the last date(s) for filing Proofs of Claim or Interest against the Debtors.
1.27 "Bar Date Order" means the Order Establishing Bar Date For Filing
Proofs Of Claim, signed by the Court on July 18, 2000, as the same may have
been or hereafter may be amended, modified or supplemented.
1.28 "Belmont" means Belmont Constructors Company, Inc., a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2149 (PJW) pending in the
United States District Court for the District of Delaware.
1.29 "Business Day" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)).
1.30 "Canadian Cash" means all Cash held by SWCL not to exceed $5
million less the shared cost of the Isobord Claim Objection Litigation.
1.31 "Cash" means legal tender of the United States of America and
equivalents thereof.
1.32 "CCS" means Commercial Cold Storage, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2150 (PJW) pending in the United
States District Court for the District of Delaware.
1.33 "Chapter 11 Cases" means the chapter 11 cases of the Debtors
jointly administered under Case No. 00-2142 (PJW).
1.34 "Chubb Canada" means Chubb Insurance Company of Canada.
1.35 "Claim" means a claim, as such term is defined by section 101(5)
of the Bankruptcy Code, against a Debtor, whether or not asserted.
1.36 "Claims Agent" means Trumbull Services LLC.
1.37 "Claimholder" means a holder of a Claim.
1.38 "Claims Objection Deadline" means either the SWINC Claims
Objection Deadline or the SWE&C Claims Objection Deadline.
1.39 "Claims Registry" means the official list of Claims and Interests
in these Chapter 11 Cases maintained by the Claims Agent.
1.40 "Class" means a category of holders of Claims or Interests, as
described in Article II hereof.
1.41 "Collateral" means any property or interest in property of a
Debtor's Estate subject to a Lien to secure the payment or performance of a
Claim, which Lien is not subject to avoidance under the Bankruptcy Code or
otherwise invalid under the Bankruptcy Code or applicable state laws.
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1.42 "Confirmation" means entry by the Court of the Confirmation
Order.
1.43 "Confirmation Date" means the date of entry by the clerk of the
Bankruptcy Court of the Confirmation Order.
1.44 "Confirmation Hearing" means the hearing to consider confirmation
of the Plan under section 1128 of the Bankruptcy Code, as such hearing may be
adjourned or continued from time to time.
1.45 "Confirmation Order" means the order entered by the Court
confirming the Plan.
1.46 "Consolidated SWE&C Estate" means the substantively consolidated
Estates of SWE&C and the SWE&C Subsidiaries.
1.47 "Consolidated SWINC Estate" means the substantively consolidated
Estates of SWINC and the SWINC Subsidiaries.
1.48 "Convenience Claim" means an Allowed Class 4A SWINC General
Unsecured Claim or an Allowed Class 4B SWE&C General Unsecured Claim.
1.49 "Court" means the United States Bankruptcy Court for the District
of Delaware, currently presiding over these Chapter 11 Cases or such other
court as may have jurisdiction over the Chapter 11 Cases, including the United
States District Court for the District of Delaware which previously presided
over the Chapter 11 Cases.
1.50 "Creditor" means any Entity who holds a Claim against a Debtor.
1.51 "Creditors' Committee" means the statutory committee of unsecured
creditors appointed in the Chapter 11 Cases pursuant to section 1102(a) of the
Bankruptcy Code.
1.52 "Cure" means the distribution of Cash, or such other property as
may be agreed upon by the parties or ordered by the Court, with respect to the
assumption of an executory contract or unexpired lease, pursuant to section
365(b) of the Bankruptcy Code, in an amount equal to all unpaid monetary
obligations, without interest, or such other amount as may be agreed upon by
the parties, under such executory contract or unexpired lease, to the extent
such obligations are enforceable under the Bankruptcy Code and applicable
bankruptcy law.
1.53 "Debtor" means, individually, SWINC, SWE&C, any of the SWINC
Subsidiaries or any of the SWE&C Subsidiaries.
1.54 "Debtors" means collectively, SWINC, SWE&C, the SWINC
Subsidiaries, and the SWE&C Subsidiaries.
1.55 "Delaware General Corporation Law" means title 8 of the Delaware
Code, in effect as of the date hereof.
1.56 "Disallowed SWE&C Claim" or "Disallowed SWE&C Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWE&C or a SWE&C Subsidiary
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that (a) has been disallowed by a Final Order (b) is Scheduled at zero or
Scheduled as contingent, disputed or unliquidated and as to which a proof of
claim or interest bar date has been established but no proof of claim or
interest has been filed or deemed timely filed with the Court pursuant to
either the Bankruptcy Code or any Final Order of the Court or otherwise deemed
timely filed under applicable law, or (c) is not Scheduled and as to which a
proof of claim or interest bar date has been established but no proof of claim
or interest has been filed or deemed timely filed with the Court pursuant to
either the Bankruptcy Code or any Final Order of the Court or otherwise deemed
timely filed under applicable law.
1.57 "Disallowed SWINC Claim" or "Disallowed SWINC Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWINC or any SWINC Subsidiary that (a) has been disallowed by a Final Order (b)
is Scheduled at zero Scheduled or as contingent, disputed or unliquidated and
as to which a proof of claim or interest bar date has been established but no
proof of claim or interest has been filed or deemed timely filed with the Court
pursuant to either the Bankruptcy Code or any Final Order of the Court or
otherwise deemed timely filed under applicable law, or (c) is not Scheduled and
as to which a proof of claim or interest bar date has been established but no
proof of claim or interest has been filed or deemed timely filed with the Court
pursuant to either the Bankruptcy Code or any Final Order of the Court or
otherwise deemed timely filed under applicable law.
1.58 "Disclosure Statement" means the written disclosure statement
(including all schedules thereto or referenced therein) that relates to this
Plan, as approved by the Court pursuant to section 1125 of the Bankruptcy Code,
as the same may be amended, modified or supplemented.
1.59 "Disputed SWE&C Claim" or "Disputed SWE&C Interest" means a Claim
or any portion thereof, or an Interest or any portion thereof, against SWE&C or
any SWE&C Subsidiary a Debtor that is neither an Allowed SWE&C Claim nor a
Disallowed SWE&C Claim, or an Allowed SWE&C Interest or a Disallowed SWE&C
Interest, as the case may be, including, but not limited to, Claims (a) that
(i) have not been Scheduled by SWE&C or any SWE&C Subsidiary or (ii) have been
Scheduled by SWE&C or any SWE&C Subsidiary at zero or as contingent,
unliquidated or disputed, (b) that is the subject of a proof of claim or
interest against SWE&C or any SWE&C Subsidiary that either (i) differs in
nature, amount or priority from SWE&C or any SWE&C Subsidiary Schedules or (ii)
asserts a Claim against SWE&C or any SWE&C Subsidiary that Claim would be
properly asserted against SWINC or any SWINC Subsidiary or (c) the allowance or
disallowance of which is not yet the subject of a Final Order.
1.60 "Disputed SWINC Claim" or "Disputed SWINC Interest" means a Claim
or any portion thereof, or an Interest or any portion thereof, against SWINC or
any SWINC Subsidiary that is neither an Allowed SWINC Claim nor a Disallowed
SWINC Claim, or an Allowed Interest or a Disallowed SWINC Interest, as the case
may be, including, but not limited to, Claims (a) that (i) have not been
Scheduled by a Debtor but should have been included on the Debtors Schedules as
a Claim against or Interests in SWINC or a SWINC Subsidiary or (ii) have been
Scheduled at zero or as contingent, unliquidated or disputed, (b) that are the
subject of a proof of claim or interest that either (i) differs in nature,
amount or priority from any of the Debtors' Schedules or (ii) asserts a Claim
against SWINC or any SWINC Subsidiary that would be properly asserted against
SWE&C or any SWE&C Subsidiary, or (c) the allowance or disallowance of which is
not yet the subject of a Final Order.
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1.61 "Disputed Claims Reserves" means the SWINC Disputed Claims
Reserve and the SWE&C Disputed Claims Reserve.
1.62 "Distribution Date" means the Effective Date and any subsequent
date in which distributions are made under the Plan.
1.63 "Distribution Notification Date" means the Confirmation Date.
1.64 "DSS" means DSS Engineers, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2151 (PJW) pending in the United
States District Court for the District of Delaware.
1.65 "Effective Date" means the Business Day on which all conditions
to the consummation of the Plan as set forth in Article XII.B hereof have been
satisfied or waived as provided in Article XII hereof and is the effective date
of the Plan.
1.66 "Enclave Parkway" means 1430 Enclave Parkway Corporation, a
debtor and debtor- in-possession in Chapter 11 Case No. 00-2143 (PJW) pending
in the United States District Court for the District of Delaware.
1.67 "Enclave Parkway Realty" means Enclave Parkway Realty, Inc., a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2152 (PJW) pending in
the United States District Court for the District of Delaware.
1.68 "Entity" means an Entity as defined in section 101(15) of the
Bankruptcy Code.
1.69 "Equity Committee" means the statutory committee of equity
security holders appointed in the chapter 11 Cases pursuant to section 1102(a)
of the Bankruptcy Code.
1.70 "Equity Settlement Fund" means the Cash from the Initial Federal
Distribution to be paid to holders of Allowed Class 9A SWINC Equity Interests
in the event that (i) Class 9A SWINC Equity Interests votes to accept the Plan
and (ii) the Federal Settlement is approved.
1.71 "Estate" means (a) individually, the estate of SWINC, SWE&C, any
of the SWINC Subsidiaries, or any of the SWE&C Subsidiaries and (b)
collectively, the estates of all of the Debtors created under section 541 of
the Bankruptcy Code.
1.72 "Face Amount" means (a) when used in reference to a Disputed or
Disallowed Claim, either (i) the full stated liquidated amount claimed by the
holder of such Claim in any proof of Claim timely filed with the Bankruptcy
Court or otherwise deemed timely filed by any Final Order of the Court or other
applicable bankruptcy law or (ii) if such Claim is unliquidated, zero (0), and
(b) when used in reference to an Allowed Claim, the allowed amount of such
Claim.
1.73 "Fast Supply" means Fast Supply Corporation, debtor and
debtor-in-possession in Chapter 11 Case No. 00-2153 (PJW) pending in the United
States District Court for the District of Delaware.
1.74 "Federal" means Federal Insurance Company, an Indiana
corporation.
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1.75 "Federal Note" means the $1.8 million note issued to Federal by
the SWE&C Liquidating Trustee pursuant to the Federal Settlement.
1.76 "Federal Settlement Agreement" means the agreement among the
Debtors and Federal, effective as of the Effective Date, as described in
Article XIII of the Plan.
1.77 "File, Filed or Filing" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Chapter 11 Cases.
1.78 "Final Order" means an order or judgment of the Court, as entered
on the docket in the Chapter 11 Cases, or the order or judgment of any other
court of competent jurisdiction, the operation or effect of which has not been
stayed, reversed, or amended and as to which order or judgment (or any
revision, modification or amendment thereof) the time to appeal or seek review
or rehearing has expired and as to which no appeal or petition for review or
rehearing was filed, or, if filed, remains pending.
1.79 "General Administrative Claim" means an Administrative Claim that
is not a SWINC Administrative Claim nor a SWE&C Administrative Claim.
1.80 "General Professional Fee Claim" means any Professional Fee Claim
that is neither a SWINC professional Fee Claim nor a SWE&C Professional Fee
Claim.
1.81 "General Professional Fee Reserve" means the reserve account to
be established and maintained under the Plan into which will be deposited an
amount equal to $10.6 million to fund and pay any Allowed General Professional
Fee Claim.
1.82 "General Unsecured Claim" means a Claim that is either a Class 5A
SWINC General Unsecured Claim or a Class 5B SWE&C General Unsecured Claim.
1.83 "Guaranty" means a promise or undertaking to answer for payment
of some debt, or performance of some contract, of another Person or Entity in
the event of default.
1.84 "Guaranty Claims" means a Claim against a Debtor based upon a
Guaranty.
1.85 "GSES" means GSES Holding, LLC, a debtor and debtor-in-possession
in Chapter 11 Case No. 00-2154 (PJW) pending in the United States District
Court for the District of Delaware.
1.86 "IE&C" means International Engineers & Constructors,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2155
(PJW) pending in the United States District Court for the District of Delaware.
1.87 "Impaired" means, when used in reference to a Claim or Interest,
a Claim or Interest that is impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.88 "Indemnification Claim" means a Claim for, relating to, or
arising by reason of, directly or indirectly, an Indemnification Obligation.
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1.89 "Indemnification Obligations" means the obligation of any of the
Debtors to indemnify, reimburse or provide contribution to any present or
former officer, director or employee, or any present or former professionals or
advisors of the Debtors, pursuant to certificates of incorporation, by-laws,
comparable organizational documents, contract, statute or otherwise as may be
in existence immediately prior to the Petition Date, including, without
limitation, accountants, auditors, financial consultants, underwriters or
attorneys, whether pursuant to articles of incorporation, by-laws, comparable
organizational documents, contract, statute or otherwise, regardless of whether
the indemnification is owed in connection with a pre-petition or post-petition
occurrence.
1.90 "Initial Class 5A Distribution Amount" means the amount of SWINC
Available Cash to be distributed to all holders of Allowed Class 5A SWINC
General Unsecured Claims on the Effective Date.
1.91 "Initial Class 5B Distribution Amount" means the amount of SWE&C
Available Cash to be distributed to the holders of Allowed Class 5B SWE&C
General Unsecured Claims on the Effective Date.
1.92 "Initial Class 7A Distribution Amount" means the amount of SWINC
Available Cash to be distributed to all holders of Allowed Class 7A SWINC
Subordinated Claims on the Effective Date.
1.93 "Initial Class 8A Distribution Amount" means the amount of SWE&C
Available Cash to be distributed to all holders of Allowed Class 8A SWINC
Securities Claims on the Effective Date.
1.94 "Initial Federal Distribution" means an initial distribution in
an amount no less than $7.3 million in Cash to Federal on account of the
Allowed Federal Claim against the Consolidated SWINC Estate.
1.95 "Insured Claim" means any Claim against a Debtor for which the
Debtor is entitled to indemnification, reimbursement, contribution or other
payment under a policy of insurance wherein a Debtor is an insured or
beneficiary of the coverage of any of the Debtors.
1.96 "Insurance Proceeds" means any recovery by the Debtors or other
beneficiary of an insurance policy on account of or with respect to an Insured
Claim.
1.97 "Intraestate Claim" means either the SWINC Intraestate Claims or
the SWE&C Intraestate Claims.
1.98 "Intercompany Claim" means (a) any claim reflected in the books
and records of account by one Debtor with respect to any other Debtor or (b)
any Claim that is not reflected in such books and records entries but is held
by a Debtor against any other Debtor.
1.99 "Interest" means (a) the legal, equitable, contractual and other
rights of any Person with respect to the Old Common Stock, Old Common Stock
Options or any other equity or membership interest in any of the Debtors and
(b) the legal, equitable, contractual or other rights of any Person to acquire
or receive any of the foregoing.
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1.100 "Interestholder" means a holder of an Interest.
1.101 "IRC" means the Internal Revenue Code of 1986, as amended and in
effect.
1.102 "IRS" means Internal Revenue Service of the United States of
America.
1.103 "Isobord" means Isobord Enterprises Inc.
1.104 "Isobord Claim Objection Litigation" means that litigation with
respect to SWE&C's objection to the proof of claim filed by Isobord in the
Chapter 11 Cases.
1.105 "Isobord Facility" means the facility to manufacture straw-based
particle board using a process technology developed and patented by Isobord and
Kvaerner Panel Systems GmbH.
1.106 "Isobord Litigation" means that litigation initiated by Isobord
against SWCL and SWEC in the Superior Court of Justice in Ontario, Canada, for
CN$150,000,000 in June 2000.
1.107 "Lien" means a charge against or interest in property to secure
payment of a debt or performance of an obligation.
1.108 "Litigation Claims" means the Claims, rights of action, suits or
proceedings, whether in law or in equity, whether known or unknown, that a
Debtor or its Estate may hold against any Person, which are retained by the
SWINC Plan Administrator, or the SWE&C Liquidating Trustee, as the case may be,
pursuant to Article VII.P of this Plan, including, but not limited to, the
claims described in Plan Exhibit B.
1.109 "Lumbermens" means Lumbermens Mutual Casualty Company, together
with its business affiliate AXA Pacific Insurance Company.
1.110 "Lumbermens Claim" means proof of claim no. 5179 filed by
Lumbermens relating to losses suffered by Lumbermens solely in connection with
surety bonds and which amended and superseded proofs of claim nos. 3300 and
4491. The Lumbermens Claim does not include any other proof of claim filed by
Lumbermens.
1.111 "Nordic Holdings" means Nordic Holdings, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2156 (PJW) pending in the United
States District Court for the District of Delaware.
1.112 "Nordic Investors" means Nordic Investors, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2157 (PJW) pending in the United
States District Court for the District of Delaware.
1.113 "Nordic Rail" means Nordic Rail Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2158 (PJW) pending in the United
States District Court for the District of Delaware.
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1.114 "NRSI" means Nordic Refrigerated Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2159 (PJW) pending in the United
States District Court for the District of Delaware.
1.115 "NRSLP" means Nordic Refrigerated Services, Limited Partnership,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2160 (PJW) pending
in the United States District Court for the District of Delaware.
1.116 "NTS" means Nordic Transportation Services, Inc., a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2161 (PJW) pending in the
United States District Court for the District of Delaware.
1.117 "Old Common Stock" means shares of common stock, par value $1.00
per share, of SWINC issued and outstanding as of the Petition Date, together
with any options, warrants, or rights, contractual or otherwise, to acquire or
receive any such stock, including, but not limited to the Old Common Stock
Options and any contracts or agreements pursuant to which a non-Debtor party
was or could have been entitled to receive SWINC common stock.
1.118 "Old Common Stock Options" means the outstanding options to
purchase Old Common Stock, as of the Petition Date.
1.119 "Old Securities" means, collectively, the Old Common Stock and
Old Common Stock Options.
1.120 "Operating Reserve" means the reserve accounts to be established
and maintained by the SWINC Plan Administrator and the SWE&C Liquidating
Trustee into which the SWINC Plan Administrator and the SWE&C Liquidating
Trustee shall from time to time deposit Cash to fund, among other things, the
expenses of the SWINC Plan Administrator, as set forth more fully in the SWINC
Plan Administrator Agreement and the expenses of SWE&C Liquidating Trustee, as
set more fully in the SWE&C Liquidity Trust Agreement.
1.121 "Other Priority Claim" means a Claim, other than an
Administrative Claim or Priority Tax Claim, that is entitled to priority
pursuant to section 507(a) of the Bankruptcy Code.
1.122 "Pension Plan" means the Employee Retirement Plan of Stone &
Webster, Incorporated and Participating Subsidiaries, as the same may have been
or may be amended, modified, revised or restated.
1.123 "Person" means a person as such term is defined in section
101(41) of the Bankruptcy Code.
1.124 "Petition Date" means June 2, 2000, the date on which the
Debtors filed their petitions for relief commencing the Chapter 11 Cases.
1.125 "Plan" means this chapter 11 plan and all exhibits annexed
hereto, including the Plan Supplement, either in its present form or as the
same may be altered, amended or modified from time to time.
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1.126 "Plan Exhibit" means any exhibit attached to the Plan.
1.127 "Plan Supplement" means the compilation of documents and forms
of documents specified in the Plan which will be filed with the Court not later
than the deadline for objection to confirmation of the Plan, August 15, 2003.
1.128 "Polar Transport" means Polar Transport, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2162 (PJW) pending in the United
States District Court for the District of Delaware.
1.129 "Power Technologies" means Power Estate, Inc., f/k/a Power
Technologies, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2163 (PJW) pending in the United States District Court for the District of
Delaware.
1.130 "Prescient" means Prescient Technologies, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2164 (PJW) pending in the United
States District Court for the District of Delaware.
1.131 "Priority Tax Claim" means a Claim that is entitled to priority
pursuant to section 507(a)(8) of the Bankruptcy Code.
1.132 "Professional" means any professional employed in the Chapter 11
Cases pursuant to section 327, 328 or 1103 of the Bankruptcy Code or otherwise
and any professional seeking compensation or reimbursement of expenses in
connection with the Chapter 11 Cases pursuant to section 503(b)(4) of the
Bankruptcy Code.
1.133 "Professional Fee Claim" means a Claim of a Professional for
compensation or reimbursement of costs and expenses relating to services
incurred after the Petition Date and prior to or on the Effective Date.
1.134 "Professional Fee Order" means the order under 11 U.S.C. ss.ss.
105(a) and 331 Establishing Procedures for Interim Compensation and
Reimbursement of Expenses of Professionals, dated July 28, 2000.
1.135 "Projects Engineers" means Projects Engineers, Incorporated, a
debtor and debtor- in-possession in Chapter 11 Case No. 00-2165 (PJW) pending
in the United States District Court for the District of Delaware.
1.136 "Pro Rata" means, from time to time, unless the Plan
specifically provides otherwise, (a) with respect to Claims, the proportion
that the Face Amount of a Claim in a particular Class of Claims bears to the
aggregate Face Amount of all Claims (including Disputed Claims, but excluding
Disallowed Claims) in such class and (b) with respect to Interests, the number
of shares or units held by such Interestholder in relation to the total number
of such shares or units outstanding included in such class.
1.137 "Reorganized SWINC" means, the successor to SWINC and the SWINC
Subsidiaries after giving effect to the substantive consolidation and merger of
SWINC and the SWINC Subsidiaries into SWINC on the Effective Date pursuant to
the Plan.
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1.138 "Reorganized SWINC Board" means the Board of Directors of
Reorganized SWINC, as reconstituted on the Effective Date.
1.139 "Reorganized SWINC New Common Stock" means the shares of common
stock, par value $.01 per share, of Reorganized SWINC authorized under Article
VI.I hereof and under the Amended Certificate of Incorporation and By-laws of
Reorganized SWINC.
1.140 "Reorganized SWINC New Series A Preferred Stock" means the
shares of Series A participating Preferred Stock, par value $.01 per share, of
Reorganized SWINC authorized under Article VI.I hereof and under the Amended
Certificate of Incorporation and By-laws of Reorganized SWINC.
1.141 "Reorganized SWINC New Series B Preferred Stock" means the
shares of series B participating Preferred Stock, par value $.01 per share, of
Reorganized SWINC authorized under Article VI.I hereof and under the Amended
Certificate of Incorporation and By-laws of Reorganized SWINC.
1.142 "Reserves" means, one or more of: (i) the Disputed Claims
Reserves, (ii) the Unclaimed Distribution Reserves and (iii) the Operating
Reserves (iv) the Professional Fee Claims Reserves and (v) any other reserves
established under the Plan.
1.143 "Restricted Cash" means the Cash segregated by the SWINC Plan
Administrator from time to time to fund the Reserves.
1.144 "Reversion" means the remaining assets within the Pension Plan
after all Pension Plan liabilities have been satisfied.
1.145 "Rockton Associates" means Rockton Associates, Incorporated, a
debtor and debtor- in-possession in Chapter 11 Case No. 00-2166 (PJW) pending
in the United States District Court for the District of Delaware.
1.146 "Rockton Technical" means Rockton Technical Services
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2167
(PJW) pending in the United States District Court for the District of Delaware.
1.147 "Sabal" means Sabal Corporation, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2168 (PJW) pending in the United
States District Court for the District of Delaware.
1.148 "Sabal Real Estate" means Sabal Real Estate Corporation, a
debtor and debtor-in- possession in Chapter 11 Case No. 00-2169 (PJW) pending
in the United States District Court for the District of Delaware.
1.149 "Sale Order" means the Revised Order under 11
U.S.C.ss.ss.105(a), 363, 365 and 1146(c), and Fed. R. Bankr. P. 2002, 6004,
6006 and 9014, (A) Approving Asset Purchase Agreement; (B) Authorizing (i) Sale
of Substantially all of Debtors' Assets Free and Clear of Liens, Claims,
Interests and Encumbrances, (ii) Assumption and Assignment of Certain Executory
Contracts and Unexpired Leases, and (iii) Assumption of Certain Liabilities,
entered by the Court on July 14,
14
2000, authorizing the Debtors' sale of substantially all of their assets to
Shaw pursuant to the Asset Purchase Agreement.
1.150 "Sale Proceeds" means the proceeds received by the Debtors from
Shaw pursuant to the Asset Purchase Agreement.
1.151 "SAW" means SAW Consulting Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2170 (PJW) pending in the United
States District Court for the District of Delaware.
1.152 "Scheduled" means, with respect to any Claim or Interest, the
status and amount, if any, of such Claim or Interest as set further in the
Schedules.
1.153 "Schedules" means the schedules of assets and liabilities, the
list of holders of Interests and the statements of financial affairs filed by
the Debtors on July 14, 2000, as such schedules or statements have been or may
be further modified, amended or supplemented in accordance with Bankruptcy Rule
1009 or orders of the Court, including, but not limited to, the amended
schedules filed by the Debtors on April 2, 2003.
1.154 "SC Wood" means SC Wood, LLC, a debtor and debtor-in-possession
in Chapter 11 Case No. 00-2171 (PJW) pending in the United States District
Court for the District of Delaware.
1.155 "Secured Claim" means a Claim (a) secured by a Lien on property
in which an Estate has an interest or (b) that is subject to setoff under
section 553 of the Bankruptcy Code and such right of setoff has been asserted
by the holder of such right prior to the Confirmation Date in a property filed
motion for relief from the automatic stay, to the extent of the value of the
Claim holder's interest in the Estate's interest in such property or to the
extent of the amount subject to setoff, as applicable, as determined pursuant
to section 506(a) of the Bankruptcy Code.
1.156 "Securities Claim" means (a) any claim or demand whenever and
wherever arising or asserted against the Debtors, their predecessors,
successors, or their present or former officers, directors or employees and (b)
any debt, obligation or liability (whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, bonded, secured, or unsecured), whenever and
wherever arising or asserted, of the Debtors, their predecessors, successors,
or their present or former officers, directors or employees (including, but not
limited to, all thereof in the nature of or sounding in tort, contract,
warranty, or any other theory of law, equity or admiralty); in either case (a)
and (b) for, relating to, or arising by reason of, directly or indirectly, the
ownership of Old Securities, including, but not limited to, any Claim subject
to subordination under section 510(b) of the Bankruptcy Code.
1.157 "Selective Technologies" means Selective Technologies
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2172
(PJW) pending in the United States District Court for the District of Delaware.
1.158 "Semi-annual Class 5A Distribution Amount" means, with respect
to each Semi- annual Distribution Date, the amount of SWINC Available Cash
distributed to all holders of Allowed Class 5A SWINC General Unsecured Claims.
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1.159 "Semi-annual Class 5B Distribution Amount" means, with respect
to each Semi- annual Distribution Date, the amount of SWE&C Available Cash to
be distributed to holders of Allowed Class 5B SWE&C General Unsecured Claims.
1.160 "Semi-annual Distribution Date" means (a) initially, the first
Business Day occurring six (6) months after the Effective Date, and (b)
subsequently, the first Business Day occurring six (6) full months after the
immediately preceding Semiannual Distribution Date.
1.161 "Shaw" means The Shaw Group Inc., a Louisiana corporation, and
its affiliates and subsidiaries, including, but not limited to, SWINC
Acquisition Three, Inc., a Louisiana corporation.
1.162 "Shaw Sale" means the Debtors' sale of substantially all of
their assets to Shaw pursuant to the Sale Order.
1.163 "Sleeper Street" means Sleeper Street Realty Corporation, a
debtor and debtor-in- possession in Chapter 11 Case No. 00-2173 (PJW) pending
in the United States District Court for the District of Delaware.
1.164 "Solicitation Order" means the order entered by the Court
establishing procedures with respect to the solicitation and tabulation of
votes to accept or reject this Plan.
1.165 "Substantive Consolidation Order" means the order, or provision
of the Confirmation Order, substantively consolidating the Chapter 11 Cases, as
provided in Article VII.A of the Plan.
1.166 "Substantive Consolidation Settlement" means the compromise and
settlement proposed in the Plan in Article VII.A and described in the
Disclosure Statement.
1.167 "Summer Street" means 245 Summer Street Corporation, a debtor
and debtor-in- possession in Chapter 11 Case No. 00-2144 (PJW) pending in the
United States District Court for the District of Delaware.
1.168 "S&W Abu Dhabi" means Stone & Webster Abu Dhabi (United Arab
Emirates), Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2174 (PJW) pending in the United States District Court for the District of
Delaware.
1.169 "S&W Argentina" means Stone & Webster of Argentina Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2196 (PJW) pending
in the United States District Court for the District of Delaware.
1.170 "S&W Asia" means Stone & Webster Asia Corporation, a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2175 (PJW) pending in the
United States District Court for the District of Delaware.
1.171 "S&W Auburn" means Stone & Webster Auburn Corporation, a debtor
and debtor- in-possession in Chapter 11 Case No. 00-2176 (PJW) pending in the
United States District Court for the District of Delaware.
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1.172 "S&W Bharat" means Stone & Webster Bharat, Incorporated, a
debtor and debtor- in-possession in Chapter 11 Case No. 00-2177 (PJW) pending
in the United States District Court for the District of Delaware.
1.173 "S&W Binghamton" means Stone & Webster Binghamton Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2178 (PJW) pending in
the United States District Court for the District of Delaware.
1.174 "S&W Civil" means Stone & Webster Civil and Transportation
Services, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2179 (PJW) pending in the United States District Court for the District of
Delaware.
1.175 "S&W Construction" means SWCC, Inc., f/k/a Stone & Webster
Construction Company, Inc., a debtor and debtor-in-possession in Chapter 11
Case No. 00-2180 (PJW) pending in the United States District Court for the
District of Delaware.
1.176 "S&W Development" means Stone & Webster Development Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2181 (PJW) pending
in the United States District Court for the District of Delaware.
1.177 "S&W Dominican Republic" means Stone & Webster Dominican
Republic, Incorporated, a debtor and debtor-in-possession in Chapter 11 Case
No. 00-2182 (PJW) pending in the United States District Court for the District
of Delaware.
1.178 "S&W Far East" means Stone & Webster Far East Technical Services
Corp., a debtor and debtor-in-possession in Chapter 11 Case No. 00-2184 (PJW)
pending in the United States District Court for the District of Delaware.
1.179 "S&W Indonesia" means Stone & Webster Indonesia Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2185 (PJW) pending in
the United States District Court for the District of Delaware.
1.180 "S&W Industrial" means Stone & Webster Industrial Technology
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2186
(PJW) pending in the United States District Court for the District of Delaware.
1.181 "S&W Inter-American" means Stone & Webster Inter-American
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2187
(PJW) pending in the United States District Court for the District of Delaware.
1.182 "S&W International" means Stone & Webster International
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2188
(PJW) pending in the United States District Court for the District of Delaware.
1.183 "S&W International Projects" means Stone & Webster International
Projects Corporation, a debtor and debtor-in-possession in Chapter 11 Case No.
00-2189 (PJW) pending in the United States District Court for the District of
Delaware.
17
1.184 "S&W Italia" means Stone & Webster Italia, Incorporated, a
debtor and debtor-in- possession in Chapter 11 Case No. 00-2190 (PJW) pending
in the United States District Court for the District of Delaware.
1.185 "S&W Korea" means Stone & Webster Korea Corporation, a debtor
and debtor-in- possession in Chapter 11 Case No. 00-2191 (PJW) pending in the
United States District Court for the District of Delaware.
1.186 "S&W Kuwait" means Stone & Webster Kuwait, Incorporated, a
debtor and debtor- in-possession in Chapter 11 Case No. 00-2192 (PJW) pending
in the United States District Court for the District of Delaware.
1.187 "S&W Management" means S&WMC, Inc., f/k/a Stone & Webster
Management Consultants, Inc., a debtor and debtor-in-possession in Chapter 11
Case No. 00-2194 (PJW) pending in the United States District Court for the
District of Delaware.
1.188 "S&W Mexico" means Stone & Webster of Mexico Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2197
(PJW) pending in the United States District Court for the District of Delaware.
1.189 "S&W Michigan" means SWM Co., Inc., f/k/a Stone & Webster
Michigan, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2214 (PJW) pending in the United States District Court for the District of
Delaware.
1.190 "S&W Middle East" means Stone & Webster Middle East Engineering
Services Corporation, a debtor and debtor-in-possession in Chapter 11 Case No.
00-2195 (PJW) pending in the United States District Court for the District of
Delaware.
1.191 "S&W Oil" means Stone & Webster Oil Company, Inc., a debtor and
debtor-in- possession in Chapter 11 Case No. 00-2198 (PJW) pending in the
United States District Court for the District of Delaware.
1.192 "S&W Operating" means Stone & Webster Operating Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2199 (PJW) pending in
the United States District Court for the District of Delaware.
1.193 "S&W Overseas Consultants" means Stone & Webster Overseas
Consultants, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2200 (PJW) pending in the United States District Court for the District of
Delaware.
1.194 "S&W Overseas Development" means Stone & Webster Overseas
Development Corporation f/k/a Stone & Webster Lithuania Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2193 (PJW) pending in the
United States District Court for the District of Delaware.
1.195 "S&W Overseas Group" means Stone & Webster Overseas Group, Inc.,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2201 (PJW) pending
in the United States District Court for the District of Delaware.
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1.196 "S&W Pacific" means Stone & Webster Pacific Corporation, a
debtor and debtor-in- possession in Chapter 11 Case No. 00-2202 (PJW) pending
in the United States District Court for the District of Delaware.
1.197 "S&W Power Engineering" means Stone & Webster Power Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2203
(PJW) pending in the United States District Court for the District of Delaware.
1.198 "S&W Power Projects" means Stone & Webster Power Projects
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2204
(PJW) pending in the United States District Court for the District of Delaware.
1.199 "S&W Procurement" means Stone & Webster Procurement Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2205 (PJW) pending
in the United States District Court for the District of Delaware.
1.200 "S&W Puerto Rico" means Stone & Webster Puerto Rico,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2206
(PJW) pending in the United States District Court for the District of Delaware.
1.201 "S&W Saudi Arabia" means Stone & Webster Saudi Arabia,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2207
(PJW) pending in the United States District Court for the District of Delaware.
1.202 "S&W Taiwan" means Stone & Webster Taiwan Corporation, a debtor
and debtor- in-possession in Chapter 11 Case No. 00-2208 (PJW) pending in the
United States District Court for the District of Delaware.
1.203 "S&W Technology" means Stone & Webster Technology Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2209 (PJW) pending in
the United States District Court for the District of Delaware.
1.204 "S&W Wallingford" means Stone & Webster Wallingford Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2210 (PJW) pending
in the United States District Court for the District of Delaware.
1.205 "S&W Worldwide" means Stone & Webster Worldwide Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2211
(PJW) pending in the United States District Court for the District of Delaware.
1.206 "SWCL" means Stone & Webster Canada Ltd.
1.207 "SWE&C" means Stone & Webster Engineers and Constructors, Inc.,
a Delaware corporation and a debtor and debtor-in-possession in Chapter 11 Case
No. 00-2183 (PJW) pending in the United States District Court for the District
of Delaware.
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1.208 "SWE&C Administrative Claim" means an Administrative Claim
against SWE&C or a SWE&C Subsidiary.
1.209 "SWE&C Available Cash" means all SWE&C Liquidating Trust Assets
consisting of Cash as of the date ten (10) Business Days prior to the date of
any distribution, other than, (a) the Cash or property contained in any
Disputed Claims Reserve, Unclaimed Distribution Reserve and any other similar
reserve or escrow account established or maintained by the SWE&C Liquidating
Trustee pursuant to the provisions of the Plan and the SWE&C Liquidating Trust
Agreement and (b) the amount determined by the SWE&C Liquidating Trustee, after
consultation with the SWE&C Liquidating Trust Advisory Board pursuant to the
SWE&C Liquidating Trust Agreement, to be necessary and appropriate to reserve
for future costs of administration of the SWE&C Liquidating Trust (including,
without limitation, the compensation, fees and costs of the SWE&C Liquidating
Trustee and the compensation, fees and costs of all professionals, consultants,
agents and employees retained or to be retained by the SWE&C Liquidating
Trustee and the SWE&C Liquidating Trustee Advisory Board).
1.210 "SWE&C Claims Objection Deadline" means the last day for Filing
objections to Disputed Claims or Disputed Interests (other than Disputed Claims
and Disputed Interests set forth in Article VIII hereof, for which no objection
or request for estimation shall be required), which day shall be (i) the 240th
day following the Confirmation Date or (ii) such other date as the Court may
order.
1.211 "SWE&C Convenience Claim" means a SWE&C General Unsecured Claim
whose holder elects to be treated as a holder of a Class 4B SWE&C Convenience
Claim and receive in full satisfaction, release and discharge of and in
exchange for such SWE&C General Unsecured Claim, the lesser of $1,000 or 50% of
their Allowed SWE&C General Unsecured Claim.
1.212 "SWE&C Equity Interests" means any and all Interests in SWE&C.
1.213 "SWE&C General Unsecured Claim" means a claim that is not an
Administrative Claim, Priority Tax Claim, Other Priority Claim, Miscellaneous
Secured Claim, Intraestate Claim, Intercompany Claim, Securities Claim,
Convenience Claim or Subordinated Claim.
1.214 "SWE&C Intraestate Claim" means an Intercompany Claim between
SWE&C or any SWE&C Subsidiary and SWE&C Subsidiary or SWE&C.
1.215 "SWE&C Liquidating Trust" means the trust created pursuant to
the SWE&C Liquidating Trust Agreement on the Effective Date in accordance with
this Plan, the Confirmation Order and the SWE&C Liquidating Trust Agreement.
1.216 "SWE&C Liquidating Trust Agreement" means that certain SWE&C
Liquidating Trust Agreement, effective as of the Effective Date, substantially
in the form annexed hereto as Plan Exhibit C, as it may be modified from time
to time.
1.217 "SWE&C Liquidating Trust Assets" means those assets transferred
to and owned by the SWE&C Liquidating Trust pursuant to Article VII.N.2 of the
Plan, which are comprised of (a) any and all assets and property of the Estates
of SWE&C and the SWE&C Subsidiaries as of the Effective Date including, without
limitation, (i) Cash, (ii) Cash from the market value allocation of the Sale
20
Proceeds, (ii) Litigation Claims held by SWE&C or the SWE&C Subsidiaries, and
(iii) all of the rights and standing of SWE&C and the SWE&C Subsidiaries to
object to, litigate, settle and otherwise resolve all Disputed Claims against
SWE&C and the SWE&C Subsidiaries; (b) the Reorganized SWINC New Common Stock
held by the SWE&C Liquidating Trustee for the benefit of the beneficiaries of
the SWE&C Trust; (c) the Reorganized SWINC Note; and (d) any and all proceeds
of the foregoing and interest actually earned with respect thereto.
1.218 "SWE&C Liquidating Trust Advisory Board" means the three (3)
member board established pursuant to Article VII.N.4 of this Plan to advise,
assist and supervise the SWE&C Liquidating Trustee in the administration of the
SWE&C Liquidating Trust pursuant to the SWE&C Liquidating Trust Agreement.
1.219 "SWE&C Liquidating Trust Disbursing Agent" means the SWE&C
Liquidating Trustee or any party designated by the SWE&C Liquidating Trust
Board to serve as the disbursing agent under the Plan.
1.220 "SWE&C Liquidating Trustee" means the person designated by the
SWE&C Liquidating Trust Advisory Board at least 5 days prior to the
Confirmation Hearing and any successor thereof, in his capacity as trustee
under the SWE&C Liquidating Trust Agreement.
1.221 "SWE&C Miscellaneous Secured Claim" means all Secured Claims
against SWE&C or any SWE&C Subsidiary.
1.222 "SWE&C Operating Reserve" means the reserve accounts to be
established and maintained by the SWE&C Liquidating Trustee into which the
SWE&C Liquidating Trustee shall from time to time deposit Cash to fund, among
other things, the expenses of the SWINC Plan Administrator, as set forth more
fully in the SWE&C Liquidity Trust Agreement.
1.223 "SWE&C Other Priority Claim" means a Claim against SWE&C or any
SWE&C Subsidiary entitled to priority pursuant to section 507(a) of the
Bankruptcy Code other than a SWE&C Administrative Claim or SWE&C Priority Tax
Claim.
1.224 "SWE&C Priority Tax Claims" means a Priority Tax Claim against
SWE&C or a SWE&C Subsidiary.
1.225 "SWE&C Professional Fee Claims" means a claim of a Professional
for compensation or reimbursement of costs and expenses relating to services
incurred on or after the Petition Date and prior to or on the Effective Date on
behalf of SWE&C, a SWE&C Subsidiary or either respective Estates.
1.226 "SWE&C Professional Fee Reserve" means the reserve account to be
established and maintained under the Plan into which will be deposited an
amount equal to $1 million to Fund and pay any Allowed SWE&C Professional Fee
Claims.
1.227 "SWE&C Setoff Claim" means the aggregate of all Intercompany
Claims held by SWE&C or any SWE&C Subsidiary against SWINC or any SWINC
Subsidiary.
21
1.228 "SWE&C Subordinated Claim" means a Subordinated Claim against
SWE&C or any SWE&C Subsidiary subordinated pursuant to a Final Order under
section 510(c) of the Bankruptcy Code.
1.229 "SWE&C Subsidiaries" means any or all of the following direct
and indirect subsidiaries of SWE&C: Belmont, S&W Civil, S&W Construction, DSS,
Fast Supply, Rockton Associates, S&W Management, S&W Operating, S&W
Procurement, SAW, S&W Industrial, S&W Michigan, Power Technologies, S&W
Argentina, S&W Overseas Consultants, S&W Power Projects, GSES, Summer Street,
SC Wood, S&W Overseas Group, Rockton Technical, S&W Abu Dhabi, S&W Asia, S&W
Bharat, S&W Dominican Republic, S&W Far East, S&W Indonesia, S&W Inter-
American, S&W International Projects, S&W Italia, S&W Korea, S&W Kuwait,
Associated Engineers, S&W Middle East, S&W Pacific, S&W Puerto Rico, S&W Power
Engineering, AEC International, Selective Technologies, IE&C, Projects
Engineers, S&W Overseas Development, S&W Saudi Arabia, S&W Taiwan, S&W
Technology, S&W International, S&W Mexico, SWEC, Enclave Parkway, and S&W
Worldwide.
1.230 "SWE&C Subsidiary Interest" means any and all Interests in a
SWE&C Subsidiary.
1.231 "SWEC" means Stone & Webster, Engineering Corporation, a debtor
and debtor-in- possession in Chapter 11 Case No. 00-2142 (PJW) pending in the
United States District Court for the District of Delaware.
1.232 "SWINC" means Stone & Webster, Incorporated, a Delaware
corporation and a debtor and debtor-in-possession in Chapter 11 Case No.
00-2142 (PJW) pending in the United States District Court for the District of
Delaware.
1.233 "SWINC Administrative Claim" means an Administrative Claim
Against SWINC or a SWINC Subsidiary.
1.234 "SWINC Available Cash" means all Cash of the Estates of SWINC
and the SWINC Subsidiaries held by the SWINC Plan Administrator as of the date
ten (10) Business Days prior to the date of any distribution, other than, (i)
with respect to distributions to be made on the Effective Date, (a) Cash to be
distributed on the Effective Date to holders of Allowed Claims against SWINC,
and (b) Restricted Cash and (ii) with respect to distributions to be made on
any Semi-Annual Distribution Date, Restricted Cash.
1.235 "SWINC Claims Objection Deadline" means the last day for Filing
objections to Disputed Claims or Disputed Interests (other than Disputed Claims
and Disputed Interests set forth in Article X hereof, for which no objection or
request for estimation shall be required), which day shall be (i) the 240th day
following the Confirmation Date or (ii) such other date as the Court may order.
1.236 "SWINC Convenience Claim" means a SWINC General Unsecured Claim
whose holder elects to be treated as a holder of a Class 4A SWINC Convenience
Claim and receive in full satisfaction, release and discharge of and in
exchange for such SWINC General Unsecured Claim, the lesser of $1,000 or 50% of
their Allowed SWINC General Unsecured Claim.
1.237 "SWINC Disbursing Agent" means any party designated by the SWINC
Plan Administrator to serve as a disbursing agent for SWINC under the Plan.
22
1.238 "SWINC Equity Interests" means, collectively, the Old Common
Stock and the Old Common Stock Options.
1.239 "SWINC Equity Securities" means shares of Old Common Stock of
SWINC surrendered in exchange for SWINC New Series B Preferred Stock pursuant
to the Plan.
1.240 "SWINC General Unsecured Claim" means a claim that is not an
Administrative Claim, Priority Tax Claim, Other Priority Claim, Secured Claims,
Intercompany Claim, Securities Claim, Convenience Claim or Subordinated Claim.
1.241 "SWINC Intercompany Claim" means the aggregate Intercompany
Claims by SWINC of any SWINC Subsidiary against SWE&C or any SWE&C Subsidiary.
1.242 "SWINC Intraestate Claim" means an Intercompany Claim between
SWINC or any SWINC Subsidiary against SWINC Subsidiary or SWINC.
1.243 "SWINC Miscellaneous Secured Claim" means all Secured Claims
against SWINC or any SWINC Subsidiary other than the SWE&C Setoff Claim.
1.244 "SWINC Operating Reserve" means the reserve accounts to be
established and maintained by the SWINC Plan Administrator into which the SWINC
Plan Administrator shall from time to time deposit Cash to fund, among other
things, the expenses of the SWINC Plan Administrator, as set forth more fully
in the SWINC Plan Administrator Agreement.
1.245 "SWINC Other Priority Claim" means a Claim against SWINC or any
SWINC Subsidiary entitled to priority pursuant to section 507(a) of the
Bankruptcy Code other than a SWINC Administrative Claim or SWINC Priority Tax
Claim.
1.246 "SWINC Plan Administrator" means Mr. James Carroll, the Person
appointed by SWINC to administer the Plan in accordance with the terms of the
Plan and the SWINC Plan Administrator Agreement and to take such other actions
as may be authorized under the SWINC Plan Administrator Agreement, and any
successor thereto.
1.247 "SWINC Plan Administrator Agreement" means the agreement between
and among SWINC, the SWINC Subsidiaries and the SWINC Plan Administrator
specifying the rights, duties and responsibilities of and to be performed by
the SWINC Plan Administrator under the Plan, substantially in the form annexed
hereto as Plan Exhibit D, as it may be modified from time to time.
1.248 "SWINC Priority Tax Claim" means a Priority Tax claim against
SWINC or a SWINC Subsidiary.
1.249 "SWINC Professional Fee Claim" means a claim of a Professional
for compensation or reimbursement of costs and expenses relating to services
incurred on or after the Petition Date and prior to or on the Effective Date on
behalf of SWINC, a SWINC Subsidiary or either respective Estates.
23
1.250 "SWINC Professional Fee Reserve" means the reserve account to be
established and maintained under the Plan into which will be deposited an
amount equal to $1 million to Fund and pay any Allowed SWINC Professional Fee
Claims.
1.251 "SWINC Secured Claim" means either a SWE&C Setoff Claim or a
SWINC Miscellaneous Secured Claim.
1.252 "SWINC Subordinated Claim" means a Subordinated Claim against
SWINC or any SWINC Subsidiary subordinated pursuant to a Final Order under
section 510(c) of the Bankruptcy Code.
1.253 "SWINC Subsidiaries" means any or all of the following direct
and indirect subsidiaries of SWINC: S&W Auburn, S&W Development, S&W
Binghamton, SWL, S&W Wallingford, Auburn GC, Auburn LC, Nordic Holdings, Nordic
Investors, Nordic Rail, NRSI, NRSLP, NTS, CCS, Polar Transport, Prescient,
Sleeper Street, Sabal, Enclave Parkway Realty, Sabal Real Estate, and S&W Oil.
1.254 "Subordinated Claim" means any claim subordinated pursuant to a
Final Order under section 510(c) of the Bankruptcy Code.
1.255 "SWL" means SWL Corporation, a debtor and debtor-in-possession
in Chapter 11 Case No. 00-2212 (PJW) pending in the United States District
Court for the District of Delaware.
1.256 "Treasury Regulations" means the regulations under title 26 of
the United States Code.
1.257 "Unimpaired" means, when used with reference to a Claim or
Interest, a Claim or Interest that is not impaired within the meaning of
section 1124 of the Bankruptcy Code.
1.258 "Unimpaired Claim" means a Claim that is not an Impaired Claim.
1.259 "Unimpaired Interest" means an Interest that is not an Impaired
Interest.
1.260 "Voting Deadline" means the last day for submitting Ballots to
accept or reject this Plan in accordance with section 1126 of the Bankruptcy
Code, as specified in the Solicitation Order.
1.261 "Weitz & Luxenberg Agreements" means the: (i) the New York
Asbestos Litigation: Stone & Webster Present Cases Settlement Agreement entered
into between SWEC and Weitz & Luxenberg on behalf of pending asbestos-related
personal injury cases, effective as of January 11, 1995 and (ii) the New York
Asbestos Litigation: Stone & Webster Future Cases Settlement Agreement entered
into between SWEC and Weitz & Luxenberg on behalf of future asbestos-related
personal injury cases, effective as of January 11, 1995.
C. Rules of Interpretation
For purposes of this Plan (a) any reference in the Plan to a contract,
instrument, release, indenture, or other agreement or document being in a
particular form or particular terms and conditions means that such document
shall be substantially in such form or substantially on such terms
24
and conditions; (b) 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; (c) unless otherwise specified,
all references in the Plan to Sections, Articles, Schedules and Exhibits are
references to Sections, Articles, Schedules and Exhibits of or to the Plan; (d)
the words "herein" and "hereto" refer to the Plan in its entirety rather than
to a particular portion of the Plan; (e) 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; (f) the rules of
construction set forth in section 102 of the Bankruptcy Code and in the
Bankruptcy Rules shall apply.
D. Computation of Time
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
A. Introduction
This Plan proposes as a compromise and settlement of various disputes
and issues raised by, among others, the Equity Committee and the Creditors'
Committee, the substantive consolidation of (i) SWINC and the SWINC
Subsidiaries into the Consolidated SWINC Estate and (ii) SWE&C and the SWE&C
Subsidiaries into the Consolidated SWE&C Estate, which substantive
consolidation is set forth more fully in Article VII.A of the Plan. The
classifications listed below include (i) Claims against and Interests in SWINC
and the SWINC Subsidiaries, as substantively consolidated, and (ii) Claims
against SWE&C and the SWE&C Subsidiaries, as substantively consolidated. All
Claims and Interests, except Administrative Claims and Priority Tax Claims, are
placed in the Classes set forth below. In accordance with section 1123(a)(1) of
the Bankruptcy Code, Administrative Claims and Priority Tax Claims, as
described below, have not been classified.
A Claim or Interest is placed in a particular Class only to the extent
that the Claim or Interest falls within the description of that Class, and is
classified in other Classes to the extent that any portion of the Claim or
Interest falls within the description of such other Classes. A Claim is also
placed in a particular Class for the purpose of receiving distributions
pursuant to the Plan only to the extent that such Claim is an Allowed Claim in
that Class and such Claim has not been paid, released or otherwise settled
prior to the Confirmation Date.
B. Summary of Unclassified Claims (not entitled to vote on the Plan)
1. General Administrative Claims
25
2. SWINC Administrative Claims
3. SWINC Priority Tax Claims
4. SWE&C Administrative Claims
5. SWE&C Priority Tax Claims
C. Summary of Classified Claims and Interests
1. Consolidated SWINC Estate Classifications
Class Status
Class 1A SWINC Secured Claims Unimpaired - deemed to accept
Class 2A SWINC Other Priority Claims Unimpaired - deemed to accept
Class 3A SWINC Asbestos Claims Impaired - entitled to vote
Class 4A SWINC Convenience Claims Impaired - entitled to vote
Class 5A SWINC General Unsecured Claims Impaired - entitled to vote
Class 6A SWINC Intraestate Claims Impaired - deemed to reject Plan
Class 7A SWINC Subordinated Claims Impaired - entitled to vote
Class 8A SWINC Securities Claims Impaired - entitled to vote
Class 9A SWINC Equity Interests Impaired - entitled to vote
Class 10A SWINC Subsidiary Impaired - deemed to reject Plan
Interests
2. Consolidated SWE&C Estate Classifications
Class Status
Class 1B SWE&C Miscellaneous Secured Unimpaired - deemed to accept Plan
Claims
Class 2B SWE&C Other Priority Claims Unimpaired - deemed to accept Plan
Class 3B SWE&C Asbestos Claims Impaired - entitled to vote
Class 4B SWE&C Convenience Claims Impaired - entitled to vote
Class 5B SWE&C General Unsecured Claims Impaired - entitled to vote
26
Class 6B SWE&C Intraestate Claims Impaired - deemed to reject Plan
Class 7B Intercompany Claims of SWINC or any Impaired - deemed to reject Plan
SWINC Subsidiaries
Class 8B SWE&C Subordinated Claims Impaired - deemed to reject Plan
Class 9B SWE&C Subsidiary Interests Impaired - deemed to reject Plan
Class 10B SWE&C Equity Interests Impaired - deemed to reject Plan
D. Classification of Unimpaired Classes of Claims and Interests
(deemed to have accepted the Plan and therefore not entitled
to vote)
1. Consolidated SWINC Estate Classifications
(A) Class 1A: SWINC Secured Claims
Class 1A.1 consists of the SWE&C Setoff
Claim.
Class 1A.2 consists of all SWINC
Miscellaneous Secured Claims, excluding the SWE&C Setoff Claim, each such
claim, if any, being deemed to be a separate class under the Plan.
(B) Class 2A: SWINC Other Priority Claims
Class 2A consists of all Other Priority
Claims against SWINC or a SWINC Subsidiary.
2. SWE&C Classifications
(A) Class 1B: SWE&C Miscellaneous Secured Claims
Class 1B consists of all Secured Claims
against SWE&C or a SWE&C Subsidiary, each such claims, if any, being deemed to
be a separate class under the Plan.
(B) Class 2B: SWE&C Other Priority Claims
Class 2B consists of all Other Priority
Claims against SWE&C or a SWE&C Subsidiary.
27
E. Classification of Impaired Classes of Claims and Interests
1. SWINC Classifications
Classes 3A, 4A, 5A, 7A, 8A and 9A are entitled to
vote on the Plan; Classes 6A and 10A are deemed to have rejected the Plan and,
therefore, are not entitled to vote on the Plan.
(A) Class 3A: SWINC Asbestos Claims
Class 3A consists of all Asbestos Claims
against SWINC.
(B) Class 4A: SWINC Convenience Claims
Class 4A consists of all Convenience Claims
against SWINC or a SWINC Subsidiary.
(C) Class 5A: SWINC General Unsecured Claims
Class 5A consists of all General Unsecured
Claims against SWINC or a SWINC Subsidiary.
(D) Class 6A: SWINC Intraestate Claims
Class 6A consists of all Intercompany
Claims against SWINC or a SWINC Subsidiary by SWINC or a SWINC Subsidiary.
(E) Class 7A: SWINC Subordinated Claims
Class 7A consists of all Subordinated
Claims against SWINC or a SWINC Subsidiary.
(F) Class 8A: SWINC Securities Claims
Class 8A consists of all Securities Claims
against SWINC or a SWINC Subsidiary.
(G) Class 9A: SWINC Equity Interests
Class 9A consists of all Equity Interests
in SWINC.
(H) Class 10A: SWINC Subsidiary Interests
Class 10A consists of all Interests in the
SWINC Subsidiaries.
28
2. SWE&C Classifications
Classes 3B, 4B and 5B are entitled to vote on the
Plan; Classes 6B, 7B, 8B, 9B and 10B are deemed to have rejected the Plan and,
therefore, are not entitled to vote on the Plan.
(A) Class 3B: SWE&C Asbestos Claims
Class 3B consists of all Asbestos Claims
against SWE&C.
(B) Class 4B: SWE&C Convenience Claims
Class 4B consists of all Convenience Claims
against SWE&C or a SWE&C Subsidiary.
(C) Class 5B: SWE&C General Unsecured Claims
Class 5B consists of all General Unsecured
Claims against SWE&C or a SWE&C Subsidiary.
(D) Class 6B: SWE&C Intraestate Claims
Class 6B consists of all Intercompany
Claims by SWE&C or a SWE&C Subsidiary against SWE&C or a SWE&C Subsidiary.
(E) Class 7B: SWINC Intercompany Claims
Class 7B consists of the Intercompany
Claims by SWINC or any SWINC Subsidiary after giving effect to the SWE&C Setoff
Claim against the Consolidated SWINC Estate.
(F) Class 8B: SWE&C Subordinated Claims
Class 8B consists of all Subordinated
Claims against SWE&C or a SWE&C Subsidiary.
(G) Class 9B: SWE&C Subsidiary Interests
Class 9B consists of all Interests in a
SWE&C Subsidiary.
(H) Class 10B: SWE&C Equity Interests
Class 10B consists of all Interests in
SWE&C.
ARTICLE III
TREATMENT OF UNCLASSIFIED GENERAL CLAIMS
29
A. Unclassified General Claims
1. General Administrative Claims
General Administrative Claims shall be paid in the
ordinary course of business in accordance with the terms and conditions of any
agreements relating thereto out of available funds prior to distribution being
made to the Consolidated SWINC Estate and the Consolidated SWE&C Estate.
2. General Professional Fee Claims
General Professional Fee Claim shall be paid in
accordance with the procedures established in the Bankruptcy Code, the
Bankruptcy Rules, the United States Trustee Guidelines and the Bankruptcy Court
relating to the payment of interim and final compensation for services rendered
and reimbursement of expenses. The Bankruptcy Court will review and determine
all applications for compensation for services rendered and reimbursement of
costs.
ARTICLE IV
TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWINC AND THE SWINC SUBSIDIARIES
A. Unclassified SWINC Claims
1. SWINC Administrative Claims
Each holder of an Allowed SWINC Administrative Claim
shall receive in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed SWINC Administrative Claim (a) Cash equal to the
unpaid portion of such Allowed SWINC Administrative Claim or (b) such other
treatment as to which the SWINC Plan Administrator and such holder shall have
agreed upon in writing.
2. SWINC Priority Tax Claims
Each holder of an Allowed SWINC Priority Tax Claim
shall be entitled to receive on account of such Allowed SWINC Priority Tax
Claim, in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed SWINC Priority Tax Claim, (i) equal Cash payments
made on the last Business Day of every three-month period following the
Effective Date, over a period not exceeding six years after the assessment of
the tax on which such Claim is based, totaling the principal amount of such
Claim plus simple interest on any outstanding balance from the Effective Date
calculated at the interest rate available on ninety (90) day United States
Treasuries on the Effective Date, (ii) a single Cash payment to be made on the
Effective Date or as soon as practicable thereafter in an amount equivalent to
the amount of such Allowed Priority Tax Claim, or (iii) such other treatment as
to which the SWINC Plan Administrator and such holder shall have agreed upon in
writing.
30
B. Unimpaired Classes of SWINC Claims
1. Class 1A SWINC Secured Claims
(A) Class 1A.1 SWE&C Setoff Claim
On the Effective Date the Class 1A.1 SWE&C Setoff
Claim held by the Consolidated SWE&C Estate shall be deemed offset against the
Class 7B SWINC Intercompany Claim by the Consolidated SWINC Estate resulting in
a net Allowed Class 7B SWINC Intercompany Claim held by the Consolidated SWINC
Estate against the Consolidated SWE&C Estate in the approximate amount of $20
million. As a result, the Allowed Class 1A SWE&C Setoff Claim shall be deemed
satisfied in full.
(B) Class 1A.2 SWINC Miscellaneous Secured Claims
On the Effective Date, each holder of an Allowed
Class 1A.2 Miscellaneous Secured Claim shall receive in full satisfaction,
settlement, release and discharge of and in exchange for such Allowed Class
1A.2 SWINC Miscellaneous Secured Claim (a) Cash equal to the unpaid portion of
the Allowed Class 1A.2 SWINC Miscellaneous Secured Claim or (b) such treatment
as the SWINC Plan Administrator and such holder shall have agreed upon in
writing.
2. Class 2A SWINC Other Priority Claims
Each holder of an Allowed Class 2A SWINC Other
Priority Claim shall receive in full satisfaction, settlement, release and
discharge of and in exchange for such Allowed Class 2A SWINC Other Priority
Claim (a) Cash equal to the unpaid portion of such Allowed Class 2A SWINC Other
Priority Claim or (b) such other treatment as to which the SWINC Plan
Administrator and such holder shall have agreed upon in writing.
C. Impaired Classes of SWINC Claims and Interests
1. Class 3A SWINC Asbestos Claims
As of the Effective Date, liability, if any, for all
Asbestos Claims against SWINC or the SWINC Subsidiaries shall be automatically
and without further act or deed be deemed assumed by and shall be the sole
responsibility of the Asbestos Trust. Each holder of an Allowed Class 3A SWINC
Asbestos Claim shall receive in full satisfaction, settlement, release and
discharge of an in exchange for such Allowed Class 3A SWINC Asbestos Claim (a)
its Pro Rata share of the Asbestos Trust Assets set forth in Article VII.L.,
subject to the terms and conditions of the Asbestos Trust Agreement or (b) such
other treatment as to which the Asbestos Trustee and the holder of such Allowed
Class 3A Asbestos Claim shall have agreed upon in writing.
Under the Plan, Allowed Class 3A SWINC Asbestos
Claims are characterized as impaired because the Proponents are unable to
determine whether the Available Asbestos Trust Cash plus any Insurance Proceeds
with respect to a specific Allowed Class 3A SWINC Asbestos Claim will be
adequate to pay all Allowed Class 3A SWINC Asbestos Claims in full. In over 15
years of liquidating Asbestos Claims, the Asbestos Insurance Coverage available
to the Debtors has been more than adequate to satisfy such claims. Under a
pre-petition arrangement with the Asbestos
31
Insurance Carriers, the Debtors also agreed to contribute a certain percentage
towards the liquidation and indemnification of Asbestos Claims. In addition,
SWEC entered into the Weitz & Luxenberg Agreements. The Debtors will assume the
Weitz & Luxenberg Agreements in connection with the Plan. To date, the amount
of cash funds paid out by the Debtors in connection with Asbestos Claims is
less than the amount to be contributed by the Debtors to the Asbestos Trust.
The Proponents believe, therefore, based on the Debtors' historical liability
for Asbestos Claims and an understanding of the Asbestos Insurance Coverage,
that the holder of Class 3A Allowed Asbestos claims will receive from the
Available Asbestos Trust Cash and the Insurance Proceeds at least the same
percentage recovery as they would receive if they held Allowed Claims in Class
5A General Unsecured Claims and as much s the holder would be entitled to under
the Weitz & Luxenberg Agreements. Accordingly, the Proponents of the Plan have
characterized the Class 3A Asbestos Claims as impaired and seek a vote of the
Class 3A to bind all members of Class 3A SWINC Asbestos Claims to the treatment
of such Claims proposed in the Plan. In the event that the Proponents are
unable to confirm the Plan with the Class 3A SWINC Asbestos Claims, the
Proponents reserve their right to modify the Plan to seek confirmation of a
Plan wherein the Class 3A SWINC Asbestos Claims are combined with and treated
the same as Class 5A SWINC General Unsecured Claims.
2. Class 4A SWINC Convenience Claims
On the Effective Date, each holder of a Class 5A
SWINC General Unsecured Claim that elects to be treated as a holder of a Class
4A SWINC Convenience Claim shall receive in full satisfaction, release and
discharge of and in exchange for such Class 5A SWINC General Unsecured Claim,
the lesser of $1,000 or 50% of such holder's Allowed Class 5A SWINC General
Unsecured Claim. Only holders of Class 5A SWINC General Unsecured Claims who
vote in favor of the Plan may elect to have their claim treated as a Class 4A
SWINC Convenience Claim.
3. Class 5A SWINC General Unsecured Claims
On the Effective Date, each holder of an Allowed
Class 5A SWINC General Unsecured Claim shall receive its Pro Rata share of the
Initial Class 5A Distribution Amount. On each ensuing Semi-Annual Distribution
Date, each holder of an Allowed Class 5A SWINC General Unsecured Claim shall
receive its Pro Rata share of the Semi-Annual Class 5A Distribution Amount.
SWINC Guaranty Claims will not be Allowed SWINC General Unsecured Claims until
the underlying Claim for which there is a Guaranty (the "Primary Claim") is
fixed and determined and a final distribution from SWE&C, a SWE&C Subsidiary or
other obligator has been made on the Primary Claim.
4. Class 6A SWINC Intraestate Claims
In connection with, and as a result of, the
substantive consolidation of SWINC and the SWINC Subsidiaries into the
Consolidated SWINC Estate, all Class 6A SWINC Intraestate Claims shall be
deemed waiver, released and cancelled and the holders of Class 6A Consolidated
SWINC Intraestate Claims shall not be entitled to and shall not receive or
retain any property or interest on account of such Claims.
32
5. Class 7A SWINC Subordinated Claims
Upon the payment in full of the Allowed Class 4A
SWINC Convenience Claims and the Allowed Class 5A SWINC General Unsecured
Claims or as son thereafter as is practicable, each holder of an Allowed Class
7A SWINC Subordinated Claim shall receive its Pro Rata share of the Initial
Class 7A Distribution Amount, if any. On each ensuing Semi-Annual Distribution
Date, each holder of an Allowed Class 7A SWINC Subordinated Claim shall receive
its Pro Rata share of the Semi-Annual Class 7A Distribution Amount.
6. Class 8A SWINC Securities Claims
Upon the payment in full of Allowed Class 4A SWINC
Convenience Class Claims, Allowed Class 5A SWINC General Unsecured Claims, and
Allowed Class 7A SWINC Subordinated Claims, each holder of an Allowed Class 8A
SWINC Securities Claim (less any insurance proceeds actually received and
retained by such holder in respect of such Allowed Class 8A SWINC Securities
Claim) shall receive its Pro Rata share (as diluted by Allowed Class 9A SWINC
Equity Interests) of (i) the remaining Available Cash in the SWINC Disputed
Claims Reserve and (ii) any amounts remaining that were paid to the SWINC Plan
Administrator as a liquidation preference with respect to the SWINC New Series
A Preferred Stock after all Allowed Class 4A SWINC Convenience Class Claims,
Allowed Class 5A SWINC General Unsecured Claims and Allowed Class 7A SWINC
Subordinated Claims have been satisfied. On each ensuing Semi-Annual
Distribution Date, each holder of an Allowed Class 8A SWINC Securities Claim
shall receive its Pro Rata share (as diluted by Allowed Class 9A SWINC Equity
Interests) of the remaining Available Cash in the SWINC Disputed Claims Reserve
and remaining Available Cash paid to the SWINC Plan Administrator as the
liquidation preference with respect to the SWINC New Series A Preferred Stock.
Upon receipt by the holder of an Allowed Class 8A SWINC Securities Claim of any
amounts distributed under the Plan in respect of such claim, such holder shall
be deemed to have assigned to the SWINC Plan Administrator all rights of the
holder to recover such amounts from the applicable insurer.
7. Class 9A SWINC Equity Interests
In the event that Class 9A SWINC Equity Interests
vote to accept the Plan, then on the Effective Date, or as soon thereafter as
practicable, each holder of an Allowed SWINC Equity Interest that votes to
accept the Plan shall receive $0.50 per share of Old Common Stock held by such
holder from the Equity Settlement Fund. In addition, upon the payment in full
of the Allowed Class 5A SWINC General Unsecured Claims, the Allowed Class 4A
SWINC Convenience Class Claims, and the Allowed Class 7A SWINC Subordinated
Claims, each holder of an Allowed Class 9A SWINC Equity Interest shall receive
its Pro Rata share (as may be diluted by Allowed Class 8A SWINC Securities
Claims) of (i) the remaining Available Cash in the SWINC Disputed Claims
Reserve and (ii) any amounts remaining that were paid to the SWINC Plan
Administrator as a liquidation preference with respect to the SWINC New Series
A Preferred Stock after all Allowed Class 4A SWINC Convenience Class Claims,
Allowed Class 5A SWINC General Unsecured Claims and Allowed Class 7A SWINC
Subordinated Claims have been satisfied. On each ensuing Semi- Annual
Distribution Date, each holder of an Allowed Class 9A SWINC Equity Interest
shall receive its Pro Rata share (as may be diluted by Allowed Class 8A SWINC
Securities Claims) of the remaining Available Cash paid to the SWINC Plan
Administrator as the remaining liquidation preference with respect to the SWINC
New Series A Preferred Stock.
In the event that Class 9A SWINC Equity Interests
vote to reject the Plan, then, upon the payment in full of the Allowed Class 4A
SWINC Convenience Class Claims, the Allowed Class 5A SWINC General Unsecured
Claims, and the Allowed Class 7A SWINC
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Subordinated Claims, each holder of an Allowed Class 9A SWINC Equity Interest
shall receive its Pro Rata share (as may be diluted by Allowed Class 8A SWINC
Securities Claims) of (i) the remaining Available Cash in the SWINC Disputed
Claims Reserve and (ii) any amounts remaining that were paid to the SWINC Plan
Administrator as a liquidation preference with respect to the SWINC New Series
A Preferred Stock after all Allowed Class 4A SWINC Convenience Class Claims,
Allowed Class 5A General Unsecured Claims and Allowed Class 7A Subordinated
Claims have been satisfied.. On each ensuing Semi-Annual Distribution Date,
each holder of an Allowed Class 9A SWINC Equity Interest shall receive its Pro
Rata share (as may be diluted by Allowed Class 8A SWINC Securities Claims) of
the and remaining Available Cash paid to the SWINC Plan Administrator as the
liquidation preference with respect to the SWINC New Series A Preferred Stock.
On the Effective Date, all Old Common Stock and Old
Common Stock Options in SWINC will be canceled.
8. Class 10A SWINC Subsidiary Interests
In connection with, and as a result of, the
substantive consolidation of SWINC and the SWINC Subsidiaries into the
Consolidated SWINC Estate, all Interests in the SWINC Subsidiaries shall be
deemed cancelled as of the Effective Date and the holders of Class 10A SWINC
Subsidiary Interests shall not be entitled to and shall not receive or retain
any property or interest on account of such Interests.
D. Special Provision Regarding Unimpaired Claims
Except as otherwise provided in the Plan, nothing shall
affect the rights, claims or defenses, whether legal or equitable, of SWINC,
any SWINC Subsidiary or the SWINC Plan Administrator with respect to legal and
equitable defenses to setoffs or recoupments against unimpaired Claims.
ARTICLE V
TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWE&C AND THE SWE&C SUBSIDIARIES
A. Unclassified SWE&C Claims
1. SWE&C Administrative Claims
On, or as soon as reasonably practicable afer, the
later of (i) the Effective Date or (ii) the First Semi-Annual Distribution Date
after an Administrative Claim becomes an Allowed SWE&C Administration Claim,
each holder of an Allowed SWE&C Administrative Claim shall receive a beneficial
interest in the SWE&C Liquidating Trust entitling such holder to receive in
full satisfaction, release and discharge of and in exchange for such Allowed
SWE&C Administrative Claim (a) Cash equal to the unpaid portion of such Allowed
SWE&C Administrative Claim or (b) such other treatment as to which SWE&C and/or
the SWE&C Liquidating Trustee and such holder shall have agreed upon in
writing.
2. SWE&C Priority Tax Claims
Each holder of an Allowed SWE&C Priority Tax Claim,
at the sole option of the SWE&C Liquidating Trustee, shall be entitled to
receive a beneficial interest in the SWE&C
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Liquidating Trust entitling such holder to receive in full satisfaction,
release and discharge of and in exchange for such Allowed Priority Tax Claim,
(i) equal Cash payments made on the last Business Day of every three-month
period following the Effective Date, over a period not exceeding six years
after the assessment of the tax on which such Claim is based, totaling the
principal amount of such Claim plus simple interest on any outstanding balance
from the Effective Date calculated at the interest rate available on ninety
(90) day United States Treasuries on the Effective Date, (ii) a single Cash
payment to be made on the Effective Date or as soon as practicable thereafter
in an amount equivalent to the amount of such Allowed SWE&C Priority Tax Claim,
or (iii) such other treatment as to which the SWE&C Liquidating Trustee and
such holder shall have agreed upon in writing.
B. Unimpaired Classes of SWE&C Claims
1. Class 1B SWE&C Miscellaneous Secured Claims
On the Effective Date, each holder of an Allowed
Class 1B SWE&C Miscellaneous Secured Claim shall receive either (a) Cash equal
to the unpaid portion of such Allowed SWE&C Miscellaneous Secured Claim or (b)
such other treatment as to which the SWE&C Liquidating Trustee and the holder
of such Allowed Class 1B SWE&C Miscellaneous Secured Claim agree to in writing.
2. Class 2B SWE&C Other Priority Claims
Each holder of an Allowed SWE&C Priority Tax Claim,
at the sole option of the SWE&C Liquidating Trustee, shall be entitled to
receive a beneficial interest in the SWE&C Liquidating Trust entitling such
holder to receive in full satisfaction, release and discharge of and in
exchange for such Allowed Priority Tax Claim, (i) equal Cash payments made on
the last Business Day of every three-month period following the Effective Date,
over a period not exceeding six years after the assessment of the tax on which
such Claim is based, totaling the principal amount of such Claim plus simple
interest on any outstanding balance from the Effective Date calculated at the
interest rate available on ninety (90) day United States Treasuries on the
Effective Date, (ii) a single Cash payment to be made on the Effective Date or
as soon as practicable thereafter in an amount equivalent to the amount of such
Allowed SWE&C Priority Tax Claim, or (iii) such other treatment as to which the
SWE&C Liquidating Trustee and such holder shall have agreed upon in writing.
C. Impaired Classes of SWE&C Claims and Interests
1. Class 3B SWE&C Asbestos Claims
As of the Effective Date, liability, if any, for all
Asbestos Claims against SWE&C or the SWE&C Subsidiaries shall be automatically
and without further act or deed assumed by and shall be the sole responsibility
of the Asbestos Trust. Each holder of an Allowed Class 3B SWE&C Asbestos Claim
shall receive in full satisfaction, settlement, release and discharge of an in
exchange for its Allowed Class 3B SWE&C Asbestos Claim (a) its Pro Rata share
of the Asbestos Trust Assets set forth in Article VII.L., subject to the terms
and conditions of the Asbestos Trust Agreement or (b) such other treatment as
to which the Asbestos Trustee and such holder shall have agreed upon in
writing.
Under the Plan, Allowed Class 3B SWE&C Asbestos
Claims are characterized as impaired because the Proponents are unable to
determine whether the Available Asbestos Trust Cash plus any Insurance Proceeds
with respect to a specific Allowed Class 3B SWE&C Asbestos Claim will be
adequate to pay all Allowed Class 3B SWE&C Asbestos Claims in full. In
35
over 15 years of liquidating Asbestos Claims, the Asbestos Insurance Coverage
available to the Debtors has been more than adequate to satisfy such claims.
Under a pre-petition arrangement with the Asbestos Insurance Carriers, the
Debtors also agreed to contribute a certain percentage towards the liquidation
and indemnification of Asbestos Claims. In addition, SWEC entered into the
Weitz & Luxenberg Agreements. The Debtors will assume the Weitz & Luxenberg
Agreements in connection with the Plan. To date, the amount of cash funds paid
out by the Debtors in connection with Asbestos Claims is less than the amount
to be contributed by the Debtors to the Asbestos Trust. The Proponents believe,
therefore, based on the Debtors' historical liability and an understanding of
the Asbestos Insurance Coverage, that the holder of Class 3A Allowed Asbestos
claims will receive from the Available Asbestos Trust Cash and the Insurance
Proceeds at least the same percentage recovery as they would receive if they
held Allowed Claims in Class 5A General Unsecured Claims and as much as the
holder would be entitled to under the Weitz & Luxenberg Agreements.
Accordingly, the Proponents of the Plan have characterized the Class 3A
Asbestos Claims as impaired and seek a vote of the Class 3A to bind all members
of Class 3B SWE&C Asbestos claims to the treatment of such Claims proposed in
the Plan. In the event that the Proponents are unable to confirm the Plan with
the Class 3B SWE&C Asbestos Claims, the Proponents reserve their right to
modify the Plan to seek confirmation of a Plan wherein the Class 3B SWE&C
Asbestos Claims are combined with and treated the same as Class 5B SWE&C
General Unsecured Claims.
2. Class 4B SWE&C Convenience Claims
On the Effective Date, each holder of a Class 5B
SWE&C General Unsecured Claim that elects to be treated in Class 4B shall
receive in full satisfaction, release and discharge of and in exchange for such
Class 5B SWE&C General Unsecured Claim, the lesser of $1,000 or 50% of such
holder's Allowed Class 5B SWE&C General Unsecured Claim. Only holders of Class
5B SWE&C General Unsecured Claims who vote in favor of the Plan may elect to
have their claim treated as a Class 4B SWE&C Convenience Claim.
3. Class 5B SWE&C General Unsecured Claims
On, or as soon as reasonably practicable after, the
later of (i) the Effective Date or (ii) the first Semi-Annual Distribution Date
after such Class 5B SWE&C General Unsecured Claim becomes an Allowed Class 5B
SWE&C General Unsecured Claim, each holder of an Allowed Class 5B SWE&C General
Unsecured Claim shall receive a beneficial interest in the SWE&C Liquidating
Trust entitling such holder to receive in full satisfaction, release and
discharge of and in exchange for such Allowed Class 5B SWE&C General Unsecured
Claim its Pro Rata share of the Semi-Annual Class 5B Distribution Amount.
4. Class 6B SWE&C Intraestate Claims
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries into the
Consolidated SWE&C Estate, all Class 6B SWE&C Intraestate Claims shall be
deemed eliminated and the holders of Class 6B SWE&C Intraestate Claims shall
not be entitled to and shall not receive or retain any property or interest on
account of such Claims.
5. Class 7B SWINC Intercompany Claims
Holders of Class 7B SWINC Intercompany Claims shall
not receive or retain any property or interest on account of such Claims.
36
6. Class 8B SWE&C Subordinated Claims
Holders of Allowed Class 8B SWE&C Subordinated
Claims shall not receive or retain any distribution on account of such Class 8B
SWE&C Subordinated Claim.
7. Class 9B SWE&C Subsidiary Interests
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries, on the Effective
Date or such other date set by an order of the Court, all Interests in the
SWE&C Subsidiaries shall be eliminated and the holders of Class 9B SWE&C
Subsidiary Interests shall not be entitled to and shall not receive or retain
any property or interest on account of such Interests.
8. Class 10B SWE&C Interests
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries, on the Effective
Date or such other date set by an order of the Court, all Interests in SWE&C
shall be eliminated and the holders of Class 10B SWE&C Interests shall not be
entitled to and shall not receive or retain any property or interest on account
of such Interests.
D. Special Provision Regarding Unimpaired Claims
Except as otherwise provided in the Plan, nothing shall
affect the rights, claims or defenses, whether legal and equitable, of SWE&C,
any SWE&C Subsidiary or the SWE&C Liquidating Trustee, with respect to any
Unimpaired Claims, including, but not limited to, all rights with respect to
legal and equitable defenses to setoffs or recoupments against Unimpaired
Claims.
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE PLAN
A. Impaired Classes of Claims and Interests Entitled to Vote
Subject to Articles VI.C and VI.D below, Claimholders and
Interestholders in each Impaired Class of Claims or Interests are entitled to
vote as a class to accept or reject the Plan.
B. Acceptance by an Impaired Class
In accordance with section 1126(c) of the Bankruptcy Code and
except as provided in section 1126(e) of the Bankruptcy Code, an Impaired Class
of Claims has accepted the Plan if the Plan is accepted by the holders of at
least two-thirds (2/3) in dollar amount and more than one-half (1/2) in number
of the Allowed Claims of such Class that have timely and properly voted to
accept the Plan.
In accordance with section 1126(d) of the Bankruptcy Code and
except as provided in section 1126(e) of the Bankruptcy Code, an Impaired Class
of Interests has accepted the Plan if the holders of at least two-thirds (2/3)
in amount of the Allowed Interests of such Class have timely and properly voted
to accept the Plan.
C. Unimpaired Classes Conclusively Presumed to Accept Plan
37
1. SWINC Classes
Classes 1A and 2A are Unimpaired by the Plan. Under
section 1126(f) of the Bankruptcy Code, such Claimholders are conclusively
presumed to accept the Plan, and the votes of such Claimholders will not be
solicited.
2. SWE&C Classes
Classes 1B and 2B are Unimpaired by the Plan. Under
section 1126(f) of the Bankruptcy Code, such Claimholders are conclusively
presumed to accept the Plan, and the votes of such Claimholders will not be
solicited.
D. Classes Deemed to Reject Plan
1. SWINC Classes
Claimholders in Class 6A and Interestholders in
Class 10A are not entitled to receive or retain any property under the Plan.
Under section 1126(g) of the Bankruptcy Code, Class 6A Claimholders and Class
10A Interestholders are deemed to reject the Plan, and the votes of such
Interestholders or Claimholders will not be solicited.
2. SWE&C Classes
Claimholders in Classes 6B, 7B and 8B and
Interestholders in Class 9B and 10B are not entitled to receive or retain any
property under the Plan. Under section 1126(g) of the Bankruptcy Code, Classes
6B, 7B and 8B Claimholders and Class 9B and 10B Interestholders are deemed to
reject the Plan, and the votes of such Interestholders or Claimholders will not
be solicited.
E. Summary of Classes Voting on the Plan
1. SWINC Classes
As a result of the provision of Article IV.C of this
Plan, the votes of holders of Claims in Classes 3A, 4A, 5A, 7A, and 8A and
Interests in Class 9A will be solicited with respect to this Plan.
2. SWE&C Classes
As a result of the provision of Article V.C of this
Plan, the votes of holders of Claims in Classes 3B, 4B and 5B will be solicited
with respect to this Plan.
F. Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code
To the extent that any Impaired Class rejects the Plan or is deemed to
have rejected the Plan, the Debtors request confirmation of the Plan, as it may
be modified from time to time, under section 1129(b) of the Bankruptcy Code.
The Debtors reserve the right to alter, amend, modify, revoke or withdraw the
Plan or any Plan Exhibit, including to amend or modify it to satisfy the
requirements of section 1129(b) of the Bankruptcy Code, if necessary.
ARTICLE VII
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MEANS FOR IMPLEMENTATION OF THE PLAN
A. Substantive Consolidation
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 issue of substantive consolidation and the
Substantive Consolidation Litigation. Accordingly, this Plan shall serve as,
and shall be deemed to be, a motion for entry of an order pursuant to
Bankruptcy Rule 9019 (i) substantively consolidating the Estates of SWINC and
the SWINC Subsidiaries and (ii) substantively consolidating the Estates of
SWE&C and the SWE&C Subsidiaries. As set forth more fully in the Disclosure
Statement, the Proponents believe that such a settlement and compromise is
justified by administrative, substantive and equitable reasons.
1. Consolidation of SWINC and the SWINC Subsidiaries
On the Effective Date, the Estates of SWINC and the
SWINC Subsidiaries shall be substantively consolidated as follows: (i) the
SWINC Subsidiaries shall be merged with and into SWINC, with the surviving
corporation being Reorganized SWINC, (ii) all Intercompany Claims by, between
and among SWINC and the SWINC Subsidiaries shall be forgiven and eliminated,
(iii) all assets and liabilities of the SWINC Subsidiaries shall be merged or
treated as if they were merged with the assets and liabilities of SWINC, (iv)
any obligation of SWINC or one of the SWINC Subsidiaries and all guarantees
thereof by SWINC or one of the SWINC Subsidiaries shall be deemed to be one
obligation of SWINC, and (v) each Claim filed or to be filed against SWINC or a
SWINC Subsidiary shall be deemed filed only against SWINC and shall be deemed a
single Claim against and a single obligation of SWINC. On the Effective Date,
and in accordance with the terms of the Plan and the consolidation of the
assets and liabilities of SWINC and the SWINC Subsidiaries, all Claims based
upon guarantees of collection, payment or performance made by SWINC or the
SWINC Subsidiaries as to the obligations of SWINC or one of the SWINC
Subsidiaries shall be released and of no further force and effect.
2. Consolidation of SWE&C and the SWE&C Subsidiaries
The Plan contemplates and is also predicated upon
the substantive consolidation of the Estates of SWE&C and the SWE&C
Subsidiaries for the purposes of all actions associated with confirmation and
consummation of the Plan. On the Effective Date, the Estates of SWE&C and the
SWE&C Subsidiaries shall be substantively consolidated as follows: (i) all
assets and liabilities of the SWE&C Subsidiaries shall be merged or treated as
if they were merged with the assets and liabilities of SWE&C, (ii) all
Intercompany Claims by, between and among SWE&C and the SWE&C Subsidiaries
shall be forgiven and eliminated, (iii) any obligation of SWE&C or one of the
SWE&C Subsidiaries and all guarantees thereof by SWE&C or one of the SWE&C
Subsidiaries shall be deemed to be one obligation of SWE&C, and (iv) each Claim
filed or to be filed against SWE&C and/or a SWE&C Subsidiary shall be deemed
filed only against SWE&C and shall be deemed a single Claim against and a
single obligation of SWE&C. On the Effective Date, and in accordance with the
terms of the Plan and the consolidation of the assets and liabilities of SWE&C
and the SWE&C Subsidiaries, all Claims based upon guarantees of collection,
payment or performance made by SWE&C or one of the SWE&C Subsidiaries as to the
obligations of SWE&C or one of the SWE&C Subsidiaries shall be released and of
no further force and effect.
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B. Merger of Entities
On the Effective Date or as soon thereafter as practicable,
(a) each of the SWINC Subsidiaries shall be merged or deemed merged with and
into SWINC and (b) the Chapter 11 Cases of the SWINC Subsidiaries shall be
closed, following which any and all proceedings that could have been brought or
otherwise commenced in the Chapter 11 Case of any of the SWINC Subsidiaries
shall be brought or otherwise commenced in SWINC's Chapter 11 Case.
On the Effective Date or as soon thereafter as practicable,
(a) each of the SWE&C Subsidiaries shall be deemed merged with and into SWE&C
and (b) the Chapter 11 Cases of the SWE&C Subsidiaries shall be closed,
following which any and all proceedings that could have been brought or
otherwise commenced in the Chapter 11 Case of any of the SWE&C Subsidiaries
shall be brought or otherwise commenced in SWE&C's Chapter 11 Case.
C. Continued Corporate Existence of Reorganized SWINC
SWINC shall continue to exist as Reorganized SWINC after the
Effective Date in accordance with the laws of the State of Delaware and
pursuant to the certificate of incorporation and by-laws of SWINC in effect
prior to the Effective Date, as amended under the Plan. Pursuant to the Amended
Certificate of Incorporation and By-Laws of Reorganized SWINC, Reorganized
SWINC will be authorized to engage in any lawful activity for which
corporations may be organized under the Delaware General Corporation Law. After
emerging from bankruptcy, Reorganized SWINC's business operations will consist
of the management of the Pension Plan, including any efforts in which
Reorganized SWINC may terminate the Pension Plan or transfer its sponsorship in
accordance with applicable law. Although Reorganized SWINC will be fully
authorized to engage in other business operations and management intends to
evaluate opportunities as, when and if they arise, Reorganized SWINC has no
present intention of engaging in business operations, will likely dissolve
pursuant to the Delaware General Corporations Law within two years following
confirmation of the Plan.
D. Dissolution of SWE&C and the SWE&C Subsidiaries
On the Effective Date or as soon thereafter as the SWE&C
Liquidating Trustee determines is appropriate, SWE&C and the SWE&C Subsidiaries
shall be dissolved. If necessary or appropriate, the SWE&C Liquidating Trustee
shall file a certificate of dissolution for SWE&C and/or the SWE&C Subsidiaries
and shall take all other actions necessary or appropriate to effect the
dissolution of SWE&C and the SWE&C Subsidiaries under applicable state law.
E. Certificate of Incorporation and By-laws of Reorganized SWINC
The certificate of incorporation and by-laws of SWINC shall
be amended as necessary to satisfy the provisions of the Plan and the
Bankruptcy Code. The certificate of incorporation of Reorganized SWINC shall be
amended to, among other things: (a) authorize 1,000 shares of Reorganized SWINC
New Common Stock, $0.01 par value per share, (b) authorize 100 shares of
Reorganized SWINC New Series A Preferred Stock, $0.01 par value per share, (c)
authorize 100 shares of Reorganized SWINC New Series B Preferred Stock, $0.01
par value per share, and (d) pursuant to Bankruptcy Code section 1123(a)(6),
add (i) a provision prohibiting the issuance of non- voting equity securities,
and, if applicable, (ii) a provision setting forth an appropriate distribution
of voting power among classes of equity securities possessing voting power,
including, in the case of any class of equity securities having a preference
over another class of equity securities with respect to dividends, adequate
provisions for the election of directors representing such preferred class in
the event of default in the payment of such dividends. The forms of the
documents relating to the
40
Amended Certificate of Incorporation and By-laws of Reorganized SWINC shall be
in substantially the form annexed to the Plan as Plan Exhibits E and F,
respectively.
F. Directors and Officers of Reorganized SWINC
On the Effective Date, the members of the board of directors
and executive officers of SWINC and each of the SWINC Subsidiaries shall be
deemed to have resigned. From and after the Effective Date, the board of
directors of Reorganized SWINC shall consist of three (3) directors: (1) Mr.
James Carroll, who will serve as the Chairman; (2) a director designated by
Federal; and (3) a director designated by the Equity Committee. From and after
the Effective Date, Mr. Carroll shall serve as the president and chief
executive officer of Reorganized SWINC and Mr. Patrick Connolly shall serve as
the secretary of Reorganized SWINC. The Directors and Officers of Reorganized
SWINC initially will be compensated under the same terms as they were
compensated during the Debtors' Chapter 11 cases and in accordance with those
agreements approved by the Bankruptcy Court during the pendency of the Chapter
11 Cases.
G. Corporate Action
Each of the matters provided for under the Plan involving the
corporate structure of the Debtors or corporate action to be taken by or
required of the Debtors shall, as of the Effective Date, be deemed to have
occurred and be effective as provided herein, and shall be authorized and
approved in all respects without any requirement or further action by
stockholders, creditors, or directors of the Debtors.
H. Cancellation of Securities, Instruments and Agreements
Evidencing Claims and Interests
Except as otherwise provided in the Plan and in any contract,
instrument or other agreement or document created in connection with the Plan,
on the Effective Date (a) the Old Securities and any other note, bond,
indenture, or other instrument or document evidencing or creating any
indebtedness or obligation of a Debtor shall be deemed cancelled, and, in the
case of the Old Securities, shall be retired and shall cease to exist and (b)
the obligations of the Debtors under any agreement, indenture or certificate of
designations governing the Old Securities and any other note, bond, indenture
or other instrument or document evidencing or creating any indebtedness or
obligation of a Debtor shall be deemed released.
I. Issuance of Reorganized SWINC New Common and Preferred Stock
On the Effective Date or as soon thereafter as practicable,
Reorganized SWINC shall issue for distribution in accordance with the terms of
the Plan, (i)(A) the Reorganized SWINC New Series A Preferred Stock to the
SWINC Plan Administrator to be held for the benefit of Holders of Allowed
Claims and Interests in accordance with the terms of the Plan and the SWINC
Plan Administrator Agreement and (B) the Reorganized SWINC New Series B
Preferred Stock to the SWE&C Liquidating Trustee to be held for the benefit of
Holders of Allowed Claims and Interests in accordance with the terms of the
Plan and the SWE&C Liquidating Trust Agreement and (ii) the Reorganized SWINC
New Common Stock to the SWE&C Liquidating Trustee. The issuance of Reorganized
SWINC New Common Stock, Reorganized SWINC New Series A Preferred Stock and
Reorganized SWINC New Series B Preferred Stock shall be exempt from
registration under applicable securities laws pursuant to Section 4(2) of the
Securities Act. All such shares of Reorganized SWINC New Common Stock,
Reorganized SWINC New Series A Preferred Stock and Reorganized SWINC
41
New Series B Preferred Stock shall be, when issued pursuant to and in
accordance with the terms of the Plan, duly authorized, validly issued, fully
paid and nonassessable.
Pursuant to the terms of the SWE&C Liquidating Trust
Agreement, the SWINC Plan Administrator Agreement and the securities
themselves, the SWE&C Liquidating Trustee and the SWINC Plan Administrator have
agreed not to transfer or otherwise dispose of the Reorganized SWINC New Common
Stock, the Reorganized SWINC New Series A Preferred Stock and the Reorganized
SWINC New Series B Preferred Stock, respectively. In no event will the
Reorganized SWINC New Common Stock be distributed to the beneficial owners of
the SWE&C Liquidating Trust and the shares of Reorganized SWINC New Common
Stock will not be deemed to be assets of the SWE&C Liquidating Trust.
Accordingly, none of the securities to be issued by Reorganized SWINC under the
Plan will be transferrable.
J. Effectuating Documents; Further Transactions
The chairman of the Reorganized SWINC board of directors,
president, chief financial officer, or any other appropriate officer of
Reorganized SWINC shall be authorized to execute, deliver, file, or record such
contracts, instruments, release, and other agreements or documents, and to take
such actions as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan. The secretary or assistant
secretary of Reorganized SWINC shall be authorized to certify or attest to any
of the foregoing actions.
The SWE&C Liquidating Trustee shall be authorized to execute,
deliver, file, or record such contracts, instruments, release, and other
agreements or documents, and to take such actions as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of the
Plan. The secretary or assistant secretary appointed by the SWE&C Liquidating
Trustee shall be authorized to certify or attest to any of the foregoing
actions.
K. The SWINC Plan Administrator
1. Appointment
From and after the Effective Date, Mr. James P.
Carroll shall serve as the SWINC Plan Administrator pursuant to the SWINC Plan
Administrator Agreement and the Plan, until death, resignation, discharge or
the appointment of a successor SWINC Plan Administrator in accordance with the
SWINC Plan Administrator Agreement.
2. Rights, Powers and Duties of the SWINC Estate and
the SWINC Plan Administrator
The Consolidated SWINC Estate shall retain and have
all the rights, powers and duties necessary to carry out its responsibilities
under the Plan. Except as otherwise provided in the Plan, the Confirmation
Order, or in any document, instrument, release or other agreement entered into
in connection with the Plan, such rights, powers and duties, which shall be
exercisable by the SWINC Plan Administrator on behalf of the Consolidated SWINC
Estate pursuant to the Plan and the SWINC Plan Administrator Agreement, shall
include, among others:
(A) investing the Cash of the Consolidated SWINC Estate,
including, but not limited to, the Cash held in the Reserves in (i) direct
obligations of the United States of America or obligations of any agency or
instrumentality thereof which are guaranteed by the full faith and credit of
the United States of America; (ii) money market deposit accounts, checking
accounts, savings accounts
42
or certificates of deposit, or other time deposit accounts that are issued by a
commercial bank or savings institution organized under the laws of the United
States of America or any state thereof; or (iii) any other investments that may
be permissible under (a) section 345 of the Bankruptcy Code or (b) any order of
the Court entered in the Debtors' Chapter 11 cases;
(B) calculating and paying all distributions to be made under
the Plan, the SWINC Plan Administrator Agreement and other orders of the Court
to holders of Allowed Claims against and Interests in the Consolidated SWINC
Estate;
(C) employing, supervising and compensating professionals
retained to represent the interests of and serve on behalf of the Consolidated
SWINC Estate;
(D) objecting to Claims or Interests filed against the
Consolidated SWINC Estate;
(E) seeking estimation under section 502(c) of the Bankruptcy
Code of contingent or unliquidated claims filed against the Consolidated SWINC
Estate;
(F) seeking determination of tax liability of the
Consolidated SWINC Estate under section 505 of the Bankruptcy Code;
(G) exercising all powers and rights, and taking all actions,
contemplated by or provided for in the SWINC Plan Administrator Agreement;
(H) voting the shares of Reorganized SWINC New Series B
Preferred Stock in connection with any matter submitted to a vote of such
stockholders of Reorganized SWINC; and
(I) taking any and all other actions necessary or appropriate
to implement or consummate this Plan and the provisions of the SWINC Plan
Administrator Agreement.
3. Compensation of the SWINC Plan Administrator
The SWINC Plan Administrator shall be compensated
from the SWINC Operating Reserve pursuant to the terms of the SWINC Plan
Administrator Agreement. The initial compensation of the SWINC Plan
Administrator will be the same as the compensation paid to Mr. James P. Carroll
as previously approved by the Bankruptcy Court during the Chapter 11 Cases. Any
professionals retained by the SWINC Plan Administrator shall be entitled to
reasonable compensation for services rendered and reimbursement of expenses
incurred from the SWINC Operating Reserve. The payment of the fees and expenses
of the SWINC Plan Administrator and its retained professionals shall be made in
the ordinary course of business and shall not be subject to the approval of the
Court, except that, upon the request of any party in interest or the SWINC Plan
Administrator, the Court, after notice and hearing, may alter the amount, terms
or conditions of the SWINC Plan Administrator's compensation.
4. Indemnification
SWINC, the SWINC Subsidiaries, the Consolidated
SWINC Estates and Reorganized SWINC shall, to the fullest extent permitted by
the applicable laws of the jurisdiction in which each such entity is
incorporated or otherwise organized, indemnify and hold harmless the SWINC Plan
Administrator (in his capacity as such) and the agents, representatives,
professionals and employees of the SWINC Plan Administrator (collectively the
"Indemnified Parties"), from and against
43
and with respect to any and all liabilities, losses, damages, claims, costs and
expenses, including but not limited to attorneys' fees arising out of or due to
their actions or omissions, or consequences of such actions or omissions, with
respect to SWINC, the SWINC Subsidiaries and their Estate(s) or the
implementation or administration of the Plan and the Reorganized SWINC Plan
Administrator Agreement if the Indemnified Party acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of
SWINC, the SWINC Subsidiaries and their Estate(s), as the case may be, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe its conduct was unlawful. To the extent SWINC, the SWINC Subsidiaries,
their Estate(s) or Reorganized SWINC indemnifies and holds harmless the
Indemnified Parties as provided above, the legal fees and related costs
incurred by counsel to the SWINC Plan Administrator in monitoring and
participating in the defense of such claims giving rise to the right of
indemnification shall be paid out of the SWINC Operating Reserve. The
indemnification provisions of the SWINC Plan Administrator Agreement shall
remain available to and be binding upon any future SWINC Plan Administrator or
the estate of any decedent SWINC Plan Administrator and shall survive the
termination of the SWINC Plan Administrator Agreement.
5. Insurance
The SWINC Plan Administrator shall be authorized to
obtain all reasonably necessary insurance coverage for itself, its agents,
representatives, employees or independent contractors, SWINC, the SWINC
Subsidiaries, and the Consolidated SWINC Estate including, but not limited to,
coverage with respect to (i) any property that is or may in the future become
the property of the Consolidated SWINC Estate and (ii) the liabilities, duties
and obligations of the SWINC Plan Administrator and its agents,
representatives, employees or independent contractors under the SWINC Plan
Administrator Agreement (in the form of an errors and omissions policy or
otherwise), the latter of which insurance coverage may, at the sole option of
the SWINC Plan Administrator, remain in effect for a reasonable period (not to
exceed seven years) after the termination of the SWINC Plan Administrator
Agreement.
6. Authority to Object to Claims and Interests and to
Settle Disputed Claims
From and after the Effective Date, the SWINC Plan
Administrator shall be authorized (i) to object to Claims or Interests filed
against SWINC and the SWINC Subsidiaries and (ii) pursuant to Bankruptcy Rule
9019(b) and section 105(a) of the Bankruptcy Code, to compromise and settle
Disputed Claims and Disputed Interests.
L. The Asbestos Trust
On the Effective Date, and pursuant to the terms of the
Asbestos Trust Agreement, the Debtors shall transfer to the Asbestos Trust Cash
in the amount of $4.5 million and an Allowed Class 5B Claim in the amount of
$1.0 million for distribution to holders of Allowed Asbestos Claims and to pay
the reasonable and necessary costs and expenses associated with administering
the Asbestos Trust, any litigation related to the liquidation, resolution,
settlement or compromise of the Asbestos Claims or any litigation related to
the resolution, settlement or compromise regarding Asbestos Insurance Issues.
On the Effective Date, and pursuant to the terms of the Asbestos Trust
Agreement, the Debtors shall transfer to the Asbestos Trustee all of their
rights with respect to, among other things, indemnification, contribution or
reimbursement under the insurance policies issued by the Asbestos Insurance
Carriers (but not the policies themselves) and all of their rights under any
other policies that provide coverage for Asbestos Claims (but not those
policies themselves), but only to the extent of such coverage under those
policies. Notwithstanding anything to the contrary herein, the Debtors or their
44
respective successors and assigns under this Plan shall retain any and all
rights under policies issued by the Asbestos Insurance Carriers or the policies
providing coverage for Asbestos Claims with respect to coverage for any Claims
other than Asbestos Claims. The Asbestos Trust shall remain in existence until
dissolved by the Asbestos Trustee, and upon termination, any remaining assets
of the Asbestos Trust shall revert and be paid over to the SWE&C Liquidating
Trust.
M. The Asbestos Trustee
1. Appointment
From and after the Effective Date, Mr. James Carroll
shall serve as the Asbestos Trustee pursuant to the Plan, until death,
resignation, discharge or the appointment of a successor Asbestos Trustee. The
Asbestos Trustee shall have and perform all duties, responsibilities, rights
and obligations set forth in the Asbestos Trust Agreement.
2. Rights, Powers and Duties of the Asbestos Trustee
The Asbestos Trustee shall retain and have all the
rights, powers and duties necessary to carry out his responsibilities under the
Plan and the Asbestos Trust Agreement. Such rights, powers and duties, which
shall be exercisable by the Asbestos Trustee on behalf of the Debtors pursuant
to the Plan and the Asbestos Trust Agreement, shall include, among others:
(a) maintaining any Unclaimed Distribution Reserve for the
benefit of the holders of Allowed Asbestos Claims;
(b) investing Cash in the Asbestos Trust in (i) direct
obligations of the United States of America or obligations of any agency or
instrumentality thereof which are guaranteed by the full faith and credit of
the United States of America; (ii) money market deposit accounts, checking
accounts, savings accounts, certificates of deposit, or other time deposit
accounts that are issued by a commercial bank or savings institution organized
under the laws of the United States of America or any state thereof; or (iii)
any other investments that may be permissible under (x) section 345 of the
Bankruptcy Code or (y) any order of the Court entered in the Debtors' Chapter
11 Cases;
(c) calculating and paying of all distributions to be made
under the Plan, the Asbestos Trust Agreement, and other orders of the Court, to
holders of Allowed Asbestos Claims that have become undisputed, non-contingent,
and liquidated claims;
(d) employing, supervising and compensating professionals, if
any, necessary to represent the interests of and serve on behalf of the
Asbestos Trust;
(e) objecting to, defending against and settling Asbestos
Claims, and seeking estimation of contingent or unliquidated Asbestos Claims
under section 502(c) of the Bankruptcy Code;
(f) dissolving the Asbestos Trust;
(g) exercising all powers and rights, and taking all actions,
contemplated by or provided for in the Asbestos Trust Agreement;
(h) taking any and all other actions necessary or appropriate
to implement the provisions of the Asbestos Trust Agreement;
45
(i) making and filing any tax returns for the Asbestos Trust;
(j) taking any actions necessary to ensure that the Asbestos
Insurance Carriers will receive timely notice of any Asbestos Claim or demand
including, without limitation, taking action to maintain the corporate
existence of one or more of the Debtors;
(k) entering into one or more coverage in place agreements
with the Asbestos Insurance Carriers on terms satisfactory to the Trustee or
taking other appropriate action with respect to insurance provided by the
Asbestos Insurance Carriers; and
(l) taking any actions necessary to ensure the preservation
of the Debtors' documents to the extent such documents may be necessary to the
defense of Asbestos Claims, including, without limitation, the entry into
long-term storage agreements with respect to such documents.
3. Compensation of the Asbestos Trustee
The Asbestos Trustee shall be compensated from the
Asbestos Trust pursuant to the terms of the Asbestos Trust Agreement. Any
professionals retained by the Asbestos Trustee shall be entitled to reasonable
compensation for services rendered and reimbursement of expenses incurred from
the Asbestos Trust. The payment of the fees and expenses of the Asbestos
Trustee and his retained professionals, if any, shall be made in the ordinary
course of business and shall not be subject to the approval of the Court.
4. Indemnification
The Asbestos Trust shall, to the fullest extent
permitted by the laws of the State of Delaware, indemnify and hold harmless the
Asbestos Trustee (in his capacity as such) and the Asbestos Trustee's and the
Asbestos Trust's agents, representatives, professionals, and employees
(collectively, the "Indemnified Parties"), from and against and in respect to
any and all liabilities, losses, damages, claims, costs, and expenses,
including but not limited to attorneys' fees, arising out of or due to their
actions or omissions, or consequences of such actions or omissions, with
respect to the Asbestos Trust or the implementation or administration of the
Plan and the Asbestos Trust Agreement, if the Indemnified Party acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Asbestos Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe its conduct was unlawful. To the
extent that the Asbestos Trust must indemnify and hold harmless the Indemnified
Parties as provided above, the legal fees and related costs incurred by counsel
to the Asbestos Trustee in monitoring and participating in the defense of such
claims giving rise to the right of indemnification shall be paid out of the
Asbestos Trust. The indemnification provisions of the Asbestos Trust Agreement
shall remain available to and be binding upon any future Asbestos Trustee or
the estate of any decedent Asbestos Trustee and shall survive the termination
of the Asbestos Trust Agreement.
5. Insurance
The Asbestos Trustee shall be authorized to obtain
all reasonably necessary insurance coverage for himself, his agents,
representatives, employees, independent contractors, and the Asbestos Trust,
including, but not limited to, coverage with respect to (i) any property that
is or may in the future become the property of the Asbestos Trust and (ii) the
liabilities, duties, and obligations of the Asbestos Trustee and his agents,
representatives, employees, independent contractors under the Asbestos Trust
Agreement (in the form of an errors and omissions policy or otherwise), the
46
latter of which insurance coverage may, at the sole option of the Asbestos
Trustee, remain in effect for a reasonable period (not to exceed five years)
after the termination of the Asbestos Trust Agreement.
The Debtors intend that the Asbestos Trust will be
treated as a "liquidating
trust" within the meaning of Section 307.7701-4(d) of the Tax Regulation.
Accordingly, it is intended that the transfer of the Asbestos Trust Assets to
the Asbestos Trust shall be treated, for all income tax purposes, as a deemed
transfer of the Asbestos Trust Assets to the beneficiaries of the Asbestos
Trust for all income tax purposes, followed by a deemed transfer of such assets
by such beneficiaries to the Asbestos Liquidating Trust. The Asbestos Trust
shall be considered a "grantor" trust, and the beneficiaries of the Asbestos
Trust shall be treated as the grantors and the deemed owners of the SWE&C
Liquidating Trust.
6. Asbestos Insurance Policies
The Plan shall not expand the scope of, the amount of, or
alter in any other way the Asbestos Insurance Carriers' obligations under their
policies. The Plan shall not operate as a waiver of certain proofs of claim
filed by the Asbestos Insurance Carriers in the Chapter 11 Cases, provided,
however, that to the extent such Claims relate to Asbestos Claims, the Asbestos
Insurers' Claims are deemed satisfied in full, except for claims by Travelers
Insurance Company and its affiliates for premiums under retrospectively rated
insurance policies issued to the Debtors.
N. The SWE&C Liquidating Trust
1. Appointment of Trustee
A person designated by the Creditors' Committee
prior to the Confirmation Date shall serve as the SWE&C Liquidating Trustee
pursuant to the SWE&C Liquidating Trust Agreement and the Plan, until death,
resignation, discharge or the appointment of a successor SWE&C Liquidating
Trustee in accordance with the SWE&C Liquidating Trust Agreement. The SWE&C
Liquidating Trustee shall have and perform all duties, responsibilities, rights
and obligations set forth in the SWE&C Liquidating Trust Agreement.
2. Transfer of SWE&C Liquidating Trust Assets to the
SWE&C Liquidating Trust
On the Effective Date, SWE&C, the SWE&C Subsidiaries
and their Estates shall transfer and shall be deemed to have irrevocably
transferred to the SWE&C Liquidating Trust, for and on behalf of the
beneficiaries of the SWE&C Liquidating Trust, the SWE&C Liquidating Trust
Assets.
3. The SWE&C Liquidating Trust
(A) Without any further action of the directors of SWE&C or
the SWE&C Subsidiaries, on the Effective Date, the SWE&C Liquidating Trust
Agreement, substantially in the form annexed hereto as Plan Exhibit C, shall
become effective. The SWE&C Liquidating Trustee shall accept the SWE&C
Liquidating Trust and sign the SWE&C Liquidating Trust Agreement on the
Effective Date and the SWE&C Liquidating Trust will then be deemed created and
effective.
(B) The SWE&C Liquidating Trustee shall have full authority
to take any steps necessary to administer the SWE&C Liquidating Trust
Agreement, including, without limitation, the duty and obligation (i) to
liquidate SWE&C Liquidating Trust Assets, (ii) to make distributions
47
therefrom to holders of Allowed Claims against SWE&C and the SWE&C
Subsidiaries, (iii) to maintain any Reserves on behalf of and for the benefit
of the beneficiaries of the SWE&C Liquidating Trust, (iv) to vote the shares of
Reorganized SWINC New Common Stock in connection with any matter submitted to a
vote of the stockholders of Reorganized SWINC, and (v) if authorized by
majority vote of those members of the SWE&C Liquidating Trust Advisory Board
authorized to vote, to pursue and settle any Disputed Claims against or
Disputed Interests in SWE&C and the SWE&C Subsidiaries. The SWE&C Liquidating
Trustee shall not at any time, whether on behalf of the SWE&C Liquidating
Trust, SWE&C, the SWE&C Subsidiaries, or their Estates, continue or engage in
the conduct of trade or business, and no part of the SWE&C Liquidating Trust or
the proceeds, revenue or income therefrom shall be used or disposed of by the
SWE&C Liquidating Trustee in the furtherance of any business.
(C) All costs and expenses associated with the administration
of the SWE&C Liquidating Trust, including those rights, obligations and duties
described in this Article VI.N of this Plan, shall be the responsibility of and
paid by the SWE&C Liquidating Trust.
(D) The SWE&C Liquidating Trustee may retain such law firms,
accounting firms, experts, advisors, consultants, investigators, appraisers,
auctioneers or other professionals as it may deem necessary (collectively, the
"SWE&C Liquidating Trustee Professionals"), in its sole discretion, to aid in
the performance of its responsibilities pursuant to the terms of this Plan
including, without limitation, the liquidation and distribution of SWE&C
Liquidating Trust Assets.
(E) The Debtors intend that the SWE&C Liquidating Trust will
be treated as a "liquidating trust" within the meaning of Section 301.7701-4(d)
of the Tax Regulations. Accordingly, it is intended that the transfer of the
SWE&C Liquidating Trust Assets to the SWE&C Liquidating Trust shall be treated,
for all income tax purposes, as a deemed transfer of the SWE&C Liquidating
Trust Assets to the beneficiaries of the SWE&C Liquidating Trust for all income
tax purposes, followed by a deemed transfer of such assets by such
beneficiaries to the SWE&C Liquidating Trust. The SWE&C Liquidating Trust shall
be considered a "grantor" trust, and the beneficiaries of the SWE&C Liquidating
Trust shall be treated as the grantors and the deemed owners of the SWE&C
Liquidating Trust.
(F) The SWE&C Liquidating Trustee shall be responsible for
filing all federal, state and local tax returns for the SWE&C Liquidating
Trust.
(G) The SWE&C Liquidating Trust shall terminate on the
earlier of (i) the tenth (10) anniversary of the Confirmation Date or (ii) the
distribution of all property in accordance with the terms of the SWE&C
Liquidating Trust Agreement.
4. The SWE&C Liquidating Trust Advisory Board
The SWE&C Liquidating Trust Advisory Board shall
comprise three (3) members selected by the Creditors' Committee prior to the
Confirmation Hearing. The members of the SWE&C Liquidating Trust Advisory Board
initially will be compensated under the same terms as they have been
compensated during the pendency of these Chapter 11 Cases or in accordance with
the SWE&C Liquidating Trust Agreement.
The SWE&C Liquidating Trustee shall consult
regularly with the SWE&C Liquidating Trust Advisory Board when carrying out the
purpose and intent of the SWE&C Liquidating Trust. Members of the SWE&C
Liquidating Trust Advisory Board shall be entitled to compensation in
accordance with the SWE&C Liquidating Trust Agreement and to reimbursement of
the reasonable and
48
necessary expenses incurred by them in carrying out the purpose of the SWE&C
Liquidating Trust Advisory Board. Reimbursement of the reasonable and necessary
expenses of the members of the SWE&C Trust Advisory Board and their
compensation to the extent provided for in the SWE&C Liquidating Trust
Agreement shall be payable by the SWE&C Liquidating Trust.
(A) In the case of an inability or unwillingness of any
member of the SWE&C Trust Advisory Board to serve, such member shall be
replaced by designation of the remaining members of the SWE&C Trust Advisory
Board. If any position on the SWE&C Trust Advisory Board remains vacant for
more than thirty (30) days, such vacancy shall be filled within fifteen (15)
days thereafter by the designation of the SWE&C Liquidating Trustee without the
requirement of a vote by the other members of the SWE&C Trust Advisory Board.
(B) Upon the certification by the SWE&C Liquidating Trustee
that all SWE&C Liquidating Trust Assets have been distributed, abandoned or
otherwise disposed of, the members of the SWE&C Liquidating Trust Advisory
Board shall resign their positions, whereupon they shall be discharged from
further duties and responsibilities.
(C) The SWE&C Liquidating Trust Advisory Board may, by
majority vote, authorize the SWE&C Liquidating Trustee to invest the corpus of
the SWE&C Liquidating Trust in prudent investments other than those described
in section 345 of the Bankruptcy Code.
(D) The SWE&C Liquidating Trust Advisory Board may remove the
SWE&C Liquidating Trustee in its discretion. In the event the requisite
approval is not obtained, the SWE&C Liquidating Trustee may be removed by the
Court for cause shown. In the event of the resignation or removal of the SWE&C
Liquidating Trustee, the SWE&C Liquidating Trust Advisory Board shall, by
majority vote, designate a person to serve as successor SWE&C Liquidating
Trustee.
(E) Notwithstanding anything to the contrary in this Plan,
neither the SWE&C Liquidating Trust Advisory Board nor any of its members,
designees, counsel, financial advisors or any duly designated agent or
representative of any such party shall be liable for the act, default or
misconduct of any other member of the SWE&C Liquidating Trust Advisory Board,
nor shall any member be liable for anything other than such members' own gross
negligence or willful misconduct. The SWE&C Liquidating Trust Advisory Board
may, in connection with the performance of its duties, and in its sole and
absolute discretion, consult with its counsel, accountants or other
professionals, and shall not be liable for anything done or omitted or suffered
to be done in accordance with such advice or opinions. If the SWE&C Liquidating
Trust Advisory Board determines not to consult with its counsel, accountants or
other professional, it shall not be deemed to impose any liability on the SWE&C
Liquidating Trust Advisory Board, or its members and/or designees.
(F) The SWE&C Liquidating Trust Advisory Board shall govern
its proceedings through the adoption of by-laws, which the SWE&C Liquidating
Trust Advisory Board may adopt by majority vote. No provision of such by-laws
shall supersede any express provision of the Plan.
O. No Revesting of Assets
On or following the Effective Date, the property of the
Estates of SWINC and the SWINC Subsidiaries (except for any obligations and/or
reversionary interest in the Pension Plan, the rights to Cash in the amount of
$2 million) shall remain or become the property of the Consolidated SWINC
Estate and shall continue to be subject to the jurisdiction of the Court
following confirmation of the Plan until distributed to holders of Allowed
Claims and Allowed Interests in accordance with the
49
provisions of the Plan, the SWINC Plan Administrator Agreement, and the
Confirmation Order. The Consolidated SWINC Estate shall invest Cash in the
amount of $2 million in Reorganized SWINC on the Effective Date, which cash
shall be held by Reorganized SWINC free and clear of all Claims and Interests,
except as specifically provided for in the Plan. Reorganized SWINC shall
succeed SWINC as the "contributing sponsor" of the Pension Plan for all
purposes, including under ERISA section 4001(a)(13), and shall succeed SWINC as
the "employer" maintaining the Pension Plan for all purposes, including under
ERISA section 4044(d).
On or following the Effective Date, the property of the
Estates of SWE&C and the SWE&C Subsidiaries shall remain or become the property
of the SWE&C Liquidating Trust and shall continue to be subject to the
jurisdiction of the Court following confirmation of the Plan until distributed
to holders of Allowed Claims and Allowed Interests in accordance with the
provisions of the Plan, the SWE&C Liquidating Trust Agreement, and the
Confirmation Order.
P. Preservation of Rights of Action
Except as otherwise provided in the Plan or the Confirmation
Order, or in any contract, instrument, release, indenture or other agreement
entered into in connection with the Plan, in accordance with section 1123(b) of
the Bankruptcy Code, the Consolidated SWINC Estate and the SWE&C Liquidating
Trust shall retain the Litigation Claims, including but not limited to the
Litigation Claims listed on Exhibit B annexed hereto and those Litigation
Claims against any Person or Entity hereinafter arising or discovered and
regardless of when the facts giving rise to such Litigation Claims arose or
existed. The SWINC Plan Administrator, on behalf of SWINC, the SWINC
Subsidiaries and the Consolidated SWINC Estate, shall retain and may enforce,
sue on, settle or compromise (or decline to do any of the foregoing) any and
all of the Litigation Claims that SWINC, the SWINC Subsidiaries, their Estates
or the Consolidated SWINC Estate may hold against any Person or Entity. The
SWE&C Liquidating Trustee, on behalf of SWE&C, the SWE&C Subsidiaries, and the
SWE&C Liquidating Trust shall retain and may enforce, sue on, settle or
compromise (or decline to do any of the foregoing) any and all of the
Litigation Claims that SWE&C, the SWE&C Subsidiaries, their Estates or the
SWE&C Liquidating Trust may hold against any Person or Entity. The failure of
the Debtors to list a claim, right of action, suit or proceeding on Plan
Exhibit B shall not constitute a waiver or release by the Debtors or their
Estates of such claim, right of action, suit or proceeding all such claims,
rights of action, suits or proceedings are being expressly reserved.
Q. Creditors' Committee and Equity Committee
1. Dissolution of Creditors' Committee
The Creditors' Committee shall continue in existence
until the Effective Date to exercise those powers and perform those duties
specified in section 1103 of the Bankruptcy Code, and shall perform such other
duties as it may have been assigned by the Court prior to the Effective Date.
On the Effective Date, the Creditors' Committee shall be dissolved and its
members shall be deemed released of all their duties, responsibilities and
obligations in connection with the Chapter 11 Cases or the Plan and its
implementation, and the retention or employment of the Creditors' Committee's
attorneys, accountants and other agents shall terminate, except with respect to
(i) all Professional Fee Claims and (ii) any appeals of the Confirmation Order.
All expenses of Creditors' Committee members and the fees and expenses of their
professionals through the Effective Date shall be paid in accordance with the
terms and conditions of the Fee Order and the Confirmation Order and this Plan.
50
2. Dissolution of Equity Committee
The Equity Committee shall continue in existence
until the Effective Date to exercise those powers and perform those duties
specified in section 1103 of the Bankruptcy Code and shall perform such other
duties as it may have been assigned by the Court prior to the Effective Date.
On the Effective Date, the Equity Committee shall be dissolved and its members
shall be deemed released of all their duties, responsibilities and obligations
in connection with the Chapter 11 Cases or the Plan and its implementation, and
the retention or employment of the Equity Committee's attorneys, accountants
and other agents shall terminate, except with respect to (i) all Professional
Fee Claims and (ii) any appeals of the Confirmation Order. All expenses of
Equity Committee members and the fees and expenses of their professionals
through the Effective Date shall be paid in accordance with the terms and
conditions of the Fee Order the Confirmation Order and this Plan.
R. Sources of Cash for Plan Distributions
Except as otherwise provided in the Plan or the Confirmation
Order, all Cash necessary for the SWINC Plan Administrator and the SWINC
Disbursing Agent, as the case may be, to make payments pursuant to the Plan to
holders of the Claims against and Interests in SWINC, the SWINC Subsidiaries or
the Consolidated SWINC Estates shall be obtained from (i) the Cash balances of
SWINC and the SWINC Subsidiaries, including Cash from the market value
allocation of the Sale Proceeds, and (ii) the liquidation of the remaining
non-Cash assets, if any, of SWINC, the SWINC Subsidiaries and the Consolidated
SWINC Estates and (iii) the liquidation of the remaining non-Cash assets, if
any, of SWINC and the SWINC Subsidiaries.
Except as otherwise provided in the Plan or the Confirmation
Order, all Cash necessary for the SWE&C Liquidating Trustee and the SWE&C
Liquidating Trust Disbursing Agent, as the case may be, to make payments
pursuant to the Plan to holders of Claims against SWE&C, the SWE&C Subsidiaries
or the SWE&C Liquidating Trust shall be obtained from (i) the Cash balances of
SWE&C and the SWE&C Subsidiaries, including Cash from the market value
allocation of the Sale Proceeds, (ii) proceeds derived from the repayment of
the Reorganized SWINC Note, and (iii) the liquidation of the remaining non-Cash
assets, if any, of SWE&C and the SWE&C Subsidiaries.
S. Exemption from Certain Transfer Taxes
Pursuant to section 1146(c) of the Bankruptcy Code, any
transfers from a Debtor to Reorganized SWINC or any other Person or Entity
pursuant to the Plan in the United States shall not be subject to any document
recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage
tax, stamp act, real estate transfer tax, mortgage recording tax or other
similar tax or governmental assessment, and the Confirmation Order shall direct
the appropriate state or local governmental officials or agents to forgo the
collection of any such tax or governmental assessment and to accept for filing
and recordation any of the foregoing instruments or other documents without the
payment of any such tax or governmental assessment.
T. Release of Liens
Except as otherwise provided in the Plan, the Confirmation
Order or in any contract, instrument, release or other agreement or document
created in connection with the Plan, on the Effective Date, all mortgages,
deeds of trust, liens, pledges or other security interests against the property
of the Debtors' Estates shall be fully released and discharged.
51
U. Special Provisions Regarding Insured Claims
Distributions under the Plan to each holder of an Allowed
Insured Claim against SWINC, a SWINC Subsidiary, SWE&C or a SWE&C Subsidiary,
shall be in accordance with the treatment provided under the Plan for the Class
in which such Allowed Insured Claim is classified; provided, however, that the
maximum amount of any distribution under the Plan on account of an Allowed
Insured Claim (except for Allowed Asbestos Claims) shall be limited to an
amount equal to the amount of the Allowed Insured Claim minus any insurance
proceeds actually received and retained by such holder in respect of such
Allowed Insured Claim. Nothing in this Article VII shall (x) constitute a
waiver of any claim, right, or cause of action the Debtors may hold against any
Person, including the Debtors' insurance carriers or (y) is intended to, shall,
or shall be deemed to preclude any holder of an Allowed Insured Claim from
seeking and/or obtaining a distribution or other recovery from any insurer of
the Debtors in addition to any distribution such holder may receive pursuant to
the Plan; provided, however, that the Debtors do not waive, and expressly
reserve their rights to assert that any insurance coverage is property of the
estate to which they are entitled, with the exception of the provisions
contained in the stipulated agreement between SWINC and the Secretary of Labor,
United States Department of Labor, filed by the Debtors on or about February
26, 2002. Upon receipt by the holder of an Allowed Insured Claim of any amounts
distributed under the Plan in respect of such claim, such holder shall be
deemed to have assigned to the SWINC Plan Administrator all rights of the
holder to recover such amounts from the applicable insurer.
This Plan shall not expand the scope of or alter in any other
way the insurers' obligations under their policies, and the insurers shall
retain any and all defenses to coverage that they may have. The Plan shall not
operate as a waiver of any other claims the insurers have asserted or may
assert in proofs of claim filed in the Debtors' bankruptcy cases or the
Debtors' rights as to those claims.
Each of the insurers retains any and all of its rights, at
its own expense, to commence and participate in any contested matters and other
related proceedings concerning asbestos claims, including objections to and
requests for relief from the automatic stay with respect to any such claims,
until the Debtors' bankruptcy cases are closed.
ARTICLE VIII
DESCRIPTION OF SECURITIES AND INSTRUMENTS
TO BE ISSUED IN CONNECTION WITH THE PLAN
A. Reorganized SWINC New Common Stock
The principal terms of the Reorganized SWINC New Common Stock
to be issued by Reorganized SWINC under the Plan are as follows:
Authorization......................... 1,000 shares.
Initial
Issuance.............................. 100 shares.
Par Value............................. $.01 per share.
Listing............................... None.
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Voting Rights......................... One vote per share on all matters submitted to a vote of the
stockholders of Reorganized SWINC; votes together as a
single class with the Reorganized SWINC New Series A
Preferred Stock and Reorganized SWINC New Series B
Preferred Stock. The SWE&C Liquidating Trustee has
granted an irrevocable proxy to the Board of Directors of
Reorganized SWINC for the limited purpose of permitting the
Board to vote the shares of Reorganized SWINC New
Common Stock, at its discretion, in favor of the dissolution of
Reorganized SWINC.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
B. Reorganized SWINC New Series A Preferred Stock
The principal terms of the Reorganized SWINC New Series A Preferred
Stock to be issued by Reorganized SWINC under the Plan are as follows:
Authorization......................... 100 shares.
Initial Issuance...................... 1 share.
Par Value............................. $.01 per share.
Listing............................... None.
Ranking............................... Senior to the Reorganized SWINC New
Common Stock and all other series of
Preferred Stock that subsequently may be
issued by Reorganized SWINC. Except as
to the liquidation preference, the
Reorganized SWINC New Series B Preferred
Stock and Reorganized SWINC New Series A
Preferred Stock rank equally.
Liquidation
Preference............................ Upon termination of the Pension Plan and
the liquidation, dissolution and winding
up of Reorganized SWINC, and in
accordance with the terms of the Plan,
holders of Series A Preferred Stock
shall be entitled to receive a
liquidating distribution calculated as
follows: (i) from the Reversion either
(x) two-thirds of the first $30 million
of funds generated from the Reversion of
the Pension Plan plus, if the Reversion
exceeds $30 million, 50% of any funds
generated from the Reversion in excess
of $30 million or (y) in the event Class
9A votes to reject the Plan, two-thirds
of the first $30 million of funds
generated from the Reversion of the
Pension Plan plus, if the Reversion
exceeds $30 million, twenty-five
53
percent (25%) of any funds generated
from the Reversion in excess of $30
million; and (ii) 100% of the funds
generated from the liquidation of any
additional assets, other than the
Reversion, of Reorganized SWINC (the
"Series A Liquidation Preference"). The
SWINC Plan Administrator will distribute
the Series A Liquidation Preference to
the Holders of Allowed SWINC Claims and
Interests in accordance with the terms
of the Plan and the SWINC Plan
Administrator Agreement.
Dividends............................. Holders of Series A Preferred Stock are
entitled to participate ratably in any
dividends declared on the Reorganized
SWINC New Common Stock, when, as and if
declared by the Board of Directors of
Reorganized SWINC.
Redemption............................ Non-Redeemable.
Board
Designations.......................... None.
Voting Rights......................... One vote per share on all matters submitted to a vote of the
stockholders of Reorganized SWINC; votes
together as a single class with the
Reorganized SWINC New Common Stock and
Reorganized SWINC New Series B Preferred
Stock.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
C. Reorganized SWINC New Series B Preferred Stock
The principal terms of the Reorganized SWINC New Series B
Preferred Stock to be issued by Reorganized SWINC under the Plan are as
follows:
Authorization......................... 1,000 shares.
Initial
Issuance.............................. 1 share.
Par Value............................. $.01 per share.
Listing............................... None.
Ranking............................... Senior to the Reorganized SWINC New
Common Stock and all other series of
Preferred Stock that subsequently may be
issued by Reorganized SWINC. Except as
to the liquidation preference, the
Reorganized SWINC New Series B Preferred
Stock and the Reorganized SWINC New
Series A Preferred Stock rank equally.
54
Liquidation
Preference............................ Upon termination of the Pension Plan and
the liquidation, dissolution and winding
up of Reorganized SWINC, and in
accordance with the terms of the Plan,
following payment of the Series A
Liquidation Preference, holders of
Series B Preferred Stock shall be
entitled to receive a liquidating
distribution calculated from the
Reversion as follows: either (i)
one-third of the first $30 million of
funds generated from the Reversion plus,
if the Reversion exceeds $30 million,
50% of any funds generated from the
Reversion in excess of $30 million or
(ii) in the event Class 9A votes to
reject the Plan, one-third of the first
$30 million of funds generated from the
Reversion of the Pension Plan plus, if
the Reversion exceeds $30 million,
seventy-five percent (75%) of any funds
generated from the Reversion in excess
of $30 million (the "Series B
Liquidation Preference"). The SWE&C
Liquidating Trustee will distribute the
Series B Liquidation Preference to the
Holders of Allowed SWE&C Claims in
accordance with the terms of the Plan
and the SWE&C Liquidating Trust
Agreement.
Dividends............................. Holders of Reorganized SWINC New Series
B Preferred Stock are entitled to
participate ratably in any dividends
declared on the Reorganized SWINC New
Common Stock, when, as and if declared
by the Board of Directors of Reorganized
SWINC.
Redemption............................ Non-Redeemable.
Board
Designations.......................... None.
Voting Rights......................... One vote per share on all matters submitted to a vote of the
stockholders of Reorganized SWINC; votes
together as a single class with the
Reorganized SWINC New Common Stock and
Reorganized SWINC New Series A Preferred
Stock.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
ARTICLE IX
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims or Interests Allowed as of the Effective
Date
Except as otherwise provided herein or as ordered by the Court,
distributions to be made on account of Claims or Interests that are Allowed
Claims or Allowed Interests as of the Effective Date
55
shall be made on the Effective Date. Any distribution to be made on the
Effective Date pursuant to this Plan shall be deemed as having been made on the
Effective Date if such distribution is made on the Effective Date or as soon
thereafter as is practicable. Any payment or distribution required to be made
under the Plan on a day other than a Business Day shall be made on the next
succeeding Business Day. Distributions on account of Claims or Interests that
first become Allowed Claims or Allowed Interests after the Effective Date shall
be made on the first Semi-Annual Distribution Date following the date on which
the Claim or Interest was Allowed, unless otherwise provided in the terms and
conditions of the SWINC Plan Administrator Agreement, the SWE&C Liquidating
Trust Agreement, the Asbestos Trust Agreement and Articles IV, VII and IX of
this Plan, except as otherwise provided in the Plan or any contract, instrument
or other agreement created in connection with the Plan.
B. Interest on Claims or Interests
Unless otherwise specifically provided for in the Plan or Confirmation
Order, or required by applicable bankruptcy law, postpetition interest shall
not accrue or be paid on any Claims or Interests, and no holder of a Claim or
Interest shall be entitled to interest accruing on or after the Petition Date
on any Claim or Interest. Interest shall not accrue or be paid upon any
Disputed Claim or Disputed Interest in respect of the period from the Petition
Date to the date a final distribution is made thereon if and after such
Disputed Claim or Disputed Interest becomes an Allowed Claim or Allowed
Interest.
C. Distributions by Disbursing Agents
The SWINC Disbursing Agent shall make all distributions required under
this Plan on account of Claims against and Interests in the Consolidated SWINC
Estate. If the SWINC Disbursing Agent is an independent third party designated
by the SWINC Plan Administrator to serve in such capacity, then the SWINC
Disbursing Agent shall receive, without further Court approval, reasonable
compensation for distribution services rendered pursuant to the Plan and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services from SWINC on terms acceptable to the SWINC Plan Administrator.
The SWINC Disbursing Agent shall not be required to give any bond or surety or
other security for the performance of its duties unless otherwise ordered by
the Court.
The SWE&C Liquidating Trust Disbursing Agent shall make all
distributions required under this Plan on account of Claims against the
Consolidated SWE&C Estate. If the SWE&C Disbursing Agent is an independent
third party designated by the SWE&C Liquidating Trust to serve in such
capacity, then the SWE&C Liquidating Trust Disbursing Agent shall receive,
without further Court approval, reasonable compensation for distribution
services rendered pursuant to the Plan and reimbursement of reasonable
out-of-pocket expenses incurred in connection with such services from the SWE&C
Liquidating Trust on terms acceptable to the SWE&C Liquidating Trust. The SWE&C
Liquidating Trust Disbursing Agent shall not be required to give any bond or
surety or other security for the performance of its duties unless otherwise
ordered by the Court.
D. Delivery of Distributions and Undeliverable or Unclaimed
Distributions
1. Delivery of Distributions in General
Distributions to holders of Allowed Claims or
Allowed Interests shall be made at the addresses set forth in the Amended
Schedules unless such addresses are superseded by proofs of claim or interest
or transfers of claim filed pursuant to Bankruptcy Rule 3001 (or at the last
known addresses of such holders if the SWINC Disbursing Agent or the SWE&C
Liquidating Trust Disbursing Agent, as the case may be, has been notified in
writing of a change of address).
56
2. Undeliverable and Unclaimed Distributions
(A) Holding and Investment of Undeliverable and Unclaimed
Distributions.
If the distribution to any holder of an
Allowed Claim or Allowed Interest is returned to the SWINC Disbursing Agent or
the SWE&C Liquidating Trust Disbursing Agent, as the case may be, as
undeliverable or is otherwise unclaimed, no further distributions shall be made
to such holder unless and until the SWINC Disbursing Agent or the SWE&C
Liquidating Trust Disbursing Agent, as the case may be, is notified in writing
of such holder's then-current address. Undeliverable and unclaimed
distributions shall be set aside or, in the case of a Cash distribution,
deposited in a segregated, interest-bearing account, designated as an
"unclaimed distribution reserve" (the "Unclaimed Distribution Reserve"), for
the benefit of all such similarly situated Persons until such time as a
distribution becomes deliverable or is claimed.
(B) After Distributions Become Deliverable
On each semiannual Distribution Date, the
SWINC Disbursing Agent or the SWE&C Liquidating Trust Disbursing Agent, as the
case may be, shall make distributions that have become deliverable or have been
claimed since the Distribution Date or the immediately preceding Semiannual
Distribution Date, as the case may be, together with any interest actually
earned thereon.
(C) Failure to Claim Undeliverable Distributions
Except as otherwise provided in the Plan or
any contract, instrument or other agreement created in connection with the
Plan, the holder of an Allowed Claim or Allowed Interest that does not assert a
Claim or Interest pursuant to the Plan for an undeliverable or unclaimed
distribution within three (3) years after the Effective Date shall be deemed to
have forfeited its Claim or Interest for such undeliverable or unclaimed
distribution and shall be forever barred and enjoined from asserting any such
Claim or Interest for an undeliverable or unclaimed distribution against the
Debtors, their Estates, the SWINC Plan Administrator or the SWE&C Liquidating
Trust, or their property. In such cases, any Cash or other property held in an
Unclaimed Distribution Reserve for distribution on account of such Claims or
Interests for undeliverable or unclaimed distributions shall become the
property of the Debtors, their Estates, the SWE&C Liquidating Trust, as the
case may be, free of any restrictions thereon and notwithstanding any federal
or state escheat laws to the contrary, and shall be distributed in accordance
with the terms of the Plan, the SWE&C Liquidating Trust Agreement or the SWINC
Plan Administrator Agreement. Nothing contained in the Plan, the SWINC Plan
Administrator Agreement or the SWE&C Liquidating Trust Agreement shall require
any Disbursing Agent, including, but not limited to, the SWINC Disbursing Agent
or the SWE&C Liquidating Trust Disbursing Agent to attempt to locate any holder
of an Allowed Claim or Allowed Interest.
E. Notification Date for Distributions to Holders of Equity
Securities
At the close of business on the Distribution Notification Date, the
transfer ledgers for the Old Securities shall be closed, and there shall be no
further changes in the record holders of the Old Securities. Neither the SWINC
Plan Administrator nor the SWINC Disbursing Agent shall have any obligation to
recognize any transfer of such Old Securities occurring after the Distribution
Notification Date and shall be entitled instead to recognize and deal for all
purposes hereunder with only those record holders as of the close of business
on the Distribution Notification Date.
57
F. Surrender of Securities or Instruments
On or before the Effective Date, or as soon as practicable thereafter,
each holder of an instrument evidencing an Interest on account of Old
Securities (as to each, a "Certificate") shall surrender such Certificate to
the SWINC Disbursing Agent and such Certificate shall be cancelled; provided,
however, that the surrender and cancellation of such Certificates pursuant to
or under this Plan shall in no way impair or affect the right of any holder to
pursue any claims against non-Debtors in any of the Securities Actions. No
distribution of property hereunder shall be made to or on behalf of any such
holder unless and until such Certificate is received by the SWINC Disbursing
Agent or the unavailability of such Certificate is reasonably established to
the satisfaction of the SWINC Disbursing Agent. Any such holder who fails to
surrender or cause to be surrendered such Certificate or fails to execute and
deliver an affidavit of loss and indemnity reasonably satisfactory to the SWINC
Disbursing Agent prior to the second (2nd) anniversary of the Effective Date,
shall be deemed to have forfeited all rights and Interests in respect of such
Certificate and shall not participate in any distribution hereunder, and all
property in respect of such forfeited distribution, including interest accrued
thereon, shall revert to the SWINC Plan Administrator for the benefit of the
Claimholders and Interestholders of SWINC notwithstanding any federal or state
escheat laws to the contrary.
G. Means of Cash Payment
Cash payments made pursuant to this Plan shall be in U.S. funds, by
the means agreed to by the payor and the payee, including by check or wire
transfer or, in the absence of an agreement, such commercially reasonable
manner as the payor shall determine in its sole discretion.
H. Withholding and Reporting Requirements
In connection with the Plan and all distributions thereunder, the
SWINC Disbursing Agent and the SWE&C Liquidating Trust Disbursing Agent shall
comply with all withholding and reporting requirements imposed by any federal,
state, local or foreign taxing authority, and all distributions hereunder shall
be subject to any such withholding and reporting requirements. The SWINC
Disbursing Agent and the SWE&C Liquidating Trust Disbursing Agent shall be
authorized to take any and all actions that may be necessary or appropriate to
comply with such withholding and reporting requirements.
I. Setoffs
1. By a Debtor
The SWINC Plan Administrator and the SWE&C Liquidating
Trustee may, pursuant to section 553 of the Bankruptcy Code or applicable
nonbankruptcy laws, but shall not be required to, set off against any Claim,
and the payments or other distributions to be made pursuant to the Plan in
respect of such Claim, claims of any nature whatsoever that the Debtors may
have against the holder of such Claim; provided, however, that neither the
failure to do so nor the allowance of any Claim hereunder shall constitute a
waiver or release by the SWINC Plan Administrator or the SWE&C Liquidating
Trustee, as the case may be, of any such claim that the Debtors may have
against such holder.
58
2. By Non-Debtors
Unless otherwise authorized by a Final Order, any holder of a
Claim must assert any setoff rights against a Claim by a Debtor against such
entity by filing an appropriate motion seeking authority to setoff on or before
the Confirmation Date or will be deemed to have waived and be forever barred
from asserting any right to setoff against a Claim by a Debtor notwithstanding
any statement to the contrary in a proof of claim or any other pleading or
document filed with the Bankruptcy Court or delivered to the Debtors.
J. Fractional Dollars; De Minimis Distributions
Notwithstanding any other provision of the Plan, the SWINC Disbursing
Agent and the SWE&C Liquidating Trust Disbursing Agent shall (i) not be
required to make distributions or payments of fractions of dollars, and
whenever any payment of a fraction of a dollar under the Plan would otherwise
be called for, the actual payment made shall reflect a rounding of such
fraction to the nearest whole dollar (up or down), with half dollars being
rounded down; and (ii) have no obligation to make a distribution on account of
an Allowed Claim from any Reserve or account (a) to any holder of an Allowed
Claim if the aggregate amount of all distributions authorized to be made from
all such Reserves or accounts on the particular Distribution Date in question
is less than $1,000,000 or (b) to a specific holder of an Allowed Claim if the
amount to be distributed to that holder on the particular Distribution Date (1)
does not constitute a final distribution to such holder and (2) is less than
$100.00.
K. Allocation of Plan Distributions Between Principal and
Interest
To the extent that any Allowed Claim entitled to a distribution under
the Plan comprises indebtedness and accrued but unpaid interest thereon, the
Debtors intend to take the position that, for income tax purposes, such
distribution shall be allocated (to the extent permitted) first to the
principal amount of the Claim and then, to the extent the consideration exceeds
the principal amount of the Claim, to the portion of such Claim representing
accrued but unpaid interest.
ARTICLE X
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Rejected Contracts and Leases
Except as otherwise provided in the Plan, the Confirmation Order, or
in any contract, instrument, release or other agreement or document entered
into in connection with the Plan, each of the prepetition executory contracts
and unexpired leases to which any Debtor is a party, to the extent such
contracts or leases are executory contracts or unexpired leases, shall be
deemed rejected by the applicable Debtor effective on the Confirmation Date and
subject to the occurrence of the Effective Date, unless such contract or lease
(i) previously (a) shall have been assumed or rejected by the Debtors
(including, but not limited to, those executory contracts and unexpired leases
assumed and assigned to Shaw) or (b) shall have expired or terminated pursuant
to its own terms, or (ii) is listed on
59
the schedule of assumed contracts and leases attached hereto as Plan Exhibit G;
provided, however, that neither the inclusion by the Debtors of a contract or
lease in Plan Exhibit G nor anything contained in this Article X shall
constitute an admission by any Debtor that such contract or lease is an
executory contract or unexpired lease or that any Debtor or its successors and
assigns has any liability thereunder. The Confirmation Order shall constitute
an order of the Court approving the rejections described in this Article IX,
pursuant to section 365 of the Bankruptcy Code, as of the Confirmation Date.
B. Rejection Damages Bar Date
If the rejection of an executory contract or unexpired lease pursuant
to Article X.A above gives rise to a Claim by the other party or parties to
such contract or lease, such Claim shall be forever barred and shall not be
enforceable against the applicable Debtor or its Estate, the SWINC Plan
Administrator, the SWE&C Liquidating Trust or their respective successors or
properties unless a proof of Claim is filed and served on the Debtors and
counsel for the Debtors within thirty (30) days after service of a notice of
entry of the Confirmation Order or such other date as prescribed by the Court.
C. Assumed Contracts and Leases
Except as otherwise provided in the Plan, or in any contract,
instrument, release, or other agreement or document entered into in connection
with the Plan, the Debtors shall assume (and assign, as the case may be) each
of the executory contracts and unexpired leases listed on Plan Exhibit G. Any
monetary amounts by which each executory contract and unexpired lease to be
assumed under the Plan may be in default shall be satisfied, under section
365(b)(1) of the Bankruptcy Code, by Cure on the Effective Date or as soon
thereafter as practicable. In the event of a dispute regarding (i) the nature
or amount of any Cure, (ii) the ability of the Debtors or any assignee of the
Debtors 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 (iii) any other matter pertaining to assumption or assignment,
Cure shall occur following the entry of a Final Order resolving the dispute and
approving the assumption and, as the case may be, assignment. The Confirmation
Order shall constitute an order of the Court approving the assumptions (as
assignments, as the case may be) described in this Article X.C, pursuant to
section 365 of the Bankruptcy Code, as of the Effective Date.
D. Pension Plan
The Pension Plan shall be assumed pursuant to Bankruptcy Code
sections 365(a) and 1123(b)(2), to the extent it is executory. The Plan does
not purport to release or affect any causes of action pursuant to ERISA
concerning the Pension Plan, the Employee Stock Ownership Plan of Stone &
Webster, Incorporated and Participating Subsidiaries, the Group Life Insurance
and Spouses Insurance Plan of Stone & Webster and the Employee Investment Plan
of Stone & Webster Incorporated and Participating Subsidiaries, or limit any
potential claim of the Secretary of Labor, United States Department of Labor,
pursuant to the stipulated agreement between SWINC and the Secretary of Labor,
United States Department of Labor, filed by the Debtors on or about February
26, 2002.
E. Indemnification Obligations
Except as otherwise provided in the Plan, or in any contract,
instrument, release, or other agreement or document entered into in connection
with the Plan, any and all indemnification obligations that the Debtors have
pursuant to a contract, instrument, agreement, certificate of
60
incorporation, by-law, comparable organizational document or any other document
or applicable law shall be rejected as of the Effective Date of the Plan, to
the extent executory.
ARTICLE XI
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT AND UNLIQUIDATED CLAIMS
AND DISPUTED INTERESTS
A. Claims Objection Deadlines; Prosecution of Objections
1. SWINC Claims Objection Deadline
Except as otherwise provided in the Plan or any contract,
instrument or other agreement created in connection with the Plan, no later
than the SWINC Claims Objection Deadline (unless extended by an order of the
Court), the SWINC Plan Administrator shall have the exclusive authority to file
objections to Claims against or Interests in SWINC with the Court and serve
such objections upon the holders of each of the Claims or Interests to which
objections are made. Nothing contained herein, however, shall limit the right
of the SWINC Plan Administrator to object to Claims against or Interests in the
Consolidated SWINC Estate, if any, filed, amended or reclassified after the
SWINC Claims Objection Deadline. Subject to the limitations set forth in the
SWINC Plan Administrator Agreement and Article VII.K..6 of this Plan, the SWINC
Plan Administrator shall be authorized to, and shall, resolve all Disputed
Claims against or Disputed Interests in SWINC by withdrawing or settling such
objections thereto, or by litigating to judgment in the Court or such other
court having jurisdiction the validity, nature and/or amount thereof.
2. SWE&C Claims Objection Deadline
Except as otherwise provided in the Plan or any contract,
instrument or other agreement created in connection with the Plan, no later
than the SWE&C Claims Objection Deadline (unless extended by an order of the
Court), the SWE&C Liquidating Trustee shall have the exclusive authority to
file objections to Claims against or Interests in SWE&C with the Court and
serve such objections upon the holders of each of the Claims against or
Interests in the Consolidated SWE&C Estate to which objections are made.
Nothing contained herein, however, shall limit the right of the SWE&C
Liquidating Trustee to object to Claims against or Interests in SWE&C, if any,
filed or amended after the SWE&C Claims Objection Deadline. Subject to the
limitations set forth in the SWE&C Liquidating Trust Agreement and Article
VII.N of this Plan, the SWE&C Liquidating Trustee shall be authorized to, and
shall, resolve all Disputed Claims against or Disputed Interests in SWE&C by
withdrawing or settling such objections thereto, or by litigating to judgment
in the Court or such other court having jurisdiction the validity, nature
and/or amount thereof.
B. No Distributions Pending Allowance
Notwithstanding any other provision of the Plan, no payments or
distributions shall be made with respect to all or any portion of a Disputed
Claim or Disputed Interest unless and until all objections to such Disputed
Claim or Disputed Interest have been settled or withdrawn or have been
determined by Final Order, and the Disputed Claim or the Disputed Interest, or
some portion thereof, has become an Allowed Claim or Allowed Interest. All
Guaranty Claims are deemed Disputed Claims until the amount of any deficiency
in payment by the primary obligor is fixed and determined and no distribution
will be made on a Guaranty Claim until the holder of such claim has received
the entire payment or distribution that it will receive from the primary
obligor.
61
C. Reserves
On the Effective Date or as soon thereafter as practicable, the
following Reserves will be established and funded:
1. General Administrative Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a General Administrative Claims Reserve in the amount of
$11.1 million, to be used to pay under the Plan Allowed General Administrative
Claims, including General Professional Fee Claims. In the event that any Cash
remains in the General Administrative Claims Reserve after the payment in full
of General Administrative Claims, such amount shall be distributed 50% to the
SWINC Disputed Claims Reserve and 50% to the SWE&C Disputed Claims Reserve.
2. The SWINC Professional Fee Reserve
On the Effective Date, there shall be created and
funded with Cash, the SWINC Professional Fee Reserve in the amount of $2
million to be used to pay Allowed Professional Fee Claims held by (i) counsel
and any advisers to the Equity Committee and (ii) any professionals working
exclusively on behalf of SWINC or any SWINC Subsidiary. In the event that any
Cash remains in the SWINC Professional Fee Reserve after payment of the Allowed
SWINC Professional Fee Claims, such Cash shall be distributed to the SWINC
Disputed Claims Reserve.
3. SWINC Operating Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWINC Operating Reserve in the amount of $3 million, which
amount shall be used to pay the administrative and other costs and expenses
associated with the Consolidated SWINC Estate, including all fees and expenses
of the SWINC Plan Administrator, and its professionals. In the event that Cash
in the SWINC Operating Reserve is exhausted, the SWINC Plan Administrator, in
his or her sole discretion, has the right to obtain such additional Cash from
the SWINC Disputed Claims Reserve so as to replenish the SWINC Operating
Reserve. In the event that any Cash remains in the SWINC Operating Reserve
after the final resolution of all Claims Against of Interests in the
Consolidated SWINC Estate, such Cash shall be distributed to the SWINC Disputed
Claims Reserve for distributions under the Plan.
4. The SWINC Disputed Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWINC Disputed Claims Reserve from Cash in the amount of
$44.5 million, which amount will be used to pay (i) the holders of Allowed
Class 4A SWINC Convenience Claims in full, (ii) the holders of Allowed Class 5A
SWINC General Unsecured Claims their Pro Rata share of the Disputed Claims
Reserve until all such Claims are paid in full, (iii) the holders of Allowed
Class 7A SWINC Subordinated Claims their Pro Rate Share of the Disputed Claims
Reserve remaining after holders in Class 4A and Class 5A have been paid in
full, and (iv) the holders of Allowed Class 8A SWINC Securities Claims and
Allowed Class 9A SWINC Equity Interests their Pro Rata share of the Disputed
Claims Reserve remaining after holders in Allowed Class 7A SWINC Subordinated
Claims have been paid in full. The SWINC Disputed Claims Reserve shall be
supplemented from time to time with Cash or other property received by the
SWINC Plan Administrator from recoveries on claims or causes of action,
dispositions of property or receipt of unused funds in Reserves distributable
to the SWINC Disputed Claim Reserve.
62
5. The SWE&C Professional Fee Reserve
On the Effective Date, there shall be created and
funded with Cash, the SWE&C Professional Fee Reserve in the amount of $1.5
million to be used to pay Allowed SWE&C Professional Fee Claims held by (i)
counsel and any advisers to the Creditors' Committee and (ii) any professionals
working exclusively on behalf of SWE&C or any SWE&C Subsidiary. In the event
that any Cash remains in the SWE&C Professional Fee Reserve after payment of
all Allowed SWE&C Professional Fee Claims, such Cash shall be distributed to
the SWE&C Disputed Claims Reserve.
6. SWE&C Operating Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWE&C Operating Reserve in the amount of $3 million, which
amount shall be used to pay the administrative and other costs and expenses
associated with the Consolidated SWE&C Estate, including all fees and expenses
of the SWE&C Liquidating Trustee, and its professionals. In the event that Cash
in the SWE&C Operating Reserve is exhausted, the SWE&C Liquidating Trustee, in
his or her sole discretion, has the right to obtain such additional Cash from
the SWE&C Disputed Claims Reserve so as to replenish the SWE&C Operating
Reserve. In the event that any Cash remains in the SWE&C Operating Reserve
after the final resolution of all Claims Against of Interests in the
Consolidated SWE&C Estate, such Cash shall be distributed to the SWE&C Disputed
Claims Reserve for distributions under the Plan.
7. The SWE&C Disputed Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWE&C Disputed Claims Reserve in the amount of $5.2
million, which amount will be used as follows: (i) first, to pay the holders of
Allowed Class 4B SWE&C Convenience Claims in full, and (ii) second, to pay the
holders of Allowed Class 5B SWE&C General Unsecured Claims their Pro Rata share
of the SWE&C Disputed Claims Reserve until all such Claims are paid in full.
The SWE&C Disputed Claims Reserve shall be supplemented from time to time with
Cash and other property received by the SWE&C Liquidating Trustee from
recoveries on claims or causes of action, dispositions of property, the receipt
of unused funds from Reserves established under the Plan and distributable to
the SWE&C Disputed Claims Reserve.
D. Distributions After Allowance
The SWINC Disbursing Agent and the SWE&C Liquidating Trust Disbursing
Agent shall make payments and distributions from the appropriate Reserves to
the holder of any Disputed Claim that has become an Allowed Claim or Allowed
Interest, on the first Semi-Annual Distribution Date following the date that
such Disputed Claim becomes an Allowed Claim. Such distributions shall be made
in accordance with the Plan, the SWINC Plan Administrator Agreement and the
SWE&C Liquidating Trust Agreement, as the case may be.
ARTICLE XII
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Conditions to Confirmation
The following are conditions precedent to the occurrence of the
Confirmation Date: (a) the entry of an order finding that the Disclosure
Statement contains adequate information within the
63
meaning of section 1125 of the Bankruptcy Code and (b) the proposed
Confirmation Order shall be in a form and substance reasonably acceptable to
the Plan Proponents.
B. Conditions to Effective Date
The following are conditions precedent to the occurrence of the
Effective Date, each of which must be satisfied or waived in accordance with
Article XII.C of this Plan:
1. The Confirmation Order shall have been entered and become
a Final Order in form and substance reasonably satisfactory to the Debtors
and shall:
(A) authorize and direct the Debtors to take all actions
necessary or appropriate to enter into, implement, and consummate the
instruments, releases, and other agreements or documents created in connection
with the Plan;
(B) authorize the issuance of Reorganized SWINC New Common
Stock, Reorganized SWINC New Series A Preferred Stock and Reorganized SWINC New
Series B Preferred Stock; and
(C) provide that the Reorganized SWINC New Common Stock, the
Reorganized SWINC New Series A Preferred Stock and the Reorganized SWINC New
Series B Preferred Stock issued under the Plan are exempt from registration
under the Securities Act 1933, as amended, pursuant to Section 4(2) of the
Securities Act.
2. All Plan Exhibits shall be in form and substance reasonably
acceptable to the Plan Proponents and shall have been executed and delivered.
3. All actions, documents and agreements necessary to implement
the Plan shall have been effectuated or executed.
C. Waiver of Conditions
Each of the conditions set forth in Articles XII.A and XII.B of the
Plan, may be waived in whole or in part by the Debtors, without any other
notice to parties in interest or the Court and without a hearing. The failure
to satisfy or waive any condition to the Confirmation or the Effective Date may
be asserted by the Debtors or Reorganized SWINC regardless of the circumstances
giving rise to the failure of such condition to be satisfied (including any
action or inaction by the Debtors or Reorganized SWINC). The failure of the
Debtors or Reorganized SWINC to exercise any of the foregoing rights shall not
be deemed a waiver of any other rights, and each such right shall be deemed an
ongoing right that may be asserted at any time.
ARTICLE XIII
EFFECT OF PLAN CONFIRMATION
A. Binding Effect
The Plan shall be binding upon and inure to the benefit of the
Debtors, all present and former holders of Claims and Interests, and their
respective successors and assigns.
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B. Releases
1. Releases by the Debtors
A. On the Effective Date, each of the Debtors shall release
unconditionally (i) the SWE&C Liquidating Trustee, (ii) the SWE&C Liquidating
Trust Disbursing Agent, (iii) the SWINC Disbursing Agent, (iv) the SWINC Plan
Administrator, (v) their respective directors and officers, advisors,
accountants, investment bankers, consultants, and attorneys and (vi) the
respective advisors, accountants, investment bankers, and attorneys of any of
the foregoing, solely in their respective capacities as such, from any and all
claims, obligations, suits, judgments, damages, rights, causes of action and
liabilities whatsoever (other than the right to enforce the performance of
their respective obligations, if any, to the Debtors or Reorganized SWINC under
the Plan and the contracts, instruments, releases and other agreements
delivered under the Plan), whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen,
then existing or thereafter arising, in law, equity or otherwise that are based
in whole or in part on any act or omission, transaction, event or other
occurrence taking place on or after the Petition Date and prior to or on the
Effective Date and in any way relating to the Debtors, the Chapter 11 Cases,
the Plan or the Disclosure Statement.
B. On the Effective Date, each of the Debtors and their Estates shall
release unconditionally those present and former directors, which directors
served only as directors and not as officers of any of the Debtors, in their
respective capacities as such, from any and all claims, obligations, suits,
judgments, damages, rights, causes of action and liabilities whatsoever (other
than the right to enforce the performance of their respective obligations, if
any, to the Debtors or Reorganized SWINC under the Plan and the contracts,
instruments, releases and other agreements delivered under the Plan), whether
liquidated or unliquidated, fixed or contingent, matured or unmatured, known or
unknown, foreseen or unforeseen, then existing or thereafter arising, in law,
equity or otherwise that are based in whole or in part on any act or omission,
transaction, event or other occurrence taking place prior to or on the
Effective Date that could have been asserted by or on behalf of any of the
Debtors or their Estates against such current and former directors.
2. Releases by Holders of Claims and Interests
On the Effective Date, to the fullest extent
permissible under applicable law, as such law may be extended or interpreted
subsequent to the Effective Date, in consideration for the obligations of the
Debtors and Reorganized SWINC under the Plan and the Cash and other contracts,
instruments, releases, agreements or documents to be delivered in connection
with the Plan, each entity (other than a Debtor) that has held, holds or may
hold a Claim or Interest (except for holders of Asbestos Claims), as
applicable, will be deemed to forever release, waive and discharge all claims,
demands, debts, rights, causes of action or liabilities (other than the right
to enforce the Debtors' or Reorganized SWINC's obligations under the Plan and
the contracts, instruments, releases, agreements and documents delivered under
the Plan), whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or
thereafter arising, in law, equity or otherwise that are based in whole or in
part on any act or omission, transaction, event or other occurrence taking
place at any time on or prior to the Effective Date in any way relating to the
Debtors, the Chapter 11 Cases, the Plan or the Disclosure Statement that such
entity has, had or may have against (i) the Debtors, and, solely in their
respective capacities as such.(ii) the SWE&C Liquidating Trustee, (iii) the
SWE&C Liquidating Trust Disbursing Agent, (iv) the SWINC Disbursing Agent, (v)
and the SWINC Plan Administrator; provided, however, that the Plan does not
release or otherwise affect any pre or post Effective Date Claim, except as to
the Debtors, that any person may have against the fiduciaries of the Pension
Plan, the Employee Stock Ownership Plan of Stone &
65
Webster, Incorporated and Participating Subsidiaries, the Group Life Insurance
and Spouses Insurance Plan of Stone & Webster or the Employee Investment Plan
of Stone & Webster Incorporated and Participating Subsidiaries.
3. Injunction Related to Releases
The Confirmation Order will permanently enjoin the
commencement or prosecution by any entity, whether directly, derivatively or
otherwise, of any claims, obligations, suits, judgments, damages, demands,
debts, rights, causes of action or liabilities released pursuant to the Plan,
including, but not limited to the claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action or liabilities released in
this Article XIII.B, provided, however, that the Plan does not release or
otherwise affect any pre or post Effective Date Claim, except as to the
Debtors, that any person may have against the fiduciaries of the Pension Plan,
the Employee Stock Ownership Plan of Stone & Webster, Incorporated and
Participating Subsidiaries, the Group Life Insurance and Spouses Insurance Plan
of Stone & Webster or the Employee Investment Plan of Stone & Webster
Incorporated and Participating Subsidiaries.
C. Discharge of Claims and Termination of Interests
Pursuant to section 1141(d)(1) of the Bankruptcy Code, Confirmation
will discharge Claims against and Interests in SWINC and the SWINC Subsidiaries
and no holder of a Claim against or Interest in SWINC or the SWINC Subsidiaries
may, on account of such Claim or Interest, seek or receive any payment or other
distribution from, or seek recourse against Reorganized SWINC, SWINC, the SWINC
Subsidiaries, their respective successors or their respective property, except
as expressly provided herein.
Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation
will not discharge Claims against SWE&C and the SWE&C Subsidiaries; provided,
however, that no holder of a Claim against or Interest in SWE&C or the SWE&C
Subsidiaries may, on account of such Claim or Interest, seek or receive any
payment or other distribution from, or seek recourse against, SWE&C, the SWE&C
Subsidiaries, the Consolidated SWE&C Estate, their respective successors or
their respective property, except as expressly provided herein.
D. Exculpation and Limitation of Liability
Neither the Debtors nor any of their respective present or former
officers and directors (who were officers and directors on the Petition Date),
advisors or attorneys, shall have or incur any liability to, or be subject to
any right of action by, any holder of a Claim or an Interest, or any other
party in interest, or any of their respective agents, shareholders, employees,
representatives, financial advisors, attorneys or affiliates, or any of their
successors or assigns, for any act or omission occurring on or after the
Petition Date in connection with, relating to, or arising out of, the Debtors'
Chapter 11 Cases, the pursuit of confirmation of the Plan, the consummation of
the Plan or the administration of the Plan or the property to be distributed
under the Plan, except for their willful misconduct or gross negligence and
except with respect to any claim against a fiduciary of the Pension Plan, the
Employee Stock Ownership Plan of Stone & Webster, Incorporated and
Participating Subsidiaries, the Group Life Insurance and Spouses Insurance Plan
of Stone & Webster or the Employee Investment Plan of Stone & Webster
Incorporated and Participating Subsidiaries with respect to the Pension Plan or
such other plan, and in all respects shall be entitled to rely reasonably upon
the advice of counsel with respect to their duties and responsibilities under
the Plan, provided, however, that the Plan does not release or otherwise affect
any pre or post Effective Date Claim, except as to the Debtors, that any person
may have against the fiduciaries of the Pension Plan, the Employee Stock
Ownership Plan of Stone &
66
Webster, Incorporated and Participating Subsidiaries, the Group Life Insurance
and Spouses Insurance Plan of Stone & Webster or the Employee Investment Plan
of Stone & Webster Incorporated and Participating Subsidiaries.
E. Injunction
Except as otherwise provided in the Plan or the Confirmation Order, as
of the Confirmation Date, all entities that have held, hold or may hold a Claim
or other debt or liability against SWINC, a SWINC Subsidiary or the
Consolidated SWINC Estate or an Interest in SWINC or a SWINC Subsidiary or the
Consolidated SWINC Estate are (a) permanently enjoined from taking any of the
following actions against the Estate of SWINC, the Estates of the SWINC
Subsidiaries, the SWINC Plan Administrator, the Consolidated SWINC Estates,
Reorganized SWINC, or any of their property on account of any such Claims or
Interests and (b) preliminarily enjoined from taking any of the following
actions against SWINC, a SWINC Subsidiary, the Consolidated SWINC Estate,
Reorganized SWINC, or their property on account of such Claims or Interests:
(i) commencing or continuing, in any manner or in any place, any action or
other proceeding; (ii) enforcing attaching, collecting or recovering in any
manner any judgment, award, decree or order; (iii) creating, perfecting or
enforcing any lien or encumbrance; (iv) asserting a setoff, right of
subrogation or recoupment of any kind against any debt, liability or obligation
due to the SWINC or the SWINC Subsidiaries; and (v) commencing or continuing,
in any manner or in any place, any action that does not comply with or is
inconsistent with the provisions of the Plan; provided, however, that nothing
contained herein shall preclude such persons from exercising their rights
pursuant to and consistent with the terms of the Plan, and provided, further,
however, that the Plan does not release or otherwise affect any pre or post
Effective Date Claim, except as to the Debtors, that any person may have
against the fiduciaries of the Pension Plan, the Employee Stock Ownership Plan
of Stone & Webster, Incorporated and Participating Subsidiaries, the Group Life
Insurance and Spouses Insurance Plan of Stone & Webster or the Employee
Investment Plan of Stone & Webster Incorporated and Participating Subsidiaries.
Except as otherwise provided in the Plan or the Confirmation
Order, as of the Confirmation Date, all entities that have held, hold or may
hold a Claim or other debt or liability against SWE&C or the SWE&C Subsidiaries
or an Interest in SWE&C or the SWE&C Subsidiaries are (a) permanently enjoined
from taking any of the following actions against the Estate of SWE&C, the
Estates of the SWE&C Subsidiaries, the SWE&C Liquidating Trustee, or any of
their property on account of any such Claims or Interests and (b) preliminarily
enjoined from taking any of the following actions against SWE&C, the SWE&C
Subsidiaries or their property on account of such Claims or Interests: (i)
commencing or continuing, in any manner or in any place, any action or other
proceeding; (ii) enforcing attaching, collecting or recovering in any manner
any judgment, award, decree or order; (iii) creating, perfecting or enforcing
any lien or encumbrance; (iv) asserting a setoff, right of subrogation or
recoupment of any kind against any debt, liability or obligation due to the
SWE&C or the SWE&C Subsidiaries; and (v) commencing or continuing, in any
manner or in any place, any action that does not comply with or is inconsistent
with the provisions of the Plan; provided, however, that nothing contained
herein shall preclude such persons from exercising their rights pursuant to and
consistent with the terms of the Plan, and provided, further, however, that the
Plan does not release or otherwise affect any pre or post Effective Date Claim,
except as to the Debtors, that any person may have against the fiduciaries of
the Pension Plan, the Employee Stock Ownership Plan of Stone & Webster,
Incorporated and Participating Subsidiaries, the Group Life Insurance and
Spouses Insurance Plan of Stone & Webster or the Employee Investment Plan of
Stone & Webster Incorporated and Participating Subsidiaries.
67
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
this Article XI.E.
F. Satisfaction of Subordination Rights
Nothing in this Plan shall affect any rights and claims between or
among Claimholders relating in any manner whatsoever to distributions on
account of Claims against or Interests in the Debtors, based upon any
subordination rights, whether asserted or unasserted, legal or equitable.
Distributions to the various Classes of Claims and Interests hereunder shall
not be subject to levy, garnishment, attachment, or like legal process by any
Claimholder or Interestholder by reason of any subordination rights or
otherwise, so that each Claimholder and Interest holder shall have and receive,
the benefit of the distributions in the manner set forth in the Plan, any
beneficiary of such subordination rights shall have no claim or cause of action
against the Debtors, the SWINC Plan Administrator, the SWE&C Liquidating
Trustee or any Cash or property to be distributed under the Plan and must
assert such subordination rights directly against Claimholders or
Interestholders subject to such subordination rights.
G. Compromises and Settlements
1. Settlement Authority
Pursuant to Bankruptcy Rule 9019(a), the Debtors may
compromise and settle various Claims against them and/or claims that they may
have against other Persons. The Debtors expressly reserve the right (with Court
approval, following appropriate notice and opportunity for a hearing) to
compromise and settle Claims against them and claims that they may have against
other Persons up to and including the Effective Date. After the Effective Date,
such right shall pass to (i) the SWINC Plan Administrator pursuant to Articles
VII.K of the Plan, or (ii) the SWE&C Liquidating Trustee pursuant to Articles
VII.N of the Plan.
2. Substantive Consolidation
To avoid continued litigation with respect to Substantive
Consolidation and related issues regarding the Pension Plan Reversion, the
Proponents propose the Plan, which provides, among other things, that upon the
Effective Date, two separate consolidated estates will be created.
(a) The Substantive Consolidation of SWINC and the
SWINC Subsidiaries
On the Effective Date, the Estates of SWINC and the
SWINC Subsidiaries shall be substantively consolidated as follows: (i) the
SWINC Subsidiaries shall be merged with and into SWINC, with the surviving
corporation being Reorganized SWINC, (ii) all Intercompany Claims by, between
and among SWINC and the SWINC Subsidiaries shall be forgiven and eliminated,
(iii) all assets and liabilities of the SWINC Subsidiaries shall be merged or
treated as if they were merged with the assets and liabilities of SWINC, (iv)
any obligation of SWINC or one of the SWINC Subsidiaries and all guarantees
thereof by SWINC or one of the SWINC Subsidiaries shall be deemed to be one
obligation of SWINC, and (v) each Claim filed, or to be filed or allocated
against SWINC or a SWINC Subsidiary shall be deemed filed only against SWINC
and shall be deemed a single Claim against and a single obligation of SWINC. On
the Effective Date, and in accordance with the terms of the Plan and the
consolidation of the assets and liabilities of SWINC and the SWINC
Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWINC or the SWINC Subsidiaries as
68
to the obligations of SWINC or one of the SWINC Subsidiaries shall be released
and of no further force and effect.
(b) The Substantive Consolidation of SWE&C and the
SWE&C Subsidiaries
The Plan contemplates and is also predicated upon the
substantive consolidation of the Estates of SWE&C and the SWE&C Subsidiaries
for the purposes of all actions associated with confirmation and consummation
of the Plan. On the Effective Date, the Estates of SWE&C and the SWE&C
Subsidiaries shall be substantively consolidated as follows: (i) all assets and
liabilities of the SWE&C Subsidiaries shall be merged or treated as if they
were merged with the assets and liabilities of SWE&C, (ii) all Intercompany
Claims by, between and among SWE&C and the SWE&C Subsidiaries shall be forgiven
and eliminated, (iii) any obligation of SWE&C or one of the SWE&C Subsidiaries
and all guarantees thereof by SWE&C or one of the SWE&C Subsidiaries shall be
deemed to be one obligation of SWE&C, (iv) each Claim filed, or to be filed or
allocated against SWE&C and/or a SWE&C Subsidiary shall be deemed filed only
against SWE&C and shall be deemed a single Claim against and a single
obligation of SWE&C, and (v) all Interests in SWE&C or any SWE&C Subsidiary
shall be cancelled and the holders thereof shall not be entitled to any
distribution. On the Effective Date, and in accordance with the terms of the
Plan and the consolidation of the assets and liabilities of SWE&C and the SWE&C
Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWE&C or one of the SWE&C Subsidiaries as to the
obligations of SWE&C or one of the SWE&C Subsidiaries shall be released and of
no further force and effect.
(c) The Pension Plan Reversion
Pursuant to Bankruptcy Rule 9019 under the Plan and as
part of the Substantive Consolidation Settlement, the Proponents also propose
to settle certain disputes regarding the potential reversionary interest
associated with the overfunded Pension Plan. Specifically, the Debtors believe
that the Pension Plan is presently overfunded and that upon termination of the
Pension Plan in a state law dissolution of Reorganized SWINC, funds in excess
of $30 million net of taxes, after all liabilities of the Pension Plan to
Pension Plan participants have been satisfied, will revert to the Debtors'
estates and become available for distribution to holders of Claims and
Interests. As part of the Substantive Consolidation Litigation, the Equity
Committee has asserted that holders of Claims against and Interests in SWINC
are entitled to the entire amount of the Reversion because SWINC is legal
sponsor of the Pension Plan and thus has sole ownership of any Reversion. In
response, the Creditors' Committee has asserted that the Reversion should be
available to pay the holders of Claims against SWE&C and the SWE&C Subsidiaries
and only after that would a distribution be made to holders of Equity Interests
in SWINC because, among other things, the contributions to such Pension Plan
were made primarily by employees of SWE&C on behalf of its employee. To avoid
further litigation as to the Reversion, and as part of the Substantive
Consolidation and Federal Settlement, the Proponents propose to settle all
disputes regarding the Pension Plan and the Reversion as follows:
1. In the event Class 9A SWINC Equity Interests votes to
accept the Plan, the Reversion from the Pension Plan
will be distributed as follows: (i) two-thirds (2/3)
of the Reversion's first $30 million to the
Consolidated SWINC Estate; (ii) one-third (1/3) of the
Reversion's first $30 million to the Consolidated
SWE&C Estate; and (iii) if the Reversion exceeds $30
million, an equal
69
distribution between the Consolidated SWE&C Estate and
the Consolidated SWINC Estate of any Reversion in
excess of $30 million.
2. In the event Class 9A SWINC Equity Interests votes to
reject the Plan, the Reversion from the Pension Plan
will be distributed as follows: (i) two-thirds of the
Reversion's first $30 million to the Consolidated
SWINC Estate; (ii) one-third of the Reversion's first
$30 million to the Consolidated SWE&C Estate; and
(iii) if the Reversion exceeds $30 million, a
distribution of seventy-five percent (75%) of any
Reversion in excess of $30 million to the Consolidated
SWE&C Estate and twenty-five percent (25%) of any
Reversion in excess of $30 million to the Consolidated
SWINC Estate.
The Proponents believe that such a settlement is fair and
equitable because, among other things, (i) prior to SWINC becoming the sole
legal sponsor of the Pension Plan, each then individual Debtor was a sponsor
and (ii) even after SWINC became the legal sponsor, the overfunded Pension Plan
was carried on the books and records of SWEC and (iii) Mercer Human Resources
Consulting reported on a nonconsolidated basis by operating unit of the Debtors
with respect to Pension Plan expenses and assets in addition to reporting on a
consolidated basis at the SWINC level in accordance with general accepted
accounting principles.
3. The Federal Settlement
As part of the Plan, the Proponents also propose a settlement
of various claims filed by Federal. Specifically, Federal initially filed
numerous proofs of claim in the Bankruptcy Cases in the amount of
$371,505,215.90, of which $55,208,965.23 was ultimately liquidated. The balance
of $316,296,205.69 represents unliquidated claims asserted by Federal against,
among others, SWINC and SWEC. In addition to asserting claims against each of
the primary obligors, Federal also asserted a Claim directly against SWINC
pursuant to certain General Indemnity Agreements executed between Federal and
SWINC. A significant portion of the Federal Liquidated Claim, in the amount of
$44 million, arises in connection with Federal's payment under certain Payment
and Performance Bonds between SWE&C and Federal related to Maine Yankee.
Originally, Federal supported the Equity Committee Plan and
opposed the Substantive Consolidation proposed by the Creditors' Committee.
Subsequent to the Initial Disclosure Statement Hearing, the Debtors reached an
agreement with Federal regarding Substantive Consolidation and the Federal
Claims, a settlement that also provides an opportunity for Class 9A SWINC
Equity Interests to receive an immediate Cash payment of $0.50 per share. The
Federal Settlement includes a settlement of the Lumbermens Claim, which claim
exceeds $6 million. The Lumbermens Claim means proof of claim no. 5179 filed by
Lumbermens relating to losses suffered by Lumbermens solely in connection with
surety bonds, which claim amended and superseded proofs of claim nos. 3300 and
4491. The Federal Settlement resolves only the Lumbermens Claim and does not
include any other proof of claim filed by Lumbermens. The Federal Settlement is
contingent upon confirmation of the Plan, and will be binding on all interested
parties upon approval of the Plan, and absent the Federal Settlement, certain
individual Debtors, including SWINC and SWEC could be liable to Federal in an
amount that exceeds $80 million.
The principal terms of the Federal Settlement are as follows:
o Federal will hold an Allowed Federal Claim in the
amount of $52,113,000 against both the Consolidated
SWINC Estate and the Consolidated SWE&C
70
Estate and will be permitted to vote such Allowed
Federal Claims as both an Allowed Class 5A Claim and
an Allowed Class 5B Claim.
o In addition, Chubb Canada will receive a distribution
of the Canadian Cash, which Cash shall be held in
trust by Chubb Canada for its use in defending,
settling or otherwise resolving the Isobord
Litigation. Any Canadian Cash remaining at the
conclusion of the Isobord Litigation shall be paid
over to the SWE&C Liquidating Trustee to be
distributed in accordance with the Plan.
o Upon the allowance of the Federal Claims, Federal will
also release any and all Claims for subrogation or
other Claims it has or might have against the
Consolidated SWINC Estate or the Consolidated SWE&C
Estate, including but not limited to, Claims for
indemnification, contribution, reimbursement or
subrogation arising out of the Isobord Litigation in
Canada. Federal shall have complete control of the
Isobord Litigation, with complete authority to settle
or otherwise resolve the Isobord Litigation without
the consent or participation of any of the Debtors.
While Federal will waive any Claim against the
Consolidated SWINC and SWE&C Estates in connection
with the Isobord Litigation, Federal is not agreeing
to indemnify SWINC or any other of the Debtors from
liability in connection with the Isobord Facility.
Furthermore, Federal is also not waiving any of its
rights or defenses as surety, either in law, in equity
or under the bonds that it might have against Isobord
with respect to the Isobord Facility or any related
contract, but in no event will the Allowed Federal
Claim exceed $52,113,000 because of the Isobord
Litigation.
o In addition, the SWE&C Liquidating Trustee will issue
to Federal the Federal Note in the amount of $1.8
million in full satisfaction, settlement, release and
discharge of the Class 5B Allowed Federal Claim
against SWE&C, which Federal Note shall be deemed
satisfied and cancelled upon payment in full of the
Class 5A Allowed Federal Claim by the Consolidated
SWINC Estate. In the event that the Class 5A Allowed
Federal Claim is not paid in full, the SWE&C
Liquidating Trustee shall pay Federal cash in the face
amount of the Federal Note or such Lesser amount as is
necessary for Federal to receive full payment in the
amount of $52,113,000 on the Allowed Federal Claims.
o Finally, if Class 9A SWINC Equity Interests vote to
accept the Plan, SWINC shall make the Initial Federal
Distribution to Federal on account of the Allowed
Federal Claim in Class 5A out of which Federal will
distribute, in a manner acceptable to Federal, an
amount equal to $0.50 per share of Old Securities
voting to accept the Plan, which amount cannot exceed
$7,113,000, to the Equity Settlement Fund. On the
Effective Date or as soon thereafter as practicable,
the Cash in the Equity Settlement Fund shall be
distributed to holders of Allowed Class 9A SWINC
Equity Interests that voted to accept the Plan.
Federal will have no right to recoup from either the
Consolidated SWINC Estate or the Consolidated SWE&C
Estate any portion of the payment made to the Equity
Settlement Fund, and the Initial Federal Distribution
shall count towards the payment of the Allowed Federal
Claim in Class 5A for purposes of determining the
SWE&C Liquidating Trustee's liability on the Federal
Note.
71
o In the event Class 9A does not vote to accept the
Plan, Federal will retain all rights against the
Consolidated SWINC Estate on the Allowed Federal Claim
in Class 5A in the amount of $52,113,000 for
distribution purposes.
ARTICLE XIV
RETENTION OF JURISDICTION
Pursuant to sections 105(a) and 1142 of the Bankruptcy Code and
notwithstanding entry of the Confirmation Order and the occurrence of the
Effective Date, the Court will retain exclusive jurisdiction over all matters
arising out of, and related to, the Chapter 11 Cases and the Plan to the
fullest extent permitted by law, including, among other things, jurisdiction
to:
(i) Allow, disallow, determine, liquidate,
classify, estimate or establish the priority or secured or unsecured
status of any Claim or Interest, including the resolution of any
request for payment of any Administrative Claim and the resolution of
any objections to the allowance or priority of Claims or Interests;
(ii) Hear and determine all suits or adversary
proceedings to recover assets of the Debtors and property of their
Estates, wherever located;
(iii) Hear and determine all matters related to
the assumption, assumption and assignment, or rejection of any
executory contract or unexpired lease to which any Debtor may be
liable, including, if necessary, the nature or amount of any required
Cure of the liquidation or allowance of any Claims arising therefrom;
(iv) Ensure that distributions to holders of
Allowed Claims and Allowed Interests are accomplished pursuant to the
provisions of the Plan;
(v) Hear and determine any and all adversary
proceedings, motions, applications, and contested or litigated matters
arising out of, under, or related to, the Chapter 11 Cases;
(vi) Enter such orders as may be necessary or
appropriate to execute, implement or consummate the provisions of the
Plan and all contracts, instruments, releases and other agreements or
documents created in connection with the Plan, the Disclosure
Statement or the Confirmation Order;
(vii) 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 executed or created
pursuant to the Plan, or any entity's rights arising from or
obligations incurred in connection with the Plan or such documents;
(viii) Consider any modifications of the Plan,
cure any defect or omission, or reconcile any inconsistency in any
order of the Court including, without limitation, the Confirmation
Order;
(ix) Hear and determine all applications for
compensation and reimbursement of expenses of Professionals under the
Plan or under sections 330, 331 503(b), 1103 and 1129(a)(4) of the
Bankruptcy Code, provided, however,
72
that from and after the Effective Date the payment of fees and
expenses of the Professionals of Reorganized SWINC shall be made in
the ordinary course of business and shall not be subject to the
approval of the Court;
(x) Issue injunctions, 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;
(xi) Hear and determine matters concerning state,
local and federal taxes in accordance with sections 346, 505 and 1146
of the Bankruptcy Code;
(xii) 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;
(xiii) Enforce all orders, judgments,
injunctions, releases, exculpations, indemnifications and rulings
entered in connection with the Chapter 11 Cases;
(xiv) Hear and determine all disputes or other
matters arising in connection with the interpretation, implementation
or enforcement of the Asset Purchase Agreement and the Sale Order;
(xv) Hear and determine disputes with respect to
compensation of the SWE&C Liquidating Trustee and his professional
advisors;
(xvi) Hear and determine disputes with respect to
compensation of the SWINC Plan Administrator and his professional
advisors;
(xvii) Hear and determine such other matters as
may be provided in the Confirmation Order or as may be authorized
under, or not inconsistent with, provisions of the Bankruptcy Code;
and
(xviii)Enter a final decree closing the Chapter
11 Cases.
ARTICLE XV
MISCELLANEOUS PROVISIONS
A. Bar Dates for Certain Claims
1. Administrative Claims Bar Date
The Confirmation Order will establish an
Administrative Claims Bar Date for filing Administrative Claims, which date
shall be sixty (60) days after the Confirmation Date (the "Administrative
Claims Bar Date"). Holders of asserted Administrative Claims, except for
Professional Fee Claims, not paid prior to the Effective Date shall submit
requests for payment of Administrative Claim on or before such Administrative
Claims Bar Date or forever be barred from doing so. The notice of the Effective
Date to be delivered pursuant to Bankruptcy Rules 3020(c) and
73
2002(f) will set forth such date and constitute notice of this Administrative
Claims Bar Date. The Debtors, the SWINC Plan Administrator and the SWE&C
Liquidating Trustee, as the case may be, shall have ninety (90) days (or such
longer period as may be allowed by order of the Court) following the
Administrative Claims Bar Date to review and object to such Administrative
Claims.
2. Professional Fee Claims; Substantial Contribution
Claims
All Persons requesting compensation or
reimbursement of Professional Fee Claims pursuant to section 327, 328, 330,
331, 503(b) or 1103 of the Bankruptcy Code for services rendered to the
Debtors prior to the Effective Date (including requests under section
503(b)(4) of the Bankruptcy Code by any Professional or other entity for
making a substantial contribution in the Chapter 11 Cases) shall file and
serve on the SWINC Plan Administrator and the SWE&C Liquidating Trustee an
application for final allowance of compensation and reimbursement of expenses
no later than ninety (90) days after the Confirmation Date, unless otherwise
ordered by the Court (the "Professional Fee Bar Date"). Objections to
applications of such Professionals or other entities for compensation or
reimbursement of expenses must be filed and served on the SWINC Plan
Administrator, and the SWE&C Liquidating Trustee and the requesting
Professional or other entity no later than sixty (60) days after the
Professional Fee Bar Date (or such longer period as may be allowed by order of
the Court).
B. Payment of Statutory Fees
All fees payable pursuant to section 1930 of title 28 of the United
States Code, as determined by the Court at the Confirmation Hearing, shall be
paid on the Effective Date, and neither the Debtors, their Estates, the SWINC
Plan Administrator nor the SWE&C Liquidating Trustee shall thereafter be liable
for the payment of any additional fees under 28 U.S.C. ss. 1930, other than
with respect to the Chapter 11 Cases of SWINC and SWE&C.
C. Amendment or Modification of the Plan
The Plan Proponents may alter, amend, or modify the Plan or any Plan
Exhibits under section 1127(a) of the Bankruptcy Code at any time prior to the
Confirmation Hearing. After the Confirmation Date and prior to substantial
consummation of the Plan as defined in section 1101(2) of the Bankruptcy Code,
the Plan Proponents may, under section 1127(b) of the Bankruptcy Code,
institute proceedings in the Court to remedy any defect or omission or
reconcile any inconsistencies in the Plan, the Disclosure Statement, or the
Confirmation Order, and such matters as may be necessary to carry out the
purposes and effects of the Plan.
D. Severability of Plan Provisions
If, prior to the Confirmation Date, any term or provision of the Plan
is determined by the Court to be invalid, void or unenforceable, the Court, at
the request of any Debtor, will have the power to alter and interpret such term
or provision to make it valid or enforceable to the maximum extent practicable,
consistent with the original purpose of the term or provision held to be
invalid, void or unenforceable, and such term or provision will then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, 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
74
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.
E. Successors and Assigns
The rights, benefits and obligations of any entity named or referred
to in the Plan shall be binding on, and shall inure to the benefit of any heir,
executor, administrator, successor or assign of such entity.
F. Plan Supplement
Any and all exhibits, lists or schedules not filed with the Plan shall
be contained in the Plan Supplement and filed with the Clerk of the Bankruptcy
Court no later than the deadline for objection to the Plan, August 15, 2003.
Upon its filing, the Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court or its designee during normal business hours.
Claimholders and Interestholders may obtain a copy of the Plan Supplement upon
written request to Debtor in accordance with Article XIII.H of the Plan. The
Plan Proponents explicitly reserve the right to modify or make additions to or
subtractions from any schedule to the Plan and to modify any exhibit to the
Plan prior to the Confirmation Hearing.
G. Revocation, Withdrawal or Non-Consummation
The Plan Proponents reserve the right, to revoke or withdraw the Plan
at any time prior to the Confirmation Date and to file subsequent plans of
reorganization. If the Plan Proponents revoke or withdraw the Plan or if
Confirmation or Consummation does not occur, then, (i) the Plan shall be null
and void in all respects, (ii) any settlement or compromise embodied in the
Plan (including the fixing or limiting to an amount certain any Claim or Class
of Claims), assumption or rejection of executory contracts or leases affected
by the Plan, and any document or agreement executed pursuant to the Plan, shall
be deemed null and void, and (iii) nothing contained in the Plan shall (a)
constitute a waiver or release of any Claims by or against, or any Interests
in, such Debtors or any other Person, (b) prejudice in any manner the rights of
such Debtors or any other Person, or (c) constitute an admission of any sort by
the Debtors or any other Person.
H. Notice
Any notice required or permitted to be provided to the Debtors, the
Creditors' Committee or the Equity Committee, under the Plan shall be in
writing and served by (a) certified mail, return receipt requested, (b) hand
delivery, or (c) overnight delivery service, to be addressed as follows:
If to the Debtors:
STONE & WEBSTER, INCORPORATED
45 Milk Street
Boston, Massachusetts 02109
Attn: James P. Carroll
with copies to:
SKADDEN ARPS SLATE MEAGHER
75
& FLOM LLP
One Rodney Square
Wilmington, Delaware 19899-0636
Attn: Gregg M. Galardi, Esq.
Eric M. Davis, Esq.
If to Federal:
DUANE MORRIS LLP
1100 North Market Street, Suite 1200
Wilmington, Delaware 19801-1246
Attn: Michael R. Lastowski, Esq.
- and -
MANIER & HEROD
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
Attn: J. Michael Franks, Esq.
Sam H. Poteet, Jr., Esq.
Thomas T. Pennington, Esq.
If to the Creditors' Committee:
ORRICK, HERRINGTON & SUTCLIFFE LLP
666 Fifth Avenue
New York, New York 10103
Attn: Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
- and -
KLETT, ROONEY, LIEBER
& SCHORLING PC
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, Delaware 19801
Attn: Adam G. Landis, Esq.
If to the Equity Committee:
BELL, BOYD & LLOYD LLC
70 West Madison Street, Suite 3300
Chicago, IL 60602
Attn: Carmen H. Lonstein, Esq.
76
- and -
BIFFERATO, BIFFERATO & GENTILOTTI
1308 Delaware Avenue
Wilmington, Delaware 19806
Attn: Ian Connor Bifferato, Esq.
I. Governing Law
Except to the extent the Bankruptcy Code, the Bankruptcy Rules or
other federal law is applicable, or to the extent a Plan Exhibit provides
otherwise, the rights and obligations arising under this Plan shall be governed
by, and construed and enforced in accordance with, the laws of Delaware,
without giving effect to the principles of conflicts of law of such
jurisdiction.
J. Term of Injunctions or Stays
With respect to SWINC, the SWINC Subsidiaries, SWE&C and the SWE&C
Subsidiaries all injunctions or stays provided for in the Chapter 11 Cases
under section 105, 362 or 524 of the Bankruptcy Code or otherwise, and in
existence on the Confirmation Date, shall remain in full force and effect until
all property of the Estate(s) of SWINC and the SWINC Subsidiaries, SWE&C and
the SWE&C Subsidiaries has been distributed.
Dated: Wilmington, Delaware
April 22, 2003
STONE & WEBSTER, INC., et al.
Debtors and Debtors-in-Possession
By: ______________________________
Name: ____________________________
Title:____________________________
FEDERAL INSURANCE COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF STONE
& WEBSTER, INC., et al., Debtors and
Debtors-in-Possession
By:______________________________
Name:____________________________
Title:___________________________
77
____________________________________
Gregg M. Galardi (I.D. No. 2991)
Eric M. Davis (I.D. No. 3621)
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Debtors and
Debtors-in-Possession
Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
666 Fifth Avenue
New York, New York 10103
- and -
____________________________________
Adam G. Landis (I.D. No. 3407)
KLETT, ROONEY, LIEBER
& SCHORLING PC
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, Delaware 19801
Attorneys for the Official Committee
of Unsecured Creditors
J. Michael Franks
Sam H. Poteet, Jr.
Thomas T. Pennington
MANIER & HEROD
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
(615) 244-0030
-and-
______________________________________
Michael R. Lastowski (I.D. No. 3892)
78
DUANE MORRIS LLP
1100 North Market Street, Suite 1200
Wilmington, Delaware 19801-1246
(302) 657-4900
Attorneys for Federal Insurance
Company
79
TABLE OF CONTENTS
PAGE
INTRODUCTION........................................................................................1
ARTICLE I DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW............................................................1
A. Scope of Definitions; Rules of Construction..................................................1
B. Definitions..................................................................................1
C. Rules of Interpretation.....................................................................25
D. Computation of Time.........................................................................25
ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS..................................................26
A. Introduction................................................................................26
B. Summary of Unclassified Claims (not entitled to vote on the Plan)...........................26
1. General Administrative Claims...........................................................26
2. SWINC Administrative Claims.............................................................26
3. SWINC Priority Tax Claims...............................................................26
4. SWE&C Administrative Claims.............................................................26
5. SWE&C Priority Tax Claims...............................................................26
C. Summary of Classified Claims and Interests .................................................26
1. Consolidated SWINC Estate Classifications...............................................26
2. Consolidated SWE&C Estate Classifications...............................................27
D. Classification of Unimpaired Classes of Claims and Interests (deemed to have
accepted the Plan and therefore not entitled to vote).......................................28
1. Consolidated SWINC Estate Classifications...............................................28
2. SWE&C Classifications...................................................................28
E. Classification of Impaired Classes of Claims and Interests..................................28
1. SWINC Classifications...................................................................28
2. SWE&C Classifications...................................................................29
ARTICLE III TREATMENT OF UNCLASSIFIED GENERAL CLAIMS...............................................30
A. Unclassified General Claims.................................................................30
1. General Administrative Claims...........................................................30
2. General Professional Fee Claims.........................................................30
ARTICLE IV TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWINC AND THE SWINC SUBSIDIARIES.............................................................31
A. Unclassified SWINC Claims...................................................................31
1. SWINC Administrative Claims.............................................................31
2. SWINC Priority Tax Claims...............................................................31
B. Unimpaired Classes of SWINC Claims..........................................................31
1. Class 1A SWINC Secured Claims..........................................................31
2. Class 2A SWINC Other Priority Claims...................................................32
C. Impaired Classes of SWINC Claims and Interests..............................................32
1. Class 3A SWINC Asbestos Claims..........................................................32
2. Class 4A SWINC Convenience Claims......................................................33
3. Class 5A SWINC General Unsecured Claims................................................33
4. Class 6A SWINC Intraestate Claims......................................................33
5. Class 7A SWINC Subordinated Claims ....................................................33
6. Class 8A SWINC Securities Claims.......................................................33
7. Class 9A SWINC Equity Interests........................................................34
8. Class 10A SWINC Subsidiary Interests...................................................34
D. Special Provision Regarding Unimpaired Claims...............................................35
ARTICLE V TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWE&C AND THE SWE&C SUBSIDIARIES.............................................................35
A. Unclassified SWE&C Claims...................................................................35
1. SWE&C Administrative Claims.............................................................35
2. SWE&C Priority Tax Claims...............................................................35
B. Unimpaired Classes of SWE&C Claims..........................................................35
1. Class 1B SWE&C Miscellaneous Secured Claims............................................35
2. Class 2B SWE&C Other Priority Claims...................................................36
C. Impaired Classes of SWE&C Claims and Interests..............................................36
1. Class 3B SWE&C Asbestos Claims.........................................................36
2. Class 4B SWE&C Convenience Claims......................................................37
3. Class 5B SWE&C General Unsecured Claims................................................37
4. Class 6B SWE&C Intraestate Claims......................................................37
5. Class 7B SWINC Intercompany Claims.....................................................37
6. Class 8B SWE&C Subordinated Claims.....................................................37
7. Class 9B SWE&C Subsidiary Interests....................................................37
8. Class 10B SWE&C Interests..............................................................37
D. Special Provision Regarding Unimpaired Claims...............................................38
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN.....................................................38
A. Impaired Classes of Claims and Interests Entitled to Vote...................................38
B. Acceptance by an Impaired Class.............................................................38
C. Unimpaired Classes Conclusively Presumed to Accept Plan.....................................38
1. SWINC Classes...........................................................................38
2. SWE&C Classes...........................................................................38
ii
D. Classes Deemed to Reject Plan...............................................................38
1. SWINC Classes ..........................................................................38
2. SWE&C Classes...........................................................................39
E. Summary of Classes Voting on the Plan.......................................................39
1. SWINC Classes...........................................................................39
2. SWE&C Classes...........................................................................39
F. Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code.............................39
ARTICLE VII MEANS FOR IMPLEMENTATION OF THE PLAN...................................................39
A. Substantive Consolidation...................................................................39
1. Consolidation of SWINC and the SWINC Subsidiaries.......................................40
2. Consolidation of SWE&C and the SWE&C Subsidiaries.......................................40
B. Merger of Entities..........................................................................40
C. Continued Corporate Existence of Reorganized SWINC..........................................41
D. Dissolution of SWE&C and the SWE&C Subsidiaries.............................................41
E. Certificate of Incorporation and By-laws of Reorganized SWINC...............................41
F. Directors and Officers of Reorganized SWINC.................................................41
G. Corporate Action............................................................................42
H. Cancellation of Securities, Instruments and Agreements Evidencing Claims
and Interests...............................................................................42
I.Issuance of Reorganized SWINC New Common and Preferred Stock..................................42
J. Effectuating Documents; Further Transactions................................................43
K. The SWINC Plan Administrator................................................................43
1. Appointment.............................................................................43
2. Rights, Powers and Duties of the SWINC Estate and the SWINC Plan Administrator..........43
3. Compensation of the SWINC Plan Administrator............................................44
4. Indemnification.........................................................................44
5. Insurance...............................................................................45
6. Authority to Object to Claims and Interests and to Settle Disputed Claims...............45
L. The Asbestos Trust..........................................................................45
M. The Asbestos Trustee........................................................................46
1. Appointment.............................................................................46
2. Rights, Powers and Duties of the Asbestos Trustee ......................................46
3. Compensation of the Asbestos Trustee ...................................................47
4. Indemnification.........................................................................47
iii
5. Insurance...............................................................................47
6. Asbestos Insurance Policies.............................................................48
N. The SWE&C Liquidating Trust.................................................................48
1. Appointment of Trustee..................................................................48
2. Transfer of SWE&C Liquidating Trust Assets to the SWE&C Liquidating Trust...............48
3. The SWE&C Liquidating Trust.............................................................48
4. The SWE&C Liquidating Trust Advisory Board..............................................49
O. No Revesting of Assets......................................................................50
P. Preservation of Rights of Action............................................................51
Q. Creditors' Committee and Equity Committee...................................................51
1. Dissolution of Creditors' Committee.....................................................51
2. Dissolution of Equity Committee.........................................................52
R. Sources of Cash for Plan Distributions......................................................52
S. Exemption from Certain Transfer Taxes.......................................................52
T. Release of Liens............................................................................52
U. Special Provisions Regarding Insured Claims.................................................53
ARTICLE VIII DESCRIPTION OF SECURITIES AND INSTRUMENTS
TO BE ISSUED IN CONNECTION WITH THE PLAN........................................................53
A. Reorganized SWINC New Common Stock..........................................................53
B. Reorganized SWINC New Series A Preferred Stock..............................................54
C. Reorganized SWINC New Series B Preferred Stock..............................................55
ARTICLE IX PROVISIONS GOVERNING DISTRIBUTIONS......................................................57
A. Distributions for Claims or Interests Allowed as of the Effective Date......................57
B. Interest on Claims or Interests.............................................................57
C. Distributions by Disbursing Agents .........................................................57
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions......................58
1. Delivery of Distributions in General....................................................58
2. Undeliverable and Unclaimed Distributions...............................................58
E. Notification Date for Distributions to Holders of Equity Securities.........................59
F. Surrender of Securities or Instruments......................................................59
G. Means of Cash Payment.......................................................................59
iv
H. Withholding and Reporting Requirements......................................................59
I. Setoffs.....................................................................................60
1. By a Debtor.............................................................................60
2. By Non-Debtors..........................................................................60
J. Fractional Dollars; De Minimis Distributions................................................60
K. Allocation of Plan Distributions Between Principal and Interest.............................60
ARTICLE X TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES....................................61
A. Rejected Contracts and Leases...............................................................61
B. Rejection Damages Bar Date..................................................................61
C. Assumed Contracts and Leases ...............................................................61
D. Pension Plan................................................................................62
E. Indemnification Obligations.................................................................62
ARTICLE XI PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT AND
UNLIQUIDATED CLAIMS AND DISPUTED INTERESTS......................................................62
A. Claims Objection Deadlines; Prosecution of Objections.......................................62
1. SWINC Claims Objection Deadline.........................................................62
2. SWE&C Claims Objection Deadline.........................................................62
B. No Distributions Pending Allowance..........................................................63
C. Reserves....................................................................................63
1. General Administrative Claims Reserve...................................................63
2. The SWINC Professional Fee Reserve......................................................63
3. SWINC Operating Reserve.................................................................63
4. The SWINC Disputed Claims Reserve.......................................................64
5. The SWE&C Professional Fee Reserve......................................................64
6. SWE&C Operating Reserve.................................................................64
7. The SWE&C Disputed Claims Reserve.......................................................64
D. Distributions After Allowance...............................................................65
ARTICLE XII CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN....................................................................65
A. Conditions to Confirmation..................................................................65
B. Conditions to Effective Date................................................................65
C. Waiver of Conditions........................................................................66
v
ARTICLE XIII EFFECT OF PLAN CONFIRMATION...........................................................66
A. Binding Effect..............................................................................66
B. Releases....................................................................................66
1. Releases by the Debtors.................................................................66
2. Releases by Holders of Claims and Interests.............................................67
3. Injunction Related to Releases..........................................................67
C. Discharge of Claims and Termination of Interests............................................67
D. Exculpation and Limitation of Liability.....................................................68
E. Injunction..................................................................................68
F. Satisfaction of Subordination Rights........................................................69
G. Compromises and Settlements.................................................................69
1. Settlement Authority....................................................................69
2. Substantive Consolidation...............................................................70
3. The Federal Settlement..................................................................71
ARTICLE XIV RETENTION OF JURISDICTION..............................................................73
ARTICLE XV MISCELLANEOUS PROVISIONS................................................................75
A. Bar Dates for Certain Claims................................................................75
1. Administrative Claims Bar Date..........................................................75
2. Professional Fee Claims; Substantial Contribution Claims................................75
B. Payment of Statutory Fees...................................................................76
C. Amendment or Modification of the Plan.......................................................76
D. Severability of Plan Provisions.............................................................76
E. Successors and Assigns......................................................................76
F. Plan Supplement.............................................................................76
G. Revocation, Withdrawal or Non-Consummation..................................................77
H. Notice......................................................................................77
I.Governing Law.................................................................................78
J. Term of Injunctions or Stays................................................................78
vi
EXHIBIT A
ASBESTOS TRUST AGREEMENT
EXHIBIT B
LITIGATION CLAIMS
[To be Filed]
EXHIBIT C
SWE&C LIQUIDATING TRUST AGREEMENT
[To be filed before the Disclosure Statement Hearing]
EXHIBIT D
SWINC PLAN ADMINISTRATOR AGREEMENT
EXHIBIT E
AMENDED CERTIFICATE OF INCORPORATION OF REORGANIZED SWINC
EXHIBIT F
AMENDED BY-LAWS OF REORGANIZED SWINC
EXHIBIT G
CONTRACTS AND LEASES TO BE ASSUMED
[To be filed]