IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - - x
:
In re: : Chapter 11
:
STONE & WEBSTER, INCORPORATED : Case No. 00-2142 (PJW)
et al. :
:
Debtors. : Jointly Administered
:
:
- - - - - - - - - - - - - - - - - - -x
THIRD AMENDED JOINT PLAN OF REORGANIZATION OF THE DEBTORS IN POSSESSION, THE
OFFICIAL COMMITTEE OF UNSECURED CREDITORS, FEDERAL INSURANCE COMPANY, MAINE
YANKEE ATOMIC POWER COMPANY, AND THE OFFICIAL COMMITTEE OF EQUITY SECURITY
HOLDERS WITH RESPECT TO (I) STONE & WEBSTER, INCORPORATED AND CERTAIN OF
ITS SUBSIDIARIES AND AFFILIATES AND (II) STONE & WEBSTER ENGINEERS
& CONSTRUCTORS, INC. AND CERTAIN OF ITS SUBSIDIARIES AND AFFILIATES
Dated: Wilmington, Delaware
August 12, 2003
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
Gregg M. Galardi (I.D. No. 2991)
Eric M. Davis (I.D. No. 3621)
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
(302) 651-3000
-and-
Edward J. Meehan
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Attorneys for Debtors and
Debtors-in-Possession
ORRICK, HERRINGTON &
SUTCLIFFE LLP
Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
666 Fifth Avenue
New York, New York 10103
-and-
LANDIS RATH & COBB LLP
Adam G. Landis (I.D. No. 3407)
919 Market Street, Suite 600
P.O. Box 2087
Wilmington, Delaware 19801
(302) 467-4400
Attorneys for the Official Committee
of Unsecured Creditors
-and-
MANIER & HEROD
J. Michael Franks
Sam H. Poteet, Jr.
Thomas T. Pennington
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
(615) 244-0030
-and-
DUANE MORRIS LLP
Michael R. Lastowski (I.D. No. 3892)
1100 North Market Street
Suite 1200
Wilmington, Delaware 19801-1246
(302) 657-4900
Attorneys for Federal Insurance Company
-and-
PIERCE ATWOOD
William J. Kayatta, Jr., Esq.
One Monument Square
Portland, Maine 04101
(207) 791-1100
-and-
MARCUS, CLEGG & MISTRETTA, P.A.
George J. Marcus, Esq.
100 Middle Street, East Tower
Portland, Maine 04101-4102
(207) 828-8000
-and-
FERRY, JOSEPH & PEARCE, P.A.
Michael B. Joseph, Esq.
Theodore J. Tacconelli, Esq.
824 Market Street, Suite 904
P.O. Box 1351
Wilmington, Delaware 19899-1351
(302) 575-1555
Attorneys for Maine Yankee Atomic
Power Company
-and-
BELL, BOYD & LLOYD LLC
David F. Heroy, Esq.
Carmen H. Lonstein, Esq.
70 West Madison Street, Suite 3300
Chicago, Illinois 60602
(312) 372-1121
-and-
BIFFERATO, BIFFERATO & GENTILOTTI
Ian Connor Bifferato, Esq.
1308 Delaware Avenue
Wilmington, Delaware 19806
(302) 429-1900
Attorneys for Official Committee of Equity
Security Holders of Stone & Webster, Incorporated
TABLE OF CONTENTS
PAGE
INTRODUCTION........................................................................................1
ARTICLE I DEFINITIONS, RULES OF INTERPRETATION, COMPUTATION OF TIME
AND GOVERNING LAW................................................................................1
A. Scope of Definitions; Rules of Construction..................................................1
B. Definitions..................................................................................1
C. Rules of Interpretation.....................................................................25
D. Computation of Time.........................................................................25
ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS..................................................26
A. Introduction................................................................................26
B. Summary of Unclassified Claims (not entitled to vote on the Third Joint Plan)...............26
1. General Administrative Claims...........................................................26
2. SWINC Administrative Claims.............................................................26
3. SWINC Priority Tax Claims...............................................................26
4. SWE&C Administrative Claims.............................................................26
5. SWE&C Priority Tax Claims...............................................................26
C. Summary of Classified Claims and Interests .................................................26
1. Consolidated SWINC Estate Classifications...............................................26
2. Consolidated SWE&C Estate Classifications...............................................27
D. Classification of Unimpaired Classes of Claims and Interests (deemed to have
accepted the Third Joint Plan and therefore not entitled to vote)...........................27
1. Consolidated SWINC Estate Classifications...............................................28
2. SWE&C Classifications...................................................................28
E. Classification of Impaired Classes of Claims and Interests..................................28
1. SWINC Classifications...................................................................28
2. SWE&C Classifications...................................................................29
ARTICLE III TREATMENT OF UNCLASSIFIED GENERAL CLAIMS...............................................30
A. Unclassified General Claims.................................................................30
1. General Administrative Claims...........................................................30
2. General Professional Fee Claims.........................................................30
ARTICLE IV TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWINC AND THE SWINC SUBSIDIARIES.............................................................31
A. Unclassified SWINC Claims...................................................................31
1. SWINC Administrative Claims.............................................................31
2. SWINC Priority Tax Claims...............................................................31
B. Unimpaired Classes of SWINC Claims..........................................................31
1. Class 1A: SWINC Secured Claims.........................................................31
2. Class 2A: SWINC Other Priority Claims................................................32
C. Impaired Classes of SWINC Claims and Interests..............................................32
1. Class 3A: SWINC Asbestos Claims.......................................................32
2. Class 4A: SWINC Convenience Claims.....................................................33
3. Class 5A: SWINC General Unsecured Claims...............................................33
4. Class 6A: SWINC Intraestate Claims.....................................................33
5. Class 7A: SWINC Subordinated Claims ...................................................33
6. Class 8A: SWINC Securities Claims......................................................33
7. Class 9A: SWINC Equity Interests.......................................................34
8. Class 10A: SWINC Subsidiary Interests..................................................34
D. Special Provision Regarding Unimpaired Claims...............................................35
ARTICLE V TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWE&C AND THE SWE&C SUBSIDIARIES.............................................................35
A. Unclassified SWE&C Claims...................................................................35
1. SWE&C Administrative Claims.............................................................35
2. SWE&C Priority Tax Claims...............................................................35
B. Unimpaired Classes of SWE&C Claims..........................................................35
1. Class 1B: SWE&C Miscellaneous Secured Claims...........................................35
2. Class 2B: SWE&C Other Priority Claims..................................................36
C. Impaired Classes of SWE&C Claims and Interests..............................................36
1. Class 3B: SWE&C Asbestos Claims........................................................36
2. Class 4B: SWE&C Convenience Claims.....................................................36
3. Class 5B: SWE&C General Unsecured Claims...............................................37
4. Class 6B: SWE&C Intraestate Claims.....................................................37
5. Class 7B: SWINC Intercompany Claims....................................................37
6. Class 8B: SWE&C Subordinated Claims....................................................37
7. Class 9B: SWE&C Subsidiary Interests...................................................37
8. Class 10B: SWE&C Interests.............................................................37
D. Special Provision Regarding Unimpaired Claims...............................................37
ARTICLE VI ACCEPTANCE OR REJECTION OF THE THIRD JOINT PLAN.........................................38
A. Impaired Classes of Claims and Interests Entitled to Vote...................................38
B. Acceptance by an Impaired Class.............................................................38
C. Unimpaired Classes Conclusively Presumed to Accept Third Joint Plan.........................38
1. SWINC Classes...........................................................................38
2. SWE&C Classes...........................................................................38
D. Classes Deemed to Reject Third Joint Plan...................................................38
1. SWINC Classes ..........................................................................38
2. SWE&C Classes...........................................................................38
E. Summary of Classes Voting on the Third Joint Plan...........................................39
1. SWINC Classes...........................................................................39
2. SWE&C Classes...........................................................................39
F. Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code.............................39
ARTICLE VII MEANS FOR IMPLEMENTATION OF THE THIRD JOINT PLAN.......................................39
A. Substantive Consolidation...................................................................39
1. Consolidation of SWINC and the SWINC Subsidiaries.......................................39
2. Consolidation of SWE&C and the SWE&C Subsidiaries.......................................40
B. Merger of Entities..........................................................................40
C. Continued Corporate Existence of Reorganized SWINC..........................................40
D. Dissolution of SWE&C and the SWE&C Subsidiaries.............................................41
E. Certificate of Incorporation and By-laws of Reorganized SWINC...............................41
F. Directors and Officers of Reorganized SWINC.................................................41
G. Corporate Action............................................................................41
H. Cancellation of Securities, Instruments and Agreements Evidencing Claims
and Interests...............................................................................41
I. Issuance of Reorganized SWINC New Common and Preferred Stock................................42
J. Effectuating Documents; Further Transactions..............................................42
K. Consolidated SWINC Estate Governing Board...................................................43
L. The SWINC Plan Administrator................................................................43
1. Appointment.............................................................................43
2. Rights, Powers and Duties of the Consoldiated SWINC Estate and the SWINC Plan
Administrator...........................................................................43
3. Compensation of the SWINC Plan Administrator............................................44
4. Indemnification.........................................................................44
5. Insurance...............................................................................44
6. Authority to Object to Claims and Interests and to Settle Disputed Claims...............45
M. The Asbestos Trust..........................................................................45
N. The Asbestos Trustee........................................................................45
1. Appointment.............................................................................45
2. Rights, Powers and Duties of the Asbestos Trustee ......................................45
3. Compensation of the Asbestos Trustee ...................................................46
4. Indemnification.........................................................................47
5. Insurance...............................................................................47
6. Asbestos Insurance Policies.............................................................47
O. The SWE&C Liquidating Trust.................................................................48
1. Appointment of Trustee..................................................................48
2. Transfer of SWE&C Liquidating Trust Assets to the SWE&C Liquidating Trust...............48
3. The SWE&C Liquidating Trust.............................................................48
4. Compensation of the SWE&C Liquidating Trustee...........................................49
5. The SWE&C Liquidating Trust Advisory Board..............................................49
P. Interestate Oversight Board.................................................................50
Q. No Revesting of Assets......................................................................51
R. Preservation of Rights of Action............................................................51
S. Creditors' Committee and Equity Committee...................................................52
1. Dissolution of Creditors' Committee.....................................................52
2. Dissolution of Equity Committee.........................................................52
T. Sources of Cash for Third Joint Plan Distributions..........................................53
U. Exemption from Certain Transfer Taxes.......................................................53
V. Release of Liens............................................................................53
W. Special Provisions Regarding Insured Claims.................................................53
ARTICLE VIII DESCRIPTION OF SECURITIES AND INSTRUMENTS
TO BE ISSUED IN CONNECTION WITH THE THIRD JOINT PLAN............................................54
A. Reorganized SWINC New Common Stock..........................................................54
B. Reorganized SWINC New Series A Preferred Stock..............................................55
C. Reorganized SWINC New Series B Preferred Stock..............................................56
ARTICLE IX PROVISIONS GOVERNING DISTRIBUTIONS......................................................58
A. Distributions for Claims or Interests Allowed as of the Effective Date......................58
B. Interest on Claims or Interests.............................................................58
C. Distributions by Disbursing Agents .........................................................58
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions......................59
1. Delivery of Distributions in General....................................................59
2. Undeliverable and Unclaimed Distributions...............................................59
E. Notification Date for Distributions to Holders of Equity Securities.........................60
F. Surrender of Securities or Instruments......................................................60
G. Means of Cash Payment.......................................................................60
H. Withholding and Reporting Requirements......................................................60
I. Setoffs.....................................................................................60
1. By a Debtor.............................................................................60
2. By Non-Debtors..........................................................................61
J. Fractional Dollars; De Minimus Distributions..............................................61
K. Allocation of Third Joint Plan Distributions Between Principal and Interest.................61
ARTICLE X TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES............................................................................61
A. Rejected Contracts and Leases...............................................................61
B. Rejection Damages Bar Date..................................................................62
C. Assumed Contracts and Leases ...............................................................62
D. Pension Plan................................................................................62
E. Indemnification Obligations.................................................................62
ARTICLE XI PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT
AND UNLIQUIDATED CLAIMS AND DISPUTED INTERESTS..................................................63
A. Claims Objection Deadlines; Prosecution of Objections.......................................63
1. SWINC Claims Objection Deadline.........................................................63
2. SWE&C Claims Objection Deadline.........................................................63
3. Claims Against Both Consolidated Estates................................................63
B. No Distributions Pending Allowance..........................................................64
C. Reserves....................................................................................64
1. General Administrative Claims Reserve...................................................64
2. The SWINC Professional Fee Reserve......................................................64
3. SWINC Operating Reserve.................................................................64
4. The SWINC Disputed Claims Reserve.......................................................65
5. The SWE&C Professional Fee Reserve......................................................65
6. SWE&C Operating Reserve.................................................................65
7. The SWE&C Disputed Claims Reserve.......................................................65
D. Distributions After Allowance...............................................................66
ARTICLE XII CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE THIRD JOINT PLAN........................................................66
A. Conditions to Confirmation..................................................................66
B. Conditions to Effective Date................................................................66
C. Waiver of Conditions........................................................................67
ARTICLE XIII EFFECT OF THIRD JOINT PLAN CONFIRMATION...............................................67
A. Binding Effect..............................................................................67
B. Releases....................................................................................67
1. Releases by the Debtors.................................................................67
2. Releases by Holders of Claims and Interests.............................................68
3. Injunction Related to Releases..........................................................68
C. Discharge of Claims and Termination of Interests............................................68
D. Exculpation and Limitation of Liability.....................................................69
E. Injunction..................................................................................69
F. Satisfaction of Subordination Rights........................................................70
G. Compromises and Settlements.................................................................70
1. Settlement Authority....................................................................70
2. Substantive Consolidation...............................................................71
3. The Federal Settlement..................................................................72
4. The Maine Yankee Settlement.............................................................74
5. The Equity Settlement Fund..............................................................76
6. The Asbestos Trust......................................................................76
ARTICLE XIV RETENTION OF JURISDICTION..............................................................76
ARTICLE XV MISCELLANEOUS PROVISIONS................................................................78
A. Bar Dates for Certain Claims................................................................78
1. Administrative Claims Bar Date..........................................................78
2. Professional Fee Claims; Substantial Contribution Claims................................78
B. Payment of Statutory Fees...................................................................79
C. Amendment or Modification of the Third Joint Plan...........................................79
D. Severability of Third Joint Plan Provisions.................................................79
E. Successors and Assigns......................................................................79
F. Plan Supplement.............................................................................80
G. Revocation, Withdrawal or Non-Consummation..................................................80
H. Notice......................................................................................80
I.Governing Law.................................................................................82
J. Term of Injunctions or Stays................................................................83
INTRODUCTION
Stone and Webster, Incorporated ("SWINC") and Stone & Webster
Engineers & Constructors, Inc. ("SWE&C) and their respective subsidiaries and
affiliates that are debtors and debtors-in-possession in the above-captioned
Chapter 11 Cases (together with SWINC and SWE&C, the "Debtors"), the Official
Committee of Unsecured Creditors (the "Creditors' Committee"), Federal
Insurance Company, an Indiana corporation ("Federal"), Maine Yankee Atomic
Power Company ("Maine Yankee"), and the Official Committee of Equity Security
Holders of Stone and Webster, Incorporated (the "Equity Committee") hereby
collectively propose the following plan of reorganization (the "Third Joint
Plan") for the resolution of outstanding creditor claims against and equity
interests in the Debtors. All capitalized terms not defined in this
Introduction have the meanings ascribed in Article I of the Third Joint Plan.
Reference is made to the Disclosure Statement, distributed contemporaneously
herewith, for a discussion of the Debtors' history, business, properties and
operations, a summary and analysis of the Third Joint Plan, and certain
related matters. The Debtors, the Creditors' Committee, Federal, Maine Yankee,
and the Equity Committee are the proponents of the Third Joint Plan within the
meaning of section 1129 of the Bankruptcy Code. These Chapter 11 Cases were
consolidated for procedural purposes only and are being jointly administered
pursuant to an order of the Court.
Under section 1125(b) of the Bankruptcy Code, a vote to accept or
reject the Third Joint Plan cannot be solicited from holders of Claims or
Interests until such time as the Disclosure Statement has been approved by the
Court and distributed to such holders. ALL HOLDERS OF CLAIMS AND ALL HOLDERS
OF INTERESTS ARE ENCOURAGED TO READ THIS THIRD JOINT PLAN AND THE DISCLOSURE
STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THIS THIRD JOINT
PLAN. Subject to certain restrictions and requirements set forth in section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019, the Debtors reserve the
right to alter, amend, modify, revoke or withdraw this Third Joint Plan prior
to its substantial consummation.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. SCOPE OF DEFINITIONS; RULES OF CONSTRUCTION
For purposes of this Third Joint Plan, except as expressly provided
or unless the context otherwise requires, all capitalized terms not otherwise
defined shall have the meanings ascribed to them in Article I of this Third
Joint Plan. Any term used in this Third Joint Plan that is not defined herein,
but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the
meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules.
Whenever the context requires, such terms shall include the plural as well as
the singular number, the masculine gender shall include the feminine and the
feminine gender shall include the masculine.
B. DEFINITIONS
1.1 "Administrative Claim" means a Claim for payment of an
administrative expense of a kind specified in section 503(b) or 1114(e)(2) of
the Bankruptcy Code and entitled to priority pursuant to section 507(a)(1) of
the Bankruptcy Code, including, but not limited to, (a) the actual, necessary,
costs and expenses, incurred after the Petition Date, of preserving the
Estates and operating the businesses of the Debtors, including wages, salaries
or commissions for services rendered after the commencement of the Chapter 11
Cases, (b) Professional Fee Claims, (c) all fees and charges assessed against
the Estates under 28 U.S.C. ss. 1930 and (d) all Allowed Claims pursuant to a
Final Order of the Court under section 546(c)(2)(A) of the Bankruptcy Code.
1.2 "Administrative Claims Bar Date" means the last day for filing
Administrative Claims, which day shall be sixty (60) days after the
Confirmation Date.
1.3 "AEC International" means AEC International Projects, Inc., a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2145 (PJW) pending
in the United States District Court for the District of Delaware.
1.4 "Allowed" means, when used in reference to a Claim or Interest a
Claim or Interest as to which no objection has been filed by the respective
Claim Objection Deadline set forth in this Third Joint Plan or an Order of the
Court.
1.5 "Allowed Class ... Claim" or "Allowed Class ... Interest" means
an Allowed Claim or Allowed Interest in the particular Class described.
1.6 "Allowed Federal Claim" means Federal's Allowed Claim as more
particularly described in Article XIII.G.3 of the Third Joint Plan.
1.7 "Allowed Maine Yankee Claim" means Maine Yankee's Allowed Claim
as more particularly described in Article XIII.G.4 of the Third Joint Plan.
1.8 "Allowed SWE&C Claim" or "Allowed SWE&C Interest" means a Claim
or any portion thereof, or an Interest or any portion thereof, against SWE&C
or a SWE&C Subsidiary (a) as to which no objection to allowance or request for
estimation has been filed on or before the SWE&C Claims Objection Deadline,
(b) that has been expressly allowed by a Final Order, (c) that either (x) has
been Scheduled as a liquidated, non-contingent, undisputed claim or interest
in an amount greater than zero in the Debtors' Schedules, as such schedules
may from time to time be amended or modified in accordance with the Bankruptcy
Code, Bankruptcy Rules, or orders of the Court before the SWE&C Claims
Objection Deadline or (y) is the subject of a timely proof of claim or
interest as to which either (i) no objection to its allowance has been filed
(either by way of objection or amendment to the Schedules) within the periods
of limitation fixed by the Bankruptcy Code, the SWE&C Claims Objection
Deadline or by any order of the Court or (ii) any objection to its allowance
has been settled, waived through payment, or withdrawn, or has been denied by
a Final Order, or (d) that is expressly allowed in a liquidated amount in the
Third Joint Plan; provided, however, that, with respect to a SWE&C
Administrative Claim, "Allowed SWE&C Administrative Claim" means a SWE&C
Administrative Claim as to which a timely request for payment has been made in
accordance with Article XIV.A hereof (if such written request is required) or
other SWE&C Administrative Claim, in each case as to which the Debtors (1)
have not interposed a timely objection or (2) have interposed a timely
objection and such objection has been settled, waived through payment, or
withdrawn, or has been denied by a Final Order.
1.9 "Allowed SWINC Claim" or "Allowed SWINC Interest" means a Claim
or any portion thereof, or an Interest or any portion thereof, against SWINC
or a SWINC Subsidiary (a) as to which no objection to allowance or request for
estimation has been filed on or before the SWINC Claims Objection Deadline,
(b) that has been expressly allowed by a Final Order, (c) that either (x) has
been Scheduled as a liquidated, non-contingent, undisputed claim or interest
in an amount greater than zero in the Debtors' Schedules, as such schedules
may from time to time be amended or modified in accordance with the Bankruptcy
Code, Bankruptcy Rules, on orders of the Court before the SWINC Objection
Deadline or (y) is the subject of a timely proof of claim or interest as to
which either (i) no objection to its allowance has been filed (either by way
of objection or amendment to the Schedules) within the periods of limitation
fixed by the Bankruptcy Code, the SWINC Claims Objection Deadline or by any
order of the Court or (ii) any objection to its allowance has been settled,
waived through payment, or withdrawn, or has been denied by a Final Order, or
(d) that is expressly allowed in a liquidated amount in the Third Joint Plan;
provided, however, that, with respect to a SWINC Administrative Claim,
"Allowed SWINC Administrative Claim" means an Administrative Claim as to which
a timely request for payment has been made in accordance with Article XIV.A
hereof (if such written request is required) or other SWINC Administrative
Claim, in each case as to which the Debtors (1) have not interposed a timely
objection or (2) have interposed a timely objection and such objection has
been settled, waived through payment, or withdrawn, or has been denied by a
Final Order.
1.10 "Allowed SWINC Subrogation Claim" means the Class 5B Allowed
Claim held by the Consolidated SWINC Estate, in the amount of $16.8 million,
on account of the SWINC MY Contribution Claim against the Consolidated SWE&C
Estate, as provided in Article XIII.G.4 of the Third Joint Plan.
1.11 "Amended Certificate of Incorporation and By-laws of SWINC"
means Reorganized SWINC's certificate of incorporation and by-laws in effect
under the laws of the State of Delaware, as amended and restated pursuant to
the Third Joint Plan.
1.12 "Asbestos Claim" means any Claim whenever or wherever arising or
asserted against the Debtors, their predecessors, successors or their present
or former officers, directors or employees (whether or not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, bonded, secured or unsecured) sounding
in tort, contract, warranty, or any other theory of law, equity or admiralty
for, relating to, or arising by reason of physical, emotional, bodily or other
personal injury or damages, diagnosable or manifested before the Effective
Date of the Third Joint Plan, (x) caused or allegedly caused, in whole or in
part (i) by asbestos or asbestos-containing products sold, installed, or
removed by the Debtors, (ii) by services, actions or operations provided,
completed or taken by the Debtors in connection with asbestos or
asbestos-containing products, or (y) caused or allegedly caused by asbestos
for which Debtors are otherwise liable under any applicable law, whether or
not arising or allegedly arising from acts or omissions of the Debtors, their
predecessors, successors or their present or former officers, directors or
employees. Notwithstanding the foregoing, "Asbestos Claim" shall not include
any Claim or demand (i) for loss of or damage to property or (ii) based on
exposure to asbestos or asbestos-containing products solely during the course
of the claimant's employment with the Debtors, their predecessors or
successors.
1.13 "Asbestos Insurance Carriers" means Travelers Insurance Company
Aetna Casualty & Surety Company, Kemper National Insurance Company, Centennial
Insurance Company, Argonaut Insurance Company, Royal Insurance Company and any
other insurance companies that issued policies covering an Asbestos Claim.
1.14 "Asbestos Trust" means the segregated trust fund established
pursuant to the Asbestos Trust Agreement.
1.15 "Asbestos Trust Agreement" means that certain agreement,
effective as of the Effective Date, substantially in the form annexed hereto
as Third Joint Plan Exhibit A, as it may be modified from time to time.
1.16 "Asbestos Trust Assets" means the Asbestos Trust Payment and an
Allowed Class 5B Claim in the amount of $1.0 million, as well as the Debtors'
rights with respect to, among other things, indemnification, contribution or
reimbursement under the insurance policies issued by the Asbestos Insurance
Carriers (but not the policies themselves) and all of their rights under any
other policies that provide coverage for Asbestos Claims (but not those
policies themselves), but only to the extent of such coverage under those
policies, which rights shall be transferred to the Asbestos Trustee.
1.17 "Asbestos Trust Payment" means the Cash payment in the amount of
$4.5 million made by the Debtors to the Asbestos Trust pursuant to the
Asbestos Trust Agreement.
1.18 "Asbestos Trustee" means the Person appointed to administer the
Asbestos Trust in accordance with the terms of the Third Joint Plan and the
Asbestos Trust Agreement, and any successor thereto.
1.19 "Asset Purchase Agreement" means the asset purchase agreement,
dated as of July 14, 2000, as subsequently amended, between the Debtors as
sellers and Shaw as purchaser.
1.20 "Associated Engineers" means Associated Engineers & Consultants,
Inc., a debtor and debtor-in-possession in Chapter 11 Case No. 00-2146 (PJW)
pending in the United States District Court for the District of Delaware.
1.21 "Auburn GC" means Auburn VPS General Corporation, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2147 (PJW) pending in the
United States District Court for the District of Delaware.
1.22 "Auburn LC" means Auburn VPS Limited Corporation, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2148 (PJW) pending in the
United States District Court for the District of Delaware.
1.23 "Available Asbestos Trust Cash" means any Cash remaining in the
Asbestos Trust after deducting the amount determined by the Asbestos Trustee
to be necessary and appropriate to reserve for future costs of administration
of the Asbestos Trust (including, without limitation, the compensation, fees
and costs of the Asbestos Trustee and the compensation, fees and costs of all
professionals, consultants, agents and employees retained or to be retained by
the Asbestos Trustee).
1.24 "Available Cash" means the SWINC Available Cash or the SWE&C
Liquidating Trust Available Cash.
1.25 "Ballot" means each of the ballot forms distributed with the
Disclosure Statement to holders of Impaired Claims and/or Interests entitled
to vote under Article V hereof in connection with the solicitation of
acceptances of the Third Joint Plan.
1.26 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in title 11 of the United States Code, 11 U.S.C. ss.ss. 101-1330, as
now in effect or hereafter amended.
1.27 "Bankruptcy Rules" means collectively the Federal Rules of
Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the
Federal Rules of Civil Procedure, as amended, as applicable to the Chapter 11
Cases or proceedings therein, and the Local Rules of the Bankruptcy Court as
applicable to the Chapter 11 Cases or proceedings therein, as the case may be.
1.28 "Bar Date(s)" means the date(s), if any, designated by the Court
as the last date(s) for filing Proofs of Claim or Interest against the
Debtors.
1.29 "Bar Date Order" means the Order Establishing Bar Date For
Filing Proofs Of Claim, signed by the Court on July 18, 2000, as the same may
have been or hereafter may be amended, modified or supplemented.
1.30 "Belmont" means Belmont Constructors Company, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2149 (PJW) pending in the
United States District Court for the District of Delaware.
1.31 "Business Day" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)).
1.32 "Canadian Cash" means all Cash held by SWCL not to exceed $5
million less the shared cost of the Isobord Claim Objection Litigation.
1.33 "Cash" means legal tender of the United States of America and
equivalents thereof.
1.34 "CCS" means Commercial Cold Storage, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2150 (PJW) pending in the
United States District Court for the District of Delaware.
1.35 "Chapter 11 Cases" means the chapter 11 cases of the Debtors
jointly administered under Case No. 00-2142 (PJW).
1.36 "Chubb Canada" means Chubb Insurance Company of Canada.
1.37 "Claim" means a claim, as such term is defined by section 101(5)
of the Bankruptcy Code, against a Debtor, whether or not asserted.
1.38 "Claims Agent" means Trumbull Services LLC.
1.39 "Claimholder" means a holder of a Claim.
1.40 "Claims Objection Deadline" means either the SWINC Claims
Objection Deadline or the SWE&C Claims Objection Deadline.
1.41 "Claims Registry" means the official list of Claims and
Interests in these Chapter 11 Cases maintained by the Claims Agent.
1.42 "Class" means a category of holders of Claims or Interests, as
described in Article II hereof.
1.43 "Collateral" means any property or interest in property of a
Debtor's Estate subject to a Lien to secure the payment or performance of a
Claim, which Lien is not subject to avoidance under the Bankruptcy Code or
otherwise invalid under the Bankruptcy Code or applicable state laws.
1.44 "Confirmation" means entry by the Court of the Confirmation
Order.
1.45 "Confirmation Date" means the date of entry by the clerk of the
Bankruptcy Court of the Confirmation Order.
1.46 "Confirmation Hearing" means the hearing to consider
confirmation of the Third Joint Plan under section 1128 of the Bankruptcy
Code, as such hearing may be adjourned or continued from time to time.
1.47 "Confirmation Order" means the order entered by the Court
confirming the Third Joint Plan.
1.48 "Consolidated SWE&C Estate" means the substantively consolidated
Estates of SWE&C and the SWE&C Subsidiaries.
1.49 "Consolidated SWINC Estate" means the substantively consolidated
Estates of SWINC and the SWINC Subsidiaries.
1.50 "Consolidated SWINC Estate Governing Board" means the three (3)
member board established pursuant to Article VII.G of this Third Joint Plan to
advise, assist and supervise the SWINC Plan Administrator pursuant to the
SWINC Plan Administrator Agreement.
1.51 "Convenience Claim" means an Allowed Class 4A: SWINC General
Unsecured Claim or an Allowed Class 4B: SWE&C General Unsecured Claim.
1.52 "Court" means the United States Bankruptcy Court for the
District of Delaware, currently presiding over these Chapter 11 Cases or such
other court as may have jurisdiction over the Chapter 11 Cases, including the
United States District Court for the District of Delaware which previously
presided over the Chapter 11 Cases.
1.53 "Creditor" means any Entity who holds a Claim against a Debtor.
1.54 "Creditors' Committee" means the statutory committee of
unsecured creditors appointed in the Chapter 11 Cases pursuant to section
1102(a) of the Bankruptcy Code.
1.55 "Cure" means the distribution of Cash, or such other property as
may be agreed upon by the parties or ordered by the Court, with respect to the
assumption of an executory contract or unexpired lease, pursuant to section
365(b) of the Bankruptcy Code, in an amount equal to all unpaid monetary
obligations, without interest, or such other amount as may be agreed upon by
the parties, under such executory contract or unexpired lease, to the extent
such obligations are enforceable under the Bankruptcy Code and applicable
bankruptcy law.
1.56 "Debtor" means, individually, SWINC, SWE&C, any of the SWINC
Subsidiaries or any of the SWE&C Subsidiaries.
1.57 "Debtors" means collectively, SWINC, SWE&C, the SWINC
Subsidiaries, and the SWE&C Subsidiaries.
1.58 "Delaware General Corporation Law" means title 8 of the Delaware
Code, in effect as of the date hereof.
1.59 "Disallowed SWE&C Claim" or "Disallowed SWE&C Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWE&C or a SWE&C Subsidiary that (a) has been disallowed or reallocated to a
debtor not included in the Consolidated SWE&C Estate by a Final Order (b) is
Scheduled at zero or Scheduled as contingent, disputed or unliquidated and as
to which a proof of claim or interest bar date has been established but no
proof of claim or interest has been filed or deemed timely filed with the
Court pursuant to either the Bankruptcy Code or any Final Order of the Court
or otherwise deemed timely filed under applicable law, or (c) is not Scheduled
and as to which a proof of claim or interest bar date has been established but
no proof of claim or interest has been filed or deemed timely filed with the
Court pursuant to either the Bankruptcy Code or any Final Order of the Court
or otherwise deemed timely filed under applicable law.
1.60 "Disallowed SWINC Claim" or "Disallowed SWINC Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWINC or any SWINC Subsidiary that (a) has been disallowed or reallocated to a
debtor not included in the Consolidated SWINC Estate by a Final Order (b) is
Scheduled at zero Scheduled or as contingent, disputed or unliquidated and as
to which a proof of claim or interest bar date has been established but no
proof of claim or interest has been filed or deemed timely filed with the
Court pursuant to either the Bankruptcy Code or any Final Order of the Court
or otherwise deemed timely filed under applicable law, or (c) is not Scheduled
and as to which a proof of claim or interest bar date has been established but
no proof of claim or interest has been filed or deemed timely filed with the
Court pursuant to either the Bankruptcy Code or any Final Order of the Court
or otherwise deemed timely filed under applicable law.
1.61 "Disclosure Statement" means the written disclosure statement
(including all schedules thereto or referenced therein) that relates to this
Third Joint Plan, as approved by the Court pursuant to section 1125 of the
Bankruptcy Code, as the same may be amended, modified or supplemented.
1.62 "Disputed Claims Reserves" means the SWINC Disputed Claims
Reserve and the SWE&C Disputed Claims Reserve established under Article XI.C
of the Third Joint Plan.
1.63 "Disputed SWE&C Claim" or "Disputed SWE&C Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWE&C or any SWE&C Subsidiary a Debtor that is neither an Allowed SWE&C Claim
nor a Disallowed SWE&C Claim, or an Allowed SWE&C Interest or a Disallowed
SWE&C Interest, as the case may be, including, but not limited to, Claims (a)
that (i) have not been Scheduled by SWE&C or any SWE&C Subsidiary or (ii) have
been Scheduled by SWE&C or any SWE&C Subsidiary at zero or as contingent,
unliquidated or disputed, (b) that is the subject of a proof of claim or
interest against SWE&C or any SWE&C Subsidiary that either (i) differs in
nature, amount or priority from SWE&C or any SWE&C Subsidiary Schedules or
(ii) asserts a Claim against SWE&C or any SWE&C Subsidiary that Claim would be
properly asserted against SWINC or any SWINC Subsidiary or (c) the allowance
or disallowance of which is not yet the subject of a Final Order.
1.64 "Disputed SWINC Claim" or "Disputed SWINC Interest" means a
Claim or any portion thereof, or an Interest or any portion thereof, against
SWINC or any SWINC Subsidiary that is neither an Allowed SWINC Claim nor a
Disallowed SWINC Claim, or an Allowed Interest or a Disallowed SWINC Interest,
as the case may be, including, but not limited to, Claims (a) that (i) have
not been Scheduled by a Debtor but should have been included on the Debtors
Schedules as a Claim against or Interests in SWINC or a SWINC Subsidiary or
(ii) have been Scheduled at zero or as contingent, unliquidated or disputed,
(b) that are the subject of a proof of claim or interest that either (i)
differs in nature, amount or priority from any of the Debtors' Schedules or
(ii) asserts a Claim against SWINC or any SWINC Subsidiary that would be
properly asserted against SWE&C or any SWE&C Subsidiary, or (c) the allowance
or disallowance of which is not yet the subject of a Final Order.
1.65 "Distribution Date" means the Effective Date and any subsequent
date in which distributions are made under the Third Joint Plan.
1.66 "DSS" means DSS Engineers, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2151 (PJW) pending in the
United States District Court for the District of Delaware.
1.67 "Effective Date" means the Business Day on which all conditions
to the consummation of the Third Joint Plan as set forth in Article XII.B
hereof have been satisfied or waived as provided in Article XII hereof and is
the effective date of the Third Joint Plan.
1.68 "Enclave Parkway" means 1430 Enclave Parkway Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2143 (PJW) pending
in the United States District Court for the District of Delaware.
1.69 "Enclave Parkway Realty" means Enclave Parkway Realty, Inc., a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2152 (PJW) pending
in the United States District Court for the District of Delaware.
1.70 "Entity" means an Entity as defined in section 101(15) of the
Bankruptcy Code.
1.71 "Equity Committee" means the statutory committee of equity
security holders appointed in the chapter 11 Cases pursuant to section 1102(a)
of the Bankruptcy Code.
1.72 "Equity Settlement Fund" means the fund to be established
pursuant to Article XIII.G.5 of the Third Joint Plan, which shall be funded
with the Cash from the Minimum Federal Distribution and the Initial Maine
Yankee Distribution to be paid to holders of Allowed Class 9A:: SWINC Equity
Interests that vote to accept the Third Joint Plan in the event that (i) Class
9A: SWINC Equity Interests vote to accept the Third Joint Plan, (ii) the
Federal Settlement is approved, and (iii) the Maine Yankee Settlement is
approved.
1.73 "Equity Voting Record Date" means August 27, 2003, which shall
be the date for determining holders of Old Securities entitled to vote on the
Third Joint Plan.
1.74 "Estate" means (a) individually, the estate of SWINC, SWE&C, any
of the SWINC Subsidiaries, or any of the SWE&C Subsidiaries and (b)
collectively, the estates of all of the Debtors created under section 541 of
the Bankruptcy Code.
1.75 "Face Amount" means (a) when used in reference to a Disputed or
Disallowed Claim, either (i) the full stated liquidated amount claimed by the
holder of such Claim in any proof of Claim timely filed with the Bankruptcy
Court or otherwise deemed timely filed by any Final Order of the Court or
other applicable bankruptcy law or (ii) if such Claim is unliquidated, zero
(0), and (b) when used in reference to an Allowed Claim, the allowed amount of
such Claim.
1.76 "Fast Supply" means Fast Supply Corporation, debtor and
debtor-in-possession in Chapter 11 Case No. 00-2153 (PJW) pending in the
United States District Court for the District of Delaware.
1.77 "Federal" means Federal Insurance Company, an Indiana
corporation.
1.78 "Federal Settlement Agreement" means the agreement among the
Debtors and Federal, effective as of the Effective Date, as described in
Article XIII of the Third Joint Plan.
1.79 "File, Filed or Filing" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Chapter 11 Cases.
1.80 "Final Order" means an order or judgment of the Court, as
entered on the docket in the Chapter 11 Cases, or the order or judgment of any
other court of competent jurisdiction, the operation or effect of which has
not been stayed, reversed, or amended and as to which order or judgment (or
any revision, modification or amendment thereof) the time to appeal or seek
review or rehearing has expired and as to which no appeal or petition for
review or rehearing was filed, or, if filed, remains pending.
1.81 "General Administrative Claim" means an Administrative Claim
that is not a SWINC Administrative Claim nor a SWE&C Administrative Claim.
1.82 "General Professional Fee Claim" means any Professional Fee
Claim that is neither a SWINC professional Fee Claim nor a SWE&C Professional
Fee Claim.
1.83 "General Professional Fee Reserve" means the reserve account to
be established and maintained under the Third Joint Plan into which will be
deposited an amount equal to $10.6 million to fund and pay any Allowed General
Professional Fee Claim.
1.84 "General Unsecured Claim" means a Claim that is either a Class
5A: SWINC General Unsecured Claim or a Class 5B: SWE&C General Unsecured
Claim.
1.85 "GSES" means GSES Holding, LLC, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2154 (PJW) pending in the
United States District Court for the District of Delaware.
1.86 "IE&C" means International Engineers & Constructors,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2155
(PJW) pending in the United States District Court for the District of
Delaware.
1.87 "Impaired" means, when used in reference to a Claim or Interest,
a Claim or Interest that is impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.88 "Indemnification Claim" means a Claim for, relating to, or
arising by reason of, directly or indirectly, an Indemnification Obligation.
1.89 "Indemnification Obligations" means the obligation of any of the
Debtors to indemnify, reimburse or provide contribution to any present or
former officer, director or employee, or any present or former professionals
or advisors of the Debtors, pursuant to certificates of incorporation,
by-laws, comparable organizational documents, contract, statute or otherwise
as may be in existence immediately prior to the Petition Date, including,
without limitation, accountants, auditors, financial consultants, underwriters
or attorneys, whether pursuant to articles of incorporation, by-laws,
comparable organizational documents, contract, statute or otherwise,
regardless of whether the indemnification is owed in connection with a
pre-petition or post-petition occurrence.
1.90 "Initial Class 5A Distribution Amount" means the amount of SWINC
Available Cash to be distributed to all holders of Allowed Class 5A: SWINC
General Unsecured Claims on the Effective Date.
1.91 "Initial Class 5B Distribution Amount" means the amount of SWE&C
Available Cash to be distributed to the holders of Allowed Class 5B: SWE&C
General Unsecured Claims on the Effective Date.
1.92 "Initial Class 7A Distribution Amount" means the amount of SWINC
Available Cash to be distributed to all holders of Allowed Class 7A: SWINC
Subordinated Claims on the Effective Date.
1.93 "Initial Class 8A Distribution Amount" means the amount of SWE&C
Available Cash to be distributed to all holders of Allowed Class 8A: SWINC
Securities Claims on the Effective Date.
1.94 "Initial Maine Yankee Distribution" means an initial
distribution in an amount no less than $1.8 million in Cash to Maine Yankee on
account of the Allowed Maine Yankee Claim against the Consolidated SWINC
Estate.
1.95 "Insured Claim" means any Claim against a Debtor for which the
Debtor is entitled to indemnification, reimbursement, contribution or other
payment under a policy of insurance wherein a Debtor is an insured or
beneficiary of the coverage of any of the Debtors.
1.96 "Insurance Proceeds" means any recovery by the Debtors or other
beneficiary of an insurance policy on account of or with respect to an Insured
Claim.
1.97 "Intraestate Claim" means either the SWINC Intraestate Claims or
the SWE&C Intraestate Claims.
1.98 "Intercompany Claim" means (a) any claim reflected in the books
and records of account by one Debtor with respect to any other Debtor or (b)
any Claim that is not reflected in such books and records entries but is held
pursuant to the terms of this Third Joint Plan by a Debtor against any other
Debtor. Intercompany Claims do not include claims by one Debtor against
another Debtor for contribution, reimbursement, or subrogation based on
distributions by either the Consolidated SWINC Estate or the Consolidated
SWE&C Estate under the terms of the Third Joint Plan.
1.99 "Interestate Disputes" means any disputes between the
Consolidated SWINC Estate and the Consolidated SWE&C Estate regarding the
allocation of assets and/or claims between the Consolidated SWINC Estate and
the Consolidated SWE&C Estate, pending or proposed litigation, objections to
Claims or settlements related to Claims filed or asserted against or that
affect both Consolidated Estates, including any disagreements as to the manner
and procedure for objecting to or settling such claims and the counsel to be
selected for the prosecution of such objections or settlements.
1.100 "Interestate Oversight Board" means the three (3) member board
established pursuant to Article VII.P of this Third Joint Plan to resolve all
interestate disputes regarding the classification of claims as SWINC or SWE&C
claims or the allocation of assets between the Consolidated SWINC Estate and
the Consolidated SWE&C Estate.
1.101 "Interest" means (a) the legal, equitable, contractual and
other rights of any Person with respect to the Old Common Stock, Old Common
Stock Options or any other equity or membership interest in any of the Debtors
and (b) the legal, equitable, contractual or other rights of any Person to
acquire or receive any of the foregoing.
1.102 "Interestholder" means a holder of an Interest.
1.103 "IRC" means the Internal Revenue Code of 1986, as amended and
in effect.
1.104 "IRS" means Internal Revenue Service of the United States of
America.
1.105 "Isobord" means Isobord Enterprises Inc.
1.106 "Isobord Claim Objection Litigation" means that litigation with
respect to SWE&C's objection to the proof of claim filed by Isobord in the
Chapter 11 Cases.
1.107 "Isobord Facility" means the facility to manufacture
straw-based particle board using a process technology developed and patented
by Isobord and Kvaerner Panel Systems GmbH.
1.108 "Isobord Litigation" means that litigation initiated by Isobord
against SWCL and SWEC in the Superior Court of Justice in Ontario, Canada, for
CN$150,000,000 in June 2000.
1.109 "Lien" means a charge against or interest in property to secure
payment of a debt or performance of an obligation.
1.110 "Litigation Claims" means the Claims, rights of action, suits
or proceedings, whether in law or in equity, whether known or unknown, that a
Debtor or its Estate may hold against any Person, or that is deemed property
of a Debtor's Estate or a Consolidated Estate under the Third Joint Plan or
applicable bankruptcy law, which are retained by the SWINC Plan Administrator,
or the SWE&C Liquidating Trustee, or the respective Consolidated Estates, as
the case may be, pursuant to Article VII.R of this Third Joint Plan,
including, but not limited to, the claims described in Third Joint Plan
Exhibit B.
1.111 "Lumbermens" means Lumbermens Mutual Casualty Company, together
with its business affiliate AXA Pacific Insurance Company.
1.112 "Lumbermens Claim" means proof of claim no. 5179 filed by
Lumbermens relating to losses suffered by Lumbermens solely in connection with
surety bonds and which amended and superseded proofs of claim nos. 3300 and
4491. The Lumbermens Claim does not include any other proof of claim filed by
Lumbermens.
1.113 "Maine Yankee" means Maine Yankee Atomic Power Company.
1.114 "Maine Yankee Settlement Agreement" means the agreement among
the Debtors and Maine Yankee, effective as of the Effective Date, as described
in Article XIII of the Third Joint Plan.
1.115 "Minimum Federal Distribution" means the distribution or
distributions to Federal in an aggregate amount of no less than $25 million on
account of the Allowed Federal Claim against the Consolidated SWINC Estate.
1.116 "Nordic Holdings" means Nordic Holdings, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2156 (PJW) pending in the
United States District Court for the District of Delaware.
1.117 "Nordic Investors" means Nordic Investors, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2157 (PJW) pending in the
United States District Court for the District of Delaware.
1.118 "Nordic Rail" means Nordic Rail Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2158 (PJW) pending in the
United States District Court for the District of Delaware.
1.119 "NRSI" means Nordic Refrigerated Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2159 (PJW) pending in the
United States District Court for the District of Delaware.
1.120 "NRSLP" means Nordic Refrigerated Services, Limited
Partnership, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2160
(PJW) pending in the United States District Court for the District of
Delaware.
1.121 "NTS" means Nordic Transportation Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2161 (PJW) pending in the
United States District Court for the District of Delaware.
1.122 "Old Common Stock" means shares of common stock, par value
$1.00 per share, of SWINC issued and outstanding as of the Petition Date,
together with any options, warrants, or rights, contractual or otherwise, to
acquire or receive any such stock, including, but not limited to the Old
Common Stock Options and any contracts or agreements pursuant to which a
non-Debtor party was or could have been entitled to receive SWINC common
stock.
1.123 "Old Common Stock Options" means the outstanding options to
purchase Old Common Stock, as of the Petition Date.
1.124 "Old Securities" means, collectively, the Old Common Stock and
Old Common Stock Options.
1.125 "Operating Reserve" means the reserve accounts to be
established and maintained by the SWINC Plan Administrator and the SWE&C
Liquidating Trustee into which the SWINC Plan Administrator and the SWE&C
Liquidating Trustee shall from time to time deposit Cash to fund, among other
things, the expenses of the SWINC Plan Administrator, as set forth more fully
in the SWINC Plan Administrator Agreement and the expenses of SWE&C
Liquidating Trustee, as set more fully in the SWE&C Liquidity Trust Agreement.
1.126 "Other Priority Claim" means a Claim, other than an
Administrative Claim or Priority Tax Claim, that is entitled to priority
pursuant to section 507(a) of the Bankruptcy Code.
1.127 "Pension Plan" means the Employee Retirement Plan of Stone &
Webster, Incorporated and Participating Subsidiaries, as the same may have
been or may be amended, modified, revised or restated.
1.128 "Person" means a person as such term is defined in section
101(41) of the Bankruptcy Code.
1.129 "Petition Date" means June 2, 2000, the date on which the
Debtors filed their petitions for relief commencing the Chapter 11 Cases.
1.130 "Plan Exhibit" means any exhibit attached to the Third Joint
Plan.
1.131 "Plan Supplement" means the compilation of documents and forms
of documents specified in the Third Joint Plan which will be filed with the
Court not later than the deadline for objection to confirmation of the Third
Joint Plan, October 20, 2003.
1.132 "Polar Transport" means Polar Transport, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2162 (PJW) pending in the
United States District Court for the District of Delaware.
1.133 "Postpetition Interest" means interest accruing after the
Petition Date until payment of an Allowed Claim.
1.134 "Power Technologies" means Power Estate, Inc., f/k/a Power
Technologies, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2163 (PJW) pending in the United States District Court for the District of
Delaware.
1.135 "Prescient" means Prescient Technologies, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2164 (PJW) pending in the
United States District Court for the District of Delaware.
1.136 "Priority Tax Claim" means a Claim that is entitled to priority
pursuant to section 507(a)(8) of the Bankruptcy Code.
1.137 "Professional" means any professional employed in the Chapter
11 Cases pursuant to section 327, 328 or 1103 of the Bankruptcy Code or
otherwise and any professional seeking compensation or reimbursement of
expenses in connection with the Chapter 11 Cases pursuant to section 503(b)(4)
of the Bankruptcy Code.
1.138 "Professional Fee Claim" means a Claim of a Professional for
compensation or reimbursement of costs and expenses relating to services
incurred after the Petition Date and prior to or on the Effective Date.
1.139 "Professional Fee Order" means the order under 11 U.S.C. ss.ss.
105(a) and 331 Establishing Procedures for Interim Compensation and
Reimbursement of Expenses of Professionals, dated July 28, 2000.
1.140 "Projects Engineers" means Projects Engineers, Incorporated, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2165 (PJW) pending
in the United States District Court for the District of Delaware.
1.141 "Pro Rata" means, from time to time, unless the Third Joint
Plan specifically provides otherwise, (a) with respect to Claims, the
proportion that the Face Amount of a Claim in a particular Class of Claims
bears to the aggregate Face Amount of all Claims (including Disputed Claims,
but excluding Disallowed Claims) in such class and (b) with respect to
Interests, the number of shares or units held by such Interestholder in
relation to the total number of such shares or units outstanding included in
such class.
1.142 "Reorganized SWINC" means, the successor to SWINC and the SWINC
Subsidiaries after giving effect to the substantive consolidation and merger
of SWINC and the SWINC Subsidiaries into SWINC on the Effective Date pursuant
to the Third Joint Plan.
1.143 "Reorganized SWINC Board" means the Board of Directors of
Reorganized SWINC, as reconstituted on the Effective Date.
1.144 "Reorganized SWINC New Common Stock" means the shares of common
stock, par value $.01 per share, of Reorganized SWINC authorized under Article
VI.I hereof and under the Amended Certificate of Incorporation and By-laws of
Reorganized SWINC.
1.145 "Reorganized SWINC New Series A Preferred Stock" means the
shares of Series A participating Preferred Stock, par value $.01 per share, of
Reorganized SWINC authorized under Article VI.I hereof and under the Amended
Certificate of Incorporation and By-laws of Reorganized SWINC.
1.146 "Reorganized SWINC New Series B Preferred Stock" means the
shares of series B participating Preferred Stock, par value $.01 per share, of
Reorganized SWINC authorized under Article VI.I hereof and under the Amended
Certificate of Incorporation and By-laws of Reorganized SWINC.
1.147 "Reserves" means, one or more of: (i) the Disputed Claims
Reserves, (ii) the Unclaimed Distribution Reserves and (iii) the Operating
Reserves (iv) the Professional Fee Claims Reserves and (v) any other reserves
established under the Third Joint Plan.
1.148 "Restricted Cash" means the Cash segregated by the SWINC Plan
Administrator from time to time to fund the Reserves.
1.149 "Reversion" means the remaining assets within the Pension Plan
after all Pension Plan liabilities have been satisfied.
1.150 "Rockton Associates" means Rockton Associates, Incorporated, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2166 (PJW) pending
in the United States District Court for the District of Delaware.
1.151 "Rockton Technical" means Rockton Technical Services
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2167
(PJW) pending in the United States District Court for the District of
Delaware.
1.152 "Sabal" means Sabal Corporation, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2168 (PJW) pending in the
United States District Court for the District of Delaware.
1.153 "Sabal Real Estate" means Sabal Real Estate Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2169 (PJW) pending
in the United States District Court for the District of Delaware.
1.154 "Sale Order" means the Revised Order under 11 U.S.C. ss.ss.
105(a), 363, 365 and 1146(c), and Fed. R. Bankr. P. 2002, 6004, 6006 and 9014,
(A) Approving Asset Purchase Agreement; (B) Authorizing (i) Sale of
Substantially all of Debtors' Assets Free and Clear of Liens, Claims,
Interests and Encumbrances, (ii) Assumption and Assignment of Certain
Executory Contracts and Unexpired Leases, and (iii) Assumption of Certain
Liabilities, entered by the Court on July 14, 2000, authorizing the Debtors'
sale of substantially all of their assets to Shaw pursuant to the Asset
Purchase Agreement.
1.155 "Sale Proceeds" means the proceeds received by the Debtors from
Shaw pursuant to the Asset Purchase Agreement.
1.156 "SAW" means SAW Consulting Services, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2170 (PJW) pending in the
United States District Court for the District of Delaware.
1.157 "Scheduled" means, with respect to any Claim or Interest, the
status and amount, if any, of such Claim or Interest as set further in the
Schedules.
1.158 "Schedules" means the schedules of assets and liabilities, the
list of holders of Interests and the statements of financial affairs filed by
the Debtors on July 14, 2000, as such schedules or statements have been or may
be further modified, amended or supplemented in accordance with Bankruptcy
Rule 1009 or orders of the Court, including, but not limited to, the amended
schedules filed by the Debtors on April 2, 2003.
1.159 "SC Wood" means SC Wood, LLC, a debtor and debtor-in-possession
in Chapter 11 Case No. 00-2171 (PJW) pending in the United States District
Court for the District of Delaware.
1.160 "Secured Claim" means a Claim (a) secured by a Lien on property
in which an Estate has an interest or (b) that is subject to setoff under
section 553 of the Bankruptcy Code and such right of setoff has been asserted
by the holder of such right prior to the Confirmation Date in a property filed
motion for relief from the automatic stay, to the extent of the value of the
Claim holder's interest in the Estate's interest in such property or to the
extent of the amount subject to setoff, as applicable, as determined pursuant
to section 506(a) of the Bankruptcy Code.
1.161 "Securities Claim" means (a) any claim or demand whenever and
wherever arising or asserted against the Debtors, their predecessors,
successors, or their present or former officers, directors or employees and
(b) any debt, obligation or liability (whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, bonded, secured, or unsecured), whenever and
wherever arising or asserted, of the Debtors, their predecessors, successors,
or their present or former officers, directors or employees (including, but
not limited to, all thereof in the nature of or sounding in tort, contract,
warranty, or any other theory of law, equity or admiralty); in either case (a)
and (b) for, relating to, or arising by reason of, directly or indirectly, the
ownership of Old Securities, including, but not limited to, any Claim subject
to subordination under section 510(b) of the Bankruptcy Code.
1.162 "Selective Technologies" means Selective Technologies
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2172
(PJW) pending in the United States District Court for the District of
Delaware.
1.163 "Semi-annual Class 5A Distribution Amount" means, with respect
to each Semi-annual Distribution Date, the amount of SWINC Available Cash
distributed to all holders of Allowed Class 5A: SWINC General Unsecured
Claims.
1.164 "Semi-annual Class 5B Distribution Amount" means, with respect
to each Semi-annual Distribution Date, the amount of SWE&C Available Cash to
be distributed to holders of Allowed Class 5B SWE&C General Unsecured Claims.
1.165 "Semi-annual Distribution Date" means (a) initially, the first
Business Day occurring six (6) months after the Effective Date, and (b)
subsequently, the first Business Day occurring six (6) full months after the
immediately preceding Semiannual Distribution Date.
1.166 "Shaw" means The Shaw Group Inc., a Louisiana corporation, and
its affiliates and subsidiaries, including, but not limited to, SWINC
Acquisition Three, Inc., a Louisiana corporation.
1.167 "Shaw Sale" means the Debtors' sale of substantially all of
their assets to Shaw pursuant to the Sale Order.
1.168 "Sleeper Street" means Sleeper Street Realty Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2173 (PJW) pending
in the United States District Court for the District of Delaware.
1.169 "Solicitation Order" means the order entered by the Court
establishing procedures with respect to the solicitation and tabulation of
votes to accept or reject this Third Joint Plan.
1.170 "Substantive Consolidation Order" means the order, or provision
of the Confirmation Order, substantively consolidating the Chapter 11 Cases,
as provided in Article VII.A of the Third Joint Plan.
1.171 "Substantive Consolidation Settlement" means the compromise and
settlement proposed in the Third Joint Plan in Article VII.A and described in
the Disclosure Statement.
1.172 "Summer Street" means 245 Summer Street Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2144 (PJW) pending in the
United States District Court for the District of Delaware.
1.173 "S&W Abu Dhabi" means Stone & Webster Abu Dhabi (United Arab
Emirates), Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2174 (PJW) pending in the United States District Court for the District of
Delaware.
1.174 "S&W Argentina" means Stone & Webster of Argentina Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2196 (PJW) pending
in the United States District Court for the District of Delaware.
1.175 "S&W Asia" means Stone & Webster Asia Corporation, a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2175 (PJW) pending in the
United States District Court for the District of Delaware.
1.176 "S&W Auburn" means Stone & Webster Auburn Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2176 (PJW) pending in the
United States District Court for the District of Delaware.
1.177 "S&W Bharat" means Stone & Webster Bharat, Incorporated, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2177 (PJW) pending
in the United States District Court for the District of Delaware.
1.178 "S&W Binghamton" means Stone & Webster Binghamton Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2178 (PJW) pending
in the United States District Court for the District of Delaware.
1.179 "S&W Civil" means Stone & Webster Civil and Transportation
Services, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2179 (PJW) pending in the United States District Court for the District of
Delaware.
1.180 "S&W Construction" means SWCC, Inc., f/k/a Stone & Webster
Construction Company, Inc., a debtor and debtor-in-possession in Chapter 11
Case No. 00-2180 (PJW) pending in the United States District Court for the
District of Delaware.
1.181 "S&W Development" means Stone & Webster Development
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2181
(PJW) pending in the United States District Court for the District of
Delaware.
1.182 "S&W Dominican Republic" means Stone & Webster Dominican
Republic, Incorporated, a debtor and debtor-in-possession in Chapter 11 Case
No. 00-2182 (PJW) pending in the United States District Court for the District
of Delaware.
1.183 "S&W Far East" means Stone & Webster Far East Technical
Services Corp., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2184 (PJW) pending in the United States District Court for the District of
Delaware.
1.184 "S&W Indonesia" means Stone & Webster Indonesia Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2185 (PJW) pending
in the United States District Court for the District of Delaware.
1.185 "S&W Industrial" means Stone & Webster Industrial Technology
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2186
(PJW) pending in the United States District Court for the District of
Delaware.
1.186 "S&W Inter-American" means Stone & Webster Inter-American
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2187
(PJW) pending in the United States District Court for the District of
Delaware.
1.187 "S&W International" means Stone & Webster International
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2188
(PJW) pending in the United States District Court for the District of
Delaware.
1.188 "S&W International Projects" means Stone & Webster
International Projects Corporation, a debtor and debtor-in-possession in
Chapter 11 Case No. 00-2189 (PJW) pending in the United States District Court
for the District of Delaware.
1.189 "S&W Italia" means Stone & Webster Italia, Incorporated, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2190 (PJW) pending
in the United States District Court for the District of Delaware.
1.190 "S&W Korea" means Stone & Webster Korea Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2191 (PJW) pending in the
United States District Court for the District of Delaware.
1.191 "S&W Kuwait" means Stone & Webster Kuwait, Incorporated, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2192 (PJW) pending
in the United States District Court for the District of Delaware.
1.192 "S&W Management" means S&WMC, Inc., f/k/a Stone & Webster
Management Consultants, Inc., a debtor and debtor-in-possession in Chapter 11
Case No. 00-2194 (PJW) pending in the United States District Court for the
District of Delaware.
1.193 "S&W Mexico" means Stone & Webster of Mexico Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2197
(PJW) pending in the United States District Court for the District of
Delaware.
1.194 "S&W Michigan" means SWM Co., Inc., f/k/a Stone & Webster
Michigan, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2214 (PJW) pending in the United States District Court for the District of
Delaware.
1.195 "S&W Middle East" means Stone & Webster Middle East Engineering
Services Corporation, a debtor and debtor-in-possession in Chapter 11 Case No.
00-2195 (PJW) pending in the United States District Court for the District of
Delaware.
1.196 "S&W Oil" means Stone & Webster Oil Company, Inc., a debtor and
debtor-in-possession in Chapter 11 Case No. 00-2198 (PJW) pending in the
United States District Court for the District of Delaware.
1.197 "S&W Operating" means Stone & Webster Operating Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2199 (PJW) pending
in the United States District Court for the District of Delaware.
1.198 "S&W Overseas Consultants" means Stone & Webster Overseas
Consultants, Inc., a debtor and debtor-in-possession in Chapter 11 Case No.
00-2200 (PJW) pending in the United States District Court for the District of
Delaware.
1.199 "S&W Overseas Development" means Stone & Webster Overseas
Development Corporation f/k/a Stone & Webster Lithuania Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2193 (PJW) pending in the
United States District Court for the District of Delaware.
1.200 "S&W Overseas Group" means Stone & Webster Overseas Group,
Inc., a debtor and debtor-in-possession in Chapter 11 Case No. 00-2201 (PJW)
pending in the United States District Court for the District of Delaware.
1.201 "S&W Pacific" means Stone & Webster Pacific Corporation, a
debtor and debtor-in-possession in Chapter 11 Case No. 00-2202 (PJW) pending
in the United States District Court for the District of Delaware.
1.202 "S&W Power Engineering" means Stone & Webster Power Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2203
(PJW) pending in the United States District Court for the District of
Delaware.
1.203 "S&W Power Projects" means Stone & Webster Power Projects
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2204
(PJW) pending in the United States District Court for the District of
Delaware.
1.204 "S&W Procurement" means Stone & Webster Procurement
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2205
(PJW) pending in the United States District Court for the District of
Delaware.
1.205 "S&W Puerto Rico" means Stone & Webster Puerto Rico,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2206
(PJW) pending in the United States District Court for the District of
Delaware.
1.206 "S&W Saudi Arabia" means Stone & Webster Saudi Arabia,
Incorporated, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2207
(PJW) pending in the United States District Court for the District of
Delaware.
1.207 "S&W Taiwan" means Stone & Webster Taiwan Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2208 (PJW) pending in the
United States District Court for the District of Delaware.
1.208 "S&W Technology" means Stone & Webster Technology Corporation,
a debtor and debtor-in-possession in Chapter 11 Case No. 00-2209 (PJW) pending
in the United States District Court for the District of Delaware.
1.209 "S&W Wallingford" means Stone & Webster Wallingford
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2210
(PJW) pending in the United States District Court for the District of
Delaware.
1.210 "S&W Worldwide" means Stone & Webster Worldwide Engineering
Corporation, a debtor and debtor-in-possession in Chapter 11 Case No. 00-2211
(PJW) pending in the United States District Court for the District of
Delaware.
1.211 "SWCL" means Stone & Webster Canada Ltd.
1.212 "SWE&C" means Stone & Webster Engineers and Constructors, Inc.,
a Delaware corporation and a debtor and debtor-in-possession in Chapter 11
Case No. 00-2183 (PJW) pending in the United States District Court for the
District of Delaware.
1.213 "SWE&C Administrative Claim" means an Administrative Claim
against SWE&C or a SWE&C Subsidiary.
1.214 "SWE&C Available Cash" means all SWE&C Liquidating Trust Assets
consisting of Cash as of the date ten (10) Business Days prior to the date of
any distribution, other than, (a) the Cash or property contained in any
Disputed Claims Reserve, Unclaimed Distribution Reserve and any other similar
reserve or escrow account established or maintained by the SWE&C Liquidating
Trustee pursuant to the provisions of the Third Joint Plan and the SWE&C
Liquidating Trust Agreement and (b) the amount determined by the SWE&C
Liquidating Trustee, after consultation with the SWE&C Liquidating Trust
Advisory Board pursuant to the SWE&C Liquidating Trust Agreement, to be
necessary and appropriate to reserve for future costs of administration of the
SWE&C Liquidating Trust (including, without limitation, the compensation, fees
and costs of the SWE&C Liquidating Trustee and the compensation, fees and
costs of all professionals, consultants, agents and employees retained or to
be retained by the SWE&C Liquidating Trustee and the SWE&C Liquidating Trustee
Advisory Board).
1.215 "SWE&C Claims Objection Deadline" means the last day for Filing
objections to Disputed Claims or Disputed Interests (other than Disputed
Claims and Disputed Interests set forth in Article VIII hereof, for which no
objection or request for estimation shall be required), which day shall be (i)
the 240th day following the Confirmation Date or (ii) such other date as the
Court may order.
1.216 "SWE&C Convenience Claim" means a SWE&C General Unsecured Claim
whose holder elects to be treated as a holder of a Class 4B: SWE&C Convenience
Claim and receive in full satisfaction, release and discharge of and in
exchange for such SWE&C General Unsecured Claim, the lesser of $1,000 or 50%
of their Allowed SWE&C General Unsecured Claim.
1.217 "SWE&C Equity Interests" means any and all Interests in SWE&C.
1.218 "SWE&C General Unsecured Claim" means a claim that is not an
Administrative Claim, Priority Tax Claim, Other Priority Claim, Miscellaneous
Secured Claim, Intraestate Claim, Intercompany Claim, Securities Claim,
Convenience Claim or Subordinated Claim, but does include the Allowed SWINC
Subrogation Claim.
1.219 "SWE&C Intraestate Claim" means an Intercompany Claim between
SWE&C or any SWE&C Subsidiary and SWE&C Subsidiary or SWE&C.
1.220 "SWE&C Liquidating Trust" means the trust created pursuant to
the SWE&C Liquidating Trust Agreement on the Effective Date in accordance with
this Third Joint Plan, the Confirmation Order and the SWE&C Liquidating Trust
Agreement.
1.221 "SWE&C Liquidating Trust Agreement" means that certain SWE&C
Liquidating Trust Agreement, effective as of the Effective Date, substantially
in the form annexed hereto as Third Joint Plan Exhibit C, as it may be
modified from time to time.
1.222 "SWE&C Liquidating Trust Assets" means those assets transferred
to and owned by the SWE&C Liquidating Trust pursuant to Article VII.O.2 of the
Third Joint Plan, which are comprised of (a) any and all assets and property
of the Estates of SWE&C and the SWE&C Subsidiaries as of the Effective Date
including, without limitation, (i) Cash, (ii) Cash from the market value
allocation of the Sale Proceeds, (ii) Litigation Claims held by SWE&C or the
SWE&C Subsidiaries, and (iii) all of the rights and standing of SWE&C and the
SWE&C Subsidiaries to object to, litigate, settle and otherwise resolve all
Disputed Claims against SWE&C and the SWE&C Subsidiaries; (b) the Reorganized
SWINC New Common Stock held by the SWE&C Liquidating Trustee for the benefit
of the beneficiaries of the SWE&C Trust; (c) the Reorganized SWINC Note; and
(d) any and all proceeds of the foregoing and interest actually earned with
respect thereto.
1.223 "SWE&C Liquidating Trust Advisory Board" means the three (3)
member board established pursuant to Article VII.O.4 of this Third Joint Plan
to advise, assist and supervise the SWE&C Liquidating Trustee in the
administration of the SWE&C Liquidating Trust pursuant to the SWE&C
Liquidating Trust Agreement.
1.224 "SWE&C Liquidating Trust Disbursing Agent" means the SWE&C
Liquidating Trustee or any party designated by the SWE&C Liquidating Trust
Board to serve as the disbursing agent under the Third Joint Plan.
1.225 "SWE&C Liquidating Trustee" means the Person designated by the
SWE&C Liquidating Trust Advisory Board at least 5 days prior to the
Confirmation Hearing and any successor thereof, in his capacity as trustee
under the SWE&C Liquidating Trust Agreement.
1.226 "SWE&C Miscellaneous Secured Claim" means all Secured Claims
against SWE&C or any SWE&C Subsidiary.
1.227 "SWE&C Operating Reserve" means the reserve accounts to be
established and maintained by the SWE&C Liquidating Trustee into which the
SWE&C Liquidating Trustee shall from time to time deposit Cash to fund, among
other things, the expenses of the SWINC Plan Administrator, as set forth more
fully in the SWE&C Liquidity Trust Agreement.
1.228 "SWE&C Other Priority Claim" means a Claim against SWE&C or any
SWE&C Subsidiary entitled to priority pursuant to section 507(a) of the
Bankruptcy Code other than a SWE&C Administrative Claim or SWE&C Priority Tax
Claim.
1.229 "SWE&C Priority Tax Claims" means a Priority Tax Claim against
SWE&C or a SWE&C Subsidiary.
1.230 "SWE&C Professional Fee Claims" means a claim of a Professional
for compensation or reimbursement of costs and expenses relating to services
incurred on or after the Petition Date and prior to or on the Effective Date
on behalf of SWE&C, a SWE&C Subsidiary or either respective Estates.
1.231 "SWE&C Professional Fee Reserve" means the reserve account to
be established and maintained under the Third Joint Plan into which will be
deposited an amount equal to $1.5 million to Fund and pay any Allowed SWE&C
Professional Fee Claims.
1.232 "SWE&C Setoff Claim" means the aggregate of all Intercompany
Claims held by SWE&C or any SWE&C Subsidiary against SWINC or any SWINC
Subsidiary.
1.233 "SWE&C Subordinated Claim" means a Subordinated Claim against
SWE&C or any SWE&C Subsidiary subordinated pursuant to a Final Order under
section 510(c) of the Bankruptcy Code.
1.234 "SWE&C Subsidiaries" means any or all of the following direct
and indirect subsidiaries of SWE&C: Belmont, S&W Civil, S&W Construction, DSS,
Fast Supply, Rockton Associates, S&W Management, S&W Operating, S&W
Procurement, SAW, S&W Industrial, S&W Michigan, Power Technologies, S&W
Argentina, S&W Overseas Consultants, S&W Power Projects, GSES, Summer Street,
SC Wood, S&W Overseas Group, Rockton Technical, S&W Abu Dhabi, S&W Asia, S&W
Bharat, S&W Dominican Republic, S&W Far East, S&W Indonesia, S&W
Inter-American, S&W International Projects, S&W Italia, S&W Korea, S&W Kuwait,
Associated Engineers, S&W Middle East, S&W Pacific, S&W Puerto Rico, S&W Power
Engineering, AEC International, Selective Technologies, IE&C, Projects
Engineers, S&W Overseas Development, S&W Saudi Arabia, S&W Taiwan, S&W
Technology, S&W International, S&W Mexico, SWEC, Enclave Parkway, and S&W
Worldwide.
1.235 "SWE&C Subsidiary Interest" means any and all Interests in a
SWE&C Subsidiary.
1.236 "SWEC" means Stone & Webster, Engineering Corporation, a debtor
and debtor-in-possession in Chapter 11 Case No. 00-2142 (PJW) pending in the
United States District Court for the District of Delaware.
1.237 "SWINC" means Stone & Webster, Incorporated, a Delaware
corporation and a debtor and debtor-in-possession in Chapter 11 Case No.
00-2142 (PJW) pending in the United States District Court for the District of
Delaware.
1.238 "SWINC Administrative Claim" means an Administrative Claim
Against SWINC or a SWINC Subsidiary.
1.239 "SWINC Available Cash" means all Cash of the Estates of SWINC
and the SWINC Subsidiaries held by the SWINC Plan Administrator as of the date
ten (10) Business Days prior to the date of any distribution, other than, (i)
with respect to distributions to be made on the Effective Date, (a) Cash to be
distributed on the Effective Date to holders of Allowed Claims against SWINC,
and (b) Restricted Cash and (ii) with respect to distributions to be made on
any Semi-Annual Distribution Date, Restricted Cash.
1.240 "SWINC Claims Objection Deadline" means the last day for Filing
objections to Disputed Claims or Disputed Interests (other than Disputed
Claims and Disputed Interests set forth in Article X hereof, for which no
objection or request for estimation shall be required), which day shall be (i)
the 240th day following the Confirmation Date or (ii) such other date as the
Court may order.
1.241 "SWINC Convenience Claim" means a SWINC General Unsecured Claim
whose holder elects to be treated as a holder of a Class 4A: SWINC Convenience
Claim and receive in full satisfaction, release and discharge of and in
exchange for such SWINC General Unsecured Claim, the lesser of $1,000 or 50%
of their Allowed SWINC General Unsecured Claim.
1.242 "SWINC Disbursing Agent" means any party designated by the
SWINC Plan Administrator to serve as a disbursing agent for SWINC under the
Third Joint Plan.
1.243 "SWINC Equity Interests" means, collectively, the issued and
outstanding Old Common Stock and the Old Common Stock Options. To be entitled
to vote on and receive a distribution under the Third Joint Plan, Old Common
Stock Options must have been exercised before the Equity Voting Record Date.
1.244 "SWINC General Unsecured Claim" means a claim that is not an
Administrative Claim, Priority Tax Claim, Other Priority Claim, Secured
Claims, Intercompany Claim, Securities Claim, Convenience Claim or
Subordinated Claim.
1.245 "SWINC Intercompany Claim" means the aggregate Intercompany
Claims by SWINC of any SWINC Subsidiary against SWE&C or any SWE&C Subsidiary.
1.246 "SWINC Intraestate Claim" means an Intercompany Claim between
SWINC or any SWINC Subsidiary against SWINC Subsidiary or SWINC.
1.247 "SWINC Miscellaneous Secured Claim" means all Secured Claims
against SWINC or any SWINC Subsidiary other than the SWE&C Setoff Claim.
1.248 "SWINC MY Contribution Claim" means the Consolidated SWINC
Estate's claim for contribution/reimbursement/subrogation against the
Consolidated SWE&C Estate in the fixed amount of $16.8 million, regardless of
actual payments made by SWINC to Maine Yankee on account of its claim, as
provided in Article XIII.G.4 of the Third Joint Plan. The SWINC MY
Contribution Claim shall be treated as a Class 5B: SWE&C General Unsecured
Claim under the Third Joint Plan.
1.249 "SWINC Operating Reserve" means the reserve accounts to be
established and maintained by the SWINC Plan Administrator into which the
SWINC Plan Administrator shall from time to time deposit Cash to fund, among
other things, the expenses of the SWINC Plan Administrator, as set forth more
fully in the SWINC Plan Administrator Agreement.
1.250 "SWINC Other Priority Claim" means a Claim against SWINC or any
SWINC Subsidiary entitled to priority pursuant to section 507(a) of the
Bankruptcy Code other than a SWINC Administrative Claim or SWINC Priority Tax
Claim.
1.251 "SWINC Plan Administrator" means the Person appointed by the
Consolidated SWINC Estate Governing Board to administer the Third Joint Plan
in accordance with the terms of the Third Joint Plan and the SWINC Plan
Administrator Agreement and to take such other actions as may be authorized
under the SWINC Plan Administrator Agreement, and any successor thereto.
1.252 "SWINC Plan Administrator Agreement" means the agreement
between and among SWINC, the SWINC Subsidiaries and the SWINC Plan
Administrator specifying the rights, duties and responsibilities of and to be
performed by the SWINC Plan Administrator under the Third Joint Plan,
substantially in the form annexed hereto as Plan Exhibit D, as it may be
modified from time to time.
1.253 "SWINC Priority Tax Claim" means a Priority Tax claim against
SWINC or a SWINC Subsidiary.
1.254 "SWINC Professional Fee Claim" means a claim of a Professional
for compensation or reimbursement of costs and expenses relating to services
incurred on or after the Petition Date and prior to or on the Effective Date
on behalf of SWINC, a SWINC Subsidiary or either respective Estates.
1.255 "SWINC Professional Fee Reserve" means the reserve account to
be established and maintained under the Third Joint Plan into which will be
deposited an amount equal to $2 million to Fund and pay any Allowed SWINC
Professional Fee Claims.
1.256 "SWINC Secured Claim" means either a SWE&C Setoff Claim or a
SWINC Miscellaneous Secured Claim.
1.257 "SWINC Subordinated Claim" means a Subordinated Claim against
SWINC or any SWINC Subsidiary subordinated pursuant to a Final Order under
section 510(c) of the Bankruptcy Code.
1.258 "SWINC Subsidiaries" means any or all of the following direct
and indirect subsidiaries of SWINC: S&W Auburn, S&W Development, S&W
Binghamton, SWL, S&W Wallingford, Auburn GC, Auburn LC, Nordic Holdings,
Nordic Investors, Nordic Rail, NRSI, NRSLP, NTS, CCS, Polar Transport,
Prescient, Sleeper Street, Sabal, Enclave Parkway Realty, Sabal Real Estate,
and S&W Oil.
1.259 "Subordinated Claim" means any claim subordinated pursuant to a
Final Order under section 510(c) of the Bankruptcy Code.
1.260 "SWL" means SWL Corporation, a debtor and debtor-in-possession
in Chapter 11 Case No. 00-2212 (PJW) pending in the United States District
Court for the District of Delaware.
1.261 "Third Joint Plan" means this chapter 11 plan and all exhibits
annexed hereto, including the Plan Supplement, either in its present form or
as the same may be altered, amended or modified from time to time.
1.262 "Treasury Regulations" means the regulations under title 26 of
the United States Code.
1.263 "Unimpaired" means, when used with reference to a Claim or
Interest, a Claim or Interest that is not impaired within the meaning of
section 1124 of the Bankruptcy Code.
1.264 "Unimpaired Claim" means a Claim that is not an Impaired Claim.
1.265 "Unimpaired Interest" means an Interest that is not an Impaired
Interest.
1.266 "Voting Deadline" means the last day for submitting Ballots to
accept or reject this Third Joint Plan in accordance with section 1126 of the
Bankruptcy Code, as specified in the Solicitation Order.
1.267 "Weitz & Luxenberg Agreements" means the: (i) the New York
Asbestos Litigation: Stone & Webster Present Cases Settlement Agreement
entered into between SWEC and Weitz & Luxenberg on behalf of pending
asbestos-related personal injury cases, effective as of January 11, 1995,
which agreement was entered into to resolve pending asbestos-related personal
injury cases that Weitz & Luxenberg has filed on behalf of its clients against
SWEC in the State of New York State, and (ii) the New York Asbestos
Litigation: Stone & Webster Future Cases Settlement Agreement entered into
between SWEC and Weitz & Luxenberg on behalf of future asbestos-related
personal injury cases, effective as of January 11, 1995, which agreement was
entered into to resolve the future asbestos-related personal injury cases that
have been or will be filed by Weitz & Luxenberg on behalf of its clients
against SWEC in the State of New York State after January 11, 1995.
C. RULES OF INTERPRETATION
For purposes of this Third Joint Plan (a) any reference in the Third
Joint Plan to a contract, instrument, release, indenture, or other agreement
or document being in a particular form or particular terms and conditions
means that such document shall be substantially in such form or substantially
on such terms and conditions; (b) any reference in the Third Joint Plan to an
existing document or exhibit filed or to be filed means such document or
exhibit as it may have been or may be amended, modified, or supplemented; (c)
unless otherwise specified, all references in the Third Joint Plan to
Sections, Articles, Schedules and Exhibits are references to Sections,
Articles, Schedules and Exhibits of or to the Third Joint Plan; (d) the words
"herein" and "hereto" refer to the Third Joint Plan in its entirety rather
than to a particular portion of the Third Joint Plan; (e) captions and
headings to Articles and Sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the interpretation of
the Third Joint Plan; (f) the rules of construction set forth in section 102
of the Bankruptcy Code and in the Bankruptcy Rules shall apply.
D. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by the Third
Joint Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
A. INTRODUCTION
This Third Joint Plan proposes as a compromise and settlement of
various disputes and issues raised by, among others, the Equity Committee and
the Creditors' Committee, the substantive consolidation of (i) SWINC and the
SWINC Subsidiaries into the Consolidated SWINC Estate and (ii) SWE&C and the
SWE&C Subsidiaries into the Consolidated SWE&C Estate, which substantive
consolidation is set forth more fully in Article VII.A of the Third Joint
Plan. The classifications listed below include (i) Claims against and
Interests in SWINC and the SWINC Subsidiaries, as substantively consolidated,
and (ii) Claims against SWE&C and the SWE&C Subsidiaries, as substantively
consolidated. All Claims and Interests, except Administrative Claims and
Priority Tax Claims, are placed in the Classes set forth below. In accordance
with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and
Priority Tax Claims, as described below, have not been classified.
A Claim or Interest is placed in a particular Class only to the
extent that the Claim or Interest falls within the description of that Class,
and is classified in other Classes to the extent that any portion of the Claim
or Interest falls within the description of such other Classes. A Claim is
also placed in a particular Class for the purpose of receiving distributions
pursuant to the Third Joint Plan only to the extent that such Claim is an
Allowed Claim in that Class and such Claim has not been paid, released or
otherwise settled prior to the Confirmation Date.
B. SUMMARY OF UNCLASSIFIED CLAIMS (NOT ENTITLED TO VOTE ON THE
THIRD JOINT PLAN)
1. General Administrative Claims
2. SWINC Administrative Claims
3. SWINC Priority Tax Claims
4. SWE&C Administrative Claims
5. SWE&C Priority Tax Claims
C. SUMMARY OF CLASSIFIED CLAIMS AND INTERESTS
1. Consolidated SWINC Estate Classifications
Class Status
Class 1A: SWINC Secured Claims Unimpaired - deemed to accept
Class 2A: SWINC Other Priority Claims Unimpaired - deemed to accept
Class 3A: SWINC Asbestos Claims Impaired - entitled to vote
Class 4A: SWINC Convenience Claims Impaired - entitled to vote
Class 5A: SWINC General Unsecured Claims Impaired - entitled to vote
Class 6A: SWINC Intraestate Claims Impaired - deemed to reject
Third Joint Plan
Class 7A: SWINC Subordinated Claims Impaired - entitled to vote
Class 8A: SWINC Securities Claims Impaired - entitled to vote
Class 9A: SWINC Equity Interests Impaired - entitled to vote
Class 10A: SWINC Subsidiary Impaired - deemed to reject
Interests Third Joint Plan
2. Consolidated SWE&C Estate Classifications
Class Status
Class 1B: SWE&C Miscellaneous Unimpaired - deemed to accept
Secured Claims Third Joint Plan
Class 2B: SWE&C Other Priority Claims Unimpaired - deemed to accept
Third Joint Plan
Class 3B: SWE&C Asbestos Claims Impaired - entitled to vote
Class 4B: SWE&C Convenience Claims Impaired - entitled to vote
Class 5B: SWE&C General Unsecured Claims Impaired - entitled to vote
Class 6B: SWE&C Intraestate Claims Impaired - deemed to reject Third
Joint Plan
Class 7B: Intercompany Claims of SWINC or Impaired - deemed to reject Third
any SWINC Subsidiaries Joint Plan
Class 8B: SWE&C Subordinated Claims Impaired - deemed to reject Third
Joint Plan
Class 9B: SWE&C Subsidiary Interests Impaired - deemed to reject Third
Joint Plan
Class 10B: SWE&C Equity Interests Impaired - deemed to reject Third
Joint Plan
D. CLASSIFICATION OF UNIMPAIRED CLASSES OF CLAIMS AND INTERESTS
(DEEMED TO HAVE ACCEPTED THE THIRD JOINT PLAN AND THEREFORE
NOT ENTITLED TO VOTE)
1. Consolidated SWINC Estate Classifications
(A) Class 1A: SWINC Secured Claims
Class 1A.1 consists of the SWE&C Setoff
Claim.
Class 1A.2 consists of all SWINC
Miscellaneous Secured Claims, excluding the SWE&C Setoff Claim, each such
claim, if any, being deemed to be a separate class under the Third Joint Plan.
(B) Class 2A: SWINC Other Priority Claims
Class 2A consists of all Other Priority
Claims against SWINC or a SWINC Subsidiary.
2. SWE&C Classifications
(A) Class 1B: SWE&C Miscellaneous Secured Claims
Class 1B consists of all Secured Claims
against SWE&C or a SWE&C Subsidiary, each such claims, if any, being deemed to
be a separate class under the Third Joint Plan.
(B) Class 2B: SWE&C Other Priority Claims
Class 2B consists of all Other Priority
Claims against SWE&C or a SWE&C Subsidiary.
E. Classification of Impaired Classes of Claims and Interests
1. SWINC Classifications
Classes 3A, 4A, 5A, 7A, 8A and 9A are
entitled to vote on the Third Joint Plan; Classes 6A and 10A are deemed to
have rejected the Third Joint Plan and, therefore, are not entitled to vote on
the Third Joint Plan.
(A) Class 3A: SWINC Asbestos Claims
Class 3A consists of all Asbestos Claims
against SWINC.
(B) Class 4A: SWINC Convenience Claims
Class 4A consists of all Convenience
Claims against SWINC or a SWINC Subsidiary.
(C) Class 5A: SWINC General Unsecured Claims
Class 5A consists of all General Unsecured
Claims against SWINC or a SWINC Subsidiary.
(D) Class 6A: SWINC Intraestate Claims
Class 6A consists of all Intercompany
Claims against SWINC or a SWINC Subsidiary by SWINC or a SWINC Subsidiary.
(E) Class 7A: SWINC Subordinated Claims
Class 7A consists of all Subordinated
Claims against SWINC or a SWINC Subsidiary.
(F) Class 8A: SWINC Securities Claims
Class 8A consists of all Securities Claims
against SWINC or a SWINC Subsidiary.
(G) Class 9A: SWINC Equity Interests
Class 9A consists of all SWINC Equity
Interests.
(H) Class 10A: SWINC Subsidiary Interests
Class 10A consists of all Interests in the
SWINC Subsidiaries.
2. SWE&C Classifications
Classes 3B, 4B and 5B are entitled to vote on the
Third Joint Plan; Classes 6B, 7B, 8B, 9B and 10B are deemed to have rejected
the Third Joint Plan and, therefore, are not entitled to vote on the Third
Joint Plan.
(A) Class 3B: SWE&C Asbestos Claims
Class 3B consists of all Asbestos Claims
against SWE&C.
(B) Class 4B: SWE&C Convenience Claims
Class 4B consists of all Convenience
Claims against SWE&C or a SWE&C Subsidiary.
(C) Class 5B: SWE&C General Unsecured Claims
Class 5B consists of all General Unsecured
Claims against SWE&C or a SWE&C Subsidiary.
(D) Class 6B: SWE&C Intraestate Claims
Class 6B consists of all Intercompany
Claims by SWE&C or a SWE&C Subsidiary against SWE&C or a SWE&C Subsidiary.
(E) Class 7B: SWINC Intercompany Claims
Class 7B consists of the Intercompany
Claims by SWINC or any SWINC Subsidiary after giving effect to the SWE&C
Setoff Claim against the Consolidated SWINC Estate.
(F) Class 8B: SWE&C Subordinated Claims
Class 8B consists of all Subordinated
Claims against SWE&C or a SWE&C Subsidiary.
(G) Class 9B: SWE&C Subsidiary Interests
Class 9B consists of all Interests in a
SWE&C Subsidiary.
(H) Class 10B: SWE&C Equity Interests
Class 10B consists of all Interests in
SWE&C.
ARTICLE III
TREATMENT OF UNCLASSIFIED GENERAL CLAIMS
A. Unclassified General Claims
1. General Administrative Claims
General Administrative Claims shall be paid in the
ordinary course of business in accordance with the terms and conditions of any
agreements relating thereto out of available funds prior to distribution being
made to the Consolidated SWINC Estate and the Consolidated SWE&C Estate.
2. General Professional Fee Claims
General Professional Fee Claims shall be paid in
accordance with the procedures established in the Bankruptcy Code, the
Bankruptcy Rules, the United States Trustee Guidelines and the Bankruptcy
Court relating to the payment of interim and final compensation for services
rendered and reimbursement of expenses. The Bankruptcy Court will review and
determine all applications for compensation for services rendered and
reimbursement of costs.
ARTICLE IV
TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWINC AND THE SWINC SUBSIDIARIES
A. Unclassified SWINC Claims
1. SWINC Administrative Claims
Each holder of an Allowed SWINC Administrative
Claim shall receive in full satisfaction, settlement, release and discharge of
and in exchange for such Allowed SWINC Administrative Claim (a) Cash equal to
the unpaid portion of such Allowed SWINC Administrative Claim or (b) such
other treatment as to which the SWINC Plan Administrator and such holder shall
have agreed upon in writing.
2. SWINC Priority Tax Claims
Each holder of an Allowed SWINC Priority Tax Claim
shall be entitled to receive on account of such Allowed SWINC Priority Tax
Claim, in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed SWINC Priority Tax Claim, (i) equal Cash payments
made on the last Business Day of every three-month period following the
Effective Date, over a period not exceeding six years after the assessment of
the tax on which such Claim is based, totaling the principal amount of such
Claim plus simple interest on any outstanding balance from the Effective Date
calculated at the interest rate available on ninety (90) day United States
Treasuries on the Effective Date, (ii) a single Cash payment to be made on the
Effective Date or as soon as practicable thereafter in an amount equivalent to
the amount of such Allowed Priority Tax Claim, or (iii) such other treatment
as to which the SWINC Plan Administrator and such holder shall have agreed
upon in writing.
B. Unimpaired Classes of SWINC Claims
1. Class 1A: SWINC Secured Claims
(A) Class 1A.1: SWE&C Setoff Claim
On the Effective Date the Class 1A.1: SWE&C Setoff
Claim held by the Consolidated SWE&C Estate shall be deemed offset against the
Class 7B: SWINC Intercompany Claim by the Consolidated SWINC Estate resulting
in a net Allowed Class 7B: SWINC Intercompany Claim held by the Consolidated
SWINC Estate against the Consolidated SWE&C Estate in the approximate amount
of $20 million. As a result, the Allowed Class 1A: SWE&C Setoff Claim shall be
deemed satisfied in full.
(B) Class 1A.2: SWINC Miscellaneous Secured Claims
On the Effective Date, each holder of an Allowed
Class 1A.2: Miscellaneous Secured Claim shall receive in full satisfaction,
settlement, release and discharge of and in exchange for such Allowed Class
1A.2: SWINC Miscellaneous Secured Claim (a) Cash equal to the unpaid portion
of the Allowed Class 1A.2: SWINC Miscellaneous Secured Claim or (b) such
treatment as the SWINC Plan Administrator and such holder shall have agreed
upon in writing.
2. Class 2A: SWINC Other Priority Claims
Each holder of an Allowed Class 2A SWINC Other
Priority Claim shall receive in full satisfaction, settlement, release and
discharge of and in exchange for such Allowed Class 2A SWINC Other Priority
Claim (a) Cash equal to the unpaid portion of such Allowed Class 2A SWINC
Other Priority Claim or (b) such other treatment as to which the SWINC Plan
Administrator and such holder shall have agreed upon in writing.
C. Impaired Classes of SWINC Claims and Interests
1. Class 3A: SWINC Asbestos Claims
As of the Effective Date, liability, if any, for
all Asbestos Claims against SWINC or the SWINC Subsidiaries shall be
automatically and without further act or deed be deemed assumed by and shall
be the sole responsibility of the Asbestos Trust. Each holder of an Allowed
Class 3A: SWINC Asbestos Claim shall receive in full satisfaction, settlement,
release and discharge of an in exchange for such Allowed Class 3A: SWINC
Asbestos Claim (a) its Pro Rata share of the Asbestos Trust Assets set forth
in Article VII.M., subject to the terms and conditions of the Asbestos Trust
Agreement or (b) such other treatment as to which the Asbestos Trustee and the
holder of such Allowed Class 3A: SWINC Asbestos Claim shall have agreed upon
in writing.
Under the Third Joint Plan, Allowed Class 3A: SWINC
Asbestos Claims are characterized as impaired because the Proponents are
unable to determine whether the Available Asbestos Trust Cash plus any
Insurance Proceeds with respect to a specific Allowed Class 3A: SWINC Asbestos
Claim will be adequate to pay all Allowed Class 3A: SWINC Asbestos Claims in
full. In over 15 years of liquidating Asbestos Claims, the Asbestos Insurance
Coverage available to the Debtors has been more than adequate to satisfy such
claims. Under a pre-petition arrangement with the Asbestos Insurance Carriers,
the Debtors also agreed to contribute a certain percentage towards the
liquidation and indemnification of Asbestos Claims. In addition, SWEC entered
into the Weitz & Luxenberg Agreements. The Debtors will assume the Weitz &
Luxenberg Agreements in connection with the Third Joint Plan. To date, the
amount of cash funds paid out by the Debtors in connection with Asbestos
Claims is less than the amount to be contributed by the Debtors to the
Asbestos Trust. The Proponents also believe that Asbestos Claims, if any, are
Claims properly asserted only against the Debtors in the Consolidated SWE&C
Estate and that there will be no Allowed Asbestos Claims at the Consolidated
SWINC Estate. The Proponents believe, therefore, based on the Debtors'
historical liability for Asbestos Claims and an understanding of the Asbestos
Insurance Coverage, that the holder of Class 3A: Allowed Asbestos claims will
receive from the Available Asbestos Trust Cash and the Insurance Proceeds at
least the same percentage recovery as they would receive if they held Allowed
Claims in Class 5A: SWINC General Unsecured Claims and as much s the holder
would be entitled to under the Weitz & Luxenberg Agreements. Accordingly, the
Proponents of the Third Joint Plan have characterized the Class 3A: SWINC
Asbestos Claims as impaired and seek a vote of the Class 3A to bind all
members of Class 3A: SWINC Asbestos Claims to the treatment of such Claims
proposed in the Third Joint Plan. In the event that the Proponents are unable
to confirm the Third Joint Plan with the Class 3A: SWINC Asbestos Claims, the
Proponents reserve their right to modify the Third Joint Plan to seek
confirmation of a Third Joint Plan wherein the Class 3A: SWINC Asbestos Claims
are combined with and treated the same as Class 5A: SWINC General Unsecured
Claims.
2. Class 4A: SWINC Convenience Claims
On the Effective Date, each holder of a Class 5A:
SWINC General Unsecured Claim that elects to be treated as a holder of a Class
4A: SWINC Convenience Claim shall receive in full satisfaction, release and
discharge of and in exchange for such Class 5A: SWINC General Unsecured Claim,
the lesser of $1,000 or 50% of such holder's Allowed Class 5A: SWINC General
Unsecured Claim. Only holders of Class 5A: SWINC General Unsecured Claims who
vote in favor of the Third Joint Plan may elect to have their claim treated as
a Class 4A: SWINC Convenience Claim.
3. Class 5A: SWINC General Unsecured Claims
On the Effective Date, each holder of an Allowed
Class 5A: SWINC General Unsecured Claim shall receive its Pro Rata share of
the Initial Class 5A Distribution Amount. On each ensuing Semi-Annual
Distribution Date, each holder of an Allowed Class 5A: SWINC General Unsecured
Claim shall receive its Pro Rata share of the Semi-Annual Class 5A
Distribution Amount.
4. Class 6A: SWINC Intraestate Claims
In connection with, and as a result of, the
substantive consolidation of SWINC and the SWINC Subsidiaries into the
Consolidated SWINC Estate, all Class 6A: SWINC Intraestate Claims shall be
deemed waiver, released and cancelled and the holders of Class 6A Consolidated
SWINC Intraestate Claims shall not be entitled to and shall not receive or
retain any property or interest on account of such Claims.
5. Class 7A: SWINC Subordinated Claims
Upon the payment in full of the Allowed Class 4A:
SWINC Convenience Claims and the Allowed Class 5A: SWINC General Unsecured
Claims or as son thereafter as is practicable, each holder of an Allowed Class
7A: SWINC Subordinated Claim shall receive its Pro Rata share of the Initial
Class 7A Distribution Amount, if any. On each ensuing Semi-Annual Distribution
Date, each holder of an Allowed Class 7A: SWINC Subordinated Claim shall
receive its Pro Rata share of the Semi-Annual Class 7A Distribution Amount.
6. Class 8A: SWINC Securities Claims
Upon the payment in full of Allowed Class 4A: SWINC
Convenience Class Claims, Allowed Class 5A: SWINC General Unsecured Claims,
and Allowed Class 7A: SWINC Subordinated Claims, each holder of an Allowed
Class 8A: SWINC Securities Claim (less any insurance proceeds actually
received and retained by such holder in respect of such Allowed Class 8A:
SWINC Securities Claim) shall receive its Pro Rata share (as diluted by
Allowed Class 9A: SWINC Equity Interests) of (i) the remaining Available Cash
in the SWINC Disputed Claims Reserve and (ii) any amounts remaining that were
paid to the SWINC Plan Administrator as a liquidation preference with respect
to the SWINC New Series A Preferred Stock after all Allowed Class 4A: SWINC
Convenience Class Claims, Allowed Class 5A: SWINC General Unsecured Claims and
Allowed Class 7A: SWINC Subordinated Claims have been satisfied. On each
ensuing Semi-Annual Distribution Date, each holder of an Allowed Class 8A:
SWINC Securities Claim shall receive its Pro Rata share (as diluted by Allowed
Class 9A: SWINC Equity Interests) of the remaining Available Cash in the SWINC
Disputed Claims Reserve and remaining Available Cash paid to the SWINC Plan
Administrator as the liquidation preference with respect to the SWINC New
Series A Preferred Stock. Upon receipt by the holder of an Allowed Class 8A:
SWINC Securities Claim of any amounts distributed under the Third Joint Plan
in respect of such claim, such holder shall be deemed to have assigned to the
SWINC Plan Administrator all rights of the holder to recover such amounts from
the applicable insurer.
7. Class 9A: SWINC Equity Interests
In the event that Class 9A: SWINC Equity Interests
vote to accept the Third Joint Plan, then on the Effective Date, or as soon
thereafter as practicable, each holder of an Allowed SWINC Equity Interest
(i.e., Old Common Stock as of the Equity Voting Record Date) that votes to
accept the Third Joint Plan shall receive $.12 per share of Old Common Stock
held by such holder from the Equity Settlement Fund on account of Maine
Yankee's contribution to the Equity Settlement Fund from the Initial Maine
Yankee Distribution as provided in Article XIII.G of the Third Joint Plan. In
addition, once Federal has received the Minimum Federal Distribution, Federal
shall pay its contribution to the Equity Settlement Fund, and as soon
thereafter as is practicable, each holder of an Allowed SWINC Equity Interest
that votes to accept the Third Joint Plan shall receive $.50 per share of Old
Common Stock held by such holder from the Equity Settlement Fund on account of
Federal's contribution to the Equity Settlement Fund from the Minimum Federal
Distribution. The Equity Settlement Fund shall be administered by the
Consolidated SWINC Estate Governing Board. In addition, upon the payment in
full of the Allowed Class 5A: SWINC General Unsecured Claims, the Allowed
Class 4A: SWINC Convenience Class Claims, and the Allowed Class 7A: SWINC
Subordinated Claims, each holder of an Allowed Class 9A: SWINC Equity Interest
shall receive its Pro Rata share (as may be diluted by Allowed Class 8A: SWINC
Securities Claims) of (i) the remaining Available Cash in the SWINC Disputed
Claims Reserve and (ii) any amounts remaining that were paid to the SWINC Plan
Administrator as a liquidation preference with respect to the SWINC New Series
A Preferred Stock after all Allowed Class 4A: SWINC Convenience Class Claims,
Allowed Class 5A: SWINC General Unsecured Claims and Allowed Class 7A: SWINC
Subordinated Claims have been satisfied. On each ensuing Semi-Annual
Distribution Date, each holder of an Allowed Class 9A: SWINC Equity Interest
shall receive its Pro Rata share (as may be diluted by Allowed Class 8A: SWINC
Securities Claims) of the remaining Available Cash paid to the SWINC Plan
Administrator as the remaining liquidation preference with respect to the
SWINC New Series A Preferred Stock.
In the event that Class 9A: SWINC Equity Interests
vote to reject the Third Joint Plan, then, upon the payment in full of the
Allowed Class 5A: SWINC General Unsecured Claims, the Allowed Class 4A: SWINC
Convenience Class Claims, and the Allowed Class 7A: SWINC Subordinated Claims,
each holder of an Allowed Class 9A: SWINC Equity Interest shall receive its
Pro Rata share (as may be diluted by Allowed Class 8A: SWINC Securities
Claims) of (i) the remaining Available Cash in the SWINC Disputed Claims
Reserve and (ii) any amounts remaining that were paid to the SWINC Plan
Administrator as a liquidation preference with respect to the SWINC New Series
A Preferred Stock after all Allowed Class 4A: SWINC Convenience Class Claims,
Allowed Class 5A: SWINC General Unsecured Claims and Allowed Class 7A: SWINC
Subordinated Claims have been satisfied. On each ensuing Semi-Annual
Distribution Date, each holder of an Allowed Class 9A: SWINC Equity Interest
shall receive its Pro Rata share (as may be diluted by Allowed Class 8A: SWINC
Securities Claims) of the remaining Available Cash paid to the SWINC Plan
Administrator as the remaining liquidation preference with respect to the
SWINC New Series A Preferred Stock.
On the Effective Date, all Old Common Stock and Old
Common Stock Options in SWINC will be canceled.
8. Class 10A: SWINC Subsidiary Interests
In connection with, and as a result of, the
substantive consolidation of SWINC and the SWINC Subsidiaries into the
Consolidated SWINC Estate, all Interests in the SWINC Subsidiaries shall be
deemed cancelled as of the Effective Date and the holders of Class 10A: SWINC
Subsidiary Interests shall not be entitled to and shall not receive or retain
any property or interest on account of such Interests.
D. Special Provision Regarding Unimpaired Claims
Except as otherwise provided in the Third Joint Plan,
nothing shall affect the rights, claims or defenses, whether legal or
equitable, of SWINC, any SWINC Subsidiary or the SWINC Plan Administrator with
respect to legal and equitable defenses to setoffs or recoupments against
Unimpaired Claims.
ARTICLE V
TREATMENT OF CLAIMS AGAINST AND INTERESTS
IN SWE&C AND THE SWE&C SUBSIDIARIES
A. Unclassified SWE&C Claims
1. SWE&C Administrative Claims
On, or as soon as reasonably practicable afer, the
later of (i) the Effective Date or (ii) the First Semi-Annual Distribution
Date after an Administrative Claim becomes an Allowed SWE&C Administration
Claim, each holder of an Allowed SWE&C Administrative Claim shall receive a
beneficial interest in the SWE&C Liquidating Trust entitling such holder to
receive in full satisfaction, release and discharge of and in exchange for
such Allowed SWE&C Administrative Claim (a) Cash equal to the unpaid portion
of such Allowed SWE&C Administrative Claim or (b) such other treatment as to
which SWE&C and/or the SWE&C Liquidating Trustee and such holder shall have
agreed upon in writing.
2. SWE&C Priority Tax Claims
Each holder of an Allowed SWE&C Priority Tax Claim,
at the sole option of the SWE&C Liquidating Trustee, shall be entitled to
receive a beneficial interest in the SWE&C Liquidating Trust entitling such
holder to receive in full satisfaction, release and discharge of and in
exchange for such Allowed Priority Tax Claim, (i) equal Cash payments made on
the last Business Day of every three-month period following the Effective
Date, over a period not exceeding six years after the assessment of the tax on
which such Claim is based, totaling the principal amount of such Claim plus
simple interest on any outstanding balance from the Effective Date calculated
at the interest rate available on ninety (90) day United States Treasuries on
the Effective Date, (ii) a single Cash payment to be made on the Effective
Date or as soon as practicable thereafter in an amount equivalent to the
amount of such Allowed SWE&C Priority Tax Claim, or (iii) such other treatment
as to which the SWE&C Liquidating Trustee and such holder shall have agreed
upon in writing.
B. Unimpaired Classes of SWE&C Claims
1. Class 1B: SWE&C Miscellaneous Secured Claims
On the Effective Date, each holder of an Allowed
Class 1B: SWE&C Miscellaneous Secured Claim shall receive either (a) Cash
equal to the unpaid portion of such Allowed SWE&C Miscellaneous Secured Claim
or (b) such other treatment as to which the SWE&C Liquidating Trustee and the
holder of such Allowed Class 1B: SWE&C Miscellaneous Secured Claim agree to in
writing.
2. Class 2B: SWE&C Other Priority Claims
Each holder of an Allowed Class 2B: SWE&C Other
Priority Claim shall receive in full satisfaction, settlement, release and
discharge of and in exchange for such Allowed Class 2B: SWE&C Other Priority
Claim either (a) Cash equal to the unpaid portion of such Allowed Class 2B:
SWE&C Other Priority Claim or (b) such other treatment as to which the SWE&C
Liquidating Trustee and the holder of such Allowed SWE&C Other Priority Claim
shall have agreed upon in writing.
C. Impaired Classes of SWE&C Claims and Interests
1. Class 3B: SWE&C Asbestos Claims
As of the Effective Date, liability, if any, for
all Asbestos Claims against SWE&C or the SWE&C Subsidiaries shall be
automatically and without further act or deed assumed by and shall be the sole
responsibility of the Asbestos Trust. Each holder of an Allowed Class 3B:
SWE&C Asbestos Claim shall receive in full satisfaction, settlement, release
and discharge of an in exchange for its Allowed Class 3B: SWE&C Asbestos Claim
(a) its Pro Rata share of the Asbestos Trust Assets set forth in Article
VII.M., 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 Third Joint Plan, Allowed Class 3B: SWE&C
Asbestos Claims are characterized as impaired because the Proponents are
unable to determine whether the Available Asbestos Trust Cash plus any
Insurance Proceeds with respect to a specific Allowed Class 3B: SWE&C Asbestos
Claim will be adequate to pay all Allowed Class 3B: SWE&C Asbestos Claims in
full. In over 15 years of liquidating Asbestos Claims, the Asbestos Insurance
Coverage available to the Debtors has been more than adequate to satisfy such
claims. Under a pre-petition arrangement with the Asbestos Insurance Carriers,
the Debtors also agreed to contribute a certain percentage towards the
liquidation and indemnification of Asbestos Claims. In addition, SWEC entered
into the Weitz & Luxenberg Agreements. The Debtors will assume the Weitz &
Luxenberg Agreements in connection with the Third Joint Plan. To date, the
amount of cash funds paid out by the Debtors in connection with Asbestos
Claims is less than the amount to be contributed by the Debtors to the
Asbestos Trust. The Proponents believe, therefore, based on the Debtors'
historical liability and an understanding of the Asbestos Insurance Coverage,
that the holder of Class 3B Allowed Asbestos claims will receive from the
Available Asbestos Trust Cash and the Insurance Proceeds at least the same
percentage recovery as they would receive if they held Allowed Claims in Class
5B General Unsecured Claims and as much as the holder would be entitled to
under the Weitz & Luxenberg Agreements. Accordingly, the Proponents of the
Third Joint Plan have characterized the Class 3B Asbestos Claims as impaired
and seek a vote of the Class 3B to bind all members of Class 3B: SWE&C
Asbestos claims to the treatment of such Claims proposed in the Third Joint
Plan. In the event that the Proponents are unable to confirm the Third Joint
Plan with the Class 3B: SWE&C Asbestos Claims, the Proponents reserve their
right to modify the Third Joint Plan to seek confirmation of a Third Joint
Plan wherein the Class 3B: SWE&C Asbestos Claims are combined with and treated
the same as Class 5B: SWE&C General Unsecured Claims.
2. Class 4B: SWE&C Convenience Claims
On the Effective Date, each holder of a Class 5B:
SWE&C General Unsecured Claim that elects to be treated in Class 4B shall
receive in full satisfaction, release and discharge of and in exchange for
such Class 5B: SWE&C General Unsecured Claim, the lesser of $1,000 or 50% of
such holder's Allowed Class 5B: SWE&C General Unsecured Claim. Only holders of
Class 5B: SWE&C General Unsecured Claims who vote in favor of the Third Joint
Plan may elect to have their claim treated as a Class 4B: SWE&C Convenience
Claim.
3. Class 5B: SWE&C General Unsecured Claims
On, or as soon as reasonably practicable after, the
later of (i) the Effective Date or (ii) the first Semi-Annual Distribution
Date after such Class 5B: SWE&C General Unsecured Claim becomes an Allowed
Class 5B: SWE&C General Unsecured Claim, each holder of an Allowed Class 5B:
SWE&C General Unsecured Claim shall receive a beneficial interest in the SWE&C
Liquidating Trust entitling such holder to receive in full satisfaction,
release and discharge of and in exchange for such Allowed Class 5B: SWE&C
General Unsecured Claim its Pro Rata share of the Semi-Annual Class 5B
Distribution Amount.
4. Class 6B: SWE&C Intraestate Claims
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries into the
Consolidated SWE&C Estate, all Class 6B: SWE&C Intraestate Claims shall be
deemed eliminated and the holders of Class 6B: SWE&C Intraestate Claims shall
not be entitled to and shall not receive or retain any property or interest on
account of such Claims.
5. Class 7B: SWINC Intercompany Claims
Holders of Class 7B: SWINC Intercompany Claims
shall not receive or retain any property or interest on account of such
Claims.
6. Class 8B: SWE&C Subordinated Claims
Holders of Allowed Class 8B: SWE&C Subordinated
Claims shall not receive or retain any distribution on account of such Class
8B: SWE&C Subordinated Claim.
7. Class 9B: SWE&C Subsidiary Interests
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries, on the
Effective Date or such other date set by an order of the Court, all Interests
in the SWE&C Subsidiaries shall be eliminated and the holders of Class 9B:
SWE&C Subsidiary Interests shall not be entitled to and shall not receive or
retain any property or interest on account of such Interests.
8. Class 10B: SWE&C Interests
In connection with, and as a result of, the
substantive consolidation of SWE&C and the SWE&C Subsidiaries, on the
Effective Date or such other date set by an order of the Court, all Interests
in SWE&C shall be eliminated and the holders of Class 10B: SWE&C Interests
shall not be entitled to and shall not receive or retain any property or
interest on account of such Interests.
D. Special Provision Regarding Unimpaired Claims
Except as otherwise provided in the Third Joint Plan,
nothing shall affect the rights, claims or defenses, whether legal and
equitable, of SWE&C, any SWE&C Subsidiary or the SWE&C Liquidating Trustee,
with respect to any Unimpaired Claims, including, but not limited to, all
rights with respect to legal and equitable defenses to setoffs or recoupments
against Unimpaired Claims.
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE THIRD JOINT PLAN
A. Impaired Classes of Claims and Interests Entitled to Vote
Subject to Articles VI.C and VI.D below, Claimholders and
Interestholders in each Impaired Class of Claims or Interests are entitled to
vote as a class to accept or reject the Third Joint Plan.
B. Acceptance by an Impaired Class
In accordance with section 1126(c) of the Bankruptcy Code
and except as provided in section 1126(e) of the Bankruptcy Code, an Impaired
Class of Claims has accepted the Third Joint Plan if the Third Joint Plan is
accepted by the holders of at least two-thirds (2/3) in dollar amount and more
than one-half (1/2) in number of the Allowed Claims of such Class that have
timely and properly voted to accept the Third Joint Plan.
In accordance with section 1126(d) of the Bankruptcy Code
and except as provided in section 1126(e) of the Bankruptcy Code, an Impaired
Class of Interests has accepted the Third Joint Plan if the holders of at
least two-thirds (2/3) in amount of the Allowed Interests of such Class have
timely and properly voted to accept the Third Joint Plan.
C. Unimpaired Classes Conclusively Presumed to Accept Third
Joint Plan
1. SWINC Classes
Classes 1A and 2A are Unimpaired by the Third Joint
Plan. Under section 1126(f) of the Bankruptcy Code, such Claimholders are
conclusively presumed to accept the Third Joint Plan, and the votes of such
Claimholders will not be solicited.
2. SWE&C Classes
Classes 1B and 2B are Unimpaired by the Third Joint
Plan. Under section 1126(f) of the Bankruptcy Code, such Claimholders are
conclusively presumed to accept the Third Joint Plan, and the votes of such
Claimholders will not be solicited.
D. Classes Deemed to Reject Third Joint Plan
1. SWINC Classes
Claimholders in Class 6A and Interestholders in
Class 10A are not entitled to receive or retain any property under the Third
Joint Plan. Under section 1126(g) of the Bankruptcy Code, Class 6A
Claimholders and Class 10A Interestholders are deemed to reject the Third
Joint Plan, and the votes of such Interestholders or Claimholders will not be
solicited.
2. SWE&C Classes
Claimholders in Classes 6B, 7B and 8B and
Interestholders in Class 9B and 10B are not entitled to receive or retain any
property under the Third Joint Plan. Under section 1126(g) of the Bankruptcy
Code, Classes 6B, 7B and 8B Claimholders and Class 9B and 10B Interestholders
are deemed to reject the Third Joint Plan, and the votes of such
Interestholders or Claimholders will not be solicited.
E. Summary of Classes Voting on the Third Joint Plan
1. SWINC Classes
As a result of the provision of Article IV.C of
this Third Joint Plan, the votes of holders of Claims in Classes 3A, 4A, 5A,
7A, and 8A and Interests in Class 9A will be solicited with respect to this
Third Joint Plan.
2. SWE&C Classes
As a result of the provision of Article V.C of this
Third Joint Plan, the votes of holders of Claims in Classes 3B, 4B and 5B will
be solicited with respect to this Third Joint Plan.
F. Confirmation Pursuant to Section 1129(b) of the
Bankruptcy Code
To the extent that any Impaired Class rejects the Third Joint Plan or
is deemed to have rejected the Third Joint Plan, the Debtors request
confirmation of the Third Joint Plan, as it may be modified from time to time,
under section 1129(b) of the Bankruptcy Code. The Debtors reserve the right to
alter, amend, modify, revoke or withdraw the Third Joint Plan or any Plan
Exhibit, including to amend or modify it to satisfy the requirements of
section 1129(b) of the Bankruptcy Code, if necessary.
ARTICLE VII
MEANS FOR IMPLEMENTATION OF THE THIRD JOINT PLAN
A. Substantive Consolidation
Pursuant to Bankruptcy Rule 9019 and in consideration for the
distributions and other benefits provided under the Third Joint Plan, the
provisions of the Third Joint Plan will constitute a good faith compromise and
settlement of all claims or controversies relating to the issue of substantive
consolidation and the Substantive Consolidation Litigation. Accordingly, this
Third Joint Plan shall serve as, and shall be deemed to be, a motion for entry
of an order pursuant to Bankruptcy Rule 9019 (i) substantively consolidating
the Estates of SWINC and the SWINC Subsidiaries and (ii) substantively
consolidating the Estates of SWE&C and the SWE&C Subsidiaries. As set forth
more fully in the Disclosure Statement, the Proponents believe that such a
settlement and compromise is justified by administrative, substantive and
equitable reasons.
1. Consolidation of SWINC and the SWINC Subsidiaries
On the Effective Date, the Estates of SWINC and the
SWINC Subsidiaries shall be substantively consolidated as follows: (i) the
SWINC Subsidiaries shall be merged with and into SWINC, with the surviving
corporation being Reorganized SWINC, (ii) all Intercompany Claims by, between
and among SWINC and the SWINC Subsidiaries shall be forgiven and eliminated,
(iii) all assets and liabilities of the SWINC Subsidiaries shall be merged or
treated as if they were merged with the assets and liabilities of SWINC, (iv)
any obligation of SWINC or one of the SWINC Subsidiaries and all guarantees
thereof by SWINC or one of the SWINC Subsidiaries shall be deemed to be one
obligation of SWINC, and (v) each Claim filed or to be filed against SWINC or
a SWINC Subsidiary shall be deemed filed only against SWINC and shall be
deemed a single Claim against and a single obligation of SWINC. On the
Effective Date, and in accordance with the terms of the Third Joint Plan and
the consolidation of the assets and liabilities of SWINC and the SWINC
Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWINC or the SWINC Subsidiaries as to the obligations of
SWINC or one of the SWINC Subsidiaries shall be released and of no further
force and effect.
2. Consolidation of SWE&C and the SWE&C Subsidiaries
The Third Joint Plan contemplates and is also
predicated upon the substantive consolidation of the Estates of SWE&C and the
SWE&C Subsidiaries for the purposes of all actions associated with
confirmation and consummation of the Third Joint Plan. On the Effective Date,
the Estates of SWE&C and the SWE&C Subsidiaries shall be substantively
consolidated as follows: (i) all assets and liabilities of the SWE&C
Subsidiaries shall be merged or treated as if they were merged with the assets
and liabilities of SWE&C, (ii) all Intercompany Claims by, between and among
SWE&C and the SWE&C Subsidiaries shall be forgiven and eliminated, (iii) any
obligation of SWE&C or one of the SWE&C Subsidiaries and all guarantees
thereof by SWE&C or one of the SWE&C Subsidiaries shall be deemed to be one
obligation of SWE&C, and (iv) each Claim filed or to be filed against SWE&C
and/or a SWE&C Subsidiary shall be deemed filed only against SWE&C and shall
be deemed a single Claim against and a single obligation of SWE&C. On the
Effective Date, and in accordance with the terms of the Third Joint Plan and
the consolidation of the assets and liabilities of SWE&C and the SWE&C
Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWE&C or one of the SWE&C Subsidiaries as to the
obligations of SWE&C or one of the SWE&C Subsidiaries shall be released and of
no further force and effect.
B. Merger of Entities
On the Effective Date or as soon thereafter as practicable,
(a) each of the SWINC Subsidiaries shall be merged or deemed merged with and
into SWINC and (b) the Chapter 11 Cases of the SWINC Subsidiaries shall be
closed, following which any and all proceedings that could have been brought
or otherwise commenced in the Chapter 11 Case of any of the SWINC Subsidiaries
shall be brought or otherwise commenced in SWINC's Chapter 11 Case.
On the Effective Date or as soon thereafter as practicable,
(a) each of the SWE&C Subsidiaries shall be deemed merged with and into SWE&C
and (b) the Chapter 11 Cases of the SWE&C Subsidiaries shall be closed,
following which any and all proceedings that could have been brought or
otherwise commenced in the Chapter 11 Case of any of the SWE&C Subsidiaries
shall be brought or otherwise commenced in SWE&C's Chapter 11 Case.
The foregoing merger of entities shall be exempt from any
tax under applicable state or federal law as set forth in Article VII.U of the
Third Joint Plan.
C. Continued Corporate Existence of Reorganized SWINC
Reorganized SWINC shall emerge on the Effective Date out of
the Consolidated SWINC Estate, in accordance with the laws of the State of
Delaware and pursuant to the certificate of incorporation and by-laws of SWINC
in effect prior to the Effective Date, as amended under the Third Joint Plan.
Pursuant to the Amended Certificate of Incorporation and By-Laws of
Reorganized SWINC, Reorganized SWINC will be authorized to engage in any
lawful activity for which corporations may be organized under the Delaware
General Corporation Law. After emerging from bankruptcy, Reorganized SWINC's
business operations will consist of the management of the Pension Plan,
including any efforts in which Reorganized SWINC may terminate the Pension
Plan or transfer its sponsorship in accordance with applicable law. Although
Reorganized SWINC will be fully authorized to engage in other business
operations and management intends to evaluate opportunities as, when and if
they arise, Reorganized SWINC has no present intention of engaging in business
operations, will likely dissolve pursuant to the Delaware General Corporations
Law within two years following confirmation of the Third Joint Plan.
D. Dissolution of SWE&C and the SWE&C Subsidiaries
On the Effective Date or as soon thereafter as the SWE&C
Liquidating Trustee determines is appropriate, SWE&C and the SWE&C
Subsidiaries shall be dissolved. If necessary or appropriate, the SWE&C
Liquidating Trustee shall file a certificate of dissolution for SWE&C and/or
the SWE&C Subsidiaries and shall take all other actions necessary or
appropriate to effect the dissolution of SWE&C and the SWE&C Subsidiaries
under applicable state law.
E. Certificate of Incorporation and By-laws of Reorganized SWINC
The certificate of incorporation and by-laws of SWINC shall
be amended as necessary to satisfy the provisions of the Third Joint Plan and
the Bankruptcy Code. The certificate of incorporation of Reorganized SWINC
shall be amended to, among other things: (a) authorize 1,000 shares of
Reorganized SWINC New Common Stock, $0.01 par value per share, (b) authorize
100 shares of Reorganized SWINC New Series A Preferred Stock, $0.01 par value
per share, (c) authorize 100 shares of Reorganized SWINC New Series B
Preferred Stock, $0.01 par value per share, and (d) pursuant to Bankruptcy
Code section 1123(a)(6), add (i) a provision prohibiting the issuance of
non-voting equity securities, and, if applicable, (ii) a provision setting
forth an appropriate distribution of voting power among classes of equity
securities possessing voting power, including, in the case of any class of
equity securities having a preference over another class of equity securities
with respect to dividends, adequate provisions for the election of directors
representing such preferred class in the event of default in the payment of
such dividends. The forms of the documents relating to the Amended Certificate
of Incorporation and By-laws of Reorganized SWINC shall be in substantially
the form annexed to the Third Joint Plan as Plan Exhibits E and F,
respectively.
F. Directors and Officers of Reorganized SWINC
On the Effective Date, the members of the board of directors
and executive officers of SWINC and each of the SWINC Subsidiaries shall be
deemed to have resigned. From and after the Effective Date, the board of
directors of Reorganized SWINC shall consist of three (3) directors: (1) Mr.
James Carroll, who will serve as Chairman and President of Reorganized SWINC;
(2) a director designated by the Equity Committee; and (3) a director
designated by the SWE&C Liquidating Trust Advisory Board. The Directors of
Reorganized SWINC shall not receive compensation for their service on the
Reorganized SWINC Board but shall be entitled to reimbursement of the
reasonable and necessary expenses incurred by them in carrying out the purpose
of Reorganized SWINC.
G. Corporate Action
Each of the matters provided for under the Third Joint Plan
involving the corporate structure of the Debtors or corporate action to be
taken by or required of the Debtors shall, as of the Effective Date, be deemed
to have occurred and be effective as provided herein, and shall be authorized
and approved in all respects without any requirement or further action by
stockholders, creditors, or directors of the Debtors.
H. Cancellation of Securities, Instruments and Agreements
Evidencing Claims and Interests
Except as otherwise provided in the Third Joint Plan and in
any contract, instrument or other agreement or document created in connection
with the Third Joint Plan, on the Effective Date (a) the Old Securities and
any other note, bond, indenture, or other instrument or document evidencing or
creating any indebtedness or obligation of a Debtor shall be deemed cancelled,
and, in the case of the Old Securities, shall be retired and shall cease to
exist and (b) the obligations of the Debtors under any agreement, indenture or
certificate of designations governing the Old Securities and any other note,
bond, indenture or other instrument or document evidencing or creating any
indebtedness or obligation of a Debtor shall be deemed released.
I. Issuance of Reorganized SWINC New Common and Preferred Stock
On the Effective Date or as soon thereafter as practicable,
Reorganized SWINC shall issue for distribution in accordance with the terms of
the Third Joint Plan, (i)(A) the Reorganized SWINC New Series A Preferred
Stock to the SWINC Plan Administrator to be held for the benefit of Holders of
Allowed Claims and Interests in accordance with the terms of the Third Joint
Plan and the SWINC Plan Administrator Agreement and (B) the Reorganized SWINC
New Series B Preferred Stock to the SWE&C Liquidating Trustee to be held for
the benefit of Holders of Allowed Claims and Interests in accordance with the
terms of the Third Joint Plan and the SWE&C Liquidating Trust Agreement and
(ii) the Reorganized SWINC New Common Stock to the SWE&C Liquidating Trustee.
The issuance of Reorganized SWINC New Common Stock, Reorganized SWINC New
Series A Preferred Stock and Reorganized SWINC New Series B Preferred Stock
shall be exempt from registration under applicable securities laws pursuant to
Section 4(2) of the Securities Act. All such shares of Reorganized SWINC New
Common Stock, Reorganized SWINC New Series A Preferred Stock and Reorganized
SWINC New Series B Preferred Stock shall be, when issued pursuant to and in
accordance with the terms of the Third Joint Plan, duly authorized, validly
issued, fully paid and nonassessable.
Pursuant to the terms of the SWE&C Liquidating Trust
Agreement, the SWINC Plan Administrator Agreement and the securities
themselves, the SWE&C Liquidating Trustee and the SWINC Plan Administrator
have agreed not to transfer or otherwise dispose of the Reorganized SWINC New
Common Stock, the Reorganized SWINC New Series A Preferred Stock and the
Reorganized SWINC New Series B Preferred Stock, respectively. In no event will
the Reorganized SWINC New Common Stock be distributed to the beneficial owners
of the SWE&C Liquidating Trust and the shares of Reorganized SWINC New Common
Stock will not be deemed to be assets of the SWE&C Liquidating Trust.
Accordingly, none of the securities to be issued by Reorganized SWINC under
the Third Joint Plan will be transferrable.
J. Effectuating Documents; Further Transactions
The chairman of the Reorganized SWINC board of directors,
president, chief financial officer, or any other appropriate officer of
Reorganized SWINC shall be authorized to execute, deliver, file, or record
such contracts, instruments, release, and other agreements or documents, and
to take such actions as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Third Joint Plan. The
secretary or assistant secretary of Reorganized SWINC shall be authorized to
certify or attest to any of the foregoing actions.
The SWE&C Liquidating Trustee shall be authorized to
execute, deliver, file, or record such contracts, instruments, release, and
other agreements or documents, and to take such actions as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of the
Third Joint Plan. The secretary or assistant secretary appointed by the SWE&C
Liquidating Trustee shall be authorized to certify or attest to any of the
foregoing actions.
K. Consolidated SWINC Estate Governing Board
From and after the Effective Date, the Consolidated SWINC
Estate shall be governed by the Consolidated SWINC Estate Governing Board. The
Consolidated SWINC Estate Governing Board shall consist of three (3)
directors: (1) a director designated by Federal; (2) a director designated by
Maine Yankee; and (3) a director designated by the Equity Committee. The
Consolidated SWINC Estate Governing Board will, among other things, choose the
SWINC Plan Administrator, approve counsel for the resolution of claims that
are solely against the Consolidated SWINC Estate, and determine reasonable
compensation, if any, for directors to serve on the Consolidated SWINC Estate
Governing Board.
L. The SWINC Plan Administrator
1. Appointment
From and after the Effective Date, a Person
appointed by the Consolidated SWINC Estate Governing Board shall serve as the
SWINC Plan Administrator pursuant to the SWINC Plan Administrator Agreement
and the Third Joint Plan, until death, resignation, discharge or the
appointment of a successor SWINC Plan Administrator in accordance with the
SWINC Plan Administrator Agreement.
2. Rights, Powers and Duties of the Consoldiated
SWINC Estate and the SWINC Plan Administrator
The Consolidated SWINC Estate shall retain and have
all the rights, powers and duties necessary to carry out its responsibilities
under the Third Joint Plan. Except as otherwise provided in the Third Joint
Plan, the Confirmation Order, or in any document, instrument, release or other
agreement entered into in connection with the Third Joint Plan, such rights,
powers and duties, which shall be exercisable by the SWINC Plan Administrator
on behalf of the Consolidated SWINC Estate pursuant to the Third Joint Plan
and the SWINC Plan Administrator Agreement, shall include, among others:
(A) investing the Cash of the Consolidated SWINC
Estate, including, but not limited to, the Cash held in the Reserves in (i)
direct obligations of the United States of America or obligations of any
agency or instrumentality thereof which are guaranteed by the full faith and
credit of the United States of America; (ii) money market deposit accounts,
checking accounts, savings accounts or certificates of deposit, or other time
deposit accounts that are issued by a commercial bank or savings institution
organized under the laws of the United States of America or any state thereof;
or (iii) any other investments that may be permissible under (a) section 345
of the Bankruptcy Code or (b) any order of the Court entered in the Debtors'
Chapter 11 cases;
(B) calculating and paying all distributions to be made
under the Third Joint Plan, the SWINC Plan Administrator Agreement and other
orders of the Court to holders of Allowed Claims against and Interests in the
Consolidated SWINC Estate;
(C) employing, supervising and compensating
professionals retained to represent the interests of and serve on behalf of
the Consolidated SWINC Estate;
(D) objecting to Claims or Interests filed against the
Consolidated SWINC Estate;
(E) seeking estimation under section 502(c) of the
Bankruptcy Code of contingent or unliquidated claims filed against the
Consolidated SWINC Estate;
(F) seeking determination of tax liability of the
Consolidated SWINC Estate under section 505 of the Bankruptcy Code;
(G) exercising all powers and rights, and taking all
actions, contemplated by or provided for in the SWINC Plan Administrator
Agreement;
(H) voting the shares of Reorganized SWINC New Series B
Preferred Stock in connection with any matter submitted to a vote of such
stockholders of Reorganized SWINC;
(I) pursuing any and all rights under the insurance
policies of a Debtor providing coverage with respect to Insured Claims;
(J) taking any and all other actions necessary or
appropriate to implement or consummate this Third Joint Plan and the
provisions of the SWINC Plan Administrator Agreement.
3. Compensation of the SWINC Plan Administrator
The SWINC Plan Administrator shall be compensated
from the SWINC Operating Reserve pursuant to the terms of the SWINC Plan
Administrator Agreement, as it may be modified from time to time by the
Consolidated SWINC Estate Governing Board. Any professionals retained by the
SWINC Plan Administrator shall be entitled to reasonable compensation for
services rendered and reimbursement of expenses incurred from the SWINC
Operating Reserve. The payment of the fees and expenses of the SWINC Plan
Administrator and its retained professionals shall be made in the ordinary
course of business and shall not be subject to the approval of the Court.
4. Indemnification
SWINC, the SWINC Subsidiaries, the Consolidated
SWINC Estates and Reorganized SWINC shall, to the fullest extent permitted by
the applicable laws of the jurisdiction in which each such entity is
incorporated or otherwise organized, indemnify and hold harmless the SWINC
Plan Administrator (in his capacity as such) and the agents, representatives,
professionals and employees of the SWINC Plan Administrator (collectively the
"Indemnified Parties"), from and against and with respect to any and all
liabilities, losses, damages, claims, costs and expenses, including but not
limited to attorneys' fees arising out of or due to their actions or
omissions, or consequences of such actions or omissions, with respect to
SWINC, the SWINC Subsidiaries and their Estate(s) or the implementation or
administration of the Third Joint Plan and the Reorganized SWINC Plan
Administrator Agreement if the Indemnified Party acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of
SWINC, the SWINC Subsidiaries and their Estate(s), as the case may be, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe its conduct was unlawful. To the extent SWINC, the SWINC Subsidiaries,
their Estate(s) or Reorganized SWINC indemnifies and holds harmless the
Indemnified Parties as provided above, the legal fees and related costs
incurred by counsel to the SWINC Plan Administrator in monitoring and
participating in the defense of such claims giving rise to the right of
indemnification shall be paid out of the SWINC Operating Reserve. The
indemnification provisions of the SWINC Plan Administrator Agreement shall
remain available to and be binding upon any future SWINC Plan Administrator or
the estate of any decedent SWINC Plan Administrator and shall survive the
termination of the SWINC Plan Administrator Agreement.
5. Insurance
The SWINC Plan Administrator shall be authorized to
obtain all reasonably necessary insurance coverage for itself, its agents,
representatives, employees or independent contractors, SWINC, the SWINC
Subsidiaries, and the Consolidated SWINC Estate including, but not limited to,
coverage with respect to (i) any property that is or may in the future become
the property of the Consolidated SWINC Estate and (ii) the liabilities, duties
and obligations of the SWINC Plan Administrator and its agents,
representatives, employees or independent contractors under the SWINC Plan
Administrator Agreement (in the form of an errors and omissions policy or
otherwise), the latter of which insurance coverage may, at the sole option of
the SWINC Plan Administrator, remain in effect for a reasonable period (not to
exceed seven years) after the termination of the SWINC Plan Administrator
Agreement.
6. Authority to Object to Claims and Interests and to
Settle Disputed Claims
From and after the Effective Date, the SWINC Plan
Administrator shall be authorized (i) to object to Claims or Interests filed
solely against SWINC and the SWINC Subsidiaries and (ii) pursuant to
Bankruptcy Rule 9019(b) and section 105(a) of the Bankruptcy Code, to
compromise and settle Disputed Claims and Disputed Interests.
M. The Asbestos Trust
The Asbestos Trust is the result of a settlement and
compromise of disputes between the Proponents and the Asbestos Insurance
Carriers. On the Effective Date, and pursuant to the terms of the Asbestos
Trust Agreement, the Debtors shall transfer to the Asbestos Trust Cash in the
amount of $4.5 million and an Allowed Class 5B Claim in the amount of $1.0
million for distribution to holders of Allowed Asbestos Claims and to pay the
reasonable and necessary costs and expenses associated with administering the
Asbestos Trust, any litigation related to the liquidation, resolution,
settlement or compromise of the Asbestos Claims or any litigation related to
the resolution, settlement or compromise regarding Asbestos Insurance Issues.
On the Effective Date, and pursuant to the terms of the Asbestos Trust
Agreement, the Debtors shall transfer to the Asbestos Trustee all of their
rights with respect to, among other things, indemnification, contribution or
reimbursement under the insurance policies issued by the Asbestos Insurance
Carriers (but not the policies themselves) and all of their rights under any
other policies that provide coverage for Asbestos Claims (but not those
policies themselves), but only to the extent of such coverage under those
policies. Notwithstanding anything to the contrary herein, the Debtors or
their respective successors and assigns under this Third Joint Plan shall
retain any and all rights under policies issued by the Asbestos Insurance
Carriers or the policies providing coverage for Asbestos Claims with respect
to coverage for any Claims other than Asbestos Claims. The Asbestos Trust
shall remain in existence until dissolved by the Asbestos Trustee, and upon
termination, any remaining assets of the Asbestos Trust shall revert and be
paid over to the SWE&C Liquidating Trust.
N. The Asbestos Trustee
1. Appointment
From and after the Effective Date, Mr. James
Carroll shall serve as the Asbestos Trustee pursuant to the Third Joint Plan,
until death, resignation, discharge or the appointment of a successor Asbestos
Trustee. The Asbestos Trustee shall have and perform all duties,
responsibilities, rights and obligations set forth in the Asbestos Trust
Agreement.
2. Rights, Powers and Duties of the Asbestos Trustee
The Asbestos Trustee shall retain and have all the
rights, powers and duties necessary to carry out his or her responsibilities
under the Third Joint 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 Third Joint Plan and the Asbestos Trust
Agreement, shall include, among others:
(a) maintaining any Unclaimed Distribution Reserve for
the benefit of the holders of Allowed Asbestos Claims;
(b) investing Cash in the Asbestos Trust in (i) direct
obligations of the United States of America or obligations of any agency or
instrumentality thereof which are guaranteed by the full faith and credit of
the United States of America; (ii) money market deposit accounts, checking
accounts, savings accounts, certificates of deposit, or other time deposit
accounts that are issued by a commercial bank or savings institution organized
under the laws of the United States of America or any state thereof; or (iii)
any other investments that may be permissible under (x) section 345 of the
Bankruptcy Code or (y) any order of the Court entered in the Debtors' Chapter
11 Cases;
(c) calculating and paying of all distributions to be
made under the Third Joint 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 Insurance Carriers will receive timely notice of any Asbestos Claim
or demand including, without limitation, taking action to maintain the
corporate existence of one or more of the Debtors;
(k) entering into one or more coverage in place
agreements with the Asbestos Insurance Carriers on terms satisfactory to the
Trustee or taking other appropriate action with respect to insurance provided
by the Asbestos Insurance Carriers; and
(l) taking any actions necessary to ensure the
preservation of the Debtors' documents to the extent such documents may be
necessary to the defense of Asbestos Claims, including, without limitation,
the entry into long-term storage agreements with respect to such documents.
3. Compensation of the Asbestos Trustee
The Asbestos Trustee will be compensated at a rate
of $300 per hour. Any professionals retained by the Asbestos Trust shall be
entitled to reasonable compensation for services rendered and reimbursement of
expenses incurred from the Asbestos Trust. The payment of the fees and
expenses of the Asbestos Trustee and his retained professionals, if any, shall
be made in the ordinary course of business and shall not be subject to the
approval of the Court.
4. Indemnification
The Asbestos Trust shall, to the fullest extent
permitted by the laws of the State of Delaware, indemnify and hold harmless
the Asbestos Trustee (in his capacity as such) and the Asbestos Trustee's and
the Asbestos Trust's agents, representatives, professionals, and employees
(collectively, the "Indemnified Parties"), from and against and in respect to
any and all liabilities, losses, damages, claims, costs, and expenses,
including but not limited to attorneys' fees, arising out of or due to their
actions or omissions, or consequences of such actions or omissions, with
respect to the Asbestos Trust or the implementation or administration of the
Third Joint Plan and the Asbestos Trust Agreement, if the Indemnified Party
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Asbestos Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe its conduct
was unlawful. To the extent that the Asbestos Trust must indemnify and hold
harmless the Indemnified Parties as provided above, the legal fees and related
costs incurred by counsel to the Asbestos Trustee in monitoring and
participating in the defense of such claims giving rise to the right of
indemnification shall be paid out of the Asbestos Trust. The indemnification
provisions of the Asbestos Trust Agreement shall remain available to and be
binding upon any future Asbestos Trustee or the estate of any decedent
Asbestos Trustee and shall survive the termination of the Asbestos Trust
Agreement.
5. Insurance
The Asbestos Trustee shall be authorized to obtain
all reasonably necessary insurance coverage for himself, his agents,
representatives, employees, independent contractors, and the Asbestos Trust,
including, but not limited to, coverage with respect to (i) any property that
is or may in the future become the property of the Asbestos Trust and (ii) the
liabilities, duties, and obligations of the Asbestos Trustee and his agents,
representatives, employees, independent contractors under the Asbestos Trust
Agreement (in the form of an errors and omissions policy or otherwise), the
latter of which insurance coverage may, at the sole option of the Asbestos
Trustee, remain in effect for a reasonable period (not to exceed five years)
after the termination of the Asbestos Trust Agreement.
The Debtors intend that the Asbestos Trust will be
treated as a "liquidating trust" within the meaning of Section 307.7701-4(d)
of the Tax Regulation. Accordingly, it is intended that the transfer of the
Asbestos Trust Assets to the Asbestos Trust shall be treated, for all income
tax purposes, as a deemed transfer of the Asbestos Trust Assets to the
beneficiaries of the Asbestos Trust for all income tax purposes, followed by a
deemed transfer of such assets by such beneficiaries to the Asbestos Trust.
The Asbestos Trust shall be considered a "grantor" trust, and the
beneficiaries of the Asbestos Trust shall be treated as the grantors and the
deemed owners of the Asbestos Trust.
6. Asbestos Insurance Policies
The Third Joint Plan shall not expand the scope of, the
amount of, or alter in any other way the Asbestos Insurance Carriers'
obligations under their policies. The Third Joint Plan shall not operate as a
waiver of certain proofs of claim filed by the Asbestos Insurance Carriers in
the Chapter 11 Cases, provided, however, that to the extent such Claims relate
to Asbestos Claims, the Asbestos Insurers' Claims are deemed satisfied in
full, except for claims by Travelers Insurance Company and its affiliates for
premiums under retrospectively rated insurance policies issued to the Debtors.
O. The SWE&C Liquidating Trust
1. Appointment of Trustee
From and after the Effective Date, a Person
appointed by the SWE&C Liquidating Trust Advisory Board shall serve as the
SWE&C Liquidating Trustee pursuant to the SWE&C Liquidating Trust Agreement
and the Third Joint Plan, until death, resignation, discharge or the
appointment of a successor SWE&C Liquidating Trustee in accordance with the
SWE&C Liquidating Trust Agreement. The SWE&C Liquidating Trustee shall have
and perform all duties, responsibilities, rights and obligations set forth in
the SWE&C Liquidating Trust Agreement, including resolving claims solely
against the Consolidated SWE&C Estate.
2. Transfer of SWE&C Liquidating Trust Assets to
the SWE&C Liquidating Trust
On the Effective Date, SWE&C, the SWE&C
Subsidiaries and their Estates shall transfer and shall be deemed to have
irrevocably transferred to the SWE&C Liquidating Trust, for and on behalf of
the beneficiaries of the SWE&C Liquidating Trust, the SWE&C Liquidating Trust
Assets.
3. The SWE&C Liquidating Trust
(A) Without any further action of the directors of
SWE&C or the SWE&C Subsidiaries, on the Effective Date, the SWE&C Liquidating
Trust Agreement, substantially in the form annexed hereto as Plan Exhibit C,
shall become effective. The SWE&C Liquidating Trustee shall accept the SWE&C
Liquidating Trust and sign the SWE&C Liquidating Trust Agreement on the
Effective Date and the SWE&C Liquidating Trust will then be deemed created and
effective.
(B) The SWE&C Liquidating Trustee shall have full
authority to take any steps necessary to administer the SWE&C Liquidating
Trust Agreement, including, without limitation, the duty and obligation (i) to
liquidate SWE&C Liquidating Trust Assets, (ii) to make distributions therefrom
to holders of Allowed Claims against SWE&C and the SWE&C Subsidiaries, (iii)
to maintain any Reserves on behalf of and for the benefit of the beneficiaries
of the SWE&C Liquidating Trust, (iv) to vote the shares of Reorganized SWINC
New Common Stock in connection with any matter submitted to a vote of the
stockholders of Reorganized SWINC, and (v) if authorized by the SWE&C
Liquidating Trust Advisory Board, to pursue and settle any Disputed Claims
solely against or Disputed Interests solely in SWE&C and the SWE&C
Subsidiaries. The SWE&C Liquidating Trustee shall not at any time, whether on
behalf of the SWE&C Liquidating Trust, SWE&C, the SWE&C Subsidiaries, or their
Estates, continue or engage in the conduct of trade or business, and no part
of the SWE&C Liquidating Trust or the proceeds, revenue or income therefrom
shall be used or disposed of by the SWE&C Liquidating Trustee in the
furtherance of any business.
(C) All costs and expenses associated with the
administration of the SWE&C Liquidating Trust, including those rights,
obligations and duties described in this Article VII.O of this Third Joint
Plan, shall be the responsibility of and paid by the SWE&C Liquidating Trust
from the SWE&C Liquidating Trust Assets.
(D) The SWE&C Liquidating Trustee may retain such law
firms, accounting firms, experts, advisors, consultants, investigators,
appraisers, auctioneers or other professionals as it may deem necessary
(collectively, the "SWE&C Liquidating Trustee Professionals"), in its sole
discretion, to aid in the performance of its responsibilities pursuant to the
terms of this Third Joint Plan including, without limitation, the liquidation
and distribution of SWE&C Liquidating Trust Assets.
(E) The Debtors intend that the SWE&C Liquidating Trust
will be treated as a "liquidating trust" within the meaning of Section
301.7701-4(d) of the Tax Regulations. Accordingly, it is intended that the
transfer of the SWE&C Liquidating Trust Assets to the SWE&C Liquidating Trust
shall be treated, for all income tax purposes, as a deemed transfer of the
SWE&C Liquidating Trust Assets to the beneficiaries of the SWE&C Liquidating
Trust for all income tax purposes, followed by a deemed transfer of such
assets by such beneficiaries to the SWE&C Liquidating Trust. The SWE&C
Liquidating Trust shall be considered a "grantor" trust, and the beneficiaries
of the SWE&C Liquidating Trust shall be treated as the grantors and the deemed
owners of the SWE&C Liquidating Trust.
(F) The SWE&C Liquidating Trustee shall be responsible
for filing all federal, state and local tax returns for the SWE&C Liquidating
Trust.
(G) The SWE&C Liquidating Trust shall retain any and
all rights under any insurance policies of a Debtor providing coverage with
respect to Insured Claims.
(H) The SWE&C Liquidating Trust shall terminate on the
later of (i) the tenth (10) anniversary of the Confirmation Date or (ii) the
distribution of all property in accordance with the terms of the SWE&C
Liquidating Trust Agreement.
4. Compensation of the SWE&C Liquidating Trustee
The SWE&C Liquidating Trustee shall be compensated
from the SWE&C Operating Reserve pursuant to the terms of the SWE&C
Liquidating Trust Agreement. Any professionals retained by the SWE&C
Liquidating Trustee shall be entitled to reasonable compensation for services
rendered and reimbursement of expenses incurred from the SWE&C Operating
Reserve, subject to the prior approval of the SWE&C Liquidating Trust Advisory
Board. The payment of the fees and expenses of the SWE&C Liquidating Trustee
and its retained professionals shall be made in the ordinary course of
business and shall not be subject to the approval of the Court.
5. The SWE&C Liquidating Trust Advisory Board
The SWE&C Liquidating Trust Advisory Board shall
comprise three (3) members selected by the Creditors' Committee prior to the
Confirmation Hearing. The members of the SWE&C Liquidating Trust Advisory
Board initially will be compensated under the same terms as they have been
compensated during the pendency of these Chapter 11 Cases or in accordance
with the SWE&C Liquidating Trust Agreement.
The SWE&C Liquidating Trustee shall consult
regularly with the SWE&C Liquidating Trust Advisory Board when carrying out
the purpose and intent of the SWE&C Liquidating Trust. Members of the SWE&C
Liquidating Trust Advisory Board shall not be entitled to compensation,
however they shall be entitled to reimbursement of the reasonable and
necessary expenses incurred by them in carrying out the purpose of the SWE&C
Liquidating Trust Advisory Board. Reimbursement of the reasonable and
necessary expenses of the members of the SWE&C Trust Advisory Board shall be
payable by the SWE&C Liquidating Trust.
(A) In the case of an inability or unwillingness of any
member of the SWE&C Trust Advisory Board to serve, such member shall be
replaced by designation of the remaining members of the SWE&C Trust Advisory
Board. If any position on the SWE&C Trust Advisory Board remains vacant for
more than thirty (30) days, such vacancy shall be filled within fifteen (15)
days thereafter by the designation of the SWE&C Liquidating Trustee without
the requirement of a vote by the other members of the SWE&C Trust Advisory
Board.
(B) Upon the certification by the SWE&C Liquidating
Trustee that all SWE&C Liquidating Trust Assets have been distributed,
abandoned or otherwise disposed of, the members of the SWE&C Liquidating Trust
Advisory Board shall resign their positions, whereupon they shall be
discharged from further duties and responsibilities.
(C) The SWE&C Liquidating Trust Advisory Board may, by
majority vote, authorize the SWE&C Liquidating Trustee to invest the corpus of
the SWE&C Liquidating Trust in prudent investments other than those described
in section 345 of the Bankruptcy Code.
(D) The SWE&C Liquidating Trust Advisory Board may
remove the SWE&C Liquidating Trustee in its discretion. In the event the
requisite approval is not obtained, the SWE&C Liquidating Trustee may be
removed by the Court for cause shown. In the event of the resignation or
removal of the SWE&C Liquidating Trustee, the SWE&C Liquidating Trust Advisory
Board shall, by majority vote, designate a person to serve as successor SWE&C
Liquidating Trustee.
(E) Notwithstanding anything to the contrary in this
Third Joint Plan, neither the SWE&C Liquidating Trust Advisory Board nor any
of its members, designees, counsel, financial advisors or any duly designated
agent or representative of any such party shall be liable for the act, default
or misconduct of any other member of the SWE&C Liquidating Trust Advisory
Board, nor shall any member be liable for anything other than such members'
own gross negligence or willful misconduct. The SWE&C Liquidating Trust
Advisory Board may, in connection with the performance of its duties, and in
its sole and absolute discretion, consult with its counsel, accountants or
other professionals, and shall not be liable for anything done or omitted or
suffered to be done in accordance with such advice or opinions. If the SWE&C
Liquidating Trust Advisory Board determines not to consult with its counsel,
accountants or other professional, it shall not be deemed to impose any
liability on the SWE&C Liquidating Trust Advisory Board, or its members and/or
designees.
(F) The SWE&C Liquidating Trust Advisory Board shall
govern its proceedings through the adoption of by-laws, which the SWE&C
Liquidating Trust Advisory Board may adopt by majority vote. No provision of
such by-laws shall supersede any express provision of the Third Joint Plan.
P. Interestate Oversight Board
From and after the Effective Date, a three (3) member board
shall be appointed to resolve Interestate Disputes. The Interestate Oversight
Board shall consist of: (1) a director designated by the Consolidated SWINC
Estate Governing Board, who shall not be the SWINC Plan Administrator (the
"SWINC Designee"); (2) a director designated by the SWE&C Liquidating Trust
Advisory Board, who shall not be the SWE&C Liquidating Trustee (the "SWE&C
Designee); and (3) a director agreed to by the SWINC Designee and the SWE&C
Designee (the "Joint Designee"). In the event that the SWINC Designee and the
SWE&C Designee cannot agree as to the appointment of the Joint Designee, each
will recommend two (2) independent nominees (i.e., individuals who hold no
interest in or claims against any of the Debtors or their affiliates) and the
Court shall appoint the Joint Designee.
The SWINC and SWE&C Designees on the Interestate Oversight
Board shall not receive compensation for their service on the Interestate
Oversight Board, although they shall be entitled to reimbursement of
reasonable and necessary expenses incurred by them in carrying out the purpose
of the Interestate Oversight Board. The Joint Designee shall be entitled to
compensation at such amounts agreed to by the Joint Designee and the other
Interestate Oversight Board members. Reimbursement of the reasonable and
necessary expenses of the members of the Interestate Oversight Board shall be
payable one-half from the Consolidated SWINC Estate and one-half from the
Consolidated SWE&C Estate. The Interestate Oversight Board shall have the
authority to resolve all Interestate Disputes. In the event that there is no
unanimity as to the resolution of any interestate dispute after 30 days, the
Joint Designee shall issue a final and binding resolution based on the facts,
equities and legal authorities. The Interestate Oversight Board shall have the
authority to choose counsel to defend against or pursue claims that affect
both estates, including, among other things, environmental litigation and
insurance matters, as set out more fully in the charter for the Interestate
Oversight Board attached hereto as Exhibit G.
Q. No Revesting of Assets
On or following the Effective Date, the property of the
Estates of SWINC and the SWINC Subsidiaries (except for any obligations and/or
reversionary interest in the Pension Plan, the rights to Cash in the amount of
$2 million) shall remain or become the property of the Consolidated SWINC
Estate and shall continue to be subject to the jurisdiction of the Court
following confirmation of the Third Joint Plan until distributed to holders of
Allowed Claims and Allowed Interests in accordance with the provisions of the
Third Joint Plan, the SWINC Plan Administrator Agreement, and the Confirmation
Order. The Consolidated SWINC Estate shall invest Cash in the amount of $2
million in Reorganized SWINC on the Effective Date, which cash shall be held
by Reorganized SWINC free and clear of all Claims and Interests, except as
specifically provided for in the Third Joint Plan. Reorganized SWINC shall
succeed SWINC as the "contributing sponsor" of the Pension Plan for all
purposes, including under ERISA section 4001(a)(13), and shall succeed SWINC
as the "employer" maintaining the Pension Plan for all purposes, including
under ERISA section 4044(d).
On or following the Effective Date, the property of the
Estates of SWE&C and the SWE&C Subsidiaries shall remain or become the
property of the SWE&C Liquidating Trust and shall continue to be subject to
the jurisdiction of the Court following confirmation of the Third Joint Plan
until distributed to holders of Allowed Claims and Allowed Interests in
accordance with the provisions of the Third Joint Plan, the SWE&C Liquidating
Trust Agreement, and the Confirmation Order.
R. Preservation of Rights of Action
Except as otherwise provided in the Third Joint Plan or the
Confirmation Order, or in any contract, instrument, release, indenture or
other agreement entered into in connection with the Third Joint Plan, in
accordance with Bankruptcy Code section 1123(b), the Consolidated SWINC Estate
and the SWE&C Liquidating Trust shall retain the Litigation Claims, including
but not limited to: (1) any claims against any person, company or entity that
provided or provides insurance to the Debtors for any failure to provide
contractual coverage, including, but not limited to: ACE Insurance Company
Ltd.; AIG; Genesis Insurance Company; Greenwich Insurance Company; Indian
Harbor Insurance Company; Kemper Insurance Company; Lloyd's of London;
National Union; Reliance Insurance; Royal; St. Paul Fire and Marine Insurance
Company; The Travelers Indemnity Company & Affiliates; XL Insurance Company
Ltd.; (2) any and all claims under the Arizona Missions insurance policies;
(3) any and all claims under the Debtors' excess coverage insurance policies,
including those relating to Isobord and Maine Yankee; (4) any and all claims,
including claims for contribution, reimbursement or indemnification under any
of the Debtors' directors and officers liability policies; (5) any and all
claims, including claims for contribution, reimbursement or indemnification
under any other policy of insurance, including the Debtors' general liability
insurance policies; (6) any claims for acts or omissions of the Debtors'
present and former officers and directors; and (7) any claims against the U.S.
Department of Energy and/or NAC International or other subcontractors for
indemnification or contribution concerning claims by Maine Yankee, as well as
those Litigation Claims listed on Exhibit B annexed hereto and those
Litigation Claims against any Person or Entity hereinafter arising or
discovered and regardless of when the facts giving rise to such Litigation
Claims arose or existed.
Unless otherwise provided in a Court order entered after
entry of the Confirmation Order, no Claim against the Debtors shall be
considered finally Allowed (whether by Court order or operation of Bankruptcy
Code section 502(a)) for the purpose of preventing the SWINC Plan
Administrator or the SWE&C Liquidating Trustee from enforcing, sueing on,
settling or compromising any Litigation Claims against Claimholders by reason
of res judicata, collateral estoppel, or similar doctrine. Unless otherwise
provided in a Court order entered after entry of the Confirmation Order, the
doctrines of res judicata and collateral estoppel shall not be a defense to
any Litigation Claims against any Claimholders enforced or sued on after the
Confirmation Date by the SWINC Plan Administrator or the SWE&C Liquidating
Trustee, whether or not such Claimholders' Claim have been Allowed. The SWINC
Plan Administrator and the SWE&C Liquidating Trustee may enforce, sue on,
settle or compromise any Litigation Claims against Claimholders, whether or
not such Claimholders' Claims have been Allowed, after the Confirmation Date.
The Proponents have attached a preliminary list of the
Litigation Claims to be retained as part of the Third Joint Plan and reserve
the right to amend that list up to and prior to the deadline for objections to
the Third Joint Plan, October 20, 2003. The SWINC Plan Administrator, on
behalf of SWINC, the SWINC Subsidiaries and the Consolidated SWINC Estate,
shall retain and may enforce, sue on, settle or compromise (or decline to do
any of the foregoing) any and all of the Litigation Claims that SWINC, the
SWINC Subsidiaries, their Estates or the Consolidated SWINC Estate may hold
against any Person or Entity. The SWE&C Liquidating Trustee, on behalf of
SWE&C, the SWE&C Subsidiaries, and the SWE&C Liquidating Trust shall retain
and may enforce, sue on, settle or compromise (or decline to do any of the
foregoing) any and all of the Litigation Claims that SWE&C, the SWE&C
Subsidiaries, their Estates or the SWE&C Liquidating Trust may hold against
any Person or Entity. The failure of the Debtors to list a claim, right of
action, suit or proceeding on Plan Exhibit B shall not constitute a waiver or
release by the Debtors or their Estates of such claim, right of action, suit
or proceeding all such claims, rights of action, suits or proceedings are
being expressly reserved.
S. Creditors' Committee and Equity Committee
1. Dissolution of Creditors' Committee
The Creditors' Committee shall continue in
existence until the Effective Date to exercise those powers and perform those
duties specified in section 1103 of the Bankruptcy Code, and shall perform
such other duties as it may have been assigned by the Court prior to the
Effective Date. On the Effective Date, the Creditors' Committee shall be
dissolved and its members shall be deemed released of all their duties,
responsibilities and obligations in connection with the Chapter 11 Cases or
the Third Joint Plan and its implementation, and the retention or employment
of the Creditors' Committee's attorneys, accountants and other agents shall
terminate, except with respect to (i) all Professional Fee Claims and (ii) any
appeals of the Confirmation Order. All expenses of Creditors' Committee
members and the fees and expenses of their professionals through the Effective
Date shall be paid in accordance with the terms and conditions of the Fee
Order and the Confirmation Order and this Third Joint Plan.
2. Dissolution of Equity Committee
The Equity Committee shall continue in existence
until the Effective Date to exercise those powers and perform those duties
specified in section 1103 of the Bankruptcy Code and shall perform such other
duties as it may have been assigned by the Court prior to the Effective Date.
On the Effective Date, the Equity Committee shall be dissolved and its members
shall be deemed released of all their duties, responsibilities and obligations
in connection with the Chapter 11 Cases or the Third Joint Plan and its
implementation, and the retention or employment of the Equity Committee's
attorneys, accountants and other agents shall terminate, except with respect
to (i) all Professional Fee Claims and (ii) any appeals of the Confirmation
Order. All expenses of Equity Committee members and the fees and expenses of
their professionals through the Effective Date shall be paid in accordance
with the terms and conditions of the Fee Order the Confirmation Order and this
Third Joint Plan.
T. Sources of Cash for Third Joint Plan Distributions
Except as otherwise provided in the Third Joint Plan or the
Confirmation Order, all Cash necessary for the SWINC Plan Administrator and
the SWINC Disbursing Agent, as the case may be, to make payments pursuant to
the Third Joint Plan to holders of the Claims against and Interests in SWINC,
the SWINC Subsidiaries or the Consolidated SWINC Estates shall be obtained
from (i) the Cash balances of SWINC and the SWINC Subsidiaries, including Cash
from the market value allocation of the Sale Proceeds, and (ii) the
liquidation of the remaining non-Cash assets, if any, of SWINC, the SWINC
Subsidiaries and the Consolidated SWINC Estates and (iii) the liquidation of
the remaining non-Cash assets, if any, of SWINC and the SWINC Subsidiaries.
Except as otherwise provided in the Third Joint Plan or the
Confirmation Order, all Cash necessary for the SWE&C Liquidating Trustee and
the SWE&C Liquidating Trust Disbursing Agent, as the case may be, to make
payments pursuant to the Third Joint Plan to holders of Claims against SWE&C,
the SWE&C Subsidiaries or the SWE&C Liquidating Trust shall be obtained from
(i) the Cash balances of SWE&C and the SWE&C Subsidiaries, including Cash from
the market value allocation of the Sale Proceeds, (ii) proceeds derived from
the repayment of the Reorganized SWINC Note, and (iii) the liquidation of the
remaining non-Cash assets, if any, of SWE&C and the SWE&C Subsidiaries.
U. Exemption from Certain Transfer Taxes
Pursuant to section 1146(c) of the Bankruptcy Code, any
transfers from a Debtor to Reorganized SWINC or any other Person or Entity
pursuant to the Third Joint Plan in the United States shall not be subject to
any document recording tax, stamp tax, conveyance fee, intangibles or similar
tax, mortgage tax, stamp act, real estate transfer tax, mortgage recording tax
or other similar tax or governmental assessment, and the Confirmation Order
shall direct the appropriate state or local governmental officials or agents
to forgo the collection of any such tax or governmental assessment and to
accept for filing and recordation any of the foregoing instruments or other
documents without the payment of any such tax or governmental assessment.
V. Release of Liens
Except as otherwise provided in the Third Joint Plan, the
Confirmation Order or in any contract, instrument, release or other agreement
or document created in connection with the Third Joint Plan, on the Effective
Date, all mortgages, deeds of trust, liens, pledges or other security
interests against the property of the Debtors' Estates shall be fully released
and discharged.
W. Special Provisions Regarding Insured Claims
Distributions under the Third Joint Plan to each holder of
an Allowed Insured Claim against SWINC, a SWINC Subsidiary, SWE&C or a SWE&C
Subsidiary, shall be in accordance with the treatment provided under the Third
Joint Plan for the Class in which such Allowed Insured Claim is classified;
provided, however, that the maximum amount of any distribution under the Third
Joint Plan on account of an Allowed Insured Claim (except for Allowed Asbestos
Claims) shall be limited to an amount equal to the amount of the Allowed
Insured Claim minus any insurance proceeds actually received and retained by
such holder in respect of such Allowed Insured Claim. Nothing in this Article
VII shall (x) constitute a waiver of any claim, right, or cause of action the
Debtors may hold against any Person, including the Debtors' insurance carriers
or (y) is intended to, shall, or shall be deemed to preclude any holder of an
Allowed Insured Claim from seeking and/or obtaining a distribution or other
recovery from any insurer of the Debtors in addition to any distribution such
holder may receive pursuant to the Third Joint Plan; provided, however, that
the Debtors do not waive, and expressly reserve their rights to assert that
any insurance coverage is property of the estate to which they are entitled,
with the exception of the provisions contained in the stipulated agreement
between SWINC and the Secretary of Labor, United States Department of Labor,
filed by the Debtors on or about February 26, 2002. Upon receipt by the holder
of an Allowed Insured Claim of any amounts distributed under the Third Joint
Plan in respect of such claim, such holder shall be deemed to have assigned to
the SWINC Plan Administrator all rights of the holder to recover such amounts
from the applicable insurer.
This Third Joint Plan shall not expand the scope of or alter
in any other way the insurers' obligations under their policies, and the
insurers shall retain any and all defenses to coverage that they may have. The
Third Joint Plan shall not operate as a waiver of any other claims the
insurers have asserted or may assert in proofs of claim filed in the Debtors'
bankruptcy cases or the Debtors' rights as to those claims.
This Third Joint Plan does not prejudice or impair any
rights of a holder of a contingent claim, if any, under the Bankruptcy Code or
any other applicable law, including, but not limited to, Bankruptcy Code
section 502, to seek recovery under any policy of insurance under which a
Debtor is an insured or beneficiary, and/or the right to be an Insured Claim,
after such contingent claim becomes liquidated.
Each of the insurers retains any and all of its rights, at
its own expense, to commence and participate in any contested matters and
other related proceedings concerning asbestos claims, including objections to
and requests for relief from the automatic stay with respect to any such
claims, until the Debtors' bankruptcy cases are closed.
Any insurance proceeds received on account of an Insured
Claim or as a result of a buy-out of an insurance policy under which a Debtor
is an insured or beneficiary will be used first to satisfy Allowed Insured
Claims.
ARTICLE VIII
DESCRIPTION OF SECURITIES AND INSTRUMENTS
TO BE ISSUED IN CONNECTION WITH THE THIRD JOINT PLAN
A. Reorganized SWINC New Common Stock
The principal terms of the Reorganized SWINC New Common
Stock to be issued by Reorganized SWINC under the Third Joint Plan are as
follows:
Authorization......................... 1,000 shares.
Initial
Issuance.............................. 100 shares.
Par Value............................. $.01 per share.
Listing............................... None.
Voting Rights......................... One vote per share on all matters
submitted to a vote of the stockholders
of Reorganized SWINC; votes together as
a single class with the Reorganized
SWINC New Series A Preferred Stock and
Reorganized SWINC New Series B
Preferred Stock. The SWE&C Liquidating
Trustee has granted an irrevocable
proxy to the Board of Directors of
Reorganized SWINC for the limited
purpose of permitting the Board to vote
the shares of Reorganized SWINC New
Common Stock, at its discretion, in
favor of the dissolution of Reorganized
SWINC.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
B. Reorganized SWINC New Series A Preferred Stock
The principal terms of the Reorganized SWINC New Series A Preferred
Stock to be issued by Reorganized SWINC under the Third Joint Plan are as
follows:
Authorization......................... 100 shares.
Initial Issuance...................... 1 share.
Par Value............................. $.01 per share.
Listing............................... None.
Ranking............................... Senior to the Reorganized SWINC New
Common Stock and all other series of
Preferred Stock that subsequently may
be issued by Reorganized SWINC. Except
as to the liquidation preference, the
Reorganized SWINC New Series B
Preferred Stock and Reorganized SWINC
New Series A Preferred Stock rank
equally.
Liquidation
Preference............................ Upon termination of the Pension Plan
and the liquidation, dissolution and
winding up of Reorganized SWINC, and in
accordance with the terms of the Third
Joint Plan, holders of Series A
Preferred Stock shall be entitled to
receive a liquidating distribution
calculated as follows: (i) from the
Reversion either (x) two-thirds of the
first $30 million of funds generated
from the Reversion of the Pension Plan
plus, if the Reversion exceeds $30
million, 50% of any funds generated
from the Reversion in excess of $30
million or (y) in the event Class 9A
votes to reject the Third Joint Plan,
two-thirds of the first $30 million of
funds generated from the Reversion of
the Pension Plan plus, if the Reversion
exceeds $30 million, twenty-five
percent (25%) of any funds generated
from the Reversion in excess of $30
million; and (ii) 100% of the funds
generated from the liquidation of any
additional assets, other than the
Reversion, of Reorganized SWINC (the
"Series A Liquidation Preference"). The
SWINC Plan Administrator will
distribute the Series A Liquidation
Preference to the Holders of Allowed
SWINC Claims and Interests in
accordance with the terms of the Third
Joint Plan and the SWINC Plan
Administrator Agreement.
Dividends............................. Holders of Series A Preferred Stock are
entitled to participate ratably in any
dividends declared on the Reorganized
SWINC New Common Stock, when, as and if
declared by the Board of Directors of
Reorganized SWINC.
Redemption............................ Non-Redeemable.
Board
Designations.......................... None.
Voting Rights......................... One vote per share on all matters
submitted to a vote of the stockholders
of Reorganized SWINC; votes together as
a single class with the Reorganized
SWINC New Common Stock and Reorganized
SWINC New Series B Preferred Stock.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
C. Reorganized SWINC New Series B Preferred Stock
The principal terms of the Reorganized SWINC New Series B
Preferred Stock to be issued by Reorganized SWINC under the Third Joint Plan
are as follows:
Authorization......................... 1,000 shares.
Initial
Issuance.............................. 1 share.
Par Value............................. $.01 per share.
Listing............................... None.
Ranking............................... Senior to the Reorganized SWINC New
Common Stock and all other series of
Preferred Stock that subsequently may
be issued by Reorganized SWINC. Except
as to the liquidation preference, the
Reorganized SWINC New Series B
Preferred Stock and the Reorganized
SWINC New Series A Preferred Stock rank
equally.
Liquidation
Preference............................ Upon termination of the Pension Plan
and the liquidation, dissolution and
winding up of Reorganized SWINC, and in
accordance with the terms of the Third
Joint Plan, following payment of the
Series A Liquidation Preference,
holders of Series B Preferred Stock
shall be entitled to receive a
liquidating distribution calculated
from the Reversion as follows: either
(i) one-third of the first $30 million
of funds generated from the Reversion
plus, if the Reversion exceeds $30
million, 50% of any funds generated
from the Reversion in excess of $30
million or (ii) in the event Class 9A
votes to reject the Third Joint Plan,
one-third of the first $30 million of
funds generated from the Reversion of
the Pension Plan plus, if the Reversion
exceeds $30 million, seventy-five
percent (75%) of any funds generated
from the Reversion in excess of $30
million (the "Series B Liquidation
Preference"). The SWE&C Liquidating
Trustee will distribute the Series B
Liquidation Preference to the Holders
of Allowed SWE&C Claims in accordance
with the terms of the Third Joint Plan
and the SWE&C Liquidating Trust
Agreement.
Dividends............................. Holders of Reorganized SWINC New Series
B Preferred Stock are entitled to
participate ratably in any dividends
declared on the Reorganized SWINC New
Common Stock, when, as and if declared
by the Board of Directors of
Reorganized SWINC.
Redemption............................ Non-Redeemable.
Board
Designations.......................... None.
Voting Rights......................... One vote per share on all matters
submitted to a vote of the stockholders
of Reorganized SWINC; votes together as
a single class with the Reorganized
SWINC New Common Stock and Reorganized
SWINC New Series A Preferred Stock.
Transfer
Restrictions.......................... Not transferable.
Preemptive
Rights................................ None.
ARTICLE IX
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims or Interests Allowed as of the
Effective Date
Except as otherwise provided herein or as ordered by the Court,
distributions to be made on account of Claims or Interests that are Allowed
Claims or Allowed Interests as of the Effective Date shall be made on the
Effective Date. Any distribution to be made on the Effective Date pursuant to
this Third Joint Plan shall be deemed as having been made on the Effective
Date if such distribution is made on the Effective Date or as soon thereafter
as is practicable. Any payment or distribution required to be made under the
Third Joint Plan on a day other than a Business Day shall be made on the next
succeeding Business Day. Distributions on account of Claims or Interests that
first become Allowed Claims or Allowed Interests after the Effective Date
shall be made on the first Semi-annual Distribution Date following the date on
which the Claim or Interest was Allowed, unless otherwise provided in the
terms and conditions of the SWINC Plan Administrator Agreement, the SWE&C
Liquidating Trust Agreement, the Asbestos Trust Agreement and Articles IV, VII
and IX of this Third Joint Plan, except as otherwise provided in the Third
Joint Plan or any contract, instrument or other agreement created in
connection with the Third Joint Plan.
B. Interest on Claims or Interests
Postpetition Interest shall not accrue or be paid on any Claims or
Interests, and no holder of a Claim or Interest shall be entitled to interest
accruing on or after the Petition Date on any Claim or Interest. Interest
shall not accrue or be paid upon any Disputed Claim or Disputed Interest in
respect of the period from the Petition Date to the date a final distribution
is made thereon if and after such Disputed Claim or Disputed Interest becomes
an Allowed Claim or Allowed Interest.
C. Distributions by Disbursing Agents
The SWINC Disbursing Agent shall make all distributions required
under this Third Joint Plan on account of Claims against and Interests in the
Consolidated SWINC Estate. If the SWINC Disbursing Agent is an independent
third party designated by the SWINC Plan Administrator to serve in such
capacity, then the SWINC Disbursing Agent shall receive, without further Court
approval, reasonable compensation for distribution services rendered pursuant
to the Third Joint Plan and reimbursement of reasonable out-of-pocket expenses
incurred in connection with such services from SWINC on terms acceptable to
the SWINC Plan Administrator. The SWINC Disbursing Agent shall not be required
to give any bond or surety or other security for the performance of its duties
unless otherwise ordered by the Court.
The SWE&C Liquidating Trust Disbursing Agent shall make all
distributions required under this Third Joint Plan on account of Claims
against the Consolidated SWE&C Estate. If the SWE&C Disbursing Agent is an
independent third party designated by the SWE&C Liquidating Trust to serve in
such capacity, then the SWE&C Liquidating Trust Disbursing Agent shall
receive, without further Court approval, reasonable compensation for
distribution services rendered pursuant to the Third Joint Plan and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services from the SWE&C Liquidating Trust on terms acceptable to the
SWE&C Liquidating Trust. The SWE&C Liquidating Trust Disbursing Agent shall
not be required to give any bond or surety or other security for the
performance of its duties unless otherwise ordered by the Court.
D. Delivery of Distributions and Undeliverable or
Unclaimed Distributions
1. Delivery of Distributions in General
Distributions to holders of Allowed Claims or
Allowed Interests shall be made at the addresses set forth in the Amended
Schedules unless such addresses are superseded by proofs of claim or interest
or transfers of claim filed pursuant to Bankruptcy Rule 3001 (or at the last
known addresses of such holders if the SWINC Disbursing Agent or the SWE&C
Liquidating Trust Disbursing Agent, as the case may be, has been notified in
writing of a change of address).
2. Undeliverable and Unclaimed Distributions
(A) Holding and Investment of Undeliverable and
Unclaimed Distributions.
If the distribution to any holder of an
Allowed Claim or Allowed Interest is returned to the SWINC Disbursing Agent or
the SWE&C Liquidating Trust Disbursing Agent, as the case may be, as
undeliverable or is otherwise unclaimed, no further distributions shall be
made to such holder unless and until the SWINC Disbursing Agent or the SWE&C
Liquidating Trust Disbursing Agent, as the case may be, is notified in writing
of such holder's then-current address. Undeliverable and unclaimed
distributions shall be set aside or, in the case of a Cash distribution,
deposited in a segregated, interest-bearing account, designated as an
"unclaimed distribution reserve" (the "Unclaimed Distribution Reserve"), for
the benefit of all such similarly situated Persons until such time as a
distribution becomes deliverable or is claimed.
(B) After Distributions Become Deliverable
On each semiannual Distribution Date, the
SWINC Disbursing Agent or the SWE&C Liquidating Trust Disbursing Agent, as the
case may be, shall make distributions that have become deliverable or have
been claimed since the Distribution Date or the immediately preceding
Semiannual Distribution Date, as the case may be, together with any interest
actually earned thereon.
(C) Failure to Claim Undeliverable Distributions
Except as otherwise provided in the Third
Joint Plan or any contract, instrument or other agreement created in
connection with the Third Joint Plan, the holder of an Allowed Claim or
Allowed Interest that does not assert a Claim or Interest pursuant to the
Third Joint Plan for an undeliverable or unclaimed distribution within three
(3) years after the Effective Date shall be deemed to have forfeited its Claim
or Interest for such undeliverable or unclaimed distribution and shall be
forever barred and enjoined from asserting any such Claim or Interest for an
undeliverable or unclaimed distribution against the Debtors, their Estates,
the SWINC Plan Administrator or the SWE&C Liquidating Trust, or their
property. In such cases, any Cash or other property held in an Unclaimed
Distribution Reserve for distribution on account of such Claims or Interests
for undeliverable or unclaimed distributions shall become the property of the
Debtors, their Estates, the SWE&C Liquidating Trust, as the case may be, free
of any restrictions thereon and notwithstanding any federal or state escheat
laws to the contrary, and shall be distributed in accordance with the terms of
the Third Joint Plan, the SWE&C Liquidating Trust Agreement or the SWINC Plan
Administrator Agreement. Nothing contained in the Third Joint Plan, the SWINC
Plan Administrator Agreement or the SWE&C Liquidating Trust Agreement shall
require any Disbursing Agent, including, but not limited to, the SWINC
Disbursing Agent or the SWE&C Liquidating Trust Disbursing Agent to attempt to
locate any holder of an Allowed Claim or Allowed Interest.
E. Notification Date for Distributions to Holders of
Equity Securities
At the close of business on the Confirmation Date, the transfer
ledgers for the Old Securities shall be closed, and there shall be no further
changes in the record holders of the Old Securities. Neither the SWINC Plan
Administrator nor the SWINC Disbursing Agent shall have any obligation to
recognize any transfer of such Old Securities occurring after the Confirmation
Date and shall be entitled instead to recognize and deal for all purposes
hereunder with only those record holders as of the close of business on the
Confirmation Date.
F. Surrender of Securities or Instruments
On or before the Effective Date, or as soon as practicable
thereafter, each holder of an instrument evidencing an Interest on account of
Old Securities (as to each, a "Certificate") shall surrender such Certificate
to the SWINC Disbursing Agent and such Certificate shall be cancelled;
provided, however, that the surrender and cancellation of such Certificates
pursuant to or under this Third Joint Plan shall in no way impair or affect
the right of any holder to pursue any claims against non-Debtors in any of the
Securities Actions. No distribution of property hereunder shall be made to or
on behalf of any such holder unless and until such Certificate is received by
the SWINC Disbursing Agent or the unavailability of such Certificate is
reasonably established to the satisfaction of the SWINC Disbursing Agent. Any
such holder who fails to surrender or cause to be surrendered such Certificate
or fails to execute and deliver an affidavit of loss and indemnity reasonably
satisfactory to the SWINC Disbursing Agent prior to the second (2nd)
anniversary of the Effective Date, shall be deemed to have forfeited all
rights and Interests in respect of such Certificate and shall not participate
in any distribution hereunder, and all property in respect of such forfeited
distribution, including interest accrued thereon, shall revert to the SWINC
Plan Administrator for the benefit of the Claimholders and Interestholders of
SWINC notwithstanding any federal or state escheat laws to the contrary.
G. Means of Cash Payment
Cash payments made pursuant to this Third Joint Plan shall be in U.S.
funds, by the means agreed to by the payor and the payee, including by check
or wire transfer or, in the absence of an agreement, such commercially
reasonable manner as the payor shall determine in its sole discretion.
H. Withholding and Reporting Requirements
In connection with the Third Joint Plan and all distributions
thereunder, the SWINC Disbursing Agent and the SWE&C Liquidating Trust
Disbursing Agent shall comply with all withholding and reporting requirements
imposed by any federal, state, local or foreign taxing authority, and all
distributions hereunder shall be subject to any such withholding and reporting
requirements. The SWINC Disbursing Agent and the SWE&C Liquidating Trust
Disbursing Agent shall be authorized to take any and all actions that may be
necessary or appropriate to comply with such withholding and reporting
requirements.
I. Setoffs
1. By a Debtor
The SWINC Plan Administrator and the SWE&C Liquidating
Trustee may, pursuant to section 553 of the Bankruptcy Code or applicable
nonbankruptcy laws, but shall not be required to, set off against any Claim,
and the payments or other distributions to be made pursuant to the Third Joint
Plan in respect of such Claim, claims of any nature whatsoever that the
Debtors may have against the holder of such Claim; provided, however, that
neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the SWINC Plan Administrator or the SWE&C
Liquidating Trustee, as the case may be, of any such claim that the Debtors
may have against such holder.
2. By Non-Debtors
Unless otherwise authorized by a Final Order, any holder of
a Claim must assert any setoff rights against a Claim by a Debtor against such
entity by filing an appropriate motion seeking authority to setoff on or
before the Confirmation Date or will be deemed to have waived and be forever
barred from asserting any right to setoff against a Claim by a Debtor
notwithstanding any statement to the contrary in a proof of claim or any other
pleading or document filed with the Bankruptcy Court or delivered to the
Debtors.
J. Fractional Dollars; De Minimus Distributions
Notwithstanding any other provision of the Third Joint Plan, the
SWINC Disbursing Agent and the SWE&C Liquidating Trust Disbursing Agent shall
(i) not be required to make distributions or payments of fractions of dollars,
and whenever any payment of a fraction of a dollar under the Third Joint Plan
would otherwise be called for, the actual payment made shall reflect a
rounding of such fraction to the nearest whole dollar (up or down), with half
dollars being rounded down; and (ii) have no obligation to make a distribution
on account of an Allowed Claim from any Reserve or account (a) to any holder
of an Allowed Claim if the aggregate amount of all distributions authorized to
be made from all such Reserves or accounts on the particular Distribution Date
in question is less than $1,000,000 or (b) to a specific holder of an Allowed
Claim if the amount to be distributed to that holder on the particular
Distribution Date (1) does not constitute a final distribution to such holder
and (2) is less than $100.00.
K. Allocation of Third Joint Plan Distributions Between
Principal and Interest
To the extent that any Allowed Claim entitled to a distribution under
the Third Joint Plan comprises indebtedness and accrued but unpaid interest
thereon, the Debtors intend to take the position that, for income tax
purposes, such distribution shall be allocated (to the extent permitted) first
to the principal amount of the Claim and then, to the extent the consideration
exceeds the principal amount of the Claim, to the portion of such Claim
representing accrued but unpaid interest.
ARTICLE X
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Rejected Contracts and Leases
Except as otherwise provided in the Third Joint Plan, the
Confirmation Order, or in any contract, instrument, release or other agreement
or document entered into in connection with the Third Joint Plan, each of the
prepetition executory contracts and unexpired leases to which any Debtor is a
party, to the extent such contracts or leases are executory contracts or
unexpired leases, shall be deemed rejected by the applicable Debtor effective
on the Confirmation Date and subject to the occurrence of the Effective Date,
unless such contract or lease (i) previously (a) shall have been assumed or
rejected by the Debtors (including, but not limited to, those executory
contracts and unexpired leases assumed and assigned to Shaw) or (b) shall have
expired or terminated pursuant to its own terms, or (ii) is listed on the
schedule of assumed contracts and leases attached hereto as Plan Exhibit H;
provided, however, that neither the inclusion by the Debtors of a contract or
lease in Plan Exhibit H nor anything contained in this Article X shall
constitute an admission by any Debtor that such contract or lease is an
executory contract or unexpired lease or that any Debtor or its successors and
assigns has any liability thereunder. The Confirmation Order shall constitute
an order of the Court approving the rejections described in this Article X,
pursuant to section 365 of the Bankruptcy Code, as of the Confirmation Date.
B. Rejection Damages Bar Date
If the rejection of an executory contract or unexpired lease pursuant
to Article X.A above gives rise to a Claim by the other party or parties to
such contract or lease, such Claim shall be forever barred and shall not be
enforceable against the applicable Debtor or its Estate, the SWINC Plan
Administrator, the SWE&C Liquidating Trust or their respective successors or
properties unless a proof of Claim is filed and served on the Debtors and
counsel for the Debtors within thirty (30) days after service of a notice of
entry of the Confirmation Order or such other date as prescribed by the Court.
C. Assumed Contracts and Leases
Except as otherwise provided in the Third Joint Plan, or in any
contract, instrument, release, or other agreement or document entered into in
connection with the Third Joint Plan, the Debtors shall assume (and assign, as
the case may be) each of the executory contracts and unexpired leases listed
on Plan Exhibit H. Any monetary amounts by which each executory contract and
unexpired lease to be assumed under the Third Joint Plan may be in default
shall be satisfied, under section 365(b)(1) of the Bankruptcy Code, by Cure on
the Effective Date or as soon thereafter as practicable. In the event of a
dispute regarding (i) the nature or amount of any Cure, (ii) the ability of
the Debtors or any assignee of the Debtors to provide "adequate assurance of
future performance" (within the meaning of section 365 of the Bankruptcy Code)
under the contract or lease to be assumed, or (iii) any other matter
pertaining to assumption or assignment, Cure shall occur following the entry
of a Final Order resolving the dispute and approving the assumption and, as
the case may be, assignment. The Confirmation Order shall constitute an order
of the Court approving the assumptions (as assignments, as the case may be)
described in this Article X.C, pursuant to section 365 of the Bankruptcy Code,
as of the Effective Date.
D. Pension Plan
The Pension Plan shall be assumed pursuant to Bankruptcy
Code sections 365(a) and 1123(b)(2), to the extent it is executory. The Third
Joint Plan does not purport to release or affect any causes of action pursuant
to ERISA concerning the Pension Plan, the Employee Stock Ownership Plan of
Stone & Webster, Incorporated and Participating Subsidiaries, the Group Life
Insurance and Spouses Insurance Plan of Stone & Webster and the Employee
Investment Plan of Stone & Webster Incorporated and Participating
Subsidiaries, or limit any potential claim of the Secretary of Labor, United
States Department of Labor, pursuant to the stipulated agreement between SWINC
and the Secretary of Labor, United States Department of Labor, filed by the
Debtors on or about February 26, 2002.
E. Indemnification Obligations
Except as otherwise provided in the Third Joint Plan, or in
any contract, instrument, release, or other agreement or document entered into
in connection with the Third Joint Plan, any and all indemnification
obligations that the Debtors have pursuant to a contract, instrument,
agreement, certificate of incorporation, by-law, comparable organizational
document or any other document or applicable law shall be rejected as of the
Effective Date of the Third Joint Plan, to the extent executory.
ARTICLE XI
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT AND UNLIQUIDATED CLAIMS
AND DISPUTED INTERESTS
A. Claims Objection Deadlines; Prosecution of Objections
1. SWINC Claims Objection Deadline
Except as otherwise provided in the Third Joint Plan or any
contract, instrument or other agreement created in connection with the Third
Joint Plan, from the Effective Date through the SWINC Claims Objection
Deadline (which may be extended by an order of the Court), the SWINC Plan
Administrator shall have the exclusive authority to file objections to Claims
against or Interests in the Consolidated SWINC Estate with the Court and serve
such objections upon the holders of each of the Claims or Interests to which
objections are made. Nothing contained herein, however, shall limit the right
of the SWINC Plan Administrator to object to Claims against or Interests in
the Consolidated SWINC Estate, if any, filed, amended or reclassified after
the SWINC Claims Objection Deadline. Subject to the limitations set forth in
the SWINC Plan Administrator Agreement and Article VII.L.6 of this Third Joint
Plan, the SWINC Plan Administrator shall be authorized to, and shall, resolve
all Disputed Claims solely against or Disputed Interests in SWINC by
withdrawing or settling such objections thereto, or by litigating to judgment
in the Court or such other court having jurisdiction the validity, nature
and/or amount thereof.
2. SWE&C Claims Objection Deadline
Except as otherwise provided in the Third Joint Plan or any
contract, instrument or other agreement created in connection with the Third
Joint Plan, from the Effective Date through the SWE&C Claims Objection
Deadline (which may be extended by an order of the Court), the SWE&C
Liquidating Trustee shall have the exclusive authority to file objections to
Claims against or Interests in the Consolidated SWE&C Estate with the Court
and serve such objections upon the holders of each of the Claims against or
Interests in the Consolidated SWE&C Estate to which objections are made.
Nothing contained herein, however, shall limit the right of the SWE&C
Liquidating Trustee to object to Claims against or Interests in SWE&C, if any,
filed or amended after the SWE&C Claims Objection Deadline. Subject to the
limitations set forth in the SWE&C Liquidating Trust Agreement and Article
VII.O of this Third Joint Plan, the SWE&C Liquidating Trustee shall be
authorized to, and shall, resolve all Disputed Claims solely against or
Disputed Interests in SWE&C by withdrawing or settling such objections
thereto, or by litigating to judgment in the Court or such other court having
jurisdiction the validity, nature and/or amount thereof.
3. Claims Against Both Consolidated Estates
Except as otherwise provided in the Third Joint Plan or any
contract, instrument or other agreement created in connection with the Third
Joint Plan, from the Effective Date through the later of (i) the SWE&C Claims
Objection Deadline or (ii) the SWINC Claims Objection Deadline (which may be
extended by an order of the Court), the Interestate Oversight Board shall have
the exclusive authority to file objections to Claims with respect to Claims or
Interests asserted against both the Consolidated SWE&C Estate and the
Consolidated SWINC Estate and serve such objections upon the holders of each
of the Claims or Interests to which objections are made. Subject to the
limitations set forth in this Third Joint Plan, the Interestate Oversight
Board shall be authorized to, and shall, resolve all Disputed Claims against
or Disputed Interests in both the Consolidated SWE&C Estate and the
Consolidated SWINC Estate by withdrawing or settling such objections thereto,
or by litigating to judgment in the Court or such other court having
jurisdiction the validity, nature and/or amount thereof.
B. No Distributions Pending Allowance
Notwithstanding any other provision of the Third Joint Plan, no
payments or distributions shall be made with respect to all or any portion of
a Disputed Claim or Disputed Interest unless and until all objections to such
Disputed Claim or Disputed Interest have been settled or withdrawn or have
been determined by Final Order, and the Disputed Claim or the Disputed
Interest, or some portion thereof, has become an Allowed Claim or Allowed
Interest.
C. Reserves
On the Effective Date or as soon thereafter as practicable, the
following Reserves will be established and funded:
1. General Administrative Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a General Administrative Claims Reserve in the amount of
$11.1 million, to be used to pay under the Third Joint Plan Allowed General
Administrative Claims, including General Professional Fee Claims. In the event
that any Cash remains in the General Administrative Claims Reserve after the
payment in full of General Administrative Claims, such amount shall be
distributed 50% to the SWINC Disputed Claims Reserve and 50% to the SWE&C
Disputed Claims Reserve.
2. The SWINC Professional Fee Reserve
On the Effective Date, there shall be created and
funded with Cash, the SWINC Professional Fee Reserve in the amount of $2
million to be used to pay Allowed Professional Fee Claims held by (i) counsel
and any advisers to the Equity Committee and (ii) any professionals working
exclusively on behalf of SWINC or any SWINC Subsidiary. In the event that any
Cash remains in the SWINC Professional Fee Reserve after payment of the
Allowed SWINC Professional Fee Claims, such Cash shall be distributed to the
SWINC Disputed Claims Reserve.
3. SWINC Operating Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWINC Operating Reserve in the amount of $3 million, which
amount shall be used to pay the administrative and other costs and expenses
associated with the Consolidated SWINC Estate, including all fees and expenses
of the SWINC Plan Administrator and its professionals.(1) In the event that
Cash in the SWINC Operating Reserve is exhausted, the SWINC Plan
Administrator, in his or her sole discretion, has the right to obtain such
additional Cash from the SWINC Disputed Claims Reserve so as to replenish the
SWINC Operating Reserve. In the event that any Cash remains in the SWINC
Operating Reserve after the final resolution of all Claims Against or
Interests in the Consolidated SWINC Estate, such Cash shall be distributed to
the SWINC Disputed Claims Reserve for distributions under the Third Joint
Plan.
4. The SWINC Disputed Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWINC Disputed Claims Reserve from Cash in the amount of
$44.5 million, which amount will be used to pay (i) the holders of Allowed
Class 4A: SWINC Convenience Claims in full, (ii) the holders of Allowed Class
5A: SWINC General Unsecured Claims their Pro Rata share of the Disputed Claims
Reserve until all such Claims are paid in full, (iii) the holders of Allowed
Class 7A: SWINC Subordinated Claims their Pro Rata Share of the Disputed
Claims Reserve remaining after holders in Class 4A and Class 5A have been paid
in full, and (iv) the holders of Allowed Class 8A: SWINC Securities Claims and
Allowed Class 9A:
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(1) Included in the SWINC Operating Reserve is $150,000, which represents
one-half of the severance package for James Carroll. The full
severance package of $300,000 shall be deemed to have been earned by
Mr. Carroll upon confirmation of the Third Joint Plan, but such
payment will be deferred until Mr. Carroll's employment is
terminated, whether voluntary or not.
SWINC Equity Interests their Pro Rata share of the Disputed Claims Reserve
remaining after holders in Allowed Class 7A: SWINC Subordinated Claims have
been paid in full. The SWINC Disputed Claims Reserve shall be supplemented
from time to time with Cash or other property received by the SWINC Plan
Administrator from recoveries on claims or causes of action, dispositions of
property or receipt of unused funds in Reserves distributable to the SWINC
Disputed Claim Reserve.
5. The SWE&C Professional Fee Reserve
On the Effective Date, there shall be created and
funded with Cash, the SWE&C Professional Fee Reserve in the amount of $1.5
million to be used to pay Allowed SWE&C Professional Fee Claims held by (i)
counsel and any advisers to the Creditors' Committee and (ii) any
professionals working exclusively on behalf of SWE&C or any SWE&C Subsidiary.
In the event that any Cash remains in the SWE&C Professional Fee Reserve after
payment of all Allowed SWE&C Professional Fee Claims, such Cash shall be
distributed to the SWE&C Disputed Claims Reserve.
6. SWE&C Operating Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWE&C Operating Reserve in the amount of $3 million, which
amount shall be used to pay the administrative and other costs and expenses
associated with the Consolidated SWE&C Estate, including all fees and expenses
of the SWE&C Liquidating Trustee and its professionals(2). In the event that
Cash in the SWE&C Operating Reserve is exhausted, the SWE&C Liquidating
Trustee, in his or her sole discretion, has the right to obtain such
additional Cash from the SWE&C Disputed Claims Reserve so as to replenish the
SWE&C Operating Reserve. In the event that any Cash remains in the SWE&C
Operating Reserve after the final resolution of all Claims Against of
Interests in the Consolidated SWE&C Estate, such Cash shall be distributed to
the SWE&C Disputed Claims Reserve for distributions under the Third Joint
Plan.
7. The SWE&C Disputed Claims Reserve
On the Effective Date, there shall be created and
funded with Cash, a SWE&C Disputed Claims Reserve in the amount of $5.2
million, which amount will be used as follows: (i) first, to pay the holders
of Allowed Class 4B: SWE&C Convenience Claims in full, and (ii) second, to pay
the holders of Allowed Class 5B: SWE&C General Unsecured Claims their Pro Rata
share of the SWE&C Disputed Claims Reserve until all such Claims are paid in
full. The SWE&C Disputed Claims Reserve shall be supplemented from time to
time with Cash and other property received by the SWE&C Liquidating Trustee
from recoveries on claims or causes of action, dispositions of property, the
receipt of unused funds from Reserves established under the Third Joint Plan
and distributable to the SWE&C Disputed Claims Reserve.
D. Distributions After Allowance
The SWINC Disbursing Agent and the SWE&C Liquidating Trust Disbursing
Agent shall make payments and distributions from the appropriate Reserves to
the holder of any Disputed Claim that has become an Allowed Claim or Allowed
Interest, on the first Semi-Annual Distribution Date following the
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(2) Included in the SWE&C Operating Reserve is $150,000, which represents
one-half of the severance package for James Carroll. The full
severance package of $300,00 shall be deemed to have been earned by
Mr. Carroll upon confirmation of the Third Joint Plan, but such
payment will be deferred until Mr. Carroll's employment is
terminated, whether voluntary or not.
date that such Disputed Claim becomes an Allowed Claim. Such distributions
shall be made in accordance with the Third Joint Plan, the SWINC Plan
Administrator Agreement and the SWE&C Liquidating Trust Agreement, as the case
may be.
ARTICLE XII
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE THIRD JOINT PLAN
A. Conditions to Confirmation
The following are conditions precedent to the occurrence of the
Confirmation Date: (a) the entry of an order finding that the Disclosure
Statement contains adequate information within the meaning of section 1125 of
the Bankruptcy Code and (b) the proposed Confirmation Order shall be in a form
and substance reasonably acceptable to the Plan Proponents.
B. Conditions to Effective Date
The following are conditions precedent to the occurrence of the
Effective Date, each of which must be satisfied or waived in accordance with
Article XII.C of this Third Joint Plan:
1. The Confirmation Order shall have been entered and become
enforceable pursuant to Bankruptcy Rule 7052 and not the subject of a stay
under Bankruptcy Rule 7062 and shall:
(A) authorize and direct the Debtors to take all
actions necessary or appropriate to enter into, implement, and consummate the
instruments, releases, and other agreements or documents created in connection
with the Third Joint Plan;
(B) authorize the issuance of Reorganized SWINC New
Common Stock, Reorganized SWINC New Series A Preferred Stock and Reorganized
SWINC New Series B Preferred Stock; and
(C) provide that the Reorganized SWINC New Common
Stock, the Reorganized SWINC New Series A Preferred Stock and the Reorganized
SWINC New Series B Preferred Stock issued under the Third Joint Plan are
exempt from registration under the Securities Act 1933, as amended, pursuant
to Section 4(2) of the Securities Act.
2. All Plan Exhibits shall be in form and substance reasonably
acceptable to the Plan Proponents and shall have been executed and delivered.
3. All actions, documents and agreements necessary to implement
the Third Joint Plan shall have been effectuated or executed.
C. Waiver of Conditions
Each of the conditions set forth in Articles XII.A and XII.B of the
Third Joint Plan, may be waived in whole or in part by the Debtors, without
any other notice to parties in interest or the Court and without a hearing.
The failure to satisfy or waive any condition to the Confirmation or the
Effective Date may be asserted by the Debtors or Reorganized SWINC regardless
of the circumstances giving rise to the failure of such condition to be
satisfied (including any action or inaction by the Debtors or Reorganized
SWINC). The failure of the Debtors or Reorganized SWINC to exercise any of the
foregoing rights shall not be deemed a waiver of any other rights, and each
such right shall be deemed an ongoing right that may be asserted at any time.
ARTICLE XIII
EFFECT OF THIRD JOINT PLAN CONFIRMATION
A. Binding Effect
The Third Joint Plan shall be binding upon and inure to the benefit
of the Debtors, all present and former holders of Claims and Interests, and
their respective successors and assigns.
B. Releases
1. Releases by the Debtors
A. On the Effective Date, each of the Debtors shall release
unconditionally (i) the SWE&C Liquidating Trustee, (ii) the SWE&C Liquidating
Trust Disbursing Agent, (iii) the SWINC Disbursing Agent, (iv) the SWINC Plan
Administrator, (v) their respective directors and officers, advisors,
accountants, investment bankers, consultants, and attorneys, (vi) the
Interestate Oversight Board, and (vii) the respective advisors, accountants,
investment bankers, and attorneys of any of the foregoing, solely in their
respective capacities as such, from any and all claims, obligations, suits,
judgments, damages, rights, causes of action and liabilities whatsoever (other
than the right to enforce the performance of their respective obligations, if
any, to the Debtors or Reorganized SWINC under the Third Joint Plan and the
contracts, instruments, releases and other agreements delivered under the
Third Joint Plan), whether liquidated or unliquidated, fixed or contingent,
matured or unmatured, known or unknown, foreseen or unforeseen, then existing
or thereafter arising, in law, equity or otherwise that are based in whole or
in part on any act or omission, transaction, event or other occurrence taking
place on or after the Petition Date and prior to or on the Effective Date and
in any way relating to the Debtors, the Chapter 11 Cases, the Third Joint Plan
or the Disclosure Statement.
B. On the Effective Date, each of the Debtors and their Estates
shall release unconditionally those present directors, which directors served
only as directors and not as officers of any of the Debtors, in their
respective capacities as such, from any and all claims, obligations, suits,
judgments, damages, rights, causes of action and liabilities whatsoever (other
than the right to enforce the performance of their respective obligations, if
any, to the Debtors or Reorganized SWINC under the Third Joint Plan and the
contracts, instruments, releases and other agreements delivered under the
Third Joint Plan), whether liquidated or unliquidated, fixed or contingent,
matured or unmatured, known or unknown, foreseen or unforeseen, then existing
or thereafter arising, in law, equity or otherwise that are based in whole or
in part on any act or omission, transaction, event or other occurrence taking
place prior to or on the Effective Date that could have been asserted by or on
behalf of any of the Debtors or their Estates against such current and former
directors.
2. Releases by Holders of Claims and Interests
On the Effective Date, to the fullest extent
permissible under applicable law, as such law may be extended or interpreted
subsequent to the Effective Date, in consideration for the obligations of the
Debtors and Reorganized SWINC under the Third Joint Plan and the Cash and
other contracts, instruments, releases, agreements or documents to be
delivered in connection with the Third Joint Plan, each entity (other than a
Debtor) that has held, holds or may hold a Claim or Interest (except for
holders of Asbestos Claims), as applicable, will be deemed to forever release,
waive and discharge all claims, demands, debts, rights, causes of action or
liabilities (other than the right to enforce the Debtors' or Reorganized
SWINC's obligations under the Third Joint Plan and the contracts, instruments,
releases, agreements and documents delivered under the Third Joint Plan),
whether liquidated or unliquidated, fixed or contingent, matured or unmatured,
known or unknown, foreseen or unforeseen, then existing or thereafter arising,
in law, equity or otherwise that are based in whole or in part on any act or
omission, transaction, event or other occurrence taking place at any time on
or prior to the Effective Date in any way relating to the Debtors, the Chapter
11 Cases, the Third Joint Plan or the Disclosure Statement that such entity
has, had or may have against (i) the Debtors, and, solely in their respective
capacities as such: (ii) the SWE&C Liquidating Trustee, (iii) the SWE&C
Liquidating Trust Disbursing Agent, (iv) the SWINC Disbursing Agent, (v) and
the SWINC Plan Administrator; provided, however, that the Third Joint 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 solely in their
capacity as fiduciaries of the Pension Plan or such other plan.
3. Injunction Related to Releases
The Confirmation Order will permanently enjoin the
commencement or prosecution by any entity, whether directly, derivatively or
otherwise, of any claims, obligations, suits, judgments, damages, demands,
debts, rights, causes of action or liabilities released pursuant to the Third
Joint Plan, including, but not limited to the claims, obligations, suits,
judgments, damages, demands, debts, rights, causes of action or liabilities
released in this Article XIII.B, provided, however, that the Third Joint 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 solely in their
capacity as fiduciaries of the Pension Plan or such other plan.
C. Discharge of Claims and Termination of Interests
Pursuant to section 1141(d)(1) of the Bankruptcy Code, Confirmation
will discharge Claims against and Interests in SWINC and the SWINC
Subsidiaries and no holder of a Claim against or Interest in SWINC or the
SWINC Subsidiaries may, on account of such Claim or Interest, seek or receive
any payment or other distribution from, or seek recourse against Reorganized
SWINC, SWINC, the SWINC Subsidiaries, their respective successors or their
respective property, except as expressly provided herein.
Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation
will not discharge Claims against SWE&C and the SWE&C Subsidiaries; provided,
however, that no holder of a Claim against or Interest in SWE&C or the SWE&C
Subsidiaries may, on account of such Claim or Interest, seek or receive any
payment or other distribution from, or seek recourse against, SWE&C, the SWE&C
Subsidiaries, the Consolidated SWE&C Estate, their respective successors or
their respective property, except as expressly provided herein.
D. Exculpation and Limitation of Liability
None of the Debtors, Federal, Maine Yankee, the Creditors' Committee,
past and present members of the Creditors' Committee in their capacities as
such, the Equity Committee, past and present members of the Equity Committee
in their capacities as such, nor any of their respective present or former
officers and directors (who were officers and directors on the Petition Date),
advisors or attorneys, shall have or incur any liability to, or be subject to
any right of action by, any holder of a Claim or an Interest, or any other
party in interest, or any of their respective agents, shareholders, employees,
representatives, financial advisors, attorneys or affiliates, or any of their
successors or assigns, for any act or omission occurring on or after the
Petition Date in connection with, relating to, or arising out of, the Debtors'
Chapter 11 Cases, the pursuit of confirmation of the Third Joint Plan, the
consummation of the Third Joint Plan or the administration of the Third Joint
Plan or the property to be distributed under the Third Joint Plan, except for
their willful misconduct or gross negligence and except with respect to any
claim against a fiduciary of the Pension Plan, the Employee Stock Ownership
Plan of Stone & Webster, Incorporated and Participating Subsidiaries, the
Group Life Insurance and Spouses Insurance Plan of Stone & Webster or the
Employee Investment Plan of Stone & Webster Incorporated and Participating
Subsidiaries with respect to the Pension Plan or such other plan, and in all
respects shall be entitled to rely reasonably upon the advice of counsel with
respect to their duties and responsibilities under the Third Joint Plan,
provided, however, that the Third Joint 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 solely in their capacity as fiduciaries of the
Pension Plan or such other plan.
E. Injunction
Except as otherwise provided in the Third Joint Plan or the
Confirmation Order, as of the Confirmation Date, all entities that have held,
hold or may hold a Claim or other debt or liability against SWINC, a SWINC
Subsidiary or the Consolidated SWINC Estate or an Interest in SWINC or a SWINC
Subsidiary or the Consolidated SWINC Estate are (a) permanently enjoined from
taking any of the following actions against the Estate of SWINC, the Estates
of the SWINC Subsidiaries, the SWINC Plan Administrator (solely in his/her
capacity as such), the Consolidated SWINC Estates, Reorganized SWINC, or any
of their property on account of any such Claims or Interests and (b)
preliminarily enjoined from taking any of the following actions against SWINC,
a SWINC Subsidiary, the Consolidated SWINC Estate, Reorganized SWINC, or their
property on account of such Claims or Interests: (i) commencing or continuing,
in any manner or in any place, any action or other proceeding; (ii) enforcing
attaching, collecting or recovering in any manner any judgment, award, decree
or order; (iii) creating, perfecting or enforcing any lien or encumbrance;
(iv) asserting a setoff, right of subrogation or recoupment of any kind
against any debt, liability or obligation due to the SWINC or the SWINC
Subsidiaries; and (v) commencing or continuing, in any manner or in any place,
any action that does not comply with or is inconsistent with the provisions of
the Third Joint Plan; provided, however, that nothing contained herein shall
preclude such persons from exercising their rights pursuant to and consistent
with the terms of the Third Joint Plan, and provided, further, however, that
the Third Joint 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
solely in their capacity as fiduciaries of the Pension Plan or such other
plan. In addition, nothing in this provision will affect or impair the rights,
if any, that a non-debtor entity has to take direct actions to recover under
policies of insurance where such non-debtor entity is a "co-insured" or
"additional insured" with a Debtor.
Except as otherwise provided in the Third Joint Plan or the
Confirmation Order, as of the Confirmation Date, all entities that have held,
hold or may hold a Claim or other debt or liability against SWE&C or the SWE&C
Subsidiaries or an Interest in SWE&C or the SWE&C Subsidiaries are (a)
permanently enjoined from taking any of the following actions against the
Estate of SWE&C, the Estates of the SWE&C Subsidiaries, the SWE&C Liquidating
Trustee, or any of their property on account of any such Claims or Interests
and (b) preliminarily enjoined from taking any of the following actions
against SWE&C, the SWE&C Subsidiaries or their property on account of such
Claims or Interests: (i) commencing or continuing, in any manner or in any
place, any action or other proceeding; (ii) enforcing attaching, collecting or
recovering in any manner any judgment, award, decree or order; (iii) creating,
perfecting or enforcing any lien or encumbrance; (iv) asserting a setoff,
right of subrogation or recoupment of any kind against any debt, liability or
obligation due to the SWE&C or the SWE&C Subsidiaries; and (v) commencing or
continuing, in any manner or in any place, any action that does not comply
with or is inconsistent with the provisions of the Third Joint Plan; provided,
however, that nothing contained herein shall preclude such persons from
exercising their rights pursuant to and consistent with the terms of the Third
Joint Plan, and provided, further, however, that the Third Joint 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 solely in their capacity as
fiduciaries of the Pension Plan or such other plan. In addition, nothing in
this provision will affect or impair the rights, if any, that a non-debtor
entity has to take direct actions to recover under policies of insurance where
such non-debtor entity is a "co-insured" or "additional insured" with a
Debtor.
By accepting distributions pursuant to the Third Joint Plan, each
holder of an Allowed Claim or Allowed Interest receiving distributions
pursuant to the Third Joint Plan will be deemed to have specifically consented
to the injunctions set forth in this Article XIII.E.
F. Satisfaction of Subordination Rights
Nothing in this Third Joint Plan shall affect any rights and claims
between or among Claimholders relating in any manner whatsoever to
distributions on account of Claims against or Interests in the Debtors, based
upon any subordination rights, whether asserted or unasserted, legal or
equitable. Distributions to the various Classes of Claims and Interests
hereunder shall not be subject to levy, garnishment, attachment, or like legal
process by any Claimholder or Interestholder by reason of any subordination
rights or otherwise, so that each Claimholder and Interest holder shall have
and receive, the benefit of the distributions in the manner set forth in the
Third Joint Plan, any beneficiary of such subordination rights shall have no
claim or cause of action against the Debtors, the SWINC Plan Administrator,
the SWE&C Liquidating Trustee or any Cash or property to be distributed under
the Plan and must assert such subordination rights directly against
Claimholders or Interestholders subject to such subordination rights.
G. Compromises and Settlements
1. Settlement Authority
Pursuant to Bankruptcy Rule 9019(a), the Debtors
may compromise and settle various Claims against them and/or claims that they
may have against other Persons. The Debtors expressly reserve the right (with
Court approval, following appropriate notice and opportunity for a hearing) to
compromise and settle Claims against them and claims that they may have
against other Persons up to and including the Effective Date. After the
Effective Date, such right shall pass to (i) the SWINC Plan Administrator
pursuant to Articles VII.L of the Third Joint Plan, or (ii) the SWE&C
Liquidating Trustee pursuant to Articles VII.O of the Third Joint Plan.
2. Substantive Consolidation
To avoid continued litigation with respect to Substantive
Consolidation and related issues regarding the Pension Plan Reversion, the
Proponents propose the Third Joint Plan, which provides, among other things,
that upon the Effective Date, two separate consolidated estates will be
created.
(a) The Substantive Consolidation of SWINC and the
SWINC Subsidiaries
On the Effective Date, the Estates of SWINC and the
SWINC Subsidiaries shall be substantively consolidated as follows: (i) the
SWINC Subsidiaries shall be merged with and into SWINC, with the surviving
corporation being Reorganized SWINC, (ii) all Intercompany Claims by, between
and among SWINC and the SWINC Subsidiaries shall be forgiven and eliminated,
(iii) all assets and liabilities of the SWINC Subsidiaries shall be merged or
treated as if they were merged with the assets and liabilities of SWINC, (iv)
any obligation of SWINC or one of the SWINC Subsidiaries and all guarantees
thereof by SWINC or one of the SWINC Subsidiaries shall be deemed to be one
obligation of SWINC, and (v) each Claim filed, or to be filed or allocated
against SWINC or a SWINC Subsidiary shall be deemed filed only against SWINC
and shall be deemed a single Claim against and a single obligation of SWINC.
On the Effective Date, and in accordance with the terms of the Third Joint
Plan and the consolidation of the assets and liabilities of SWINC and the
SWINC Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWINC or the SWINC Subsidiaries as to the obligations of
SWINC or one of the SWINC Subsidiaries shall be released and of no further
force and effect.
(b) The Substantive Consolidation of SWE&C and
the SWE&C Subsidiaries
The Third Joint Plan contemplates and is also
predicated upon the substantive consolidation of the Estates of SWE&C and the
SWE&C Subsidiaries for the purposes of all actions associated with
confirmation and consummation of the Third Joint Plan. On the Effective Date,
the Estates of SWE&C and the SWE&C Subsidiaries shall be substantively
consolidated as follows: (i) all assets and liabilities of the SWE&C
Subsidiaries shall be merged or treated as if they were merged with the assets
and liabilities of SWE&C, (ii) all Intercompany Claims by, between and among
SWE&C and the SWE&C Subsidiaries shall be forgiven and eliminated, (iii) any
obligation of SWE&C or one of the SWE&C Subsidiaries and all guarantees
thereof by SWE&C or one of the SWE&C Subsidiaries shall be deemed to be one
obligation of SWE&C, (iv) each Claim filed, or to be filed or allocated
against SWE&C and/or a SWE&C Subsidiary shall be deemed filed only against
SWE&C and shall be deemed a single Claim against and a single obligation of
SWE&C, and (v) all Interests in SWE&C or any SWE&C Subsidiary shall be
cancelled and the holders thereof shall not be entitled to any distribution.
On the Effective Date, and in accordance with the terms of the Third Joint
Plan and the consolidation of the assets and liabilities of SWE&C and the
SWE&C Subsidiaries, all Claims based upon guarantees of collection, payment or
performance made by SWE&C or one of the SWE&C Subsidiaries as to the
obligations of SWE&C or one of the SWE&C Subsidiaries shall be released and of
no further force and effect.
(c) The Pension Plan Reversion
Pursuant to Bankruptcy Rule 9019 under the Third
Joint Plan and as part of the Substantive Consolidation Settlement, the
Proponents also propose to settle certain disputes regarding the potential
reversionary interest associated with the overfunded Pension Plan.
Specifically, the Plan Proponents believe that the Pension Plan is presently
overfunded and that upon termination of the Pension Plan in a state law
dissolution of Reorganized SWINC, funds in excess of $30 million net of taxes,
after all liabilities of the Pension Plan to Pension Plan participants have
been satisfied, will revert to the Debtors' estates and become available for
distribution to holders of Claims and Interests. As part of the Substantive
Consolidation Litigation, the Equity Committee has asserted that holders of
Claims against and Interests in SWINC are entitled to the entire amount of the
Reversion because SWINC is the sole legal owner of the Reversion under the
Pension Plan documents. In response, the Creditors' Committee has asserted
that the Reversion should be available to pay the holders of Claims against
SWE&C and the SWE&C Subsidiaries and only after that would a distribution be
made to holders of Equity Interests in SWINC because, among other things, the
contributions to such Pension Plan were made primarily by employees of SWE&C
on behalf of its employee. To avoid further litigation as to the Reversion,
and as part of the Substantive Consolidation and Federal Settlement, the
Proponents propose to settle all disputes regarding the Pension Plan and the
Reversion as follows:
1. In the event Class 9A: SWINC Equity Interests vote to
accept the Third Joint Plan, the Reversion from the
Pension Plan will be distributed as follows: (i)
two-thirds (2/3) of the Reversion's first $30 million
to the Consolidated SWINC Estate; (ii) one-third
(1/3) of the Reversion's first $30 million to the
Consolidated SWE&C Estate; and (iii) if the Reversion
exceeds $30 million, an equal distribution between
the Consolidated SWE&C Estate and the Consolidated
SWINC Estate of any Reversion in excess of $30
million.
2. In the event Class 9A: SWINC Equity Interests vote to
reject the Third Joint Plan, the Reversion from the
Pension Plan will be distributed as follows: (i)
two-thirds of the Reversion's first $30 million to
the Consolidated SWINC Estate; (ii) one-third of the
Reversion's first $30 million to the Consolidated
SWE&C Estate; and (iii) if the Reversion exceeds $30
million, a distribution of seventy-five percent (75%)
of any Reversion in excess of $30 million to the
Consolidated SWE&C Estate and twenty-five percent
(25%) of any Reversion in excess of $30 million to
the Consolidated SWINC Estate.
The Proponents believe that such a settlement is fair and
equitable because, among other things, (i) prior to SWINC becoming the sole
legal sponsor of the Pension Plan, each then individual Debtor was a sponsor
and (ii) even after SWINC became the legal sponsor, the overfunded Pension
Plan was carried on the books and records of SWEC and (iii) Mercer Human
Resources Consulting reported on a nonconsolidated basis by operating unit of
the Debtors with respect to Pension Plan expenses and assets in addition to
reporting on a consolidated basis at the SWINC level in accordance with
general accepted accounting principles.
3. The Federal Settlement
As part of the Third Joint Plan, the Plan Proponents also
propose a settlement of various claims filed by Federal. Specifically, Federal
initially filed numerous unliquidated and contingent proofs of claim in the
Bankruptcy Cases in the amount of $371,505,215.90, of which at least
$55,208,965.23 has been subsequently liquidated (the "Federal Liquidated
Claim"). The balance of $316,296,205.69 represents unliquidated claims
asserted by Federal against, among others, SWINC and SWEC. In addition to
asserting claims against each of the primary obligors, Federal also asserted a
Claim directly against SWINC pursuant to certain General Indemnity Agreements
executed between Federal and SWINC. A significant portion of the Federal
Liquidated Claim, in the amount of $44 million, arises in connection with
Federal's payment under certain Payment and Performance Bonds between SWE&C
and Federal related to Maine Yankee.
Originally, Federal opposed the Substantive Consolidation
proposed by the Creditors' Committee and was in negotiations with the Equity
Committee regarding support for its plan. Subsequent to the Initial Disclosure
Statement Hearing, the Debtors reached an agreement with Federal regarding
Substantive Consolidation and the Federal Claims. As ultimately agreed to by
the Creditors' Committee and incorporated into the plan, that settlement
provided, among other things, an opportunity for Class 9A: SWINC Equity
Interests that voted to accept an immediate Cash payment of $0.50 per share.
As a result of subsequent events, including, among other things, the Equity
Committee's continued prosecution of a separate plan, part of the settlement
was withdrawn. Under current Third Joint Plan, however, a similar opportunity
exists.
Specifically, the terms of the Federal Settlement are as
follows:
o Federal will hold an Allowed Federal Claim in the
amount of $52,113,000 against both the Consolidated
SWINC Estate and the Consolidated SWE&C Estate and
will be permitted to vote such Allowed Federal Claim
as an Allowed Class 5A Claim and an Allowed Class 5B
Claim. On the Effective Date, however, Federal will
be deemed to have elected under sections 502 and 509
of the Bankruptcy Code to receive distributions on
the Allowed Federal Claim filed against the
Consolidated SWINC Estate only, and any distribution
on such Allowed Federal Claim shall satisfy and
discharge any obligation by the Debtors on Proof of
Clam No. 5179 filed by Lumbermens in an amount in
excess of $6 million relating to potential losses by
Lumbermens in connection with its issuance of surety
bonds, which claim amended and superseded Proofs of
Claim Nos. 3300 and 4419.
o In addition, Chubb Canada will receive a distribution
of the Canadian Cash, which Cash shall be held in
trust by Chubb Canada for its use in defending,
settling or otherwise resolving the Isobord
Litigation, as well as an assignment from Debtor or
non-debtor affiliate insured/obligee of all insurance
proceeds in excess of the Canadian Cash relating to
Isobord, including, without limitation, errors and
omission, efficacy, directors and officers and any
other policy or bond that may provide coverage or
indemnification for Isobord claims. Any Canadian Cash
remaining at the conclusion of the Isobord Litigation
shall be paid over to the SWE&C Liquidating Trustee
to be distributed in accordance with the Third Joint
Plan. The Debtors, non-debtor affiliates, the
Consolidated SWINC Estate and/or Reorganized SWINC
will not be permitted to settle any potentially
insured Isobord claim without obtaining Federal's
consent.
o Upon the allowance of the Federal Claims, Federal
will also release any and all Claims for subrogation
or other Claims it has or might have against the
Consolidated SWINC Estate or the Consolidated SWE&C
Estate, including but not limited to, Claims for
indemnification, contribution, reimbursement or
subrogation arising out of the Isobord Litigation in
Canada. Federal shall have complete control of the
Isobord Litigation, with complete authority to settle
or otherwise resolve the Isobord Litigation without
the consent or participation of any of the Debtors.
While Federal will waive any Claim against the
Consolidated SWINC and SWE&C Estates in connection
with the Isobord Litigation, Federal is not agreeing
to indemnify SWINC or any other of the Debtors from
liability in connection with the Isobord Facility.
Furthermore, Federal is also not waiving any of its
rights or defenses as surety, either in law, in
equity or under the bonds that it might have against
Isobord with respect to the Isobord Facility or any
related contract, but in no event will the Allowed
Federal Claim exceed $52,113,000 because of the
Isobord Litigation.
o Federal will also receive the lesser of (i) ten
percent (10%) or (ii) $1,250,000 from the gross
proceeds received from any insurance recovery on the
claims asserted by Maine Yankee.
o Finally, if Class 9A: SWINC Equity Interests vote to
accept the Third Joint Plan, then upon the
Consolidated SWINC Estate having made distributions
in the aggregate amount of $25,000,000 to Federal, on
account of the Allowed Federal Claim in Class 5A,
Federal will pay to the Equity Settlement Fund, which
shall be administered by the Consolidated SWINC
Estate Governing Board, an amount equal to $0.50 per
share to Holders of Old Common Stock as of the Equity
Voting Record Date that voted to accept the Third
Joint Plan (the aggregate amount of such distribution
not to exceed $7,113,000). On the Effective Date, the
Cash in the Equity Settlement Fund shall be
distributed to holders of Allowed Class 9A: SWINC
Equity Interests (i.e., holders of Old Common Stock
as of the Equity Voting Record Date) that voted to
accept the Third Joint Plan. Federal will have no
right to recoup from the Consolidated SWINC Estate
any portion of the payment made to the Equity
Settlement Fund from either the Consolidated SWINC
Estate or the Consolidated SWE&C Estate, and the
Initial Federal Distribution shall count towards the
payment of the Allowed Federal Claim in Class 5A.
o In the event Class 9A does not vote to accept the
Third Joint Plan, Federal will retain all rights
against the Consolidated SWINC Estate on the Allowed
Federal Claim in Class 5A in the amount of
$52,113,000 for distribution purposes.
The Federal Settlement is contingent upon confirmation of
the Third Joint Plan, and will be binding on all interested parties upon
approval of the Third Joint Plan, and absent the Federal Settlement, certain
individual Debtors, including SWINC and SWEC could be liable to Federal in an
amount that exceeds $80 million.
4. The Maine Yankee Settlement
As part of the settlements embodied in the Third Joint Plan,
the Plan Proponents propose a settlement of various disputes between the
Debtors and Maine Yankee. Specifically, Maine Yankee initially filed numerous
proofs of claim in the Bankruptcy Cases in the amount of $78.2 million
stemming from alleged performance defaults under a decommissioning agreement
related to Maine Yankee's nuclear power plant in Wiscasset, Maine. Maine
Yankee's claim was ultimately capped at $64.8 million after an eight-day
proceeding to address the Maine Yankee claims, of which a total of $20.8
million was estimated to be Maine Yankee's allowable claim in the SWE&C, SWINC
and SWEC bankruptcy cases ($64.8 million less $44 million previously paid by
Federal).
Subsequent to the mediation conducted in July 2003, the
Debtors, Federal and the Creditors' Committee reached an agreement with Maine
Yankee regarding the Maine Yankee Claims. Thereafter, and as part of resolving
numerous other disputes, the Equity Committee agreed to settle the Maine
Yankee Claims, approval of which settlement is sought pursuant to this Third
Joint Plan.
The principal terms of the Maine Yankee Settlement are as
follows:
o Maine Yankee will hold an Allowed Maine Yankee Claim
in the amount of $20,300,000 against both the
Consolidated SWINC Estate and the Consolidated SWE&C
Estate and will be permitted to vote such Allowed
Maine Yankee Claim as an Allowed Class 5A Claim and
an allowed Class 5B Claim. On the Effective Date,
however, Maine Yankee will be deemed to have elected
under sections 502 and 509 of the Bankruptcy Code to
receive distributions on the Allowed Maine Yankee
Claim filed against the Consolidated SWINC Estate
only.
o If Class 9A: SWINC Equity Interests vote to accept
the Third Joint Plan, SWINC shall make the Initial
Maine Yankee Distribution to Maine Yankee on account
of the Allowed Maine Yankee Claim in Class 5A out of
which Maine Yankee will pay to the Equity Settlement
Fund, which shall be administered by the Consolidated
SWINC Estate Governing Board, an amount equal to
$0.12 per share to Holders of Old Common Stock as of
the Equity Voting Record Date that voted to accept
the Third Joint Plan (the aggregate amount of any
such payment cannot exceed $1,800,000). On the
Effective Date, the Cash in the Equity Settlement
Fund shall be distributed to holders of Allowed Class
9A: SWINC Equity Interests (i.e., holders of Old
Common Stock as of the Equity Voting Record Date)
that voted to accept the Third Joint Plan. Maine
Yankee will not have the right to recoup from either
the Consolidated SWINC Estate or the Consolidated
SWE&C Estate any portion of the payment made to the
Equity Settlement Fund, and the Initial Maine Yankee
Distribution shall count towards the payment of the
Allowed Maine Yankee Claim in Class 5A.
o In the event Class 9A does not vote to accept the
Third Joint Plan, Maine Yankee will retain all rights
against the Consolidated SWINC Estate on the Allowed
Maine Yankee Claim in Class 5A in the amount of
$20,300,000 for distribution purposes.
o The Consolidated SWINC Estate will have the SWINC MY
Contribution Claim against the Consolidated SWE&C
Estate in the fixed allowed amount of $16.8 million,
regardless of actual cash distributions made by SWINC
on the Allowed Maine Yankee Claim, which claim shall
be treated as an Allowed Class 5B: SWE&C General
Unsecured Claim; provided, however, that in no event
shall Maine Yankee be entitled to distributions in
excess of $20,300,000 (including, without limitation,
amounts received on account of the SWINC MY
Contribution Claim).
o Maine Yankee will have a first lien on any
distributions from the Consolidated SWE&C Estate on
account of the SWINC MY Contribution Claim for any
amount necessary to "top up" the cash recovery by
Maine Yankee against SWINC to $18.5 million, net of
any payment made by Maine Yankee to the Equity
Settlement Fund.
o Upon Maine Yankee's receipt of $18.5 million in cash
(after giving effect to any payments made to the
Equity Settlement Fund on account of accepting Class
9A: SWINC Equity Interests), all proceeds payable by
the Consolidated SWE&C Estate on account of the SWINC
MY Contribution Claim will be made to the
Consolidated SWINC Estate for distribution under the
Third Joint Plan.
o Notwithstanding any contrary provision of Article
VII, Section R of the Third Joint Plan, the Debtors
shall release all claims and causes of action that
they or any one of them have or may have had against
Maine Yankee, as of the Effective Date. Without
limiting the generality of the following, Adversary
Proceeding No. 02-02031 (PJW) now pending in the
Court, shall be dismissed, with prejudice and without
costs to any party.
The Maine Yankee Settlement is contingent upon confirmation
of the Third Joint Plan and will be binding.
5. The Equity Settlement Fund
The Equity Settlement Fund shall be Administered by the
Consolidated SWINC Estate for the benefit of all Holders of Old Common Stock,
as of the Equity Voting Record Date, who voted to accept the Third Joint Plan.
The cost of administering the Equity Settlement Fund shall be paid by the
Consolidated SWINC Estate. Holders of Old Common Stock as of the Equity Voting
Record Date that voted to accept the Third Joint Plan shall be deemed to hold
a pro rata beneficial interest in the Equity Settlement Fund, determined by
the number of shares held by each Holder in relation to the total number of
shares that voted to accept the Third Joint Plan.
6. The Asbestos Trust
As part of the Third Joint Plan, the Plan Proponents propose
a settlement of disputes between the Debtors and the Asbestos Insurance
Carriers. The Asbestos Insurance Carriers have contended that they hold
certain claims against the Debtors arising from the Debtors' obligations under
certain insurance policies and claims handling agreements. Specifically, the
Asbestos Insurance Carriers note that the Asbestos Insurance Carriers issued,
before the Petition Date, liability insurance policies to one or more of the
Debtors that relate to, among other things, potential liability for exposure
of third parties to asbestos. The Asbestos Insurance Carriers also contend
that SWEC is party to a number of pre-petition claims handling agreements,
including, but not limited to the Weitz & Luxenberg Agreements, under which
SWEC undertook certain obligations with respect to lawsuits brought against
SWEC for personal injury based upon exposure to asbestos. The Asbestos
Insurance Carriers argue that they hold claims against the Debtors because,
under the insurance policies and the claims handling agreements, the Debtors
promised to (i) pay certain amounts relating to defense costs, (ii) cooperate
with the Asbestos Insurance Carriers in the defense of claims, and (iii) to
pay certain amounts with respect to any settlements or judgements. The
Asbestos Carriers finally contend that unless the Debtors provide adequate
means for performance of the Debtors' ongoing obligations under the insurance
policies and the claims handling agreements, such as cooperating on the
defense of claims, receipt of service of process and maintaining corporate
records, the Asbestos Insurance Carriers would no longer have a duty to defend
or indemnify. The Debtors dispute these contentions of the Asbestos Insurance
Carriers.
In order to resolve the dispute, the Proponents and the
Asbestos Insurance Carriers reached an agreement regarding ongoing obligations
to defend and indemnify. The substance of the agreement is set forth in the
Asbestos Trust and is more specifically set forth in Article VII.M. and
Exhibit A of the Third Joint Plan.
ARTICLE XIV
RETENTION OF JURISDICTION
Pursuant to sections 105(a) and 1142 of the Bankruptcy Code and
notwithstanding entry of the Confirmation Order and the occurrence of the
Effective Date, the Court will retain exclusive jurisdiction over all matters
arising out of, and related to, the Chapter 11 Cases and the Third Joint Plan
to the fullest extent permitted by law, including, among other things,
jurisdiction to:
(i) Allow, disallow, determine, liquidate,
classify, estimate or establish the priority or secured or unsecured
status of any Claim or Interest, including the resolution of any
request for payment of any Administrative Claim and the resolution of
any objections to the allowance or priority of Claims or Interests;
(ii) Hear and determine all suits or adversary
proceedings to recover assets of the Debtors and property of their
Estates, wherever located;
(iii) Hear and determine all matters related to
the assumption, assumption and assignment, or rejection of any
executory contract or unexpired lease to which any Debtor may be
liable, including, if necessary, the nature or amount of any required
Cure of the liquidation or allowance of any Claims arising therefrom;
(iv) Ensure that distributions to holders of
Allowed Claims and Allowed Interests are accomplished pursuant to the
provisions of the Third Joint Plan;
(v) Hear and determine any and all adversary
proceedings, motions, applications, and contested or litigated
matters arising out of, under, or related to, the Chapter 11 Cases;
(vi) Enter such orders as may be necessary or
appropriate to execute, implement or consummate the provisions of the
Third Joint Plan and all contracts, instruments, releases and other
agreements or documents created in connection with the Third Joint
Plan, the Disclosure Statement or the Confirmation Order;
(vii) Resolve any cases, controversies, suits
or disputes that may arise in connection with the consummation,
interpretation or enforcement of the Third Joint Plan or any
contract, instrument, release or other agreement or document that is
executed or created pursuant to the Third Joint Plan, or any entity's
rights arising from or obligations incurred in connection with the
Third Joint Plan or such documents;
(viii) Consider any modifications of the Third
Joint Plan, cure any defect or omission, or reconcile any
inconsistency in any order of the Court including, without
limitation, the Confirmation Order;
(ix) Hear and determine all applications for
compensation and reimbursement of expenses of Professionals under the
Third Joint Plan or under sections 330, 331 503(b), 1103 and
1129(a)(4) of the Bankruptcy Code, provided, however, that from and
after the Effective Date the payment of fees and expenses of the
Professionals of Reorganized SWINC shall be made in the ordinary
course of business and shall not be subject to the approval of the
Court;
(x) Issue injunctions, enter and implement
other orders or take such other actions as may be necessary or
appropriate to restrain interference by any Entity with consummation,
implementation or enforcement of the Third Joint Plan or the
Confirmation Order;
(xi) Hear and determine matters concerning
state, local and federal taxes in accordance with sections 346, 505
and 1146 of the Bankruptcy Code;
(xii) Enter and implement such orders as are
necessary or appropriate if the Confirmation Order is for any reason
or in any respect modified, stayed, reversed, revoked or vacated or
distributions pursuant to the Third Joint Plan are enjoined or
stayed;
(xiii) Enforce all orders, judgments,
injunctions, releases, exculpations, indemnifications and rulings
entered in connection with the Chapter 11 Cases;
(xiv) Hear and determine all disputes or other
matters arising in connection with the interpretation, implementation
or enforcement of the Asset Purchase Agreement and the Sale Order;
(xv) Hear and determine disputes with respect
to compensation of the SWE&C Liquidating Trustee and his professional
advisors;
(xvi) Hear and determine disputes with respect
to compensation of the SWINC Plan Administrator and his professional
advisors;
(xvii) Hear and determine such other matters as
may be provided in the Confirmation Order or as may be authorized
under, or not inconsistent with, provisions of the Bankruptcy Code;
and
(xviii)Enter a final decree closing the Chapter
11 Cases.
ARTICLE XV
MISCELLANEOUS PROVISIONS
A. Bar Dates for Certain Claims
1. Administrative Claims Bar Date
The Confirmation Order will establish an
Administrative Claims Bar Date for filing Administrative Claims, which date
shall be sixty (60) days after the Confirmation Date (the "Administrative
Claims Bar Date"). Holders of asserted Administrative Claims, except for
Professional Fee Claims, not paid prior to the Effective Date shall submit
requests for payment of Administrative Claim on or before such Administrative
Claims Bar Date or forever be barred from doing so. The notice of the
Effective Date to be delivered pursuant to Bankruptcy Rules 3020(c) and
2002(f) will set forth such date and constitute notice of this Administrative
Claims Bar Date. The Debtors, the SWINC Plan Administrator and the SWE&C
Liquidating Trustee, as the case may be, shall have ninety (90) days (or such
longer period as may be allowed by order of the Court) following the
Administrative Claims Bar Date to review and object to such Administrative
Claims.
2. Professional Fee Claims; Substantial
Contribution Claims
All Persons requesting compensation or
reimbursement of Professional Fee Claims pursuant to section 327, 328, 330,
331, 503(b) or 1103 of the Bankruptcy Code for services rendered to the
Debtors prior to the Effective Date (including requests under section
503(b)(4) of the Bankruptcy Code by any Professional or other entity for
making a substantial contribution in the Chapter 11 Cases) shall file and
serve on the SWINC Plan Administrator and the SWE&C Liquidating Trustee an
application for final allowance of compensation and reimbursement of expenses
no later than ninety (90) days after the Confirmation Date, unless otherwise
ordered by the Court (the "Professional Fee Bar Date"). Objections to
applications of such Professionals or other entities for compensation or
reimbursement of expenses must be filed and served on the SWINC Plan
Administrator, and the SWE&C Liquidating Trustee and the requesting
Professional or other entity no later than sixty (60) days after the
Professional Fee Bar Date (or such longer period as may be allowed by order of
the Court).
B. Payment of Statutory Fees
All fees payable pursuant to section 1930 of title 28 of the United
States Code, as determined by the Court at the Confirmation Hearing, shall be
paid on the Effective Date, and neither the Debtors, their Estates, the SWINC
Plan Administrator nor the SWE&C Liquidating Trustee shall thereafter be
liable for the payment of any additional fees under 28 U.S.C. ss. 1930, other
than with respect to the Chapter 11 Cases of SWINC and SWE&C.
C. Amendment or Modification of the Third Joint Plan
The Plan Proponents may alter, amend, or modify the Third Joint Plan
or any Plan Exhibits under section 1127(a) of the Bankruptcy Code at any time
prior to the Confirmation Hearing, provided all Plan Proponents have agreed to
such alteration, amendment or modification. After the Confirmation Date and
prior to substantial consummation of the Third Joint Plan as defined in
section 1101(2) of the Bankruptcy Code, the Plan Proponents may, under section
1127(b) of the Bankruptcy Code, institute proceedings in the Court to remedy
any defect or omission or reconcile any inconsistencies in the Third Joint
Plan, the Disclosure Statement, or the Confirmation Order, and such matters as
may be necessary to carry out the purposes and effects of the Third Joint
Plan.
D. Severability of Third Joint Plan Provisions
If, prior to the Confirmation Date, any term or provision of the
Third Joint Plan is determined by the Court to be invalid, void or
unenforceable, the Court, at the request of any Debtor, will have the power to
alter and interpret such term or provision to make it valid or enforceable to
the maximum extent practicable, consistent with the original purpose of the
term or provision held to be invalid, void or unenforceable, and such term or
provision will then be applicable as altered or interpreted. Notwithstanding
any such holding, alteration or interpretation, the remainder of the terms and
provisions of the Third Joint Plan will remain in full force and effect and
will in no way be affected, impaired or invalidated by such holding,
alteration or interpretation. The Confirmation Order will constitute a
judicial determination and will provide that each term and provision of the
Third Joint Plan, as it may have been altered or interpreted in accordance
with the foregoing, is valid and enforceable pursuant to its terms.
E. Successors and Assigns
The rights, benefits and obligations of any entity named or referred
to in the Third Joint Plan shall be binding on, and shall inure to the benefit
of any heir, executor, administrator, successor or assign of such entity.
F. Plan Supplement
Any and all exhibits, lists or schedules not filed with the Third
Joint Plan shall be contained in the Plan Supplement and filed with the Clerk
of the Bankruptcy Court no later than the deadline for objecting to the Third
Joint Plan, October 20, 2003. Upon its filing, the Plan Supplement may be
inspected in the office of the Clerk of the Bankruptcy Court or its designee
during normal business hours. Claimholders and Interestholders may obtain a
copy of the Plan Supplement upon written request to Debtor in accordance with
Article XIII.H of the Third Joint Plan. The Plan Proponents explicitly reserve
the right to modify or make additions to or subtractions from any schedule to
the Third Joint Plan and to modify any exhibit to the Third Joint Plan prior
to the Confirmation Hearing.
G. Revocation, Withdrawal or Non-Consummation
The Plan Proponents reserve the right, to revoke or withdraw the
Third Joint Plan at any time prior to the Confirmation Date and to file
subsequent plans of reorganization. If the Plan Proponents revoke or withdraw
the Third Joint Plan or if Confirmation or Consummation does not occur, then,
(i) the Third Joint Plan shall be null and void in all respects, (ii) any
settlement or compromise embodied in the Third Joint Plan (including the
fixing or limiting to an amount certain any Claim or Class of Claims),
assumption or rejection of executory contracts or leases affected by the Third
Joint Plan, and any document or agreement executed pursuant to the Third Joint
Plan, shall be deemed null and void, and (iii) nothing contained in the Third
Joint Plan shall (a) constitute a waiver or release of any Claims by or
against, or any Interests in, such Debtors or any other Person, (b) prejudice
in any manner the rights of such Debtors or any other Person, or (c)
constitute an admission of any sort by the Debtors or any other Person.
H. Notice
Any notice required or permitted to be provided to the Debtors, the
Creditors' Committee or the Equity Committee, under the Third Joint Plan shall
be in writing and served by (a) certified mail, return receipt requested, (b)
hand delivery, or (c) overnight delivery service, to be addressed as follows:
If to the Debtors:
STONE & WEBSTER, INCORPORATED
45 Milk Street
Boston, Massachusetts 02109
Attn: James P. Carroll
with copies to:
SKADDEN ARPS SLATE MEAGHER
& FLOM LLP
One Rodney Square
Wilmington, Delaware 19899-0636
Attn: Gregg M. Galardi, Esq.
Eric M. Davis, Esq.
If to Federal:
DUANE MORRIS LLP
1100 North Market Street, Suite 1200
Wilmington, Delaware 19801-1246
Attn: Michael R. Lastowski, Esq.
- and -
MANIER & HEROD
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
Attn: J. Michael Franks, Esq.
Sam H. Poteet, Jr., Esq.
Thomas T. Pennington, Esq.
If to the Creditors' Committee:
ORRICK, HERRINGTON & SUTCLIFFE LLP
666 Fifth Avenue
New York, New York 10103
Attn: Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
- and -
LANDIS RATH & COBB LLP
919 Market Street, Suite 600
P.O. Box 2087
Wilmington, Delaware 19801
Attn: Adam G. Landis, Esq.
If to the Equity Committee:
BELL, BOYD & LLOYD LLC
70 West Madison Street, Suite 3300
Chicago, IL 60602
Attn: David F. Heroy, Esq.
Carmen H. Lonstein, Esq.
- and -
BIFFERATO, BIFFERATO & GENTILOTTI
1308 Delaware Avenue
Wilmington, Delaware 19806
Attn: Ian Connor Bifferato, Esq.
If to Maine Yankee
PIERCE ATWOOD
One Monument Square
Portland, Maine 04101
Attn: William J. Kayatta, Jr., Esq.
-and-
MARCUS, CLEGG & MISTRETTA, P.A.
100 Middle Street, East Tower
Portland, Maine 04101-4102
Attn: George J. Marcus, Esq.
-and-
FERRY, JOSEPH & PEARCE, P.A.
824 Market Street, Suite 904
P.O. Box 1351
Wilmington, Delaware 19899-1351
Attn: Michael B. Joseph, Esq.
Theodore J. Tacconelli, Esq.
I. Governing Law
Except to the extent the Bankruptcy Code, the Bankruptcy Rules or
other federal law is applicable, or to the extent a Plan Exhibit provides
otherwise, the rights and obligations arising under this Third Joint Plan
shall be governed by, and construed and enforced in accordance with, the laws
of Delaware, without giving effect to the principles of conflicts of law of
such jurisdiction.
J. Term of Injunctions or Stays
With respect to SWINC, the SWINC Subsidiaries, SWE&C and the SWE&C
Subsidiaries all injunctions or stays provided for in the Chapter 11 Cases
under section 105, 362 or 524 of the Bankruptcy Code or otherwise, and in
existence on the Confirmation Date, shall remain in full force and effect
until all property of the Estate(s) of SWINC and the SWINC Subsidiaries, SWE&C
and the SWE&C Subsidiaries has been distributed.
Dated: Wilmington, Delaware
August 12, 2003
STONE & WEBSTER, INC., et al.
Debtors and Debtors-in-Possession
By: /s/ James P. Carroll
Name: James P. Carroll
Title: President and Chief Restructuring Officer
FEDERAL INSURANCE COMPANY
By: /s/ Wayne Walton
Name: Wayne Walton
Title:
MAINE YANKEE ATOMIC POWER COMPANY
By: /s/ George J. Marcus
Name: George J. Marcus
Title: Attorney
OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF
STONE & WEBSTER, INC., et al., Debtors and
Debtors-in-Possession
By: /s/ Bayard Graf
Name: Bayard Graf
Title: Chairperson, Official Committee of
Unsecured Creditors
OFFICIAL COMMITTEE OF EQUITY SECURITY HOLDERS OF
STONE & WEBSTER, INCORPORATED
By: /s/ Brian D. Brookover
Name: Brian D. Brookover
Title: Portfolio Manager
/s/ Gregg M. Galardi
Gregg M. Galardi (I.D. No. 2991)
Eric M. Davis (I.D. No. 3621)
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Debtors and
Debtors-in-Possession
Anthony Princi, Esq.
Lorraine S. McGowen, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
666 Fifth Avenue
New York, New York 10103
- and -
/s/ Adam G. Landis
Adam G. Landis (I.D. No. 3407)
LANDIS RATH & COBB LLP
919 Market Street, Suite 600
P.O. Box 2087
Wilmington, Delaware 19801
(302) 467-4400
Attorneys for the Official Committee
of Unsecured Creditors
J. Michael Franks
Sam H. Poteet, Jr.
Thomas T. Pennington
MANIER & HEROD
150 4th Avenue North, Suite 2200
Nashville, Tennessee 37219
-and-
/s/ Michael R. Lastowski
Michael R. Lastowski (I.D. No. 3892)
DUANE MORRIS LLP
1100 North Market Street, Suite 1200
Wilmington, Delaware 19801-1246
(302) 657-4900
Attorneys for Federal Insurance
Company
William J. Kayatta, Jr., Esq.
PIERCE ATWOOD
One Monument Square
Portland, Maine 04101
-and-
George J. Marcus, Esq.
MARCUS, CLEGG & MISTRETTA, P.A.
100 Middle Street, East Tower
Portland, Maine 04101-4102
-and-
/s/ George J. Marcus
Michael B. Joseph, Esq. (I.D. No. 392)
Theodore J. Tacconelli, Esq. (I.D. No. 2678)
FERRY, JOSEPH & PEARCE, P.A.
824 Market Street, Suite 904
P.O. Box 1351
Wilmington, Delaware 19899-1351
(302) 575-1555
Attorneys for Maine Yankee Atomic
Power Company
David F. Heroy, Esq.
Carmen H. Lonstein, Esq.
BELL, BOYD & LLOYD LLC
70 West Madison Street, Suite 3300
Chicago, Illinois 60602
- and -
/s/ Ian Connor Bifferato
BIFFERATO, BIFFERATO &
GENTILOTTI
Ian Connor Bifferato, Esq.
1308 Delaware Avenue
Wilmington, Delaware 19806
(302) 429-1900
Attorneys for Official Committee of Equity
Security Holders of Stone & Webster,
Incorporated
EXHIBIT A
ASBESTOS TRUST AGREEMENT
EXHIBIT B
LITIGATION CLAIMS
EXHIBIT C
SWE&C LIQUIDATING TRUST AGREEMENT
EXHIBIT D
SWINC PLAN ADMINISTRATOR AGREEMENT
[To be Filed Before the Disclosure Statement Hearing]
EXHIBIT E
AMENDED CERTIFICATE OF INCORPORATION OF REORGANIZED SWINC
EXHIBIT F
AMENDED BY-LAWS OF REORGANIZED SWINC
EXHIBIT G
CHARTER OF THE INTERESTATE OVERSIGHT BOARD
EXHIBIT H
CONTRACTS AND LEASES TO BE ASSUMED