Exhibit 99.3
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
STONE & WEBSTER, INCORPORATED, ) Chapter 11
et al., )
) Case No. 00-2142(PJW)
Debtors. ) Jointly Administered
)
)
THIRD AMENDED AND RESTATED
PLAN OF LIQUIDATION OF THE
OFFICIAL COMMITTEE OF EQUITY HOLDERS OF
STONE & WEBSTER, INCORPORATED DATED APRIL 22, 2003
Ian C. Bifferato, Esq.
BIFFERATO, BIFFERATO & GENTILOTTI
1308 Delaware Avenue
Wilmington, DE 19806
Tel: (302) 429-1900
Fax: (302) 429-8606
David F. Heroy
Robert V. Shannon
Carmen H. Lonstein
BELL, BOYD & LLOYD LLC
70 West Madison Street, Suite 3300
Chicago, IL 60602
Tel: (312) 372-1121
Fax: (312) 827-8000
LIST OF EXHIBITS
APPENDIX Definitions Used In Plan
EXHIBIT A-1 The SWINC Subsidiaries
EXHIBIT A-2 The SWE&C Subsidiaries
EXHIBIT A-3 Non-Debtor Affiliates
EXHIBIT B Liquidation Analysis for SWINC and SWE&C Consolidated Estates
EXHIBIT B-1 Cash Funding Analysis
EXHIBIT C The Disclosure Statement Order
EXHIBIT D The SWINC Liquidating Trust Agreement
EXHIBIT E Holders of Claims Not Entitled to Vote
EXHIBIT F Asbestos Trust Agreement
EXHIBIT G Chart Comparing Equity Plan and Debtors' Plan
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
STONE & WEBSTER, INCORPORATED, ) Chapter 11
et al., )
) Case No. 00-2142 (PJW)
Debtors. ) Jointly Administered
THIRD AMENDED AND RESTATED
PLAN OF LIQUIDATION OF THE
OFFICIAL COMMITTEE OF EQUITY HOLDERS OF
STONE & WEBSTER, INCORPORATED DATED APRIL 22, 2003
--------------------------------------------------
Pursuant to section 1121(a) of the Bankruptcy Code, the Official
Committee of Equity Holders hereby proposes the following plan of liquidation,
which plan supersedes and amends any prior plan for any of the Debtors filed
by the Equity Committee in the above-captioned chapter 11 cases.
ARTICLE I
DEFINITION, RULES OF INTERPRETATION AND CONSTRUCTION
1.1 Definitions.
1.1.1 All capitalized terms used herein and not otherwise
defined have the meanings ascribed to them in the Definitions contained in the
Appendix annexed hereto.
1.1.2 All terms used herein which are defined in the
Bankruptcy Code or Bankruptcy Rules, but are not otherwise defined herein,
shall have the meanings ascribed to them in the Bankruptcy Code or Bankruptcy
Rules.
1.2 Rules of Construction.
1.2.1 Generally. For purposes of this Plan: (a) whenever
from the context it is appropriate, each term, whether stated in the singular
or the plural, shall include both the singular and the plural; (b) any
reference in the Plan to a contract, instrument, release or other agreement or
document being in a particular form or on particular terms and conditions
means that such contract, instrument, release or other agreement or document
shall be substantially in such form or substantially on such terms and
conditions as approved by the Equity Committee; (c) any reference in the Plan
to an existing document or exhibit filed or to be filed means such document or
exhibit, as it may have been or may, with the approval of the Equity
Committee, be amended, modified or supplemented; (d) unless otherwise
specified in a particular reference, all references in the Plan to sections,
articles and exhibits are references to sections, articles and exhibits of or
to the Plan; (e) the words, "hereof," "hereto" and "hereunder" and others of
similar import refer to the Plan in its entirety rather than to only a
particular portion of the Plan; (f) captions and headings to articles and
sections are inserted for convenience of reference only and are not intended
to be a part of or to affect the interpretation of the Plan; and (g) the rules
of construction set forth in section 102 of the Bankruptcy Code shall apply.
1.2.2 Incorporation of Exhibits. All exhibits and schedules
to this Plan are incorporated herein by reference and made a part hereof.
1.2.3 Time Periods. In computing any period of time
prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a)
shall apply.
1.2.4 Governing Law. Except to the extent that the
provisions of the Bankruptcy Code, the Bankruptcy Rules, federal statutes or
federal common law are applicable, and subject to the provisions of any
contract, instrument, release, or other agreement or document entered into in
connection with the Plan, the rights and obligations arising under the Plan
shall be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware, including Delaware General Corporation Law, without
giving effect to the principles of conflicts of law thereof.
ARTICLE II
PROVISIONS FOR PAYMENT OF
ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Claims. Except to the extent that an Allowed
Administrative Claim has been paid by a Debtor or Debtors before the Effective
Date or the Holder of such Claim agrees to a different treatment, each Holder
of an Allowed Administrative Claim against any Debtor will be paid in full in
Cash by the SWINC Consolidated Estate for any Allowed Administrative Claim
against SWINC or any SWINC Subsidiary, and by the SWE&C Consolidated Estate
for any Allowed Administrative Claim against SWE&C or any SWE&C Subsidiary, on
the latest of (i) the Effective Date, (ii) the date such Administrative Claim
becomes due, by its terms, and (iii) the day, if any, specified by the
Bankruptcy Court for payment of such Claim, or such Claim shall be satisfied
upon such other terms more favorable to the Estates as may be agreed by the
Holder of such Claim and the SWINC or SWE&C Consolidated Estates, whichever is
applicable.
2.2 Bar Date for Certain Administrative Claims. All Persons asserting
Claims on or after the Petition Date, including professionals requesting
compensation or reimbursement of expenses pursuant to sections 327, 328, 330,
331, 503(b), 506 and 1103 of the Bankruptcy Code for services rendered on or
before the Effective Date (including Intercompany Administrative Claims) shall
file and serve on the SWINC Consolidated Estate, the SWE&C Consolidated
Estate, the Equity Committee, the Creditors' Committee and the United States
trustee an application for allowance of Administrative Claim or application
for final allowance of compensation and reimbursement of expenses not later
than thirty (30) days after the Effective Date. The Equity Committee will, not
later than ninety (90) days after the Effective Date, request that the Court
schedule a hearing on such applications. Any such Claim not filed within these
deadlines shall be forever barred.
2.3 An Administrative Claim in the amount of $4,868,000 is hereby
deemed filed by the SWINC Consolidated Estate against the SWE&C Consolidated
Estate.
2.4 Priority Tax Claims. Unless otherwise agreed by a Holder of a
Priority Tax Claim and its applicable Consolidated Estate, each Holder of a
Priority Tax Claim against any of the Debtors shall receive on account of such
claim from its applicable Consolidated Estate equal, semi-annual Cash payments
over a period not exceeding six (6) years after the date of assessment of such
Claim, of an aggregate value, as of the Effective Date, equal to the Allowed
Amount of such Claim, with simple interest at the deficiency rate as
determined on the Effective Date under section 6621(c)(3) of the Internal
Revenue Code of 1986, as amended, for underpayments other than large corporate
underpayments, as therein defined on the outstanding balance of such Claim
from the Effective Date until such Allowed Claim is Paid in Full.
ARTICLE III
DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
3.1 General Rules for Classification. The following is a designation
of the Classes of Claims and Interests under this Plan. A Claim or Interest is
classified in a particular Class only to the extent that the Claim or Interest
qualifies within the description of that Class and is classified in another
Class or Classes to the extent that any remainder of the Claim or Interest
qualifies within the designation of such Other Class or Classes. A Claim or
Interest is classified in a particular Class only to the extent that the Claim
or Interest has not been paid, released or otherwise satisfied in whole or in
part, as the case may be, before the Effective Date. Unless the Court orders
otherwise, if there are no allowed Claims or Interests in a particular Class
or Classes as of the Confirmation Date, such Class or Classes shall be deemed
automatically eliminated from the Plan for purposes of determining whether
Classes of Claims and Interests have accepted or rejected the Plan.
3.2 Effect of Consolidation on Classification. Each Consolidated
Estate retains the collective assets and liabilities of all of the debtors
included in each respective Consolidated Estate.
3.2.1 All Claims Included. All Claims against, and Interests
in, each of the Debtors, the SWINC Consolidated Estate and the SWE&C
Consolidated Estate with regard to all property of each of the Debtors and the
Debtors' respective Consolidated Estates, are defined and hereinafter
designated in respective Classes.
3.3 Classification of Claims and Interests.
3.3.1 Claims Against the SWINC Consolidated Estate:
(a) "Class 1A Claims" shall mean and consist of all
Secured Claims against SWINC or any SWINC
Subsidiary.
(b) "Class 2A Claims" shall mean and consist of all
Priority Claims against SWINC or any SWINC
Subsidiary.
(c) "Class 3A Claims" shall mean and consist of all
general Unsecured Claims against SWINC or any SWINC
Subsidiary not otherwise classified in this Article
III.
(d) "Class 4A Claims" shall mean and consist of all
Subordinated Claims against SWINC or any SWINC
Subsidiary.
(e) "Class 5A Interests" shall mean and consist of the
Interests of Holders of outstanding shares of
Common Stock of SWINC.
(f) "Class 6A Claims" shall mean and consist of all
510(b) Claims or Securities Litigation Claims
against SWINC relating to outstanding shares of
Common Stock or outstanding options, warrants or
other rights to purchase Common Stock of SWINC.
3.3.2 Claims Against the SWE&C Consolidated Estate:
(a) "Class 1B Claims" shall mean and consist of all
Secured Claims against SWE&C or any SWE&C
Subsidiary.
(b) "Class 2B Claims" shall mean and consist of all
Priority Claims against SWE&C or any SWE&C
Subsidiary.
(c) "Class 3B Claims" shall mean and consist of all
general Unsecured Claims against SWE&C or any SWE&C
Subsidiary in the amount of $1,500 or less, and
general Unsecured Claims against SWE&C or any SWE&C
Subsidiary which are greater than $1,500 but which
are reduced to $1,500 by an irrevocable written
election of the Holder of such Claim made on a
validly executed and timely delivered Ballot.
(d) "Class 4B-1 Claims" shall mean and consist of all
general Unsecured Claims against SWE&C or any SWE&C
Subsidiary not otherwise classified in this Article
III, including prepetition unsecured, non-priority
trade vendor claims against SWE&C and any SWE&C
Subsidiary and including Claims arising from
equitable rights of subrogation, contribution,
indemnification and exoneration preserved pursuant
to section 16.6 of the Plan.
(e) "Class 4B-2 Claims" shall consist of the Asbestos
Claims and all Claims asserted by any Holders of
Claims against any one or more of the Debtors
arising from or related to personal injuries from
alleged exposure to asbestos.
(f) "Class 5B Claims" shall mean and consist of all
Subordinated Claims against SWE&C or any SWE&C
Subsidiary.
(g) "Class 6B Claims" shall mean the Intercompany Claim
held by SWINC and the SWINC Subsidiaries against
the SWE&C Consolidated Estate after giving effect
to the SWE&C Setoff Claim, in the estimated amount
of $50 million.
(h) "Class 7B Interests" shall mean and consist of the
Interests of the Holders of outstanding shares of
common stock of any SWE&C Subsidiary.
ARTICLE IV
IDENTIFICATION OF IMPAIRED AND UNIMPAIRED CLASSES
4.1 Unimpaired Classes of Claims. Claims in Classes 1A, 1B, 2A,
2B, 3A, and 4A are unimpaired under the Plan.
4.2 Impaired Classes of Claims and Interests. Claims and
Interests in Classes 3B, 4B-1, 4B-2, 5A, 5B, 6A, 6B, and 7B are impaired under
the Plan.
ARTICLE V
TREATMENT OF CLAIMS AGAINST AND
INTERESTS IN THE SWINC CONSOLIDATED ESTATE
5.1 Treatment of Class 1A Claims (Secured Claims SWINC
Consolidated Estate).
5.1.1 Alternatives. The SWINC Consolidated Estate shall, in
its sole discretion, elect one of the following treatments for each Allowed
Class 1A Claim as promptly as reasonably practicable following the later of
(i) the Effective Date, and (ii) the date such Class 1A Claim becomes an
Allowed Claim:
(a) The SWINC Consolidated Estate shall execute a
written undertaking in favor of the Holder of such
Allowed Class 1A Claim, whereby the SWINC
Consolidated Estate assumes such Allowed Class 1A
Claim and leaves unaltered such Holder's legal,
equitable and contractual rights concerning such
Allowed Class 1A Claim;
(b) Notwithstanding any contractual provision or
applicable law that would entitle the Holder of such
Allowed Class 1A Claim to demand or receive
accelerated payment after the occurrence of a
default, the SWINC Consolidated Estate shall (w)
cure any such default that occurred before or after
the Petition Date (other than a default of a kind
specified in Section 365(b)(2) of the Bankruptcy
Code), (x) reinstate the maturity of such Allowed
Class 1A Claim that existed before such default, (y)
compensate the Holder of such Allowed Class 1A Claim
for any damages incurred as a result of any
reasonable reliance by such Holder on such
contractual provision or such applicable law, and
(z) execute a written undertaking in favor of such
Holder whereby the SWINC Consolidated Estate assumes
such Allowed Class 1A Claim and, except as permitted
in clauses (w), (x) and (y) of this subparagraph
(b), does not otherwise alter the legal, equitable
or contractual rights of such Holder concerning such
Allowed Class 1A Claim;
(c) The SWINC Consolidated Estate shall pay the Holder
of such Allowed Class 1A Claim the Allowed Amount
thereof (x) in Cash as promptly as reasonably
practicable following the later of (i) the
Effective Date and (ii) the date such Claim becomes
an Allowed Claim or (y) at such other later date(s)
and upon such other terms more favorable to the
SWINC Consolidated Estate as may be agreed to by
the Holder of such Allowed Class 1A Claim and the
SWINC Consolidated Estate; or
(d) As promptly as reasonably practicable following the
later of (i) the Effective Date and (ii) the date
such Claim becomes an Allowed Claim, the SWINC
Consolidated Estate shall transfer to the Holder of
such Allowed Class 1A Claim any property securing
such Allowed Class 1A Claim in full satisfaction of
such Allowed Class 1A Claim.
5.1.2 The SWINC Consolidated Estate need not elect the same
alternative for all Allowed Claims in Class 1A, but rather may elect different
alternatives for any portion of the Allowed Claims in such Class.
Notwithstanding the foregoing, for each Allowed Class 1A Claim in respect of
which an election pursuant to section 1111(b) of the Bankruptcy Code has been
made, the SWINC Consolidated Estate shall elect the treatment provided in
Section 5.1.1(d) of the Plan or shall pay the Holder of such Allowed Class 1A
Claim property of a value, as of the Effective Date, that is not less than the
value of such Holder's interest in the SWINC Consolidated Estate's interest in
the property that secures such Claim.
5.1.3 Release of Collateral. In the event the SWINC
Consolidated Estate elects, with respect to any Class 1A Claim, the treatment
provided in Section 5.1.1(c) of the Plan, the Holder of such Class 1A Claim
shall, simultaneously with the delivery by the SWINC Consolidated Estate of
the Cash as provided in Section 5.1.1(c) of the Plan, (a) release such
Holder's security interest in all collateral securing such Allowed Class 1A
Claim, (b) take such further action as the SWINC Consolidated Estate may
request to effectuate or evidence such release and (c) deliver or cause to be
delivered to the SWINC Consolidated Estate any collateral securing such
Allowed Class 1A Claim in such Holder's possession or control suitable for
transfer to the SWINC Consolidated Estate.
5.2 Treatment of Class 2A Claims (Priority Claims SWINC Consolidated
Estate). As promptly as reasonably practicable following the later of (a) the
Effective Date, and (b) the date such Claim becomes an Allowed Claim, each
Holder of an Allowed Class 2A Claim shall be paid by the SWINC Consolidated
Estate, in respect of such Claim, Cash equal to one hundred percent (100%) of
the Allowed Amount of such Claim, or such Claim shall be satisfied upon such
other terms more favorable to the SWINC Consolidated Estate as may be agreed
upon by the Holder of such Claim and the SWINC Consolidated Estate.
5.3 Treatment of Class 3A Claims (Unsecured Claims--SWINC
Consolidated Estate). As promptly as reasonably practicable following the
later of (a) the Effective Date, (b) the date such Claim becomes an Allowed
Claim, and (c) the date on which the SWINC Consolidated Estate has sufficient
Distributable Cash, the SWINC Consolidated Estate shall pay each Holder of an
Allowed Class 3A Claim the amount of its Allowed Claim plus Post-Petition
Interest.
5.4 Treatment of Class 4A (Subordinated Claims--SWINC Consolidated
Estate). As promptly as reasonably practicable following the later of (a) the
Effective Date, (b) the date such Class 4A Claim becomes an Allowed Claim, and
(c) the payment of any Senior Debt in accordance with the terms of any
applicable Subordination Agreement, each Holder of an Allowed Class 4A Claim
shall be paid the amount of its Allowed Claim plus Post-Petition Interest.
5.5 Treatment of Class 5A Interests (Common Stock--SWINC). Upon the
Effective Date, Holders of Class 5A Interests as of the Equity Distribution
Record Date shall be deemed to hold a beneficial interest in the SWINC
Liquidating Trust equal to such Holder's Pro Rata share of the SWINC Common
Stock as of the Record Date. The Holders of Allowed Class 5A Interests will
receive no property on account of such beneficial interest unless and until
Allowed Class 2A, 3A and 4A Claims have been paid in full in accordance with
the terms of the Plan by the SWINC Consolidated Estate. Reorganized SWINC and
the SWINC Consolidated Estate shall pay the SWINC Liquidating Trust all
Distributable Cash remaining thereafter. The SWINC Liquidating Trust shall
then pay Holders of Allowed Class 5A Interests on a Pro Rata basis equal to
such Holders' Pro Rata share of the beneficial interests in the SWINC
Liquidating Trust as of the Equity Distribution Record Date. Pursuant to
section 12.8 of the Plan, all shares of Common Stock of SWINC shall be
cancelled as of the Effective Date.
5.6 Treatment of Class 6A Claims (510(b) / Securities Litigation
Claims--SWINC Consolidated Estate). If Class 6A votes to accept the Plan, the
Holders of Class 6A Claims shall receive the first $100,000 from the amount
otherwise payable to the Holders of Class 5A Interests and shall retain any
right they may have to a Pro Rata share, with other claimants to such
proceeds, to the proceeds of any applicable insurance subject to the
provisions of section 7.2 of the Plan. If Class 6A rejects the Plan, the
Holders of Class 6A Claims shall not receive said $100,000 but shall retain
any right they may have to a Pro Rata share, with other Class 6A Claimants to
the proceeds of any applicable insurance subject to the provisions of section
7.2 of the Plan. Any deficiency claims of such Class 6A Claim Holders
remaining after exhaustion of such insurance shall be entitled to participate
pari passu in Class 5A distributions.
ARTICLE VI
TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN THE SWE&C CONSOLIDATED ESTATE
The following provisions assume that the Plan will be confirmed as to
SWE&C and the SWE&C Subsidiaries. As provided in section 19.10 of the Plan, if
the Plan is not confirmed as to SWE&C and the SWE&C Subsidiaries, the Plan
shall be effective as to only SWINC and the SWINC Subsidiaries and all Claims
and Interests in SWINC and the SWINC Subsidiaries. Further, section 19.10 of
the Plan provides that all provisions of the Plan concerning SWE&C and the
SWE&C Subsidiaries shall be void and of no effect, except those provisions
concerning any Claims of SWE&C or any SWE&C Subsidiary against the SWINC
Consolidated Estate or any Debtor included in the SWINC Consolidated Estate,
and the bankruptcy proceedings of SWE&C and the SWE&C Subsidiaries shall
otherwise continue unaffected by the Plan.
6.1 Treatment of Class 1B Claims (Secured Claims).
6.1.1 Alternatives. The SWE&C Consolidated Estate shall, in
its sole discretion, elect one of the following treatments for each Allowed
Class 1B Claim as promptly as reasonably practicable following the later of
(i) the Effective Date, and (ii) the date such Class 1B Claim becomes an
Allowed Claim:
(a) The SWE&C Consolidated Estate shall execute a
written undertaking in favor of the Holder of such
Allowed Class 1B Claim, whereby the SWE&C
Consolidated Estate assumes such Allowed Class 1B
Claim and leaves unaltered such Holder's legal,
equitable and contractual rights concerning such
Allowed Class 1B Claim;
(b) Notwithstanding any contractual provision or
applicable law that would entitle the Holder of such
Allowed Class 1B Claim to demand or receive
accelerated payment after the occurrence of a
default, the SWE&C Consolidated Estate shall (w)
cure any such default that occurred before or after
the Petition Date (other than a default of a kind
specified in Section 365(b)(2) of the Bankruptcy
Code), (x) reinstate the maturity of such Allowed
Class 1B Claim that existed before such default, (y)
compensate the Holder of such Allowed Class 1B Claim
for any damages incurred as a result of any
reasonable reliance by such holder on such
contractual provision or such applicable law and (z)
execute a written undertaking in favor of such
holder whereby the SWE&C Consolidated Estate assumes
such Allowed Class 1B Claim and, except as permitted
in clauses (w), (x) and (y) of this subparagraph
(b), does not otherwise alter the legal, equitable
or contractual rights of such Holder concerning such
Allowed Class 1B Claim;
(c) The SWE&C Consolidated Estate shall pay the Holder
of such Allowed Class 1B Claim the Allowed Amount
thereof (x) in Cash as promptly as reasonably
practicable following the later of (i) the
Effective Date, and (ii) the date such Claim
becomes an Allowed Claim or (y) at such other later
date(s) and upon such other terms more favorable to
the SWE&C Consolidated Estate as may be agreed to
by the Holder of such Allowed Class 1B Claim and
the SWE&C Consolidated Estate.
(d) As promptly as reasonably practicable following the
later of (i) the Effective Date and (ii) the date
such Claim becomes an Allowed Claim, the SWE&C
Consolidated Estate shall transfer to the Holder of
such Allowed Class 1B Claim any property securing
such Allowed Class 1B Claim in full satisfaction of
such Allowed Class 1B Claim.
6.1.2 The SWE&C Consolidated Estate need not elect the same
alternative for all Allowed Claims in Class 1B, but rather may elect different
alternatives for any portion of the Allowed Claims in such Class.
Notwithstanding the foregoing, for each Allowed Class 1B Claim in respect of
which an election pursuant to section 1111(b) of the Bankruptcy Code has been
made, the SWE&C Consolidated Estate shall elect the treatment provided in
Section 6.1.1(d) of the Plan or shall pay the Holder of such Allowed Class 1B
Claim property of a value, as of the Effective Date, that is not less than the
value of such Holder's interest in the SWE&C Consolidated Estate's interest in
the property that secures such Claim.
6.2 Release of Collateral. In the event the SWE&C Consolidated Estate
elects, with respect to any Class 1B Claim, the treatment provided in Section
6.1.1(c) of the Plan, the Holder of such Class 1B Claim shall, simultaneously
with the delivery by the SWE&C Consolidated Estate of the Cash as provided in
Section 6.1.1(c) of the Plan, (i) release such Holder's security interest in
all collateral securing such Allowed Class 1B Claim, (ii) take such further
action as the SWE&C Consolidated Estate may request to effectuate or evidence
such release, and (iii) deliver or cause to be delivered to the SWE&C
Consolidated Estate any collateral securing such Allowed Class 1B Claim in
such Holder's possession or control suitable for transfer to the SWE&C
Consolidated Estate.
6.3 Treatment of Class 2B Claims (Priority Claims--SWE&C Consolidated
Estate). As promptly as reasonable practicable following the later of (a) the
Effective Date, and (b) the date such Claim becomes an Allowed Claim, each
Holder of an Allowed Class 2B Claim shall be paid by the SWE&C Consolidated
Estate, in respect of such Claim, Cash equal to one hundred percent (100%) of
the Allowed Amount of such Claim, or such Claim shall be satisfied upon such
other terms more favorable to the SWE&C Consolidated Estate as may be agreed
upon by the Holder of such Claim and the SWE&C Consolidated Estate.
6.4 Treatment of Class 3B Claims (Convenience Claims--SWE&C
Consolidated Estate). As promptly as reasonably practicable following the
later of (i) the Effective Date, and (ii) the date such Claim becomes an
Allowed Claim, the SWE&C Consolidated Estate shall pay each Holder of an
Allowed Class 3B Claim the amount of the Allowed Claim in Cash.
6.5 Treatment of Class 4B-1 Claims (Unsecured Claims--SWE&C
Consolidated Estate). As promptly as reasonably practicable following the
later of (i) the Effective Date and (ii) the date such Claim becomes an
Allowed Claim, the SWE&C Consolidated Estate shall pay each Holder of an
Allowed Class 4B-1 Claim its Pro Rata share of the SWE&C Consolidated Estate's
Distributable Cash.
6.6 Treatment of Class 4B-2 Claims (Asbestos Claims--SWE&C
Consolidated Estate). As of the Effective Date, liability, if any, for all
Asbestos Claims against any of the Debtors 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 4B-2 Asbestos Claim
shall receive in full satisfaction, settlement, release and discharge of and
in exchange for such Allowed Class 4B-2 Asbestos Claim (a) its pro rata
portion of the Asbestos Trust assets set forth in Article VII., section 7.3,
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 4B-2 Asbestos Claims are
characterized as impaired because the Equity Committee is unable to determine
whether the Available Asbestos Trust Cash plus any Asbestos Insurance Proceeds
with respect to Allowed Class 4B-2 Asbestos Claim will be adequate to pay all
Allowed Class 4B-2 Asbestos Claims in full. The Equity Committee believes,
however, based on the Debtors' historical liability for Asbestos Claims and an
understanding of the Asbestos Insurance Coverage that the holders of Class
4B-2 Allowed Asbestos Claims will receive from the Available Asbestos Trust
Cash and the Asbestos Insurance Proceeds at least the same percentage recovery
as they receive if they held Allowed Claims in Class 4B-1 General Unsecured
Claims against the SWE&C Consolidated Estate. Accordingly, the Equity Plan
characterizes the Class 4B-2 Asbestos Claims as impaired and seeks a vote of
Class 4B-2 to bind all members of Class 4B-2 Asbestos Claims to the treatment
of such Claims as proposed herein.
6.7 Treatment of Class 5B (Subordinated Claims-SWE&C Consolidated
Estate). As promptly as reasonably practicable following the later of (i) the
Effective Date, and (ii) the date such Class 5B Claim becomes an Allowed
Claim, and (iii) the payment of any Senior Debt under the terms of any
Subordination Agreement, each Holder of an Allowed Class 5B Claim shall be
paid its Pro Rata share of the SWE&C Consolidated Estate's Distributable Cash
in an amount not to exceed the amount of its Allowed Claim.
6.8 Treatment of Class 6B Intercompany Claim (SWINC Intercompany
Claim against SWE&C Consolidated Estate). If Class 4B-1 votes to accept the
Plan, then the SWINC Intercompany Claim shall be treated as a Class 5B
Subordinated Claim. If Class 4B-1 votes to reject the Plan, then on, or as
soon as reasonably practicable after the Effective Date of the Plan, the
Holders of Class 6B Allowed Claims shall be reclassified as Holders of Allowed
Class 4B-1 Claims and receive all distributions otherwise payable to Holders
of Allowed Class 4B-1 Claims pari passu.
6.9 Treatment of Class 7B (SWE&C & SWE&C Subsidiary Interests). On
the Effective Date, all Interests in SWE&C and the SWE&C Subsidiaries shall be
eliminated, and the Holders of Class 7B Interests shall not receive or
otherwise be entitled to receive or retain any property or interest under the
Plan.
ARTICLE VII
SPECIAL PROVISIONS REGARDING CERTAIN CLAIMS
7.1 Treatment of Pension Claims. On the Effective Date,
Reorganized SWINC shall assume all obligations and benefits under the
Pension Plan.
7.2 Insured Claims. Distributions under the Plan to each holder of an
Allowed Insured Claim against a Debtor 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: (a) the maximum amount of any
distribution under the Plan on account of an Allowed Insured Claim shall be
limited to an amount equal to the amount of the Allowed Insured Claim minus
any applicable insurance; and (b) with respect to Class 4B-2 Asbestos Claims,
such claims are deemed to be Insured Claims under the Plan and the balance
remaining of any such claims after payment of applicable insurance shall be a
Class 4B-1 Unsecured Claim to the extent and only at such time as such claim
is determined to be an Allowed Claim against the SWE&C Consolidated Estate.
7.2.1 Nothing in this section 7.2, including subparts
thereof, shall (x) constitute a waiver of any litigation claim the Debtors may
hold against any Person, including any Insurance Carriers or (y) is intended
to, shall, or shall be deemed to preclude any Holder of an Allowed Insured
Claim from seeking or obtaining a distribution or other recovery from any
Insurance Carrier of the Debtors in addition to any distribution such Holder
may receive pursuant to the Plan; provided, however, that the Debtors shall be
deemed not to waive, and expressly reserve their rights to assert, that any
insurance coverage is property of a Consolidated Estate.
7.2.2 This Plan shall not expand the scope of or alter in
any other way the Insurance Carriers' obligations under their policies, and
the Insurance Carriers 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
Insurance Carriers have asserted or may assert in proofs of claim filed in the
Debtors' bankruptcy cases, or the rights of the Debtors and their respective
Consolidated Estates to object to the final allowance of such Claims for
distribution purposes on any basis under applicable state or federal law.
7.2.3 Each of the Insurance Carriers 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 personal injury
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.
7.3 The Asbestos Trust. On the Effective Date, subject to final
documentation acceptable to the Equity Committee and the Asbestos Insurers,
and pursuant to the terms of the Asbestos Trust Agreement, the SW&EC
Consolidated Estate shall transfer to the Asbestos Trust Cash in the amount of
$4.5 million and an Allowed Class 4B-1 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, any Debtors
having rights under the insurance policies issued by the Asbestos Insurance
Carriers and any other policies which provide coverage for Asbestos Claims
shall transfer to the Asbestos Trust all of their rights under such insurance
policies. 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 Consolidated Estate.
7.4 The Asbestos Trustee
7.4.1 Appointment. From and after the Effective Date,
______________ 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.
7.4.2 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 her 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 investment that may be
permissible under (x) Bankruptcy Code section 345 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;
(i) making and filing any tax returns for the
Asbestos Trust;
(j) taking any actions necessary to ensure that the
Asbestos Trustee will receive timely notice of any
Asbestos Claim including, without limitation, taking action to maintain the
corporate existence of one or more of the Debtors; and
(k) shall enter into one or more coverage in place
agreements with the Asbestos Insurance Carriers on
terms satisfactory to the Asbestos Trustee or take other appropriate action
with respect to insurance provided by the Asbestos Insurance Carriers; and
(l) shall take 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.
ARTICLE VIII
DISTRIBUTIONS TO HOLDERS
8.1 Holders Entitled to Receive Distributions. Only Holders of Claims
and Interests that are Allowed Claims and Allowed Interests, respectively, as
of a Distribution Date shall be entitled to receive any distribution of
property on such date. Any provision in the Plan that distribution be made "as
promptly and reasonably practicable" after some date means as promptly as
reasonably practicable in the sole discretion of the SWE&C Liquidation Board
for the SWE&C Consolidated Estate and the SWINC Liquidation Board for the
SWINC Consolidated Estate after adequate provision for reserves, expenses and
contingencies in their respective business judgment.
8.2 Distribution Record Date. The SWINC or the SWE&C Consolidated
Estate, as applicable, shall establish a record date with respect to each
Distribution Date, provided that such date is not more than fifteen (15)
Business Days prior to the applicable Distribution Date. Only Holders of
Allowed Claims or Allowed Interests as of the applicable record date shall be
entitled to receive distributions under the Plan. If no record date is
established, the applicable Distribution Date shall serve as the record date.
8.3 Minimum Distributions. No distribution of Cash shall be required
to be made hereunder to any Holder at any particular time unless specifically
set forth in the Plan, unless such distribution is at least equal to US
$100.00, or, if applicable, its equivalent in foreign currency ("Minimum
Distributable Amount") or unless such distribution is the Final Distribution
to such Holder. Any Cash not distributed by operation of this Section 8.3,
shall be retained, as applicable, in trust for such Holder until the earlier
of (a) the next distribution to such Holder, provided that such distribution,
taken together with amounts retained hereby, equals or exceeds the Minimum
Distributable Amount, or (b) the Final Distribution to such Holder.
8.4 Delivery of Distributions and Undeliverable or Unclaimed
Distributions.
8.4.1 Delivery of Distributions in General. Except as
provided below in this Section 8.4.1, for
distributions to Holders entitled to distributions
but for the inability to locate such Holders,
distributions to Holders shall be made: (a) at the
addresses set forth on the respective proofs of
claim or proofs of interest Filed by or on behalf of
such Holders (or in the case of any transferee of
such Claim, to the address set forth on any document
of transfer); (b) at the addresses set forth in any
written notices of address changes delivered to the
Debtors, the SWINC or the SWE&C Consolidated Estate,
as applicable, after the date of any related proof
of claim or proof of interest; or (c) at the address
reflected on the Schedules if no proof of claim is
filed and the SWINC or SWE&C Consolidated Estate, as
applicable, has not received a written notice of a
change of address; or (d) if the Claim or Interest
is based on a security of the Debtors, at the
address shown on the most current records of the
transfer agent or registrar relating to such
security, if any.
8.4.2 Undeliverable Distributions.
(a) Holding and Investment of Undeliverable Property. If
the distribution to any Holder is returned as
undeliverable, no further distribution shall be made
to such Holder unless and until the SWINC or SWE&C
Consolidated Estates, as applicable, is notified in
writing of such Holder's then current address within
the time period specified in section 8.4.2(b). For
purposes of this Plan, undeliverable distributions
shall include checks (as of the date of their
issuance) sent to Holders respecting distributions
to such Holders under the Plan, which checks have
not been cashed within six (6) months following the
date of issuance of such checks. Undeliverable
distributions shall remain in the possession of the
SWINC or SWE&C Consolidated Estate, as applicable,
until such time as a distribution becomes
deliverable, subject to section 8.4.2(b).
(b) Distribution of Undeliverable Property After it
Becomes Deliverable and Failure to Claim
Undeliverable Property. Any Holder that does not
assert a Claim for an undeliverable distribution
within the later of (y) one (1) year after the
Effective Date, and (z) six (6) months after the
applicable Distribution Date, shall no longer have
any Claim to or interest in such undeliverable
distribution, and shall be forever barred from
receiving any distributions under this Plan. In such
cases title to and all beneficial interests in any
property held for distribution on account of such
Claims or Interests shall remain in the respective
Estate, and such property shall be redistributed in
accordance with the provisions of this Plan as if
such Claims or Interests were not Allowed Claims or
Allowed Interests, as the case may be. Nothing
contained in the Plan shall require any person,
including the SWINC or SWE&C Consolidated Estates,
to attempt to locate any Holders.
8.5 Means of Cash Payments. Cash payments in an amount of less than
$50,000 made pursuant to the Plan shall be in U.S. dollars by checks drawn on
a domestic bank selected by the Debtors, or by wire transfer from a domestic
bank, except that such payments to foreign Holders may be made in such funds
and by such means as are necessary or customary in a particular foreign
jurisdiction. Cash payments in an amount of $50,000 or more shall be made by
wire transfer from a domestic bank, provided, that at least five (5) Business
Days prior to the applicable Distribution Date, the proposed recipient of such
Cash payment has provided the Debtors with appropriate wire instructions.
8.6 Compliance With Tax Requirements. In connection with the Plan, to
the extent applicable, the SWINC and SWE&C Consolidated Estates shall comply
with all withholding and reporting requirements imposed on them by any
governmental unit, and all distributions pursuant to the Plan shall be subject
to such withholding and reporting requirements.
8.7 Investments. Cash held by the SWINC and SWE&C Consolidated
Estates may be invested in any manner permitted by Section 345 of the
Bankruptcy Code or any order of the Bankruptcy Court that has established
investment guidelines for funds of the Estate.
8.8 Allocation of Distributions. Each distribution to the Holder of
an Allowed Claim or Interest pursuant to the Plan shall be allocated (a)
first, to that portion of the relevant Allowed Claim or Interest that
constitutes principal, and (b) second, to that portion of the relevant Allowed
Claim or Interest that constitutes interest, if any (including, without
limitation, accreted original issue discount, if any) in order of accrual.
8.9 Single Recovery. Distributions on account of Allowed Claims that
lie against more than one Consolidated Estate shall be adjusted so that such
Holders do not receive more than the amount of their Allowed Claim, plus
Post-Petition Interest if applicable, and all equitable rights of
contribution, indemnification, subrogation and exoneration shall be preserved
as set forth below.
ARTICLE IX
ALLOWANCE OF CLAIMS
9.1 Schedules. The Debtors' Schedules, to the extent that they list
Claims against a particular Debtor or particular Debtors, shall constitute
prima facie evidence of the validity and amount of the Claims of Creditors
against such Debtor or Debtors, unless they are scheduled as disputed,
contingent, or unliquidated. Claims listed as disputed, contingent or
unliquidated on the Schedules are not Allowed Claims, except Claims otherwise
treated by the Plan or previously allowed by Final Order of the Court. A proof
of claim executed and filed in accordance with Bankruptcy Rule 3003 and any
order of the Court shall supersede any scheduling of such Claim by a Debtor
pursuant to section 521(1) of the Bankruptcy Code.
9.2 Disallowance of Late Filed Claims and Interests and Claims That
Do Not Specify the Applicable Debtor. Any Holder who is or was required,
pursuant to applicable law, rule, order or otherwise, to file a proof of
claim, proof of interest or application for final allowance by a particular
date (including, without limitation, Holders of Administrative Claims who are
required to file applications for final allowance in accordance with Article
II hereof), but fails or failed to timely file such proof of claim, proof of
interest or application for final allowance, or who files a proof of claim or
interest, or an application for final allowance, that does not specify the
applicable Debtor against which the Claim lies or lists more than one Debtor
on a single proof of claim form, shall not be treated as a Holder with respect
to such Claim or Interest for the purpose of receiving distributions under the
Plan, and such Claim or Interest shall be disallowed after notice and a
hearing, unless otherwise ordered by the Bankruptcy Court.
9.3 Objections to Claims or Interests. Any Claim or Interest that has
not previously been disallowed, shall be conclusively deemed to be an Allowed
Claim as of the day after the Claims Objection Date (including objections
based on section 502(d) of Bankruptcy Code) or a notice from the applicable
Debtor, the Equity Committee or the SWINC or SWE&C Consolidated Estate, as
applicable, has been sent to the Holder of such Claim or Interest evidencing
an intention to object to such Claim.
9.4 Estimation.
9.4.1 For Purposes of Allowance. The SWINC Consolidated
Estate or the SWE&C Consolidated Estate may request that the Court, pursuant
to section 502(c) of the Bankruptcy Code, estimate for the purpose of
allowance and distribution hereunder, (a) any contingent or unliquidated
Claim, the fixing or liquidation of which, as the case may be, would unduly
delay the administration of such Consolidated Estate, or (b) any right to
payment arising from a right to an equitable remedy for breach of performance.
9.4.2 For Purposes of Determining Cash Reserves. As to any
Claim (including, without limitation, any unliquidated Claim), the Court
shall, upon motion by the SWINC Consolidated Estate or the SWE&C Consolidated
Estate, estimate the maximum allowable amount of such Claim (and, therefore,
the maximum property distribution to be held on behalf of such Claim).
9.4.3 Standing with respect to Objections to Claims. Each of
the SWINC Consolidated Estate on behalf of SWINC and any SWINC Subsidiary, and
the SWE&C Consolidated Estate on behalf of SWE&C and any SWE&C Subsidiary,
will have the sole authority to object to and contest the allowance of any
Claims filed with the Court against a Debtor included in the applicable
Consolidated Estate, with the exception of Claims assumed by Shaw in
connection with the Shaw Sale, as to which Shaw has standing to object as
approved by prior order of the Court.
9.4.4 Compromises and Settlements. Pursuant to section
1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019(a), the SWINC
Consolidated Estate on behalf of SWINC and any Debtor included in the SWINC
Consolidated Estate, and the SWE&C Consolidated Estate on behalf of SWE&C and
any Debtor included in the SWE&C Consolidated Estate, may compromise and
settle Claims against a Debtor included in their respective Consolidated
Estates and Claims they may have against other Persons. After the Effective
Date, the SWINC Consolidated Estate on behalf of SWINC and any Debtor included
in the SWINC Consolidated Estate, and the SWE&C Consolidated Estate on behalf
of SWE&C and any Debtor included in the SWE&C Consolidated Estate shall be
authorized to compromise and settle any Claims against the respective Debtors
or that the respective Debtors may have against other Persons, pursuant to
Bankruptcy Rule 9019(a) and section 105(a) of the Bankruptcy Code, without
further approval from the Court.
ARTICLE X
PROVISIONS FOR DISPUTED CLAIMS
AND DISPUTED INTEREST
10.1 No Distribution Pending Resolution of Objection. No distribution
shall be made upon, or in respect of, any Disputed Claim or Disputed Interest
unless and until such Disputed Claim or Disputed Interest becomes an Allowed
Claim or Allowed Interest as the case may be.
10.2 Distribution On Account of Subsequently Allowed Claims and
Subsequently Allowed Interests. For purposes of the distributions referenced
in Articles V and VI of this Plan, the SWINC Consolidated Estate and the SWE&C
Consolidated Estate and each Debtor shall assume that each Holder of a
Disputed Claim holds an Allowed Claim having an Allowed Amount equal to the
lesser of (a) the maximum Allowed Amount possible in respect of such Disputed
Claim or (b) the amount estimated by the Court in respect of such Disputed
Claim. Cash not distributed as of a Distribution Date because of a Disputed
Claim shall be held, respectively, in a Disputed Claim Reserve by each of the
SWINC Consolidated Estate and the SWE&C Consolidated Estate, pending the
allowance of any Disputed Claims against their respective Estates.
10.2.1 As soon as reasonably practicable following the
allowance of any Disputed Claim (a "Subsequently Allowed Claim"), the SWINC
Consolidated Estate or the SWE&C Consolidated Estate shall distribute to the
Holder of such Subsequently Allowed Claim Cash equal to the amount held by the
SWINC Consolidated Estate or the SWE&C Consolidated Estate, respectively, on
account of such Subsequently Allowed Claim. If a Disputed Claim is disallowed,
the SWINC Consolidated Estate and the SWE&C Consolidated Estate, respectively,
shall distribute the Cash held on account of such Disputed Claim in their
respective Disputed Claims Reserve as provided under the Plan.
10.2.2 If a Disputed Claim is allowed in an amount less than
the amount which the SWINC Consolidated Estate or the SWE&C Consolidated
Estate was holding Cash on account of such Disputed Claim, then the SWINC
Consolidated Estate or the SWE&C Consolidated Estate, respectively, shall
distribute to the Holder of such Subsequently Allowed Claim an amount equal to
the amount that the SWINC Consolidated Estate or the SWE&C Consolidated Estate
would have held had the amount been based on the amount of the Subsequently
Allowed Claim. The SWINC Consolidated Estate and the SWE&C Consolidated Estate
shall distribute the excess Cash held in their respective Disputed Claims
Reserve on account of any such Disputed Claim as provided under the Plan.
ARTICLE XI
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
11.1 Rejection. Except as otherwise provided herein, any and all
leases or executory contracts not previously rejected by a Debtor, unless
specifically assumed pursuant to order of the Court, or otherwise provided in
this Plan, shall be deemed rejected on the Confirmation Date, and all leases
or executory contracts so assumed shall remain unaffected by the Plan.
11.2 Rejection Claims Bar Date. If the rejection of an executory
contract or unexpired lease hereunder gives rise to a Claim, such Claim shall
be forever barred and not enforceable against the applicable Debtor or its
successor in interest under this Plan unless a proof of Claim is filed and
served on the SWINC or SWE&C Consolidated Estate, as applicable, within thirty
(30) days after the Confirmation Date. Any Holder of a Claim arising from a
timely filed proof of Claim relating to the rejection of any lease or
executory contract pursuant to the Plan shall have, to the extent such Claim
becomes an Allowed Claim, the rights of a Holder of an Unsecured Claim against
the applicable Debtor. Any such timely filed Claim arising from rejection of a
lease or executory contract shall be conclusively deemed to be an Allowed
Claim unless prior to the Claims Objection Date either an objection to such
Claim has been filed or a notice from the applicable Debtor, SWINC or SWE&C
Consolidated Estate, or the Equity Committee or Creditors' Committee has been
sent to the Holder of such Claim evidencing an intention to object to such
Claim.
11.3 Pension Plan. The Pension Plan shall be and is an executory
contract and is assumed by SWINC and assigned to Reorganized SWINC pursuant to
sections 365(a) and 1123(b)(2) of the Bankruptcy Code. Reorganized SWINC shall
succeed SWINC as the "contributing sponsor" of the Pension Plan for all
purposes, including 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).
11.4 Other Employee Benefit Plans. As soon as practicable after the
Effective Date, the SWINC Liquidation Board will cause the SWINC Consolidated
Estate to fulfill any remaining fiduciary duties to terminate or settle the
ESOP, the Group Life Insurance and Spouses Insurance Plan of Stone and
Webster, Incorporated and the EIP.
11.5 Insurance Policies. Unless the applicable Consolidated Estate
moves to reject such policy within ninety days after the Effective Date, to
the extent any insurance policies and contracts of the Debtors which provide
coverage for an Insured Claim are deemed to be executory contracts, such
policies and contracts are hereby assumed by the applicable Consolidated
Estate pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code. If
both Consolidated Estates have an interest in an insurance policy or contract
that provides coverage for an Insured Claim that is deemed to be an executory
contract, liability for cure amounts, if any, and responsibility for continued
obligations shall be as agreed to by the Consolidated Estates or, in the
absence of agreement, shall be as determined by the Court. Any such contracts
which are deemed not executory shall continue to be property of the applicable
Consolidated Estate pursuant to section 541 of the Bankruptcy Code and all
rights with respect to such policies are hereby preserved.
ARTICLE XII
IMPLEMENTATION OF THE PLAN
AND EXECUTION OF ITS TERMS
12.1 Consolidation or Merger. Pursuant to and in accordance
with section 1123(a)(5)(C) of the Bankruptcy Code:
12.1.1 SWINC Consolidated Estate. On the Effective Date, or
as soon thereafter as reasonably practicable, (a) each of the SWINC
Subsidiaries and all their assets and liabilities shall be merged into and
become a part of the SWINC Consolidated Estate; (b) the SWINC Estate shall be
deemed to merge into the SWINC Consolidated Estate, except for the assets
transferred to Reorganized SWINC pursuant to Article 12.2.2 hereof; (c) any
guarantees, liabilities and obligations of SWINC and any SWINC Subsidiary, or
more than one Debtor entity in the SWINC Consolidated Estate, by or to a
single creditor shall be deemed to be one obligation to said creditor
entitling such creditor to a single recovery from the SWINC Consolidated
Estate; (d) any proof of claim filed or scheduled or otherwise made against
SWINC and any SWINC Subsidiary, or more than one Debtor entity in the SWINC
Consolidated Estate, by or to a single creditor shall be deemed to be one
obligation to said creditor entitling such creditor to a single recovery from
the SWINC Consolidated Estate; and (e) each of the Chapter 11 Cases of the
SWINC Subsidiaries shall be deemed closed, and any proceedings that could have
been brought or commenced in such Chapter 11 Cases shall be brought or
otherwise commenced in the SWINC Joint Case which shall remain pending for the
administration of the SWINC Consolidated Estate pursuant to this Plan.
Further, on the Effective Date any Claims based upon guarantees of collection,
payment or performance made by SWINC or any SWINC Subsidiary as to the
obligations of SWINC or any SWINC Subsidiary shall be released and of no
further force and effect. As the result of the merger of the SWINC
Subsidiaries into each other and with the SWINC Estate as set forth above, no
SWINC Subsidiary shall have an Allowed Claim against SWINC or another SWINC
Subsidiary, and vice versa. Such Intracompany Claims, however, are preserved
to the extent such Claims directly or indirectly contribute to an Intercompany
Claim on behalf of the SWINC Consolidated Estate against the SWE&C
Consolidated Estate, including without limitation the Class 6B Intercompany
Claim. Further, any Administrative Claims or subrogation claims by the SWINC
Consolidated Estate against the SWE&C Consolidated Estate are expressly
preserved as provided in Articles II and XVI of the Plan.
12.1.2 SWE&C Consolidated Estate. On the Effective Date, or
as soon thereafter as reasonably practicable, (a) each of the SWE&C
Subsidiaries and all their assets and liabilities shall be merged into and
become a part of the SWE&C Consolidated Estate; and (b) all assets and
liabilities of SWE&C and the SWE&C Subsidiaries, of any kind and nature
whatsoever, shall merge into and become a part of the SWE&C Consolidated
Estate, as set forth in Article 12.2.4 of this Plan; (c) any guarantees,
liabilities and/or obligations of SWE&C and any SWE&C Subsidiary, or more than
one Debtor entity in the SWE&C Consolidated Estate, by or to a single creditor
shall be deemed to be one obligation to said creditor entitling such creditor
to a single recovery from the SWE&C Consolidated Estate; (d) any proof of
claim filed or scheduled or otherwise made against SWE&C and any SWE&C
Subsidiary, or more than one Debtor entity in the SWE&C Consolidated Estate,
by or to a single creditor shall be deemed to be one obligation to said
creditor entitling such creditor to a single recovery from the SWE&C
Consolidated Estate; and (e) each of the Chapter 11 Cases of the SWE&C
Subsidiaries shall be deemed closed, and any proceedings that could have been
brought or commenced in such Chapter 11 Cases shall be brought or otherwise
commenced in the SWE&C Joint Case which shall remain pending for the
administration of the SWE&C Consolidated Estate pursuant to this Plan.
Further, on the Effective Date any Claims based upon guarantees of collection,
payment or performance made by SWE&C or any SWE&C Subsidiary as to the
obligations of SWE&C or any SWE&C Subsidiary shall be released and of no
further force and effect. As the result of the merger of the SWE&C
Subsidiaries into each other and with the SWE&C Estate as set forth above, no
SWE&C Subsidiary shall have an Allowed Claim against SWE&C or another SWE&C
Subsidiary, and vice versa. Such Intracompany Claims, however, are preserved
to the extent such claims directly or indirectly contribute to the SWE&C
Setoff Claim consisting of the aggregate Intercompany Claim on behalf of the
SWE&C Consolidated Estate against the SWINC Consolidated Estate. The SWE&C
Setoff Claim shall be setoff against the gross aggregate Intercompany Claim
asserted by the SWINC Consolidated Estate against the SWE&C Consolidated
Estate.
12.2 Vesting of Assets.
12.2.1 SWINC Consolidated Estate. On the Effective Date, the
SWINC Consolidated Estate shall be vested in and retain all property of the
Estates of the SWINC Subsidiaries, including without limitation: (a) all Cash
held by SWINC and the SWINC subsidiaries, including without limitation the
Cash necessary to fund the SWINC Consolidated Estate Implementation Reserve,
as defined hereafter, but excluding the Cash necessary to fund the Reorganized
SWINC Implementation Reserve; (b) all causes of action of SWINC retained for
enforcement pursuant to Articles XVI and XVII of the Plan; and (c) all
property of any other kind of the SWINC Subsidiaries and all causes of action
of the SWINC Subsidiaries retained for enforcement pursuant to Articles XVI
and XVII of the Plan. The SWINC Consolidated Estate shall be entitled to act
as the representative of the SWINC Subsidiaries' Estates pursuant to section
1123(b)(5) of the Bankruptcy Code.
Any Cash remaining in the Disputed Claims Reserve after
resolution of Disputed Claims as provided in the Plan, and that portion of the
SWINC Cash retained by the SWINC Consolidated Estate, not later than thirty
(30) days after the later of (a) the date on which all actions retained by the
SWINC Consolidated Estate under Articles XVI and XVII have been completed; (b)
the date on which all assets of the SWINC Consolidated Estate have been
liquidated and all funds due from Reorganized SWINC under section 12.2.3 of
the Plan have been collected; and (c) the date on which all Claims against any
Debtor in the SWINC Consolidated Estate have been allowed or disallowed, shall
be distributed as provided hereunder.
12.2.2 Reorganized SWINC. On the Effective Date, Reorganized
SWINC shall be vested exclusively in (1) any and all property interests in and
to any reversion in the Pension Plan and any Pension Plan related property
interests of any kind; (2) any Letter of Credit in which SWINC owned a
proprietary interest of any kind as of the Petition Date and which remains to
be liquidated as of the Effective Date; and (3) the Cash necessary to fund the
Reorganized SWINC Implementation Reserve. On the Effective Date, subject to
the provisions of the Plan, no other Debtors or Debtors' Estates shall have
any Claim, equitable or otherwise, to such reversionary interest in the
Pension Plan. Reorganized SWINC shall be authorized to conduct business
pursuant to Article 12.5 of this Plan.
12.2.3 Reorganized SWINC Obligations Under Plan. Reorganized
SWINC shall pay the SWINC Consolidated Estate its Distributable Cash as
necessary for the SWINC Consolidated Estate to: (a) make the payments required
under this Plan to Holders of Allowed Administrative Claims, Priority Tax
Claims and Allowed Claims and Interests in Classes 1A, 2A, 3A, 4A, and 6A; (b)
maintain the Disputed Claim Reserve required under Article X of the Plan; and
(c) maintain the Consolidated SWINC Estate Implementation Reserve in the
amounts deemed necessary or appropriate by the SWINC Liquidating Board.
Further, Reorganized SWINC shall be liable to pay the SWINC Liquidating Trust,
for the benefit of Allowed Class 5A Interests, all Distributable Cash
remaining after the foregoing payments have been made or the foregoing Holders
of Allowed Claims have been paid in full.
12.2.4 SWE&C Consolidated Estate. On the Effective Date, the
SWE&C Consolidated Estate shall be vested in and retain all property of the
Estates of the SWE&C Subsidiaries, including without limitation all causes of
action of SWE&C and any SWE&C Subsidiary retained for enforcement pursuant to
Articles XVI and XVII of the Plan.
12.3 Implementation Reserves. From and after the Effective Date,
the SWINC Consolidated Estate, Reorganized SWINC and the SWE&C Consolidated
Estate shall maintain the following reserves:
12.3.1 SWINC Consolidated Estate. The SWINC Consolidated
Estate shall maintain a reserve, in an amount determined by the SWINC
Liquidation Board in its business judgment, and in its sole discretion, to
ensure the ability to fund the implementation and effectuation of the intents
and purposes of the Plan, including without limitation the resolution of
objections to Claims against the SWINC Consolidated Estate, pursuit of actions
retained by the SWINC Consolidated Estate under Articles XVI and XVII of the
Plan, and the liquidation of all other assets of the SWINC Consolidated
Estate.
12.3.2 Reorganized SWINC. Reorganized SWINC shall maintain a
reserve, in an amount to be determined by the SWINC Liquidation Board, its
business judgment, to ensure its ability to fund the implementation and
effectuation of the intents and purposes of the Plan.
12.3.3 SWE&C Consolidated Estate. The SWE&C Consolidated
Estate shall maintain a reserve, in an amount determined by the SWE&C
Liquidation Board, its business judgment, to ensure the ability to fund the
implementation and effectuation of the intents and purposes of the Plan,
including without limitation the resolution of objections to Claims against
the SWE&C Consolidated Estate, pursuit of actions retained by the SWE&C
Consolidated Estate under Articles XVI and XVII of the Plan, and the
liquidation of all other assets of the SWE&C Consolidated Estate.
12.3.4 Replenishment of Reserves. The SWINC Liquidation
Board and the SWE&C Liquidation Board may, with respect to each of their
Estates and in their sole discretion, replenish their Implementation Reserve
from Cash otherwise available to their respective Consolidated Estates,
including from a Disputed Claims Reserve to the extent such Reserve has excess
Cash in it because of the disallowance of Disputed Claims. Similarly, the
SWINC Liquidation Board and/or the Board of Directors of Reorganized SWINC in
their sole discretion may replenish the Reorganized SWINC Implementation
Reserve from Cash otherwise available to Reorganized SWINC, or if no Cash is
available, from Cash otherwise available to the SWINC Consolidated Estate. In
the event any Cash remains in the Implementation Reserves after the final
resolution of Claims and Interests, the remaining Cash shall be distributed to
the respective underlying Consolidated Estate for distribution as provided in
the Plan.
12.4 Corporate Governance. From and after the Effective Date,
the SWINC Consolidated Estate, Reorganized SWINC and the SWE&C Consolidated
Estate shall be managed as follows:
12.4.1 SWINC Consolidated Estate. From and after the
Effective Date, issues of corporate governance, management and administration
regarding the SWINC Consolidated Estate shall be determined by members of the
SWINC Liquidation Board in accordance with the terms of this Plan and
otherwise applicable law.
12.4.2 Reorganized SWINC. From and after the Effective Date,
the corporate governance, management and administration of Reorganized SWINC
shall be determined by a new board of directors which shall govern Reorganized
SWINC's affairs in accordance with applicable law. The members of the board of
directors for Reorganized SWINC shall be the same as the members of the SWINC
Liquidation Board as of the Effective Date.
12.4.3 SWE&C Consolidated Estate. From and after the
Effective Date, issues of corporate governance, management and administration
regarding the SWE&C Consolidated Estate shall be determined by members of the
SWE&C Liquidation Board in accordance with the terms of this Plan and
otherwise applicable law.
12.5 Continued Corporate Existence & Operations of Reorganized SWINC.
Reorganized SWINC shall continue to exist 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 this Plan. Reorganized SWINC will be
authorized to engage in any lawful activity for which corporations may be
organized under the Delaware General Corporation Law.
12.5.1 Certificates of Incorporation and Bylaws -
Reorganized SWINC. On the Effective Date, the existing certificate of
incorporation and bylaws for SWINC shall be deemed to be amended and restated
in their entirety as provided in the Certificates of Incorporation and Bylaws,
respectively. The Certificates of Incorporation as restated shall restrict the
issuance of non-voting equity securities as provided in section 1123(a)(6) of
the Bankruptcy Code.
12.5.2 Corporate Actions to Implement Plan. On or before the
Effective Date, the board of directors of each Debtor shall cause each Debtor
to take all corporate and other action necessary to adopt, implement and
effectuate the intents and purposes of the Plan.
12.5.3 Dissolution of Reorganized SWINC. As promptly as
reasonably practicable, as determined by the Reorganized SWINC board of
directors, Reorganized SWINC shall adopt a resolution to dissolve itself under
Delaware General Corporation Law and shall commence such dissolution
proceeding. In connection therewith, the board of directors of Reorganized
SWINC shall (a) terminate the Pension Plan in a standard termination pursuant
to Title IV of ERISA, with the date of Pension Plan termination falling on a
date when Reorganized SWINC is in the dissolution proceeding, and (b)
otherwise pursue the dissolution proceeding toward the end of providing for
the distribution of the remaining assets of Reorganized SWINC to the SWINC
Consolidated Estate for payment to Holders of Allowed Claims against the SWINC
Consolidated Estate, and to the SWINC Liquidating Trust as the Holder of the
share of common stock of Reorganized SWINC, in accordance with section 12.2.3
of the Plan and Delaware General Corporation Law. Reorganized SWINC may retain
and compensate such employees and professionals as it deems necessary to
enable it to perform its duties under this section.
12.6 Dissolution of Other Debtors. Pursuant to this Plan, the
Confirmation Order and applicable state law, a Debtor shall cease to exist as
a corporate entity and shall be deemed, as a matter of law, dissolved as of
its Final Distribution Date, unless the SWE&C Liquidation Board or the SWINC
Liquidation Board elects to dissolve a Debtor within their respective
Consolidated Estates sooner. Each Liquidation Board shall cause to be filed
with the Court a notice of any Final Distribution Date with respect to its
Consolidated Estate. The SWINC Liquidation Board and the SWE&C Liquidation
Board shall each file a certificate of dissolution for such Debtors as they
are dissolved and shall take all other actions necessary or appropriate to
effect the dissolution of the remaining Debtors, if any, by no later than the
Final Distribution Date.
12.6.1 Certificates of Incorporation and Bylaws - Other
Debtors. To the extent any other Debtor is not dissolved pursuant to section
12.6 of this Plan, the existing certificate of incorporation and bylaws for
such Debtor shall be deemed to be amended and restated in its entirely as
provided therein, until such time as the Debtor is dissolved in accordance
with this Plan.
12.7 Dissolution of Board(s) of Directors. Upon the inauguration of
the SWINC Liquidation Board on the Effective Date, each of the then existing
members of each Debtor's board of directors for SWINC and the SWINC
Subsidiaries shall be deemed to have resigned and each board of directors
shall be dissolved. Similarly, upon the inauguration of the SWE&C Liquidation
Board on the Effective Date, each of the then existing members of each
Debtor's board of directors for SWE&C and the SWE&C Subsidiaries shall be
deemed to have resigned and each board of directors shall be dissolved.
12.8 Shares of Common Stock. All shares of Common Stock of SWINC
shall be cancelled as of the Effective Date. Reorganized SWINC shall issue one
share of Common Stock, which shall be distributed to the SWINC Liquidating
Trust on the Effective Date. The beneficial interests in the SWINC Liquidating
Trust will not be represented by certificates and will not be transferable
except by operation of law. The SWINC Liquidating Trust shall exist only to
effect a liquidation and will be terminated upon action of the SWINC
Liquidating Board.
12.9 Payment of Fees Under 28 U.S.C. ss.1930. Any fees due under 28
U.S.C. ss.1930 after the Effective Date shall be paid from the Implementation
Reserves of the SWINC Consolidated Estate and the SWE&C Consolidated Estate,
respectively, as if for one Consolidated Estate with respect to each, as
described in section 12.1 of this Plan.
12.10 Effectuating Documents; Exemption from Certain Transfer Taxes
and Further Transactions. Each Debtor shall be authorized and is hereby
directed to execute, deliver, file or record such documents, contracts,
instruments, releases and other agreements and take such other action as may
be necessary to effectuate and further evidence the terms and conditions of
the Plan. Pursuant to section 1146(c) of the Bankruptcy Code, the issuance or
exchange of any security, or the making or delivery of any instrument of
transfer under, in furtherance of, or in connection with, the Plan, including
but not limited to, any merger or consolidation agreements, deeds, bills of
sale, assignments or other instruments of transfer relating to property of an
Estate after the Effective Date, shall not be subject to any stamp tax, real
estate transfer tax or similar tax. The Shaw Sale, which has generated the
funds necessary to implement the Plan, is hereby deemed to have been
undertaken in furtherance of the Plan for purposes of section 1146(c) of the
Bankruptcy Code.
ARTICLE XIII
LIQUIDATION BOARD AND
POST-EFFECTIVE DATE MANAGEMENT
13.1 Liquidation of the Consolidated Estates.
13.1.1 SWINC Consolidated Estate. Under the supervision and
control of the SWINC Liquidation Board, following the Effective Date, the
SWINC Consolidated Estate shall liquidate all remaining property of its Estate
as rapidly, efficiently and prudently as practicable with the goal of
maximizing the recoveries, shall pursue objections to Claims against its
Estate and the prosecution of Claims belonging to the SWINC Consolidated
Estate, shall pay ratable distributions from Distributable Cash to Holders of
Allowed Claims against the SWINC Consolidated Estate and shall take all other
actions permitted or provided for under the Plan.
13.1.2 SWE&C Consolidated Estate. Under the supervision and
control of the SWE&C Liquidation Board, following the Effective Date, the
SWE&C Consolidated Estate shall liquidate all remaining property of its Estate
as rapidly, efficiently and prudently as practicable with the goal of
maximizing the recoveries, shall pursue objections to Claims against its
Estate and the prosecution of Claims belonging to the SWE&C Consolidated
Estate, shall pay ratable distributions from Distributable Cash to Holders of
Allowed Claims against the SWE&C Consolidated Estate and shall take all other
actions permitted or provided for under the Plan.
13.2 Supervision of Liquidation. From the Effective Date, the
activities specified in section 13.1 of the Plan shall be implemented and
supervised by the respective Liquidation Boards designated as follows:
13.2.1 Selection of SWINC Liquidation Board. On or
prior to the Effective Date, the Equity Committee shall designate a minimum of
three (3) and a maximum of five (5) individuals to serve as members of the
SWINC Liquidation Board. The Equity Committee designates the following
individuals: (1) a designated new manager to be named by not later than May 2,
2003; (2) Mr. James Kjorlien of CRT Capital Group, LLC, a current shareholder;
and (3) a designee to be named from Grace Brothers Ltd., Chair of the Equity
Committee. In addition, the Equity Committee may nominate an additional two
persons to serve on the SWINC Liquidation Board by not later than fifteen (15)
days prior to the Confirmation Hearing.
13.2.2 Selection of SWE&C Liquidation Board. On or prior to
the Effective Date, the Equity Committee, the Debtors and the Creditors'
Committee shall each designate one (1) individual, for a total of three (3)
individuals, to serve as members of the SWE&C Liquidation Board. Subject to
approval of such individuals by the Court, each of the individuals so
designated shall become a member of the SWE&C Liquidation Board, and the
designated members shall comprise the SWE&C Liquidation Board as of the
Effective Date. In the event that Class 4B-1 votes to reject the Plan,
however, the SWINC Liquidation Board will appoint that member of the SWE&C
Liquidation Board that would otherwise be appointed by the Creditors'
Committee.
13.3 Authority of Liquidation Board. The SWINC Liquidation Board and
the SWE&C Liquidation Board shall each be authorized to effectuate this Plan,
with respect to their respective Consolidated Estates, and to carry out all
orders of the Court relative thereto, perform each Debtor's other obligations
under the Plan and applicable bankruptcy and other law and otherwise manage
the affairs of their respective Consolidated Estates in a manner consistent
with the intent of this Plan. Pursuant to section 303(a) of the Delaware
Corporation Law, each of the SWINC Liquidation Board and the SWE&C Liquidation
Board: (a) may initiate any proceeding or do any act consistent with the above
without any further action by such Debtor's directors or stockholders, and (b)
all actions taken by said Liquidation Board under this Plan and consistent
with the foregoing shall have the same effect as if exercised and taken by
unanimous action of the directors and stockholders of such Debtor. Decisions
of the Liquidation Boards may be made by majority vote unless the members of
such Liquidation Board unanimously designate any decision as requiring
unanimous decision.
13.4 Compensation and Indemnification of Members of the Liquidation
Boards. With respect to each of the SWINC Liquidation Board and the SWE&C
Liquidation Board, the initial members of each of said Liquidation Boards
shall be reasonably compensated, and shall enjoy the indemnification and other
rights, consistent with Delaware General Corporation Law, as are provided in a
writing filed by the Equity Committee at least five (5) Business Days prior to
the Confirmation Date. Subsequent members shall be compensated, and shall
enjoy such indemnification and other rights, as are reasonably agreed to by
the then existing Liquidation Board and, to the extent such compensation,
indemnification or other rights differ materially from that applicable to the
member being replaced, approved by the Court.
13.5 Removal. Any member of either the SWINC Liquidation Board or the
SWE&C Liquidation Board may be removed in any manner in which a member of a
board of directors may be removed under Delaware General Corporation Law.
13.6 Vacancies. Vacancies on either the SWINC Liquidation Board or
the SWE&C Liquidation Board shall be filled by a majority vote of the
remaining members of the respective Liquidation Board. With respect to the
SWINC Liquidation Board, in addition to the foregoing and in the absence of a
majority, vacancies may be filled by the majority vote of the Holders of the
beneficial interests in the SWINC Liquidating Trust.
13.7 Delegation of Authority. Each of the SWINC Liquidation Board and
the SWE&C Liquidation Board may delegate its obligations and responsibilities
under this Plan to officers of a Debtor or agents of their choosing, including
without limitation, by retaining a manager to manage the liquidation and
interim operation of all or any portion of the assets of their respective
Consolidated Estates.
13.8 Fees and Expenses of Professionals. Other than as specifically
provided in any agreement pursuant to which a professional renders services to
a Consolidated Estate, the reasonable fees and expenses incurred of any and
all professionals post-Effective Date (including, without limitation, legal
counsel and financial advisors) retained by such Consolidated Estate in
connection with the implementation of the Plan and the fulfillment of such
Consolidated Estate's duties, as approved and agreed to by the SWINC
Liquidation Board or the SWE&C Liquidation Board, for each of their respective
Consolidated Estates, may be paid by such Consolidated Estate without any
requirement of approval by the Court of the retention, fees or expenses of
such professionals. Professionals retained after the Effective Date by a
Consolidated Estate need not be "disinterested" within the meaning of the
Bankruptcy Code and may represent more than one Consolidated Estate and
Reorganized SWINC.
13.9 Further Orders. The SWINC Liquidation Board and the SWE&C
Liquidation Board shall each be entitled to seek such orders or such other
relief from the Court as it deems appropriate to implement the intent of the
Plan, including without limitation, an order approving or directing the
transfer, dividend or distribution of any asset held by any Debtor.
13.10 Liability and Indemnification of Members of the Liquidation
Boards. With respect to each of the SWINC Liquidation Board and the SWE&C
Liquidation Board, the members of such Liquidation Board, acting in such
capacity after the Effective Date, shall not be personally liable in
connection with any act or omission except for such acts or omissions as shall
constitute fraud, gross negligence or willful misconduct. Except in those
instances in which the member of the Liquidation Board is found by a Final
Order to have engaged in acts or omissions constituting fraud, gross
negligence or willful misconduct, such members of the Liquidation Board shall
be indemnified by the respective Consolidated Estate on whose Liquidation
Board they serve from any losses, Claims, damages, liabilities or expenses
(including without limitation, reasonable attorneys' fees, disbursements and
related expenses) (collectively, "Expenses") which such members of the
Liquidation Board may incur or to which such members may become subject in
connection with any action, suit, proceedings or investigation (collectively,
"Action") brought or threatened against such Liquidation Board members in such
members' capacity as Liquidation Board members. If any Liquidation Board
member incurs or becomes subject to any Expenses in connection with any such
Action, the SWINC Consolidated Estate or the SWE&C Consolidated Estate, as
applicable, shall advance to, or otherwise reimburse, such member for such
Expenses; provided, however, that such Liquidation Board member shall be
required to promptly repay to the applicable Consolidated Estate the amount of
any such advanced or reimbursed Expenses paid to him or her to the extent that
it shall be ultimately determined by Final Order that the proximate cause for
such Expense was such Liquidation Board member's fraud, gross negligence or
willful misconduct. Each of the SWINC Consolidated Estate and the SWE&C
Consolidated Estate shall, at the request of their respective Liquidation
Board, jointly and severally, indemnify and hold harmless the agents and
professionals retained by said Liquidation Board on customary terms acceptable
to the Liquidation Board members.
13.11 SWINC Liquidating Trust. On the Effective Date, the SWINC
Liquidating Trust shall be formed to hold the share of Reorganized SWINC. The
members of the SWINC Liquidating Board shall be the trustees of the SWINC
Liquidating Trust. The SWINC Liquidating Trust shall hold the share of
Reorganized SWINC, shall perform all duties incident thereto and shall
distribute amounts received from Reorganized SWINC Pro Rata to the Holders of
beneficial interests in it, who shall be Holders of Allowed Class 5A
Interests. The SWINC Liquidating Trust, as the Holder of a share of
Reorganized SWINC, will receive no distributions from Reorganized SWINC or the
SWINC Consolidated Estate until all Holders of Allowed Claims in Classes 1A,
2A, 3A and 4A have been paid in full pursuant to the terms of the Plan, and
the Holders of Allowed Class 5A Interests will receive nothing on account of
their beneficial interests in the SWINC Liquidating Trust unless and until
such Holders have been paid in full pursuant to the Plan. The SWINC
Liquidating Trust shall be subject to the SWINC Liquidating Trust Agreement, a
copy of which is attached as Exhibit D to this Plan.
ARTICLE XIV
CONDITIONS PRECEDENT TO
CONFIRMATION AND CONSUMMATION OF THE PLAN
14.1 Conditions to Confirmation. The Confirmation Order must
be acceptable in form and substance to the Equity Committee.
14.2 Conditions to Effective Date. The Plan will not be consummated
and the Effective Date will not occur unless and until each of the following
conditions has been satisfied: (a) the Confirmation Order shall have been
entered by the Court in a form satisfactory to the Equity Committee; and (b)
the Confirmation Order shall have become enforceable pursuant to Bankruptcy
Rule 7062.
14.3 Waiver of Conditions. The conditions to Confirmation and the
Effective Date may be waived in whole or in part by the Equity Committee, at
any time, without notice.
14.4 Effect of Non-Occurrence of Conditions to Effective Date. If
each condition to the Effective Date has not been satisfied or duly waived
pursuant to section 14.3 above, within ninety (90) days after the Confirmation
Date, then upon motion by any party in interest made before the time that each
condition has been satisfied or duly waived and upon notice to such parties in
interest as the Court may direct, the Confirmation Order may be vacated by the
Court; provided, however, that, notwithstanding the filing of such motion, the
Confirmation Order may not be vacated if each of the conditions to the
Effective Date is satisfied or duly waived before the Court enters an order
granting the motion. If the Confirmation Order is vacated pursuant to this
section 14.4, the Plan will be deemed null and void, including the
assumptions, assumptions and assignments or rejections of executory contracts
and unexpired leases pursuant to Article XI above, and nothing contained in
the Plan will (a) constitute a waiver or release of any Claims by or against,
or any Interests in, any Debtor, or (b) prejudice in any manner the rights of
any Debtor.
ARTICLE XV
CRAMDOWN
15.1 Cramdown Intention. The Equity Committee intends to request
that the Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code if any impaired Class fails to accept the Plan.
15.2 Modification to Plan in the Event of Cramdown. The Equity
Committee specifically reserves the right to modify the Plan and seek its
confirmation as modified in accordance with section 1129(b) of the Bankruptcy
Code. In the event that cramdown under Bankruptcy Code section 1129(b) is
necessary for the Debtors included in the SWE&C Consolidated Estate but is
denied by the Bankruptcy Court, the Equity Committee reserves the right to
modify the Plan so as to seek confirmation for only the Debtors included in
the SWINC Consolidated Estate. If the Plan is confirmed as to the SWINC
Consolidated Estate only, then in such circumstances the Chapter 11 Cases of
SWE&C and the SWE&C Subsidiaries would continue unaffected by this Plan.
ARTICLE XVI
PLAN CONFIRMATION AND EFFECT THEREOF
16.1 Voting Classes. Claims and Interests in Classes 3B, 4B-1, 4B-2,
5A and 6A are impaired under the Plan and shall be entitled to vote to accept
or reject this Plan. Claims and Interests in Classes 1A, 1B, 2A, 2B, 3A and 4A
are unimpaired under the Plan, are presumed to have accepted the Plan, and
shall not be entitled to vote to accept or reject the Plan. Claims and
Interests in Classes 5B and 7B either are unlikely to receive or retain any
property on account of such Claims or do not receive or retain any property on
account of said Interests and, under the Bankruptcy Code, these Classes are
conclusively deemed to have rejected the Plan, and their votes will not be
solicited. Claims in Class 6B are held by Debtors, and the votes of Holders of
Class 6B Claims will not be solicited.
16.2 Disputed Claims For Voting Purposes. The Claims identified in
Exhibit E to the Plan as disputed, contingent, or unliquidated shall not be
entitled to vote unless otherwise agreed upon by the Equity Committee by Court
order upon a motion filed pursuant to Federal Bankruptcy Rule 3018(a) seeking
the temporary allowance of such Claim for voting purposes, which motion is
granted on or before the Rule 3018 Motion Deadline to be set by the Court, as
set forth more fully in the Disclosure Statement Order attached as part of
Exhibit "C" to the Plan.
16.3 Discharge Provisions. The confirmation of the Plan does not
discharge any Debtor from any debt that arose prior to the Effective Date or
any debt of any kind specified in section 502(g), 502(h) or 502(i) of the
Bankruptcy Code, except any Claims disallowed under the Plan including without
limitation Claims not filed by any deadline set by the Bankruptcy Code, order
of the Court or this Plan.
16.3.1 Notwithstanding the foregoing, Reorganized SWINC
shall be discharged from liabilities to Holders of any and all Claims against
SWINC arising prior to the Petition Date, any debt of any kind specified in
section 502(g), 502(h) or 502(i) of the Bankruptcy Code and any Claims not
filed by any deadline set by the Bankruptcy Code, order of the Court or this
Plan, except for liability for payment to the SWINC Consolidated Estate of
such Cash as necessary to make all payments due under the Plan to Holders of
Allowed Claims against the SWINC Consolidated Estate.
16.3.2 Pursuant to section 19.7.2 of the Plan, at such time
as Reorganized SWINC files a state court dissolution proceeding, any Holders
of Claims against SWINC arising prior to the Petition Date shall be barred
from filing such Claims against Reorganized SWINC in such dissolution
proceeding; however, such Holders shall retain all rights to seek payment of
their Allowed Claims from the SWINC Consolidated Estate in accordance with the
terms of the Plan. Pursuant to section 12.2.3 of the Plan, Reorganized SWINC
shall remain liable to the SWINC Consolidated Estate for payment of all Cash
necessary to pay Allowed Claims against the SWINC Consolidated Estate in
accordance with the terms of the Plan.
16.4 Exculpation. As of the Effective Date, none of the current or
former members of the Equity Committee, or any officers, directors, employees,
advisors, professionals or agents of said members or of the Equity Committee
(the "Exculpated Parties") shall have or incur any liability to any Holder of
a Claim or Interest, for any act or omission in connection with, related to,
or arising out of, the Chapter 11 Case of any Debtor, the pursuit of
confirmation of the Plan, the consummation of the Plan, the administration of
the Plan, or the property to be distributed under the Plan, except for with
respect to any such Exculpated Party:
(a) any indebtedness of such Exculpated Party to a
Debtor for money borrowed by such Exculpated Party;
(b) any setoff or counterclaim a Debtor may have or
assert against such Exculpated Party, provided that
the aggregate amount thereof shall not exceed the
aggregate amount of any Claims held or asserted by
such Exculpated Party against such Debtor and
provided further that such Debtor shall not be
permitted to assert any such setoff or counterclaim
against any Post-Petition Indemnification Claims;
(c) the uncollected amount of any Claim made by a
Debtor (whether in a filed pleading, by letter or
otherwise) prior to the Effective Date against such
Exculpated Party; or
(d) any Claims arising from the fraud, gross negligence
or willful misconduct of such Exculpated Party; or
(e) any Claim against a fiduciary of the Pension Plan,
the ESOP, the Group Life Insurance and Spouses
Insurance Plan of Stone & Webster, Incorporated or
the Employee Investment Plan of Stone & Webster,
Incorporated with respect to the Pension Plan or
such other Plan.
The release embodied in this section 16.4 of the Plan is in addition to, and
not in lieu of, any other release separately given, conditionally or
unconditionally, by any Debtor to any other Exculpated Party. Nothing in this
Plan shall affect or limit any action by the Secretary of Labor, United States
Department of Labor (the "Department of Labor"), consistent with the
Stipulated Agreement between Stone & Webster, Incorporated and the Department
of Labor approved by the Court (Docket #2946). Pursuant to that Stipulated
Agreement, the Department of Labor compromised certain claims against SWINC in
exchange for agreement as to the termination of the EIP, ESOP and Pension Plan
and payment of $300,000 to be allocated pro rata to EIP participants.
16.5 Waiver of Contractual Subordination Rights. Each Holder of a
Claim by virtue of such Holder's receiving distributions hereunder, waives,
releases and relinquishes any and all rights to the issuances, payments and
distributions of consideration made or to be made under the Plan to any other
Holder of a Claim arising under any subordination agreement entered into
before the Petition Date, provided, however, that (i) all subordination of
rights arising under section 510 of the Bankruptcy Code or resulting from the
classification, treatment and distribution provisions of this Plan shall be
preserved and shall be unaffected by operation of this section 16.5
16.6 Preservation of Subrogation Rights. The SWINC Consolidated
Estate and the SWE&C Consolidated Estate shall each respectively be entitled
to assert any and all equitable rights of subrogation, contribution,
indemnification and exoneration arising or existing under applicable law with
respect to any Allowed Claims paid under the Plan, said rights being expressly
preserved herein, including without limitation, the rights of the SWINC
Consolidated Estate with respect to payment of any Allowed Claim arising from
the Guaranty by SWINC or a SWINC Subsidiary of an Allowed Claim against SWE&C
or a SWE&C Subsidiary.
16.7 Binding Effect; Continuation of Stay. The provisions of the Plan
shall bind each Debtor, the SWE&C Consolidated Estate, the SWINC Consolidated
Estate, any Creditor and any Holder of an Interest, regardless of whether any
Claim or Interest of such Creditor or Holder of an Interest is impaired under
the Plan, and regardless of whether such Holder has accepted the Plan. The
stay of any act against property of the SWINC Consolidated Estate, the SWE&C
Consolidated Estate, and any other Debtor Estate provided by Bankruptcy Code
section 362(a) shall continue until such property is no longer property of the
respective successor Consolidated Estate under this Plan, and the stay of any
other act provided by Bankruptcy Code section 362(a) shall continue, to the
extent permitted by applicable law, until the applicable Case is closed
pursuant to applicable law. The stay shall also apply to the property of
Reorganized SWINC until Reorganized SWINC commences a dissolution proceeding
under Delaware General Corporation Law, at which time acts against Reorganized
SWINC shall be governed by such law.
16.8 Preservation of Causes of Action. The SWE&C Consolidated Estate
on behalf of SWE&C and the SWE&C Subsidiaries, and the SWINC Consolidated
Estate on behalf of SWINC and the SWINC Subsidiaries, shall each retain the
sole and exclusive right to pursue or retain the Litigation Claims owned by
each of their respective Consolidated Estates and all causes of action
recoverable by the Debtors in such Consolidated Estate under Chapter 5 of the
Bankruptcy Code, including without limitation all Claims under sections 510
and 544-550 of the Bankruptcy Code, and all Claims owned by the respective
Debtors in each Consolidated Estate pursuant to section 541 of the Bankruptcy
Code or similar state law, including all Claims against third parties on
account of any indebtedness, and all other Claims owed to or in favor of such
Debtor to the extent not specifically compromised and released pursuant to
this Plan or an agreement referred to or incorporated herein, and all such
causes of action will be preserved for enforcement only by the Consolidated
Estate of each such Debtor under this Plan after the Effective Date. Each
Consolidated Estate shall act as the representative of the respective Debtors
included in that Consolidated Estate pursuant to section 1123 of the
Bankruptcy Code for this and all other purposes. The failure of the Equity
Committee to list or identify specific Litigation Claims being preserved shall
not constitute a waiver or release by any of the Debtors or their respective
Consolidated Estates of such Claims, as they are hereby expressly preserved.
16.9 Legally Binding Effect. The provisions of this Plan will bind
all Creditors and Interest Holders, regardless of whether they accept this
Plan.
ARTICLE XVII
RETENTION OF JURISDICTION
17.1 Jurisdiction. Until a Case is closed, the Court will retain such
jurisdiction as is legally permissible, including that necessary to: (a)
ensure that the purposes and intents of this Plan are carried out; (b) assist
the SWINC Consolidated Estate and the SWE&C Consolidated Estate with the
implementation and enforcement of their respective duties and rights under the
Plan, and (c) hear and determine all Claims that could have been brought. The
Court will retain jurisdiction to hear and determine all Claims against each
Debtor, and its respective successor Consolidated Estate, and to enforce all
Claims that may exist on behalf of such Debtor except as provided for in this
Plan. Nothing contained in this Plan will prevent the SWINC Consolidated
Estate or the SWE&C Consolidated Estate on behalf of any Debtor from taking
such action as may be necessary in the enforcement of any Claim, cause of
action or right that may exist on behalf of such Debtor and that may not have
been enforced or prosecuted by such Debtor.
17.2 Examination of Claims. Following the Effective Date, the Court
will retain exclusive jurisdiction to decide disputes concerning the
estimation, classification and allowance of the Claim of any Creditor. Any
claimants having filed proofs of claim in the Debtors' Chapter 11 cases shall
be required to have their Claims adjudicated before this Court, unless the
SWINC Consolidated Estate on behalf of SWINC or a SWINC Subsidiary or the
SWE&C Consolidated Estate on behalf of SWE&C or a SWE&C Subsidiary agree
otherwise in writing.
17.3 Property of the Debtors. The Court will retain jurisdiction
after the Effective Date of the SWE&C Joint Case and the SWINC Joint Case to
determine any and all adversary proceedings, applications and contested
matters with respect to a Debtor, as appropriate, including proceedings for
the recovery of assets and property of any of the Debtors, wherever located
and proceedings to determine the nature and extent of the Debtors' property
rights in any property of their respective estates, wherever located.
17.4 Determination of Disputes. The Court will retain jurisdiction
after the Effective Date to determine all questions and disputes regarding the
property of the SWE&C Consolidated Estate the SWINC Consolidated Estate and,
until Reorganized SWINC commences a state court dissolution proceeding,
Reorganized SWINC; disputes concerning the allowance of Claims, and all causes
of action, controversies, disputes, or conflicts, whether or not subject to
any pending action, as of the Effective Date; and all contested maters,
adversary proceedings and litigated matters arising out of, under, or related
to the Chapter 11 Cases.
17.5 Additional Purposes. The Court will retain jurisdiction for the
following additional purposes, consistent with paragraph 17.1 of this Plan,
after the Effective Date:
(a) to resolve any matters related to the assumption,
assumption and assignment or rejection of any
executory contract or unexpired lease to which a
Debtor is a party or with respect to which a Debtor
may be liable and to hear, determine and, if
necessary, liquidate, any Claims arising therefrom;
(b) to adjudicate matters and enter such orders as may
be necessary or appropriate to correct, interpret,
implement or consummate the provisions of the Plan
and all contracts, instruments, releases,
indentures and other agreements or documents
created in connection with the Plan;
(c) to assure performance by a Debtor, the SWINC
Consolidated Estate, the SWE&C Consolidated Estate
or the SWINC Liquidating Trust of its obligations
to make distributions under this Plan and otherwise
ensure that distributions to Holders of Allowed
Claims and Allowed Interests are accomplished as
provided herein;
(d) to hear and determine any timely objections to
Administrative Claims or to proofs of claim and
equity interests filed, both before and after the
Confirmation Date, including any objections to the
classification of any Claim or Interest, and to
allow, disallow, determine, liquidate, classify,
estimate or establish the priority of the secured
or unsecured status or any Claim, in whole or in
part, or otherwise determine if a Claim is an
Allowed Claim or if an Interest is an Allowed
Interest;
(e) to enter and implement such orders as may be
appropriate in the event the Confirmation Order is
for any reason stayed, revoked, modified, reversed
or vacated;
(f) to issue such orders in aid of execution,
implementation or consummation of the Plan, to the
extent authorized by section 1142 of the Bankruptcy
Code and similarly aid in the execution,
enforcement and implementation of any contract
instrument, release, agreement or document executed
or created pursuant to the Plan;
(g) to consider any modifications of the Plan, to cure
any defect or omission, or reconcile any
inconsistency in any order of the Bankruptcy Court,
including the Confirmation Order pursuant to
section 1127(b) of the Bankruptcy Code;
(h) to hear and determine all applications for awards
of compensation for services rendered and
reimbursement of expenses incurred prior to the
Effective Date pursuant to sections 330, 331,
507(a)(1), 503(b), 1103 and 1129(a)(4) of the
Bankruptcy Code provided, however, that after the
Effective Date the payment to professionals for
fees and expenses incurred after the Effective Date
shall be made in the ordinary course of business
and shall not be subject to approval of the Court;
(i) to hear and determine disputes arising in
connection with the interpretation, implementation,
or enforcement of the Plan or the extent of any
entity's obligations incurred in connection with or
released under the Plan;
(j) to 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 or enforcement of
the Plan, except as otherwise provided herein;
(k) to determine any other matters that may arise in
connection with or relate to the Plan, the
Disclosure Statement, the Confirmation Order or any
contract, instrument, release, indenture or other
agreement or document created in connection with
the Plan or the Disclosure Statement;
(l) to hear and determine matters concerning state,
local and federal taxes in accordance with sections
346, 505, and 1146 of the Bankruptcy Code including
any federal tax reporting and withholding issues
which arise in connection with the confirmation and
consummation of this Plan;
(m) to hear any other matter not inconsistent with the
Bankruptcy Code including the enforcement of prior
Orders of the Bankruptcy Court in the Debtors'
Chapter 11 Cases, and to enter and implement such
orders as are necessary or appropriate if the
Confirmation Order is for any reason or in any
respect, stayed, reversed, revoked or vacated or
distributions pursuant to the Plan are enjoined or
stayed;
(n) to assure the timely performance by the SWINC
Consolidated Estate and the SWE&C Consolidated
Estate of their respective obligations under this
Plan; and
(o) to enter final decrees closing the Chapter 11
Cases.
ARTICLE XVIII
DEFAULT UNDER PLAN
18.1 Asserting Default. If the SWINC Consolidated Estate or the SWE&C
Consolidated Estate defaults under the provisions of this Plan (as opposed to
default under the documentation executed in implementing the terms of the
Plan, which documents will provide independent bases for relief), any Creditor
of such Consolidated Estate or party in interest desiring to assert a default
will provide such Consolidated Estate with thirty (30) days written notice of
the alleged default prior to seeking any relief from the Bankruptcy Court. The
notice shall be delivered by United States certified mail, postage prepaid,
return receipt requested addressed to the following address:
(a) If to the SWINC Consolidated Estate:
c/o SWINC Liquidation Board
[addresses to be provided at Confirmation
Hearing and in Confirmation Order]
and to counsel for the SWINC Liquidation Board:
BELL, BOYD & LLOYD LLC
Attention: David F. Heroy
70 West Madison Street, Suite 3300
Chicago, Illinois 60602-4207
(b) If to the SWE&C Liquidation Board:
c/o SWE&C Liquidation Board
[addresses to be provided at Confirmation
Hearing and in Confirmation Order]
and to counsel for the SWE&C Liquidation Board:
[addresses to be provided at Confirmation
Hearing and in Confirmation Order]
18.2 Curing Default. The SWINC Consolidated Estate and the SWE&C
Consolidated Estate shall each have thirty (30) days from receipt of the
written notice in which to cure an alleged default under this Plan, including
any default under any Related Document. If the default has not been cured by
then, any Creditor of such Consolidated Estate or party in interest may
thereafter seek relief from the Court.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Compliance with Tax Requirements. In connection with this Plan,
the SWINC Consolidated Estate and the SWE&C Consolidated Estate shall comply
with all withholding and reporting requirements imposed by federal, state, and
local taxing authorities, and distributions will be subject to such
withholding and reporting requirements.
19.2 Amendment of the Plan. The Equity Committee reserves the right
to Amend this Plan at any time before the Confirmation Date, without further
notice except as provided at the Confirmation Hearing. After the Confirmation
Date and prior to substantial consummation of the Plan, the Equity Committee
may institute proceedings, pursuant to section 1127(b) of the Bankruptcy Code,
to remedy any defect or omission or reconcile any inconsistencies in the Plan,
Disclosure Statement or Confirmation Order, so long as such proceedings do not
materially adversely affect the treatment of Holders of Claims or Interests
under the Plan, provided notice of such proceedings shall be served in
accordance with the Bankruptcy Rules or as ordered by the Court.
19.3 Revocation of Plan. The Equity Committee reserves the right to
revoke and withdraw this Plan at any time before the Confirmation Date.
19.4 Effect of Withdrawal or Revocation. If the Equity Committee
revokes and withdraws this Plan before the Confirmation Date, or if the
Confirmation Date or the Effective Date does not occur, then this Plan will be
null and void. In such event, nothing contained herein will be deemed to
constitute a waiver or release of any Claims by or against any Debtor or any
other Person, or Statutory Committee or to prejudice in any manner the rights
of the Equity Committee or any Debtor or any Person in any further proceedings
involving any Debtor.
19.5 Due Authorization By Holders. Each and every Holder of a Claim
against a Debtor or Interest in a Debtor who elects to participate in the
distributions provided for herein warrants that it is authorized to accept in
consideration of the Claim against such Debtor or Interest in such Debtor the
distributions provided for in this Plan and that there are no outstanding
commitments, agreements, or understandings, express or implied, that may or
can in any way defeat or modify the rights conveyed or obligations undertaken
by it under this Plan.
19.6 Implementation. Each Debtor will be authorized to take all
necessary steps, and perform all necessary acts, to consummate the terms and
conditions of the Plan.
19.7 Injunction.
19.7.1 Except as provided in the Plan, as of the Effective
Date, all persons are permanently enjoined from commencing or continuing in
any manner, any action or proceeding, whether directly, derivatively, on
account of or respecting any Claim, debt, right or cause of action of any
Debtor as to which a Debtor retains sole and exclusive authority to pursue in
accordance with this Plan or which has been released by a Debtor in accordance
with the Plan.
19.7.2 At such time as Reorganized SWINC files a state court
dissolution proceeding, any Holders of Claims arising prior to the Petition
Date shall be barred and enjoined from filing or asserting such Claims against
Reorganized SWINC and shall instead be required to assert any rights they may
have against the SWINC Consolidated Estate in accordance with the terms of the
Plan. Pursuant to section 12.2.3 of the Plan, Reorganized SWINC shall be
liable to the SWINC Consolidated Estate for payment of Allowed Claims against
the SWINC Consolidated Estate in accordance with the terms of the Plan.
19.7.3 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 SWINC Consolidated Estate or an Interest in SWINC or a SWINC
Subsidiary or the SWINC Consolidated 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 Consolidated Estate, Reorganized SWINC,
or any of their property on account of any such Claims or Interests and (b)
preliminary enjoined from taking any of the following actions against SWINC, a
SWINC Subsidiary, the SWINC Consolidated 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 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 Spouse Insurance Plan
of Stone & Webster or the Employee Investment Plan of Stone & Webster
Incorporated and Participating Subsidiaries. The foregoing provisions shall
not apply to Holders of Allowed Asbestos Claims seeking to enforce their
rights against the Asbestos Trust in accordance with the Plan.
19.7.4 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 Consolidated
Estate, or any of their property on account of any 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 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. The foregoing provisions shall not apply to
Holders of Allowed Asbestos Claims seeking to enforce their rights against the
Asbestos Trust in accordance with the Plan.
19.7.5 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 Sections 19.7.2 through 19.7.4.
19.8 Limitation of Liability in Connection with the Plan,
Disclosure Statement and Related Documents and Related Indemnity.
19.8.1 The Equity Committee and its members and
professionals will neither have nor incur any liability to any entity for any
act taken or omitted to be taken in connection with or related to the
formulation, preparation, dissemination, implementation or confirmation of the
Plan, the Disclosure Statement, the Confirmation Order or any contract,
instrument, release or other agreement or document created or entered into, or
any other act taken or omitted to be taken in connection with the Plan, the
Disclosure Statement or the Confirmation Order; including solicitation of
acceptances of the Plan; provided, however, that the provisions of this
section 19.8.1 shall have no effect on the liability of the Equity Committee
and its members that would otherwise result from any such act or omission to
the extent that such act or omission is determined in a Final Order to have
constituted gross negligence or willful misconduct.
19.8.2 On and after the Effective Date, the Consolidated
Estates shall, jointly and severally, indemnify the Equity Committee and each
of its members and professionals, hold them harmless from, and reimburse them
for, any and all losses, costs, expenses (including attorneys' fees and
expenses), liabilities and damages sustained by any of them arising from any
liability described in this section 19.8.
19.9 Dissolution of Committees After the Effective Date. Pursuant to
this Plan, the Confirmation Order and applicable state law, the Creditors'
Committee and the Equity Committee shall cease to exist and shall be deemed,
as a matter of law, dissolved, as of the Effective Date, and the members shall
be relieved of all their responsibilities and duties in these cases. The
employment of all professionals and counsel retained by the Creditors'
Committee and the Equity Committee, and any members thereof, shall terminate
as of the Effective Date and said professionals shall not be entitled to
compensation and reimbursement of expenses for services rendered after the
Effective Date, except for reasonable compensation for services rendered in
connection with (a) the implementation of the transactions contemplated to
occur prior to the Effective Date hereunder, (b) applications for allowance of
compensation and reimbursement of expenses pending on the Effective Date or
filed after the Effective Date pursuant to Article II of the Plan; and (c)
services rendered to one or more of the Consolidated Estates after the
Effective Date with the approval of the applicable Liquidation Board as
provided in Article XIII of this Plan. If the Plan is not confirmed as to
SWE&C and the SWE&C Subsidiaries, the Creditors' Committee shall continue in
existence, but only as to those Estates.
19.10 In the event the Plan is confirmed as to the SWINC Consolidated
Estate but not as to SWE&C and the SWE&C Subsidiaries, as provided in section
15.2 hereof, the Plan shall nevertheless be effective as to SWINC and the
SWINC Subsidiaries, and all provisions of the Plan concerning SWE&C and the
SWE&C Subsidiaries shall be void and of no effect, except those provisions
concerning any Debtor included in the SWINC Consolidated Estate and any Claims
against such Debtors, including any Claims of SWE&C or the SWE&C Subsidiaries
against any Debtors included in the SWINC Consolidated Estate. In such event,
the bankruptcy proceedings of SWE&C and the SWE&C Subsidiaries shall continue
unaffected by the Plan, subject to applicable provisions of the Bankruptcy
Code and applicable law concerning the corporate governance of such Debtors.
[SIGNATURE PAGE FOLLOWS]
Date: April 22, 2003 OFFICIAL COMMITTEE OF EQUITY
HOLDERS FOR STONE & WEBSTER,
INCORPORATED
By: Grace Brothers, Ltd.
By: /s/ Brian D. Brookover
-----------------------------
Name: Brian D. Brookover
Title: Portfolio Manager
APPENDIX
DEFINITIONS OF TERMS
USED IN THIRD AMENDED AND RESTATED
PLAN OF LIQUIDATION OF EQUITY HOLDERS OF
STONE AND WEBSTER, INCORPORATED
DEFINITIONS OF TERMS
USED IN SECOND AMENDED AND RESTATED
NON-CONSOLIDATED JOINT PLAN OF LIQUIDATION
1. "A-1 Subsidiary" means the same as "SWINC Subsidiary" and includes any
entity listed on Exhibit A-1 to the Plan.
2. "A-2 Subsidiary" means the same as "SWE&C Subsidiary" and includes any
entity listed on Exhibit A-2 to the Plan.
3. "Administrative Claim" means a Claim for costs and expenses of
administration allowed under sections 503(b), 507(a)(1), 507(b), 1103,
1114(e)(2) of the Bankruptcy Code, including, without limitation: (a) the
actual and necessary costs and expenses incurred after the Petition Date of
preserving a Debtor's Estate and operating the business of the Debtor (such as
wages, salaries or commissions for services); (b) compensation for legal,
financial advisory, accounting and other services and reimbursement of
expenses awarded or allowed under sections 327, 328, 330, 331 or 1104 of the
Bankruptcy Code; and (c) all fees and charges assessed against a Debtor's
Estate under 28 U.S.C. ss. 1930.
4. "Affiliate" means "Affiliate" as defined in Rule 405, promulgated by the
Securities and Exchange Commission pursuant to the Securities Act of 1933.
5. "Allowed Amount" means, with respect to a particular Claim, (a) the dollar
amount of a Claim that is listed in a Debtor's Schedules as a Claim against
that Debtor, as they may from time to time be amended in accordance with Rule
1009 of the Bankruptcy Rules, as not disputed, contingent or unliquidated, if
the Holder of such Claim has not Filed a proof of claim within the applicable
period of limitation fixed by the Court pursuant to Rule 3003 (c)(3) of the
Bankruptcy Rules, to the extent it has not been paid or otherwise deemed
satisfied, or assumed by Shaw as part of the Shaw Sale, or (b) if a Holder of
a Claim has Filed a proof of claim within the applicable period of limitation
fixed by the Court pursuant to Rule 3003(c) (3) of the Bankruptcy rules or if
a proof of claim for such Holder is deemed Filed under applicable law or by
reason of an order of the Court within such applicable period of limitation,
and such proof of claim lists the Debtor against which the Claim lies and does
not list more than one Debtor; (i) the dollar amount stated in such proof of
claim, if no objection to such proof of claim has been interposed by a party
in interest within the applicable period of limitations fixed by this Plan,
the Code or applicable Bankruptcy Rules, or as otherwise fixed by the Court,
to the extent it has not been withdrawn, paid, assumed by Shaw as part of the
Shaw Sale, or otherwise deemed satisfied or (ii) such dollar amount as shall
be fixed by an order of the Court which has become a Final Order, if an
objection has been interposed by a party in interest within the applicable
period of limitations fixed by the Code, applicable Bankruptcy Rules, or the
Court, or (c) with respect to the allowance of fees and expenses pursuant to
section 330, 331 or 503(b) of the Bankruptcy Code, such amount as shall be
fixed by an order of the Court which has become a Final Order.
6. "Allowed Claim" means a Claim against a Debtor for which an Allowed Amount
has been determined. Pursuant to section 9.2 of the Plan, a Claim evidenced by
a proof of claim that does not list the Debtor against which the Claim lies or
that lists more than one Debtor is not an Allowed Claim.
7. "Allowed Class [ ] Claim" means an Allowed Claim in the particular Class of
Claim identified.
8. "Allowed Class [ ] Interest" means an Allowed Interest in the particular
Class of Interest.
9. "Allowed Interest" means an Interest in a Debtor as of the Equity
Distribution Record Date to the extent that:
(a) a proof of the Interest:
(i) was timely Filed;
(ii) is deemed Filed under applicable law or by reason of
an order of the Court; and a Debtor or any other
party in interest does not File an objection within
such time fixed by the Court and the Interest is not
otherwise a Disputed Interest (but only to the
extent that such Interest is not a Disputed
Interest);
(iii) the Interest is allowed (and only to the extent
allowed) by a Final Order; or
(iv) the Interest is allowed under this Plan.
10. "Asbestos Claim" means any Claim or demand whenever or wherever
arising or asserted against any of 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 whether or not
diagnosable or manifested before the Confirmation of the Plan or the close of
the Chapter 11 Cases, (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.
11. "Asbestos Trust" means the segregated trust fund established
pursuant to the Asbestos Trust Agreement as set forth in Article VII, section
7.3 of the Plan.
12. "Asbestos Insurance Carriers" or "Asbestos Insurers" 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.
13. "Asbestos Insurance Coverage" means the insurance coverage
available under the policies issued by the Asbestos Insurance Carriers.
14. "Asbestos Insurance Proceeds" means the insurance proceeds
projected to be available from the policies issued by the Asbestos Insurance
Carriers for Allowed Asbestos Claims.
15. "Asbestos Trust Agreement" means that certain agreement, effective
as of the Effective Date, substantially in the form attached as Exhibit F to
the Equity Plan.
16. "Asbestos Trustee" means ______________ appointed to serve as
trustee of the Asbestos Trust pursuant to the terms of the Asbestos Trust
Agreement and in accordance with section 7.3 of the Plan.
17. "Asbestos Trust Payment" means the Cash payment in the amount of
$4.5 million to be made by the SWINC Consolidated Estate to the Asbestos Trust
pursuant to the Asbestos Trust Agreement.
18. "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).
19. "Ballot" means a ballot for purposes of voting on the Plan.
20. "Ballot Return Date" means the date set by the Court as the last
date on which Ballots may be returned for purposes of voting on the Plan.
21. "Bankruptcy Code" means title 11 of the United States Code, as now
in effect or hereafter amended.
22. "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time, and the local rules of the Court
applicable to bankruptcy proceedings, as now in effect or hereafter amended.
23. "Business Day" means any day except Saturday, Sunday and any other
day on which commercial banks in Delaware are authorized or required by law to
close.
24. "By-Laws" means the Amended and Restated By-Laws of Reorganized
SWINC and each of the Debtors substantially in the same form as in effect as of
the Petition Date.
25. "Case" means the case of the applicable Debtor under chapter 11 of
the Bankruptcy Code entitled In re Stone & Webster, Inc. et al. (Chapter 11
Case Nos. 00-2142 to 00-2214 (PJW)).
26. "Chapter 11 Cases" means, collectively, the Chapter 11 cases of
all the Debtors, jointly administered by order of the Bankruptcy Court under
Case No. 00-2142 (PJW).
27. "Cash" means lawful currency of the United States of America.
28. "Certificates of Incorporation" means the Amended and Restated
Certificates of Incorporation of each of the Debtors substantially in same form
as the Certificates of Incorporation in effect as of the Petition Date.
29. "Claim" means a (a) right to payment whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (b)
right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment whether or not such equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured, and includes any claim of one Debtor against another, except as
otherwise provided in this Plan.
30. "Claims Objection Date" means the date that is one hundred twenty
(120) days after the Effective Date; provided, however, that, by order of the
Court, such date may be modified or extended at any time (including, without
limitation, following such date) as to any Claim.
31. "Class" means a group of Claims or Interests as classified by the
Plan.
32. "Class [ ] Claim" means a Claim in the particular Class of claims
identified.
33. "Class [ ] Interest" means an Interest in the particular Class of
Interests identified.
34. "Committees" means the Creditors' Committee and the Equity
Committee.
35. "Confirmation" means the confirming of the Plan by the Court under
section 1129 of the Bankruptcy Code.
36. "Confirmation Date" means the day on which the Court enters the
Confirmation Order on its docket.
37. "Confirmation Order" means an order of the Court, in form and
substance reasonably acceptable to the Equity Committee, confirming the Plan
under section 1129 of the Bankruptcy Code.
38. "Consolidation Motion" means the Motion for Substantive
Consolidation dated August 9, 2001 filed by the Creditors' Committee.
39. "Convenience Claim" means a general Unsecured Claim against the
SWE&C Consolidated Estate in an amount of $1,500.00 or less, and a general
Unsecured Claim against such Consolidated Estate that is greater than $1,500.00
but that is reduced to $1,500.00 by an irrevocable written election of the
Holder of such Claim made on a validly executed and timely delivered Ballot.
40. "Court" means the United States Bankruptcy Court for the District
of Delaware or such other court or adjunct thereof as may have jurisdiction
over the Case.
41. "Creditor" means any Person that has a Claim.
42. "Creditors' Committee" means the Official Committee of Unsecured
Creditors appointed in the Cases to represent the interests of unsecured
creditors.
43. "Debtor" means SWINC, SWE&C or any of the entities listed on
Exhibits A-1 and A-2 to the Plan, as indicated in a particular reference.
44. "Debtors" means SWINC, SWE&C and each of the entities listed on
Exhibits A-1 and A-2 to the Plan.
45. "Disclosure Statement" means the Disclosure Statement With Respect
to Third Amended and Restated Plan of Liquidation dated April 1, 2003, as it
may be amended from time to time.
46. "Disclosure Statement Order" means the Order approving Disclosure
Statement entered by the Court on _________________, 2003.
47. "Disputed Claim" means a Claim as to which a proof of claim has
been Filed or deemed Filed under applicable law, as to which either an
objection has been timely filed, or a notice from the Debtor or the Equity
Committee of intention to object has been sent by the Claims Objection Date, if
such objection has not been withdrawn or has not been overruled or denied by a
Final order. Prior to the Claims Objection Date, for the purposes of this Plan
a Claim shall be considered a Disputed Claim if: (i) the amount of the Claim
specified in the proof of claim exceeds the amount of any corresponding Claim
scheduled by a Debtor in any Schedules, (ii) the Claim has been scheduled as
disputed, contingent or unliquidated, irrespective of the amount scheduled; or
(iii) no corresponding Claim has been scheduled by a Debtor in its Schedules.
For the purposes of this paragraph, "objection" shall include any proceeding
seeking the subordination of any Claim.
48. "Distributable Cash" means, with respect to the SWINC Consolidated
Estate, the Cash in possession of the SWINC Consolidated Estate minus the SWINC
Consolidated Estate Implementation Reserve provided for in Article 12.3 of this
Plan, and minus the amounts to be paid or held pursuant to section 10.2 of the
Plan for Disputed Claims in the SWINC Consolidated Estate, and minus the
amounts to be paid to Holders of Allowed Administrative Claims, Priority Tax
Claims, Secured Claims and Priority Claims against the SWINC Consolidated
Estate; with respect to the SWE&C Consolidated Estate, "Distributable Cash"
means the Cash in possession of the SWE&C Consolidated Estate minus the SWE&C
Consolidated Estate Implementation Reserve provided for in Article 12.3 of this
Plan, and minus the amounts to be paid or held pursuant to section 10.2 of the
Plan for Disputed Claims in the SWE&C Consolidated Estate, and minus the
amounts to be paid to Holders of Allowed Administrative Claims, Priority Tax
Claims, Secured Claims, Priority Claims and Convenience Claims, against the
SWE&C Consolidated Estate; and with respect to Reorganized SWINC, (i) any Cash
held by Reorganized SWINC and (ii) any funds realized by Reorganized SWINC from
the liquidation of its assets, including any funds generated from the Pension
Plan over-funding after satisfaction of Reorganized SWINC's obligations under
the Pension Plan, minus deduction of the funds necessary to fund the
Reorganized SWINC Implementation Reserve as provided for in Article 12.3 of the
Plan.
49. "Distribution Date" means a date on which a Liquidation Board
makes a distribution pursuant to the terms of the Plan.
50. "Effective Date" means the Business Day that is the latest of (a)
the eleventh (11th) day after the Confirmation Date or such other date
following the Confirmation Date designated by the Equity Committee in writing
and filed, (b) the first day on which no stay of the Confirmation Order is in
effect, and (c) the first day on which all conditions precedent to the
Effective Date have been satisfied in accordance with the terms hereof.
51. "EIP" means the Employee Investment Plan of Stone and Webster,
Incorporated and Participating Subsidiaries.
52. "ESOP" means the Employee Stock Ownership Plan of Stone and
Webster, Incorporated and Participating Subsidiaries.
53. "Equity Committee" means the Official Committee of Equity Holders
appointed in the Case to represent the interest of Holders of SWINC common
stock.
54. "Equity Distribution Record Date" means the date that is thirty
(30) days before the first Distribution Date under the Plan, unless otherwise
determined by the Liquidation Board, or otherwise ordered by the Court.
55. "ERISA" means the Employee Retirement Income and Security Act of
1974, as amended.
56. "Estate" means the estate of the applicable Debtor created by
section 541 of the Bankruptcy Code.
57. "File" or "Filed" means filed with the Court in any one of the
Chapter 11 Cases.
58. "Final Distribution Date" means the first business day after which
a Consolidated Estate has completed all distributions to be made pursuant to
the Plan.
59. "Final Order" means an order or judgment of the Court, or other
court of competent jurisdiction that the Court has specifically permitted to
proceed to enter such order or judgment, as entered on the docket in or related
to the Case, which has not been reversed, stayed, modified, vacated or amended,
and as to which (a) the time to appeal or seek certiorari has expired and no
appeal or petition for certiorari has been timely filed, or (b) any appeal that
has been or may be taken or any petition for certiorari that has been or may be
filed has been resolved by the highest court to which the order or judgment was
appealed or from which certiorari was sought.
60. "Guaranty Claim" means any Allowed Claim against a Debtor which
arises from a guaranty, insurance agreement, indemnity agreement, surety
agreement, or similar agreement wherein that Debtor is liable for a financial
obligation or other performance of any of its subsidiaries or affiliates.
61. "510(b) Claim" means a Claim against the Debtor arising from the
rescission of a purchase or sale of a security of the Debtor or an Affiliate of
the Debtor, for damages arising from the purchase or sale of such a security,
or for reimbursement or contribution allowed under section 502 of the
Bankruptcy Code on account of such a Claim.
62. "Holder" means the holder of a Claim or Interest.
63. "Interest" means the rights or interests of an "equity security
holder" as defined in section 101 of the Bankruptcy Code.
64. "Insured Claim" means any Claim against a Debtor, including Class
4B-2 Asbestos Claims, 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 insurance coverage of any
of the Debtors.
65. "Intercompany Claim" means any Claim reflected in the books and
records of account by one Debtor with respect to any other Debtor: With respect
to Class 6B under the Plan it means the aggregate of all Claims of SWINC and
the SWINC Subsidiaries against SWE&C and the SWE&C Subsidiaries after having
taken into account all SWINC and SWINC Subsidiary Intracompany Claim balances
and their direct or indirect contribution to an overall Claim against the SWE&C
Consolidated Estate and after netting said Claim against the SWE&C Setoff
Claim, but does not include any Subrogation Claims preserved under section 16.6
of the Plan which are Class 4B-1 Unsecured Claims against the SWE&C
Consolidated Estate.
66. "Intracompany Claim," with respect to the SWINC Consolidated
Estate means all Claims by one Debtor included in the SWINC Consolidated Estate
against another Debtor included in the SWINC Consolidated Estate; and with
respect to the SWE&C Consolidated Estate, means all Claims by one Debtor
included in the SWE&C Consolidated Estate against another Debtor included in
the SWE&C Consolidated Estate.
67. "Joint Case Caption" means the bankruptcy case caption naming
"Stone and Webster Incorporated, et al., Debtors" in "Case No. 00-2142 Jointly
Administered," pending in the Bankruptcy Court for the District of Delaware
pursuant to the Bankruptcy Court's order consolidating the Debtors' Chapter 11
Cases for administrative purposes only.
68. "Litigation Claims" means any and all Claims, causes of action,
rights of action, defenses, suits or proceedings, whether in law or equity,
whether known or unknown, whether pending as of the Confirmation Date or not,
whether under state or federal law, of any one of the Debtors as of the
Confirmation Date which are retained by the Debtors for the benefit of their
respective Consolidated Estates pursuant to Article XVI of this Plan.
69. "Net Proceeds" means (1)(x) all Cash received by a Consolidated
Estate from the actions retained by such Consolidated Estate under Articles XVI
and XVII of the Plan, (y) all Cash received by a Consolidated Estate from the
sale or other disposition of other assets after deduction, to the extent
actually incurred and legally required to be paid, of: (a) all reasonable costs
and expenses incurred in connection with such sale, including legal fees, and
(b) all adjustments and liabilities with respect to any such transactions,
including, without limitation, (i) any amounts paid or payable in satisfaction
of any liens or encumbrances on property sold or otherwise disposed of, or (ii)
any taxes arising as a consequence of such transaction; and (z) any Cash made
available to a Debtor by reason of the disallowance in whole or part of a
Disputed Claim or for any other reason; minus (2)(x) all expenses incurred in
collecting such Cash, including legal fees, and (y) all reasonable costs and
expenses incurred in administering the Estates after the Effective Date,
including legal fees and costs related to Post-Petition Indemnification Claims.
70. "Non-Debtor Affiliated Entity" means an entity affiliated with the
Debtors that is not a Debtor in the Chapter 11 Cases.
71. "November 14 Order" means the Memorandum Opinion and Order denying
the Motion of the Official Committee of Equity Security Holders for Summary
Judgment and Granting Part of the Motion of the Official Committee of Unsecured
Creditors for Substantive Consolidation entered on November 14, 2002 (Docket #
3564).
72. "Pension Plan" means the Employee Retirement Plan of Stone &
Webster, Incorporated and Participating Subsidiaries, As Amended and Restated
Effective January 1, 1997, as amended.
73. "Pension Reversion" means the surplus projected in the Pension
Plan after payment of all obligations under the Pension Plan, including
obligations to all participating employees, having a projected value of $54.2
million.
74. "Person" means a natural person, corporation, partnership, trust
or unincorporated organization or any governmental entity or department or
agency thereof.
75. "Petition Date" means June 2, 2000.
76. "Plan" means the Third Amended and Restated Plan of Liquidation of
the Official Committee of Equity Holders for Stone & Webster, Incorporated,
dated April 1, 2003, as it may be amended from time to time.
77. "Plan Proponent" means the Official Committee of Equity Holders.
78. "Post-Petition Indemnification Claims" means Claims arising from
the obligations of a Debtor pursuant to the Plan or orders of the Court, its
Certificate of Incorporation and Bylaws and applicable Delaware Corporate Law
to indemnify its, and its Affiliates' directors, officers, agents, employees
and representatives and other Persons for any action taken or omitted to be
taken by any such person after the Petition Date.
79. "Post-Petition Interest" means interest accruing since the
Petition Date at the highest of: (i) the interest rate provided in the contract
or agreement from which the subject Claim arises; or (ii) the federal judgment
interest rate in 28 U.S.C. ss. 1961(a) in effect as of the Confirmation Date,
unless the Court fixes a different rate at the Confirmation Hearing upon the
request of a party in interest. As of the week ending February 7, 2003, this
rate is 1.28% per annum.
80. "Priority Claims" means all Claims against a Debtor entitled to
priority under section 507(a) of the Bankruptcy Code other than Administrative
Claims and Priority Tax Claims.
81. "Priority Tax Claims" means all Claims against the Debtor entitled
to priority under section 507(a)(8) of the Bankruptcy Code.
82. "Pro Rata" means:
(a) with respect to Allowed Claims, the same proportion
that the Allowed Amount of a Claim of a creditor in
any Class of Claims bears to the aggregate of:
(i) the aggregate Allowed Amounts of all
Allowed Claims in that particular Class of
Claims; plus
(ii) the aggregate face amounts of all
outstanding Disputed Claims in that
particular Class of Claims; and
(b) with respect to Interests, the same proportion that
a Holder's shares of Common Stock bear to the
shares of Common Stock outstanding.
83. "Reorganized SWINC" means the new entity existing after the
Effective Date as a result of this Plan.
84. "Reorganized SWINC Implementation Reserve" means the reserve of
Cash to be maintained by the SWINC Consolidated Estate after the Confirmation
Date pursuant to section 12.3.1 of the Plan. The initial amount of this reserve
is anticipated to be $1 million.
85. "Schedules" means any schedules of assets and liabilities that may
have been Filed by a Debtor as such schedules may have been amended, revised,
or supplemented from time to time.
86. "Secured Claim" means a Claim against a Debtor which is secured by
a lien, charge, pledge, encumbrance or other security interest on property of a
Debtor or which is subject to setoff under section 553 of the Bankruptcy Code,
to the extent of the value of the interest of the Holder of such Claim in such
property or to the extent of the amount subject to setoff, as the case may be,
as determined either by the Court pursuant to section 506(a) of the Bankruptcy
Code or by agreement between the Debtor and such Holder.
87. "Securities Litigation Claims" 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);
relating to, or arising by reason of, directly or indirectly, the ownership of
SWINC Common Stock, including but not limited, any Claim subject to
subordination under section 510(b) of the Bankruptcy Code.
88. "Subordinated Claim" means any Claim that is subordinate to
Unsecured Claims pursuant to agreement of the Holder of such Claim, Final Order
of the Court, or a specific provision of the Plan, and shall not include any
Claims of one Debtor against another unless expressly provided in the Plan.
89. "Subsequently Allowed Interest" means any Interest which becomes
an Allowed Interest after the Effective Date.
90. "Subsequently Allowed Claim" means any Claim for which an Allowed
Amount is fixed after the Effective Date.
91. "SWEC" means Stone &Webster Engineering Corporation, a Delaware
Corporation and debtor and debtor-in-possession in Chapter 11 Case No. 00-2213
(PJW) pending in the Bankruptcy Court for the District of Delaware, in all of
its capacities, including, without limitation, in its individual corporate
capacity as well as in its capacity as debtor-in-possession in the Case and
representative of its Estate. SWEC is included in the SWE&C Consolidated
Estate.
92. "SWE&C" means Stone & Webster Engineers and Constructors, Inc., a
Delaware Corporation and debtor and debtor-in-possession in Chapter 11 Case No.
00-2183 (PJW) pending in the Bankruptcy Court for the District of Delaware, in
all of its capacities, including, without limitation, in its individual
corporate capacity as well as in its capacity as debtor-in-possession in the
Case and representative of its Estate.
93. "SWE&C Subsidiaries" means the subsidiaries and affiliates of
SWE&C listed in Exhibit A-2 to the Plan.
94. "SWE&C Consolidated Estate" means the Consolidated Estate created
pursuant to Article XII of this Plan consisting of the Chapter 11 Estates of
SWE&C and the SWE&C Subsidiaries identified on Exhibit A-2 to this Plan.
95. "SWE&C Implementation Reserve" means the reserve of Cash to be
maintained by the SWE&C Consolidated Estate after the Confirmation Date
pursuant to section 12.3.3 of the Plan. The initial amount of this reserve is
anticipated to be $3 million.
96. "SWE&C Joint Case" means Chapter 11 Case No. 00-2183 (PJW) pending
in the Bankruptcy Court for the District of Delaware which shall remain pending
after the Effective Date for the administration of the SWE&C Consolidated
Estate pursuant to this Plan.
97. "SWE&C Liquidation Board" means those individuals supervising the
liquidation of the SWE&C Consolidated Estate, from time to time, in accordance
with Articles XII and XIII of the Plan.
98. "SWE&C Setoff Claim" means the aggregate Intercompany Claim
against the SWINC Consolidated Estate on behalf of the SWE&C Consolidated
Estate resulting after having taken into account all SWE&C Subsidiary
Intracompany Claim balances and their direct or indirect contribution to an
overall Intercompany Claim against the SWINC Consolidated Estate by the SWE&C
Consolidated Estate, as determined by the Debtors' books and records as of the
Petition Date.
99. "SWINC" means Stone & Webster, Incorporated, a Delaware
Corporation and debtor and debtor-in-possession in Chapter 11 Case No. 00-2142
(PJW) pending in the Bankruptcy Court for the District of Delaware, in all of
its capacities, including, without limitation, in its individual corporate
capacity as well as in its capacity as debtor-in-possession in the Case and
representative of its Estate.
100. "SWINC Consolidated Estate" means the Consolidated Estate created
pursuant to Article XII of this Plan consisting of the Chapter 11 Estates of
SWINC and the SWINC Subsidiaries identified on Exhibit A-1 to this Plan.
101. "SWINC Common Stock" means the shares of SWINC common stock
outstanding as of the Petition Date in the estimated amount of 14,266,000
shares.
102. "SWINC Implementation Reserve" means the reserve of Cash to be
maintained by the SWINC Consolidated Estate after the Confirmation Date
pursuant to section 12.3.1 of the Plan. The initial amount of this reserve is
anticipated to be $3 million.
103. "SWINC Intercompany Claim" means the net Intercompany Claim
remaining against the SWE&C Consolidated Estate on behalf of the SWINC
Consolidated Estate, which claim results after setting off the SWE&C Setoff
Claim against the aggregate SWINC Subsidiary Intracompany Claim balances and
their direct or indirect contribution to an overall Intercompany Claim against
the SWE&C Consolidated Estate by the SWINC Consolidated Estate, as determined
by the Debtors' books and records as of the Petition Date, but does not
include Claims arising from equitable rights of subrogation, contribution,
indemnification and exoneration preserved pursuant to Section 16.6 of the
Plan, which Claims are Class 4B-1 Claims. The SWINC Intercompany Claim is an
Allowed Class 6B Claim under the Plan.
104. "SWINC Joint Case" means Chapter 11 Case No. 00-2142 (PJW)
pending in the Bankruptcy Court for the District of Delaware which shall remain
pending after the Effective Date for the administration of the SWINC
Consolidated Estate pursuant to this Plan.
105. "SWINC Liquidation Board" means those individuals supervising the
liquidation of the SWINC Consolidated Estate, from time to time, in accordance
with Articles XII and XIII of the Plan.
106. "SWINC Liquidating Trust" means that certain Liquidating Trust
established pursuant to section 13.11 of this Plan to hold the share of common
stock issued by Reorganized SWINC pursuant to the trust agreement to be dated
as of the Effective Date establishing and delineating the terms and conditions
of said Liquidating Trust in the form and annexed to the Plan as Exhibit D for
the benefit of the Holders of Allowed Class 5A Interests.
107. "SWINC Subsidiaries" means the subsidiaries and affiliates of
SWINC listed in Exhibit A-1 to the Plan.
108. "Unsecured Claim" means any Claim against a Debtor that is not an
Administrative Claim, Priority Tax Claim, Secured Claim, Priority Claim, or, a
Convenience Claim.
EXHIBIT A-1
EQUITY COMMITTEE THIRD AMENDED AND RESTATED PLAN OF LIQUIDATION
EQUITY COMMITTEE THIRD AMENDED AND RESTATED PLAN OF LIQUIDATION
EXHIBIT A-1
IN ADDITION TO STONE AND WEBSTER INCORPORATED, DEBTOR IN CASE
NO. 00-2142 (PJW) PENDING IN THE BANKRUPTCY COURT FOR THE DISTRICT OF
DELAWARE, THE FOLLOWING DEBTORS ARE ALSO INCLUDED IN THE SWINC
CONSOLIDATED ESTATE
SWINC CONSOLIDATED ESTATE
ADDITIONAL DEBTORS INCLUDED: CASE NO. 00-2____ (PJW):
Auburn VPS General Corporation 147
Auburn VPS Limited Corporation 148
Commercial Cold Storage, Inc. 150
Enclave Parkway Realty, Inc. 152
Nordic Holdings, Inc. 156
Nordic Investors Inc. 157
Nordic Rail Services, Inc. 158
Nordic Refrigerated Services, Inc. 159
Nordic Refrigerated Services, Limited Partnership 160
Nordic Transportation Services, Inc. 161
Polar Transport, Inc. 162
Prescient Technologies, Inc. 164
Sabal Corporation 168
Sabal Real Estate Corporation 169
Sleeper Street Realty Corporation 173
Stone & Webster Auburn Corporation 176
Stone & Webster Binghamton Corporation 178
Stone & Webster Development Corporation 181
Stone & Webster Oil Company, Inc. 198
Stone & Webster Wallingford, Corporation 210
SWL Corporation 212
COUNT: 22
4/22/03
EXHIBIT A-2
EQUITY COMMITTEE THIRD AMENDED AND RESTATED PLAN OF LIQUIDATION
EQUITY COMMITTEE THIRD AMENDED AND RESTATED PLAN OF LIQUIDATION
EXHIBIT A-2
IN ADDITION TO STONE AND WEBSTER ENGINEERS AND CONSTRUCTORS, INC.,
DEBTOR IN CASE NO. 00-2183 (PJW) PENDING IN THE BANKRUPTCY COURT FOR
THE DISTRICT OF DELAWARE, THE FOLLOWING DEBTORS ARE ALSO INCLUDED
IN THE
SWE&C CONSOLIDATED ESTATE
ADDITIONAL DEBTORS INCLUDED
IN THE SWE&C CONSOLIDATED ESTATE CASE NO. 00-2____ (PJW):
1430 Enclave Parkway Corporation 143
245 Summer Street Corporation 144
AEC International Projects, Inc. 145
Associated Engineers & Consultants, Inc. 146
Belmont Constructors Company, Inc. 149
DSS Engineers, Inc. 151
Fast Supply Corporation 153
GSES Holding, LLC 154
International Engineers and Constructors, Incorporated 155
Power Technologies, Inc. 163
Projects Engineers, Incorporated 165
Rockton Associates, Incorporated 166
Rockton Technical Services Corporation 167
SAW Consulting Services, Inc. 170
SC Wood, LLC 171
Selective Technologies Corporation 172
Stone & Webster Abu Dhabi (United Arab Emirates), Inc. 174
Stone & Webster Argentina Corporation 196
Stone & Webster Asia Corporation 175
Stone & Webster Bharat, Incorporated 177
Stone & Webster Civil and Transportation Services, Inc. 179
Stone & Webster Construction Company, Inc. 180
Stone & Webster Dominican Republic, Incorporated 182
Stone & Webster Engineering Corporation 213
Stone & Webster Far East Technical Services Corp. 184
Stone & Webster Indonesia Corporation 185
Stone & Webster Industrial Technology Corporation 186
Stone & Webster Inter-American Corporation 187
Stone & Webster International Corporation 188
Stone & Webster International Projects Corporation 189
Stone & Webster Italia, Incorporated 190
Stone & Webster Korea Corporation 191
Stone & Webster Kuwait, Incorporated 192
Stone & Webster Management Consultants, Inc. 194
4/22/03
ADDITIONAL DEBTORS INCLUDED
IN THE SWE&C CONSOLIDATED ESTATE CASE NO. 00-2____ (PJW):
Stone & Webster Mexico Engineering Corporation 197
Stone & Webster Michigan, Inc. 214
Stone & Webster Middle East Engineering
Services Corporation 195
Stone & Webster Operating Corporation 199
Stone & Webster Overseas Consultants, Inc. 200
Stone & Webster Overseas Development
Corporation f/k/a Stone & Webster 193
Lithuania Corporation
Stone & Webster Overseas Group, Inc. 201
Stone & Webster Pacific Corporation 202
Stone & Webster Power Engineering Corporation 203
Stone & Webster Power Projects Corporation 204
Stone & Webster Procurement Corporation 205
Stone & Webster Puerto Rico, Incorporated 206
Stone & Webster Saudi Arabia, Incorporated 207
Stone & Webster Taiwan Corporation 208
Stone & Webster Technology Corporation 209
Stone & Webster Worldwide Engineering Corporation 211
COUNT: 51
EXHIBIT A-3
SUMMARY OF ASSETS AND CLAIMS BY ENTITY
Stone & Webster, Inc.
Summary of Assets and Claims by Entity (in Thousands)
EXHIBIT A-3
Non-Debtor Subsidiaries
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
PT Stone & S&W S&W do S&W
Webster Indonesia International Brazil Engineering
(135) Sales Corp. Limitada Constructors
Description (142) (148) B.V. (155)
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Receivable $ - $ 390.8 $ - $ 32.0
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Payables (217.4) - - -
- ------------------------------------------ =================== =================== =================== ===============
$ (217.4) $ 390.8 $ - $ 32.0
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
S&W S&W S&W S&W
Services Engineering Construction India
Limited (Mauritius) Limited Ltd.
Description (129) (130) (132) (134)
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Receivable $ - $ - $ 20.7 $ 9.6
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Payables (591.6) (678.4) (465.4) (7.4)
- ------------------------------------------ =================== =================== =================== ===============
$ (591.6) $ (678.4) $ (444.7) $ 2.2
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
S&W S&W S&W S&W United
Engineering Canada Management Arab
Limited Limited Consultants Ltd. Emirated Ltd.
Description (089) (099) (118) (128)
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Receivable $ 2,079.8 $ 500.3 $ 8.9 $ -
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Payables (67.8) (9,019.9) (1,009.0) -
- ------------------------------------------ =================== =================== =================== ===============
$ 2,012.1 $ (8,519.6) $ (1,000.1) $ -
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
S&W S&W S&W S&W Eng.
Technology Limited Group Field
B.V. (Thiland) Limited Services Ltd.
Description (040) (064) (081) (088)
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Receivable $ 4.8 $ 0.1 $ 36.0 $ 45.6
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
Intercompany Payables (149.7) (96.9) $ - (860.2)
- ------------------------------------------ =================== =================== =================== ===============
$ (145.0) $ (96.9) $ 36.0 $ (814.6)
- ------------------------------------------ ------------------- ------------------- ------------------- ---------------
EXHIBIT B
LIQUIDATION ANALYSIS
Stone & Webster, Inc. AMENDED EXHIBIT B
EQUITY PLAN - Liquidation Analysis (in Thousands) (4/22/03)
- ----------------------------------------------------------------------------------------------------------------------------
SWINC Consolidated SW E&C Consolidated Estate
Estate
Estimated Recovery Estimated Recovery
----- ---------------------------------------------------------
Description Notes Expected Low ($) Expected Low ($)
----- ($) ($)
- ----------------------------------------------------------------------------------------------------------------------------
Projected Cash, Cash Equivalents and
Gov't Securities at 5/31/03 (1) $ 50,635 $ 50,635 $ 25,469 $ 25,469
- ----------------------------------------------------------------------------------------------------------------------------
Administrative Receivable/Payable (1) 4,868 4,868 (4,868) (4,868)
- ----------------------------------------------------------------------------------------------------------------------------
SWINC Consolidated Estate recovery from
SW E&C Consolidated Estate for
Federal Allowed Claim (9) 5,660 4,076 - -
- ----------------------------------------------------------------------------------------------------------------------------
SWINC Consolidated Estate recovery from
SW E&C Consolidated Estate for Maine
Yankee Allowed Claim (9) 2,264 1,630 - -
- ----------------------------------------------------------------------------------------------------------------------------
Other Collections (1) 500 500 3,000 3,000
- ----------------------------------------------------------------------------------------------------------------------------
Next Wave Note (4) 619 619
- ----------------------------------------------------------------------------------------------------------------------------
Additional Foreign Cash (10) - - 2,000 2,000
- ----------------------------------------------------------------------------------------------------------------------------
Pension (3) 54,200 54,200 - -
- ----------------------------------------------------------------------------------------------------------------------------
Total Assets 118,126 115,908 26,220 26,220
- ----------------------------------------------------------------------------------------------------------------------------
Consolidated Estate Implementation
Reserves (6) (3,000) (3,000) (3,000) (3,000)
- ----------------------------------------------------------------------------------------------------------------------------
General Administrative Reserves (1)
(500) (500) (500) (500)
- ----------------------------------------------------------------------------------------------------------------------------
Projected Professional Fees (1) (2,000) (2,000) (1,500) (1,500)
- ----------------------------------------------------------------------------------------------------------------------------
Accrued Professional Fees (1) (5,400) (5,400) (5,200) (5,200)
- ----------------------------------------------------------------------------------------------------------------------------
Reorganized SWINC Consolidated Estate
Implementation Reserve (5) (1,000) (1,000) - -
- ----------------------------------------------------------------------------------------------------------------------------
Net Assets available For Unsecured Claims 106,226 104,008 16,020 16,020
- ----------------------------------------------------------------------------------------------------------------------------
Priority Unsecured Claims
- ----------------------------------------------------------------------------------------------------------------------------
Asbestos Trust (1) - - (4,500) (4,500)
- ----------------------------------------------------------------------------------------------------------------------------
Convenience Class (7) - - (18) (86)
- ----------------------------------------------------------------------------------------------------------------------------
Net Assets available For General
Unsecured Claims 106,226 104,008 11,502 11,434
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Highly Litigated Claims (2) (74,800) (77,800) (95,275) (102,275)
- ----------------------------------------------------------------------------------------------------------------------------
Accounts Payable and Other (2) - - (15,000) (50,000)
- ----------------------------------------------------------------------------------------------------------------------------
Other SWINC Consolidated Estate Claims (2) (7,135) (10,235) - -
- ----------------------------------------------------------------------------------------------------------------------------
General Unsecured Claims (81,935) (88,035) (110,275) (152,275)
- ----------------------------------------------------------------------------------------------------------------------------
Interest on SWINC Consolidated Estate Claims (8) (3,912) (4,203) - -
- ----------------------------------------------------------------------------------------------------------------------------
Equity $20,380 $ 11,771 $ (98,773) $ (140,841)
========================== ============================
Equity per Share (with 14.266 million shares) $ 1.43 $ 0.83
- ----------------------------------------------------------------------------------------------------------------------------
Unsecured Distribution 10.4% 7.5%
- ----------------------------------------------------------------------------------------------------------------------------
Returns if SWINC Consolidated Estate
Intercompany claim included in Class
4B-1:
- ----------------------------------------------------------------------------------------------------------------------------
Equity per Share $ 1.67 $ 1.02
- ----------------------------------------------------------------------------------------------------------------------------
Unsecured Distribution 7.2% 5.7%
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Stone & Webster, Inc. AMENDED EXHIBIT B
EQUITY PLAN - Liquidation Analysis (in Thousands) (4/22/03)
- ----------------------------------------------------------------------------------------------------------------------------
Notes to Amended Exhibit B
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(1) Based upon information as filed
with the court in the Cash Funding
Analysis by the Debtors on 4/1/03.
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(2) Based upon claim estimates of the Plan Proponent.
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(3) Based upon estimates of the Plan Proponent
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(4) Note issued in favor of SWEC in chapter 11 cases of Nextwave Personal
Communications, Inc., et al., Case No. 98 B 21529, pending in the
United States Bankruptcy Court for the Southern District of New York.
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(5) Based upon projected costs associated with the liquidation of the
Pension Plan.
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(6) Based upon projected costs and expenses associated with the
fulfillment of obligations under the Plan by each of the Consolidated
Estates.
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(7) In the expected column, based on the Official Claims Register as of
1/10/03, includes all claims under $1,500 for the SW E&C Consolidated
Estate.
- ----------------------------------------------------------------------------------------------------------------------------
(8) Calculated at 1.28% based on the yield on 1 year Treasury Constant
Maturities as of February 7, 2003 as published by the Federal Reserve.
- ----------------------------------------------------------------------------------------------------------------------------
(9) Assumes that the SWINC Consolidated Estate would pay the Federal and
Maine Yankee Allowed Claims in full and assert subrogation rights
against the SWE&C Consolidated Estate.
- ----------------------------------------------------------------------------------------------------------------------------
(10) Additional foreign cash does not include $5.0 million held by
Canadian non-debtor entity which is restricted cash on account of Canadian claims.
- ----------------------------------------------------------------------------------------------------------------------------
SEE ALSO ARTICLE IV, SECTION A(3) OF THE DISCLOSURE STATEMENT
- ----------------------------------------------------------------------------------------------------------------------------
FILED WITH THE EQUITY PLAN FOR FURTHER DISCUSSION REGARDING THE INFORMATION IN THIS EXHIBIT B
- ----------------------------------------------------------------------------------------------------------------------------
EXHIBIT B-1
CASH FUNDING ANALYSIS
Stone & Webster, Inc.
Equity Plan - Estimate of Cash at Confirmation (in Thousands)
AMENDED EXHIBIT B-1
4/22/03
SWINC SW E&C
Consolidated Consolidated
Estate Estate
-----------------------------------
Projected Cash, Cash Equivalents and Gov't Securities at 5/31/03 $ 50,635 $ 25,469
Administrative Receivable/Payable - (4,868)
---------------- ---------------
Net Cash 50,635 20,601
Reserves:
Consolidated Estate Implementation Reserves (3,000) (3,000)
General Administrative Reserves (500) (500)
Projected Professional Fees (2,000) (1,500)
Accrued Professional Fees (5,400) (5,200)
Reorganized SWINC Consolidated Estate Implementation Reserve (1,000) -
---------------- ---------------
Cash Available at Confirmation for Unsecured Claims 38,735 10,401
Priority Unsecured Claims:
Asbestos Trust - (4,500)
Convenience Class - (18)
---------------- ---------------
Cash Available at Confirmation, Net of Priority Unsecured Claims 38,735 5,883
Other Assets Available for Future Distribution:
Pension 54,200 -
SWINC Consolidated Estate recovery from SW E&C Consolidated Estate for Federal Allowed 5,660 -
SWINC Consolidated Estate recovery from SW E&C Consolidated Estate for Maine Yankee 2,264 -
Administrative Receivable/Payable 4,868 -
Additional Foreign Cash - 2,000
Next Wave Note - 619
Other Collections 500 3,000
---------------- ---------------
Assets Available for Future Distribution 67,491 5,619
---------------- ---------------
Total Assets, Net of Reserves and Priority Unsecured Claims $ 106,226 $ 11,502
================ ===============
EXHIBIT C
Proposed Order Approving Disclosure Statement and
Approving Solicitation, Balloting and Voting Procedures
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., :
: Jointly Administered
Debtors. :
:
- --------------------------------------------x
ORDER (I) APPROVING ADEQUACY OF OFFICIAL COMMITTEE
OF EQUITY SECURITY HOLDERS' DISCLOSURE STATEMENT WITH RESPECT TO
THIRD AMENDED PLAN OF LIQUIDATION DATED APRIL 22, 2003,
(II) APPROVING PROCEDURES AND MATERIALS USED TO PROVIDE
NOTICE OF THE DISCLOSURE AND CONFIRMATION HEARINGS;
(III) DETERMINING TREATMENT OF CERTAIN CLAIMS FOR NOTICE
AND VOTING PURPOSES;
(IV) ESTABLISHING RECORD DATE;
(V) ESTABLISHING PROCEDURES FOR FILING OBJECTIONS TO THE
EQUITY PLAN AND TEMPORARY ALLOWANCE OF CLAIMS; AND
(VI) APPROVING SOLICITATION PROCEDURES FOR CONFIRMATION
(THE "DISCLOSURE AND SOLICITATION PROCEDURES ORDER")
----------------------------------------------------
Upon the Supplemental Motion, dated April 22, 2003 (the
"Supplemental Disclosure and Solicitation Procedures Motion")(1), of the
Official Committee of Equity Holders of Debtor Stone and Webster, Inc. (the
"Equity Committee"), seeking, among other things, the entry of this Order
(i) Approving the Adequacy of the Disclosure Statement With Respect to Third
Amended Plan of Liquidation dated April 22, 2003 (the "Equity Disclosure
Statement"), (ii) Approving Procedures and Materials Used to Provide Notice of
the Equity Disclosure Statement and Confirmation Hearings, (iii) Determining
Treatment of Certain Claims for Notice and Voting Purposes, (iv) Establishing
Record Date, (v) Establishing Procedures for Filing Objections to the Equity
Committee's Third Amended Plan of Liquidation dated April 22, 2003, as it
may be amended from time to time (the "Equity Plan") and temporary allowance
of claims, and (vi) Approving Solicitation Procedures for Confirmation (the
"Revised Disclosure and Solicitation Procedures Order"); the Court having
reviewed the Supplemental Disclosure and Solicitation Procedures Motion; and
the Court having determined that the Equity Disclosure Statement contains
adequate information and that the relief requested in the Supplemental
Disclosure and Solicitation Procedures Motion is in the best interests of the
Debtors' estates, creditors and other parties-in-interest; and it appearing
that notice of the Supplemental Disclosure and Solicitation Procedures Motion
was good and sufficient under the particular circumstances and that no other
or further notice need be given; after due deliberation thereon and good cause
appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT WITH RESPECT TO THE
EQUITY PLAN:
1. The Equity Plan and Equity Disclosure Statement filed April 22,
2003 supersede and replace any prior plans and disclosure statements filed by
the Equity Committee.
2. The Equity Disclosure Statement dated April 22, 2003, of
the Official Committee of Equity Holders With Respect to the Official Committee
of Equity Holders' Third Amended Plan of Liquidation dated April 22, 2003, as
amended, is hereby approved.
3. Record Date. Notwithstanding anything to the contrary in Bankruptcy
Rule 3017(d), May 20, 2003 shall be the record date (the "Record Date")
for purposes of determining (a) creditors and equity holders entitled to
receive solicitation packages or other materials and (b) creditors entitled to
vote to accept or reject said Equity Plan.
4. Deadline and Procedures for Filing Objections to Confirmation.
August 15, 2003 at 4:00 p.m. (prevailing Eastern Time) is fixed as the last
date and time for filing and serving objections to confirmation of the Equity
Plan (the "Confirmation Objection Deadline").
5. In order to be considered, objections (if any) to confirmation of
the Equity Plan must (a) be in writing; (b) comply with the Federal Rules of
Bankruptcy Procedure and the Local Bankruptcy Rules; (c) state the grounds for
the objection and the legal and factual bases therefor; (d) reference with
specificity the text of the Equity Plan to which objection is made; and (e) be
filed with the Court, together with proof of service, and served so as to be
RECEIVED no later than the Confirmation Objection Deadline by the following
parties:
Counsel for the Equity Committee
Bell Boyd & Lloyd LLC
70 West Madison Street
Chicago, Illinois 60602
Attn: Robert V. Shannon, Esq.
Carmen H. Lonstein, Esq.
- and -
Bifferato, Bifferato & Gentilotti
1308 Delaware Avenue
Wilmington, Delaware 19899
Attn: Ian Connor Bifferato, Esq.
Counsel for the Debtor
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
Attn: Gregg M. Galardi, Esq.
Gary Rubin, Esq.
U.S. Trustee
U.S. Department of Justice
The Office of the United States Trustee
District of Delaware
844 North King Street
Wilmington, Delaware 19801
Attn: Julie Compton, Esq.
Counsel for the Creditors Committee
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, New York 10103-0002
Attn: Anthony J. Princi, Esq.
Lorraine McGowan, Esq.
- and -
Klett, Rooney, Lieber & Schorling
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, Delaware 19801
Attn: Adam G. Landis, Esq.
Objections not timely filed and served in the manner set forth above shall not
be considered and shall be deemed overruled.
7. Deadline and Procedures for Temporary Allowance of Claims for
Voting Purposes. Pursuant to Federal Rule of Bankruptcy Procedure 3018(a), and
except as otherwise noted in this Disclosure and Solicitation Procedures Order,
August 1, 2003, at 4:00 p.m. (prevailing Eastern Time) (the "Rule 3018
Motion Deadline") is fixed as the last date and time for filing and serving
motions pursuant to Bankruptcy Rule 3018(a) ("Rule 3018(a) Motions") seeking
temporary allowance of claims for the purpose of voting to accept or reject the
Equity Plan. Rule 3018(a) Motions must be filed and served on the persons and
in the manner set forth in paragraph 4 above so that they are RECEIVED no later
than the Rule 3018(a) Motion Deadline. Rule 3018(a) Motions that are not timely
filed and served in the manner as set forth above shall not be considered and,
except as otherwise provided herein, the claims referred to therein shall not
be counted in determining whether the Equity Plan has been accepted or
rejected.
8. Any party timely filing and serving a Rule 3018(a) Motion shall be
provided a ballot and shall be permitted to cast a provisional vote to accept
or reject the Equity Plan. If, and to the extent that, the Equity Committee and
such party are unable to resolve the issues raised by the Rule 3018(a) Motion
prior to the Voting Deadline, then at the Confirmation Hearing the Court shall
determine whether or not the provisional ballot is to be counted as a vote to
accept or reject the Equity Plan.
9. Treatment of Certain Claims for Notice and Voting Purposes.
Pursuant to Bankruptcy Code section 105(a) and Fed. R. Bankr. P. 3003(c)(2),
creditors or parties in interest whose claims are listed in the Equity Plan as
being disputed, unliquidated or contingent (in whole or in part), or which are
scheduled by the Debtors as zero or unknown in amount, or who filed a proof
claim prior to the Solicitation Date reflecting a claim or portion of a claim
that is disputed, unliquidated or contingent, shall receive an Equity
Solicitation Package which contains, in lieu of a ballot and the Confirmation
Hearing Notice, a Notice of Disputed Claim Status attached hereto as Exhibit A,
the form of which is hereby approved, informing such person or entity that
their claim has been identified as disputed, contingent, or unliquidated or
that it is scheduled as zero or unknown in amount and absent having filed a
proof of claim by the claims bar date established in these cases and a Rule
3018(a) Motion, in the manner and by the deadline described below, they are
thus precluded from submitting a vote for such claim.
10. Any person or entity required to file a proof of claim: (i) who
filed a proof of claim against the Debtors in an unliquidated amount, in whole
or in part, or (ii) that filed such a claim as contingent or disputed, in whole
or in part, or (iii) filed a claim as to which the Debtors, a statutory
committee appointed by this Court, or a party in interest has filed an
objection by__________, or (iv) that is scheduled as being, in whole or in
part, disputed, contingent or unliquidated, or which is scheduled as zero or in
an unknown amount, and has not been superseded by a proof of claim timely filed
pursuant to Fed. R. Bankr. P. 3003 asserting a liquidated claim, shall not be
entitled to vote on the Equity Plan, unless the holder of such claim obtains an
order pursuant to Bankruptcy Rule 3018(a) and paragraph 5 of this Revised
Disclosure and Solicitation Procedures Order temporarily allowing such claim
for voting purposes in an amount deemed proper by the Court.
11. Any claim as to which a separate objection has been filed
before__________, whether to the entire claim or a portion thereof, whether
filed by the Debtors, a statutory committee appointed by this Court or any
party in interest in the Debtors' chapter 11 cases, shall not be entitled to
vote on the Equity Plan and shall not be counted in determining whether the
requirements of Bankruptcy Code section 1126(c) have been met unless: (a) such
claim has been temporarily allowed for voting purposes pursuant to Fed. R.
Bankr. P. 3018(a) and in accordance with this Revised Disclosure and
Solicitation Procedures Order, or (b) on or before the Voting Deadline (defined
below), the objection to such claim has been resolved in favor of the creditor
asserting the claim. The Equity Committee shall provide notice in any such
objection that the creditor must file a Rule 3018 motion in order to vote their
claim on or before the Rule 3018 Motion Deadline.
12. Notice and Transmittal of Solicitation Packages. On or before
June 1, 2003, the Equity Committee shall cause Trumbull Services Company,
LLC (the "Notice and Ballot Agent") or its designated agent to transmit to the
holders of Claims in Classes 3B, 4B-1, 4B-2, 5A and 6A of the Equity Plan as of
the Record Date, subject to the limitations contained therein and elsewhere in
this Revised Disclosure and Solicitation Procedures Order, by mail, a
solicitation packet from the Equity Committee (the "Equity Solicitation
Package") containing:
(a) the Equity Confirmation Hearing Notice, which form
of notice is hereby approved in substantially the
form annexed hereto as Exhibit B;
(b) the Equity Disclosure Statement (excluding certain
Exhibits to the Equity Plan or Appendices to the
Equity Disclosure Statement, provided however, that
all such Exhibits and Appendices shall be available
for review as set forth in paragraphs 39 through
41 below);
(c) the Equity Plan (as Appendix A to the Equity
Disclosure Statement);
(d) The Equity Solicitation Letters as appropriate,
substantially in the form attached as Exhibit J;
(e) this Revised Disclosure and Solicitation Procedures
Order; and
(f) a ballot (and pre-addressed, postage prepaid return
envelope) appropriate for the specific creditor, in
substantially the form of the proposed ballots
attached hereto as Exhibits C, E, F, G and K (as
may be modified for particular classes and with
instructions attached thereto), which forms of
ballots are hereby approved.
(g) Notwithstanding the above, the Equity Committee is
authorized to (i) replace items (b) and (c) above
with an Executive Summary of the Equity Plan and
Disclosure Statement, provided however, that the
Equity Plan and Disclosure Statement shall be
available for review as set forth in paragraphs 39
through 41 below; and (ii) use the services of
Innisfree M&A, Incorporated (the "SWINC Securities
Voting Agent") together with the Debtors to solicit
Class 5A equity security holders.
13. The Executive Summary shall consist of Articles I, IV, and V of
the Equity Disclosure Statement, but omits Articles II, III, and VI thereto.
Articles I, IV, and V of the Equity Disclosure Statement contain an overview of
the Equity Plan, an analysis of the voting requirements, the distributions to
be made to classes of Claims and Interests under the Equity Plan, and the
confirmation requirements and procedures. The Executive Summary shall direct
parties on how to obtain complete copies of the Equity Plan and Disclosure
Statement as set forth in paragraphs 39 through 41 below.
14. The SWINC Securities Voting Agent is authorized and directed to
assist the Equity Committee in: (i) mailing solicitation packages and other
notices; (ii) receiving, tabulating, and reporting on ballots cast for or
against the Equity Plan by holders of claims against the Debtors; (iii)
responding to inquiries from holders of SWINC Common Stock relating to the
Equity Plan, the Equity Disclosure Statement, the ballots and matters related
thereto, including without limitation, the procedures and requirements for
voting to accept or reject the Equity Plan and for objecting to the Equity
Plan; (iv) soliciting votes on the Equity Plan; and (v) if necessary,
contacting holders of SWINC Common Stock regarding the Equity Plan.
15. Creditors holding claims in a class that is designated as impaired
and entitled to vote under the Equity Plan shall receive only the Equity
Solicitation Package appropriate for that impaired class. Nothing in this
Disclosure and Solicitation Procedures Order shall affect the Equity
Committee's right to object to any proof of claim.
16. Identification of Beneficial Holders. All known Record Holders of
SWINC Common Stock are hereby Ordered to transmit to their beneficial holders
of SWINC Common Stock in a manner customary in the securities industry the
Equity Solicitation Package to be provided by the Equity Committee, and to
summarize the votes of such beneficial holders, all as provided below.
17. Transmittal to Record Holders. Transmittal of the Equity
Solicitation Package to holders of the SWINC Common Stock shall be made as
follows: the Equity Solicitation Package shall be sent by overnight mail or
delivered by hand no later than the Solicitation Date to Record Holders (or the
agent therefor) identified by the Notice and Ballot Agent or its designated
agent as an entity through which beneficial owners hold or held SWINC Common
Stock as of the Record Date.
18. Dissemination to Beneficial Holders. Each Record Holder (or their
agents) through which beneficial owners hold SWINC Common Stock are hereby
ordered to promptly (within three (3) days of receipt of Equity Solicitation
Packages) distribute such Equity Solicitation Packages to the beneficial
owners for which they hold such securities.
19. Voting By Beneficial Holders; Approval of Ballots. The Equity
Solicitation Packages to be transmitted to beneficial holders of the SWINC
Common Stock by Record Holders will include a ballot for the beneficial owners
(the "Beneficial Owner Ballot") substantially in the form of Exhibit E attached
hereto and a return envelope provided by, and addressed to, the requisite
Record Holders (or their agents) of the beneficial owners. The Record
Holders(or their agents), as appropriate, shall then summarize the individual
votes of their beneficial owners from the Beneficial Owner Ballots on a master
ballot (the "Master Ballot") to be provided to them by the Equity Committee in
substantially the form attached hereto as Exhibit F. The Record Holders (or
their agents) shall then return the Master Ballot to the Notice and Ballot
Agent by the Voting Deadline.
20. Alternatively, the Record Holders may prevalidate a Beneficial
Owner Ballot (a "Prevalidated Ballot") by signing that ballot and by indicating
on that ballot the beneficial owner of the SWINC Common Stock, the number of
shares owned by such beneficial owner, and the appropriate account number
through which the beneficial owner's holdings are derived. The Record Holder
shall then forward the Equity Solicitation Package, including the Prevalidated
Ballot and a return envelope addressed to the Voting Agent, to the beneficial
owner for voting by the beneficial owner.
21. The Equity Committee shall serve a copy of this Revised Disclosure
and Solicitation Procedures Order on each Record Holder (or their agents)
identified by the Notice and Ballot Agent or its designated agent as an entity
through which beneficial owners hold SWINC Common Stock. In addition, the
Equity Committee shall, upon written request, reimburse such entities for their
reasonable, actual, and necessary out-of-pocket expenses incurred in performing
the tasks described in paragraphs 12 to 21 above. This Court shall retain
jurisdiction to resolve any disputes regarding the payment of such fees or
expenses.
22. When No Notice or Transmittal Necessary. The Equity Committee need
not transmit Equity Solicitation Packages or other notices to: (a) holders of
claims that have already been paid in full during this case or that are
authorized to be paid in full in the ordinary course of business pursuant to
orders previously entered by this Court, (b) any person to whom the Notice and
Ballot Agent mailed a notice of the meeting of creditors under Bankruptcy Code
section 341 and such notice was returned marked "undeliverable" or "moved - no
forwarding address" or for a similar reason, unless the Debtors or the Notice
and Ballot Agent have been informed in writing by such person of that person's
new address, or (c) the holders of claims and interests in Classes 6B and 7B of
the Equity Plan deemed "insiders" under section 101(31) of the Bankruptcy Code,
except that such holders shall receive a copy of the notice attached as Exhibit
D to this Order (the "Insider Non-Voting Status Notice").
23. Unimpaired Creditor Notice. Pursuant to Bankruptcy Code sections
105(a), 1126(g) and 1126(f) and Fed. R. Bankr. P. 3017(d), the Equity Committee
shall cause the Notice and Ballot Agent to serve by first class mail to holders
of Claims in Classes 1A, 1B, 2A, 2B, 3A and 4A, a copy of the Unimpaired
Non-Voting Status Notice, in the form attached to this order as Exhibit H,
which form of notice is hereby approved, in lieu of an Equity Solicitation
Package.
24. Holders of Class 5B Interests under the Equity Plan are not
entitled to vote on the Equity Plan because they are deemed to have rejected
the Equity Plan pursuant to Bankruptcy Code section 1126(g). Accordingly, the
Equity Committee need not solicit votes on the Equity Plan from this Class of
Interests and need not provide it with an Equity Solicitation Package. Instead
Holders of Class 5B Interests shall receive the No Distribution Non-Voting
Status Notice, the form of which is attached to this Order as Exhibit I.
25. Publication of Notice. As a supplement to the Unimpaired
Non-Voting Status Notice and the No Distribution Non-Voting Status Notice, the
Equity Committee is directed to publish the Confirmation Hearing Notice for the
Equity Plan in the national edition of either (a) The Wall Street Journal or
The New York Times and (b) the Boston Globe, not later than the date
provided by the Debtors for publication.
26. Voting Deadline. To be counted, ballots for accepting or rejecting
the Equity Plan must be RECEIVED by 4:00 p.m. (prevailing Eastern Time) on
August 1, 2003 (the "Voting Deadline") by the Notice and Ballot Agent or its
designated agent. Ballots may not be cast by facsimile transmission.
27. Votes Counted. Any ballot timely received, properly executed,
containing sufficient information to permit the identification of the claimant,
and cast as an acceptance or rejection of the Equity Plan shall be counted and
shall be deemed to be cast as an acceptance or rejection of the Equity Plan, as
the case may be.
28. Votes Not Counted. Unless otherwise ordered by this Court after
notice and a hearing, the following ballots shall not be counted or considered
for any purpose in determining whether the Equity Plan has been accepted or
rejected:
(a) Any ballot received after the Voting Deadline if
the Equity Committee has not provided an extension
of time to file such ballot;
(b) Any ballot that is illegible or contains
insufficient information to permit the
identification of the claimant;
(c) Any ballot cast by a person or entity that does not
hold a claim in a Class that is entitled to vote to
accept or reject the Equity Plan;
(d) Any ballot cast for a claim referred to in
paragraph 8 above for which no Rule 3018(a) motion
has been filed by the Rule 3018(a) Motion Deadline;
(e) Any unsigned ballot.
(f) Any Ballot cast in a manner that neither indicates
an acceptance or rejection of the Equity Plan or
which indicate both an acceptance and rejection of
the Equity Plan.
29. Changing Votes: Whenever two or more ballots are cast voting the
same claim prior to the Voting Deadline, the last ballot received prior to the
Voting Deadline shall be deemed to reflect the voter's intent and, thus, to
supersede any prior ballots; provided, however, that nothing herein shall
affect the Equity Committee's right to object to the validity of the second
ballot on any basis permitted by law, including under Bankruptcy Rule 3018(a),
and, if such objection is sustained, the first ballot shall then be counted
unless not otherwise eligible to be counted.
30. No Vote Splitting Effect. Claim splitting shall not be permitted
and creditors who vote must vote all of their claims within a particular class
to either accept or reject the Equity Plan.
31. Counting Ballots from Beneficial Holders of SWINC Common Stock.
All Record Holders (or their agents) through which beneficial owners hold SWINC
Common Stock are directed to receive and summarize on a Master Ballot all
Beneficial Owner Ballots cast by the beneficial owners for which they serve and
then return the Master Ballot to the Notice and Ballot Agent.
32. All Record Holders electing to use the Master Ballot voting
process shall retain for inspection by the Court the ballots cast by beneficial
owners for one year following the Voting Deadline.
33. Votes cast by beneficial owners of SWINC Common Stock through
Record Holders (or their agents) and transmitted by means of a Master Ballot
shall be applied against the positions held by such Record Holder. Votes
submitted by a Record Holder (or their agents) on a Master Ballot shall not be
counted in excess of the position maintained in the applicable security by the
respective Record Holder on the Record Date.
34. To the extent that conflicting votes or overvotes are submitted on
a Master Ballot, the Notice and Ballot Agent shall attempt to resolve the
conflict or overvote prior to the certification of the vote in order to ensure
that as many claims as possible are accurately tabulated.
35. To the extent that overvotes on a Master Ballot are not
reconcilable prior to the certification of the vote, the Notice and Ballot
Agent shall count votes in respect of such Master Ballot in the same proportion
as the votes to accept and reject the Equity Plan submitted on the Master
Ballot that contained the overvote, but only to the extent of the applicable
Record Holders' position in the SWINC Common Stock on the Record Date.
36. Record Holders (or agents thereof) are authorized to complete
multiple Master Ballots, and the votes reflected by such multiple Master
Ballots shall be counted, except to the extent that they are duplicative of
other Master Ballots. If two or more Master Ballots submitted are inconsistent
in whole or in part, the latest Master Ballot received prior to the Voting
Deadline shall, to the extent of such inconsistency, supersede and revoke any
prior Master Ballot; provided, however, that nothing herein shall affect the
Equity Committee's right to object to the validity of the second Master Ballot
on any basis permitted by law, including under Bankruptcy Rule 3018(a), and, if
such objection is sustained, the first Master Ballot shall then be counted
unless not otherwise eligible to be counted.
37. Each beneficial owner of SWINC Common Stock shall be deemed to
have voted the full principal amount of its interest relating to such SWINC
Common Stock, notwithstanding anything to the contrary on any ballot.
38. Service and Notice Adequate and Sufficient. Service of all notices
and documents described herein in the time and manner as set forth herein,
including the service and publication of the Confirmation Hearing Notice, as
described in the Disclosure and Solicitation Procedures Motion, shall be
adequate and sufficient and no other or further notice shall be necessary.
Service of Notice of the May 20, 2003. Disclosure Statement Hearing to
creditors and parties in interest in accordance with the Court's December 10,
2003 Order on Equity Committee Request for Status Conference and Scheduling
Order, as clarified by the Court's March 5, 2003, Order Clarifying Scheduling
Order entered on December 10, 2002 shall be deemed adequate and sufficient
notice to creditors of the Disclosure Statement Hearing;
39. Copies and Review of Documents. Copies of the Equity Plan and
Disclosure Statement are publicly available, free of charge, on the Court's
website, www.deb.uscourts.gov and the website developed by the Debtors at
www.stoneandwebinc.com.
40. Copies of the Equity Disclosure Statement, Equity Plan and
Exhibits and/or Appendices may also be obtained, upon request from IKON Office
Solutions, at (302) 777-4500 or from Trumbull Services Company, Inc., 4 Griffin
Road North, Windsor, Connecticut 06095, fax no. (888) 310-6350, or by
contacting counsel for the Equity Committee: Bell, Boyd & Lloyd LLC, 70 West
Madison Street, Suite 3300, Chicago, Illinois 60602-4207, Attn: Mark Young,
(312) 558-8276.
41. Copies of the Equity Disclosure Statement, Equity Plan and
Exhibits and/or Appendices may be reviewed during regular business hours (8:30
a.m. to 4:00 p.m. weekdays, except legal holidays) at the office of the Clerk,
United States District Court for the District of Delaware, 844 North King
Street, Wilmington, Delaware 19801, the offices of Bell, Boyd & Lloyd, LLC, 70
West Madison, Suite 3200, Chicago, Illinois 60602; and the offices of
Bifferato, Bifferato & Gentilotti, 1308 Delaware Avenue, Wilmington, Delaware
19899.
44. Date: Wilmington, Delaware
April ______, 2003
______________________________
Honorable Peter J. Walsh
United States District Judge
___________
(1) Unless otherwise defined, capitalized terms used herein shall have the
meanings ascribed to them in the Disclosure and Solicitation Procedures
Motion, as supplemented.
EXHIBIT D
SWINC LIQUIDATING TRUST AGREEMENT
EXHIBIT D
LIQUIDATING TRUST AGREEMENT
(SWINC Liquidating Trust)
THIS LIQUIDATING TRUST AGREEMENT (SWINC LIQUIDATING TRUST) (the
"Agreement") is dated as of ______________, 2003, by and among Stone & Webster,
Incorporated, a Delaware corporation as reorganized ("Reorganized SWINC") under
the Third Amended and Restated Plan of Liquidation of the Official Committee of
Equity Holders dated April 22, 2003, as amended (the "Plan") and Mr. James
Kjorlien of CRT Capital Group, LLC, ____________ of Grace Brothers, Ltd. and
______________ (collectively, the "Trustees").
R E C I T A L S:
A. WHEREAS, Stone & Webster, Incorporated, a Delaware corporation and
the predecessor to Reorganized SWINC ("SWINC"), and 72 of SWINC's wholly owned
subsidiaries (collectively, with SWINC, the "Debtors") filed voluntary
petitions for relief on June 2, 2000, in the United States Bankruptcy Court
for the District of Delaware (the "Court") under title 11 of the United States
Code (the "Bankruptcy Code") as Case Nos. 00-2142 through 00-2214 PJW) (the
"Cases");
B. WHEREAS, on June 4, 2000, the Court entered an order consolidating
the Cases for procedural purposes only and providing that the Cases be jointly
administered by the Court;
C. WHEREAS, on June 26, 2000, the Office of the United States Trustee
appointed the Official Committee of Equity Holders (the "Committee" or "Plan
Proponent");
D. WHEREAS, on April 22, 2003 the Committee filed with the Court the
Third Amended and Restated Plan of Liquidation of the Official Committee of
Equity Holders dated April 22, 2003, as amended (the "Plan");
E. WHEREAS, on ___________, ___________ the Court conducted a hearing
to consider the Committee's motion requesting confirmation of the Plan, at the
conclusion of which the Court announced its intention to enter an order
confirming the Plan, and on ___________, ____________, the Court entered an
order confirming the Plan and authorizing the transactions contemplated
thereby (the "Confirmation Order"), including, without limitation, the
establishment of this SWINC Liquidating Trust (the "Liquidating Trust") for
the benefit of Holders of Allowed Class 5A Interests and under certain
circumstances Holders of Allowed Class 6A Claims;
F. WHEREAS, pursuant to the Plan, on the date hereof SWINC undertook
a reorganization such that all shares of SWINC's Common Stock were cancelled,
and Reorganized SWINC, as the resulting entity, issued one share of its Common
Stock to the Liquidating Trust;
G. WHEREAS, the Plan provides for the Liquidating Trust to hold such
share of Reorganized SWINC and to distribute amounts received from Reorganized
SWINC and the SWINC Consolidated Estate Pro Rata to the Holders of beneficial
interests in the Liquidating Trust, who shall be Holders of Allowed Class 5A
Interest (the "5A Holders") and, under certain circumstances, Holders of
Allowed Class 6A Claims (the "6A Holders") (collectively with the 5A Holders,
the "Holders");
H. WHEREAS, the Liquidating Trust, as the Holder of a share of
Reorganized SWINC, will receive no distributions from Reorganized SWINC or the
SWINC Consolidated Estate until all Holders of Allowed Claims in Classes 1A,
2A, 3A and 4A have been paid in full pursuant to the terms of the Plan, and
the Holders will receive nothing on account of their beneficial interests in
the Liquidating Trust unless and until the Holders of Allowed Claims in
Classes 1A, 2A, 3A and 4A have been paid in full pursuant to the Plan;
I. WHEREAS, the Plan calls for Reorganized SWINC to be dissolved and
to terminate the Pension Plan in a Delaware dissolution proceeding ("Delaware
Proceeding"); and
J. WHEREAS, Reorganized SWINC and the Trustees desire to create and
fund the Liquidating Trust, as contemplated by and in accordance with the Plan
and the Confirmation Order pursuant to this Agreement.
W I T N E S S E T H:
NOW THEREFORE, for and in consideration of the premises, and the
mutual promises and agreements contained herein, the receipt and sufficiency
of which are hereby expressly acknowledged, Reorganized SWINC and the Trustees
hereby agree as follows:
1. Definitions:
1.1 Additional Defined Terms. In addition to those defined
above and in the provisions of this Agreement following this Section 1, the
following terms shall have the meanings set forth below, unless the context
otherwise requires:
(a) "Beneficial Interest" shall mean the rights and
interests of the Holders to the Trust Estate.
(b) "Trust Estate" shall mean all right, title and interest
in and to the one share of Reorganized SWINC issued to the
Liquidating Trust pursuant to the Plan.
1.2 Terms Defined in Plan. Capitalized terms used but not
defined in this Agreement shall have the meanings ascribed to them in the Plan
and all property rights derived therefrom.
2. Authority of and Certain Directions to Trustees; Declaration
of Trust.
2.1 Creation of Liquidating Trust. In accordance with the
terms and conditions of the Plan and the Confirmation Order, and effective as
of the Effective Date, the Liquidating Trust shall be deemed created for the
benefit of the Holders.
2.2 Property in the Liquidating Trust. The Liquidating Trust
shall hold the legal title to all property at any time constituting a part of
the Trust Estate and the proceeds thereof and shall hold such property and
proceeds in trust to be administered and disposed of by it pursuant to and in
accordance with the terms of this Agreement, the Plan and the Confirmation
Order for the benefit of the Holders. The Trustees are authorized to make
disbursements and payments from the Trust Estate in accordance with the
provisions of Sections 5 and 6 of this Agreement, and pursuant to the Plan and
Confirmation Order.
2.3 Purpose of Liquidating Trust. This Liquidating Trust is
organized for the sole purposes of collecting, holding and liquidating the
Trust Estate with no objective to engage in the conduct of a trade or
business. In accordance with such express and limited purposes, as of the
Effective Date, the Trustees are hereby authorized and directed (i) to take
any and all steps necessary to maintain the Liquidating Trust as a liquidating
trust for Federal income tax purposes; (ii) to take all reasonable and
necessary actions to conserve and protect the Trust Estate; and (iii) to hold,
vote, sell or otherwise dispose of the Trust Estate, in accordance with the
terms of this Agreement, the Plan, or the instructions or orders of the Court,
and to distribute the net proceeds of such disposition to the Holders, in as
prompt, efficient and orderly a fashion as possible in accordance with the
provisions of this Agreement, the Plan and the instructions or orders of the
Court. Further pursuant to these purposes, the Holders recognize that,
although Reorganized SWINC issued and delivered the Trust Estate to the
Liquidating Trust, the Holders, through the Trustees and the Liquidating
Trust, are acquiring Beneficial Interests in a trust for their benefit.
3. Beneficial Interests.
3.1 No Transfer or Exchange. Beneficial Interests in the
Liquidating Trust will not be evidenced by any certificate or other instrument
or document. Beneficial Interests in the Liquidating Trust are
non-transferable and non-assignable other than to successors in interest, or
by will, the laws of descent and distribution, or by operation of law
("Permitted Transfer").
3.2 Means of Payment. Amounts payable to the Liquidating
Trust pursuant to the Plan and the Confirmation Order and will be paid by
checks drawn on an account or accounts maintained by Reorganized SWINC or the
SWINC Consolidated Estate, or by wire transfer in accordance with the terms
and conditions of the Plan. Amounts payable to the Liquidating Trust in the
Delaware Proceeding will be paid as provided in such proceeding.
4. Delivery and Acceptance of Trust Estate.
4.1 Conveyance by Reorganized SWINC. Upon the Effective
Date, Reorganized SWINC and the Liquidating Trust shall execute and deliver
such, stock powers, endorsed certificates, assignments, and other instruments
of conveyance of the shares comprising the Trust Estate, in such form as is
necessary or appropriate to irrevocably assign, transfer and convey all right,
title and interest in and to the Trust Estate to the Liquidating Trust in
accordance with the Plan and the Confirmation Order. At any time and from time
to time after the date hereof, at the Trustees' request and without further
consideration, Reorganized SWINC shall execute and deliver such other
instruments of sale, transfer, conveyance, assignment and confirmation, and
will cooperate and take such other actions as the Trustees may deem reasonably
necessary or desirable in order to more effectively transfer, convey and
assign all right, title and interest in and to the Trust Estate to the
Liquidating Trust.
4.2 Acceptance of Conveyance. The Trustees are hereby
directed to, and the Trustees agree that they will:
(a) accept delivery from Reorganized SWINC of the Trust
Estate on behalf of the Liquidating Trust;
(b) accept from Reorganized SWINC all stock powers, endorsed
certificates, assignments, and all other instruments of conveyance
required to be delivered by Reorganized SWINC with respect to the
Trust Estate transferred to the Liquidating Trust pursuant to or in
connection with this Agreement, the Plan and the Confirmation Order;
and
(c) take such other action as may be required of the
Liquidating Trust hereunder, including, without limitation, the
receipt and acceptance as part of the Trust Estate of any property or
rights, including, without limitation, the proceeds of notes, other
negotiable instruments which the Trustees may receive in connection
with or in consideration of the Trust Estate.
5. Administration of Trust Estate.
5.1 Powers of the Trustees. From and after the Effective
Date, the affairs of the Liquidating Trust and of all assets held or
controlled by the Liquidating Trust shall be managed under the direction of
the Trustees in accordance with this Agreement, the Plan and the Confirmation
Order. Trustees shall choose their own successors, who shall be a 5A Holder or
representative of a 5A Holder. Decisions made by the Trustees on behalf of the
Liquidating Trust shall be made by majority vote.
The powers of the Liquidating Trust shall include,
but be limited to: (a) the sale, transfer or other disposition, subject to
approval of the Court, of any or all of the property of the Liquidating Trust;
(b) effecting distributions under the Plan to the Holders; (c) participating
in any post-Confirmation motions to amend or modify the Plan, or appeals from
the Confirmation Order; and (d) participating in actions to enforce or
interpret the Plan.
Without limiting the generality of the foregoing,
and subject to all the other provisions of this Agreement, the Plan, but
without further order from the Court, the Trustees may also exercise the
power:
(a) to receive and hold all the assets of the Trust Estate
and to have exclusive possession and control thereof as permissible
under applicable law;
(b) to enter into, perform and exercise rights under
contracts binding upon the Liquidating Trust (but not upon the
Trustees) which are reasonably incident to the administration of the
Liquidating Trust and which the Trustees, in the exercise of their
best business judgment, reasonably believe to be in the best
interests of the Liquidating Trust;
(c) to establish and maintain accounts at banks and other
financial institutions, in a clearly specified fiduciary capacity,
into which cash and property of the Liquidating Trust may be
deposited, and draw checks or make withdrawals from such accounts,
and to pay or distribute such amounts of the Trust Estate as
permitted or required under this Agreement or the Plan;
(d) to employ attorneys, accountants, appraisers, brokers,
expert witnesses, insurance adjusters or other persons whose services
are necessary or advisable in the sole judgment of the Trustees, to
advise or assist the Trustees in the discharge of their duties as
Trustees, or otherwise in the exercise of any powers vested in the
Trustees, and to pay from the Trust Estate reasonable compensation
and expenses to such attorneys, accountants, appraisers, brokers,
expert witnesses, insurance adjusters or other persons;
(e) to collect and receive any accounts receivable, income,
proceeds of sale, and distributions derived from or relating to the
Trust Estate and to distribute the same to the Holders in accordance
with the terms of this Agreement;
(f) to pay from the Trust Estate any and all necessary or
appropriate debts, obligations, liabilities and expenses attributable
or relating to the management, maintenance, operation, preservation
or liquidation of the Trust Estate;
(g) to sue or be sued in connection with any matter arising
from or related to this Agreement, the Plan or the Confirmation Order
that affects in any way the rights or obligations of the Liquidating
Trust, the Trustees or the Holders;
(h) to represent the interests of the Holders with respect
to any matters relating to this Agreement, the Plan, the Confirmation
Order or the Liquidating Trust affecting the rights of such Holders;
and
(i) to do any and all other things, not in violation of any
other terms of this Agreement, which, in the reasonable business
judgment of the Trustees, are necessary or appropriate for the proper
liquidation, management, investment and distribution of the assets of
the Trust Estate in accordance with the provisions of this Agreement,
the Plan and the Confirmation Order.
5.2 Limitations on Trustee; Investments.
5.2.1 No Trade or Business. The Trustees shall
carry out the purposes of the Liquidating Trust and the directions contained
herein and shall not at any time enter into or engage in any business (except
as may be consistent with the limited purposes of the Liquidating Trust),
including, without limitation, the purchase of any asset or property (other
than such assets or property as are necessary to carry out the purposes
hereof), on behalf of the Liquidating Trust or the Holders. The Trustees are
directed to take all reasonable and necessary actions in accordance with this
Agreement, the Plan, and the Confirmation Order, to dispose of the Trust
Estate in as prompt, efficient and orderly a fashion as possible, to make
timely distributions of the proceeds of the Trust Estate, and otherwise not to
prolong unduly the duration of the Liquidating Trust.
5.2.2 Investments. The Trustees shall invest any
monies held at any time as part of the Trust Estate and in any reserve or
escrow funds established pursuant to the terms of this Agreement, only in
interest-bearing deposits or certificates of deposit issued by any federally
insured banking institution with a combined capital and surplus of at least
$100,000,000.00 or short-term investments and obligations of, or
unconditionally guaranteed as to payment by, the United States of America and
its agencies or instrumentalities, or as otherwise permitted pursuant to
section 345 of the Bankruptcy Code, pending need for the disbursement thereof
in payment of costs, expenses, and liabilities of the Liquidating Trust or in
making distributions pursuant to Section 6 of this Agreement. The Trustees
shall be restricted to the collection and holding of such monies and to the
payment and distribution thereof for the purposes set forth in this Agreement
and to the conservation and protection of the Trust Estate in accordance with
the provisions hereof.
5.3 Transferee Liabilities. If any liability shall be
asserted against the Liquidating Trust as transferee of the Trust Estate on
account of any claimed liability of or through Reorganized SWINC or the
Debtors, the Trustees may use such part of the Trust Estate as may be
necessary in contesting any such claimed liability and in payment, compromise,
settlement and discharge thereof on terms reasonably satisfactory to the
Trustees. In no event shall the Trustees be required or obligated to use their
own property, funds or assets for any such purposes.
5.4 Administration of Trust. In administering the
Liquidating Trust, the Trustees, subject to the express limitations contained
herein, are authorized and directed to do and perform all such acts, to
execute and deliver such deeds, bills of sale, instruments of conveyance, and
other documents as they may deem necessary or advisable to carry out the
purposes of the Liquidating Trust.
5.5 Payment of Expenses and Other Liabilities. The Trustees
shall utilize the Trust Estate as necessary or advisable to pay all expenses,
charges, liabilities and obligations of the Liquidating Trust, and such other
debts, liabilities, or obligations, as may be payable from the Trust Estate,
interest, taxes, assessments, and public charges of every kind and nature, and
the costs, charges and expenses in connection with or arising out of the
execution or administration of the Liquidating Trust and the Trust Estate, and
such other payments and disbursements as are provided for in this Agreement or
which may be reasonably determined by the Trustees to be proper charges
against the Liquidating Trust and the Trust Estate. The Trustees, in their
reasonable discretion and business judgment, may from time-to-time make
provision by reserve or otherwise, out of the Trust Estate, for such amount or
amounts as the Trustees in their reasonable discretion and business judgment
may determine to be necessary or advisable to meet or satisfy unascertained,
unliquidated or contingent liabilities of the Liquidating Trust. The Trustees
may make such payments without application to or order of the Court.
5.6 Fiscal Year. The Liquidating Trust's fiscal year shall
end on December 31 of each year, unless the Trustees deem it advisable to
establish some other date on which the fiscal year of the Liquidating Trust
shall end.
5.7 Reports. The Trustees shall prepare, deliver, and file,
as the case may be, reports as follows:
(a) Prepare and file unaudited interim financial reports as
may be required by regulatory authorities, applicable laws, rules or
regulations or as the Trustees deem advisable during the fiscal year;
and
(b) Prepare, file, and mail, within the time required by
applicable law or regulation, necessary income tax information, tax
returns or reports to the proper recipients of such tax information
and applicable taxing authorities, including, on an annual basis, the
manner and calculation of the Liquidating Trust's taxable gain or
loss which the Liquidating Trust would recognize if it were a
separate taxable entity.
5.8 Employment of Professionals and Other Persons. The
Liquidating Trust is authorized, without further order of the Court, to employ
such persons, including professionals, as it may deem necessary or advisable
to enable it to perform its functions hereunder, and the costs of such
employment and other expenditures shall be paid from the Liquidating Trust
except as otherwise specified in this Agreement. Such persons shall be
compensated and reimbursed for their reasonable and necessary fees and
out-of-pocket expenses on a monthly basis as agreed by the Liquidating Trust
without further notice, hearing or approval of the Court.
6. Source of Payments; Distributions and Payments to Holders.
6.1 Payments from Trust Estate. All payments to be made
hereunder to Holders shall be made only from the assets, income and proceeds
of the Trust Estate and only to the extent that the Trustees shall have
received sufficient assets, income or proceeds of the Trust Estate to make
such payments in accordance with the terms of this Section 6. Each Holder
shall look solely to the assets, income, and proceeds of the Trust Estate, and
not to the Trustees in their individual capacity for distribution and payment
as herein provided.
6.2 Distributions to Holders. Following the SWINC
Consolidated Estate's payment in full, pursuant to the terms of the Plan, of
all Allowed Claims in Classes 1A, 2A, 3A and 4A, Reorganized SWINC and the
SWINC Consolidated Estate shall pay the Liquidating Trust all Distributable
Cash thereafter remaining. Promptly but in no event more than three (3)
Business Days following receipt of each of such payment of Distributable Cash,
the Liquidating Trust shall distribute the amount of such payment to the
Holders on a Pro Rata basis equal each Holder's Pro Rata share of the
beneficial interest in the Liquidating Trust as of the Equity Distribution
Record Date, all in accordance with the terms and conditions of this
Agreement, the Plan, and the Confirmation Order.
The amount of the Trust Estate available at any time for
distribution to the Holders pursuant to this Section 6.2 ("Net Distributable
Cash") shall be determined by the Trustees on behalf of the Liquidating Trust
in their reasonable discretion and their determination shall be final and
conclusive on all persons, in the absence of gross negligence or willful
misconduct on the part of the Trustees, and shall not be reviewed by the
Court. In determining the amount of Net Distributable Cash, the Trustees may
rely and shall be fully protected in relying upon the advice and opinion of
independent public accountants or of counsel to the Liquidating Trust.
6.3 Undeliverable Distributions. Undeliverable distributions
shall be distributed as provided for in Article __ of the Plan.
6.4 Disputed Claims. The Liquidating Trust shall not make
any distributions on account of any Disputed Claims, unless and until such
Claims become Allowed Class 5A Interests on Allowed Class 6A Claims as
specified under the Plan.
6.5 Final Distribution. Upon the Liquidating Trust's receipt
of the final payment of Distributable Cash by Reorganized SWINC and the SWINC
Consolidated Estate and the final liquidation of all of the assets, rights and
interests that the Trust Estate comprises, and in any event prior to the
Termination Date (as defined in Section 6.6 hereof), the Liquidating Trust
shall prepare a final accounting of any and all monies remaining in any
accounts maintained by the Liquidating Trust or otherwise remaining in the
Trust Estate (the "Final Cash"). Once the amount of the Final Cash has been
determined, the Liquidating Trust shall deduct and pay from the Final Cash any
and all permitted costs, expenses and liabilities of the Liquidating Trust.
The Liquidating Trust shall then distribute the remaining cash to the Holders.
6.6 Termination. The Liquidating Trust shall terminate upon
distribution of all of the assets of the Trust Estate to the Holders which
date shall not be more than [three (3) years] from and after the Effective
Date (the "Termination Date"); provided, however, that if in the reasonable
determination of the Trustees, in light of existing facts and circumstances,
the distribution of the Trust Estate will not be completed prior to the
Termination Date, then not more than ninety (90) days prior to the Termination
Date, the Trustees may execute an amendment to this Section 6.6 extending the
Termination Date for an additional period of up to five (5) years (the
"Extension Period"). If in the reasonable determination of the Trustees, in
light of existing facts and circumstances, the distribution of the Trust
Estate will not be completed prior to the conclusion of the Extension Period,
then not more than ninety (90) days prior to the conclusion of the Extension
Period, the Trustees may execute an amendment to this Section 6.6 further
extending the Termination Date for an additional period of up to five (5)
years.
7. Other Duties of the Trustees.
7.1 Management of Trust Estate. With respect to the assets
of the Trust Estate, the Trustees may, if sufficient funds are available,
purchase and maintain in existence such insurance as the Trustees deem
reasonable and necessary or appropriate from time to time to protect the
Liquidating Trust's, the Trustees' and the Holders' interests in the assets of
the Trust Estate or from any potential claims or liabilities relating thereto
or the distribution thereof.
7.2 No Implied Duties. The Trustees shall not manage,
control, use, sell, dispose, collect, or otherwise deal with the Liquidating
Trust except as provided herein, and no implied duties or obligations
whatsoever of the Trustees shall be read into this Agreement.
8. Concerning the Trustees.
8.1 Acceptance by Trustees. The Trustees accept the
Liquidating Trust hereby created for the benefit of the Holders and agree to
act as Trustees of the Liquidating Trust pursuant to the terms of this
Agreement. The Trustees shall have and exercise the rights and powers herein
granted and shall be charged solely with the performance of the duties herein
declared on the part of the Trustees. The Trustees also agree to receive and
disburse all monies actually received constituting part of the Trust Estate
pursuant to the terms of this Agreement.
8.2 Discretionary Submission of Questions. The Trustees in
their sole discretion and reasonable business judgment, may, but shall not be
required to, submit to the Court, from time to time, any question or questions
with respect to which the Trustees may desire to have explicit approval of the
Court for the taking of any specific action proposed to be taken by the
Trustees with respect to the Trust Estate, or any part thereof, and the
administration and distribution of the Trust Estate. The written authorization
of the Court set forth in a Final Order shall constitute approval by the Court
of the proposed action to be taken by the Trustees. All fees, costs and
expenses incurred by the Trustees in the exercise of any right, power or
authority conferred by this Section 8.2 shall be fees, costs and reasonable
expenses of the Trust Estate.
8.3 Liability of the Trustees.
8.3.1 Limitation on Liability. No provision of this
Agreement shall be construed to impart any liability upon the Trustees unless
it shall be proven that the Trustees' actions or omissions constituted gross
negligence or willful misconduct in the exercise of or failure to exercise any
right or power vested in the Trustees under this Agreement.
8.3.2 Reliance on Certificates or Opinions. In the
absence of gross negligence or willful misconduct on the part of the Trustees,
the Trustees may conclusively rely, as to the truth of the statements and
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustees and conforming to the requirements of this
Agreement.
8.3.3 Discretion of Trustees. The Trustees, within
the limitations and restrictions expressed and imposed herein, may act freely
under all or any of the rights, powers and authority conferred hereby, in all
matters concerning the Trust Estate, after forming their reasonable business
judgment based upon the circumstances of any particular question or situation
as to the best course to pursue, without the necessity of obtaining the consent
or permission or authorization of the Holders, Reorganized SWINC, the Debtors,
the Court, or of any official or officer; and the rights, powers and authority
conferred on the Trustees by this Agreement are conferred in contemplation of
such freedom of reasonable business judgment and action within the limitations
and restrictions so expressed and imposed; provided, however, that the Trustees
shall not be liable for any error or exercise of judgment, unless it shall be
proved that the Trustees were grossly negligent or acted in a manner which
constituted willful misconduct.
8.4 Reliance by Trustees.
8.4.1 Genuineness of Documents. The Trustees may
rely and shall be protected in acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, objection,
order, judgment, decree, or other paper or document reasonably believed by them
to be genuine and to have been signed, made, entered or presented by the proper
party, parties, official, officials, entity or entities.
8.4.2 Retention of Counsel. The Trustees may consult
with legal counsel and with independent public accountants and other experts.
The Trustees shall not be liable for any action taken or suffered by them or
omitted to be taken by them without gross negligence or willful misconduct in
reliance on any opinion or certification of such accountants or in accordance
with the advice of such counsel or experts, provided that such accountants,
counsel and experts were selected and retained with reasonable care.
8.4.3 Reliance on Trustees. No person dealing with
the Trustees shall be obligated to see to the application of any monies,
securities, or other property paid or delivered to them or to inquire into the
expediency or propriety of any transaction or the right, power, or authority of
the Trustees to enter into or consummate the same upon such terms as the
Trustees may deem advisable. Persons dealing with the Trustees shall look only
to the Trust Estate to satisfy any liability incurred by the Trustees to such
persons in carrying out the terms of this Agreement, and, except as otherwise
expressly provided herein, the Trustees shall have no personal, individual or
corporate obligation to satisfy any such liability.
8.5 Compensation and Expenses of Trustees. Subject to
Section 5.8 above, the Liquidating Trust will not pay any compensation to the
Trustees but will promptly reimburse the Trustees for all reasonable
out-of-pocket costs and expenses incurred by the Trustees in connection with
the performance of their duties hereunder, but not including the hourly or
other fee of a lawyer or other professional serving as a Trustee or the fees
and expenses of counsel for a Trustee.
8.6 Indemnification.
8.6.1 Indemnification of Trustees and Agents. The
Liquidating Trust shall indemnify to the full extent of the Trust Estate any
person or entity who was or is a party, or is threatened to be made a party to
any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative by reason of the fact that
such person or entity is or was a Trustee or an employee or agent of the
Liquidating Trust, from and against any and all expenses (including attorneys'
fees and expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person or entity in connection with such
action, suit or proceeding, including appeals thereof, if such person or entity
acted without gross negligence and willful misconduct in the exercise and
performance of any power or duties of such person or entity in accordance with
this Agreement.
8.6.2 Payment of Expenses. Expenses (including
attorneys' fees) incurred in defending any action, suit or proceeding referred
to in Section 8.6.1 may be paid by the Liquidating Trust in advance of the
final disposition of such action, suit or proceeding, upon an undertaking by
one of the Trustees or an employee or agent of the Liquidating Trust to repay
such amount if it shall ultimately be determined that such person or entity is
not entitled to be indemnified.
8.6.3 Insurance. The Liquidating Trust may maintain
insurance during its existence and after its termination, at its expense, to
protect itself and the Trustees, officers, employees or agents of the
Liquidating Trust, of and from any liability, whether or not the Liquidating
Trust would have the legal power to directly indemnify the Trustees, officers,
employees, or agents of the Liquidating Trust, against such liability. The
terms "Trustees," "officers", "employers" or "agents" as used herein, where
applicable, include the heirs, successors, executors, administrators, personal
representatives, or estates of such persons or entities.
8.7 Costs and Expenses of the Liquidating Trust.
8.7.1 Costs and Expenses of the Liquidating Trust.
Subject to Section 8.5, the Liquidating Trust shall pay out of the Trust Estate
all reasonable costs, expenses and obligations incurred by the Liquidating
Trust in carrying out its duties under this Agreement or in any manner
connected, incidental or related to the administration of the Liquidating Trust
without application to or order of the Court, including, without limitation:
(a) any reasonable fees and expenses of attorneys,
accountants, investment advisors, expert witnesses,
insurance adjustors, brokers, professionals or other persons
whom the Liquidating Trust may reasonably deem advisable to
employ in connection with the Liquidating Trust, or on
behalf of the Trustees in accordance with the terms of this
Agreement; and
(b) any taxes, charges and assessments which may be owed by,
or levied or assessed against, the Trust Estate or any
property held in trust hereunder.
8.8 Resignation and Removal.
8.8.1 Resignation. A Trustee may resign and be
discharged from any future obligations and liabilities hereunder by giving
written notice thereof to the Court and the remaining Trustees at least thirty
(30) days prior to the effective date of such resignation. Such resignation
shall become effective on the day specified in such notice.
8.8.2 Removal. In addition, a Trustee may be removed
with or without cause at any time by the unanimous vote or written consent of
the other Trustees. In addition, if a Trustee who is concurrently serving on
the SWINC Liquidation Board is removed or resigns from the SWINC Liquidation
Board, the Trustee shall be automatically removed as a Trustee of the
Liquidating Trust unless within five (5) Business Days after such Trustee's
removal or resignation from the SWINC Liquidation Board, the Trustee's
retention is approved by the unanimous vote or written consent of the other
Trustees. Upon any such removal, such removed Trustee shall be entitled to any
reimbursement and indemnification set forth in this Agreement which remain due
and owing to such Trustee at the time of such removal.
8.8.3 Filling Vacancies; Appointment of a Successor
Trustee. If, at any time, the number of Trustees is increased in accordance
with the Plan and Confirmation Order or a Trustee shall give notice of such
Trustee's intent to resign pursuant to Section 8.8.1 hereof or is removed or
shall become incapable of acting, the remaining Trustees shall give notice
thereof to the Court. Not later than thirty (30) days after the date of such
notice, the remaining Trustees shall choose by a majority vote a Trustee to
fill each vacancy created by the expansion, resignation or removal to act under
this Agreement, except that if a majority vote of the remaining Trustees cannot
be obtained, the United States Trustee shall appoint a representative to fill
the vacancy and serve as a Trustee subject to approval by the Court.
8.9 Acceptance of Appointment by Successor Trustee. Any
successor Trustee appointed hereunder shall execute an instrument accepting
such appointment hereunder in the form determined by the remaining Trustees
and shall deliver counterparts thereof to the Court. Thereupon, such successor
Trustee shall, without any further act, become vested with all of the rights,
powers and duties of its predecessor in the Liquidating Trust hereunder with
like effect as if originally named herein.
9. Supplements and Amendments to this Trust Agreement.
9.1 Supplements and Amendment. Subject to the provisions of
Section 9.2 hereof, at any time and from time to time, and subject to approval
by the Court, if sought by all of the Trustees pursuant to Section 8.2 of this
Agreement, the Trustees may, by majority vote, execute a supplement or
amendment hereto for the purpose of adding provisions to, or changing or
eliminating provisions of, this Agreement, or amendments thereto, as specified
in such vote or consent, provided, however, that no such supplement or
amendment shall (i) require any Holder to furnish or advance funds to the
Trustees or shall entail any additional personal liability (beyond that
described in Section 10.3.4 hereof) or the surrender of any individual right
on the part of any Holder except with the written consent of such Holder, (ii)
change or modify the provisions for distribution of the Trust Estate, or (iii)
amend or alter any obligation of the Liquidating Trust to Reorganized SWINC or
the Debtors. In no event shall this Agreement be amended so as to change the
purposes of the Liquidating Trust as set forth in Section 2.
9.2 Trustees' Declining to Execute Documents. If, in the
reasonable opinion of any Trustee, any document required to be executed
pursuant to the terms of Section 9.1 hereof materially and adversely affects
any immunity or indemnity in favor of any Trustee under this Agreement, the
Trustee may in its discretion decline to execute such document.
9.3 Notice and Effect of Executed Amendment. Upon the
execution of any declaration of amendment or supplement, this Agreement shall
be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Agreement of the Trustees and the Holders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any such
amendment or supplement shall be thereby deemed to be part of the terms and
conditions of this Agreement for any and all purposes.
10. Miscellaneous.
10.1 Title to Trust Estate. Neither any Holder nor
Reorganized SWINC shall have title to any part of the Trust Estate.
10.2 Sales of Assets of the Trust Estate. Any sale or other
conveyance of any assets of the Trust Estate, or part thereof, by the Trustees
made in accordance with the terms of this Agreement shall bind the Holders and
Reorganized SWINC and shall be effective to transfer or convey all right,
title and interest of the Trust, the Holders and Reorganized SWINC in and to
such asset of the Trust Estate.
10.3 Notices. Unless otherwise expressly specified or
permitted by the terms of this Agreement, the Plan or the Confirmation Order,
all notices shall be in writing and delivered by registered or certified mail,
return receipt requested, or by hand or by facsimile transmission (and
confirmed by mail), in any such case addressed as follows:
If to the Trustees: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
With a copy to: Bell, Boyd & Lloyd LLC
Attn: David F. Heroy
70 W. Madison Street
Suite 3300
Chicago, Illinois 60602
Facsimile: (312) 372-2098
If to the
Liquidating Trust: ____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
With a copy to: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Facsimile: (___)____-_____
and if to any Holder, addressed to its latest mailing address provided to
the Liquidating Trust.
10.3.1 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
10.3.2 Counterparts. This Agreement may be executed
in multiple counterparts, each of which shall constitute an original, but all
of which together shall constitute one and the same instrument. This Agreement
may be executed by facsimile signature with the exchange of original signatures
to occur within five (5) Business Days thereafter.
10.3.3 Binding Agreement. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Trustees and any successor Trustee, his respective successors and assigns,
and the Holders, and their respective personal representatives, successors and
assigns. Any request, notice, direction, consent, waiver or other instrument or
action by any party hereto or any Holder shall bind its respective heirs,
personal representatives, successors and assigns.
10.3.4 No Personal Liability of Holders. None of the
Holders will incur any personal liability through their ownership or possession
of their Beneficial Interests, except for taxes imposed on them pursuant to
applicable provisions of federal, state or local law with respect to the
receipt of such Beneficial Interests or distributions from or transactions of
the Liquidating Trust. Liabilities of the Liquidating Trust are to be satisfied
in all events (including the exhaustion of the Trust Estate) exclusively from
the Trust Estate and such liabilities are not to attach to or be paid from any
amounts distributed to the Holders, regardless of the time at which such
distribution or payment took place, or from the other assets of the Trustees or
the Holders.
10.3.5 Headings. The headings of the various
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
10.3.6 Construction. Except where the context
otherwise requires, words importing one gender shall include the other and the
neuter, if appropriate; words importing the singular number shall include the
plural number and vice versa; and words importing persons shall include
partnerships, associations, and corporations.
10.3.7 Governing Law. This Agreement including all
matters of construction, validity and performance hereof, shall in all respects
be governed by, and construed and interpreted in accordance with the internal
laws of the State of Delaware.
10.3.8 Construction with the Plan and the Approval
Orders. The Plan and the Confirmation Order are hereby incorporated fully by
reference and are made a part hereof for all purposes. In the event of any
inconsistency or conflict between the terms, conditions, definitions and
provisions of this Agreement and the terms, conditions and provisions of the
Plan and the Confirmation Order, the terms, conditions, definitions and
provisions of the Plan and the Confirmation Order shall control, subject to any
further order of the Court.
10.3.9 Subject to Court's Jurisdiction. The Court
shall retain jurisdiction over the Liquidating Trust, the Trust Estate, the
Trustees, and the Debtors to: (a) ensure that the purposes and intents of this
Agreement are carried out, and (b) issue any and all orders and to take other
actions necessary to the implementation of this Agreement.
10.3.10 Intention of the Parties. Reorganized SWINC,
the Holders and the Trustees hereby express their intent to create and maintain
the Liquidating Trust as a liquidating trust for Federal income tax purposes in
accordance with Treasury Regulation Section 301.7701-4)d), and the Trustees
further represent that the Liquidating Trust shall not: (a) receive transfers
of listed stocks or securities, any readily-marketable assets (other than those
constituting the Trust Estate), or any assets of a going business; (b) receive
and will not retain cash in excess of a reasonable amount to meet claims and
contingent liabilities, determined in the reasonable discretion of the Trustees
in accordance with the provisions of Sections 5 and 6 hereof; and (c) receive
general or limited partnership interests or the unlisted stock of any single
issuer that represents 80 percent or more of the stock of such issuer.
[*** SIGNATURES TO FOLLOW ***]
IN WITNESS WHEREOF, the parties have executed or have hereunto caused
this Agreement to be duly executed, as of the day and year first above
written.
REORGANIZED SWINC:
STONE & WEBSTER, INCORPORATED
By:
------------------------------------
Name:_____________________________
Title:____________________________
TRUSTEES:
________________________________________
[TBD]
________________________________________
James Kjorlien, CRT CAPITAL GROUP, LLC
________________________________________
_______________, GRACE BROTHERS, LTD.
EXHIBIT E
DISPUTED, CONTINGENT, UNLIQUIDATED CLAIMS
NOT ENTITLED TO VOTE -
EXCEPT AS PROVIDED IN PARAGRAPH 4 BELOW:
1. Holders of Claims scheduled by the Debtors as disputed,
contingent, or unliquidated in "Schedule F" filed by the
Debtors as part of the Schedules of Assets and Liabilities of
the Debtors on file with the Court, unless the holder of such
Claim has timely filed a proof of claim in accordance with
Bankruptcy Rule 3003 as to which paragraphs 2 and 3 below do
not apply; and
2. Claimants who have filed a proof of claim asserting any
portion of their Claim as disputed, contingent or
unliquidated; and
3. Holders of any Claims which are the subject of a pending
objection to Claim filed by any one of the Debtors, any
statutory committee appointed by the Court in the Debtors'
chapter 11 cases, or any other party in interest;
Unless such Claim is an Allowed Claim under the Plan, or the Court has entered
an Order allowing such Claim for voting purposes pursuant to Bankruptcy Rule
3018(a), or as may otherwise be agreed upon between the holder of such claim
and the Equity Committee as proponent of the Plan.
EXHIBIT F
ASBESTOS TRUST AGREEMENT (Exhibit F-1)
Claims Resolution and Allowance Procedures (Exhibit F-2)
7
EXHIBIT F-1
STONE & WEBSTER ASBESTOS TRUST
This trust is established pursuant to the order of
confirmation (the "Confirmation Order") of the United States Bankruptcy Court
for the District of Delaware (the "Bankruptcy Court") entered on
________________ confirming the [Insert Formal Name of Confirmed Plan] (the
"Plan") in the chapter 11 proceedings under Title 11 of the United States
Code, 11 U.S.C ss.ss. 101-1330 (as amended, the "Bankruptcy Code"), of Stone &
Webster, Incorporated ("SWINC"), Stone & Webster Engineers and Constructors,
Inc. ("SWE&C") and certain of their respective subsidiaries and affiliates,
debtors and debtors in possession (together with SWINC and SWE&C, the
"Debtors") .
RECITALS
WHEREAS, the Debtors each filed chapter 11 petitions for relief under
the Bankruptcy Code on June 2, 2000;
WHEREAS, the Bankruptcy Court entered the Confirmation Order on
______________________;
WHEREAS, the Confirmation Order provides, among other things, for the
establishment of an asbestos trust (the Trust, as hereinafter defined) and the
appointment of _____________________ as trustee (the "Trustee") of such Trust;
and
WHEREAS, in accordance with the Confirmation Order the Debtors have
caused the sum of $4.5 Million United States Dollars (US$4,500,000) and an
allowed claim of $1.0 Million United States Dollars (US$1,000,000) against the
SWE&C Consolidated Estate and certain rights under insurance policies to be
irrevocably transferred to be used as the principal assets of the Trust
estate;
WHEREAS, the relief set forth in the Confirmation Order having become
effective;
NOW, THEREFORE, the Debtors hereby establish this trust as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such
terms in the Plan, the Confirmation Order and/or the Bankruptcy Code.
"Asbestos Claim" means any Claim or demand 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 (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.
"Pre-effective Date Claim" means an Asbestos Claim which was manifested or
diagnosable prior to the Effective Date of the Plan.
"Post-effective Date Claim" means an Asbestos Claim which was manifested or
diagnosable on or after the Effective Date of the Plan.
ARTICLE II
CREATION OF THE TRUST
2.01 Creation and Name. There is hereby created a trust, that shall
be known as the Stone & Webster Asbestos Trust (the "Trust"), and that is the
trust mandated by the Order.
2.02 Purpose. The purpose of the Trust is to provide a means of
paying the Debtors' obligations with respect to Asbestos Claims against them
by the use of the assets transferred to the Trust and claims resolution
procedures approved by the Bankruptcy Court as amended from time to time. Such
claims resolution procedures shall be designed to value any valid Asbestos
Claims, to compensate the holders of valid Asbestos Claims and to dispose of
invalid Asbestos Claims. In furtherance of this purpose, the Trustee shall be
responsible for supervising and administering the claims resolution process.
Also in furtherance of this purpose, the Trustee shall (i) receive, preserve,
hold, manage, and maximize the value of the assets of the Trust, and (ii)
shall take any other actions deemed by the Trustee to be in the best interests
of the Trust. The Trust shall undertake to pay all Pre-effective Date Claims
prior to payment of Post-effective Date Claims.
2.03 Transfer of Assets to the Trust. There is hereby transferred by
the Debtors to the Trust $4.5 Million United States Dollars and a general
unsecured Claim against the Consolidated SWE&C Estate in the amount of $1.0
million (the "Trust Initial Fund"). Subject to the limitations set forth in
the Plan, there is also hereby transferred to the Trust all of the Debtors'
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 (the "Policy Rights"). The Policy Rights are transferred subject to
the Debtors' obligations under the policies (other than the payment of
premium) giving rise to such rights.
2.04 Acceptance of Assets and of Purpose. In connection with and in
furtherance of the purpose of this Trust, the Trustee hereby expressly accepts
the transfer of the Trust Initial Fund and the Policy Rights, and hereby
undertakes and shall control the liquidation, resolution, payment and
satisfaction of approved Asbestos Claims in accordance with the approved
claims resolution procedures and the further orders of the Bankruptcy Court.
ARTICLE III
POWERS, TRUST ADMINISTRATION
3.01 Powers and Directions to the Trustee.
(a) Subject to the limitations set forth in this Trust, the Trustee
shall have the power to take any and all such actions as in the judgment of
the Trustee are necessary or convenient to effectuate the purpose of the
Trust, including, without limitation, any trust power now or hereafter
permitted under the law of the State of Delaware, or any other state which
becomes the domicile of the Trust, that is not inconsistent with the
provisions of this Trust or with the Bankruptcy Court's orders in respect of
the Trust.
(b) Except as provided herein, the Trustee need not obtain the order
of approval of any court in the exercise of any power or discretion conferred
hereunder. The Trustee shall file such reports with the United States
Bankruptcy Court as described in ss. 4.04 hereof.
(c) Without limiting the generality of subsection 3.01(a) above, the
Trustee shall have the power to:
1. maintain any Unclaimed Distribution Reserve for the
benefit of the holders of Allowed Asbestos Claims;
2. invest 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) Bankruptcy Code section
345 or (y) any order of the Court entered in the Debtors' Chapter 11
Cases;
3. calculate and pay all distributions to be made under the
Plan, the Asbestos Trust Agreement, and orders of the Court, to
holders of Allowed Asbestos Claims that have become undisputed,
non-contingent, and liquidated claims;
4. employ, supervise and compensate professionals, if any,
necessary to represent the interests of and serve on behalf of the
Asbestos Trust;
5. object to, defend against and settle Asbestos Claims, and
seek estimation of contingent or unliquidated Asbestos Claims under
Bankruptcy Code section 502(c);
6. dissolve the Asbestos Trust;
7. exercise all powers and rights, and take all actions,
contemplated by or provided for in the Asbestos Trust Agreement;
8. take any and all other actions necessary or appropriate to
implement the provisions of the Asbestos Trust Agreement;
9. make and file any tax returns for the Asbestos Trust;
10. take any actions necessary to ensure that the Asbestos
Trustee will receive timely notice of any Asbestos Claim including,
without limitation, taking action to maintain the corporate existence
of one or more of the Debtors;
11. enter into one or more coverage in place agreements with
the Asbestos Insurance Carriers on terms satisfactory to the Trustee
or take other appropriate action with respect to insurance provided by
the Asbestos Insurance Carriers; and
12. take 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.
(d) The Trustee is directed, consistent with the purpose of the
Trust, to administer and manage the Trust estate within his discretion and in
the exercise of his business judgment. Such discretion may include, without
limitation, entry into agreements with one or more of the Asbestos Insurance
Carriers that provides, as part of a coverage in place agreement, for the
defense and disposition by such Asbestos Insurance Carriers of the Asbestos
Claims covered by such insurers' policies.
3.02 Administration.
(a) The Trustee shall act in the exercise of his business judgment.
However, the Trustee, on behalf of the Trust, may apply to the Bankruptcy
Court for approval of any action or decision he contemplates taking, and if
such Bankruptcy Court approval is granted by the entry of appropriate
order(s), the Trustee shall implement such action or decision.
(b) The Trustee shall timely file such income tax and other returns
and statements as are required to comply with applicable provisions of Title
26 of the United States Code (as amended, the "Internal Revenue Code") and of
any state law and the regulations promulgated thereunder.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
4.01 Accounts. The Trustee may, from time to time, create such
accounts and reserves within the Trust estate as he may deem necessary,
prudent or useful in his discretion in order to provide for the payment of
expenses and the valid Asbestos Claims, and may, with respect to any such
account or reserve, restrict the use of monies therein.
4.02 Investments. The Trustee shall administer and/or invest the
Trust Initial Fund and any other assets transferred or contributed to the
Trust in the manner in which individuals of ordinary prudence, discretion and
judgment would act in the management of their own affairs, subject to the
following limitations and provisions:
(a) The Trust may acquire or hold any certificates of deposit of any
federally insured financial institution whose publicly held long-term debt
securities of such financial institution or of the holding company, if any, of
which such financial institution is a subsidiary, (i) are rated "Baa" or
higher by Moody's Investors Service, Inc. ("Moody's"), "BBB" or higher by
Standard & Poor's Corporation ("S&P's"), or have been given an equivalent
rating by another nationally recognized statistical rating agency, or (ii)
have been issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof.
(b) The Trust shall not acquire or hold any repurchase obligations
unless, in the opinion of the Trustee, they are adequately collateralized.
(c) The Trust may acquire or hold long-term debt securities only if
those securities (i) are rated "Baa" or higher by Moody's, "BBB" or higher by
S&P's or have been given an equivalent investment grade rating by another
nationally recognized statistical rating agency, or (ii) have been issued or
fully guaranteed as to principal and interest by the United States of America
or any agency or instrumentality thereof.
(d) The Trust may acquire any commercial paper and hold it for less
than 90 days, but only commercial paper that is rated "Prime-1" or higher by
Moody's or "A-1" or higher by S&P's or has been given an equivalent rating by
another nationally recognized statistical rating agency may be held for 90
days or more.
(e) The Trust may acquire or hold preferred stock if the preferred
stock is rated "Baa" or higher by Moody's or "BBB" or higher by S&P's or has
been given an equivalent investment grade by another nationally recognized
statistical rating agency.
(f) The Trust may acquire and hold securities or instruments of a
single issuer with an aggregate market value of 10% or less of the value of
the Trust estate; the limitations of this section shall not apply to debt
securities or other instruments issued or fully guaranteed as to principal and
interest by the United States of America or any agency or instrumentality
thereof.
(g) The Trust may acquire and hold an interest in any mutual fund the
investments of which comply with the limitations and provisions of this
subsection 4.02. Such investments by such mutual fund shall be deemed held or
acquired by the Trust for purposes of this subsection 4.02.
4.03 Source of Payments. All Trust expenses and payments in respect
of Asbestos Claims, including the expenses of the Trustee and any
professionals he retains in connection with the administration of the Trust,
shall be payable solely out of the Trust estate assets. Neither the Trustee
nor any employee or agent of the Trust shall be personally liable for the
payment of any Trust expense or Asbestos Claims or other liability of the
Trust.
4.04 Trustee Reporting. The Trustee shall cause to be prepared and
filed with the Bankruptcy Court, as soon as available and in any event within
120 days following the end of the Trust's fiscal year end, an annual report
(the "Annual Report") containing financial statements of the Trust audited by
a firm of independent public accountants selected by the Trustee and
accompanied by an opinion of such firm as the to fairness of the financial
statements' presentation and as to the conformity of the financial statements
with generally accepted accounting principles, a list of all submitted claims
and the Trustee's action regarding each claim (approved, rejected, or being
reviewed).
ARTICLE V
TRUSTEE
5.01 Initial Trustee. Pursuant to the Order, __________________
is the initial Trustee of this Trust.
5.02 Term of Service. The initial Trustee, ________________________,
shall serve for the duration of this Trust, or until his earlier death or
resignation or removal for cause pursuant to an order of the Bankruptcy Court.
5.03 Appointment of Successor Trustee. The Debtors may appoint one or
more successor trustees if the Trustee dies, resigns, becomes incapacitated,
ineligible to hold the position of trustee or fails to carry out his duties
under this Trust. Notwithstanding the foregoing, if the Trustee enters into
coverage in place agreements with the Asbestos Insurance Carriers that provide
for the appointment of a successor trustee by such Asbestos Insurance
Carriers, then the Asbestos Insurance Carriers shall have the right to appoint
a successor trustee if the Trustee dies, resigns, becomes incapacitated,
ineligible to hold the position of trustee or fails to carry out his duties
under this Trust. The Bankruptcy Court may replace the Trustee, with cause, or
on application of the Trustee, with one or more successor trustees. If there
is more than one trustee, the trustees shall act by a majority vote.
5.04 Compensation and Expenses of Trustee. The Trustee shall receive
reasonable compensation for his services as Trustee in the amount of
$_______per hour. All reasonable out-of-pocket costs and expenses incurred by
the Trustee in connection with the performance of his duties hereunder will be
promptly reimbursed to the Trustee by the Trust upon the presentment of
appropriate documentation. All such compensation shall be subject to review
and approval of the Bankruptcy Court upon the motion of any party in interest
or upon the Bankruptcy Court's own motion.
5.05 Liability of Trustee. The Trustee and any successor thereto, and
any employee or agent of the Trust shall not be liable to the Trust or to any
holder of any Asbestos Claims except for his own breach of trust committed in
bad faith, gross negligence or for willful misappropriation.
5.06 Indemnification of Trustee and Others.
(a) The Trustee and each employee and agent of the Trust shall be
indemnified by the Trust as determined by the Trustee in the exercise of his
business judgment, but in no event shall such indemnification exceed that
extent of indemnification which a corporation organized under the laws of the
State of Delaware is from time to time entitled to indemnify its directors,
officers and employees, against any and all liabilities, expenses, claims,
damages or losses incurred by them in the performance of their duties
hereunder, except any such liability, expense, claim, damage or loss as to
which they are liable under subsection 5.05 hereof.
(b) The Trustee may purchase and maintain reasonable amounts and
types of insurance on behalf of the Trustee, or any employee or agent of the
Trust against liability asserted against or incurred by such individual in
that capacity or arising from his or her status as Trustee, employee or agent
of the Trust.
5.07 Trustee's Lien. The Trustee shall have a first priority lien
upon the assets of the Trust to secure the payment of any amounts payable
pursuant to subsection 5.06 hereof.
ARTICLE VI
GENERAL PROVISIONS
6.01 Irrevocability. The Trust is irrevocable, but is subject to
amendment (i) by the Trustee with the approval of the Bankruptcy Court or (ii)
by an order of the Bankruptcy Court.
6.02 Termination.
(a) The Trust shall remain in existence until dissolved by the
Trustee.
(b) Upon the Termination Date, or as soon thereafter as is reasonably
practicable in the judgment of the Trustee, and after payment of all the
amounts due to the Trustee and to Asbestos Claims, all remaining assets of the
Trust shall be returned to the SWE&C Liquidating Trust, and if as of the
Termination Date the SWE&C Liquidating Trust does not exist, then to such
charitable purposes as the Trustee in his reasonable discretion shall
determine.
6.03 Severability. Should any provision of this Trust be determined
to be unenforceable, such determination shall in no way limit or affect the
enforceability and operative effect of any and all other provisions of this
Trust.
6.04 Notices. Notices or other communications permitted hereunder
shall be in writing and delivered at the address designated below, or sent by
email or facsimile pursuant to the instructions listed below, or mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows, or to such other address or addresses as may hereafter
be furnished by the Trustee or the Bankruptcy Court:
To the Trustee: ____________________, Trustee
P.O. Box ____
__________________
Street Address:
_________________
___________________
(fax) ______________
(email) ____________________
To the
Bankruptcy Court: United States Bankruptcy Court for the
District of Delaware
824 North Market Street
Wilmington, DE 19801
Attention: ________________, Clerk
6.05 Successors and Assigns. The provisions of this Trust shall be
binding upon and inure to the benefit of the Trust and the Trustee and their
respective successors and assigns, except that neither the Trust nor the
Trustee may assign or otherwise transfer any of its or his rights or
obligations under this Trust without prior approval of the Bankruptcy Court.
6.06 No Waiver. No failure to exercise or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege
hereunder preclude any further exercise thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive of rights
under law or in equity.
6.07 Headings. The headings used in this Trust Agreement are inserted
for convenience only and neither constitute a portion of this Trust nor in any
manner affect the construction of the provisions of this Trust.
6.08 Governing Law. THIS TRUST SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF _____________, WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
6.09 Dispute Resolution. Any controversy or claim arising out of or
relating to this Trust, or the breach thereof, shall be resolved by the
Bankruptcy Court.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Trust
as of _______________________.
Trustee:
_______________________, Trustee of the Stone & Webster Asbestos Trust
/s/
By: ___________________, as Trustee, and not as an individual
EXHIBIT F-2
STONE & WEBSTER
ASBESTOS TRUST
Claims Resolution and Allowance Procedures
The following claims resolution and allowance procedures (the "Claims
Resolution Procedures") shall govern the processing and payment of claims by
the Stone & Webster Asbestos Trust (the "Asbestos Trust") as contemplated in
that certain [Plan] (the "Plan") confirmed by that certain [Confirmation
Order] (the "Confirmation Order") of the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court") dated as of ______________,
2003, and entered in the chapter 11 proceedings under Title 11 of the United
States Code (as amended, the "Bankruptcy Code"), of Stone & Webster,
Incorporated ("SWINC"), Stone & Webster Engineers and Constructors, Inc.
("SWEC") and certain of their respective subsidiaries and affiliates, debtors
and debtors in possession (together with SWINC and SWE&C, the "Debtors").
Capitalized terms not defined herein shall have the meaning ascribed to such
terms in the Asbestos Trust, or if not defined in the Asbestos Trust, in the
Plan, the Order or the Bankruptcy Code.
________________________ or his successor (the "Trustee"), shall
administer the Asbestos Trust and the Claims Resolution Procedures. In the
course of such administration, the Trustee may engage third-party service
providers to perform some or all of the services required to implement the
Claims Resolution Procedures.
OVERVIEW
1.1 Purpose
(a) The purpose of the Claims Resolution Procedures is to provide for
the fair and equitable resolution of all Asbestos Claims against the Debtors.
Notwithstanding the foregoing, the Asbestos Trust shall be administered in a
manner designed to satisfy Pre-effective Date Claims first and satisfy
Post-effective Date Claims thereafter.
(b) If at any time it appears to the Trustee that the assets of the
Asbestos Trust will be insufficient to pay all Asbestos Claims, the Trustee
will undertake to treat similar Asbestos Claims with similar circumstances on
a substantially equivalent basis with each other. (For purposes of the
foregoing sentence, Pre-effective Date Claims will be considered to be similar
only with other Pre-effective Date Claims and Post-effective Date Claims will
be considered to be similar only with other Post-effective Date Claims.) Under
those circumstances, the Trustee may make distributions to the holders of
valid claims as such claims are allowed and liquidated in accordance with
section 4 hereof, while maintaining sufficient resources to make distributions
upon future valid claims on a substantially equivalent basis. In order to
assure substantially equivalent treatment of all claimants, the Trustee may
decide to have different forms and timing of distributions to different
claimants. Because such decisions must be based on estimates and cannot be
made precisely, the estimates may have to be revised, from time to time, in
light of the experience over time.
1.2 Process
Settlement shall be favored over all other forms of claims
resolution, and the lowest feasible transaction costs shall be incurred in
order to conserve resources to make distributions upon all valid Asbestos
Claims.
GENERAL PRINCIPLES FOR FILING CLAIMS
2.1 General
Pre-effective Date Claims shall be resolved in accordance with the
procedures prescribed by the Bankruptcy Code and the Bankruptcy Rules. The
Trustee shall have the right to enforce applicable stays, bar orders and other
protections afforded by applicable bankruptcy law, and may, with the
cooperation of the Debtors, receive assignments of agreements with Asbestos
Claimants. Post-effective Date Claims shall be non-bankruptcy forums under
applicable non-bankruptcy law or under the voluntary procedures outlined
below.
2.2 Claim Forms
The Trustee may design special forms ("Special Forms") to enable the
Trustee to determine the validity and amount of Asbestos Claims without the
need for the commencement or continuation of litigation by the holder of an
Asbestos Claim.
2.3 Filing Claims
The holder of an Asbestos Claim may present such claim to the
Asbestos Trust by submitting the Special Form requested by the Trustee with
all supporting documentation required by said form or as set forth herein to
the Trustee at the addresses provided therein.
The filing of a claim shall not necessarily result in the allowance
of such claim against the Asbestos Trust. All filed claims shall be allowed or
disallowed in accordance with these Claims Resolution Procedures. The
expiration of the applicable statute of limitations on any particular claim
shall constitute cause for disallowance of such claim.
EVALUATION AND ALLOWANCE OF CLAIMS
3.1 General
The Trustee shall evaluate and allow or disallow claims only in
accordance with these Claims Resolution Procedures. A claim asserted against
the Asbestos Trust shall be allowed if (a) it qualifies as an Asbestos Claim,
(b) in the opinion of the Trustee, the subject Asbestos Claim is sustainable
as a cause of action in or evidenced by a judgment of a court of the United
States and (c) is valid and enforceable. A claim which does not qualify as an
Asbestos Claim, which the Trustee determines does not constitute a sustainable
cause of action in or is not evidenced by a judgment of a court of the United
States, or which is otherwise invalid or unenforceable shall be disallowed
against the Asbestos Trust.
3.2 Asbestos Claims
In addition to the provisions of subsection 3.1 hereof, Asbestos
Claims shall be subject to a special review process (the "Review Process").
Such Review Process shall require the submission of medical, employment and
other information necessary to permit the Trustee to determine the validity of
such claims, including proof of exposure to asbestos products allegedly
involving the Debtors.
3.3 Determination of Allowed Amounts
The Trustee shall, in his discretion, determine the amount to be
allowed on any valid, Asbestos Claims (the "Allowed Amount" or "Allowed
Amounts") after taking into account the documentation or proof submitted with
the Proof of Claim Form and/or otherwise available in support of such claim.
3.4 Additional Information
If during the evaluation of a claim by the Trustee, the Trustee
determines that the claim fails to meet the criteria of the Claims Resolution
Procedures for allowance, including any additional procedures imposed for
asbestos-related claims, or that the submitted claim form or supporting
materials are deficient, the Trustee shall provide the corresponding claimant
with a written deficiency notice. The claimant shall have ninety (90) calendar
days from the mailing of the deficiency notice to cure the noted deficiencies
by providing the requested information or materials. Prior to the expiration
of the 90-day period, the claimant may request an extension of thirty (30)
calendar days from the end of the said 90-day period to cure the deficiency,
such extension to be granted or denied by the Trustee in his sole discretion.
If the claimant fails to cure the deficiency within such 90-day period, or
within any extension granted in connection therewith, the claim automatically
will be deemed rejected, without further notice. If the claimant attempts to
cure the deficiency and the attempted cure is inadequate, the Trustee may, but
will have no obligation to, provide additional deficiency notices with respect
to any deficiency. After such additional notice, if any, the claimant shall
have sixty (60) calendar days to respond, with no provision for additional
extension.
3.5 Review of Trustee Evaluation of a Claim
In the event the Trustee determines to disallow a Pre-effective Date
Claim in whole or in part, the Trustee shall file an objection to such claim
in the Bankruptcy Court or may, in his sole discretion, grant relief from any
applicable stay or injunction and contest such claim in another forum. In the
event that the Trustee determines to disallow a Post-effective Date Claim that
has been submitted prior to the commencement of legal action by the claimant,
the Trustee shall so advise the claimant and the claimant shall have the right
to commence legal action with respect to such claim.
3.6 Employment of Claims Servicing Agent
The Trustee may employ a claims servicing agent and other
professionals, possessing the expertise required to determine the validity and
enforceability of any claim asserted against the Asbestos Trust. The Trustee
may consult with such agent or professionals in order to reach his conclusion
as to whether a claim asserted against the Asbestos Trust is sustainable as a
cause of action in a court of the United States and is valid and enforceable.
DISTRIBUTIONS FOR ALLOWED CLAIMS
4.1 General
Distributions by the Trustee, in his discretion, shall be made upon
each valid, allowed Asbestos Claim in an amount corresponding to such Asbestos
Claim's Allowed Amount plus interest, if any, as provided herein.
Distributions shall be made or reserved with respect to Pre-effective Date
Claims prior to making distributions with respect to Post-effective Date
Claims.
4.2 Factors to be Considered
(a) In determining the amount of distributions to be made upon
Pre-effective Date Claims, the Trustee may take into account the nature of the
claims filed against the Asbestos Trust and the likely magnitude of those
claims. In furtherance thereof, the Trustee, in the exercise of the discretion
granted in this subsection, may take into account (i) estimates of the number,
types and values of present claims, (ii) the value of the Asbestos Trust
assets and the projected earnings of those assets, (iii) the projected
administration and legal defense costs of the Asbestos Trust, and (iv) other
material matters.
(b) In determining the amount of distributions to be made upon
Post-effective Date Claims, the Trustee may take into account the nature of
the claims filed against the Asbestos Trust and the information then available
bearing on the magnitude of claims likely to ripen into valid, allowable
Asbestos Claims. In furtherance thereof, the Trustee, in the exercise of the
discretion granted in this subsection, may take into account (i) estimates of
the number, types and values of present claims and future demands, (ii) the
value of the Asbestos Trust assets and the projected earnings of those assets,
(iii) the projected administration and legal defense costs of the Asbestos
Trust, and (iv) other material matters.
4.4 Interim Distributions
The Trustee may, but shall not be obligated to, make interim or
partial distributions upon the Allowed Amounts on the valid, allowed Asbestos
Claims at such time or times as he is satisfied that he has had available and
has reviewed adequate information as set forth above. In all events, the
Trustee shall make distribution on claims on any given distribution date only
in a manner that assures that each holder of a valid, allowed Pre-Effective
Date Claim existing as of said distribution date receives substantially
equivalent treatment as that received by all other similar holders of valid,
allowed Pre-Effective Date Claims existing as of said distribution date. In
addition, the Trustee shall make distribution on claims on any given
distribution date only in a manner that assures that each holder of a valid,
allowed Post-Effective Date Claim existing as of said distribution date
receives substantially equivalent treatment as that received by all other
similar holders of valid, allowed Post-Effective Date Claims existing as of
said distribution date.
The Trustee may, but shall have no obligation to defer any
distributions to holders of valid, allowed Asbestos Claims until after the
Termination Date.
4.5 Releases
Any holder of any Asbestos Claim allowed in accordance with these
Claims Resolution Procedures shall be required to execute a full release of
the Debtors and the Asbestos Trust, the Trustee, any third-party service
providers and professionals engaged by the Trustee and any Asbestos Insurance
Carrier providing coverage with respect to such claim, consistent with
applicable state law before receiving any distribution from the Asbestos Trust
on such Asbestos Claim.
4.6 Asbestos Insurance Carriers
In the event that one or more Asbestos Insurance Carriers enter into
coverage in place agreements with the Trustee, such agreements may provide for
such Asbestos Insurance Carriers to provide a defense to some or all of the
Asbestos Claims as well as administration of these Claims Resolution
Procedures.
OTHER PROVISIONS
5.1 Amendment of Claims Resolution Procedures
With the consent of the Bankruptcy Court, the Trustee may amend these
Claims Resolution Procedures from time to time to make modifications or
amendments as may be necessary and appropriate.
5.2 Confidentiality
Any claims asserted against the Asbestos Trust shall be deemed to be
part of settlement discussions, shall be kept confidential and shall not be
admissible or discoverable in any court proceedings not directly related to
such claims.
5.3 Governing Law
The governing law of these Claims Resolution Procedures shall be the
law of the jurisdiction in which a claim has or could have been filed against
the applicable Debtor, and in which (a) the claimant principally resides, (b)
the injury occurred, or (c) the domicile of the Asbestos Trust ("Applicable
Law").
EXHIBIT G
COMPARISON CHART
DEBTORS' PLAN AND EQUITY PLAN
EXHIBIT G TO EQUITY PLAN
COMPARISON OF EQUITY PLAN AND DEBTORS' PLAN
$ Notes:
M = Million
K = Thousand
I. SWINC CONSOLIDATED ESTATE
- ------------------------------------------------------- -----------------------------------------------------------------------
DEBTORS' PLAN EQUITY PLAN
- ------------------------------------------------------- -----------------------------------------------------------------------
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$ Class Type/Treatment $ Class Type/Treatment
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$190M 1A.1 SWE&C Setoff Claim
Deemed offset and satisfied,
resulting in Class 7B
Intercompany Claim
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-3M 1A.2 SWINC Mis. Sec. Claims $0 1A Secured Claims
Paid in full in cash or as Paid in Full in Cash on or after the
otherwise agreed Effective Date
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-500K 2A Other Priority Claims $0 2A Priority Claims
Paid in full in cash or as Paid in Full in Cash on or after the
otherwise agreed Effective Date
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-125M 3A SWINC Asbestos Claims
Pro rata share of Available
Asbestos Trust Cash and
Insurance Proceeds or as
otherwise agreed
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-100K 4A SWINC Convenience Claims
Lesser of $1000.00 or 50% of
claim
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$55-300M 5A SWINC General Unsecured Claims $81.9-88M 3A Unsecured Claims
Pro rata share semi-annual Paid lesser of (i) Pro Rata Share of
distribution Distributable Cash and (ii) amount of Allowed
Claim plus Postpetition Interest as promptly
50-100% recovery after the Effective Date as the SWINC
Liquidation Board deems practicable. Reorganized
SWINC liable to Consolidated Estate for unpaid
unpaid balance of Class 3A Cllaims. (No distribution
on SWINC Guaranty Claims until underlying Primary
Claim if fixed and paid by SWE&C estate
Projected 100% recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$100K 6A SWINC Intra Estate Claims
Satisfied, waived, released,
discharged and cancelled
0% recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-25M 7A SWINC Subordinated Claims $0 4A Subordinated Claims
Pro rata share of semi-annual Paid lesser of (i) Pro Rata Share of
distributions, if any. Distributable Cash remaining after payment to
Class 3A. Reorganized SWINC liable for
0%-100% recovery unpaid balance of Class 4A Claims.
Projected no claims or nominal claims to be
paid 100%
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-100M 8A SWINC Securities Claims N/A 6A 510(b) Claims--SWINC (Securities Fraud Class
Action Lawsuits)
After payment of Class 4A, Class 5A, Class 7A, and the If Class 6A accepts the Plan, holders of
exhaustion of insurance coverage; then pro rata share is Class 6A Allowed Claims receive a Pro Rata
diluted by Class 9A) of: share of $100,000 from amounts otherwise payable
to Holders of Class 5A Interests, and retain rights
(i) cash in Disputed Claim against insurance or proceeds of applicable
Reserve; and insurance.
(ii) SWINC New Series A Preferred Stock Class 6A Allowed Claims shall retain said insurance
rights and If Class 6A rejects the Plan, holders of
participate in Class 5A distributions Pro Rata
and on a pari passu basis to the extent of any
deficiency claims not paid by such insurance.
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
14.3M 9A SWINC Equity Interests N/A 5A Common Stock Claims
shares
with a If Class Accepts: Receives Pro Rata beneficial interest in
paid in .50 per share Equity SWINC Liquidating Trust. Will receive
capital of Settlement Fund plus pro rata Distributable Cash after payments to Classes
$60M share of (i) cash in Disputed 3A and 4A.
Cash Reserve and (ii)
remaining amounts paid to SWINC Common Stock to be cancelled.
SWINC Plan Administrator
Estimated $.83 to $1.43 per share of SWINC
If Class Rejects: Common Stock as of Equity Record Distribution
only (i) and (ii) Date, if Class 4B-1 votes to accept Plan.
Estimated $1.02 to $1.67 per share if Class 4B-1
rejects the Plan. The timing of distributions is
dependent upon the claims resolution process and
termination of the Pension Plan.
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$210M 10A SWINC Subsidiary Interests
Interests cancelled; No
Recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
II. SWE&C CONSOLIDATED ESTATE
- ------------------------------------------------------- -----------------------------------------------------------------------
DEBTORS' PLAN EQUITY PLAN
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$ Class Type/Treatment $ Class Type/Treatment
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-3M 1B SWE&C Misc. Secured Claims $0 1B Secured Claims
Paid in full in cash or as Paid in Full in Cash on or after Effective
otherwise agreed Date
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-500K 2B Other Priority Claims $4.51M 2B Priority Claims
Paid in full in cash or as Paid in Full in Cash on or after Effective
otherwise agreed Date (includes $4.5 M for funding Asbestos
Trust)
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-125M 3B SWE&C Asbestos Claims N/A 4B-2 Asbestos Claims
Pro rata share of Available Asbestos Trust Cash and Paid (a) pro rata share of the Asbestos Trust
Insurance Proceeds or as otherwise agreed assets subject to terms and conditions of the
Asbestos Trust Agreement, or (b) such other
treatment as to which the Asbestos Trustee
and the holder of an Allowed Class 4B-2 Claim
20%-100% recovery shall have agreed in writing.
100% recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-50K 4B SWE&C Convenience Claims $18-86K 3B Convenience Claims
Lesser of $1000.00 or 50% of (Claims of $1,500 or less or that are reduced
claim to $1,500)
Paid in Full in Cash on or after Effective
Date
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$55-300M 5B SWE&C General Unsecured Claims $110.3-152.4B-1 Other Unsecured Claims
Beneficial interest in SWE&C Liq. Trust; pro rata Paid lesser of (i) Pro Rata Share of
share of Class 5B semi-annual distribution amount. Distributable Cash and (ii) amount of Allowed
Claim as promptly after the Effective Date as
the SWE&C Liquidation Board deems practicable.
7.5% to 10.4% , IF CLASS VOTES TO ACCEPT
Estimated Recovery 20% to 50% PLAN;
per Debtors' Estimate. OR
If Class votes to reject Plan, Class 6B
Equity Committee estimates Intercompany Claim participates in Class 4B-1
recovery is 89% at expense of Distributions for total projected claims of
SWINC creditors and $160.3 million to $202.3 million, resulting
shareholders. in projected distributions of: 5.7% to
7.2%. The timing of distributions is dependent
upon the claims resolutions process.
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-100K 6B SWE&C Intra Estate Claims
Deemed waived, satisfied, and
discharged
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$210M 7B SWINC Intercompany Claims $50M 6B Intercompany Claims
No distribution or recovery If Class 4B-1 votes to accept Plan, then
Class 6B is treated as a Class 5B
Subordinated Claim, and receives no
distribution,
OR
If Class 4B-1 votes to reject the Plan, then Class
6B is treated as a Class 4B-1 Claim, and is
expected to receive a distribution in the range of
5.7% to 7.2%.
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-25M 8B SWE&C Subordinated Claims 0$ 5B Subordinated Claims
No distribution or recovery Paid lesser of (i) Pro Rata Share of Distributable
Cash remaining after payment to Class 4B-1.
0% recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
$0-230M 9B SWE&C Subsidiary Interests N/A 7B SWE&C Subsidiary Stock Interests
Interests cancelled No distribution or recovery
No recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------
10B SWE&C Equity Interests
Interests cancelled
No recovery
- ------------ ------- -------------------------------- ----- ---------- -------- -----------------------------------------------