exv99wt3ev2
Exhibit T3E-2
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
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Chapter 11 |
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NEENAH ENTERPRISES, INC., et al.,1
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Case No. 10-10360 (MFW) |
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Debtors.
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Jointly Administered |
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JOINT PLAN OF REORGANIZATION FOR
NEENAH ENTERPRISES, INC. AND ITS SUBSIDIARIES
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SIDLEY AUSTIN LLP
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YOUNG CONAWAY STARGATT & TAYLOR, LLP |
Larry J. Nyhan
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Robert S. Brady (No. 2847) |
Bojan Guzina
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Edmon L. Morton (No. 3856) |
Kerriann S. Mills
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Donald J. Bowman, Jr. (No. 4383) |
Jillian K. Ludwig
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Kenneth J. Enos (No. 4544) |
One South Dearborn Street
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The Brandywine Building |
Chicago, Illinois 60603
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1000 West Street, 17th Floor |
Telephone: (312) 853-7000
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Wilmington, Delaware 19899-0391 |
Facsimile: (312) 853-7036
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Telephone: (302) 571-6600 |
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Facsimile: (302) 571-1253 |
Counsel for the Debtors and Debtors in Possession
Dated: April 27, 2010
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1 |
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The Debtors in these chapter 11 cases, along
with the last four digits of each Debtor’s federal tax identification number,
are: Neenah Enterprises, Inc. (8281); NFC Castings, Inc. (7913); Neenah Foundry
Company (0331); Cast Alloys, Inc. (1223); Neenah Transport, Inc. (8433);
Advanced Cast Products, Inc. (7691); Gregg Industries, Inc. (8664); Mercer
Forge Corporation (1711); Deeter Foundry, Inc. (5148); Dalton Corporation
(9770); Belcher Corporation (3193); Peerless Corporation (4462); A&M
Specialties, Inc. (1756); Dalton Corporation, Warsaw Manufacturing Facility
(4775); Dalton Corporation, Ashland Manufacturing Facility (3079); Dalton
Corporation, Kendallville Manufacturing Facility (4777); Dalton Corporation,
Stryker Machining Facility Co. (3080), and Morgan’s Welding, Inc. (1300). The
mailing address for each Debtor is 2121 Brooks Avenue, Neenah, WI 54957. |
TABLE OF CONTENTS
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ARTICLE I DEFINED TERMS AND RULES OF INTERPRETATION |
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1 |
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ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS |
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16 |
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2.1.
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Unclassified Claims
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2.2.
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Classes of Claims
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ARTICLE III TREATMENT OF CLAIMS AND INTERESTS |
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3.1.
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Unclassified Claims
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3.2.
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Classification and Treatment of Claims
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3.3.
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Classification and Treatment of Interests
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3.4.
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Special Provision Regarding Unimpaired Claims
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ARTICLE IV ACCEPTANCE OR REJECTION OF THE PLAN |
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22 |
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4.1.
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Acceptance by an Impaired Class
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4.2.
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Presumed Acceptances by Unimpaired Classes
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4.3.
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Presumed Acceptance by Holders of Intercompany Claims
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4.4.
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Presumed Rejection by Impaired Classes
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4.5.
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Impaired Classes of Claims Entitled to Vote on the Plan
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ARTICLE V MEANS FOR IMPLEMENTATION OF THE PLAN |
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5.1.
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Procedural Consolidation
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5.2.
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Issuance and Distribution of New Securities and Related Matters
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5.3.
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Continued Corporate Existence and Vesting of Assets in the
Reorganized Debtors
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5.4.
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Corporate Governance, Directors, Officers and Corporate Action
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5.5.
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Cancellation of Notes, Instruments, Debentures, and NEI Common Interests
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5.6.
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Cancellation of Liens
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5.7.
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Issuance of New Securities and Related Matters
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5.8.
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Exit Financing
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5.9.
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Management Equity Incentive Plan
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5.10.
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Sources of Cash for Plan Distributions
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5.11.
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Cram-Down
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5.12.
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Restructuring Transactions
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5.13.
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Additional Transactions Authorized Under this Plan
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5.14.
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Comprehensive Settlement of Claims and Controversies
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ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS |
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6.1.
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Distributions for Claims or Interests Allowed as of the Initial
Distribution Date
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6.2.
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Interest on Claims
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6.3.
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Distributions by Disbursing Agents
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30 |
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6.4.
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Delivery of Distributions and Undeliverable or Unclaimed Distributions
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6.5.
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Record Date for Distributions
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6.6.
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Allocation of Plan Distributions Between Principal and Interest
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6.7.
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Means of Cash Payment
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6.8.
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Withholding and Reporting Requirements
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6.9.
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Setoff and Recoupment
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6.10.
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Fractional Securities
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6.11.
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Compromises and Settlements
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6.12.
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Claims Administration Responsibility
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6.13.
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Determination of Allowed Claims
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6.14.
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No Distributions Pending Allowance
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ARTICLE VII TREATMENT OF EXECUTORY CONTRACTS, UNEXPIRED LEASES AND PENSION PLANS |
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7.1.
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Assumption of Executory Contracts and Unexpired Leases
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7.2.
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Cure of Defaults Under Assumed Executory Contracts and Unexpired Leases
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7.3.
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Assumption of Collective Bargaining Agreements
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7.4.
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Insurance Policies and Agreements
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7.5.
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Post-Petition Contracts and Leases
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7.6.
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Retiree Benefits and Pension Plans
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ARTICLE VIII PROVISIONS FOR RESOLVING DISPUTED CLAIMS AND DISPUTED INTERESTS |
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8.1.
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Objections to and Estimation of Claims
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8.2.
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No Distributions Pending Allowance
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8.3.
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Distributions on Account of Disputed Claims Once They Are Allowed
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8.4.
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Reinstated Claims
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ARTICLE IX CONFIRMATION AND CONSUMMATION OF THE PLAN |
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9.1.
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Conditions to Confirmation
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9.2.
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Conditions to Effective Date
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9.3.
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Waiver of Conditions
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9.4.
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Effect of Non-Occurrence of Effective Date
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9.5.
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Notice of Effective Date
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ARTICLE X EFFECT OF PLAN CONFIRMATION |
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10.1.
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Binding Effect
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10.2.
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Exculpation, Releases and Discharge
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10.3.
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Preservation of Litigation Claims
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10.4.
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Injunction
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10.5.
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Revesting of Assets
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10.6.
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Term of Bankruptcy Injunction or Stays
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10.7.
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Termination of Subordination Rights and Settlement of Related Claims
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42 |
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ARTICLE XI RETENTION OF JURISDICTION |
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ARTICLE XII MISCELLANEOUS PROVISIONS |
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12.1.
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Surrender of Instruments
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12.2.
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Dissolution of the Committee
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12.3.
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Post-Confirmation Date Retention of Professionals
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12.4.
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Bar Date for Certain Administrative Expense Claims
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46 |
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12.5.
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Effectuating Documents and Further Transactions
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12.6.
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Employee Compensation and Benefit Plans
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46 |
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12.7.
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Corporate Action
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12.8.
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Exemption from Transfer Taxes
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47 |
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12.9.
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Payment of Statutory Fees
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47 |
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12.10.
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Amendment or Modification of this Plan
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47 |
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12.11.
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Severability of Plan Provisions
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12.12.
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Successors and Assigns
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12.13.
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Revocation, Withdrawal or Non-Consummation
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12.14.
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Notice
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12.15.
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Governing Law
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12.16.
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Tax Reporting and Compliance
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12.17.
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Exhibits
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12.18.
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Filing of Additional Documents
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12.19.
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Reservation of Rights
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49 |
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iii
EXHIBITS
Exhibit 1 — Amended and Restated Certificate of Incorporation of Reorganized NEI
Exhibit 2 — Amended and Restated By-Laws of Reorganized NEI
Exhibit 3 — New Secured Notes Indenture
Exhibit 4 — Form of New Warrants
Exhibit 5 — Directors and Officers of Reorganized NEI and the Other Reorganized Debtors
Exhibit 6 — Exit Revolving Facility Credit Agreement
Exhibit 7 — Exit Term Loan Facility Credit Agreement
Exhibit 8 — Restructuring Transactions
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INTRODUCTION
Neenah Enterprises, Inc. (“NEI”) and its affiliated Debtors in the above-referenced
Chapter 11 Cases hereby propose the following Plan for the resolution of the outstanding Claims
against and Interests in each of the Debtors. Capitalized terms used but not defined in this
paragraph have the meanings assigned to them in Article I of this Plan. The classification and
treatment of Claims against and Interests in the Debtors is set forth in Article II and Article III
of this Plan. The Debtors are the proponents of the Plan within the meaning of Section 1129 of the
Bankruptcy Code. Reference is made to the Disclosure Statement, distributed contemporaneously
herewith, for a discussion of the Debtors’ history, business, properties and operations,
projections for those operations, risk factors, a summary and analysis of this Plan, and certain
related matters including, among other things, the securities to be issued under this Plan.
Subject to certain restrictions and requirements set forth herein, in Section 1127 of the
Bankruptcy Code and in Bankruptcy Rule 3019, the Debtors reserve the right to alter, amend, modify,
supplement, revoke or withdraw the Plan prior to its substantial consummation in accordance with
the terms of this Plan, the Confirmation Order, and the Bankruptcy Code.
ARTICLE I
DEFINED TERMS AND RULES OF INTERPRETATION
A. Defined Terms. As used herein, capitalized terms shall have the meanings set forth
below. Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code or
the Bankruptcy Rules, shall have the meaning given to that term in the Bankruptcy Code or the
Bankruptcy Rules, as applicable.
1.1 Ad Hoc Committee of Secured Noteholders means the informal committee of certain
Secured Noteholders.
1.2 Ad Hoc Committee Advisors means Stroock & Stroock & Lavan LLP; Richards, Layton &
Finger P.A.; and Moelis & Company.
1.3 Ad Hoc Committee Advisors Claims means all Claims for the payment or reimbursement
of reasonable and documented fees and expenses incurred by the Ad Hoc Committee Advisors for
services provided to the Ad Hoc Committee of Secured Noteholders in connection with the Chapter 11
Cases, in each case pursuant to the terms of their respective pre-Petition Date engagement letters.
1.4 Administrative Expense Claim means a Claim for costs and expenses of
administration of the Chapter 11 Cases arising on or after the Petition Date and prior to the
Effective Date under Sections 328, 330, 363, 364(c)(1), 365, 503(b), and 507(a)(2) of the
Bankruptcy Code, including, without limitation, (a) any actual and necessary costs and expenses of
preserving the Estates and operating the businesses of the Debtors from and after the Petition Date
(such as wages, salaries and commissions for services and payments for inventory, leased equipment
and premises) and Claims of governmental units for taxes (including tax audits) related to tax
years commencing after the Petition Date, but excluding Claims related to tax periods, or portions
thereof, ending on or before the Petition Date; (b) all compensation for actual and necessary
legal, financial, advisory, accounting and other services provided by the
Professionals and the reimbursement of actual and necessary expenses incurred by the
Professionals pursuant to Sections 328 or 330 of the Bankruptcy Code; (c) all Ad Hoc Committee
Advisor Claims, without any requirement for the filing of retention applications or fee
applications in the Chapter 11 Cases; (d) any indebtedness or obligations incurred or assumed by
the Debtors during the Chapter 11 Cases; (e) any payment to be made under this Plan or otherwise to
cure a default under an executory contract or unexpired lease that has been or will be assumed by
the Debtors; (f) all Secured Notes Indenture Trustee Claims, without any requirement for the filing
of retention applications or fee applications in the Chapter 11 Cases; (g) the reasonable and
documented out-of-pocket expenses incurred by members of the Ad Hoc Committee of Secured
Noteholders (excluding any fees or expenses for legal or financial advisors except as otherwise
provided herein); (h) the reasonable and documented fees and expenses incurred by legal counsel for
the Subordinated Noteholders in connection with the Chapter 11 Cases, in an amount not to exceed
$55,000; (i) any fees and charges assessed against the Estates under Section 1930, Chapter 123, of
Title 28 of the United States Code; and (j) the actual and necessary fees and expenses incurred by
the Claims and Noticing Agent.
1.5 Affiliate has the meaning assigned to such term in Section 101(2) of the
Bankruptcy Code and when used in this Plan with reference to any Debtor shall include, but not be
limited to, each of the other Debtors.
1.6 Allowed means, with respect to a Claim or Interest in the Chapter 11 Cases, or any
portion of such Claim or Interest in any Class or category specified herein, a Claim or Interest
that either (a) is listed in the Schedules as neither disputed, contingent nor unliquidated and
with respect to which no contrary or superseding Proof of Claim has been filed; (b) is evidenced by
a Proof of Claim filed on or before the applicable Claims Bar Date and is not listed as disputed,
contingent or unliquidated in the Schedules, and as to which no objection or request for estimation
has been filed on or before any applicable deadline set by the Debtors in consultation with the Ad
Hoc Committee of Secured Noteholders; (c) is not the subject of an objection to allowance that (i)
was filed on or before the Claims Objection Deadline and (ii) has not been settled, waived,
withdrawn or denied pursuant to a Final Order; or (d) is expressly allowed (i) pursuant to a Final
Order, (ii) pursuant to an agreement between the Holder of such Claim or Interest and the Debtors
or the Reorganized Debtors, as applicable, or (iii) pursuant to the terms of this Plan;
provided, however, that proofs of interest need not be filed with respect to any
Interests, including, without limitation, any NEI Common Interests.
1.7 Allowed Claim means a Claim in a particular Class or of a
particular type that is also an Allowed Claim. For example, an Allowed Administrative Expense
Claim is an Administrative Expense Claim that is also an Allowed Claim.
1.8 Amended and Restated By-Laws means the amended and restated by-laws of Reorganized
NEI, in form and substance reasonably acceptable to the Debtors and the Ad Hoc Committee of Secured
Noteholders and in substantially the form of Exhibit 2 to this Plan (to be filed with the
Plan Supplement).
1.9 Amended and Restated Certificate of Incorporation means the amended and restated
certificate of incorporation of Reorganized NEI, in form and substance reasonably
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acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders and in substantially
the form of Exhibit 1 to this Plan (to be filed with the Plan Supplement).
1.10 Assumption/Rejection Motion means a motion, in form and substance reasonably
acceptable to the Ad Hoc Committee of Secured Noteholders, to be filed by the Debtors no later than
fifteen (15) days prior to the Confirmation Hearing, seeking the Bankruptcy Court’s approval for
the assumption or rejection by the Debtors of any executory contract or unexpired lease (a) to
which any Debtor is a party and (b) which had not previously been assumed or rejected by the
Debtors pursuant to a Final Order of the Bankruptcy Court.
1.11 Avoidance Actions means causes of action arising under_Sections 542, 544,
545, 547, 548, 549, 550, 551 or 553(b) of the Bankruptcy Code, or under similar or related state or
federal statutes or common law, including fraudulent transfer laws, in each case whether or not
litigation to prosecute such causes of action was commenced prior to the Effective Date
1.12 Ballot means the ballot form for accepting or rejecting this Plan, in the form
approved by the Bankruptcy Court pursuant to the Voting Procedures Order and distributed with the
Disclosure Statement to the Holders of Claims in the Chapter 11 Cases that are Impaired under the
Plan and entitled to vote to accept or reject the Plan under Article III hereof.
1.13 Bankruptcy Code means Title 11 of the United States Code, 11 U.S.C. §§ 101
through 1532, as in effect on the Petition Date, together with any amendments and modifications
thereto that were subsequently made applicable to the Chapter 11 Cases.
1.14 Bankruptcy Court means the United States Bankruptcy Court for the District of
Delaware or any other court with jurisdiction over the Chapter 11 Cases.
1.15 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure promulgated
under Section 2075 of title 28 of the United States Code and any local rules of the Bankruptcy
Court, as in effect on the Petition Date, together with any amendments and modifications thereto
that were subsequently made applicable to the Chapter 11 Cases.
1.16 Bar Date Order means the order entered by the Bankruptcy Court on or about April
7, 2010, establishing (i) May 21, 2010 at 4 p.m. (prevailing Eastern Time) as the deadline (subject
to certain exceptions set forth therein) for all Persons and Entities other than governmental units
asserting Claims against the Debtors to file their Proofs of Claim with the Claims and Noticing
Agent and (ii) August 6, 2010 at 4 p.m. (prevailing Eastern Time) as the deadline for all
governmental units asserting Claims against the Debtors to file their Proofs of Claim with the
Claims and Noticing Agent.
1.17 Business Day means any day other than a Saturday, a Sunday or “legal holiday” (as
defined in Bankruptcy Rule 9006(a)).
1.18 Cash means legal tender of the United States of America.
1.19 Cash Equivalent means: (a) U.S. dollars and foreign currency received or
exchanged into U.S. dollars within one hundred eighty (180) days; (b) securities issued or directly
and fully guaranteed or insured by the United States government or any agency or
3
instrumentality thereof (provided that the full faith and credit of the United States is
pledged in support thereof); (c) certificates of deposit and eurodollar time deposits; (d)
repurchase obligations for underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution; (e) commercial paper issued by a corporation
rated at least “A-2” or higher from Moody’s Investors Service, Inc. or Standard & Poor’s Rating
Services; (f) securities issued and fully guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority thereof, rated at
least “A” by Moody’s Investors Service, Inc. or Standard & Poor’s Rating Services; (g) money market
funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents of the
kinds described in clauses (a) through (f) of this definition; or (h) securities or instruments of
any type permitted under Section 345 of the Bankruptcy Code.
1.20 Causes of Action means, collectively, (i) any and all causes of action that could
be asserted either by the Debtors or the Estates, including, without limitation, all Avoidance
Actions, suits, accounts, promises, controversies, rights to legal remedies, rights to equitable
remedies, and rights to payment and (ii) any and all Claims held by the Debtors, whether known,
unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured, and whether asserted or assertable,
directly or derivatively, in law, equity or otherwise.
1.21 Chapter 11 Cases means the voluntary cases under Chapter 11 of the Bankruptcy
Code commenced by the Debtors in the Bankruptcy Court on the Petition Date.
1.22 Claim means a “claim,” as defined in Section 101(5) of the Bankruptcy Code.
1.23 Claims and Noticing Agent means Garden City Group, Inc., employed by the Debtors
as the official claims, noticing, and balloting agent in the Chapter 11 Cases pursuant to an order
of the Bankruptcy Court entered on or about February 4, 2010.
1.24 Claims Bar Date means, as applicable, either (i) May 21, 2010, the final date for
all Persons or Entities other than governmental units asserting Claims against any of the Debtors
to file Proofs of Claim on account of such Claims in accordance with the Bar Date Order (subject to
certain exceptions set forth in the Bar Date Order), (ii) August 6, 2010, the final date for all
governmental units asserting Claims against any of the Debtors to file Proofs of Claim on account
of such Claims in accordance with the Bar Date Order, or (iii) such other date as the Bankruptcy
Court may fix with respect to any Claim.
1.25 Claims Objection Deadline means the later of (a) the Effective Date or (b) thirty
(30) days after the filing of any Claim; provided that the Claims Objection
Deadline shall not apply to any Claim filed after the applicable Claims Bar Date.
1.26 Class means each category of Holders of Claims or Interests established under
Article II of this Plan pursuant to Sections 1122 and 1123(a)(1) of the Bankruptcy Code.
1.27 Collective Bargaining Agreements means all collective bargaining agreements to
which any of the Debtors is a party on the Confirmation Date.
4
1.28 Committee means the official committee of unsecured creditors appointed in the
Chapter 11 Cases by the Office of the United States Trustee on or about February 12, 2010 pursuant
to Section 1102 of the Bankruptcy Code, as it may be reconstituted from time to time.
1.29 Confirmation Date means the date on which the Clerk of the Bankruptcy Court
enters the Confirmation Order on its docket.
1.30 Confirmation Hearing means the hearing held by the Bankruptcy Court on
confirmation of the Plan, as such hearing may be continued from time to time.
1.31 Confirmation Order means the order of the Bankruptcy Court confirming this Plan
pursuant to Section 1129 of the Bankruptcy Code, which shall be in form and substance reasonably
acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders.
1.32 Debtor(s) means, individually or collectively, Neenah Enterprises, Inc.; NFC
Castings, Inc.; Neenah Foundry Company; Cast Alloys, Inc.; Neenah Transport, Inc.; Advanced Cast
Products, Inc.; Gregg Industries, Inc.; Mercer Forge Corporation; Deeter Foundry, Inc.; Dalton
Corporation; Belcher Corporation; Peerless Corporation; A&M Specialties, Inc.; Dalton Corporation,
Warsaw Manufacturing Facility; Dalton Corporation, Ashland Manufacturing Facility; Dalton
Corporation, Kendallville Manufacturing Facility; Dalton Corporation, Stryker Machining Facility
Co.; and Morgan’s Welding, Inc.
1.33 DIP Revolving Facility Agent means Bank of America, N.A. in its capacity as the
administrative agent under the DIP Revolving Facility Agreement.
1.34 DIP Revolving Facility Agreement means that certain Postpetition Agreement, by
and among the Debtors, the DIP Revolving Facility Lenders and the DIP Revolving Facility Agent,
dated as of February 5, 2010, together with all related documents, instruments and fee letters
delivered pursuant to or in connection therewith, as it may be amended, modified, or supplemented
from time to time.
1.35 DIP Revolving Facility Claims means all Claims against the Debtors held by the
DIP Revolving Facility Agent and the DIP Revolving Facility Lenders pursuant to the DIP Revolving
Facility Agreement and the Final DIP Order, including, without limitation, all “Obligations” as
defined in the DIP Revolving Facility Agreement.
1.36 DIP Revolving Facility Lenders means the lenders party from time to time to the
DIP Revolving Facility Agreement.
1.37 DIP Term Facility Agent means Wilmington Trust Company FSB in its capacity as the
administrative agent under the DIP Term Facility Agreement.
1.38 DIP Term Facility Agreement means that certain Secured Super-Priority,
Debtor-in-Possession Multiple Draw Term Loan Agreement, by and among the DIP Term Facility Lenders,
the DIP Term Facility Agent and the Debtors, dated as of February 5, 2010, together with all
related documents, instruments and fee letters delivered pursuant to or in connection therewith, as
it may be amended, modified, or supplemented from time to time.
5
1.39 DIP Term Facility Claims means all Claims against the Debtors held by the DIP
Term Facility Agent and the DIP Term Facility Lenders pursuant to the DIP Term Facility Agreement
and the Final DIP Order.
1.40 DIP Term Facility Commitment Letter means that certain Term Loan DIP Commitment
Letter for the DIP Term Facility Agreement, dated as of February 3, 2010, together with all annexes
and exhibits thereto.
1.41 DIP Term Facility Lenders means the lenders party from time to time to the DIP
Term Facility Agreement.
1.42 Disallowed Claim means any Claim, including any portion thereof, that has been
disallowed, denied, dismissed, expunged, or overruled pursuant to a Final Order of the Bankruptcy
Court or any other court of competent jurisdiction.
1.43 Disbursing Agent(s) means any Entity in its capacity as a disbursing agent under
Article VI of this Plan.
1.44 Disclosure Statement means the disclosure statement relating to this Plan,
including, without limitation, all Exhibits and schedules thereto, as the same may be amended,
supplemented or otherwise modified from time to time, as approved by the Bankruptcy Court pursuant
to Section 1125 of the Bankruptcy Code.
1.45 Disputed Claim means any Claim, including any portion thereof, that is (a)
neither an Allowed Claim nor a Disallowed Claim, or (b) for which a Proof of Claim has been timely
filed with the Bankruptcy Court or a written request for payment has been made, to the extent the
Debtors or any party in interest has interposed a timely objection or request for estimation of
such Claim, which objection or request for estimation has not been withdrawn or determined pursuant
to a Final Order.
1.46 Distribution Date means any of the Initial Distribution Date, any Quarterly
Distribution Date, and the Final Distribution Date.
1.47 Distribution Record Date means the Effective Date.
1.48 DTC means The Depository Trust Company.
1.49 Effective Date means the first Business Day this Plan becomes effective in
accordance with Article IX hereof.
1.50 Employee Benefit Plans means any employment, pension, welfare, healthcare, bonus,
incentive compensation, sick leave and other leave, vacation pay, business expense reimbursement,
dependent care, retirement, savings, deferred compensation, supplemental pension, workers
compensation, life insurance, disability, dependent care, dependent healthcare, education,
severance or other compensation or benefit plan, agreement or arrangement for the benefit of the
current or former directors, officers or employees (whether salaried or hourly, active or retired)
of the applicable Debtor, but expressly excluding any equity-based compensation awards granted by
any of the Debtors prior to the Petition Date.
6
1.51 Entity means any Person, estate, trust, governmental unit, and United States
trustee.
1.52 Estate(s) means, individually or collectively, the estate or estates of the
Debtors created in the Chapter 11 Cases under Section 541 of the Bankruptcy Code.
1.53 Exhibit means an exhibit annexed either to this Plan or the Disclosure Statement.
Except as otherwise set forth herein, each Exhibit shall be in form and substance reasonably
acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders.
1.54 Exit Revolving Facility means a revolving credit facility to be entered into by
the Reorganized Debtors on the Effective Date, in such amount and on such terms as are reasonably
satisfactory to the Debtors and the Ad Hoc Committee of Secured Noteholders.
1.55 Exit Revolving Facility Credit Agreement means the definitive financing agreement
for the Exit Revolving Facility, in substantially the form of Exhibit 6 to this Plan (to be
filed with the Plan Supplement) and in form and substance reasonably satisfactory to the Debtors
and the Ad Hoc Committee of Secured Noteholders.
1.56 Exit Revolving Facility Documentation means the Exit Revolving Facility Credit
Agreement and the other definitive documentation relating to the Exit Revolving Facility, which
shall be in form and substance reasonably satisfactory to the Debtors and the Ad Hoc Committee of
Secured Noteholders.
1.57 Exit Term Loan Facility means a term loan facility to be entered into by the
Reorganized Debtors on the Effective Date, in such amount and on such terms as are reasonably
satisfactory to the Debtors and the Ad Hoc Committee of Secured Noteholders; provided,
however, that if the Debtors elect to convert the DIP Term Facility Claims into the Exit
Term Loan Facility on the Effective Date in accordance with and on the terms set forth in the DIP
Term Facility Commitment Letter, the amount and terms of such Exit Term Loan Facility shall be
satisfactory to the Debtors and the DIP Term Facility Lenders in their sole discretion.
1.58 Exit Term Loan Facility Credit Agreement means the definitive financing agreement
for the Exit Term Loan Facility, in substantially the form of Exhibit 7 to this Plan (to be
filed with the Plan Supplement) and in form and substance reasonably satisfactory to the Debtors
and the Ad Hoc Committee of Secured Noteholders; provided, however, that if the
Debtors elect to convert the DIP Term Facility Claims into the Exit Term Loan Facility on the
Effective Date in accordance with and on the terms set forth in the DIP Term Facility Commitment
Letter, the Exit Term Loan Facility Agreement shall be satisfactory in all respects to the Debtors
and the DIP Term Facility Lenders.
1.59 Exit Term Loan Facility Documentation means the Exit Term Loan Facility Credit
Agreement and the other definitive documentation relating to the Exit Term Loan Facility, which
shall be in form and substance reasonably satisfactory to the Debtors and the Ad Hoc Committee of
Secured Noteholders; provided, however, that if the Debtors elect to convert the
DIP Term Facility Claims into the Exit Term Loan Facility on the Effective Date in accordance with
and on the terms set forth in the DIP Term Facility Commitment Letter, the Exit Term Loan
7
Facility Agreement and the other definitive documentation relating to such Exit Term Loan
Facility shall be satisfactory in all respects to the Debtors and the DIP Term Facility Lenders.
1.60 Face Amount means (i) when used in reference to a Disputed Claim, the full stated
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 Bankruptcy Court, and (ii) when
used in reference to an Allowed Claim, the Allowed amount of such Claim.
1.61 Final DIP Order means the Final Order (I) Authorizing the Debtors to (A) Obtain
Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 363(c), 363(e), 364(c), 364(d)(1)
and 364(e), (B) Utilize Cash Collateral of Prepetition Secured Entities, (II) Granting Adequate
Protection to Prepetition Secured Entities, and (III) Granting Related Relief, entered by the
Bankruptcy Court on or about March 9, 2010 [Docket No. 146].
1.62 Final Distribution Date means a date selected by the Reorganized Debtors that is
not later than thirty (30) days after the date on which all Disputed Claims in the Chapter 11 Cases
shall have been either (i) withdrawn by the Holders thereof or (ii) determined to be either Allowed
Claims or Disallowed Claims.
1.63 Final Order means an order or judgment of the Bankruptcy Court (or other court of
competent jurisdiction) entered by the Clerk of the Bankruptcy Court on the docket in the Chapter
11 Cases (or on the docket of any other court of competent jurisdiction), which has not been
reversed, vacated or stayed and as to which (a) the time to appeal, petition for certiorari
or move for a new trial, reargument or rehearing has expired and as to which no appeal, petition
for certiorari or other proceedings for a new trial, reargument or rehearing shall then be
pending, or (b) if an appeal, writ of certiorari, new trial, reargument or rehearing
thereof has been sought, such order or judgment of the Bankruptcy Court shall have been affirmed by
the highest court to which such order was appealed, or certiorari shall have been denied or
a new trial, reargument or rehearing shall have been denied or resulted in no modification of such
order, and the time to take any further appeal, petition for certiorari or move for a new
trial, reargument or rehearing shall have expired; provided, however, that the
possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any
analogous rule under the Bankruptcy Rules, may be filed relating to such order, shall not cause
such order not to be a Final Order.
1.64 General Unsecured Claim means a Claim against any Debtor that is not an
Administrative Expense Claim, a DIP Revolving Facility Claim, a DIP Term Facility Claim, a Priority
Tax Claim, a Priority Non-Tax Claim, an Other Secured Claim, a Prepetition Credit Agreement Claim,
a Secured Notes Claim, a Subordinated Notes Claim, an Intercompany Claim or a Section 510(b) Claim.
1.65 Holder means an Entity holding a Claim against, or Interest in, any Debtor.
1.66 Impaired means “impaired” within the meaning of Section 1124 of the Bankruptcy
Code.
1.67 Initial Distribution Date means a date selected by the Reorganized Debtors that
is not later than thirty (30) days after the Effective Date.
8
1.68 Intercompany Claims means any Claim against a Debtor that is held by another
Debtor.
1.69 Intercreditor Agreement means the Intercreditor Agreement, dated as of December
29, 2006, as amended, modified or supplemented from time to time, between Neenah, Bank of America,
N.A., in its capacity as collateral agent under the Prepetition Credit Agreement, and the Secured
Notes Indenture Trustee.
1.70 Interest means the interest of any Holder of equity securities in any Debtor that
is represented by any issued and outstanding common stock, preferred stock, limited liability
company interest, partnership interest, or any other instrument evidencing an ownership interest in
such Debtor prior to the Effective Date (including prior to the Petition Date), whether or not
transferable, and any restricted stock units, calls, rights, puts, awards, commitments, repurchase
rights, unvested or unexercised options, warrants, unvested common interests, unvested preferred
interests or any other agreements of any character related to the common or preferred interests of
any such Debtor, obligating any such Debtor to issue, transfer, purchase, redeem, or sell any
equity interests or other equity securities, any rights under any equity incentive plans, voting
agreements and registration rights agreements regarding equity securities of any such Debtor, any
claims arising from the rescission of a purchase, sale or other acquisition of any outstanding
common stock, preferred stock or other equity securities (or any right, claim, or interest in and
to any common stock, preferred stock or other equity securities) of any such Debtor, any Claims for
the payment of any distributions with respect to any common stock, preferred stock, or other equity
interests in or securities of such Debtor, and any claims for damages or any other relief arising
from the purchase, sale, or other acquisition of any such Debtor’s outstanding common stock,
preferred stock, or other equity interests or securities.
1.71 Interim Compensation Order means the Order Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of Professionals Pursuant to §§ 105 and 331, entered by
the Bankruptcy Court on or about March 8, 2010 [Docket No. 136].
1.72 Lien means, with respect to any interest in property, any mortgage, lien, pledge,
charge, security interest, easement or encumbrance of any kind whatsoever affecting such interest
in property.
1.73 Litigation Claims means all Causes of Action that any Debtor or Estate may hold
against any Entity as of the Effective Date, except any Causes of Action that (i) have been settled
by the Debtors on or prior to the Effective Date or (ii) shall be released by the Debtors pursuant
to Article X of this Plan.
1.74 Lock-Up Agreement means that certain Restructuring and Lock-Up Agreement dated as
of February 3, 2010, by and among Neenah, NEI and NFC, certain of the Secured Noteholders party
thereto, and the Subordinated Noteholders, including all exhibits and annexes thereto.
1.75 Management Equity Incentive Plan means the management equity incentive plan to be
developed for the Reorganized Debtors by the new board of directors of Reorganized NEI.
9
1.76 Neenah means Neenah Foundry Company, a Wisconsin corporation and one of the
Debtors in these Chapter 11 Cases.
1.77 NEI means Neenah Enterprises, Inc., a Delaware corporation and one of the Debtors
in these Chapter 11 Cases.
1.78 NEI Common Interest means the Interest of any Holder of equity securities of NEI
represented by any issued and outstanding shares of NEI’s common stock, whether or not
transferable, or any options, warrants, or rights, contractual or otherwise, obligating NEI to
issue, transfer, purchase, redeem, or sell any shares of common stock, any rights under any stock
option plans, stockholder rights agreements, voting agreements and registration rights agreements
regarding common stock of NEI, any Claims arising from the rescission of a purchase, sale or other
acquisition of common stock (or any right, claim, or interest in and to any common stock) of NEI,
any claims for the payment of dividends on any shares of common stock of NEI, and any Claims for
damages or any other relief arising from the purchase, sale, or other acquisition of NEI’s common
stock.
1.79 New Common Stock means the new common stock of Reorganized NEI, par value $0.0001
per share, of which 15,000,000 shares shall be authorized pursuant to the Amended and Restated
Certificate of Incorporation and 10,000,000 shares of which shall be initially issued pursuant to
the Plan as of the Effective Date.
1.80 New Secured Notes means the new secured notes that will be issued by Reorganized
Neenah on the Effective Date in the aggregate principal amount of $50 million pursuant to the New
Secured Notes Indenture and this Plan, the principal terms of which are described in the Plan Term
Sheet and the Disclosure Statement.
1.81 New Secured Notes Collateral means substantially all assets of the Reorganized
Debtors, which shall secure the Reorganized Debtors’ obligations under the New Secured Notes
Indenture.
1.82 New Secured Notes Documents means collectively, the New Secured Notes, the New
Secured Notes Indenture, and all agreements (including security agreements and pledge agreements),
documents and instruments delivered in connection therewith, which shall be in form and substance
acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders.
1.83 New Secured Notes Indenture means that certain indenture to be entered into by
and among Reorganized Neenah, as issuer, and the indenture trustee for the New Secured Notes on the
Effective Date, pursuant to which the New Secured Notes will be issued. The New Secured Notes
Indenture shall be in substantially the form of Exhibit 3 to this Plan (to be filed with
the Plan Supplement) and shall be in form and substance acceptable to the Debtors and the Ad Hoc
Committee of Secured Noteholders.
1.84 New Warrants means the Series A Warrants and the Series B Warrants, the principal
terms of which are described in the Plan Term Sheet and the Disclosure Statement, each in
substantially the form included in Exhibit 4 to this Plan (to be filed with the Plan
10
Supplement), which shall be in form and substance reasonably acceptable to the Debtors and the
Ad Hoc Committee of Secured Noteholders.
1.85 NFC means NFC Castings, Inc., a Delaware corporation and one of the Debtors in
these Chapter 11 Cases.
1.86 Other Secured Claim means any Secured Claim other than a DIP Revolving Facility
Claim, a DIP Term Facility Claim, a Prepetition Credit Agreement Claim, or a Secured Notes Claim.
1.87 Pension Plans means the following single-employer defined benefit plans: (i) the
Neenah Foundry Company Pension Plan for Hourly Paid Pattern Shop Employees, (ii) the Neenah Foundry
Company Retirement Income Plan for Production and Maintenance Employees, (iii) the Meadville
Division of Advanced Cast Products Inc. Pension Plan for Bargaining Unit Employees, (iv) the
Belcher Division of Advance Cast Products, Inc. Pension Plan for Bargaining Unit Employees, and (v)
the Dalton Corporation Warsaw Manufacturing Facility Pension Plan.
1.88 Person means any individual, corporation, partnership, association, joint stock
company, joint venture, limited liability company, limited liability partnership, trust, estate,
unincorporated organization or other entity, or any domestic or foreign government, governmental
agency, or any subdivision, department or other instrumentality thereof.
1.89 Petition Date means February 3, 2010, the date on which the Debtors commenced
their Chapter 11 Cases.
1.90 Plan means this Chapter 11 plan of reorganization, including all Exhibits,
supplements, appendices and schedules hereto, either in its present form or as the same may be
altered, amended or modified from time to time in accordance with the provisions of the Bankruptcy
Code, the terms hereof, the Lock-Up Agreement and the Plan Term Sheet.
1.91 Plan Term Sheet means that certain plan term sheet attached as Exhibit A
to the Lock-Up Agreement.
1.92 Plan Supplement means a supplement to this Plan, in form and substance reasonably
acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders, that the Debtors shall
file with the Bankruptcy Court not later than five (5) Business Days prior to the Voting Deadline.
1.93 Prepetition Agent means Bank of America, N.A. in its capacities as the
administrative agent and collateral agent under the Prepetition Credit Agreement.
1.94 Prepetition Credit Agreement means that certain Amended and Restated Loan and
Security Agreement dated as of December 29, 2006, by and among Neenah and the subsidiaries of
Neenah party thereto, as borrowers, the Prepetition Lenders party thereto, and the Prepetition
Agent, as it may be amended, modified, or supplemented from time to time.
11
1.95 Prepetition Credit Agreement Claims means all Claims of the Prepetition Agent and
the Prepetition Lenders against the Debtors arising under, or secured pursuant to, the Prepetition
Credit Documents, including, without limitation, all “Obligations” as defined in the Prepetition
Credit Agreement.
1.96 Prepetition Credit Documents means, collectively, the Prepetition Credit
Agreement and all other agreements, instruments, notes, guaranties and other documents executed in
connection therewith, including all collateral and security documents executed by the Debtors in
favor of the Prepetition Agent and the Prepetition Lenders.
1.97 Prepetition Lenders means the lenders from time to time party to the Prepetition
Credit Agreement.
1.98 Priority Non-Tax Claims means any Claim entitled to priority in payment pursuant
to Section 507(a) of the Bankruptcy Code, other than an Administrative Expense Claim or a Priority
Tax Claim.
1.99 Priority Tax Claim means any Claim of a governmental unit of the kind entitled to
priority in payment as specified in Sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.100 Professional means any Person retained by the Debtors or the Committee pursuant
to a Final Order of the Bankruptcy Court entered pursuant to Sections 327 or 1103 of the Bankruptcy
Code.
1.101 Proof of Claim means the proof of claim form that, pursuant to the Bar Date
Order, must be filed with the Claims and Noticing Agent on or before the applicable Claims Bar Date
by Holders of certain Claims against the Debtors.
1.102 Pro Rata or Pro Rata Share means the proportion that the amount of any
Allowed Claim in a particular Class bears to the aggregate amount of all Allowed Claims in such
Class, except in cases where Pro Rata or Pro Rata Share is used in reference to multiple Classes of
Claims, in which case Pro Rata or Pro Rata Share means the proportion that an Allowed Claim in a
particular Class bears to the aggregate amount of all Allowed Claims in such multiple Classes.
1.103 Quarterly Distribution Date means each date that is not later than thirty (30)
calendar days after the conclusion of each calendar quarter ending in March, June, September and
December between the Initial Distribution Date and the Final Distribution Date.
1.104 Reinstated or Reinstatement means (a) leaving unaltered the legal, equitable and
contractual rights to which a Claim entitles the Holder of such Claim, or (b) notwithstanding any
contractual provision or applicable law that entitles the Holder of such Claim to demand or receive
accelerated payment of such Claim after the occurrence of a default, (i) curing any such default
that occurred before or after the Petition Date, other than a default of a kind specified in
Section 365(b)(2) of the Bankruptcy Code; (ii) reinstating the maturity of such Claim as such
maturity existed before such default; (iii) compensating the Holder of such Claim for any damages
incurred as a result of any reasonable reliance by such Holder on such contractual provision or
such applicable law; (iv) if such Claim arises from any failure to perform a nonmonetary obligation
other than a default arising from failure to operate under a nonresidential
12
real property lease subject to Section 365(b)(1)(A) of the Bankruptcy Code, compensating the
Holder of such Claim (other than any Debtor or an insider of any Debtor) for any pecuniary loss
incurred by such Holder as the result of such failure; and (v) not otherwise altering the legal,
equitable or contractual rights to which such Claim entitles the Holder thereof.
1.105 Released Parties means (i) the Debtors, (ii) the Ad Hoc Committee of Secured
Noteholders, (iii) each Secured Noteholder that votes to accept the Plan, (iv) the Secured Notes
Indenture Trustee and its successors and assigns, (v) the Prepetition Agent and the Prepetition
Lenders, and their respective successors and assigns, (vi) the DIP Revolving Facility Agent and the
DIP Revolving Facility Lenders, and their respective successors and assigns, (vii) the DIP Term
Facility Agent and the DIP Term Facility Lenders, and their respective successors and assigns,
(viii) Tontine Capital Partners, L.P. and its managed accounts and affiliated funds (collectively,
“Tontine”), (ix) the Committee, and (x) the current and former members, partners,
equityholders, officers, directors, affiliates, employees, managers, stockholders, financial
advisors, attorneys, accountants, investment bankers, consultants, agents, or other representatives
of the Persons set forth in clauses (i) through (ix).
1.106 Reorganized Debtors means, collectively, each of the reorganized Debtors or any
successors thereto by merger, consolidation, conversion or otherwise, on or after the Effective
Date, after giving effect to the transactions occurring on or prior to the Effective Date in
accordance with this Plan, including, without limitation, each Restructuring Transaction that
occurs on or prior to the Effective Date.
1.107 Reorganized Neenah means reorganized Neenah or any successors thereto by merger,
consolidation, conversion or otherwise, on or after the Effective Date, after giving effect to the
transactions occurring on the Effective Date in accordance with this Plan, including, without
limitation, each Restructuring Transaction that occurs on or prior to the Effective Date.
1.108 Reorganized NEI means reorganized NEI or any successors thereto by merger,
consolidation, conversion or otherwise, on or after the Effective Date, after giving effect to the
transactions occurring on the Effective Date in accordance with this Plan, including, without
limitation, each Restructuring Transaction that occurs on or prior to the Effective Date.
1.109 Restructuring Transactions means those transactions or other corporate actions
(including, without limitation, mergers, consolidations, conversions, joint ventures,
restructurings, recapitalizations, dispositions, liquidations or dissolutions), which shall be in
form and substance acceptable to the Debtors and the Ad Hoc Committee of Secured Noteholders, that
one or more of the applicable Debtors or Reorganized Debtors may enter into or undertake on, prior
to, or after the Effective Date in accordance with Section 5.12 of this Plan and as set forth in
Exhibit 8 to this Plan (to be filed with the Plan Supplement), including, without
limitation, the planned reincorporation of Neenah as a Delaware corporation on or prior to the
Effective Date.
1.110 Schedules means, with respect to each Debtor, the schedules of assets and
liabilities and the statement of financial affairs filed by such Debtor with the Bankruptcy Court
on or about April 5, 2010 pursuant to Sections 521(a)(1) and 1106(a)(2) of the Bankruptcy Code and
Bankruptcy Rule 1007, as such schedules and statements have been or may be amended or supplemented
by such Debtor at any point prior to the Voting Deadline.
13
1.111 Section 510(b) Claim means a Claim against any Debtor that is subordinated, or
subject to subordination, pursuant to Section 510(b) of the Bankruptcy Code, including, without
limitation, a Claim arising from rescission of a purchase or sale of a security of any Debtor or an
affiliate of any Debtor, for damages arising from the purchase or sale of such a security, or for
reimbursement or contribution on account of such Claim pursuant to Section 502 of the Bankruptcy
Code.
1.112 Secured Claim means any Claim secured by a Lien on collateral to the extent of
the value of such collateral (i) as set forth in the Plan, (ii) as agreed to by the Holder of such
Claim and the Debtors or (iii) as determined pursuant to a Final Order of the Bankruptcy Court in
accordance with Section 506(a) of the Bankruptcy Code or, in the event that such Claim is subject
to setoff under Section 553 of the Bankruptcy Code, to the extent of such setoff.
1.113 Secured Noteholder means a Holder of a Secured Note.
1.114 Secured Notes means the 9.5% senior secured notes due 2017, issued by Neenah
pursuant to the Secured Notes Indenture in the aggregate principal amount of $225 million.
1.115 Secured Notes Claims means all Claims arising under or evidenced by the Secured
Notes, the Secured Notes Indenture and related documents (other than the Secured Notes Indenture
Trustee Claims), including, without limitation, the principal amount of the Secured Notes plus all
accrued and unpaid interest, fees and expenses that were due and payable under the Secured Notes
Indenture as of the Petition Date.
1.116 Secured Notes Indenture means that certain Indenture dated as of December 29,
2006 (as supplemented pursuant to that certain Supplemental Indenture dated as of September 30,
2008), among Neenah as issuer, certain of the other Debtors as guarantors, and The Bank of New York
Mellon Trust Company, N.A. (formerly The Bank of New York Trust Company, N.A.) as the Secured Notes
Indenture Trustee, including all documents, notes, instruments, and any other agreements delivered
thereto or in connection therewith.
1.117 Secured Notes Indenture Trustee means The Bank of New York Mellon Trust Company,
N.A. (formerly The Bank of New York Trust Company, N.A.), in its capacity as the indenture trustee
under the Secured Notes Indenture.
1.118 Secured Notes Indenture Trustee Claims means all Claims of the Secured Notes
Indenture Trustee for reasonable and documented fees and expenses under the terms of the Secured
Notes Indenture (including, but not limited to, the reasonable fees, costs and expenses incurred by
the Secured Notes Indenture Trustee’s professionals).
1.119 Series A Warrants means warrants to acquire 500,000 shares of New Common Stock
(subject to dilution by any equity awards under the Management Equity Incentive Plan and any
subsequent issuances of shares of New Common Stock), exercisable for Cash, with an exercise price
per share of $19.33.
1.120 Series B Warrants means warrants to acquire 500,000 shares of New Common Stock
(subject to dilution by any equity awards under the Management Equity Incentive Plan and any
subsequent issuances of shares of New Common Stock), exercisable for Cash, with an
14
exercise price per share equal to (a) (i) $500 million minus (ii) the outstanding debt
of the Reorganized Debtors as of the Effective Date minus (iii) $1.4 million (which
represents the fair market value of the Series A Warrants as of the Effective Date calculated based
off the Black-Scholes options pricing model) plus (iv) Cash and Cash Equivalents of the
Reorganized Debtors as of the Effective Date divided by (b) ten million (10,000,000) shares
of New Common Stock.
1.121 Subordinated Noteholder means a Holder of a Subordinated Note.
1.122 Subordinated Notes means the 12.5% senior subordinated notes due 2013, issued by
Neenah on December 29, 2006 in the aggregate principal amount of $75 million.
1.123 Subordinated Notes Claims means all Claims arising under or evidenced by the
Subordinated Notes and any related documents, including, without limitation, the principal amount
of the Subordinated Notes plus all accrued and unpaid interest, fees and expenses that were due and
payable in connection therewith as of the Petition Date.
1.124 Subsidiary Interests means, collectively, all of the Interests in the Subsidiary
Debtors, existing prior to the Effective Date, which are owned, directly or indirectly, by NEI.
1.125 Subsidiary Debtors means, collectively, NFC; Neenah; Neenah Transport, Inc.;
Deeter Foundry, Inc.; Cast Alloys, Inc.; Gregg Industries, Inc.; Mercer Forge Corporation; Dalton
Corporation; A&M Specialties, Inc.; Dalton Corporation, Kendallville Manufacturing Facility; Dalton
Corporation, Stryker Machining Facility; Dalton Corporation, Warsaw Manufacturing Facility; Dalton
Corporation, Ashland Manufacturing Facility; Advanced Cast Products, Inc.; Morgan’s Welding, Inc.;
Belcher Corporation; and Peerless Corporation.
1.126 Unimpaired means with respect to a Claim or Interest, a Claim or Interest that
is not Impaired.
1.127 Voting Deadline means the date by which all Holders of Claims who are entitled
to vote on the Plan must submit their Ballots to the Claims and Noticing Agent in accordance with
the terms of the Voting Procedures Order.
1.128 Voting Procedures Order means an order to be entered by the Bankruptcy Court (i)
approving the Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code and (ii) setting
forth the deadlines, procedures and instructions for submitting votes to accept or reject the Plan
and for filing objections to confirmation of the Plan, the record date for voting purposes, and the
applicable standards for tabulating Ballots.
B. Rules of Interpretation. For purposes of this Plan, unless otherwise provided
herein: (a) whenever from the context it is appropriate, each term, whether stated in the singular
or the plural, will include both the singular and the plural; (b) unless otherwise provided in this
Plan, any reference in this Plan to a contract, instrument, release, or other agreement or document
being in a particular form or on particular terms and conditions means that such document will be
substantially in such form or substantially on such terms and conditions; (c) any reference in this
Plan to an existing document, schedule or Exhibit filed or to be filed means such document,
schedule or Exhibit, as it may have been or may be amended, modified, or supplemented pursuant to
this Plan; (d) any reference to an entity as a Holder of a Claim or
15
Interest includes that entity’s successors and assigns; (e) all references in this Plan to
Sections, Articles and Schedules are references to Sections, Articles and Schedules of or to this
Plan or the Plan Supplement, as the same may be amended, waived or modified from time to time; (f)
the words “herein,” “hereof,” “hereto,” “hereunder” and other words of similar import refer to this
Plan as a whole and not to any particular section, subsection or clause contained in this Plan; (g)
captions and headings to Articles and Sections are inserted for convenience of reference only and
are not intended to be a part of or to affect the interpretation of this Plan; (h) subject to the
provisions of any contract, certificates or articles of incorporation, by-laws, instruments,
releases, or other agreements or documents entered into in connection with this Plan, the rights
and obligations arising under this Plan shall be governed by, and construed and enforced in
accordance with, federal law, including the Bankruptcy Code and Bankruptcy Rules; (i) the rules of
construction set forth in Section 102 of the Bankruptcy Code will apply; and (j) in computing any
period of time prescribed or allowed by this Plan, Bankruptcy Rule 9006(a) will apply.
C. Exhibits and Plan Supplement. All Exhibits to this Plan, as well as the Plan
Supplement, are incorporated into and are a part of this Plan as if set forth in full herein, and,
to the extent not annexed hereto, such Exhibits and Plan Supplement shall be timely filed with the
Clerk of the Bankruptcy Court prior to the deadline set forth herein. Holders of Claims and
Interests may obtain a copy of the filed Exhibits and Plan Supplement upon written request to the
Debtors. Upon their filing, the Exhibits and the Plan Supplement may be inspected in the office of
the Clerk of the Bankruptcy Court during normal business hours or at the Bankruptcy Court’s website
at http://www.deb.uscourts.gov/. The documents contained in the Exhibits and the Plan Supplement
shall be approved by the Bankruptcy Court pursuant to the Confirmation Order.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Expense Claims, DIP Revolving Facility Claims,
DIP Term Facility 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 Expense Claims, DIP
Revolving Facility Claims, DIP Term Facility Claims and Priority Tax Claims, as described below,
have not been classified and therefore are excluded from the Classes of Claims and Interests set
forth in Article II of this Plan. The treatment of Administrative Expense Claims, DIP Revolving
Facility Claims, DIP Term Facility Claims and Priority Tax Claims in the Chapter 11 Cases is set
forth below.
The Plan does not provide for substantive consolidation of the Estates and, on the Effective
Date, the Estates shall not be deemed to be substantively consolidated for purposes hereof. Unless
otherwise provided in the Plan or the Confirmation Order, Allowed Claims against a particular
Debtor shall be satisfied solely from the Cash and other assets of such Debtor and its Estate,
provided that, to the extent of any insufficiency, funds or other property may be advanced to the
relevant Debtor by any of the other Debtors solely for purposes of consummating this Plan. Except
as specifically set forth in the Plan, nothing in the Plan or the Disclosure Statement shall
constitute or be deemed to constitute an admission that any Debtor is liable for any Claims against
any other Debtor. Claims that are asserted against multiple Debtors shall be treated as separate
Claims against each applicable Debtor for all purposes (including, but
16
not limited to, voting and distributions), provided that (i) there shall only be a single
recovery on account of such Claims and the aggregate distributions to the Holders of such Claims
shall not exceed the largest Allowed amount of any such Claim against any particular Debtor, (ii)
any distributions from a particular Estate on account of such Claims shall take into account the
distributions to be made on account of such Claims by the other Estates, and (iii) such Claims
shall be administered and treated in the manner set forth below.
Pursuant to Sections 1122 and 1123 of the Bankruptcy Code, Claims against and Interests in the
Debtors are classified for all purposes, including, without express or implied limitation, voting,
confirmation and distributions pursuant to the Plan, as set forth herein. A Claim or Interest
shall be deemed classified in a particular Class only to the extent that the Claim or Interest
qualifies within the description of that Class, and shall be deemed classified in a different Class
to the extent that any remainder of such Claim or Interest qualifies within the description of such
different Class. A Claim or Interest is in a particular Class only to the extent that such Claim
or Interest is Allowed in that Class and has not been paid or otherwise settled prior to the
Effective Date. If there are no Claims or Interests in a particular Class, then such Class of
Claims or Interests shall not exist for any purposes under the Plan.
2.1. Unclassified Claims. The following Claims are Unimpaired by this Plan.
|
(a) |
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Administrative Expense Claims. |
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(b) |
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DIP Revolving Facility Claims. |
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(c) |
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DIP Term Facility Claims. |
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(d) |
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Priority Tax Claims. |
2.2. Classes of Claims.
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(a) |
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Class 1: Priority Non-Tax Claims. Class 1 consists of
all Priority Non-Tax Claims against each applicable Debtor. Claims in Class 1
are Unimpaired. Holders of Claims in Class 1 will be deemed to accept the Plan
and are not entitled to vote to accept or reject the Plan. |
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(b) |
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Class 2: Other Secured Claims. Class 2 consists of all
Other Secured Claims against each applicable Debtor. Claims in Class 2 are
Unimpaired. Holders of Claims in Class 2 will be deemed to accept the Plan and
are not entitled to vote to accept or reject the Plan. |
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(c) |
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Class 3: Prepetition Credit Agreement Claims. Class 3
consists of all Prepetition Credit Agreement Claims against each applicable
Debtor. Claims in Class 3 are Unimpaired. Holders of Claims in Class 3 will
be deemed to accept the Plan and are not entitled to vote to accept or reject
the Plan. |
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(d) |
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Class 4: Secured Notes Claims. Class 4 consists of all
Secured Notes Claims against each applicable Debtor. Claims in Class 4 are
Impaired. |
17
|
|
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Holders of Claims in Class 4 are entitled to vote to accept or reject the
Plan. |
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(e) |
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Class 5: General Unsecured Claims. Class 5 consists of
all General Unsecured Claims against each applicable Debtor. Claims in Class 5
are Impaired. Holders of Claims in Class 5 are entitled to vote to accept or
reject the Plan. |
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(f) |
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Class 6: Subordinated Notes Claims. Class 6 consists
of all Subordinated Notes Claims against each applicable Debtor. Claims in
Class 6 are Impaired. Holders of Claims in Class 6 are entitled to vote to
accept or reject the Plan. |
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(g) |
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Class 7: Intercompany Claims. Class 7 consists of the
Intercompany Claims against each applicable Debtor. Claims in Class 7 are
Impaired. The Debtors, as the proponents of this Plan and Holders of
Intercompany Claims in Class 7, shall be deemed to have accepted the Plan and
votes to accept or reject the Plan shall not be solicited from the Debtors in
their capacities as the Holders of Intercompany Claims in Class 7. |
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(h) |
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Class 8: Section 510(b) Claims. Class 8 consists of
all Section 510(b) Claims. Claims in Class 8 are Impaired. Holders of Claims
in Class 8 will be deemed to reject the Plan and are not entitled to vote to
accept or reject the Plan. |
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(i) |
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Classes of Interests. |
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(i) |
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Class 9: NEI Common Interests. Class 9
consists of all NEI Common Interests. NEI Common Interests in Class 9
are Impaired. Holders of NEI Common Interests in Class 9 will be
deemed to reject the Plan and are not entitled to vote to accept or
reject the Plan. |
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(ii) |
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Class 10: Subsidiary Interests. Class
10 consists of all Subsidiary Interests. Subsidiary Interests in Class
10 are Unimpaired. Holders of Subsidiary Interests in Class 10 will be
deemed to accept the Plan and are not entitled to vote to accept or
reject the Plan. |
ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
3.1. Unclassified Claims.
(a) Administrative Expense Claims. Subject to the provisions of Sections 328, 330,
331 and 503(b) of the Bankruptcy Code and the Interim Compensation Order, each Holder of an Allowed
Administrative Expense Claim shall receive, on account of and in full and
18
complete settlement, release and discharge of, and in exchange for, such Allowed
Administrative Expense Claim, either: (i) on the latest to occur of (a) the Effective Date (or as
soon as reasonably practicable thereafter), (b) the first Distribution Date after such
Administrative Expense Claim becomes an Allowed Claim, and (c) such other date as agreed upon by
the Debtors and the Holder of such Administrative Expense Claim, or (ii) on such other date as the
Bankruptcy Court may order, (a) Cash equal to the full unpaid amount of such Allowed Administrative
Expense Claim, or (b) such other treatment as the Debtors and the Holder of such Administrative
Expense Claim shall have agreed; provided, however, that (x) the Ad Hoc Committee
Advisor Claims and the Secured Notes Indenture Trustee Claims shall be paid in the ordinary course
of business (without the requirement to file a fee application with the Bankruptcy Court) on the
Effective Date (or as soon as reasonably practicable thereafter), and (y) all Administrative
Expense Claims not yet due or that represent obligations incurred by the Debtors in the ordinary
course of their business during these Chapter 11 Cases, or assumed by the Debtors during these
Chapter 11 Cases, shall be paid or performed when due in the ordinary course of business and in
accordance with the terms and conditions of the particular agreements governing such obligations.
(b) DIP Revolving Facility Claims. The DIP Revolving Facility Claims shall be Allowed
on the Effective Date pursuant to this Plan. On the Effective Date, all Allowed DIP Revolving
Facility Claims shall be indefeasibly paid in full in Cash and the Revolving Loan Commitments (as
defined in the DIP Revolving Facility Agreement) under the DIP Revolving Facility Agreement shall
be cancelled. Notwithstanding anything to the contrary herein, the liens and security interests
securing the DIP Revolving Facility Claims shall continue in full force and effect until the DIP
Revolving Facility Claims are indefeasibly paid in full in Cash.
(c) DIP Term Facility Claims. The DIP Term Facility Claims shall be Allowed on the
Effective Date pursuant to this Plan. On the Effective Date, all Allowed DIP Term Facility Claims
shall, at the Debtors’ option, in accordance with and on the terms set forth in the DIP Term
Facility Commitment Letter, either (i) convert into the Exit Term Loan Facility pursuant to the
Exit Term Loan Facility Documentation (provided, however, that all accrued and
unpaid interest and all fees and expenses due and payable on or prior to the Effective Date under
the terms of the DIP Term Facility Commitment Letter and the DIP Term Facility Agreement shall be
indefeasibly paid in full in Cash on the Effective Date) or (ii) be indefeasibly paid in full in
Cash, and, in each case, the Commitments (as defined in the DIP Term Facility Agreement) under the
DIP Term Facility Agreement shall be cancelled. Notwithstanding anything to the contrary herein,
the liens and security interests securing the DIP Term Facility Claims shall continue in full force
and effect until the DIP Term Facility Claims (i) convert into term loans outstanding under the
Exit Term Loan Facility or (ii) are indefeasibly paid in full in Cash on the Effective Date.
(d) Priority Tax Claims. Except to the extent that the Debtors and the Holder of an
Allowed Priority Tax Claim agree to a less favorable treatment of such Claim (in which event such
agreement shall govern), each Holder of an Allowed Priority Tax Claim that is due and payable on or
before the Effective Date shall receive, on account of and in full and complete settlement, release
and discharge of, and in exchange for, such Allowed Priority Tax Claim, in the Debtors’ discretion,
either (i) Cash equal to the amount of such Allowed Priority Tax Claim on the later of the Initial
Distribution Date (or as soon as is reasonably practicable thereafter) and
19
the first Distribution Date after such Priority Tax Claim becomes an Allowed Claim, or as soon
thereafter as is reasonably practicable, or (ii) pursuant to Section 1129(a)(9)(C) of the
Bankruptcy Code, deferred Cash payments made on the first Business Day following each anniversary
of the Effective Date over a period not exceeding five (5) years after the Petition Date, with a
total value as of the Effective Date equal to the amount of such Allowed Priority Tax Claim. All
Allowed Priority Tax Claims that are not due and payable on the Effective Date shall be paid in the
ordinary course of business by the Reorganized Debtors in accordance with the applicable
non-bankruptcy law governing such Claims.
3.2. Classification and Treatment of Claims.
(a) Class 1: Priority Non-Tax Claims. Each Holder of an Allowed Priority Non-Tax
Claim that is due and payable on or before the Effective Date shall receive, in full and complete
settlement, release and discharge of and in exchange for such Claim, at the election of the
Debtors, either (i) Cash equal to the amount of such Allowed Claim in accordance with Section
1129(a)(9) of the Bankruptcy Code, on the later of (a) the Effective Date (or as soon as reasonably
practicable thereafter) and (b) the first Distribution Date after such Priority Non-Tax Claim
becomes an Allowed Claim, or as soon thereafter as is practicable, or (ii) such other treatment
required to render such Allowed Priority Non-Tax Claim Unimpaired pursuant to Section 1124 of the
Bankruptcy Code. All Allowed Priority Non-Tax Claims which are not due and payable on or before
the Effective Date shall be paid by the Reorganized Debtors in the ordinary course of business when
such Claims become due and payable in accordance with the applicable non-bankruptcy law governing
such Claims.
(b) Class 2: Other Secured Claims. Each Holder of an Allowed Other Secured Claim
shall receive, on account of, and in full and complete settlement, release and discharge of and in
exchange for such Allowed Other Secured Claim, at the election of the Debtors, either (i)
Reinstatement of such Allowed Other Secured Claim pursuant to Section 1124 of the Bankruptcy Code;
(ii) payment of such Allowed Other Secured Claim in full in Cash on or as soon as reasonably
practicable after the latest to occur of (x) the Initial Distribution Date or (y) the first
Distribution Date after such Other Secured Claim becomes an Allowed Other Secured Claim; or (iii)
satisfaction of such Allowed Other Secured Claim through the surrender of the collateral securing
such Claim and the payment of any interest required to be paid under Section 506(b) of the
Bankruptcy Code.
(c) Class 3: Prepetition Credit Agreement Claims. The Prepetition Credit Agreement
Claims shall be Allowed pursuant to this Plan in the aggregate principal amount thereof, plus any
accrued but unpaid interest thereon payable at the non-default interest rate under the Prepetition
Credit Agreement and all other Obligations (as such term is defined in the Prepetition Credit
Agreement), and shall not be subject to avoidance, objection, challenge, deduction, subordination,
recharacterization or offset. The Allowed Prepetition Credit Agreement Claims shall have been
indefeasibly paid in full in Cash prior to the Effective Date pursuant to the terms of the Final
DIP Order.
(d) Class 4: Secured Notes Claims. The Secured Notes Claims shall be deemed Allowed
pursuant to this Plan in the aggregate amount equal to (i) $225 million plus (ii) the aggregate
amount of all accrued and unpaid interest under the Secured Notes Indenture as of
20
the Effective Date, plus (iii) all other Obligations (as defined in the Secured Notes
Indenture) including the Secured Notes Indenture Trustee Claims, and shall not be subject to
avoidance, objection, challenge, deduction, subordination, recharacterization or offset. On the
Effective Date (or as soon as reasonably practical thereafter), each Holder of an Allowed Secured
Notes Claim, other than the Secured Notes Indenture Trustee, shall receive in full and complete
settlement, release and discharge of such Claim, its Pro Rata Share of (i) 97% of the New Common
Stock issued and outstanding as of the Effective Date (subject to dilution by any New Common Stock
issued upon exercise of the New Warrants and the New Common Stock issued (or issuable upon exercise
of any options for New Common Stock issued) under the Management Equity Incentive Plan) (with such
New Common Stock being contributed by NEI to NFC, and then by NFC to Neenah, immediately prior to
such exchange) and (ii) $50 million in aggregate principal amount of the New Secured Notes.
(e) Class 5: General Unsecured Claims. On or as soon as reasonably practicable after
the latest to occur of (i) the Initial Distribution Date, (ii) the first Distribution Date after
such General Unsecured Claim becomes an Allowed Claim, or (iii) the date on which such Allowed
General Unsecured Claim becomes due and payable in accordance with the applicable non-bankruptcy
law governing such Claim, each Holder of an Allowed General Unsecured Claim shall receive payment
of 100% of such General Unsecured Claim in Cash.
(f) Class 6: Subordinated Notes Claims. Subordinated Notes Claims shall be deemed
Allowed pursuant to this Plan in the aggregate amount equal to the outstanding principal amount of
the Subordinated Note Claims plus the outstanding interest accrued thereon as of the Petition Date,
and shall not be subject to avoidance, objection, challenge, deduction, subordination,
recharacterization or offset. On the Effective Date (or as soon as reasonably practical
thereafter), the Holders of Allowed Subordinated Notes Claims shall receive their Pro Rata Share of
(i) 3% of the New Common Stock issued and outstanding as of the Effective Date (subject to dilution
by any New Common Stock issued upon exercise of the New Warrants and New Common Stock issued (or
issuable upon exercise of any options for New Common Stock issued) under the Management Equity
Incentive Plan) (with such New Common Stock being contributed by NEI to NFC, and then by NFC to
Neenah, immediately prior to such exchange) and (ii) the New Warrants. In addition, the reasonable
and documented fees and expenses of legal counsel for the Subordinated Noteholders incurred in
connection with the Chapter 11 Cases, in an amount not to exceed $55,000, shall be paid by the
Reorganized Debtors in the ordinary course of business (without the requirement to file any fee
application with the Bankruptcy Court) on the Effective Date (or as soon as reasonably practicable
thereafter).
(g) Class 7: Intercompany Claims. On the Effective Date, at the option of the Debtors
(with the consent of the Ad Hoc Committee of Secured Noteholders), all Intercompany Claims shall
either be (i) Reinstated, in full or in part, or (ii) discharged and extinguished, in full or in
part, in which case such discharged and extinguished Claims or portions thereof shall be eliminated
and the Holders thereof shall not be entitled to, and shall not receive or retain, any property or
interest on account thereof under this Plan, provided, however, that prior to such
discharge and extinguishment, such Intercompany Claims may be contributed to capital, transferred,
offset or subject to any other arrangement at the option of the Debtors.
21
(h) Class 8: Section 510(b) Claims. On the Effective Date, all Section 510(b)
Claims shall be discharged and extinguished and the Holders thereof shall not receive or retain any
property under this Plan on account of such Section 510(b) Claims.
3.3. Classification and Treatment of Interests.
(a) Class 9: NEI Common Interests. Each Holder of an NEI Common Interest shall have
its NEI Common Interest cancelled, annulled and extinguished on the Effective Date, and the Holders
of NEI Common Interests shall not receive or retain any property under this Plan on account of such
NEI Common Interests.
(b) Class 10: Subsidiary Interests. On the Effective Date, Reorganized NEI and the
other Reorganized Debtors that are Holders of the Subsidiary Interests shall retain, unaltered, the
legal, equitable and contractual rights to which such Subsidiary Interests entitled the Holders
thereof immediately prior to the Effective Date.
3.4. Special Provision Regarding Unimpaired Claims. Except as otherwise explicitly
provided in this Plan, nothing herein shall affect the Debtors’ or the Reorganized Debtors’ rights
and defenses, both legal and equitable, with respect to any Unimpaired Claims, including, but not
limited to, the legal and equitable defenses of setoff or recoupment with respect to the Unimpaired
Claims.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN
4.1. 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 shall have accepted this Plan if this 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 in such
Class that have timely and properly voted to accept or reject this Plan.
4.2. Presumed Acceptances by Unimpaired Classes. Classes 1, 2, 3, and 10 are
Unimpaired by this Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, the Holders of Claims
and Interests in such Classes are conclusively presumed to have accepted this Plan and therefore
shall not be entitled to vote to accept or reject the Plan.
4.3. Presumed Acceptance by Holders of Intercompany Claims. The Debtors, as the
proponents of this Plan and the Holders of Intercompany Claims in Class 7, shall be deemed to have
accepted the Plan and votes to accept or reject the Plan shall not be solicited from the Debtors in
their capacities as the Holders of Intercompany Claims.
4.4. Presumed Rejection by Impaired Classes. Classes 8 and 9 are Impaired by this
Plan, and Holders of Claims and Interests in Classes 8 and 9 will not receive or retain any
property under this Plan on account of such Claims or Interests. Pursuant to Section 1126(g) of
the Bankruptcy Code, Holders of such Claims and Interests are conclusively presumed to have
rejected this Plan and therefore shall not be entitled to vote to accept or reject the Plan.
22
4.5. Impaired Classes of Claims Entitled to Vote on the Plan. Holders of Claims in
Classes 4, 5 and 6 are Impaired and shall be entitled to vote to accept or reject this Plan.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
5.1. Procedural Consolidation. The Plan is a joint plan that does not provide for
substantive consolidation of the Estates and, on the Effective Date, the Estates shall not be
deemed to be substantively consolidated for purposes hereof. Except as specifically set forth
herein, nothing in this Plan or the Disclosure Statement shall constitute or be deemed to
constitute an admission that any one of the Debtors is subject to or liable for any claim against
any other Debtor. Additionally, claimants holding Claims against multiple Debtors, to the extent
such Claims are Allowed in each Debtor’s case, will be treated as Holders of separate Claims
against each applicable Estate for all purposes (including, but not limited to, voting and
distributions); provided, however, that no Holder shall be entitled to receive more
than payment in full of its Allowed Claim (plus post-petition interest, if and to the extent
provided in this Plan), and such Claims will be administered and treated in the manner provided in
this Plan. Unless otherwise provided by this Plan or the Confirmation Order, Allowed Claims held
against any Debtor shall be satisfied solely from the Cash and other assets of such Debtor and its
Estate, provided that, to the extent of any insufficiency, funds or other property may be advanced
to the relevant Debtor(s) by any of the other Debtors.
5.2. Issuance and Distribution of New Securities and Related Matters.
(a) Issuance of New Secured Notes. On the Effective Date, each Holder of a Secured
Notes Claim shall receive, in partial consideration of the cancellation of its Secured Notes Claim,
its Pro Rata Share of the New Secured Notes (to be distributed in accordance with Section 6.5(b)
hereof). In order to facilitate such distribution, on or before the Effective Date, all relevant
parties will execute, deliver and/or issue the New Secured Notes Indenture (and effectuate the
appointment of an indenture trustee) and the New Secured Notes Documents, including, without
limitation, the New Secured Notes. Upon execution, issuance and delivery of the New Secured Notes
Documents and perfection of the liens on the New Secured Notes Collateral, as created pursuant to
the New Secured Notes Documents, and as provided herein, the Secured Notes Indenture, the Secured
Notes, and all related documents, will be deemed terminated and/or cancelled. The Secured Notes
Indenture Trustee, Neenah and all other relevant parties to the Secured Notes Indenture and the
related documents, will be directed to and authorized and required to take all such actions as will
be necessary or appropriate to effectuate or implement the foregoing termination and/or
cancellation of the Secured Notes Indenture and all related documents, including, without
limitation, the Secured Notes. The New Secured Notes shall not be registered under the Securities
Act of 1933, as amended.
(b) Issuance of New Common Stock and New Warrants. On the Effective Date (or as soon
as reasonably practical thereafter), Reorganized NEI shall issue 10,000,000 shares of New Common
Stock and the New Warrants for distribution in accordance with the terms of this Plan. The shares
of New Common Stock and the New Warrants shall be contributed by NEI to NFC, and then by NFC to
Neenah, immediately prior to their exchange for
23
the Secured Notes Claims and the Subordinated Notes Claims pursuant to this Plan. Upon the
Effective Date: (i) Reorganized NEI will not be a reporting company under the Securities Exchange
Act of 1934, as amended (the “1934 Act”), provided that, unless the board
of directors of Reorganized NEI by requisite supermajority vote determines to do so earlier or is
otherwise required by law to do so earlier, Reorganized NEI shall use its commercially reasonable
efforts to cause the New Common Stock to be registered under the 1934 Act on or as soon as
reasonably practical after the second anniversary of the Effective Date; and (ii) neither the New
Common Stock nor the New Warrants shall be listed for public trading on any national securities
exchange. Distribution of such New Common Stock shall be made by means of book-entry exchange
through the facilities of the DTC in accordance with the customary practices of the DTC, as and to
the extent practicable, as provided in Section 6.5 hereof. The Amended and Restated Certificate of
Incorporation, in substantially the form of Exhibit 1 to this Plan (to be filed with the
Plan Supplement), sets forth the rights of the New Common Stock, and (i) shall provide that
Reorganized NEI’s stockholders will have preemptive rights (without oversubscription rights) for
issuances of equity securities (or securities convertible or exercisable for equity securities),
subject to certain exclusions and limitations, and (ii) shall not include any limitation on the
number of holders of the New Common Stock. The form of New Warrants (to be filed with the Plan
Supplement) sets forth the rights of the New Warrants.
Unless the board of directors of Reorganized NEI by requisite supermajority vote determines
otherwise, Reorganized NEI will use its commercially reasonable efforts to disseminate quarterly
unaudited and annual audited financial information, both including notes, and a brief narrative
discussion and analysis of such financial information through the Pink Sheets News Service (or by
other means reasonably designed to make such information available to stockholders as determined by
the board of directors of Reorganized NEI), until such time as Reorganized NEI becomes a reporting
company under the 1934 Act. In accordance with the foregoing, Reorganized NEI will use its
commercially reasonable efforts to make such quarterly financial information available no later
than forty-five (45) days after the end of each of the first three fiscal quarters, and annual
financial information available no later than ninety (90) days after the end of the fourth fiscal
quarter of each fiscal year. In addition, beginning with the fiscal quarter that ends immediately
following the eighteen (18) month anniversary of the Effective Date, Reorganized NEI will host
conference calls that will be open to all stockholders of Reorganized NEI to provide commentary
from senior management of Reorganized NEI regarding the most recently disseminated quarterly and
annual financial results.
5.3. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors.
On and after the Effective Date, after giving effect to each of the Restructuring Transactions
contemplated under this Plan, as set forth in Exhibit 8 to this Plan (to be filed with the
Plan Supplement), each of the Reorganized Debtors shall continue to exist as separate corporate
entities in accordance with the applicable law in the respective jurisdiction in which they are
incorporated and pursuant to their respective certificates or articles of incorporation and by-laws
in effect prior to the Effective Date, except to the extent such certificates or articles of
incorporation and by-laws are to be amended pursuant to the terms of this Plan. Notwithstanding
anything to the contrary in this Plan, the Reinstated Claims and Interests of a particular Debtor
or Reorganized Debtor shall remain the obligations solely of such Debtor or Reorganized Debtor
following the Effective Date and shall not become obligations of any other Debtor or Reorganized
Debtor by virtue of this Plan, the Chapter 11 Cases, or otherwise. Except as
24
otherwise provided in this Plan, on and after the Effective Date, all property of the Estates
of the Debtors, including all claims, rights and causes of action and any property acquired by the
Debtors or the Reorganized Debtors under or in connection with this Plan, shall vest in the
Reorganized Debtors free and clear of all Claims, Liens, charges, other encumbrances and Interests.
On and after the Effective Date, the Reorganized Debtors may operate their businesses and may use,
acquire and dispose of property and compromise or settle any Claims without supervision of or
approval by the Bankruptcy Court and free and clear of any restrictions of the Bankruptcy Code or
the Bankruptcy Rules, other than restrictions expressly imposed by this Plan or the Confirmation
Order. Without limiting the foregoing, the Reorganized Debtors shall be authorized to pay the
charges that they incur on or after the Effective Date for professionals’ fees, disbursements,
expenses or related support services without the need for any application to the Bankruptcy Court.
5.4. Corporate Governance, Directors, Officers and Corporate Action.
(a) Amended and Restated Certificates or Articles of Incorporation and By-Laws. On
the Effective Date, the Amended and Restated Certificate of Incorporation and the Amended and
Restated By-Laws, in substantially the forms of Exhibit 1 and Exhibit 2 to this
Plan (to be filed with the Plan Supplement), respectively, and in a form reasonably acceptable to
the Debtors and the Ad Hoc Committee of Secured Noteholders, shall become effective and shall,
among other things, (i) pursuant to Section 1123(a)(6) of the Bankruptcy Code, include a provision
prohibiting the issuance of non-voting equity securities, but only to the extent required by
Section 1123(a)(6) of the Bankruptcy Code; and (ii) authorize the issuance of the New Common Stock.
In addition, on or prior to the Effective Date, the certificates or articles of incorporation and
by-laws of each Reorganized Debtor other than Reorganized NEI shall be amended as necessary to (a)
include director and officer liability exculpation and indemnity provisions (including advancement
of expenses) for those individuals who are or were directors or officers of the Debtors or the
Reorganized Debtors on or after the Petition Date in accordance with, and to the fullest extent
authorized by, the law of such Reorganized Debtor’s state of organization and (b) satisfy the
provisions of this Plan and the Bankruptcy Code. After the Effective Date, the Reorganized Debtors
may amend and restate their certificates or articles of incorporation and by-laws in accordance
with applicable law, subject to the provisions of Section 10.2(e) of this Plan.
(b) Reincorporation of Neenah in Delaware. On or prior to the Effective Date, Neenah
shall be reincorporated as a Delaware corporation. On or prior to the Effective Date, Neenah shall
execute all such documents, certificates and instruments and make such filings in the States of
Delaware and Wisconsin as shall be necessary or desirable to effect such a reincorporation.
(c) Directors and Officers of the Reorganized Debtors. Subject to any requirement of
Bankruptcy Court approval pursuant to Section 1129(a)(5) of the Bankruptcy Code, on the Effective
Date, the initial directors and officers of Reorganized NEI shall be the persons identified in
Exhibit 5, which shall be filed with the Plan Supplement. On the Effective Date, the
initial board of directors of Reorganized NEI shall consist of seven members, each of whom shall
have one vote for all purposes, and shall be made up of the following members: (i) two members
shall be persons designated by the Ad Hoc Committee of Secured Noteholders
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(each, an “Ad Hoc Designee”), (ii) one member shall be independent but designated by
the Ad Hoc Committee of Secured Noteholders (the “Ad Hoc Independent”), (iii) one member
shall be the chief executive officer of Reorganized NEI (the “CEO Designee”), (iv) one
member shall be a person designated by a group of Holders (the “Minority Holders”) of 33%
or more in amount of the Secured Notes (the “Minority Designee”), (v) one member shall be
independent but designated by the Minority Holders (the “Minority Independent”), and (vi)
one member shall be a person jointly designated by the Minority Holders and the Ad Hoc Committee of
Secured Noteholders (the “Joint Designee”). If there is no group of Minority Holders, the
members of the Ad Hoc Committee of Secured Noteholders will work with the other Secured Noteholders
to elect qualified independent members to the board of directors of Reorganized NEI.
Thereafter, the Amended and Restated Certificate of Incorporation and the Amended and Restated
By-Laws, as each may be amended thereafter from time to time, shall govern the designation and
election of directors and shall provide that elections to determine future board seats will be held
annually with no special voting rules or requirements; provided, however, that (i)
at the first annual stockholders’ meeting after the Effective Date, only the board seats held by
the CEO Designee and the Ad Hoc Independent shall be subject to election by stockholders, (ii) at
the second annual stockholders’ meeting after the Effective Date, only the board seats held by one
of the Ad Hoc Designees and the Minority Independent shall be subject to election by stockholders,
and (iii) at the third annual stockholders’ meeting after the Effective Date, only the board seats
held by the other Ad Hoc Designee, the Minority Designee and the Joint Independent shall be subject
to election by stockholders. In addition, the boards of directors of the other Reorganized Debtors
shall be comprised of members of the board of directors of Reorganized NEI, or such other persons
as are designated by the board of directors of Reorganized NEI. Each member of the current board
of directors of each of the Debtors will be deemed to have resigned on the Effective Date. As set
forth in Exhibit 5 to the Plan, all existing executive officers of the Debtors are
currently expected to serve as officers of the Reorganized Debtors in their existing capacities
from and after the Effective Date.
(d) Corporate Action. On the Effective Date, the reincorporation of Reorganized
Neenah as a Delaware corporation, the adoption of the Amended and Restated Certificate of
Incorporation or similar constituent documents, the adoption of the Amended and Restated By-Laws,
the selection of directors and officers for Reorganized NEI and the other Reorganized Debtors, and
all other corporate actions contemplated by this Plan, shall be authorized and approved in all
respects, or shall have otherwise occurred (subject to the provisions of this Plan). All matters
provided for in this Plan involving the corporate structure of the Debtors or the Reorganized
Debtors, and any corporate action required by the Debtors or the Reorganized Debtors in connection
with this Plan, shall be deemed to have timely occurred in accordance with applicable law and shall
be in effect, without any requirement of further action by the security holders or directors of the
Debtors or the Reorganized Debtors. On the Effective Date, the appropriate officers of Reorganized
NEI and/or the other Reorganized Debtors and members of the boards of directors of Reorganized NEI
and/or the other Reorganized Debtors are authorized and directed to issue, execute, deliver and
perform the agreements, documents, securities and instruments contemplated by this Plan in the name
of and on behalf of Reorganized NEI and/or the other Reorganized Debtors.
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5.5. Cancellation of Notes, Instruments, Debentures, and NEI Common Interests. On the
Effective Date, after giving effect to the distributions to be made on the Effective Date pursuant
to this Plan and except as otherwise provided herein, all (a) Prepetition Credit Documents, Secured
Notes, Subordinated Notes, NEI Common Interests, and any other notes, bonds (with the exception of
surety bonds outstanding), indentures (including the Secured Notes Indenture), stockholders
agreements, registration rights agreements, repurchase agreements and repurchase arrangements,
subscription agreements, exchange agreements, warrant agreements or other instruments, documents,
plans or agreements evidencing or creating any indebtedness or obligations of a Debtor that relate
to Claims or Interests that are Impaired under this Plan, shall be cancelled, and (b) the
obligations of the Debtors under any Prepetition Credit Documents, stockholders agreements,
registration rights agreements, repurchase agreements and repurchase arrangements, subscription
agreements, exchange agreements, warrant agreements, indentures (including the Secured Notes
Indenture) or certificates of designation governing the Secured Notes, Subordinated Notes, NEI
Common Interests, and any other notes, bonds, indentures, or other instruments, documents, plans or
agreements evidencing or creating any Claims or Interests against a Debtor that relate to Claims or
Interests that are Impaired under this Plan shall be discharged; provided, however,
that (i) the Secured Notes Indenture shall continue in effect to the extent necessary to allow the
Reorganized Debtors and the Secured Notes Indenture Trustee to make distributions pursuant to this
Plan on account of Secured Notes Claims and to preserve the liens of the Secured Notes Indenture
Trustee with respect to such distributions, but only to the extent that the Secured Notes Indenture
Trustee Claims are not paid pursuant to Section 3.1(a) hereof, and (ii) Neenah’s indemnification
obligations under the Secured Notes Indenture, the Prepetition Credit Agreement, the DIP Revolving
Facility Agreement, and the DIP Term Facility Agreement shall survive the confirmation of this Plan
notwithstanding the cancellation of such agreements on the Effective Date. As of the Effective
Date, all NEI Common Interests that have been authorized to be issued but that have not been issued
shall be deemed cancelled and extinguished without any further action of any party.
5.6. Cancellation of Liens. Except as otherwise provided in the Plan, on the
Effective Date, in consideration for the distributions to be made on the Effective Date pursuant to
this Plan, (i) all Liens, charges, encumbrances and rights related to any Claim or Interest,
including, without limitation, those existing under the Prepetition Credit Documents, shall be
terminated, null and void and of no effect, and (ii) any Lien securing any Other Secured Claim
(other than a Lien securing an Other Secured Claim that is Reinstated pursuant to the Plan) shall
be deemed released and the Holder of such Other Secured Claim shall be authorized and directed to
release any collateral or other property of any Debtor (including any cash collateral) held by such
Holder and to take such actions as may be requested by the Debtors (or the Reorganized Debtors, as
the case may be) to evidence the release of such Lien, including the execution, delivery, and
filing or recording of such release documents as may be requested by the Debtors (or the
Reorganized Debtors, as the case may be).
5.7. Issuance of New Securities and Related Matters. On the Effective Date (or as
soon as reasonably practicable thereafter), Reorganized NEI and the Reorganized Debtors shall issue
all securities and execute all instruments, certificates and other documents, including the New
Secured Notes, the New Common Stock and the New Warrants, required to be issued or distributed
pursuant to this Plan without further act or action under applicable law, regulation, order or
rule. The issuance of the New Secured Notes, the New Common Stock and the New
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Warrants and the distribution thereof under this Plan shall be exempt from registration under
applicable securities laws pursuant to the applicable provisions of the Bankruptcy Code, including
Section 1145(a) of the Bankruptcy Code. Without limiting the effect of Section 1145 of the
Bankruptcy Code, all documents, agreements and instruments entered into on or as of the Effective
Date contemplated by or in furtherance of this Plan, including, without limitation, the Exit
Revolving Facility Documentation, the Exit Term Loan Facility Documentation, the New Secured Notes
Indenture, the New Warrants, and any other agreement, document or instrument entered into in
connection with the foregoing, shall become effective and binding in accordance with their
respective terms and conditions upon the parties thereto.
5.8. Exit Financing. On the Effective Date, without any requirement of further action
by security holders or directors of the Debtors or the Reorganized Debtors, the Reorganized Debtors
shall be authorized and directed to enter into the Exit Revolving Facility Documentation and the
Exit Term Loan Facility Documentation and to execute all other necessary and appropriate
documentation in connection with the Exit Revolving Facility and the Exit Term Loan Facility.
5.9. Management Equity Incentive Plan. Following the Effective Date, the new board of
directors of Reorganized NEI shall adopt and implement the Management Equity Incentive Plan.
5.10. Sources of Cash for Plan Distributions. Except as otherwise provided in this
Plan or the Confirmation Order, all Cash necessary for the Reorganized Debtors to make payments
pursuant to this Plan may be obtained from existing Cash balances, the operations of the Debtors
and the Reorganized Debtors, sales of assets or borrowings under the Exit Revolving Facility or the
Exit Term Loan Facility.
5.11. Cram-Down. If any Impaired Class fails to accept this Plan by the requisite
statutory majorities, the Debtors reserve the right (i) to confirm this Plan by a “cram-down” of
such non-accepting Class pursuant to section 1129(b) of the Bankruptcy Code and (ii) to propose any
modifications to this Plan and to confirm this Plan as modified, without re-solicitation, to the
extent permitted by the Bankruptcy Code.
5.12. Restructuring Transactions. On, prior to, or after the Effective Date, any
Debtor or Reorganized Debtor may enter into or undertake any Restructuring Transactions and may
take such actions as may be determined by such Debtor or Reorganized Debtor to be necessary or
appropriate to effect such Restructuring Transactions. The actions to effect the Restructuring
Transactions may include, without limitation: (i) the execution and delivery of appropriate
agreements or other documents of merger, consolidation, conversion, restructuring,
recapitalization, disposition, liquidation or dissolution containing terms that are consistent with
the terms herein and that satisfy the requirements of applicable law and such other terms to which
the applicable entities may agree; (ii) the execution and delivery of appropriate instruments of
transfer, assignment, assumption, disposition, or delegation of any asset, property, right,
liability, duty or obligation on terms consistent with the terms herein and having such other terms
to which the applicable entities may agree; (iii) the filing of appropriate certificates or
articles of merger, consolidation, conversion or dissolution (or similar instrument) pursuant to
applicable law; and (iv) all other actions which the applicable entities may determine to be
28
necessary or appropriate, including making filings or recordings that may be required by
applicable law in connection with such transactions. In each case in which the surviving,
resulting or acquiring Person in any such transaction is a successor to a Reorganized Debtor, such
surviving, resulting or acquiring Person will perform the obligations of the applicable Reorganized
Debtor pursuant to the Plan to pay or otherwise satisfy the Allowed Claims against such Reorganized
Debtor, except as provided by applicable law or in any contract, instrument or other agreement or
document effecting a disposition to such surviving, resulting or acquiring person, which may
provide that another Reorganized Debtor will perform such obligations. Exhibit 8 to this
Plan, to be filed with the Plan Supplement, shall set forth a detailed description of the actions
and steps required to implement the Restructuring Transactions. On or prior to, or as soon as
practicable after, the Effective Date, the Debtors or the Reorganized Debtors may take such steps
as they may deem necessary or appropriate to effectuate any Restructuring Transactions that satisfy
the requirements set forth in this Section 5.12. The Restructuring Transactions shall be
authorized by the Confirmation Order pursuant to Sections 1123 and 1141 of the Bankruptcy Code,
without any further notice, action, or process of any kind, and may be amended, altered or modified
in a manner that is favorable to the Reorganized Debtors and the Ad Hoc Committee of Secured
Noteholders.
5.13. Additional Transactions Authorized Under this Plan. On or prior to the
Effective Date, the Debtors shall be authorized to take any such actions as may be necessary or
appropriate to Reinstate Claims or Interests or render Claims or Interests not Impaired, as
provided for under the Plan.
5.14. Comprehensive Settlement of Claims and Controversies. Pursuant to Bankruptcy
Rule 9019 and in consideration for the distributions and other benefits provided under the Plan,
the provisions of the Plan will constitute a good faith compromise and settlement of all Claims or
controversies relating to the rights that a Holder of a Claim or Interest may have with respect to
any Allowed Claim or Allowed Interest or any distribution to be made pursuant to the Plan on
account of any Allowed Claim or Allowed Interest. The entry of the Confirmation Order will
constitute the Bankruptcy Court’s approval, as of the Effective Date, of the compromise or
settlement of all such claims or controversies and the Bankruptcy Court’s finding that all such
compromises or settlements are in the best interests (x) of the Debtors, the Reorganized Debtors
and their respective Estates and property, and (y) Claim and Interest holders, and are fair,
equitable and reasonable.
ARTICLE VI
PROVISIONS GOVERNING DISTRIBUTIONS
6.1. Distributions for Claims or Interests Allowed as of the Initial Distribution
Date. Unless the Holder of an Allowed Claim and the Debtors or the Reorganized Debtors agree
to a different Distribution Date and except as otherwise provided herein or as ordered by the
Bankruptcy Court, distributions to be made on account of Claims that are Allowed as of the
Effective Date shall be made on the Initial Distribution Date or as soon thereafter as is
practicable. Notwithstanding the date on which any distribution of New Secured Notes, New Common
Stock or New Warrants is actually made to a Holder of a Claim that is an Allowed Claim on the
Effective Date, as of the date of the distribution such Holder shall be deemed to
29
have the rights of a holder of such securities distributed as of the Effective Date. Any
payment or distribution required to be made under this Plan on a day other than a Business Day
shall be made on the next succeeding Business Day.
6.2. Interest on Claims. Except as otherwise specifically provided for in this Plan,
the Confirmation Order or other order of the Bankruptcy Court (including, without limitation, the
Final DIP Order), or required by applicable bankruptcy or non-bankruptcy law, post-petition
interest shall not accrue or be paid on any Claims (other than Secured Claims), and no Holder of a
Claim shall be entitled to interest accruing on or after the Petition Date on any Claim.
6.3. Distributions by Disbursing Agents. Other than as specifically set forth in this
Plan, the Disbursing Agents shall make all distributions required to be made under this Plan.
Distributions on account of the Secured Notes Claims and the Subordinated Notes Claims, shall be
made in accordance with the Secured Notes Indenture, any other applicable governing documents, or
in accordance with this Plan where such governing document is silent. The Reorganized Debtors may
act as Disbursing Agent or may employ or contract with other entities to assist in or make the
distributions required by this Plan.
6.4. Delivery of Distributions and Undeliverable or Unclaimed Distributions. The
following terms shall govern the delivery of distributions and undeliverable or unclaimed
distributions with respect to Claims.
(a) Delivery of Distributions in General. Distributions to Holders of Allowed Claims
shall be made at the addresses set forth in the Debtors’ records unless such addresses are
superseded by Proofs of Claim or notices of transfer filed pursuant to Bankruptcy Rule 3001.
(b) Undeliverable and Unclaimed Distributions.
(i) Holding and Investment of Undeliverable and Unclaimed Distributions. If the
distribution to any Holder of an Allowed Claim is returned to the Reorganized Debtors or the
Disbursing Agents as undeliverable or is otherwise unclaimed, no further distributions shall be
made to such Holder unless and until the Reorganized Debtors or the Disbursing Agents are notified
in writing of such Holder’s then current address.
(ii) Failure to Claim Undeliverable Distributions. Any Holder of an Allowed Claim
that does not assert a claim pursuant to this Plan for an undeliverable or unclaimed distribution
within one (1) year after the Effective Date shall be deemed to have forfeited its claim for such
undeliverable or unclaimed distribution and shall be forever barred and enjoined from asserting any
such claim for an undeliverable or unclaimed distribution against the Debtors or their Estates or
the Reorganized Debtors or their property. In such cases, any Cash for distribution on account of
such claims for undeliverable or unclaimed distributions shall become the property of the Estates
and the Reorganized Debtors free of any restrictions thereon and notwithstanding any federal or
state escheat laws to the contrary. Any New Secured Notes, New Common Stock or New Warrants held
for distribution on account of such Claim shall be canceled and of no further force or effect.
Nothing contained in this Plan shall require any Disbursing Agent, including, but not limited to,
the Reorganized Debtors, to attempt to locate any Holder of an Allowed Claim.
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6.5. Record Date for Distributions.
(a) The Reorganized Debtors and the Disbursing Agents will have no obligation to but may, in
their sole and absolute discretion, recognize the transfer of, or the sale of any participation in,
any Allowed Claim that occurs after the close of business on the Distribution Record Date, and will
be entitled for all purposes herein to recognize and distribute only to those Holders of Allowed
Claims that are Holders of such Claims, or participants therein, as of the close of business on the
Distribution Record Date. The Reorganized Debtors and the Disbursing Agents shall instead be
entitled to recognize and deal for all purposes under this Plan with only those record holders
stated on the official claims register as of the close of business on the Distribution Record Date.
(b) Distributions of New Secured Notes and New Common Stock to Holders of Secured Notes Claims
by the Secured Notes Indenture Trustee, and distributions of New Common Stock and New Warrants to
Holders of Subordinated Notes Claims administered by such Disbursing Agents as selected by the
Debtors, shall be made by means of book-entry exchange through the facilities of the DTC in
accordance with the customary practices of the DTC, as and to the extent practicable. In
connection with such book-entry exchange, the Secured Notes Indenture Trustee or the Disbursing
Agents, as applicable, shall deliver instructions to the DTC instructing the DTC to effect
distributions on a Pro Rata basis as provided under the Plan with respect to such Claims.
6.6. Allocation of Plan Distributions Between Principal and Interest. Except as
otherwise expressly provided in this Plan, to the extent that any Allowed Claim entitled to a
distribution under this Plan is comprised of indebtedness and accrued but unpaid interest thereon,
such distribution shall, for all income tax purposes, be allocated to the principal amount of the
Claim first and then, to the extent that the consideration exceeds the principal amount of the
Claim, to the portion of such Claim representing accrued but unpaid interest.
6.7. Means of Cash Payment. Payments of Cash made pursuant to this Plan shall be in
U.S. dollars and shall be made, at the option and in the sole discretion of the Reorganized
Debtors, by (a) checks drawn on or (b) wire transfer from a bank selected by the Reorganized
Debtors. Cash payments to foreign creditors may be made, at the option of the Reorganized Debtors,
in such funds and by such means as are necessary or customary in a particular foreign jurisdiction.
6.8. Withholding and Reporting Requirements. In connection with this Plan and all
distributions thereunder, the Reorganized Debtors 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
Reorganized Debtors shall be authorized to take any and all actions that may be necessary or
appropriate to comply with such withholding and reporting requirements. All persons holding Claims
or Interests shall be required to provide any information necessary to effect information reporting
and the withholding of such taxes. Notwithstanding any other provision of this Plan, (a) each
Holder of an Allowed Claim that is to receive a distribution pursuant to this Plan shall have sole
and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any
governmental unit, including income, withholding and other tax obligations, on
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account of such distribution and (b) no distribution shall be made to or on behalf of such
Holder pursuant to this Plan unless and until such Holder has made arrangements satisfactory to the
Reorganized Debtors for the payment and satisfaction of such tax obligations.
6.9. Setoff and Recoupment. The Reorganized Debtors may, pursuant to Section 553 of
the Bankruptcy Code or applicable non-bankruptcy laws, but shall not be required to, set off or
recoup against any Claim, the payments or other distributions to be made pursuant to this Plan in
respect of such Claim, or claims of any nature whatsoever that the Debtors or the Reorganized
Debtors may have against the Holder of such Claim; provided, however, that neither
the failure to assert such rights of setoff or recoupment nor the allowance of any Claim hereunder
shall constitute a waiver or release by the Reorganized Debtors of any Claim that the Debtors or
the Reorganized Debtors may assert against any Holder of an Allowed Claim.
6.10. Fractional Securities. No fractional securities shall be distributed. Where a
fractional security would otherwise be called for, the actual issuance shall reflect a rounding up
(in the case of more than .50) of such fraction to the nearest whole share of New Common Stock (or
whole warrant, in the case of New Warrants, and whole dollar, in the case of New Secured Notes), or
a rounding down of such fraction (in the case of .50 or less than .50) to the nearest whole share
of New Common Stock (or whole warrant, in the case of New Warrants, and whole dollar, in the case
of New Secured Notes). The total number of shares of New Common Stock, the total number of New
Warrants, and the total principal amount of New Secured Notes to be distributed pursuant to the
Plan shall be adjusted as necessary to account for the rounding provided for herein.
6.11. Compromises and Settlements. Up to and including the Effective Date, the
Debtors, in consultation with the Ad Hoc Committee of Secured Noteholders, may compromise and
settle, in accordance with Bankruptcy Rule 9019(a), any and all Claims against them. On the
Effective Date, such right to compromise and settle Claims shall pass to the Reorganized Debtors
and the Reorganized Debtors shall thereafter be authorized to compromise and settle any Disputed
Claim and execute all necessary documents, including a stipulation of settlement or release, in
their sole discretion, without notice to any party, and without the need for further approval of
the Bankruptcy Court.
6.12. Claims Administration Responsibility.
(a) Sole Responsibility of the Reorganized Debtors. From and after the Effective
Date, the Reorganized Debtors shall have sole responsibility and authority for disputing, objecting
to, compromising and settling, or otherwise resolving and making distributions (if any) with
respect to all Claims, including all Administrative Expense Claims.
(b) Objections to Claims. Unless otherwise extended by the Bankruptcy Court, any
objections to Claims shall be filed and served on or before the Claims Objection Deadline.
Notwithstanding any authority to the contrary, an objection to a Claim shall be deemed properly
served on the Holder thereof if the Debtors or the Reorganized Debtors effect service of such
objection in any of the following manners: (i) in accordance with Federal Rule of Civil Procedure
4, as modified and made applicable in the Chapter 11 Cases by Bankruptcy Rule 7004; (ii) to the
extent counsel for a Holder of a Claim is unknown, by first class mail,
32
postage prepaid, on the signatory to the applicable Proof of Claim or other representative
identified in the proof of claim or any attachment thereto; or (iii) by first class mail, postage
prepaid, on any counsel that has appeared on the Holder’s behalf in the Chapter 11 Cases and whose
appearance has not been revoked or withdrawn.
6.13. Determination of Allowed Claims. Except as otherwise agreed to by the Debtors
in writing or as set forth in this Plan, the Allowed amount of any Claim as to which a Proof of
Claim was timely filed in the Chapter 11 Cases, and which Claim is subject to an objection filed by
the Debtors or the Reorganized Debtors before the Claims Objection Deadline, will be determined and
liquidated pursuant to a Final Order of the Bankruptcy Court. Upon such determination, the Claim
shall become an Allowed Claim and will be satisfied in accordance with this Plan. Any Claim that
has been or is hereafter listed in the Schedules as neither disputed, contingent or unliquidated,
and for which no Proof of Claim has been timely filed, shall be deemed Allowed for purposes of this
Plan unless otherwise ordered by the Bankruptcy Court.
6.14. No Distributions Pending Allowance. Except as otherwise set forth herein, no
distributions shall be made with respect to any portion of a Disputed Claim unless and until such
Disputed Claim has become an Allowed Claim. Promptly after a Disputed Claim becomes an Allowed
Claim, the Reorganized Debtors or the Disbursing Agents, as applicable, will distribute on the next
succeeding Distribution Date to the Holder of such Allowed Claim any Cash or other property that
would have been distributed to the Holder of such Allowed Claim on the dates Distributions were
previously made to Holders of other Allowed Claims in the same Class had such Claim been an Allowed
Claim on such dates.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS,
UNEXPIRED LEASES AND PENSION PLANS
7.1. Assumption of Executory Contracts and Unexpired Leases. On the Effective Date,
all executory contracts or unexpired leases of the Debtors will be deemed assumed in accordance
with, and subject to, the provisions and requirements of Sections 365 and 1123 of the Bankruptcy
Code, unless such executory contract or unexpired lease (i) was previously assumed or
rejected by the Debtors, (ii) previously expired or terminated pursuant to its own terms, or (iii)
is rejected by the Debtors pursuant to the Assumption/Rejection Motion. Entry of the Confirmation
Order by the Bankruptcy Court shall constitute approval of such assumptions pursuant to sections
365(a) and 1123 of the Bankruptcy Code. Each executory contract and unexpired lease assumed
pursuant to this Article VII shall revest in and be fully enforceable by the respective Reorganized
Debtor in accordance with its terms, except as modified by the provisions of this Plan, or any
order of the Bankruptcy Court authorizing and providing for its assumption or applicable federal
law.
7.2. Cure of Defaults Under Assumed Executory Contracts and Unexpired Leases. Any
monetary amounts by which each executory contract and unexpired lease to be assumed is in default
shall be satisfied, pursuant to Section 365(b)(l) of the Bankruptcy Code, by payment of the default
amount in Cash on the Effective Date or on such other terms as the parties to each such executory
contract or unexpired lease may otherwise agree. In the event of a dispute
33
regarding (a) the amount of any cure payments, (b) the ability of the Reorganized Debtors or
any assignee to provide “adequate assurance of future performance” (within the meaning of Section
365 of the Bankruptcy Code) under the contract or lease to be assumed or (c) any other matter
pertaining to assumption, the cure payments required by section 365(b)(l) of the Bankruptcy Code
shall be made following the entry of a Final Order resolving the dispute and approving the
assumption. Pending the Bankruptcy Court’s ruling on such motion, the executory contract or
unexpired lease at issue shall be deemed assumed by the Debtors unless otherwise ordered by the
Bankruptcy Court.
7.3. Assumption of Collective Bargaining Agreements. All Collective Bargaining
Agreements shall be deemed to have been assumed by the Debtors party thereto upon the occurrence of
the Effective Date. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s
approval of the pertinent Reorganized Debtor’s assumption of each Collective Bargaining Agreement
to which it is a party for the remaining term of agreement of each such Collective Bargaining
Agreement as in effect on the Effective Date, except to the extent that such agreements have
already been assumed prior to the Effective Date.
7.4. Insurance Policies and Agreements. Insurance policies issued to, or insurance
agreements entered into by, the Debtors prior to the Petition Date (including, without limitation,
any policies covering directors’ or officers’ conduct) shall continue in effect after the Effective
Date. To the extent that such insurance policies or agreements are considered to be executory
contracts, then, notwithstanding anything to the contrary in the Plan, the Plan shall constitute a
motion to assume or ratify such insurance policies and agreements, and, subject to the occurrence
of the Effective Date, (i) the entry of the Confirmation Order shall constitute approval of such
assumption pursuant to Section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court
that each such assumption is in the best interest of each Debtor and its Estate. Unless otherwise
determined by the Bankruptcy Court pursuant to a Final Order or agreed to by the parties thereto
prior to the Effective Date, no payments shall be required to cure any defaults of the Debtors
existing as of the Confirmation Date with respect to each such insurance policy.
7.5. Post-Petition Contracts and Leases. All contracts, agreements and leases that
were entered into by the Debtors or assumed by the Debtors after the Petition Date shall be deemed
assigned by the Debtors to the Reorganized Debtors on the Effective Date.
7.6. Retiree Benefits and Pension Plans. In furtherance of, and without in any way
limiting Section 12.6 of this Plan, from and after the Effective Date, the Reorganized Debtors
shall assume the obligation to and shall continue to make the payment of all retiree benefits, as
that term is defined in Section 1114 of the Bankruptcy Code, at the level established pursuant to
subsection (e)(1)(B) or (g) thereof at any time prior to the Confirmation Date, for the duration of
the period (if any) that the Debtors are obligated to provide such benefits. In addition,
notwithstanding anything in this Plan or the Confirmation Order to the contrary, on the Effective
Date, the Pension Plans shall be sponsored by and become obligations of the Reorganized Debtors,
with the Reorganized Debtors assuming all statutory obligations with respect to the Pension Plans,
and shall otherwise be unaffected by confirmation of this Plan. For the avoidance of doubt, no
Claim against a Debtor or any other Entity arising under or in connection with the Pension Plans
shall be discharged, released, enjoined, exculpated or otherwise affected by this Plan, the
Confirmation Order, or by these proceedings.
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ARTICLE VIII
PROVISIONS FOR RESOLVING DISPUTED CLAIMS
AND DISPUTED INTERESTS
8.1. Objections to and Estimation of Claims. From and after the Effective Date, only
the Debtors or the Reorganized Debtors may object to the allowance of any Claim or Administrative
Expense Claim. After the Effective Date, the Reorganized Debtors shall be accorded the power and
authority to allow or settle and compromise any Claim without notice to any other party, or
approval of, or notice to the Bankruptcy Court. In addition, the Debtors or the Reorganized
Debtors may, at any time, request that the Bankruptcy Court estimate any contingent or unliquidated
Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether the Debtors or
Reorganized Debtors have previously objected to such Claim. Unless otherwise ordered by the
Bankruptcy Court, the Debtors or Reorganized Debtors shall serve and file any objections to Claims
as soon as practicable, but in no event later than the Claims Objection Deadline. Any Claims filed
after the Bar Date or Administrative Expense Claims Bar Date, as applicable, shall be deemed
disallowed and expunged in their entirety without further order of the Bankruptcy Court or any
action being required on the part of the Debtors unless the person wishing to file such untimely
Claim has received Bankruptcy Court authority to do so.
8.2. No Distributions Pending Allowance. Notwithstanding any other provision in this
Plan, no payments or distributions shall be made with respect to all or any portion of a Disputed
Claim unless and until all objections to such Disputed Claim have been settled or withdrawn or have
been determined by Final Order and the Disputed Claim, or some portion thereof, has become an
Allowed Claim.
8.3. Distributions on Account of Disputed Claims Once They Are Allowed. To the extent
that a Disputed Claim ultimately becomes an Allowed Claim, distributions (if any) shall be made to
the Holder of such Allowed Claim in accordance with the provisions of this Plan. As soon as
practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed
Claim becomes a Final Order, the Disbursing Agents shall provide to the Holder of such Claim the
distribution (if any) to which such Holder is entitled under this Plan as of the Effective Date,
without any interest to be paid on account of such Claim.
8.4. Reinstated Claims. Notwithstanding anything contained herein to the contrary,
nothing shall affect, diminish or impair the Debtors’ or the Reorganized Debtors’ rights and
defenses, both legal and equitable, with respect to any Reinstated Claim, including, but not
limited to, legal and equitable rights of setoff or recoupment against the Reinstated Claims.
ARTICLE IX
CONFIRMATION AND CONSUMMATION OF THE PLAN
9.1. Conditions to Confirmation. The Plan shall not be confirmed unless and until the
following conditions shall have been satisfied or waived in accordance with Section 9.3 of this
Plan:
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(a) |
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The Bankruptcy Court shall have entered a Final Order, in a
form reasonably acceptable to the Debtors and the Ad Hoc Committee of Secured
Noteholders, approving the adequacy of the Disclosure Statement. |
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(b) |
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The Confirmation Order shall be in form and substance
reasonably satisfactory to the Debtors and the Ad Hoc Committee of Secured
Noteholders. |
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(c) |
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The Lock-Up Agreement shall remain in full force and effect and
shall not have been terminated in accordance with the terms thereof. |
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(d) |
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The final version of the Plan Supplement and all of the
schedules, documents, and Exhibits contained therein shall have been filed in
form and substance reasonably acceptable to the Debtors and the Ad Hoc
Committee of Secured Noteholders without prejudice to the Reorganized Debtors’
rights under the Plan to alter, amend, or modify certain of the schedules,
documents, and Exhibits contained in the Plan Supplement in accordance with the
terms hereof. |
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(e) |
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The Confirmation Order shall have been entered not later than
one hundred and fifty (150) calendar days after the Petition Date unless
otherwise agreed by the Ad Hoc Committee of Secured Noteholders. |
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(f) |
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There shall have been no material changes to any order
authorizing the retention of a Professional or the fees to be paid to such
Professional thereunder. |
9.2. Conditions to Effective Date. The Plan shall not become effective and the
Effective Date shall not occur unless and until the following conditions shall have been satisfied
or waived in accordance with Section 9.3 of this Plan, it being understood that certain of such
conditions shall be satisfied at the time the Plan becomes effective:
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(a) |
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All conditions to confirmation in Section 9.1 of the Plan shall
have been either satisfied or waived in accordance with Section 9.3 of the
Plan. |
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(b) |
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The Confirmation Order confirming this Plan shall have been
entered by the Bankruptcy Court and there shall not be a stay or injunction (or
similar prohibition) in effect with respect thereto. |
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(c) |
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The Lock-Up Agreement shall remain in full force and effect and
shall not have been terminated in accordance with the terms thereof. |
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(d) |
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All documents and agreements necessary to implement this Plan
on the Effective Date, including, but not limited to the Plan Supplement, shall
have been duly and validly executed and delivered by all parties thereto. |
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(e) |
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The final version of the Plan Supplement and all of the
schedules, documents, and Exhibits contained therein shall have been filed in
form
|
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|
|
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and substance reasonably acceptable to the Debtors and the Ad Hoc Committee
of Secured Noteholders without prejudice to the Reorganized Debtors’ rights
under the Plan to alter, amend, or modify certain of the schedules,
documents, and Exhibits contained in the Plan Supplement in accordance with
the terms hereof. |
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(f) |
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All other actions, documents, and agreements determined by the
Debtors and the Ad Hoc Committee of Secured Noteholders to be necessary to
implement the Plan shall have been effected or executed and shall be in form
and substance reasonably acceptable to the Debtors and the Ad Hoc Committee of
Secured Noteholders. |
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(g) |
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The transactions contemplated by Article V of this Plan
shall have occurred or shall have been waived by the Debtors and the Ad Hoc
Committee of Secured Noteholders in accordance with the terms of this Plan. |
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(h) |
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The Ad Hoc Committee Advisor Claims and Secured Notes Indenture
Trustee Claims shall have been paid in full in Cash or the Debtors shall have
provided evidence satisfactory to the Ad Hoc Committee of Secured Noteholders
and the Secured Notes Indenture Trustee that such Claims shall be paid after
the Effective Date. |
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(i) |
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All Prepetition Credit Agreement Claims shall have been
indefeasibly paid in full pursuant to the Final DIP Order. All DIP Revolving
Facility Claims shall have been indefeasibly paid in full in Cash. All DIP
Term Facility Claims shall have been converted into the Exit Term Loan
Facility, paid in full in Cash, or the Debtors shall have provided reasonably
satisfactory evidence that such Claims shall be paid from the proceeds of the
Exit Revolving Facility or the Exit Term Loan Facility, in accordance with
Section 3.1(c) of this Plan. |
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(j) |
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The Amended Restated Certificate of Incorporation and the
Amended and Restated By-Laws of Reorganized NEI, and the amended and restated
certificates or articles of incorporation of the other Reorganized Debtors, as
necessary, shall have been adopted and filed with the applicable authorities in
the relevant jurisdictions of incorporation and shall have become effective in
accordance with the laws of such jurisdictions. |
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(k) |
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All authorizations, consents, certifications, approvals,
rulings, no-action letters, opinions or other documents or actions required by
any law, regulation or order to be received or to occur in order to implement
this Plan on the Effective Date shall have been obtained or shall have occurred
unless failure to do so will not have a material adverse effect on the
Reorganized Debtors. |
37
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(l) |
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The Effective Date shall have occurred not later than one
hundred and sixty-five (165) calendar days after the Petition Date, unless
otherwise agreed by the Ad Hoc Committee of Secured Noteholders. |
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(m) |
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There shall have been no material changes to any order
authorizing the retention of a Professional or the fees to be paid to such
Professional thereunder. |
9.3. Waiver of Conditions. Each of the conditions set forth in Sections 9.1 and 9.2
of this Plan, with the exception of those conditions set forth in Section 9.2(j) hereof, may be
waived in whole or in part by the Debtors, subject to the consent of the Ad Hoc Committee of
Secured Noteholders, which consent shall not be unreasonably withheld, after notice to the
Bankruptcy Court and parties in interest but without the need for a hearing.
9.4. Effect of Non-Occurrence of Effective Date. If each of the conditions specified
in Section 9.1 and 9.2 has not been satisfied or waived in the manner provided in Section 9.3
within fifteen (15) calendar days after the Confirmation Date (as such date may be extended with
the consent of the Debtors and the Ad Hoc Committee of Secured Noteholders), then: (i) the
Confirmation Order shall be vacated and of no further force or effect; (ii) no distributions under
the Plan shall be made; (iii) the Debtors and all Holders of Claims and Interests in the Debtors
shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date
as though the Confirmation Date had never occurred; (iv) all of the Debtors’ obligations with
respect to the Claims and Interests shall remain unaffected by the Plan and nothing contained
herein shall be deemed to constitute a waiver or release of any Claims by or against the Debtors or
any other person or to prejudice in any manner the rights of the Debtors or any person in any
further proceedings involving the Debtors and the Plan shall be deemed withdrawn; and (v) the
Lock-Up Agreement shall be terminated and the Ad Hoc Committee of Secured Noteholders, the
Subordinated Noteholders, and the Debtors shall have all of the rights and remedies under the terms
thereof and under applicable law with respect to such termination. Upon such occurrence, the
Debtors shall file a written notification with the Bankruptcy Court and serve it upon such parties
as the Bankruptcy Court may direct.
9.5. Notice of Effective Date. The Debtors shall file with the Bankruptcy Court a
notice of the occurrence of the Effective Date within a reasonable period of time after the
conditions in Section 9.2 of the Plan have been satisfied or waived pursuant to Section 9.3 of the
Plan.
ARTICLE X
EFFECT OF PLAN CONFIRMATION
10.1. Binding Effect. Except as otherwise provided in Section 1141(d)(3) of the
Bankruptcy Code and subject to the occurrence of the Effective Date, on and after the Confirmation
Date, the provisions of the Plan shall bind any Holder of a Claim against, or Interest in, the
Debtors and such Holder’s respective successors and assigns, whether or not the Claim or Interest
of such Holder is Impaired under the Plan and whether or not such Holder has accepted the Plan.
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10.2. Exculpation, Releases and Discharge.
(a) Exculpation. From and after the Effective Date, the Released Parties shall
neither have nor 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 employees,
representatives, financial advisors, attorneys, or agents acting in such capacity, or affiliates,
or any of their successors or assigns, for any act or omission in connection with, relating to, or
arising out of, the Chapter 11 Cases, formulating, negotiating or implementing this Plan, the
Disclosure Statement, the Restructuring Transactions, or any of the transactions contemplated under
Article V of this Plan, the solicitation of acceptances of this Plan, the pursuit of confirmation
of this Plan, the confirmation of this Plan, the consummation of this Plan, the administration of
this Plan, the property to be distributed under this Plan, or any other act taken or omitted to be
taken in connection with or in contemplation of the Chapter 11 Cases; provided,
however, that this section shall not apply to (x) obligations under, and the contracts,
instruments, releases, agreements, and documents delivered, Reinstated or assumed under this Plan,
and (y) any claims or causes of action arising out of willful misconduct or gross negligence as
determined by a Final Order. Any of the Released Parties shall be entitled to rely, in all
respects, upon the advice of counsel with respect to their duties and responsibilities under the
Plan.
(b) Releases by the Debtors. Except as otherwise expressly provided in the Plan or
the Confirmation Order, on the Effective Date, for good and valuable consideration, to the fullest
extent permissible under applicable law, each of the Debtors and Reorganized Debtors on its own
behalf and as a representative of its respective Estate, shall, and shall be deemed to, completely
and forever release, waive, void, extinguish and discharge unconditionally, each and all of the
Released Parties of and from any and all Claims and Causes of Action (including, without
limitation, Avoidance Actions), any and all other obligations, suits, judgments, damages, debts,
rights, remedies, causes of action and liabilities of any nature whatsoever, and any and all
Interests or other rights of a Holder of an equity security or other ownership interest, 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 or may be
based in whole or part on any act, omission, transaction, event or other circumstance taking place
or existing on or prior to the Effective Date (including prior to the Petition Date) in connection
with or related to any of the Debtors, the Reorganized Debtors, their respective assets, property
and Estates, the Chapter 11 Cases or the Plan, the Disclosure Statement, or the Restructuring
Transactions that may be asserted by or on behalf of any of the Debtors, the Reorganized Debtors or
their respective Estates against any of the Released Parties; provided, however,
that nothing in this section shall be construed to release any Released Party from willful
misconduct or gross negligence as determined by a Final Order.
(c) Releases by Holders of Claims and Interests. Except as otherwise expressly
provided in the Plan or the Confirmation Order, on the Effective Date, for good and valuable
consideration, to the fullest extent permissible under applicable law, each Holder of a Claim
entitled to vote on the Plan shall be deemed to have completely and forever released, waived, and
discharged unconditionally each and all of the Released Parties of and from any and all Claims, any
and all other obligations, suits, judgments,
39
damages, debts, rights, remedies, causes of action and liabilities of any nature whatsoever
(including, without limitation, those arising under the Bankruptcy Code), and any and all Interests
or other rights of a Holder of an equity security or other ownership interest, 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 or may be
based in whole or part on any act, omission, transaction, event or other circumstance taking place
or existing on or prior to the Effective Date (including prior to the Petition Date) in connection
with or related to any of the Debtors, the Reorganized Debtors or their respective assets, property
and Estates, the Chapter 11 Cases or the Plan, the Disclosure Statement, or the Restructuring
Transactions; provided, however, that each Holder of a Claim that has submitted a
Ballot may elect, by checking the appropriate box on its Ballot, not to grant the releases set
forth in this Section 10.2(c), unless otherwise bound by the Lock-Up Agreement to do so, with
respect to those Released Parties other than the Debtors, the Reorganized Debtors, and their
respective successors and assigns (whether by operation of law or otherwise; and provided,
further, however, that nothing in this section shall be construed to release any
Released Party from willful misconduct or gross negligence as determined by a Final Order.
(d) Injunction Related to Exculpation and Releases. Except as provided in the Plan or
the Confirmation Order, as of the Effective Date, (i) all Persons that hold, have held, or may hold
a Claim or any other obligation, suit, judgment, damages, debt, right, remedy, causes of action or
liability of any nature whatsoever, or any Interest or other right of a Holder of an equity
security or other ownership interest, relating to any of the Debtors or the Reorganized Debtors or
any of their respective assets, property and Estates, that is released or enjoined pursuant to this
Section 10.2 of the Plan and (ii) all other parties in interest in these Chapter 11 Cases are, and
shall be, permanently, forever and completely stayed, restrained, prohibited, barred and enjoined
from taking any of the following actions against any Released Party or its property on account of
such released liabilities, whether directly or indirectly, derivatively or otherwise, on account of
or based on the subject matter of such discharged Claims or other obligations, suits, judgments,
damages, debts, rights, remedies, causes of action or liabilities, and of all Interests or other
rights of a Holder of an equity security or other ownership interest: (i) commencing, conducting or
continuing in any manner, directly or indirectly, any suit, action or other proceeding (including,
without limitation, any judicial, arbitral, administrative or other proceeding) in any forum; (ii)
enforcing, attaching (including, without limitation, any prejudgment attachment), collecting, or in
any way seeking to recover any judgment, award, decree, or other order; (iii) creating, perfecting
or in any way enforcing in any matter, directly or indirectly, any Lien; (iv) setting off, seeking
reimbursement or contributions from, or subrogation against, or otherwise recouping in any manner,
directly or indirectly, any amount against any liability or obligation that is discharged under
Section 10.2 of this Plan; and (v) commencing or continuing in any manner, in any place of any
judicial, arbitration or administrative proceeding in any forum, that does not comply with or is
inconsistent with the provisions of the Plan or the Confirmation Order.
(e) Survival of Indemnification Obligations. The obligations of the Debtors to
indemnify any past and present directors, officers, agents, employees and representatives, pursuant
to certificates or articles of incorporation, by-laws, contracts and/or applicable statutes,
40
in respect of all actions, suits and proceedings against any of such officers, directors,
agents, employees and representatives, based upon any act or omission related to service with or
for or on behalf of the Debtors, shall not be discharged or Impaired by confirmation or
consummation of this Plan and shall be assumed by the Reorganized Debtors.
(f) Discharge of Claims and Termination of Interests. Except as otherwise provided
herein or in the Confirmation Order, all consideration distributed under this Plan shall be in
exchange for, and in complete satisfaction, settlement, discharge and release of, all Claims and
Interests (other than Unimpaired Claims that are Allowed) of any nature whatsoever against the
Debtors or any of their Estates, assets, properties or interest in property, and regardless of
whether any property shall have been distributed or retained pursuant to this Plan on account of
such Claims and Interests. On the Effective Date, the Debtors shall be deemed discharged and
released under Section 1141(d)(l)(A) of the Bankruptcy Code from any and all Claims and Interests
(other than Unimpaired Claims that are Allowed), including, but not limited to, demands and
liabilities that arose before the Effective Date, and all debts of the kind specified in Sections
502(g), 502(h) or 502(i) of the Bankruptcy Code, and the NEI Common Interests, the Secured Notes,
and the Subordinated Notes shall be terminated.
As of the Effective Date, except as otherwise expressly provided in the Plan or the
Confirmation Order, all Entities shall be precluded from asserting against the Debtors or the
Reorganized Debtors and their respective assets, property and Estates, any other or further Claims,
or any other obligations, suits, judgments, damages, debts, rights, remedies, causes of action or
liabilities of any nature whatsoever, and all Interests or other rights of a Holder of an equity
security or other ownership interest, relating to any of the Debtors or Reorganized Debtors or any
of their respective assets, property and Estates, based upon any act, omission, transaction or
other activity of any nature that occurred prior to the Effective Date. In accordance with the
foregoing, except as expressly provided in the Plan or the Confirmation Order, the Confirmation
Order shall constitute a judicial determination, as of the Effective Date, of the discharge of all
such Claims or other obligations, suits, judgments, damages, debts, rights, remedies, causes of
action or liabilities, and any Interests or other rights of a Holder of an equity security or other
ownership interest and termination of all rights of any equity security Holder in any of the
Debtors and all Interests, including the NEI Common Interests, pursuant to Sections 524 and 1141 of
the Bankruptcy Code, and such discharge shall void and extinguish any judgment obtained against the
Debtors, the Reorganized Debtors, or any of their respective assets, property and Estates at any
time, to the extent such judgment is related to a discharged Claim, debt or liability or terminated
right of any equity security Holder in any of the Debtors or terminated Interest, including,
without limitation, an NEI Common Interest.
10.3. Preservation of Litigation Claims. Except as otherwise provided in this Plan,
the Confirmation Order, or in any document, instrument, release or other agreement entered into in
connection with this Plan, in accordance with Section 1123(b) of the Bankruptcy Code, the Debtors
and their Estates shall retain the Litigation Claims. The Reorganized Debtors, as the successors
in interest to the Debtors and the Estates, may enforce, sue on, settle or compromise (or decline
to do any of the foregoing) any or all of the Litigation Claims. The Debtors or the Reorganized
Debtors expressly reserve all rights to prosecute any and all Litigation Claims against any Person,
except as otherwise expressly provided in the Plan, and no preclusion doctrine, including the
doctrines of res judicata, issue preclusion, estoppel (judicial, collateral,
41
equitable or otherwise), or laches, shall apply to such Litigation Claims upon, after, or as a
consequence of the entry of the Confirmation Order or the occurrence of the Effective Date.
Notwithstanding the foregoing, the Debtors and the Reorganized Debtors shall not file, commence or
pursue any Claim, right or Cause of Action under Section 547 of the Bankruptcy Code or seek to
disallow any Claim to the extent it may be avoidable thereunder.
10.4. Injunction.
(a) Except as otherwise provided in this Plan or the Confirmation Order, from and after the
Effective Date all Persons who have held, hold or may hold Claims against or Interests in the
Debtors, are (i) permanently enjoined from taking any of the following actions against the
Estate(s), or any of their property, on account of any such Claims or Interests and (ii)
permanently enjoined from taking any of the following actions against any of the Debtors, the
Reorganized Debtors or their property on account of such Claims or Interests: (A) commencing or
continuing, in any manner or in any place, any action, or other proceeding; (B) enforcing,
attaching, collecting or recovering in any manner any judgment, award, decree or order; (C)
creating, perfecting or enforcing any lien or encumbrance; (D) asserting any right of setoff,
subrogation or recoupment of any kind and (E) commencing or continuing, in any manner or in any
place, any action that does not comply with or is inconsistent with the provisions of this Plan;
provided, however, that nothing contained herein shall preclude such persons from
exercising their rights pursuant to and consistent with the terms of this Plan.
(b) By accepting distributions pursuant to this Plan, each Holder of an Allowed Claim shall be
deemed to have specifically consented to the injunctions set forth in this Section 10.4.
10.5. Revesting of Assets. Pursuant to Section 1141(b) of the Bankruptcy Code, all
property of the respective Estate of each Debtor, together with any property of each Debtor that is
not property of its Estate and that is not specifically disposed of pursuant to the Plan, shall
revest in the applicable Reorganized Debtor on the Effective Date (subject to the effects of the
Restructuring Transactions). Thereafter, the Reorganized Debtors may operate their businesses and
may use, acquire and dispose of property free of any restrictions of the Bankruptcy Code and the
Bankruptcy Rules. As of the Effective Date, all property of each Reorganized Debtor shall be free
and clear of all Liens, Claims and Interests, except as specifically provided in the Plan or the
Confirmation Order. Without limiting the generality of the foregoing, each Reorganized Debtor may,
without the need for any application to or approval by the Bankruptcy Court, pay fees that it
incurs after the Effective Date for professional services and expenses.
10.6. Term of Bankruptcy Injunction or Stays. All injunctions or stays provided for
in the Chapter 11 Cases under section 105 or section 362 of the Bankruptcy Code, or otherwise, and
in existence on the Confirmation Date, shall remain in full force and effect until the Effective
Date.
10.7. Termination of Subordination Rights and Settlement of Related Claims. The
classification and manner of satisfying all Claims and Interests and the respective distributions
and treatments hereunder take into account and/or conform to the relative priority and rights of
the Claims and Interests in each Class in connection with the contractual, legal and equitable
42
subordination rights relating thereto, whether arising under contract, general principles of
equitable subordination, Section 510(b) of the Bankruptcy Code or otherwise. All subordination
rights that a Holder of a Claim or Interest may have with respect to any distribution to be made
under the Plan shall be discharged and terminated, and all actions related to the enforcement of
such subordination rights shall be enjoined permanently. Accordingly, distributions under the Plan
to Holders of Allowed Claims shall not be subject to payment to a beneficiary of such terminated
subordination rights, or to levy, garnishment, attachment or other legal process by a beneficiary
of such terminated subordination rights.
ARTICLE XI
RETENTION OF JURISDICTION
Pursuant to Sections 105(c) and 1142 of the Bankruptcy Code and notwithstanding entry of the
Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain
exclusive jurisdiction over all matters arising out of, and related to, the Chapter 11 Cases and
this Plan to the fullest extent permitted by law, including, among other things, jurisdiction to:
(a) 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 Expense Claim or Priority Tax Claim and the resolution of any
objections to the allowance or priority of Claims or Interests;
(b) grant or deny any applications for allowance of compensation or reimbursement of expenses
authorized pursuant to the Bankruptcy Code or this Plan for periods ending on or before the
Effective Date;
(c) resolve any matters related to the assumption or assumption and assignment of any
executory contract or unexpired lease to which any Debtor is a party or with respect to which any
Debtor or the Reorganized Debtor may be liable and to hear, determine, and, if necessary, liquidate
any Claims arising therefrom;
(d) ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the
provisions of this Plan;
(e) decide or resolve any motions, adversary proceedings, contested or litigated matters and
any other matters and grant or deny any applications involving the Debtors that may be pending on
the Effective Date;
(f) enter such orders as may be necessary or appropriate to implement or consummate the
provisions of this Plan and all contracts, instruments, releases and other agreements or documents
created in connection with this Plan, the Disclosure Statement or the Confirmation Order;
(g) resolve any cases, controversies, suits or disputes that may arise in connection with the
consummation, interpretation, or enforcement of this Plan or any contract, instrument, release or
other agreement or document that is executed or created pursuant to this
43
Plan, or any entity’s rights arising from or obligations incurred in connection with this Plan
or such documents;
(h) approve any modification of this Plan before or after the Effective Date pursuant to
Section 1127 of the Bankruptcy Code or approve any modification of the Disclosure Statement, the
Confirmation Order or any contract, instrument, release or other agreement or document created in
connection with this Plan, the Disclosure Statement or the Confirmation Order, or remedy any defect
or omission or reconcile any inconsistency in any Bankruptcy Court order, this Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument, release or other agreement or
document created in connection with this Plan, the Disclosure Statement or the Confirmation Order,
in such manner as may be necessary or appropriate to consummate this Plan;
(i) hear and determine all applications for compensation and reimbursement of expenses of
Professionals under this Plan or under Sections 330, 331, 363, 503(b), 1103 and 1129(c)(9) of the
Bankruptcy Code, which shall be payable by the Debtors only upon allowance thereof pursuant to the
order of the Bankruptcy Court; provided, however, that the fees and expenses of
Professionals retained by the Reorganized Debtors that are incurred after the Effective Date may be
paid by the Reorganized Debtors in the ordinary course of business and shall not be subject to the
approval of the Bankruptcy Court;
(j) 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 this Plan or the Confirmation Order;
(k) hear and determine causes of action by or on behalf of the Debtors or the Reorganized
Debtors;
(l) hear and determine matters concerning state, local and federal taxes in accordance with
Sections 346, 505 and 1146 of the Bankruptcy Code;
(m) 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 if
distributions pursuant to this Plan are enjoined or stayed;
(n) determine any other matters that may arise in connection with or relate to this Plan, the
Disclosure Statement, the Confirmation Order or any contract, instrument, release, or other
agreement, or document created in connection with this Plan, the Disclosure Statement or the
Confirmation Order;
(o) enforce all orders, judgments, injunctions, releases, exculpations, indemnifications and
rulings entered in connection with the Chapter 11 Cases;
(p) hear and determine all matters related to (i) the property of the Estates from and after
the Confirmation Date and (ii) the activities of the Reorganized Debtors;
(q) hear and determine such other matters as may be provided in the Confirmation Order or as
may be authorized under the Bankruptcy Code; and
44
(r) enter an order closing the Chapter 11 Cases.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1. Surrender of Instruments. As a condition to participation in distributions
under this Plan, each Holder of a note, debenture or other evidence of indebtedness of the Debtors
that desires to receive the property to be distributed on account of an Allowed Claim based on such
note, debenture or other evidence of indebtedness shall surrender such note, debenture or other
evidence of indebtedness to the Debtors, or their designee (unless such Allowed Claim will be
Reinstated by this Plan, in which case such surrender shall not be required), and shall execute and
deliver such other documents as are necessary to effectuate this Plan; provided,
however, that if a claimant is a Holder of an equity security, note, debenture or other
evidence of indebtedness for which no physical certificate was issued to the Holder but which
instead is held in book-entry form pursuant to a global security held by DTC or other securities
depositary or custodian thereof, then such Holder shall be deemed to have surrendered such Holder’s
equity security, note, debenture or other evidence of indebtedness upon surrender to the
Reorganized Debtors of such global security by DTC or such other securities depositary or custodian
thereof. Except as otherwise provided in this Section 12.1, if no surrender of a security, note,
debenture or other evidence of indebtedness occurs and a claimant does not provide an affidavit and
indemnification agreement, in form and substance satisfactory to the Debtors, that such security,
note, debenture or other evidence of indebtedness was lost, then no distribution may be made to any
claimant whose Claim or Interest is based on such security, note, debenture or other evidence of
indebtedness thereof. The Debtors shall make subsequent distributions only to the persons who
surrender the securities for exchange (or their assignees) and the record holders of such
securities shall be those holders of record as of the Effective Date. Except as otherwise provided
herein, any indenture and stockholders agreement in effect prior to the Petition Date shall be
rendered void as of the Effective Date.
12.2. Dissolution of the Committee. The Committee shall continue in existence until
the Effective Date. On the Effective Date, the appointment of the Committee shall terminate, and
the Committee shall be dissolved, provided however, that following the Effective
Date, the Committee shall continue to have standing and a right to be heard solely with respect to:
(i) applications for compensation by Professionals and requests for allowance of Administrative
Expense Claims for substantial contribution pursuant to Section 503(b)(3)(D) of the Bankruptcy
Code; (ii) any appeals of the Confirmation Order that remain pending as of the Effective Date; and
(iii) any adversary proceedings or contested matter as of the Effective Date to which the Committee
is a party. All reasonable fees and expenses incurred after the Effective Date by the
Professionals retained by the Committee in connection with the matters set forth in the foregoing
clauses (i) through (iii) shall be paid by the Reorganized Debtors without the requirement of any
further order of the Bankruptcy Court. Notwithstanding anything contained herein to the contrary,
on the Effective Date, the Committee shall be dissolved and the members of the Committee shall be
released and discharged of and from all duties, responsibilities and obligations related to or
arising from or in connection with the Chapter 11 Cases.
45
12.3. Post-Confirmation Date Retention of Professionals. On the Effective Date, any
requirement that professionals employed by the Reorganized Debtors comply with Sections 327 through
331 of the Bankruptcy Code in seeking retention or compensation for services rendered after such
date will terminate, and the Reorganized Debtors will be authorized to employ and compensate
professionals in the ordinary course of business and without the need for Bankruptcy Court
approval.
12.4. Bar Date for Certain Administrative Expense Claims. All applications for final
allowance of compensation or reimbursement of the expenses incurred by any Professional, and all
other requests for the payment of Administrative Expense Claims, including all requests for the
allowance of any Administrative Expense Claim pursuant to Section 503(b)(3)(D) of the Bankruptcy
Code for substantial contributions made in these Chapter 11 Cases (but expressly excluding all
requests for the payment of obligations incurred by the Debtors in the ordinary course of their
business operations after the Petition Date), must be filed with the Bankruptcy Court and served on
the Reorganized Debtors and their counsel at the addresses set forth in Section 12.14 of this Plan
not later than thirty (30) days after the Effective Date, unless otherwise ordered by the
Bankruptcy Court. Any request for the payment of an Administrative Expense Claim that is not
timely filed and served shall be discharged and forever barred and the Holder of such
Administrative Expense Claim shall be enjoined from commencing or continuing any action, process,
or act to collect, offset or recover such Claim. The Debtors and the Reorganized Debtors shall
have sole responsibility for filing objections to and resolving all requests for the allowance of
Administrative Expense Claims.
12.5. Effectuating Documents and Further Transactions. Each of the Debtors and the
Reorganized Debtors is authorized to execute, deliver, file or record such contracts, instruments,
certificates, notes, releases and other agreements or documents and take such actions as may be
necessary or appropriate to effectuate, implement and further evidence the terms and conditions of
this Plan and any notes or securities issued pursuant to this Plan, including actions that the
Secured Notes Indenture Trustee may reasonably request to further effect the terms of this Plan.
12.6. Employee Compensation and Benefit Plans. From and after the Effective Date, the
Reorganized Debtors shall continue to perform their obligations (whether statutory or contractual)
under all employment and severance contracts that are assumed by the Reorganized Debtors and all
Employee Benefit Plans applicable to their employees, retirees and non-employee directors. Any
Reorganized Debtor may, prior to the Effective Date, enter into employment agreements with
employees that become effective on or prior to the Effective Date and survive consummation of this
Plan, with the prior written consent of the Ad Hoc Committee of Secured Noteholders (which consent
shall not be unreasonably withheld).
12.7. Corporate Action. Prior to, on, or after the Effective Date (as appropriate),
all matters expressly provided for under this Plan that would otherwise require approval of the
stockholders or directors of one or more of the Debtors or the Reorganized Debtors shall be deemed
to have occurred and shall be in effect prior to, on, or after the Effective Date (as appropriate)
pursuant to the applicable general corporation law of the states in which the Debtors or the
Reorganized Debtors are incorporated without any requirement of further action by the stockholders
or directors of the Debtors or the Reorganized Debtors.
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12.8. Exemption from Transfer Taxes. Pursuant to Section 1146(a) of the Bankruptcy
Code, (a) the issuance, transfer or exchange of notes or equity securities under this Plan; (b) the
creation of any mortgage, deed of trust, lien, pledge or other security interest; (c) the making or
assignment of any lease or sublease; or (d) the making or delivery of any deed or other instrument
of transfer under this Plan, including, without limitation, merger agreements, agreements of
consolidation, restructuring, disposition, liquidation or dissolution, deeds, bills of sale, and
transfers of tangible property, will not be subject to any stamp tax or other similar tax.
12.9. Payment of Statutory Fees. All fees payable pursuant to Section 1930 of title
28 of the United States Code, as determined by the Bankruptcy Court at the Confirmation Hearing,
shall be paid on the Effective Date.
12.10. Amendment or Modification of this Plan. Subject to Section 1127 of the
Bankruptcy Code, the Debtors, with the consent of the Ad Hoc Committee of Secured Noteholders,
which consent shall not be unreasonably withheld, may, alter, amend or modify this Plan or the
Exhibits at any time prior to or after the Confirmation Date but prior to the substantial
consummation of this Plan; provided, however, that any such amendment or
modification that materially and adversely changes the treatment under this Plan of the
Subordinated Noteholders, Tontine, or any individual employed by Tontine must be acceptable to
Tontine. Any Holder of a Claim or Interest that has accepted this Plan shall be deemed to have
accepted this Plan, as altered, amended or modified, if the proposed alteration, amendment or
modification does not materially and adversely change the treatment of the Claim or Interest of
such Holder.
12.11. Severability of Plan Provisions. If, prior to the Confirmation Date, any term
or provision of this Plan is determined by the Bankruptcy Court to be invalid, void or
unenforceable, the Bankruptcy Court 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 this 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 this Plan, as it may have been altered or interpreted
in accordance with the foregoing, is valid and enforceable pursuant to its terms.
12.12. Successors and Assigns. This Plan shall be binding upon and inure to the
benefit of the Debtors, and their respective successors and assigns, including, without limitation,
the Reorganized Debtors. The rights, benefits and obligations of any entity named or referred to
in this Plan shall be binding on, and shall inure to the benefit of, any heir, executor,
administrator, successor or assign of such entity.
12.13. Revocation, Withdrawal or Non-Consummation. Subject to the obligations and
covenants of the Debtors under the Lock-Up Agreement, the Debtors reserve the right to revoke or
withdraw this Plan as to any or all of the Debtors prior to the Confirmation Date and to file
subsequent plans of reorganization, in each case with the prior written consent of the Ad Hoc
Committee of Secured Noteholders. If the Debtors revoke or withdraw this Plan as to any or all of
the Debtors or if confirmation or consummation of this Plan as to any or all of the Debtors
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does not occur, then, with respect to such Debtors, (a) this Plan shall be null and void in
all respects, (b) any settlement or compromise embodied in this Plan (including the fixing or
limiting to an amount certain any Claim or Interest or Class of Claims or Interests), assumption or
rejection of executory contracts or leases affected by this Plan, and any document or agreement
executed pursuant to this Plan shall be deemed null and void and (c) nothing contained in this Plan
shall (i) constitute a waiver or release of any Claims by or against, or any Interests in, such
Debtors or any other Person, (ii) prejudice in any manner the rights of such Debtors or any other
Person or (iii) constitute an admission of any sort by the Debtors or any other Person.
12.14. Notice. All notices, requests and demands to or upon the Debtors or the
Reorganized Debtors to be effective shall be in writing and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when actually delivered or, in the case of
notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
NEENAH ENTERPRISES, INC.
2121 Brooks Avenue
Neenah, Wisconsin 54957
Telephone: (800) 558-5075
Facsimile: (920) 729-3661
Attn: Robert E. Ostendorf, Jr.
with a copy to:
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, Illinois 60603
Telephone: (312) 853-7000
Facsimile: (312) 853-7036
Attn: Larry J. Nyhan
Attn: Bojan Guzina
-and-
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Attn: Robert S. Brady
Attn: Edmon L. Morton
Counsel to Debtors and Debtors-in-Possession
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12.15. Governing Law. Except to the extent that the Bankruptcy Code, the Bankruptcy
Rules or other federal law is applicable, or to the extent that an Exhibit or schedule to this Plan
provides otherwise, the rights and obligations arising under this Plan shall be governed by, and
construed and enforced in accordance with the laws of the State of Delaware, without giving effect
to the principles of conflicts of law of such jurisdiction.
12.16. Tax Reporting and Compliance. The Reorganized Debtors are hereby authorized,
on behalf of each of the Debtors, to request an expedited determination under Section 505 of the
Bankruptcy Code of the tax liability of the Debtors for all taxable periods ending after the
Petition Date through, and including, the Effective Date.
12.17. Exhibits. All Exhibits to this Plan are incorporated and are a part of this
Plan as if set forth in full herein.
12.18. Filing of Additional Documents. On or before substantial consummation of this
Plan, the Reorganized Debtors and the Debtors shall file such agreements and other documents as may
be necessary or appropriate to effectuate and further evidence the terms and conditions of this
Plan.
12.19. Reservation of Rights. Except as expressly set forth herein, this Plan shall
have no force and effect unless the Bankruptcy Court has entered the Confirmation Order. The
filing of this Plan, any statement or provision contained in this Plan, or the taking of any action
by the Debtors with respect to this Plan shall not be and shall not be deemed to be an admission or
waiver of any rights of the Debtors with respect to the Holders of Claims and Interests.
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Dated: Wilmington, Delaware April 27, 2010 |
Respectfully submitted,
NEENAH ENTERPRISES, INC.
(for itself and on behalf of the other Debtors)
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/s/ Robert E. Ostendorf, Jr.
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Robert E. Ostendorf, Jr. |
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President and Chief Executive Officer |
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SIDLEY AUSTIN LLP
Larry J. Nyhan
Bojan Guzina
Keriann S. Mills
Jillian K. Ludwig
One South Dearborn Street
Chicago, Illinois 60603
Telephone: (312) 853-7000
Facsimile: (312) 853-7036
- and -
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Robert S. Brady (No. 2847)
Edmon L. Morton (No. 3856)
Donald J. Bowman, Jr. (No. 4383)
Kenneth J. Enos (No. 4544)
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Counsel to the Debtors and Debtors-in-Possession
50