UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange of 1934
June 16, 2006
(Date of earliest event reported)
USG CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation)
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1-8864
(Commission File Number)
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36-3329400
(IRS Employer Identification No.) |
125 South Franklin Street, Chicago, Illinois 60606-4678
(Address of principal executive offices, including zip code)
(312) 606-4000
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
ITEM
1.03 Bankruptcy or Receivership
On June 15, 2006, the United States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court) and the United States District Court for the District of Delaware
(the District Court) confirmed the First Amended Joint Plan of Reorganization of USG Corporation
and its Debtor Subsidiaries (the Plan).
In June 2001, USG Corporation (USG or the Company) and ten of its U.S. subsidiaries (the
USG Debtors) filed voluntary petitions for reorganization under Chapter 11 of the U.S. Bankruptcy
Code in the Bankruptcy Court. The petitions were consolidated for purposes of joint administration
as In re: USG Corporation et al. (Case No. 01-2094). The USG Debtors initiated the Chapter 11
proceedings with the goals of resolving asbestos claims in a fair and equitable manner, protecting
the long-term value of the USG Debtors businesses and maintaining the USG Debtors leadership
positions in their markets. Following the Chapter 11 filing, the USG Debtors continued to operate
their businesses without interruption as debtors-in-possession subject to the provisions of the
Bankruptcy Code.
In late January 2006, the USG Debtors, the committee representing asbestos personal injury
claimants and the legal representative for future asbestos personal injury claimants reached an
agreement to resolve the USG Debtors present and future asbestos personal injury liabilities and
to cooperate in the confirmation of a plan of reorganization consistent with that resolution. As
contemplated by the settlement agreement, on February 17, 2006, the USG Debtors filed a proposed
Joint Plan of Reorganization and a Disclosure Statement with the Bankruptcy Court incorporating the
terms of the settlement agreement and addressing the treatment of other claims and interests. The
USG Debtors filed the First Amended Joint Plan and Disclosure Statement with the Bankruptcy Court
on April 5, 2006. The Bankruptcy Court entered an order approving the adequacy of the information
in the Disclosure Statement on April 7, 2006, and the USG Debtors distributed the Plan and
Disclosure Statement, along with ballots, to asbestos personal injury claimants, the only class of
creditors entitled to vote on the Plan. The Bankruptcy Court and the District Court entered an order (the Confirmation
Order) confirming the Plan on June 16, 2006. All conditions precedent to the effectiveness of the Plan were satisfied or waived
and the Plan became effective on June 20, 2006.
A copy of the Plan and a copy of the
Confirmation Order, including the modifications to the Plan set forth therein, are attached as
Exhibits 2.01 and 2.02, respectively, to this Current Report on Form 8-K and are incorporated
herein by reference. A copy of the press release announcing the
effectiveness of
the Plan is furnished herewith as Exhibit 99.01.
The
following is a summary of the material terms of the Plan as it was confirmed
by the Bankruptcy Court and the District Court. This summary highlights only
certain provisions of the Plan and is not a complete description of that document. Therefore, this
summary is qualified in its entirety by reference to the Plan. Capitalized terms used but not
defined herein shall have the meaning set forth in the Plan.
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First Amended Plan of USG Corporation and Its Subsidiary Debtors
Pursuant to the Plan, the Debtors will establish and fund a personal injury trust under
section 524(g) of the Bankruptcy Code to pay all Asbestos Personal Injury Claims, including all
Asbestos Personal Injury Claims asserted against the Debtors on account of or relating to A.P.
Green. All Asbestos Personal Injury Claims will be determined and paid pursuant to the terms of
the Asbestos Personal Injury Trust Agreement and the Asbestos Personal Injury Trust Distribution
Procedures. Pursuant to the Plan and section 524(g) of the Bankruptcy Code, the sole recourse of
the holder of an Asbestos Personal Injury Claim will be to the Asbestos Personal Injury Trust, and
such holder will have no right whatsoever at any time to assert its Asbestos Personal Injury Claim
against any Protected Party, including the Debtors. The amount that the Reorganized Debtors must pay into the
Asbestos Personal Injury Trust depends upon whether the FAIR Act is enacted and made law. The Reorganized
Debtors will fund the Asbestos Personal Injury Trust as follows:
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On the Effective Date, the Reorganized Debtors will pay $890 million and issue a promissory note
(the Note) in the principal amount of $10 million to the Asbestos Personal Injury
Trust. The Note will be payable no later than December 31, 2006. |
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On the Effective Date, the Reorganized Debtors also will issue the contingent payment
note (the Contingent Payment Note) in the amount of $3.05 billion to the
Asbestos Personal Injury Trust, which note will be payable in the event that the
FAIR Act has not been enacted and made law on or before the Trigger Date. |
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If the FAIR Act is enacted and made law on or before the Trigger Date, and is not
subject to a constitutional challenge to its validity (a Challenge Proceeding) on or
before 60 days after the Trigger Date, the Reorganized Debtors obligations under the Contingent
Payment Note will not vest and the Contingent Payment Note will be fully canceled. |
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If the FAIR Act is enacted and made law in this time period but is subject to a
Challenge Proceeding as of 60 days after the Trigger Date, the Reorganized Debtors obligations
under the Contingent Payment Note will depend upon whether the Challenge Proceeding is
upheld. |
To achieve the results contemplated in the Plan, the Reorganized Debtors will require a significant amount
of cash to fund the obligations under the Plan if the FAIR Act is not enacted by Congress
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and made law by the Trigger Date, or is enacted and made law but is subject to a
constitutional challenge as of 60 days after the Trigger Date and the FAIR Act is held to be
unconstitutional on the basis set forth in the agreement between the Debtors and the Asbestos
Personal Injury Committee and the Asbestos Personal Injury Futures Representative to resolve all
Asbestos Personal Injury Claims against the Debtors. Financing for the Plan is expected to be
provided from the Reorganized Debtors cash on hand, a $1.8 billion rights offering to existing stockholders
backstopped by Berkshire Hathaway Inc. (the New Investor), tax refunds and new long term debt.
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Cash. The financial and operational performance of the Debtors businesses
during the Reorganization Cases has enabled the Debtors to accumulate almost $1.6
billion in cash and marketable securities. Most of this cash will be used in funding
the Plan. |
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Rights Offering to USG Stockholders. The Reorganized Debtors expect to raise gross
proceeds of $1.8 billion in new equity funding through the Rights Offering. For each
share of common stock outstanding on the record date of the Rights Offering, the
stockholder as of that date will receive a right to purchase one new USG common share
at a price of $40.00. If all stockholders exercise their rights, the percentage
ownership of each stockholder in USG will remain unchanged following the Rights
Offering. The Rights Offering will be supported by a backstop equity agreement from
the New Investor, USGs largest shareholder with approximately
15 percent of USGs shares and the Chairman of the Equity Committee. Pursuant to the terms of the backstop
agreement, the New Investor committed to exercise all rights distributed to it in the
Rights Offering and purchase from USG, at the same purchase price, all of the shares of
common stock offered pursuant to the Rights Offering that are not issued pursuant to
the exercise of rights by other stockholders, up to a total of $1.8 billion. |
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New debt financing. If the payments under the Contingent Payment Note
become necessary, the USG Debtors expect to raise approximately $2.8 billion of
additional liquidity in the second half of 2006 pursuant to exit financing facilities.
The Debtors have entered into a commitment letter, dated May 12, 2006, with JPMorgan
Chase Bank, N.A., J.P. Morgan Securities Inc. and Goldman Sachs Credit Partners L.P.
that provides for total financings of $2.8 billion consisting of a term loan of $1
billion, a bridge loan of $1.15 billion (pending receipt of tax refunds of
approximately the same amount) and a revolver of $650 million. |
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Tax refunds. The Reorganized Debtors transfers of cash to the Asbestos Personal Injury
Trust, including payments of principal and interest on the Note and the Contingent
Payment Note, are expected to produce tax deductions that will offset the Reorganized Debtors
taxable income in the years in which the transfers are made and generate net operating
losses in those years that may be carried back to the 10 previous taxable years. Based
on the amount of taxes that the Debtors paid during the carryback period, the Reorganized Debtors
expect to obtain refunds of a total of approximately $1.1 billion assuming that the
Reorganized Debtors transfer a total of $3.95 billion to the Asbestos Personal Injury Trust. |
The classification of Claims and Interests, the estimated aggregate amount of Claims in each
Class and the amount and nature of distributions to holders of Claims or Interests in each Class
are summarized in the table below. In accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims have not been classified. Pursuant to section
1129(a)(4) of the Bankruptcy Code, Section III.A.1 of the Plan provides for the payment of Allowed
Administrative Claims in cash and makes all such payments subject to Bankruptcy Court approval and
the standards of the Bankruptcy Code. Except as specified in Section III.A.1 of the Plan, and
subject to the bar date provisions in the Plan, unless otherwise agreed by the holder of an
Administrative Claim and the applicable Debtor or Reorganized Debtor, each holder of an Allowed
Administrative Claim shall receive, in full satisfaction of its Administrative Claim, cash equal to
the allowed amount of such Administrative Claim either (a) as soon as practicable after the
Effective Date or (b) if the Administrative Claim is not allowed as of the Effective Date, 30 days
after the date on which an order allowing such Administrative Claim becomes a Final Order or a
Stipulation of Amount and Nature of Claim is executed by the applicable Reorganized Debtor and the
holder of the Administrative Claim. Further, pursuant to section 1129(a)(9)(C) of the Bankruptcy
Code, unless otherwise agreed by the holder of a Priority Tax Claim and the applicable Debtor or
Reorganized Debtor, each holder of an Allowed Priority Tax Claim shall receive, in full
satisfaction of its Priority Tax Claim, payment in full of the allowed amount of the Priority Tax
Claim plus Postpetition Interest on the
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later of the Effective Date or 90 days after the date when such Claim becomes an Allowed
Claim.
Asbestos personal injury Demands are not classified, as they are not Claims for purposes of
the Bankruptcy Code. The aggregate consideration payable to Class 7 Asbestos Personal Injury
Claims, however, will be shared in the Asbestos Personal Injury Trust among Asbestos Personal
Injury Claims and asbestos personal injury Demands pursuant to the terms of the Asbestos Personal
Injury Trust Distribution Procedures.
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Summary of the Classification and Treatment under the Plan
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ESTIMATED |
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AGGREGATE |
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ESTIMATED |
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AMOUNT OF |
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PERCENTAGE |
CLASS |
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TREATMENT |
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CLAIMS |
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RECOVERY |
Class 1
Priority Claims
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On the Effective
Date, each holder
of an Allowed Claim
in Class 1 shall
receive cash in an
amount equal to the
Allowed Claim plus
Postpetition
Interest on such
Allowed Claim.
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$ |
14,000 |
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% |
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Class 2
Secured Claims
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On the Effective
Date, unless
otherwise agreed by
the holder of a
Claim and the
applicable Debtor
or Reorganized
Debtor, each holder
of a Claim in Class
2 shall receive
treatment in
accordance with
Option A or B
below, at the
option of the
applicable Debtor
or Reorganized
Debtor. Any
Allowed Deficiency
Claim of a holder
of an Allowed
Secured Claim shall
be entitled to
treatment as an
Allowed Class 6
Claim.
Option A: Claims
in Class 2 that are
Allowed Claims and
with respect to
which the
applicable Debtor
or Reorganized
Debtor elects
Option A shall be
paid in full in
cash plus
Postpetition
Interest on such
Allowed Claim by
such Reorganized
Debtor, unless the
holder of such
Claim agrees to
less favorable
treatment.
Option B: Claims
in Class 2 that are
Timely Claims and
with respect to
which the
applicable Debtor
or Reorganized
Debtor elects
Option B shall be
Reinstated.
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$ |
2,200 |
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% |
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Class 3
Credit Facilities
Claims
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Credit Facilities
Claims shall be
allowed in the
aggregate amount
(including accrued
interest through
the Petition Date)
of $471,009,479 as
of the Petition
Date. On the
Effective Date,
each holder of an
Allowed Credit
Facilities Claim
shall receive cash
in an amount equal
to a Pro Rata share
of (a) $471,009,479
and (b)
Postpetition
Interest on such
Allowed Claim. In
addition, the
Debtors or
Reorganized
Debtors, as
applicable, shall
pay any fees and
charges arising
under the
applicable Credit
Facilities through
the Effective Date.
Any letter of
credit under the
Credit Facilities
outstanding as of
the Effective Date
shall be
cash-collateralized,
refinanced,
canceled or
replaced in the
ordinary course on
or after the
Effective Date.
The Debtors shall
be authorized to
take any action
necessary or
appropriate to
cash-collateralize,
refinance, cancel
or replace any
letter of credit
under the Credit
Facilities.
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$ |
471,009,479 |
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% |
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Class 4
Senior Note Claims
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Senior Note Claims
shall be allowed in
the aggregate
amount (including
accrued interest
through the
Petition Date) of
$289,250,578 as of
the Petition Date.
On the Effective
Date, each holder
of an Allowed
Senior Note Claim
shall receive cash
in an amount equal
to a Pro Rata share
of (a) $289,250,578
and (b)
Postpetition
Interest on such
Allowed Claim. In
addition, on the
Effective Date and
in lieu of any
claim for
substantial
contribution by or
on behalf of any
Senior Note
Indenture Trustee,
the Debtors or
Reorganized
Debtors, as
applicable, shall
pay to any Senior
Note Indenture |
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289,250,578 |
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ESTIMATED |
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AGGREGATE |
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ESTIMATED |
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AMOUNT OF |
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PERCENTAGE |
CLASS |
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TREATMENT |
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CLAIMS |
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RECOVERY |
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Trustee cash in an
amount equal to the
reasonable and
documented fees and
expenses (including
reasonable legal
fees) of such
Senior Note
Indenture Trustee
to the extent
payable under the
applicable Senior
Note Indenture.
Until the Senior
Note Indenture
Trustees fees and
expenses are paid
in full, nothing in
the Plan shall in
any way impair,
waive or discharge
any charging lien
provided by the
applicable Senior
Note Indenture.
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Class 5
Industrial Revenue
Bond Claims
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Industrial Revenue
Bond Claims shall
be allowed as of
the Petition Date
in such amounts as
set forth on
Exhibit I.A.80 to
the Plan. On the
Effective Date,
unless otherwise
agreed by the
applicable
Industrial Revenue
Bond Indenture
Trustee and the
applicable Debtor
or Reorganized
Debtor, each holder
of a Claim in Class
5 shall receive
treatment in
accordance with
Option A or B below
as indicated and
more fully
described on
Exhibit I.A.80 to
the Plan. |
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See Exhibit I.A.80
to the Plan
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% |
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Option A: Claims
in Class 5 that are
Allowed Claims and
with respect to
which the
applicable Debtor
or Reorganized
Debtor elects
Option A shall be
paid in full in
cash (including any
applicable
prepayment premium)
plus Postpetition
Interest on such
Allowed Claim by
such Reorganized
Debtor, unless the
holder of such
Claim agrees to
less favorable
treatment.
Option B: Claims
in Class 5 with
respect to which
the applicable
Debtor or
Reorganized Debtor
elects Option B
shall be Reinstated
in accordance with
the terms of the
relevant Industrial
Revenue Bond
Indenture.
In addition, on the
Effective Date and
in lieu of any
claim for
substantial
contribution by or
on behalf of the
Industrial Revenue
Bond Indenture
Trustees, the
Debtors or
Reorganized
Debtors, as
applicable, shall
pay to any
Industrial Revenue
Bond Indenture
Trustee cash in an
amount equal to the
reasonable and
documented fees and
expenses (including
reasonable legal
fees) of such
Industrial Revenue
Bond Indenture
Trustees to the
extent payable
under the
applicable
Industrial Revenue
Bond Indenture.
Until each
Industrial Revenue
Bond Indenture
Trustees fees and
expenses are paid
in full, nothing in
the Plan shall in
any way impair,
waive or discharge
any charging lien
provided by the
applicable
Industrial Revenue
Bond Indenture and
its related
agreements.
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Class 6
General Unsecured
Claims
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On the Effective
Date, Claims in
Class 6 (other than
Litigation Claims)
that are Allowed
Claims shall be
paid in full in
cash plus
Postpetition
Interest on such
Allowed Claim,
unless the holder
of such Claim
agrees to less
favorable
treatment. To the
extent any holder
of a Class 6 Claim
(other than
Litigation Claims)
believes that it is
entitled to
Postpetition
Interest at an
interest rate other
than the rate
described in
Section I.A.99.f.i
of the Plan, |
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$ |
115,000,000 |
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% |
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ESTIMATED |
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AGGREGATE |
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ESTIMATED |
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AMOUNT OF |
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PERCENTAGE |
CLASS |
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TREATMENT |
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CLAIMS |
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RECOVERY |
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the
holder of such
Claim must timely
File a Postpetition
Interest Rate
Determination
Notice no later
than June 26, 2006.
Failure to File a
timely Postpetition
Interest Rate
Determination
Notice will be
deemed an agreement
to accept
Postpetition
Interest as
described in
Section I.A.99.f.i
of the Plan.
Section IV.P of the
Plan provides the
procedure for
Filing Postpetition
Interest Rate
Determination
Notices and
resolving disputes
relating to any
Postpetition
Interest Rate
Determination
Notice. On the
Effective Date, any
unliquidated or
disputed Litigation
Claims that are
Timely Claims shall
be Reinstated in
accordance with
Section VII.A.3 of
the Plan.
Litigation Claims
that have been
liquidated by
agreement of the
parties prior to
the Effective Date
shall be paid in
cash on the
Effective Date as
provided in the
parties agreement.
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Class 7
Asbestos Personal
Injury Claims
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On the Effective
Date, all Asbestos
Personal Injury
Claims, including
Asbestos Personal
Injury Indirect
Claims and any
Asbestos Personal
Injury Claim
asserted against
the Debtors on
account of or
relating to A.P.
Green, shall be
channeled to the
Asbestos Personal
Injury Trust, which
shall be funded
pursuant to Section
IV.G of the Plan.
All Asbestos
Personal Injury
Claims shall be
determined and paid
pursuant to the
terms of the
Asbestos Personal
Injury Trust
Agreement and the
Asbestos Personal
Injury Trust
Distribution
Procedures, subject
to the right of any
Asbestos Personal
Injury Insurance
Entity to assert
any PI Insurer
Coverage Defense in
response to a
demand that such
insurer handle,
defend or pay any
such Claim.
Pursuant to section
524(g) of the
Bankruptcy Code,
the Plan and the
Confirmation Order
shall permanently
and forever stay,
restrain and enjoin
any Entity from
taking any actions
against any
Protected Party for
the purpose of,
directly or
indirectly,
collecting,
recovering or
receiving payment
of, on or with
respect to any
Asbestos Personal
Injury Claim, all
of which shall be
channeled to the
Asbestos Personal
Injury Trust for
resolution as set
forth in the
Asbestos Personal
Injury Trust
Agreement and the
related Asbestos
Personal Injury
Trust Distribution
Procedures.
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N/A |
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As determined by
the Asbestos
Personal Injury
Trust Distribution
Procedures. See
Exhibit I.A.19 to
the Plan.
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Without limiting
the foregoing, on
the Effective Date,
except as set forth
above, all Entities
shall be
permanently and
forever stayed,
restrained and
enjoined from
taking any actions
against the
Protected Parties
for the purpose of,
directly or
indirectly,
collecting,
recovering or
receiving payment
of, on, or with
respect to any
Asbestos Personal
Injury Claim.
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ESTIMATED |
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AGGREGATE |
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ESTIMATED |
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AMOUNT OF |
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PERCENTAGE |
CLASS |
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TREATMENT |
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CLAIMS |
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RECOVERY |
Class 8
Asbestos Property
Damage Claims
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On the Effective
Date, any
unliquidated or
disputed Asbestos
Property Damage
Claims that are
Timely Claims shall
be Reinstated in
accordance with
Section VII.A.3 of
the Plan. Asbestos
Property Damage
Claims that have
been liquidated by
agreement of the
parties prior to
the Effective Date
shall be paid in
cash on the
Effective Date as
provided in the
parties agreement.
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N/A
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% |
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Class 9
Environmental Claims
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On the Effective
Date, Environmental
Claims shall be
Reinstated.
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N/A
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100 |
% |
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Class 10
Intercompany Claims
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On the Effective
Date, Intercompany
Claims shall be
Reinstated.
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N/A
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% |
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Class 11
Stock Interests of
Subsidiary Debtors
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On the Effective
Date, Stock
Interests of
Subsidiary Debtors
shall be
Reinstated.
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N/A
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N/A |
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Class 12
Stock Interests of
USG
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On the Effective
Date, Stock
Interests of USG
shall be
Reinstated, and the
holders of Stock
Interests of USG
shall retain such
Interests.
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N/A
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N/A |
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Conditions Precedent to the Effectiveness of the First Amended Plan of USG Corporation and Its
Subsidiary Debtors
The Effective Date shall not occur and the Plan shall not be consummated unless and until each
of the following conditions have been satisfied or duly waived:
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The Bankruptcy Court or the District Court shall have entered an order in form and
substance satisfactory to the Debtors and reasonably satisfactory to the Asbestos
Personal Injury Committee and the Asbestos Personal Injury Futures Representative
approving and authorizing the Debtors and the Reorganized Debtors to take all actions
necessary or appropriate to implement the Plan, including completion of the
Restructuring Transactions and other transactions contemplated by the Plan and the
implementation and consummation of contracts, instruments, releases and other
agreements or documents created in connection with the Plan. |
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The Confirmation Order has been entered by the Bankruptcy Court and the District
Court and shall have become a Final Order. |
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The Confirmation Order and the Asbestos Permanent Channeling Injunction shall be in
full force and effect. |
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The Asbestos Personal Injury Trustees shall have been selected and shall have
executed and delivered the Asbestos Personal Injury Trust Agreement. |
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Each of the Exhibits, the Rights Offering Documents and any debt documents, shall be
fully executed and delivered to the Debtors, shall be in form and substance acceptable
to the Debtors and reasonably satisfactory to the Asbestos Personal Injury Committee
and the Asbestos Personal Injury Futures Representative and shall be fully enforceable
in accordance with their terms. |
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The Registration Statement shall have become effective and no stop order suspending
the effectiveness thereof shall have been issued or proceedings therefor been initiated
or threatened in writing by the SEC and shall be in full force and effect. |
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The Effective Date shall have occurred on or before August 1, 2006. |
Waiver of Conditions to Confirmation or the Effective Date
The conditions to Confirmation set forth in Section VIII.A of the Plan and the conditions to
the Effective Date set forth in Section VIII.B of the Plan may be waived in whole or part in
writing by the Debtors at any time without an order of the Bankruptcy Court or the District Court;
provided, however, (a) the conditions contained in Sections VIII.A.1, VIII.A.3, VIII.A.5, VIII.B.1,
VIII.B.5 and VIII.B.7 of the Plan may only be waived with the consent of the Asbestos Personal
Injury Committee and Asbestos Personal Injury Futures Representative, which shall not be
unreasonably withheld; and (b) the conditions contained in Section VIII.A.2 of the Plan may only be
waived with the consent of the New Investor.
Executory Contracts and Unexpired Leases To Be Assumed
Assumption Generally
Except as otherwise provided in the Plan or in any contract, instrument, release or other
agreement or document entered into in connection with the Plan, on the Effective Date, pursuant to
section 365 of the Bankruptcy Code, the applicable Debtor or Reorganized Debtor shall assume each
of its respective Executory Contracts and Unexpired Leases other than those listed on Exhibit V.C
to the Plan; provided, however, that the Debtors reserve the right, at any time prior to the
Effective Date, to amend Exhibit V.C to the Plan to: (a) delete any Executory
- 11 -
Contract
or Unexpired Lease listed therein, thus providing for its assumption
pursuant to Section V.A.1 of the Plan;
or (b) add any Executory Contract or Unexpired Lease to Exhibit V.C to the Plan, thus providing for
its rejection pursuant to Section V.A.1 of the Plan. The Debtors shall provide notice of any
amendments to Exhibit V.C to the Plan to the parties to the Executory Contracts or Unexpired Leases
affected thereby and to the parties on the then-applicable service list in the Reorganization
Cases. Nothing in Section V.A.1 of the Plan shall constitute an admission by a Debtor or
Reorganized Debtor that any contract or lease is an Executory Contract or Unexpired Lease or that a
Debtor or Reorganized Debtor has any liability thereunder.
Assumptions of Executory Contracts and Unexpired Leases
Each Executory Contract or Unexpired Lease assumed under Section V.A.1 of the Plan shall
include any modifications, amendments, supplements or restatements to such contract or lease.
Assignments Related to the Restructuring Transactions
As of the effective time of an applicable Restructuring Transaction, any Executory Contract or
Unexpired Lease to be held by any Debtor or another surviving, resulting or acquiring corporation
in an applicable Restructuring Transaction, shall be deemed assigned to the applicable Entity,
pursuant to section 365 of the Bankruptcy Code.
Approval of Assumptions and Assumption Procedures
The Confirmation Order shall constitute an order of the Bankruptcy Court or the District Court approving the
assumptions described in Section V.A.1 of the Plan, pursuant to section 365 of the Bankruptcy Code,
as of the Effective Date. Section V.A.4 of the Plan provides the appropriate procedures for
assumption of an Executory Contract or Unexpired Lease.
- 12 -
Payments Relating to the Assumption of Executory Contracts and Unexpired Leases
To the extent that such Claims constitute monetary defaults, the Cure Amount Claims associated
with each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be
satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, at the option of the Debtor or
Reorganized Debtor assuming such contract or lease or the assignee of such Debtor or Reorganized
Debtor, if any: (i) by payment of the Cure Amount Claim in cash on the Effective Date; or (ii) on
such other terms as are agreed to by the parties to such Executory Contract or Unexpired Lease.
Pursuant to section 365(b)(2)(D) of the Bankruptcy Code, no Cure Amount Claim shall be allowed for
a penalty rate or other form of default rate of interest. If there is a dispute regarding: (i)
the amount of any Cure Amount Claim; (ii) the ability of the applicable Reorganized Debtor 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 (iii) any other matter
pertaining to assumption of such contract or lease, the payment of any Cure Amount Claim required
by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order
resolving the dispute and approving the assumption. For assumptions of Executory Contracts or
Unexpired Leases between Debtors, the Reorganized Debtor assuming such contract may cure any
monetary default (i) by treating such amount as either a direct or indirect contribution to capital
or Distribution (as appropriate) or (ii) through an intercompany account balance in lieu of payment
in cash.
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, including the releases set forth in Section
IV.H.3 of the Plan, shall 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
- 13 -
to any Claim, Asbestos Personal Injury Claim or Interest or any Distribution to be made
pursuant to the Plan on account of any Allowed Claim, Asbestos Personal Injury Claim or Interest.
The entry of the Confirmation Order shall constitute the Bankruptcy Courts or the District Courts
approval, as of the Effective Date, of the compromise or settlement of all such claims or
controversies and the Bankruptcy Courts or the District Courts finding that such compromise or
settlement is in the best interests of the Debtors, the Reorganized Debtors and their respective
property and Claim and Interest holders and is fair, equitable and reasonable.
Releases
General Releases of Debtors and Reorganized Debtors
Except as otherwise expressly set forth in the Plan, on and after the Effective Date, the
Debtors are released from all Liabilities from the beginning of time.
Release by the Debtors and Reorganized Debtors
Without limiting any applicable provisions of or releases contained in the Plan, as of the
Effective Date, the Debtors and the Reorganized Debtors, on behalf of themselves and their
affiliates, the Estates and their respective successors, assigns and any and all Entities who may
purport to claim by, through, for or because of them, shall be deemed to forever release, waive and
discharge all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of
action and liabilities, whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising in law,
equity or otherwise, that are based in whole or in part on any act, omission, transaction or other
occurrence taking place on or prior to the Effective Date in any way relating to any Debtor, the
Reorganization Cases or the Plan that such Entity has, had or may have against each of the present
or, to the extent they served during the Reorganization Cases, former directors or officers of the
Debtors acting in such capacity.
- 14 -
Without limiting any applicable provisions of or releases contained in the Plan, as of the
Effective Date, the Debtors and the Reorganized Debtors, on behalf of themselves and their
affiliates, the Estates and their respective successors, assigns and any and all Entities who may
purport to claim by, through, for or because of them, shall be deemed to forever release, waive and
discharge the New Investor and its affiliates, and their respective officers, directors, employees,
subsidiaries, members, managers, agents, attorneys, representatives and advisors from all claims,
obligations, suits, judgments, damages, demands, debts, rights, causes of action and liabilities,
whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising in law, equity or otherwise, that are
based in whole or in part on any act, omission, transaction or other occurrence taking place on or
prior to the Effective Date, arising from, or related to such parties participation in the Equity
Committee, the Reorganization Cases, the Plan, the Rights Offering or the New Investor Documents,
other than such parties contractual liability to the Debtors pursuant to the New Investor
Documents and any exhibit or attachment thereto.
General Releases by Holders of Claims or Interests
To the maximum extent permitted by law, without limiting any other applicable provisions of,
or releases contained in, the Plan or the Bankruptcy Code, as of the Effective Date, in
consideration for, among other things, the obligations of the Debtors and the Reorganized Debtors
under the Plan, the Note, the Contingent Payment Note, the New Investor Documents, cash and other
contracts, instruments, releases, agreements or documents to be entered into or delivered in
connection with the Plan, each holder of a Claim or Interest that votes in favor of the Plan shall
be deemed to forever release, waive and discharge all Liabilities in any way relating to any
Debtor, the Reorganization Cases or the Plan that such Entity has, had or may have against any
Debtor, any Reorganized Debtor, the New Investor and each of their respective present or
- 15 -
former directors, officers, employees, subsidiaries, predecessors, successors, members,
attorneys, accountants, underwriters, investment bankers, financial advisors, appraisers,
representatives and agents, acting in such capacity (which release shall be in addition to the
discharge of Claims provided in the Plan and under the Confirmation Order and the Bankruptcy Code).
Injunction Related to Releases
As further provided in Section IX.B of the Plan, the Confirmation Order shall permanently
enjoin the commencement or prosecution by any Entity, whether directly, derivatively or otherwise,
of any Liabilities released pursuant to the Plan.
Discharge of Claims
Except as provided in the Plan or in the Confirmation Order, the rights afforded under the
Plan and the treatment of Claims and Interests under the Plan shall be in exchange for and in
complete satisfaction, discharge and release of all Claims, including any Asbestos Personal Injury
Claims (other than Demands) and including any interest accrued on Claims from the Petition Date.
Except as provided in the Plan or in the Confirmation Order, Confirmation shall, as of the
Effective Date discharge the Debtors from all Claims or other Liabilities that arose on or before
the Effective Date and all debts of the kind specified in section 502(g), 502(h) or 502(i) of the
Bankruptcy Code, whether or not (a) a proof of Claim based on such debt is Filed or deemed Filed
pursuant to section 501 of the Bankruptcy Code, (b) a Claim based on such debt is allowed pursuant
to section 502 of the Bankruptcy Code or (c) the holder of a Claim based on such debt has accepted
the Plan.
In accordance with the foregoing, except as provided in the Plan or the Confirmation Order,
the Confirmation Order shall be a judicial determination, as of the Effective Date, of a discharge
of all Claims, including any Asbestos Personal Injury Claims (other than Demands) and other debts
and Liabilities against the Debtors, pursuant to sections 524 and 1141 of the
- 16 -
Bankruptcy Code, and such discharge shall void any judgment obtained against a Debtor at any
time, to the extent that such judgment relates to a discharged Claim.
Injunctions
General Injunctions
Except as provided in the Plan or the Confirmation Order, as of the Effective Date, all
Entities that have held, currently hold or may hold a Claim or other debt or liability that is
discharged pursuant to the terms of the Plan shall be permanently enjoined from taking any of the
following actions on account of any such discharged Claims, debts or liabilities: (i) commencing
or continuing in any manner any action or other proceeding against the Debtors, the Reorganized
Debtors or their respective property, other than to enforce any right pursuant to the Plan to a
Distribution; (ii) enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order against the Debtors, the Reorganized Debtors or their respective property,
other than as permitted pursuant to (i) above; (iii) creating, perfecting or enforcing any lien or
encumbrance against the Debtors, the Reorganized Debtors or their respective property; (iv)
asserting a setoff, right of subrogation or recoupment of any kind against any debt, liability or
obligation due to the Debtors or the Reorganized Debtors; and (v) commencing or continuing any
action, in any manner, in any place that does not comply with or is inconsistent with the
provisions of the Plan.
As of the Effective Date, all Entities that have held, currently hold or may hold any Claims,
obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities
that are released pursuant to the Plan shall be permanently enjoined from taking any of the
following actions against any released Entity or its property on account of such released claims,
obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities:
(i) commencing or continuing in any manner any action or other proceeding;
- 17 -
(ii) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree
or order; (iii) creating, perfecting or enforcing any lien or encumbrance; (iv) asserting a setoff,
right of subrogation or recoupment of any kind against any debt, liability or obligation due to any
released Entity; and (v) commencing or continuing any action, in any manner, in any place that does
not comply with or is inconsistent with the provisions of the Plan.
By accepting Distributions pursuant to the Plan, each holder of an Allowed Claim receiving
Distributions pursuant to the Plan shall be deemed to have specifically consented to the
injunctions set forth in Section IX.B of the Plan.
Asbestos Permanent Channeling Injunction
Pursuant to section 524(g) of the Bankruptcy Code, the Plan and the Confirmation Order shall
permanently and forever stay, restrain and enjoin any Entity from taking any actions against any
Protected Party for the purpose of, directly or indirectly, collecting, recovering or receiving
payment of, on or with respect to any Asbestos Personal Injury Claim, all of which shall be
channeled to the Asbestos Personal Injury Trust for resolution as set forth in the Asbestos
Personal Injury Trust Agreement and the related Asbestos Personal Injury Trust Distribution
Procedures, including:
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commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including a judicial, arbitral, administrative or
other proceeding) in any forum against any Protected Party or any property or interests
in property of any Protected Party; |
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enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Protected Party or any property or
interests in property of any Protected Party; |
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creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Protected Party or any property or interests in property of
any Protected Party; |
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setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against |
- 18 -
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any liability owed to any Protected Party or any property or interests in property
of any Protected Party; and |
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proceeding in any manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust, except in conformity and
compliance therewith. |
The Asbestos Personal Injury Trust shall protect, defend, indemnify and hold harmless, to the
fullest extent permitted by applicable law, each Protected Party from and against any Asbestos
Personal Injury Claim and any related damages.
Asbestos Personal Injury Insurance Asset Entity Injunction
Purpose and Provisions
In order to protect the Asbestos Personal Injury Trust and to preserve its assets, pursuant to
the equitable jurisdiction and power of the Bankruptcy Court under section 105(a) of the Bankruptcy
Code, the Bankruptcy Court shall issue the Asbestos Personal Injury Insurance Entity Injunction as
described in Section IX.B.3.b of the Plan; provided, however, that, except as otherwise provided in
the Confirmation Order, (a) the Asbestos Personal Injury Trust shall have the sole and exclusive
authority at any time to terminate, or reduce or limit the scope of, the Asbestos Personal Injury
Insurance Entity Injunction with respect to any Asbestos Personal Injury Insurance Asset upon
express written notice to such Asbestos Personal Injury Insurance Asset Entity; and (b) the
Asbestos Personal Injury Insurance Asset Entity Injunction is not issued for the benefit of any
Asbestos Personal Injury Insurance Asset Entity, and no Asbestos Personal Injury Insurance Asset
Entity is a third-party beneficiary of the Asbestos Personal Injury Insurance Entity Injunction.
Terms
Subject to the provisions of Section IX.B.3.a of the Plan, all Entities (not including the
Asbestos Personal Injury Trust or the Reorganized Debtors) that have held or asserted, that hold or
assert or that may in the future hold or assert any Claim, Demand or cause of action (including
- 19 -
any Asbestos Personal Injury Claim assumed by the Asbestos Personal Injury Trust) against any
Asbestos Personal Injury Insurance Asset Entity based upon, relating to, arising out of or in any
way connected with any Asbestos Personal Injury Claim or Asbestos Personal Injury Insurance Asset
whenever and wherever arisen or asserted (including all Claims in the nature of or sounding in
tort, or under contract, warranty or any other theory of law, equity or admiralty) shall be stayed,
restrained and enjoined from taking any action for the purpose of directly or indirectly
collecting, recovering or receiving payments, satisfaction or recovery with respect to any such
Claim, Demand or cause of action, including:
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commencing, conducting or continuing, in any manner, directly or indirectly, any
suit, action or other proceeding of any kind (including a judicial, arbitration,
administrative or other proceeding) in any forum with respect to any such Claim,
Demand, or cause of action against any Asbestos Personal Injury Insurance Asset Entity,
or against the property of any Asbestos Personal Injury Insurance Asset Entity, with
respect to any such Claim, Demand or cause of action; |
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enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Asbestos Personal Injury Insurance
Asset Entity, or against the property of any Asbestos Personal Injury Insurance Asset
Entity, with respect to any such Claim, Demand or cause of action; |
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creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Asbestos Personal Injury Insurance Asset Entity, or the
property of any Asbestos Personal Injury Insurance Asset Entity, with respect to any
such Claim, Demand or cause of action; and |
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setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any
obligation of any Asbestos Personal Injury Insurance Asset Entity, or against the
property of any Asbestos Personal Injury Insurance Asset Entity, with respect to any
such Claim, Demand and or cause of action. |
Reservations
Notwithstanding anything to the contrary above, the Asbestos Personal Injury Insurance Entity
Injunction shall not enjoin:
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the rights of Entities to the treatment accorded them under Articles II and III of
the Plan, as applicable, including the rights of Entities with Asbestos Personal |
- 20 -
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Injury Claims to assert such Asbestos Personal Injury Claims against the Asbestos
Personal Injury Trust, in accordance with the Asbestos Personal Injury Trust
Distribution Procedures and the terms of the Plan; |
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the rights of Entities to assert any Claim, debt, obligation or liability for
payment of Asbestos Personal Injury Trust-related expenses against the Asbestos
Personal Injury Trust; |
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the rights of the Asbestos Personal Injury Trust and the Reorganized Debtors, as
applicable, to prosecute any action based on or arising from Asbestos Personal Injury
Insurance Asset; |
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the rights of the Asbestos Personal Injury Trust to assert any claim, debt,
obligation or liability for payment against an Asbestos Personal Injury Insurance Asset
Entity based on or arising from the Asbestos Personal Injury Insurance Asset; and |
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the rights of Entities to assert any claim, debt, right, obligation or liability
that (a) arises or relates to any insurance policy or any portion of any insurance
policy that is not an Asbestos Personal Injury Insurance Asset and (b) is not subject
to the Asbestos Permanent Channeling Injunction. |
Limitation of Liability
To the maximum extent permitted by law, the Debtors, the Reorganized Debtors, the Credit
Facilities Agent, the Creditors Committee, the Asbestos Personal Injury Futures Representative,
the Asbestos Personal Injury Committee, the Asbestos Property Damage Committee, the Equity
Committee, the DIP Lender, the Indenture Trustees, the New Investor and their respective directors,
officers, employees, affiliates, subsidiaries, predecessors, successors, members, attorneys,
accountants, underwriters, investment bankers, financial advisors, appraisers, representatives and
agents, acting in such capacity, shall neither have nor incur any liability to any Entity for any
act taken or omitted to be taken in connection with, related to or arising out of the
Reorganization Cases or the consideration, formulation, preparation, dissemination, implementation,
Confirmation or consummation of the Plan, the Disclosure Statement or any transaction proposed in
connection with the Reorganization Cases or any contract, instrument, release or other agreement or
document created or entered into, or any other act taken or omitted to be taken, in connection
therewith; provided, however, that the provisions
- 21 -
of Section XI.B.1 of the Plan shall have no effect on: (a) the liability of any Entity that
would otherwise result from the failure to perform or pay any obligation or liability under the
Plan or any contract, instrument, release or other agreement or document to be entered into or
delivered in connection with the Plan or (b) the liability of any Entity that would otherwise
result from any such act or omission to the extent that such act or omission is determined in a
Final Order to have constituted gross negligence or willful misconduct.
To the maximum extent permitted by law, notwithstanding any other provision of the Plan, no
holder of a Claim or Interest, no other party in interest, none of their respective agents,
employees, representatives, financial advisors, attorneys or affiliates, and no successors or
assigns of the foregoing, shall have any right of action against the Debtors, the Reorganized
Debtors, the Credit Facilities Agent, the Creditors Committee, the Asbestos Personal Injury
Futures Representative, the Asbestos Personal Injury Committee, the Asbestos Property Damage
Committee, the Equity Committee, the DIP Lender, the Indenture Trustees, the New Investor or their
respective directors, officers, employees, affiliates, subsidiaries, predecessors, successors,
members, attorneys, accountants, underwriters, investment bankers, financial advisors, appraisers,
representatives and agents, acting in such capacity, for any act or omission in connection with,
relating to or arising out of the Reorganization Cases or the consideration, formulation,
preparation, dissemination, implementation, Confirmation or consummation of the Plan, the
Disclosure Statement or any transaction or document created or entered into, or any other act taken
or omitted to be taken, in connection therewith, except for: (a) the liability of any Entity that
would otherwise result from the failure to perform or pay any obligation or liability under the
Plan or any contract, instrument, release or other agreement or document to be entered into or
delivered in connection with the Plan or (b) the liability of any Entity that would
otherwise result from any such act or omission to the extent that such act or omission is
determined in a Final Order to have constituted gross negligence or willful misconduct.
- 22 -
Other Matters
As
of May 31, 2006, and prior to giving effect to the Plan, the Company estimated its
consolidated assets to be $6,769,971,000 and its consolidated liabilities to be $7,160,690,000
with a stockholders equity deficit of $390,719,000.
As
of May 31, 2006, 44,919,986 shares of common stock of the Company were issued
and outstanding and no shares were reserved for future issuance in respect of claims and interests
filed and allowed under the Plan.
- 23 -
ITEM 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Plan, on June 19, 2006, the Company filed with the Secretary of State of the
State of Delaware the Restated Certificate of Incorporation of USG Corporation (the Restated
Certificate of Incorporation), which was amended to reference the filing of the Plan and the entry
of the Confirmation Order. A copy of the Restated Certificate of Incorporation is attached hereto
as Exhibit 3.01 and incorporated herein by reference.
ITEM 8.01 Other Events.
On June 20, 2006, the Company issued a press release announcing that it had set June 30, 2006 as the record date for its previously announced rights offering. Under the rights offering, each stockholder as of the record date of the rights offering will receive a right to purchase, for each share of USG common stock held on that date, one new share of USG common stock at a price of $40.00.
A copy of the press release announcing the record date for the rights offering is furnished herewith as Exhibit 99.02.
ITEM 9.01 Financial Statements and Exhibits.
(c) Exhibits.
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Number |
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Description |
2.01
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First Amended Joint Plan of Reorganization of USG Corporation and its Debtor Subsidiaries* |
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2.02
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Order Confirming First Amended Joint Plan of Reorganization |
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3.01
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Restated Certificate of Incorporation of USG Corporation |
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99.01
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USG Corporation press release dated
June 20, 2006 announcing the effectiveness of the Plan |
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99.02
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USG Corporation press release dated
June 20, 2006 announcing the record date for the rights offering |
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* |
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The USG Debtors filed with the Bankruptcy Court the following attachments to the Plan, which,
as permitted by Item 601(b)(2) of Regulation S-K, have been omitted from this Current Report
on Form 8-K: |
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I.A.1
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Schedule of A.P. Green Companies |
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I.A.5
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Nonexclusive Schedule of Present Affiliates |
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I.A.14
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Schedule of Certain Insurance Policies Included in Asbestos Personal Injury Insurance Asset |
- 24 -
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I.A.18
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Asbestos Personal Injury Trust Agreement |
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I.A.19
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Asbestos Personal Injury Trust Distribution Procedures |
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I.A.43
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Form of the Contingent Payment Note and Related Pledge Agreement |
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I.A.80
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Schedule of Industrial Revenue Bonds and Allowed Amounts, Industrial Revenue Bond
Indentures and Industrial Revenue Bond Indenture Trustees |
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I.A.90
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Form of the Long Term Incentive Plan |
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I.A.91
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Form of the Management Incentive Plan |
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I.A.94
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Form of the Note and Related Pledge Agreement |
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I.A.96
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Schedule of Past Affiliates and/or Predecessors in Interest |
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III.B
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Schedule of Certain Credit Facilities, Senior Notes and Industrial Revenue Bonds Claim Amounts |
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IV.C.1.a
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Forms of Certificates of Incorporation of Reorganized USG and the Reorganized Subsidiary Debtors |
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IV.C.1.b
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Forms of By-Laws of Reorganized USG and the Reorganized Subsidiary Debtors |
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IV.C.2
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Schedule of Compensation of Executives, Officers and Directors as of the Effective Date |
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IV.F
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Schedule of Initial Trustees of Asbestos Personal Injury Trust |
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IV.G.1
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Form of Cooperation Agreement Between the Reorganized Debtors and the Asbestos Personal Injury Trust |
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IV.H.1
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Nonexclusive Schedule of Preserved Rights of Action |
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V.C
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Schedule of Executory Contracts and Unexpired Leases to Be Rejected |
The Company will furnish supplementally a copy of any attachment to the Plan to the
Securities and Exchange Commission upon request.
- 25 -
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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USG CORPORATION
Registrant
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By: |
/s/ Stanley L. Ferguson,
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Stanley L. Ferguson, |
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Executive Vice President
and General Counsel |
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Date:
June 21, 2006
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
2.01
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First Amended Joint Plan of Reorganization of USG Corporation and
its Debtor Subsidiaries |
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2.02
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Order Confirming First Amended Joint Plan of Reorganization |
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3.01
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Restated Certificate of Incorporation of USG Corporation |
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99.01
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USG Corporation press release dated
June 20, 2006 announcing the effectiveness of the Plan |
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99.02
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USG Corporation press release dated
June 20, 2006 announcing the record date for the rights offering |
- 27 -
Exhibit 2.01
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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IN RE:
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:
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Jointly Administered |
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:
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Case No. 01-2094 (JKF) |
USG Corporation,
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a Delaware corporation, et al.,
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Chapter 11 |
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Debtors.
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USG Corporation
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Case No. 01-2094 (JKF) |
United States Gypsum Company
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Case No. 01-2095 (JKF) |
USG Interiors, Inc.
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Case No. 01-2096 (JKF) |
USG Interiors International, Inc.
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Case No. 01-2097 (JKF) |
L&W Supply Corporation
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Case No. 01-2098 (JKF) |
Beadex Manufacturing, LLC
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Case No. 01-2099 (JKF) |
B-R Pipeline Company
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Case No. 01-2100 (JKF) |
La Mirada Products Co., Inc.
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Case No. 01-2101 (JKF) |
USG Industries, Inc.
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Case No. 01-2102 (JKF) |
USG Pipeline Company
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Case No. 01-2103 (JKF) |
Stocking Specialists, Inc.
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Case No. 01-2104 (JKF) |
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FIRST AMENDED JOINT PLAN |
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OF REORGANIZATION OF |
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USG CORPORATION AND |
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ITS DEBTOR SUBSIDIARIES |
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Daniel J. DeFranceschi (DE 2732) |
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Paul N. Heath (DE 3704) |
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RICHARDS, LAYTON & FINGER |
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One Rodney Square |
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P.O. Box 551 |
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Wilmington, Delaware 19899 |
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Telephone: (302) 651-7700 |
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- and - |
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David G. Heiman (OH 0038271) |
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Gus Kallergis (OH 0071557) |
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JONES DAY |
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North Point |
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901 Lakeside Avenue |
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Cleveland, Ohio 44114 |
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Telephone: (216) 586-3939 |
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Brad B. Erens (IL 6206864) |
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Michelle M. Harner (IL 6276282) |
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Mark A. Cody (IL 6236871) |
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Daniel B. Prieto (IL 6272888) |
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JONES DAY |
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77 West Wacker |
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Chicago, Illinois 60601 |
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Telephone: (312) 782-3939 |
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March 27, 2006
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ATTORNEYS FOR DEBTORS |
ASBESTOS PERSONAL INJURY CHANNELING INJUNCTION
Pursuant to section 105 and section 524(g) of the Bankruptcy Code,
as applicable, this plan of reorganization provides for the issuance
of the Asbestos Permanent Channeling Injunction and the Asbestos
Personal Injury Insurance Entity Injunction. See Sections IX.B.2 and IX.B.3.
TABLE OF CONTENTS
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Page |
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ARTICLE I. |
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DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF TIME |
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1 |
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Defined Terms |
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1 |
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B. |
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Rules of Interpretation and Computation of Time |
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15 |
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1. |
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Rules of Interpretation |
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15 |
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2. |
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Computation of Time |
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ARTICLE II. |
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CLASSES OF CLAIMS AND INTERESTS |
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15 |
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1. |
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Class 1: Unsecured Priority Claims |
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15 |
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2. |
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Class 2: Secured Claims |
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15 |
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3. |
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Class 3: Credit Facilities Claims |
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15 |
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4. |
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Class 4: Senior Note Claims |
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15 |
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5. |
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Class 5: Industrial Revenue Bond Claims |
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15 |
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6. |
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Class 6: General Unsecured Claims |
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15 |
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7. |
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Class 7: Asbestos Personal Injury Claims |
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15 |
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8. |
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Class 8: Asbestos Property Damage Claims |
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16 |
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9. |
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Class 9: Environmental Claims |
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16 |
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10. |
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Class 10: Intercompany Claims |
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16 |
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11. |
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Class 11: Subsidiary Debtor Stock Interests |
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16 |
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12. |
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Class 12: USG Stock Interests |
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ARTICLE III. |
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TREATMENT OF CLAIMS AND INTERESTS |
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Unclassified Claims |
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1. |
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Payment of Administrative Claims |
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16 |
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a. |
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Administrative Claims in General |
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16 |
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b. |
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Statutory Fees |
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16 |
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c. |
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Ordinary Course Liabilities |
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d. |
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Claims Under the DIP Letter of Credit Facility |
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e. |
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Bar Dates for Administrative Claims |
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17 |
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2. |
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Payment of Priority Tax Claims |
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18 |
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a. |
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Priority Tax Claims |
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18 |
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b. |
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Other Provisions Concerning Treatment of Priority Tax Claims |
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18 |
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3. |
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Disallowance of Reclamation Claims |
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18 |
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B. |
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Classified Claims |
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18 |
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1. |
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Class 1 Claims (Priority Claims) |
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18 |
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2. |
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Class 2 Claims (Secured Claims) |
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18 |
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3. |
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Class 3 Claims (Credit Facilities Claims) |
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18 |
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TABLE OF CONTENTS
(Continued)
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4. |
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Class 4 Claims (Senior Note Claims) |
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19 |
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5. |
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Class 5 Claims (Industrial Revenue Bond Claims) |
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19 |
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6. |
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Class 6 Claims (General Unsecured Claims) |
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19 |
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7. |
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Class 7 Claims (Asbestos Personal Injury Claims) |
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20 |
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8. |
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Class 8 Claims (Asbestos Property Damage Claims) |
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20 |
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9. |
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Class 9 Claims (Environmental Claims) |
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20 |
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10. |
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Class 10 Claims (Intercompany Claims) |
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20 |
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11. |
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Class 11 Interests (Stock Interests of Subsidiary Debtors) |
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20 |
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12. |
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Class 12 Interests (Stock Interests of USG) |
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ARTICLE IV. |
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MEANS FOR IMPLEMENTATION OF THE PLAN |
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21 |
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Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors |
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B. |
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Restructuring Transactions |
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21 |
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1. |
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Restructuring Transactions Generally |
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21 |
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2. |
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Obligations of Any Successor Corporation in a Restructuring Transaction |
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21 |
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C. |
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Corporate Governance, Directors and Officers, Employment-Related Agreements and Compensation Programs and Corporate Action |
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22 |
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1. |
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Certificates of Incorporation and By-Laws of the Reorganized Debtors |
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22 |
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2. |
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Directors and Officers of the Reorganized Debtors |
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22 |
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3. |
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New Employment, Retirement, Indemnification and Other Related Agreements and Incentive Compensation Programs |
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22 |
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4. |
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Corporate Action |
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D. |
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Obtaining Cash for Plan Distributions and Transfers of Funds Among the Debtors and the Reorganized Debtors |
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23 |
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E. |
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Creation of Asbestos Personal Injury Trust |
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23 |
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F. |
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Appointment of Asbestos Personal Injury Trustees |
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23 |
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G. |
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Transfers of Property to and Assumption of Certain Liabilities by the Asbestos Personal Injury Trust |
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23 |
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1. |
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Transfer of Books and Records to the Asbestos Personal Injury Trust |
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23 |
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2. |
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Funding the Asbestos Personal Injury Trust |
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24 |
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3. |
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Transfer of the Asbestos Personal Injury Insurance Asset |
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25 |
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4. |
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Assumption of Certain Liabilities by the Asbestos Personal Injury Trust |
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25 |
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5. |
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Indemnification by the Asbestos Personal Injury Trust |
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25 |
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6. |
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Cooperation with Respect to Insurance Matters |
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26 |
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7. |
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Authority of the Reorganized Debtors |
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26 |
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H. |
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Preservation of Rights of Action; Settlement of Claims and Releases |
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26 |
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1. |
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Preservation of Rights of Action by the Debtors and the Reorganized Debtors |
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26 |
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-ii-
TABLE OF CONTENTS
(Continued)
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Page |
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2. |
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Comprehensive Settlement of Claims and Controversies |
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27 |
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3. |
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Releases |
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27 |
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a.
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General Releases of Debtors and Reorganized Debtors
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27 |
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b.
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Release by the Debtors and Reorganized Debtors
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27 |
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c.
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General Releases by Holders of Claims or Interests
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27 |
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d.
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Injunction Related to Releases
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28 |
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I. |
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Continuation of Certain Employee, Retiree and Workers Compensation Benefits |
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28 |
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1. |
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Employee Benefits |
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28 |
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2. |
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Retiree Benefits |
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28 |
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3. |
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Workers Compensation Benefits |
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28 |
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J. |
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Special Provisions Regarding Insured Claims and Insurance Policies |
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28 |
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1. |
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Limitations on Amounts to Be Distributed to Holders of Allowed Insured Claims |
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28 |
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2. |
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Reinstatement and Continuation of Insurance Policies |
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29 |
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3. |
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Insurance Neutrality |
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29 |
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K. |
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Cancellation and Surrender of Instruments, Securities and Other Documentation |
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29 |
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L. |
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Release of Liens |
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29 |
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M. |
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Effectuating the Rights Offering |
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30 |
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N. |
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Effectuating Documents; Further Transactions; Exemption from Certain Transfer Taxes |
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30 |
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O. |
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Compliance with QSF Regulations |
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30 |
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P. |
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Procedure for Resolution of Postpetition Interest Disputes |
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30 |
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ARTICLE V. |
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TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES |
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31 |
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A. |
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Executory Contracts and Unexpired Leases to Be Assumed |
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31 |
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1. |
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Assumption Generally |
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31 |
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2. |
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Assumptions of Executory Contracts and Unexpired Leases |
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31 |
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3. |
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Assignments Related to the Restructuring Transactions |
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31 |
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4. |
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Approval of Assumptions and Assumption Procedures |
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31 |
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B. |
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Payments Related to the Assumption of Executory Contracts and Unexpired Leases |
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32 |
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C. |
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Executory Contracts and Unexpired Leases to Be Rejected and Rejection Procedures |
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32 |
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D. |
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Bar Date for Rejection Damages |
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33 |
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E. |
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Obligations to Indemnify Directors, Officers and Employees |
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33 |
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F. |
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Contracts and Leases Entered Into After the Petition Date |
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33 |
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ARTICLE VI. |
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PROVISIONS GOVERNING DISTRIBUTIONS |
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34 |
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A. |
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Distributions for Claims Allowed as of the Effective Date |
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34 |
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B. |
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Method of Distributions to Holders of Claims |
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34 |
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-iii-
TABLE OF CONTENTS
(Continued)
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C. |
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Compensation and Reimbursement for Services Related to Distributions |
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34 |
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D. |
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Delivery of Distributions and Undeliverable or Unclaimed Distributions |
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34 |
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1. |
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Delivery of Distributions |
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34 |
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2. |
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Undeliverable Distributions Held by Disbursing Agents |
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35 |
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a.
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Holding and Investment of Undeliverable Distributions
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35 |
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b.
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After Distributions Become Deliverable
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35 |
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c.
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Failure to Claim Undeliverable Distributions
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35 |
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E. |
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Distribution Record Date |
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35 |
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F. |
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Means of Cash Payments |
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36 |
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G. |
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Timing and Calculation of Amounts to Be Distributed |
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36 |
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1. |
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Timing of Distributions Under the Plan |
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36 |
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2. |
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Distribution to the Asbestos Personal Injury Trust |
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36 |
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3. |
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Allowed Claims |
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36 |
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4. |
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Compliance with Tax Requirements |
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36 |
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H. |
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Surrender of Canceled Instruments or Securities |
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37 |
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I. |
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Setoffs |
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37 |
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J. |
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Allocation of Payments |
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37 |
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ARTICLE VII. |
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PROCEDURES FOR RESOLVING DISPUTED CLAIMS |
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37 |
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A. |
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Prosecution of Objections to Claims |
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37 |
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1. |
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Objections to Claims |
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37 |
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2. |
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Authority to Prosecute Objections |
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37 |
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3. |
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Liquidation and Resolution of Litigation Claims and Asbestos Property Damage Claims |
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38 |
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4. |
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Authority to Amend Schedules |
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38 |
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B. |
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Treatment of Disputed Claims |
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38 |
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C. |
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Enforcement of Bar Date Order |
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38 |
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D. |
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Distributions on Account of Disputed Claims Once Allowed |
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39 |
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E. |
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Indenture Trustees as Relevant Claim Holders |
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39 |
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ARTICLE VIII. |
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CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN |
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39 |
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A. |
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Conditions to Confirmation |
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39 |
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B. |
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Conditions to the Effective Date |
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42 |
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C. |
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Waiver of Conditions to Confirmation or the Effective Date |
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42 |
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D. |
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Effect of Nonoccurrence of Conditions to the Effective Date |
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ARTICLE IX. |
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DISCHARGE, INJUNCTION AND SUBORDINATION RIGHTS |
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-iv-
TABLE OF CONTENTS
(Continued)
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Page |
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A. |
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Discharge of Claims |
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43 |
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B. |
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Injunctions |
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43 |
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1. |
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General Injunctions |
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43 |
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2. |
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Asbestos Permanent Channeling Injunction |
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44 |
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3. |
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Asbestos Personal Injury Insurance Asset Entity Injunction |
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44 |
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a.
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Purpose and Provisions
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44 |
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b.
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Terms
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c.
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Reservations
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C. |
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Subordination Rights |
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ARTICLE X. |
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RETENTION OF JURISDICTION |
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46 |
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A. |
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Retention of Exclusive Jurisdiction by the Bankruptcy Court |
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46 |
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B. |
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Exclusive Jurisdiction of the District Court |
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C. |
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Jurisdiction Relating to Asbestos Personal Injury Claims |
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ARTICLE XI. |
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MISCELLANEOUS PROVISIONS |
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47 |
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A. |
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Dissolution of the Committee and Discharge of Asbestos Personal Injury Futures Representative |
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47 |
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B. |
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Limitation of Liability |
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48 |
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C. |
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Modification of the Plan and Exhibits |
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48 |
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D. |
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Revocation of the Plan |
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49 |
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E. |
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Headings |
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49 |
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F. |
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Successors and Assigns |
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49 |
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G. |
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Service of Certain Plan Exhibits and Disclosure Statement Exhibits |
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49 |
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H. |
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Service of Documents |
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49 |
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1. |
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The Debtors and the Reorganized Debtors |
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49 |
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2. |
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The Creditors Committee |
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50 |
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3. |
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Asbestos Personal Injury Futures Representative |
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50 |
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4. |
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The Asbestos Personal Injury Committee |
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5. |
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The Asbestos Property Damage Committee |
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6. |
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The Equity Committee |
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7. |
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The U.S. Trustee |
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8. |
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The New Investor |
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-v-
TABLE OF EXHIBITS1
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I.A.1.
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Schedule of A.P. Green Companies |
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I.A.5.
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Nonexclusive Schedule of Present Affiliates |
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I.A.14.
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Schedule of Certain Insurance Policies Included in Asbestos Personal Injury Insurance Asset |
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I.A.18.
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Asbestos Personal Injury Trust Agreement |
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I.A.19.
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Asbestos Personal Injury Trust Distribution Procedures |
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I.A.43.
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Form of the Contingent Payment Note and Related Pledge Agreement |
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I.A.80.
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Schedule of Industrial Revenue Bonds and Allowed Amounts, Industrial Revenue Bond Indentures and Industrial Revenue
Bond Indenture Trustees |
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I.A.90.
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Form of the Long Term Incentive Plan |
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I.A.91.
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Form of the Management Incentive Plan |
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I.A.94.
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Form of the Note and Related Pledge Agreement |
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I.A.96.
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Schedule of Past Affiliates and/or Predecessors in Interest |
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III.B.
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Schedule of Certain Credit Facilities, Senior Notes and Industrial Revenue Bonds Claim Amounts |
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IV.C.1.a.
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Forms of Certificates of Incorporation of Reorganized USG and the Reorganized Subsidiary Debtors |
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IV.C.1.b.
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Forms of By-Laws of Reorganized USG and the Reorganized Subsidiary Debtors |
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IV.C.2.
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Schedule of Compensation of Executives, Officers and Directors as of the Effective Date |
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IV.F.
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Schedule of Initial Trustees of Asbestos Personal Injury Trust |
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IV.G.1
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Form of Cooperation Agreement Between the Reorganized Debtors and the Asbestos Personal Injury Trust |
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IV.H.1
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Nonexclusive Schedule of Preserved Rights of Action |
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V.C.
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Schedule of Executory Contracts and Unexpired Leases to Be Rejected |
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1 |
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To the extent not attached to and Filed with the Plan, Plan Exhibits shall be Filed and made
available for review on the Debtors web site at www.usg.com no later than 10 days before
the deadline to vote to accept or reject the Plan. The Debtors also will serve such Exhibits
on their then current Bankruptcy Rule 2002 service list no later than 10 days before the deadline
to vote to accept or reject the Plan. The Debtors reserve the right to modify, amend, supplement,
restate or withdraw any of the Exhibits after they are Filed. The Debtors shall File and shall make
available on their web site all modified, amended, supplemented or restated Exhibits as promptly as possible. |
INTRODUCTION
USG Corporation and the other above-captioned debtors and debtors in possession (collectively,
the Debtors) propose the following joint plan of reorganization (the Plan) for the resolution
of the outstanding claims and demands against and equity interests in the Debtors. The Debtors are
proponents of the Plan within the meaning of section 1129 of the Bankruptcy Code. The Debtors are
intending to treat the Plan as a separate Plan for each of the Debtors. Reference is made to the
Debtors disclosure statement, Filed contemporaneously with the Plan (the Disclosure Statement),
for a discussion of the Debtors history, businesses, results of operations, historical financial
information, projections and properties and for a summary and analysis of the Plan. Other
agreements and documents supplement the Plan and have been or will be Filed with the Bankruptcy
Court. These supplemental agreements and documents are referenced in the Plan or the Disclosure
Statement and will be available for review.
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION
AND COMPUTATION OF TIME
As used in the Plan, capitalized terms 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. A.P. Green means, collectively, A.P. Green Industries, Inc., A.P. Green Refractories Co.
or any of their affiliates or predecessors, to the extent such predecessors are listed in Exhibit
I.A.1.
2. Additional Common Stock means the additional Common Stock to be issued and sold pursuant
to the Rights Offering.
3. Administrative Claim means a Claim for costs and expenses of administration allowed under
sections 503(b), 507(b) or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and
necessary costs and expenses incurred after the Petition Date of preserving the respective Estates
and operating the businesses of the Debtors (such as wages, salaries, commissions for services and
payments for inventories, leased equipment and premises), including Claims under the DIP Letter of
Credit Facility; (b) compensation for legal, financial advisory, accounting and other services and
reimbursement of expenses awarded or allowed under sections 330(a), 331 or 503 of the Bankruptcy
Code, including Fee Claims; (c) all fees and charges assessed against the Estates under chapter 123
of title 28, United States Code, 28 U.S.C. §§ 1911-1930; and (d) all Intercompany Claims accorded
priority pursuant to section 364(c)(1) of the Bankruptcy Code.
4. Administrative Trade Claim means an Administrative Claim arising from or with respect to
the sale of goods or rendition of services on or after the Petition Date in the ordinary course of
the applicable Debtors business, including Administrative Claims of employees for ordinary course
wages, expense reimbursement and health and welfare benefits.
5. Affiliate means an affiliate, as defined in section 101(2) of the Bankruptcy Code. A
nonexclusive schedule of Affiliates is included in Exhibit I.A.5.
6. Allowed Claim means:
1
a. a Claim (other than an Asbestos Personal Injury Claim) that (i) has been listed by
a particular Debtor on its Schedules as other than disputed, contingent or unliquidated and
(ii) is not a Disputed Claim;
b. a Timely Claim (other than an Asbestos Personal Injury Claim) that is not a
Disputed Claim;
c. a Timely Claim (other than an Asbestos Personal Injury Claim) that is liquidated
and allowed: (i) in any Stipulation of Amount and Nature of Claim executed by the
Debtors or Reorganized Debtors and Claim holder; (ii) in any contract, instrument or
other agreement entered into in connection with the Plan and, if prior to the Effective
Date, approved by the Bankruptcy Court; (iii) in a Final Order; or (iv) pursuant to the
terms of the Plan; or
d. a Claim (other than an Asbestos Personal Injury Claim) listed by a particular
Debtor on its Schedules as other than disputed, contingent or unliquidated or a Timely
Claim that the Debtors or Reorganized Debtors determine prior to the Claims Objection Bar
Date (i) will not be subject to an objection or to an amendment to the Schedules and (ii)
will be satisfied in accordance with the terms of the Plan on or after the Effective Date.
7. Allowed . . . Claim means an Allowed Claim in the particular Class or category specified.
8. Asbestos Permanent Channeling Injunction means an order or orders of the Bankruptcy Court
or the District Court and, if the Confirmation Order is entered by the Bankruptcy Court, affirmed
by the District Court, in accordance with, and pursuant to, section 524(g) of the Bankruptcy Code
permanently and forever staying, restraining and enjoining any Entity from taking any actions
against any Protected Party for the purpose of, directly or indirectly, collecting, recovering or
receiving payment of, on or with respect to any Asbestos Personal Injury Claim, all of which shall
be channeled to the Asbestos Personal Injury Trust for resolution as set forth in the Asbestos
Personal Injury Trust Agreement and the related Asbestos Personal Injury Trust Distribution
Procedures, including:
a. commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including a judicial, arbitral, administrative or other
proceeding) in any forum against any Protected Party or any property or interests in
property of any Protected Party;
b. enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Protected Party or any property or
interests in property of any Protected Party;
c. creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Protected Party or any property or interests in property of any
Protected Party;
d. setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any liability
owed to any Protected Party or any property or interests in property of any Protected
Party; and
e. proceeding in any manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust, except in conformity and
compliance therewith.
2
9. Asbestos Personal Injury Claim means any Claim, remedy, liability or Demand now existing
or hereafter arising against any Debtor, whether or not such Claim, remedy, liability or Demand is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, whether or not the facts of or legal bases
therefor are known or unknown, under any theory of law, equity, admiralty or otherwise (including
piercing the corporate veil, alter ego and similar theories), for death, bodily injury, sickness,
disease, medical monitoring or other personal injuries (whether physical, emotional or otherwise)
to the extent allegedly arising out of or based on, directly or indirectly, in whole or in part,
the presence of or exposure to asbestos or asbestos-containing products or things that were
installed, engineered, designed, manufactured, fabricated, constructed, sold, supplied, produced,
specified, selected, distributed, released, marketed, serviced, maintained, repaired, purchased,
owned, occupied, used, removed, replaced or disposed of by any Debtor or an Entity for whose
products or operations any Debtor allegedly has liability or for which any Debtor is otherwise
allegedly liable, including any Claim, remedy, liability or Demand for compensatory damages (such
as loss of consortium, lost wages or other opportunities, wrongful death,
medical monitoring, survivorship, proximate, consequential, general and special damages) or
punitive damages related thereto, and any Asbestos Personal Injury Indirect Claim, and any Claim
under any settlement entered into by or on behalf of any Debtor prior to the Petition Date of an
Asbestos Personal Injury Claim. Neither an Asbestos Property Damage Claim, nor a workers
compensation claim brought directly by a past or present employee of any Debtor under an applicable
workers compensation statute, shall constitute an Asbestos Personal Injury Claim. Asbestos
Personal Injury Claim shall include all Asbestos Personal Injury Claims asserted against the
Debtors on account of or relating to (a) A.P. Green or (b) any DAP Liability.
10. Asbestos Personal Injury Committee means the Official Committee of Asbestos Personal
Injury Claimants appointed by the U.S. Trustee in the Reorganization Cases pursuant to section 1102
of the Bankruptcy Code and any duly appointed successors, as the same may be reconstituted from
time to time.
11. Asbestos Personal Injury Committee Members Counsel means, collectively, counsel for
each member of the Asbestos Personal Injury Committee in its individual capacity and on behalf of
such member.
12. Asbestos Personal Injury Futures Representative means Dean M. Trafelet, the Legal
Representative for Future Claimants with respect to Asbestos Personal Injury Claims relating to
Demands appointed pursuant to an order of the Bankruptcy Court dated July 14, 2002.
13. Asbestos Personal Injury Indirect Claim means any Claim, remedy, liability or Demand now
existing or hereafter arising, for contribution, reimbursement, damages, subrogation or
indemnification or any other indirect or derivative Claim, against any Debtor, whether reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, that relates, directly or indirectly, to any Asbestos
Personal Injury Claim. Asbestos Personal Injury Indirect Claim includes Claims or Demands against
any Debtor by the CCR or its current or former members relating, directly or indirectly, to
Asbestos Personal Injury Claims and Claims by any Entity, including the CCR or its current or
former members, with respect to any surety bond, letter of credit or other financial assurance
issued by any Entity on account of, or with respect to, Asbestos Personal Injury Claims. An
Asbestos Property Damage Indirect Claim shall not constitute an Asbestos Personal Injury Indirect
Claim.
14. Asbestos Personal Injury Insurance Asset means all of the Debtors or their respective
predecessors in interests rights arising under the DAP Asset and the insurance policies identified
on Exhibit I.A.14, in each case to the extent related to Asbestos Personal Injury Claims. The
foregoing includes rights under insurance policies, rights under settlement agreements made with
respect to such insurance policies, rights against the estates of insolvent insurers that issued
such policies or entered into such settlements and rights against state insurance guaranty
associations arising out of any such insurance policies issued by insolvent insurers. The
foregoing also includes the right, on behalf of the Debtors as of the Effective Date, to give a
full release of the insurance rights of the Debtors as of the Effective Date under any such policy
or settlement agreement.
3
15. Asbestos Personal Injury Insurance Asset Entity means any Entity, including any
insurance company, insurance broker or guaranty association, that has issued insurance or that has
actual or potential liability, duties or obligations relating to Asbestos Personal Injury Claims
that are being affected by the transfer of the Asbestos Personal Injury Insurance Asset.
16. Asbestos Personal Injury Insurance Asset Entity Injunction means the injunction
described in Section IX.B.3.
17. Asbestos Personal Injury Trust means the trust established by the Debtors in accordance
with the Asbestos Personal Injury Trust Agreement to satisfy Asbestos Personal Injury Claims
pursuant to the Plan, which trust shall satisfy the requirements of section 524(g) of the
Bankruptcy Code and section 468B of the Internal Revenue Code and the Treasury Regulations
promulgated thereunder.
18. Asbestos Personal Injury Trust Agreement means that certain Asbestos Personal Injury
Trust Agreement, executed by the Debtors and the Asbestos Personal Injury Trustees, substantially
in the form of Exhibit I.A.18.
19. Asbestos Personal Injury Trust Distribution Procedures means the Asbestos Personal
Injury Trust Distribution Procedures, to be implemented by the Asbestos Personal Injury Trust
pursuant to the terms and conditions of the Plan and the Asbestos Personal Injury Trust Agreement
governing the liquidation, processing and payment of Asbestos Personal Injury Claims, substantially
in the form of Exhibit I.A.19.
20. Asbestos Personal Injury Trustees means, collectively, the persons appointed to serve as
trustees of the Asbestos Personal Injury Trust to administer Asbestos Personal Injury Claims
pursuant to the terms of the Asbestos Personal Injury Trust Agreement, or as subsequently may be
appointed pursuant to the terms of the Asbestos Personal Injury Trust Agreement.
21. Asbestos Property Damage Claim means any Claim, remedy or liability against any Debtor,
whether or not such Claim, remedy or liability is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, whether or not the facts of or legal bases therefor are known or unknown, under any
theory of law, equity, admiralty or otherwise (including any theory of conspiracy or piercing the
corporate veil, alter ego and similar theories), for asbestos property damage, including the cost
of inspecting, maintaining, encapsulating, repairing, decontaminating, removing, replacing or
disposing of asbestos or asbestos-containing products in buildings, other structures or other
property arising from the installation in, presence in or removal from buildings or other
structures of asbestos or asbestos-containing products that was or were installed, manufactured,
sold, supplied, produced, distributed, released or marketed by any Debtor prior to the Petition
Date, or for which any Debtor is allegedly liable, including any such Claims, remedies and
liabilities for compensatory damages (such as proximate, consequential, general and special
damages) and punitive damages, and any Asbestos Property Damage Indirect Claim. Asbestos Property
Damage Claim shall include all Asbestos Property Damage Claims asserted against the Debtors on
account of or relating to (a) A.P. Green or (b) any DAP Liability. Asbestos Property Damage Claims
shall not include Asbestos Personal Injury Claims.
22. Asbestos Property Damage Committee means the Official Committee of Asbestos Property
Damage Claimants of the Debtors appointed by the U.S. Trustee in the Reorganization Cases pursuant
to section 1102 of the Bankruptcy Code and any duly appointed successors, as the same may be
reconstituted from time to time.
23. Asbestos Property Damage Indirect Claim means any Claim, remedy or liability against any
Debtor, whether or not such Claim, remedy or liability is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured, whether or not the facts of or legal bases therefor are known or unknown,
under any theory of law, equity, admiralty or otherwise
4
(including any theory of conspiracy), that
is (a) held by (i) any Entity (other than a director or officer entitled to indemnification
pursuant to Sections IV.C.3. and V.E.) who has been, is, or may be a defendant in an action seeking
damages for asbestos property damage, including the cost of inspecting, maintaining, encapsulating,
repairing, decontaminating, removing, replacing or disposing of asbestos or asbestos-containing
products in buildings, other structures, or other property, or (ii) any assignee or transferee of
such Entity and (b) on account of alleged liability by any Debtor for reimbursement,
indemnification, subrogation or contribution of any portion of any damages such Entity has paid or
may pay to the plaintiff or any assignee in such action. An Asbestos Personal Injury Indirect
Claim shall not constitute an Asbestos Property Damage Indirect Claim.
24. Bankruptcy Code means title 11 of the United States Code, as in effect on the Petition
Date or thereafter amended with retroactive applicability to the Reorganization Cases.
25. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware
having jurisdiction over the Reorganization Cases.
26. Bankruptcy Rules means, collectively, the Federal Rules of Bankruptcy Procedure and the
local rules of the Bankruptcy Court, as now in effect or hereafter amended with retroactive
applicability to the Reorganization Cases.
27. Bar Date means the applicable bar date by which a proof of Claim or a request for
payment of Administrative Claim must be or must have been Filed, as established by an order of the
Bankruptcy Court, including the Bar Date Order and the Confirmation Order.
28. Bar Date Order means the order of the Bankruptcy Court entered on May 3, 2002,
establishing certain Bar Dates for Filing proofs of Claims in the Reorganization Cases, as the same
may be amended, modified or supplemented.
29. Business Day means any day, other than a Saturday, Sunday or legal holiday (as defined
in Bankruptcy Rule 9006(a)).
30. By-Laws means the By-Laws of any Reorganized Debtor, to be amended and restated in
accordance with Section IV.C.1 hereof, in substantially the form of Exhibit IV.C.1.b with such
changes as may be necessary to conform to the applicable law of the state of incorporation.
31. CCR means The Center for Claims Resolution.
32. Certificate of Incorporation means the Certificate of Incorporation of any Reorganized
Debtor, to be amended and restated in accordance with Section IV.C.1 hereof, in substantially the
form of Exhibit IV.C.1.a with such changes as may be necessary to conform to the applicable law of
the state of incorporation.
33. Challenge Proceeding means an action, cause of action, suit or other proceeding
challenging the constitutionality and validity of the FAIR Act.
34. Claim means a claim, as defined in section 101(5) of the Bankruptcy Code, against any
Debtor, including any Claim asserted against the Debtors on account of or relating to A.P. Green or
any DAP Liability.
35. Claims Objection Bar Date means, for all Claims (other than Asbestos Personal Injury
Claims) the later of (a) 120 days after the Effective Date and (b) such other period of limitation
as may be
5
specifically fixed by the Plan, the Confirmation Order, the Bankruptcy Rules or a Final
Order for objecting to such Claim.
36. Class means a class of Claims or Interests, as described in Article II.
37. Common Stock means the common stock of Reorganized USG, authorized pursuant to the
certificate of incorporation of Reorganized USG.
38. Condition Precedent means the condition precedent that the FAIR Act has not been enacted
and made law on or before the Trigger Date.
39. Confirmation means the entry of the Confirmation Order on the docket of the District
Court.
40. Confirmation Date means the first date as of which the Confirmation Order is signed by
the District Court and entered on its docket.
41. Confirmation Hearing means, collectively, the hearing or hearings held by the Bankruptcy
Court or the District Court on Confirmation of the Plan, as such hearing or hearings may be
continued from time to time.
42. Confirmation Order means the order of the Bankruptcy Court or the District Court, which,
if entered by the Bankruptcy Court, is affirmed by the District Court, that confirms the Plan
pursuant to section 1129 of the Bankruptcy Code.
43. Contingent Payment Note means the contingent payment note in the amount of $3.05 billion
to be issued by the Reorganized Debtors to the Asbestos Personal Injury Trust on the Effective
Date, as more fully described in Section IV.G.2 and substantially in the form of Exhibit I.A.43.
The Contingent Payment Note shall bear annual interest at a fixed rate equivalent to the rate of
the 90-day LIBOR in effect as of the Trigger Date plus 40 basis points, which interest shall accrue
from 30 days after the Trigger Date until the Contingent Payment Note is paid in full. In
addition, the Reorganized Debtors shall grant to the Asbestos Personal Injury Trust a right to
obtain at least 51 percent of the voting stock of Reorganized USG, exercisable upon the occurrence
of a payment default and certain specified
contingencies, to secure the payment of the Contingent Payment Note, as set forth therein.
Each of the Reorganized Debtors shall be a co-obligor under the Contingent Payment Note and each
Reorganized Debtor shall be jointly and severally liable for the obligations thereunder.
44. Credit Facilities means, collectively, (a) the Five Year Credit Agreement, dated as of
June 30, 2000, and (b) the 364-Day Credit Agreement, dated as of June 30, 2000, each with a
syndicate of financial institutions agented by the Credit Facilities Agent, as the same may have
been subsequently modified, amended or supplemented, together with all instruments and agreements
related thereto.
45. Credit Facilities Agent means JPMorgan Chase Bank, N.A. (formerly The Chase Manhattan
Bank).
46. Credit Facilities Claim means a Claim arising under either of the Credit Facilities.
47. Creditors Committee means the Official Committee of Unsecured Creditors of the Debtors
appointed by the U.S. Trustee in the Reorganization Cases pursuant to section 1102 of the
Bankruptcy Code and any duly appointed successors, as the same may be reconstituted from time to
time.
6
48. Cure Amount Claim means a Claim based upon a Debtors defaults pursuant to an Executory
Contract or Unexpired Lease at the time such contract or lease is assumed by that Debtor under
section 365 of the Bankruptcy Code.
49. DAP Asset means any rights whatsoever, whether now existing or hereafter arising,
whether known or unknown, whether contingent, fixed, liquidated, unliquidated, matured or unmatured
or otherwise, of any Debtor or any predecessor in interest of any Debtor for indemnification or
similar rights arising under or related to that certain purchase agreement, dated as of August 17,
1987, among USG Industries, Inc., Beecham Holdings Inc. and Beecham Home Improvement Products Inc.
50. DAP Liability means any liabilities whatsoever (including any indemnification
liabilities), whether now existing or hereafter arising, whether known or unknown, whether
contingent, fixed, liquidated, unliquidated, matured or unmatured or otherwise, of any Debtor or
any predecessor in interest of any Debtor arising under or related to that certain asset purchase
agreement, dated as of August 23, 1991, among USG, DAP Inc., BHI International Inc., DAP Canada
Inc., Wassall PLC and Wassall USA Acquisition, Inc.
51. Debtors means, collectively, the above-captioned debtors and debtors in possession
identified on the cover page to this Plan.
52. Deficiency Claim means a General Unsecured Claim for the difference between (a) the
aggregate amount of an Allowed Claim and (b) the value received on account of the portion of such
Allowed Claim that is a Secured Claim.
53. Demand means a demand for payment, present or future, including any such demand asserted
against the Debtors on account of or relating to A.P. Green or any DAP Liability, that (a) was not
a Claim prior to the Effective Date, (b) arises out of the same or similar conduct or events that
gave rise to the Claims addressed by the Asbestos Permanent Channeling Injunction and (c) pursuant
to the Plan, is to be paid by the Asbestos Personal Injury Trust.
54. DIP Lender means LaSalle Bank National Association.
55. DIP Letter of Credit Facility means, collectively: (a) that Letter of Credit Facility
between USG and the DIP Lender, dated as of June 13, 2003; (b) all amendments thereto and
extensions thereof; and (c) all security agreements and instruments related to the documents
identified in (a) and (b).
56. Disbursing Agent means Reorganized USG, in its capacity as a disbursing agent pursuant
to Section VI.B, or any Third Party Disbursing Agent, including any Indenture Trustee or Credit
Facilities Agent acting as a disbursing agent, but shall not include any disbursing agent for or
with respect to the Asbestos Personal Injury Trust.
57. Disclosure Statement means the disclosure statement (including all exhibits and
schedules thereto or referenced therein) that relates to the Plan, as approved by the Bankruptcy
Court pursuant to section 1125 of the Bankruptcy Code, as the same may be amended, modified or
supplemented.
58. Disputed Claim means (other than with respect to an Asbestos Personal Injury Claim):
a. if no proof of Claim has been Filed by the applicable Bar Date or has otherwise
been deemed timely Filed under applicable law, (i) a Claim that is listed on a Debtors
Schedules as disputed, contingent or unliquidated or (ii) a Claim that is not listed on a
Debtors Schedules; or
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b. if a Timely Claim, a Claim for which an objection, complaint or request for
estimation has been Filed by the applicable Debtor, Reorganized Debtor or, prior to the
Confirmation Date, any other party in interest, by the Claims Objection Bar Date, and such
objection has not been withdrawn or denied by a Final Order.
59. Distribution means the payment or distribution under the Plan of cash, notes, interests
or other property, as applicable, to the holders of Allowed Claims (other than Asbestos Personal
Injury Claims) or the Asbestos Personal Injury Trust.
60. Distribution Record Date means the Confirmation Date.
61. District Court means the United States District Court for the District of Delaware
having jurisdiction over these Reorganization Cases.
62. Effective Date means a day, as determined by the Debtors, that is a Business Day no
earlier than the date on which all conditions to the effective date in Section VIII.B (other than
the condition in Section VIII.B.7) have been met or waived pursuant to Section VIII.C.
63. Encumbrance means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest, assignment or encumbrance of any kind or nature in respect of such asset
(including any conditional sale or other title retention agreement, any security agreement, and the
filing of, or agreement to give, any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
64. Entity means an individual, corporation, partnership, limited liability company,
association, joint stock company, joint venture, estate, trust, unincorporated organization or
government or any political subdivision thereof, or other person or entity.
65. Environmental Claim means a Claim of a governmental unit against any Debtor relating to
alleged violations of, or noncompliance with, any federal or state environmental laws or
regulations, but shall not include any Asbestos Personal Injury Claim or Asbestos Property Damage
Claim.
66. Equity Commitment Agreement means that certain Equity Commitment Agreement between USG
and the New Investor, dated January 30, 2006, as amended by Amendment No. 1 dated February 23, 2006
(as it may be further amended or modified), which was approved by order of the Bankruptcy Court on
February 23, 2006.
67. Equity Committee means the Statutory Committee of Equity Security Holders of the Debtors
appointed by the U.S. Trustee in the Reorganization Cases pursuant to section 1102 of the
Bankruptcy Code and any duly appointed successors, currently chaired by the New Investor, as the
same may be reconstituted from time to time.
68. Escrow Agreement means the Escrow Agreement, dated as of March 2, 2006, among USG, the
New Investor and the escrow agent named therein (or any successor thereto), as the same may be
amended, modified or supplemented by the parties thereto.
69. Estate means, as to each Debtor, the estate created for that Debtor in its
Reorganization Case pursuant to section 541 of the Bankruptcy Code.
70. Executory Contract and Unexpired Lease and Executory Contract or Unexpired Lease mean
a contract or lease to which one or more of the Debtors is a party that is subject to assumption or
rejection under section 365 of the Bankruptcy Code and the Confirmation Order.
8
71. FAIR Act means, collectively, The Fairness in Asbestos Injury Resolution Act of 2005 or
any substantially similar legislation creating a national trust or similar fund.
72. Fee Claim means a Claim under sections 330(a), 331, 503 or 1103 of the Bankruptcy Code
for compensation of a Professional or other Entity for services rendered or expenses incurred in
the Reorganization Cases.
73. Fee Order means the Administrative Order Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of Professionals entered by the Bankruptcy Court on or
about September 18, 2001, as modified by the Order Appointing Fee Auditor and Establishing Related
Procedures Concerning the Allowance of Compensation and Reimbursement of Expenses of Professionals
and Members of Official Committees and Consideration of Fee Applications entered by the Bankruptcy
Court on or about November 20, 2001 (and subsequently modified by orders dated July 8, 2003 and
March 22, 2004, respectively, and as otherwise modified from time to time).
74. File, Filed or Filing means file, filed or filing with the Bankruptcy Court, the
District Court or their authorized designees in the Reorganization Cases.
75. Final Fee Application means an application for final allowance of the Professionals
aggregate Fee Claim as described in Section III.A.1.e.ii.A.
76. Final Order means an order or judgment of the Bankruptcy Court, or other court of
competent jurisdiction, as entered on the docket in any Reorganization Case or the docket of any
other court of competent jurisdiction, that has not been reversed, stayed, modified or amended, and
as to which the time to appeal or seek certiorari or move for a new trial, reargument or rehearing
has expired, and no appeal or petition for certiorari or other proceedings for a new trial,
reargument or rehearing has been timely taken, or as to which any appeal that has been taken or any
petition for certiorari that has been filed timely has been withdrawn or resolved by the highest
court to which the order or judgment was appealed or from which certiorari was sought or the new
trial, reargument or rehearing shall have been denied or resulted in no modification of such order.
77. General Unsecured Claim means a Deficiency Claim and any Claim that is not a Cure Amount
Claim, Administrative Claim, Priority Tax Claim, Priority Claim, Secured Claim, Credit Facilities
Claim, Senior Note Claim, Industrial Revenue Bond Claim, Asbestos Personal Injury Claim, Asbestos
Property Damage Claim, Environmental Claim or Intercompany Claim.
78. Indenture Trustees means, collectively, the Senior Note Indenture Trustee and the
Industrial Revenue Bond Indenture Trustees.
79. Industrial Revenue Bond Claim means a Claim under the Industrial Revenue Bond
Indentures.
80. Industrial Revenue Bond Indenture Trustees means collectively, the indenture trustees
for Industrial Revenue Bonds and their predecessors, successors or assigns, which indenture
trustees are listed on Exhibit I.A.80.
81. Industrial Revenue Bond Indentures means those indentures for the Industrial Revenue
Bonds listed on Exhibit I.A.80.
82. Industrial Revenue Bonds means those certain industrial revenue bonds governed by the
Industrial Revenue Bond Indentures.
9
83. Insured Claim means any Claim (other than an Asbestos Personal Injury Claim) arising
from an incident or occurrence alleged to have occurred prior to the Effective Date that is covered
under an insurance policy applicable to the Debtors or their businesses.
84. Intercompany Claim means any Claim by USG, or any direct or indirect subsidiary of USG,
against a Debtor.
85. Interest means the rights of any holder of the stock of any Debtor and the rights of any
Entity to purchase or demand the issuance of any of the stock of any Debtor, including: (a)
redemption, conversion, exchange, voting, participation and dividend rights; (b) liquidation
preferences; and (c) stock options and warrants.
86. Internal Revenue Code means the Internal Revenue Code of 1986, as amended.
87. IRS means the Internal Revenue Service of the United States of America.
88. Liability or Liabilities means any and all claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action and liabilities, whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen,
arising in law, equity or otherwise, that are based in whole or in part on any act, event, injury,
omission, transaction, agreement, employment, exposure or other occurrence taking place on or prior
to the Effective Date.
89. Litigation Claim means any Disputed Claim or any other Timely Claim that has not been
settled, compromised or otherwise resolved, in each case that (a) is not barred or disallowed by an
order of the Bankruptcy Court or any other court of competent jurisdiction and (b) is, was or could
have been the subject of a formal legal cause of action, a suit or any other proceeding against any
Debtor, including any Claim that: (i) arises out of allegations of personal injury, wrongful
death, property damage, products liability or similar legal theories of recovery; or (ii) arises
under any federal, state or local statute, rule, regulation or ordinance governing, regulating or
relating to health, safety or hazardous substances; provided, however, that (x) no Asbestos
Personal Injury Claim, Asbestos Property Damage Claim or Environmental Claim shall be a Litigation
Claim and (y) no contract Claim shall be a Litigation Claim unless a formal legal cause action,
suit or proceeding was or has been brought or threatened against the Debtors with respect to such
Claim.
90. Long Term Incentive Plan means the long term incentive plan to be adopted by the
Reorganized Debtors as of the Effective Date, as described in Exhibit I.A.90, for the benefit of
certain employees of the Reorganized Debtors.
91. Management Incentive Plan means the management annual incentive plan to be adopted by
the Reorganized Debtors as of the Effective Date, as described in Exhibit I.A.91, for the benefit
of certain employees of the Debtors.
92. New Investor means Berkshire Hathaway Inc. For informational purposes, Berkshire
Hathaway Inc. currently serves as the chairman of the Equity Committee.
93. New Investor Documents means the Equity Commitment Agreement, Registration Rights
Agreement, Escrow Agreement and Shareholders Agreement and any amendments thereto.
94. Note means the promissory note in the principal amount of $10 million to be issued by
the Reorganized Debtors to the Asbestos Personal Injury Trust on the Effective Date, substantially
in the form of Exhibit I.A.94. The Reorganized Debtors will grant the Asbestos Personal Injury
Trust a right to obtain at least 51 percent of the voting stock of Reorganized USG, exercisable
upon the occurrence of a payment default and certain specific contingencies. The Note shall be
payable on December 31, 2006. The Note shall bear annual
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interest at a fixed rate equivalent to
the rate of the 90-day LIBOR in effect as of the Effective Date plus 40 basis points, which
interest shall accrue from the Effective Date until maturity. Each of the Reorganized Debtors
shall be a co-obligor under the Note and each Reorganized Debtor shall be jointly and severally
liable for the obligations thereunder.
95. Ordinary Course Professionals Order means the Amended and Restated Order Authorizing
Debtors to Retain, Employ and Pay Certain Professionals in the Ordinary Course of Their Businesses
entered by the Bankruptcy Court on August 23, 2004.
96. Past Affiliate means a past affiliate of any Debtor or Reorganized Debtor to the extent
such past affiliate is listed on Exhibit I.A.96.
97. Petition Date means June 25, 2001.
98. Plan means this joint plan of reorganization for the Debtors, to the extent applicable
to any Debtor, and all Exhibits attached hereto or referenced herein, as the same may be amended,
modified or supplemented.
99. Postpetition Interest means with respect to: (a) Credit Facilities Claims, interest
(including interest on interest compounded quarterly on the quarterly interest payment dates)
accruing pursuant to the applicable Credit Facilities from the Petition Date through the Effective
Date at the applicable contractual rate of interest for ABR borrowings or LIBOR borrowings (if any,
until the scheduled maturity of the LIBOR borrowings, at which point they are assumed to be
converted to ABR borrowings), including the default rate, taking into account changes in the
applicable floating interest rate set forth in the applicable Credit Facilities through the
Effective Date; (b) the Senior Note Claims, interest (including interest on interest) in each case
compounded semi-annually on the interest payment dates, accruing at the contractual rate of
interest under the Senior Note Indenture from the Petition Date through the Effective Date; (c) the
Industrial Revenue Bond Claims, interest (including interest on interest), in each case compounded
semi-annually on the interest payment dates, accruing at the contractual rate of interest under the
relevant Industrial Revenue Bond Indenture from the Petition Date through the Effective Date; (d)
Secured Claims, interest accruing on such claims from the Petition Date through the Effective Date
at the rate set forth in the contract or other applicable document giving rise to such claims; (e)
Tax Claims, interest at the non-penalty rate set forth in the applicable state or federal law
governing such Claims from the Petition Date through the Effective Date; and (f) all other Claims
(including Cure Amount Claims), but not including Asbestos Personal Injury Claims, Litigation
Claims and Asbestos Property Damage Claims, interest at (i) the rate of 6.50% per annum compounded
on each anniversary of the Petition Date on the allowed amount of such Claims from the Petition
Date through the Effective Date, (ii) any other applicable interest rate required to leave such
Claim unimpaired as determined by the Bankruptcy Court or (iii) such interest, if any, as otherwise
agreed to by the holder of such Claim and the applicable Debtor. In the case of Postpetition
Interest with respect to Senior Note Claims, any interest (including interest on interest) accruing
after the respective maturity dates of the Senior Notes shall be compounded on the same dates which
constituted interest payment dates with respect to such Senior Notes. No Distributions shall be
made on account of Postpetition Interest on any Allowed Claim until such time as the holder of such
Allowed Claim provides any required Tax information, as described in greater detail in Section
VI.G.4.
100. Postpetition Interest Rate Determination Notice means a notice to be Filed with the
Bankruptcy Court and served on the Debtors at the addresses set forth in Section XI.H no later than
June 26, 2006 requesting that the Bankruptcy Court establish the applicable rate of Postpetition
Interest under Section I.A.99.f.ii for the Entity Filing such notice. The Postpetition Interest
Rate Determination Notice shall (a) identify the Claim and the requested rate of interest
applicable to such Claim and (b) attach documentation supporting the payment of such rate of
interest for each Claim. The procedures for resolving any disputes with respect to the interest
requested in such notice are addressed in Section IV.P.
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101. Predecessor in Interest means a predecessor in interest of any Debtor or Reorganized
Debtor to the extent such predecessor in interest is listed on Exhibit I.A.96 to the Plan.
102. Priority Claim means a Claim that is entitled to priority in payment pursuant to
section 507(a) of the Bankruptcy Code that is not an Administrative Claim or a Priority Tax Claim.
103. Priority Tax Claim means a Claim that is entitled to priority in payment pursuant to
section 507(a)(8) of the Bankruptcy Code.
104. Pro Rata means, when used with reference to a distribution of property pursuant to
Article III, proportionately so that with respect to a particular Allowed Claim, the ratio of
(a)(i) the amount of property distributed on account of such Claim to (ii) the amount of such
Claim, is the same as the ratio of (b)(i) the amount of property distributed on account of all
Allowed Claims of the Class in which such Claim is included to (ii) the amount of all Allowed
Claims in that Class.
105. Professional means any professional employed in the Reorganization Cases pursuant to
sections 327, 328, 363, 524(g)(4)(B)(i) or 1103 of the Bankruptcy Code or any professional or other
Entity seeking compensation or reimbursement of expenses in connection with the Reorganization
Cases pursuant to section 503(b)(4) of the Bankruptcy Code.
106. Protected Party means any of the following parties:
a. any Debtor, Reorganized Debtor or any Affiliate of the foregoing;
b. any former or present director, officer or employee of any Debtor, Reorganized
Debtor or any Affiliate of the foregoing but only in their capacity as such;
c. any stockholder of any Debtor but only in their capacity as such;
d. any Entity that, pursuant to the Plan or on or after the Effective Date, becomes a
direct or indirect transferee of, or successor to, any assets of any Debtor, Reorganized
Debtor or the Asbestos Personal Injury Trust (but only to the extent that liability is
asserted to exist by reason of it becoming such a transferee or successor);
e. any Entity that, pursuant to the Plan or on or after the Effective Date, makes a
loan to any Debtor, Reorganized Debtor or the Asbestos Personal Injury Trust or to a
successor to, or transferee of, any assets of any Debtor, Reorganized Debtor or the
Asbestos Personal Injury Trust (but only to the extent that liability is asserted to exist
by reason of such Entity becoming such a lender or to the extent any pledge of assets made
in connection with such a loan is sought to be upset or impaired);
f. any Entity to the extent such Entity is alleged to be directly or indirectly liable
for the conduct of, Claims against or Demands on any Debtor, Reorganized Debtor or the
Asbestos Personal Injury Trust to the extent that such alleged liability arises by reason
of one or more of the following:
i. such Entitys ownership of a financial interest in any Debtor, Reorganized
Debtor, a Past Affiliate, a present Affiliate of any Debtor or Reorganized Debtor,
or Predecessor in Interest;
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ii.
such Entitys involvement in the management of any Debtor, any Reorganized
Debtor or any Predecessor in Interest;
iii.
such Entitys service as an officer, director or employee of any Debtor,
any Reorganized Debtor, any Past Affiliate, any present Affiliate of any Debtor or
Reorganized Debtor, any Predecessor in Interest or any Entity that owns or at any
time has owned a financial interest in any Debtor, any Reorganized Debtor, any Past
Affiliate, any present Affiliate of any Debtor or Reorganized Debtor, or any
Predecessor in Interest; or
iv.
such Entitys involvement in a transaction changing the corporate
structure, or in a loan or other financial transaction affecting the financial
condition, of any Debtor, any Reorganized Debtor or any Past Affiliate, any present
Affiliate of any Debtor or Reorganized Debtor, any Predecessor in Interest or any
Entity that owns or at any time has owned a financial interest in any Debtor, any
Reorganized Debtor, any Past Affiliate, any present Affiliate of any Debtor or
Reorganized Debtor, or any Predecessor in Interest, including (A) involvement in
providing financing (debt or equity) or advice to an Entity
involved in such a transaction or (B) acquiring or selling a financial
interest in any Entity as part of such transaction; or
g. any Settling Insurer.
107. Quarterly Distribution Date means the last Business Day of the month following the end
of each calendar quarter after the Effective Date; provided, however, that if the Effective Date is
within 45 days of the end of a calendar quarter, the first Quarterly Distribution Date shall be the
last Business Day of the month following the end of the first calendar quarter after the calendar
quarter including the Effective Date.
108. Reclamation Claim means a Claim for reclamation in accordance with section 546(c) of
the Bankruptcy Code and section 2-702 of the Uniform Commercial Code.
109. Recovery Actions means, collectively and individually, preference actions, fraudulent
conveyance actions and other claims or causes of action under sections 510, 544, 547, 548, 549 and
550 of the Bankruptcy Code and other similar state law claims and causes of action.
110. Registration Rights Agreement means the Registration Rights Agreement, dated as of
January 30, 2006, between USG and the New Investor.
111. Registration Statement means the registration statement on Form S-1 filed by USG with
the Securities and Exchange Commission under the Securities Act of 1933 on March 3, 2006
(333-132203) relating to Additional Common Stock and any other securities issued in connection with
the Rights Offering, as it may be amended, modified or supplemented (including any post-effective
amendments).
112. Reinstated or Reinstatement means rendering a Claim or Interest unimpaired within the
meaning of section 1124 of the Bankruptcy Code. Unless the Plan specifies a particular method of
Reinstatement, when the Plan provides that a Claim or Interest will be Reinstated, such Claim or
Interest will be Reinstated, at the applicable Reorganized Debtors sole discretion, in accordance
with one of the following:
a. The legal, equitable and contractual rights to which such Claim or Interest
entitles the holder will be unaltered; or
13
b. Notwithstanding any contractual provision or applicable law that entitles the
holder of such Claim or Interest to demand or receive accelerated payment of such Claim or
Interest after the occurrence of a default:
i. any such default that occurred before or after the commencement of the
applicable Reorganization Case, other than a default of a kind specified in section
365(b)(2) of the Bankruptcy Code, will be cured;
ii. the maturity of such Claim or Interest as such maturity existed before
such default will be reinstated;
iii. the holder of such Claim or Interest will be compensated for any damages
incurred as a result of any reasonable reliance by such holder on such contractual
provision or such applicable law; and
iv. the legal, equitable or contractual rights to which such Claim or Interest
entitles the holder of such Claim or Interest will not otherwise be altered.
113. Reorganization Case means: (a) when used with reference to a particular Debtor, the
chapter 11 case pending for that Debtor in the Bankruptcy Court; and (b) when used with reference
to all Debtors, the chapter 11 cases pending for the Debtors in the Bankruptcy Court.
114. Reorganized . . . means, when used in reference to a particular Debtor, such Debtor on
and after the Effective Date.
115. Restructuring Transactions means, collectively, those mergers, consolidations,
restructurings, dispositions, liquidations or dissolutions that the Debtors or Reorganized Debtors
determine to be necessary or appropriate to effect a corporate restructuring of their respective
businesses or otherwise to simplify the overall corporate structure of the Reorganized Debtors.
116. Rights Offering means: (a) the offer and sale of Additional Common Stock pursuant to a
rights offering whereby each holder of Common Stock outstanding on the record date for such rights
offering will receive the right to purchase one share of Additional Common Stock at a price of
$40.00 for each share of Common Stock held on such record date, as described in the Equity
Commitment Agreement; or (b) if USG shall have determined in accordance with the terms of the
Equity Commitment Agreement not to proceed with a rights offering as described in (a), such
alternate offer and sale of Additional Common Stock pursuant to a rights offering, if any, that USG
has determined to pursue.
117. Rights Offering Documents means, collectively, the documents necessary for effectuating
the Rights Offering.
118. Schedules means the schedules of assets and liabilities and the statements of financial
affairs Filed by the Debtors on or about October 23, 2001 and October 24, 2001, as required by
section 521 of the Bankruptcy Code, as the same may have been or may be amended, restated, modified
or supplemented.
119. Secured Claim means a Claim (other than an Asbestos Personal Injury Claim) that is
secured by a lien on property in which an Estate has an interest or that is subject to setoff under
section 553 of the Bankruptcy Code, to the extent of the value of the Claim holders interest in
the applicable Estates interest in such property or to the extent of the amount subject to setoff,
as applicable, as determined pursuant to sections 506(a) and, if applicable, 1129(b) of the
Bankruptcy Code.
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120. Senior Note Claim means a Claim arising under the Senior Note Indenture.
121. Senior Note Indenture means that certain Indenture dated as of October 1, 1986, among
USG and the Senior Note Indenture Trustee, as amended or modified from time to time.
122. Senior Note Indenture Trustee means Harris Trust and Savings Bank, and its successors
and assigns.
123. Senior Notes mean, collectively, the notes governed by the Senior Note Indenture.
124. Settling Insurer means each Asbestos Personal Injury Insurance Asset Entity listed on
Exhibit I.A.14 (as the same may be amended, modified, or supplemented) that enters into a
settlement prior to the conclusion of the Confirmation Hearing that is: (a) sufficiently
comprehensive in the determination of the Debtors, the Asbestos Personal Injury Committee and the
Asbestos Personal Injury Futures Representative to warrant treatment of such Asbestos Personal
Injury Asset Entity as a Protected Party under section 524(g) of the Bankruptcy Code as to all or
certain of the Asbestos Personal Injury Claims which are channeled to the Asbestos Personal Injury
Trust; and (b) approved by the Bankruptcy Court.
125. Shareholders Agreement means the Shareholders Agreement, dated as of January 30,
2006, between USG and the New Investor.
126. Stock Interests of . . . means, when used with reference to a particular Debtor or
Debtors, the common stock, preferred stock, membership interests or partnership interests or
similar ownership interests, including options, warrants or rights to acquire or convert any such
interests, issued by such Debtor or Debtors.
127. Stipulation of Amount and Nature of Claim means a stipulation or other agreement
between the applicable Debtor or Reorganized Debtor and a holder of a Claim (other than an Asbestos
Personal Injury Claim) or Interest establishing the allowed amount or nature of such Claim or
Interest that is (a) entered into in accordance with any Claim settlement procedures established in
these
Reorganization Cases, (b) permitted or contemplated by the Plan or (c) approved by order of
the Bankruptcy Court.
128. Subsidiary Debtors means all of the Debtors other than USG.
129. Tax means (a) any net income, alternative or add-on minimum, gross income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise, profits, license, property,
environmental or other tax, assessment or charge of any kind whatsoever (together in each instance
with any interest, penalty, addition to tax or additional amount) imposed by any federal, state,
local or foreign taxing authority; or (b) any liability for payment of any amounts of the foregoing
types as a result of being a member of an affiliated, consolidated, combined or unitary group, or
being a party to any agreement or arrangement whereby liability for payment of any such amounts is
determined by reference to the liability of any other Entity.
130. Third Party Disbursing Agent means an Entity designated by Reorganized USG to act as a
Disbursing Agent pursuant to Section VI.B.
131. Timely Claim means a Claim (other than an Asbestos Personal Injury Claim) for which a
proof of Claim or request for payment of Administrative Claim was Filed by the applicable Bar Date
or is otherwise determined to be timely Filed by a Final Order of the Bankruptcy Court.
132. Trigger Date means the date that is 10 days (excluding Sundays) after final adjournment
sine die of the 109th Congress of the United States.
15
133. U.S. Trustee means the United States Trustee for the District of Delaware.
134. U.S. Gypsum means Debtor United States Gypsum Company, a Delaware corporation.
135. USG means Debtor USG Corporation, a Delaware corporation.
B. Rules of Interpretation and Computation of Time
1. Rules of Interpretation
For purposes of the Plan, unless otherwise provided herein: (a) whenever from the context it
is appropriate, each term, whether stated in the singular or the plural, shall include both the
singular and the plural; (b) unless otherwise provided in the Plan, any reference in the Plan to a
contract, instrument, release or other agreement or document being in a particular form or on
particular terms and conditions means that such document will be substantially in such form or
substantially on such terms and conditions; (c) any reference in the Plan to an existing document
or Exhibit Filed or to be Filed means such document or Exhibit, as it may have been or may be
amended, modified or supplemented pursuant to the Plan or Confirmation Order; (d) any reference to
an Entity as a holder of a Claim or Interest includes that Entitys successors, assigns and
affiliates; (e) all references in the Plan to Sections, Articles and Exhibits are references to
Sections, Articles and Exhibits of or to the Plan; (f) the words herein, hereunder and hereto
refer to the Plan in its entirety rather than to a particular portion of the Plan; (g) the words
includes or including are not limiting; (h) captions and headings to Articles and Sections are
inserted for convenience of reference only and are not intended to be a part of or to affect the
interpretation of the Plan; (i) subject to the provisions of any contract, certificates of
incorporation, by-laws, similar constituent documents, instrument, release or other agreement or
document entered into or delivered in connection with the Plan, the rights and obligations arising
under the Plan will be governed by, and construed and enforced in accordance with, federal law,
including the Bankruptcy Code and the Bankruptcy Rules; and (j) the rules of construction set forth
in section 102 of the Bankruptcy Code shall apply.
2. Computation of Time
In computing any period of time prescribed or allowed by the Plan, the provisions of
Bankruptcy Rule 9006(a) shall apply.
ARTICLE II.
CLASSES OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Claims and Priority Tax Claims, are placed in
the following Classes. In accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims, as described in Section III.A, have not been
classified and thus are excluded from the following Classes. A Claim or Interest is classified in
a particular Class only to the extent that the Claim or Interest qualifies within the description
of that Class and is classified in other Classes to the extent that any remainder of the Claim or
Interest qualifies within the description of such other Classes.
1. Class 1: Unsecured Priority Claims. Priority Claims against any Debtor.
2. Class 2: Secured Claims. Secured Claims against any Debtor.
3. Class 3: Credit Facilities Claims. Credit Facilities Claims against USG.
4. Class 4: Senior Note Claims. Senior Note Claims against USG.
16
5. Class 5: Industrial Revenue Bond Claims. Industrial Revenue Bond Claims against USG or
U.S. Gypsum.
6. Class 6: General Unsecured Claims. General Unsecured Claims against any Debtor.
7. Class 7: Asbestos Personal Injury Claims. Asbestos Personal Injury Claims against any
Debtor.
8. Class 8: Asbestos Property Damage Claims. Asbestos Property Damage Claims against any
Debtor.
9. Class 9: Environmental Claims. Environmental Claims against any Debtor.
10. Class 10: Intercompany Claims. Intercompany Claims against any Debtor.
11. Class 11: Subsidiary Debtor Stock Interests. Interests on account of the stock of any
Subsidiary Debtor.
12. Class 12: USG Stock Interests. Interests on account of the stock of USG.
ARTICLE III.
TREATMENT OF CLAIMS AND INTERESTS
A. Unclassified Claims
1. Payment of Administrative Claims
a. Administrative Claims in General
Except as specified in this Section III.A.1, and subject to the bar date provisions herein,
unless otherwise agreed by the holder of an Administrative Claim and the applicable Debtor or
Reorganized Debtor, each holder of an Allowed Administrative Claim shall receive, in full
satisfaction of its Administrative Claim, cash equal to the allowed amount of such Administrative
Claim either (i) as soon as practicable after the Effective Date or (ii) if the Administrative
Claim is not allowed as of the Effective Date, 30 days after the date on which an order allowing
such Administrative Claim becomes a Final Order or a Stipulation of Amount and Nature of Claim is
executed by the applicable Reorganized Debtor and the holder of the Administrative Claim.
b. Statutory Fees
On or before the Effective Date, Administrative Claims for fees payable pursuant to 28 U.S.C.
§ 1930, as determined at the Confirmation Hearing by the Bankruptcy Court or the District Court, as
applicable, shall be paid in cash equal to the amount of such Administrative Claims. All fees
payable pursuant to 28 U.S.C. § 1930 shall be paid by the Reorganized Debtors in accordance
therewith until the closing of the Reorganization Cases pursuant to section 350(a) of the
Bankruptcy Code.
c. Ordinary Course Liabilities
Administrative Claims based on liabilities incurred by a Debtor in the ordinary course of its
business, including Administrative Trade Claims, any Intercompany Claims that are Administrative
Claims, Administrative Claims of governmental units for Taxes (including Tax audit Claims related
to Tax years or portions thereof commencing after the Petition Date) and Administrative Claims
arising from those contracts and leases of the kind
17
described in Section V.F, shall be satisfied by the applicable Reorganized Debtor pursuant to
the terms and conditions of the particular transaction giving rise to such Administrative Claims,
without any further action by the holders of such Administrative Claims or further approval of the
Bankruptcy Court.
d. Claims Under the DIP Letter of Credit Facility
On the Effective Date or such later time as agreed to by the applicable Debtor and the DIP
Lender, (i) any allowed Administrative Claims under or evidenced by the DIP Letter of Credit
Facility shall be paid in full by the applicable Debtor and (ii) the DIP Lender shall (A) receive
cancellation without draw of all outstanding letters of credit issued under the DIP Letter of
Credit Facility or (B) have such letters of credit extended, refinanced or replaced in the ordinary
course of business on or after the Effective Date. The Debtors shall be authorized to take any
action necessary or appropriate to cancel, extend, refinance or replace the DIP Letter of Credit
Facility.
e. Bar Dates for Administrative Claims
i. General Bar Date Provisions
Except as otherwise provided in Section III.A.1.e.ii, unless previously Filed, requests for
payment of Administrative Claims must be Filed and served on the Reorganized Debtors, pursuant to
the procedures specified in the Confirmation Order and the notice of entry of the Confirmation
Order, no later than 60 days after the Effective Date. Holders of Administrative Claims that are
required to File and serve a request for payment of such Administrative Claims and that do not File
and serve such a request by the applicable Bar Date shall be forever barred from asserting such
Administrative Claims against the Debtors, the Reorganized Debtors or their respective property and
such Administrative Claims shall be deemed discharged as of the Effective Date. Objections to such
requests must be Filed and served on the requesting party by 120 days after the Effective Date.
ii. Bar Dates for Certain Administrative Claims
A. Professional Compensation
Professionals or other Entities asserting a Fee Claim for services rendered before the
Effective Date must File and serve on the Reorganized Debtors and such other Entities who are
designated by the Bankruptcy Rules, the Confirmation Order, the Fee Order or other order of the
Bankruptcy Court a Final Fee Application no later than 90 days after the Effective Date; provided,
however, that any professional who may receive compensation or reimbursement of expenses pursuant
to the Ordinary Course Professionals Order may continue to receive such compensation and
reimbursement of expenses for services rendered before the Effective Date, without further
Bankruptcy Court review or approval, pursuant to the Ordinary Course Professionals Order. A
Professional may include any outstanding, non-Filed monthly or interim request for payment of a Fee
Claim pursuant to the Fee Order in its Final Fee Application. Objections to any Final Fee
Application must be Filed and served on the Reorganized Debtors and the requesting party by the
later of (1) 120 days after the Effective Date or (2) 30 days after the Filing of the applicable
Final Fee Application. To the extent necessary, the Confirmation Order shall amend and supersede
any previously entered order of the Bankruptcy Court, including the Fee Order, regarding the
payment of Fee Claims. Any pending, Filed interim requests for a Fee Claim pursuant to the Fee
Order shall be resolved in the ordinary course in accordance with the Fee Order or, if sooner, in
connection with the particular Professionals Final Fee Application.
B. Ordinary Course Liabilities
Holders of Administrative Claims based on liabilities incurred by a Debtor in the ordinary
course of its business, including Administrative Trade Claims, any Intercompany Claims that are
Administrative Claims, Administrative Claims of governmental units for Taxes (including Tax audit
Claims relating to Tax years or portions
18
thereof commencing after the Petition Date) and Administrative Claims arising from those
contracts and leases of the kind described in Section V.F, shall not be required to File or serve
any request for payment of such Administrative Claims. Such Administrative Claims shall be
satisfied pursuant to Section III.A.1.c.
C. Claims Under the DIP Letter of Credit Facility
Holders of Administrative Claims under or evidenced by the DIP Letter of Credit Facility shall
not be required to File or serve any request for payment of such Claims. Such Administrative
Claims are allowed in the amount agreed upon between the Debtors and the DIP Lender and shall be
satisfied pursuant to Section III.A.1.d.
2. Payment of Priority Tax Claims
a. Priority Tax Claims
Pursuant to section 1129(a)(9)(C) of the Bankruptcy Code, unless otherwise agreed by the
holder of a Priority Tax Claim and the applicable Debtor or Reorganized Debtor, each holder of an
Allowed Priority Tax Claim shall receive, in full satisfaction of its Priority Tax Claim, payment
in full of the allowed amount of the Priority Tax Claim plus Postpetition Interest on the later of
the Effective Date or as soon as practicable after the date when such Claim becomes an Allowed
Claim.
b. Other Provisions Concerning Treatment of Priority Tax Claims
Notwithstanding the provisions of Section III.A.2.a, any Claim on account of any penalty
arising with respect to or in connection with an Allowed Priority Tax Claim that does not
compensate the holder for actual pecuniary loss shall be treated as a Class 6 Claim, and the holder
(other than as the holder of a Class 6 Claim) may not assess or attempt to collect such penalty
from the Reorganized Debtors or their respective property.
3. Disallowance of Reclamation Claims
All Reclamation Claims shall be disallowed on the Effective Date, any related adversary
proceedings shall be dismissed on the Effective Date and any Allowed Claims relating to the
provision of goods to the Debtors prior to the Petition Date shall be treated and paid as Class 6
Claims.
B. Classified Claims
1. Class 1 Claims (Priority Claims) are unimpaired. On the Effective Date, each holder of an
Allowed Claim in Class 1 shall receive cash in an amount equal to the Allowed Claim plus
Postpetition Interest on such Allowed Claim.
2. Class 2 Claims (Secured Claims) are unimpaired. On the Effective Date, unless otherwise
agreed by the holder of a Claim and the applicable Debtor or Reorganized Debtor, each holder of a
Claim in Class 2 shall receive treatment in accordance with Option A or B below, at the option of
the applicable Debtor or Reorganized Debtor. Any Allowed Deficiency Claim of a holder of an
Allowed Secured Claim shall be entitled to treatment as an Allowed Class 6 Claim.
Option A: Claims in Class 2 that are Allowed Claims and with respect to which the
applicable Debtor or Reorganized Debtor elects Option A shall be paid in full
in cash plus Postpetition Interest on such Allowed Claim by such Reorganized
Debtor, unless the holder of such Claim agrees to less favorable treatment.
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Option B: Claims in Class 2 that are Timely Claims and with respect to which the
applicable Debtor or Reorganized Debtor elects Option B shall be Reinstated.
3. Class 3 Claims (Credit Facilities Claims) are unimpaired. Credit Facilities Claims shall
be allowed in the aggregate amount (including accrued interest through the Petition Date) of
$471,009,479 as of the Petition Date. On the Effective Date, each holder of an Allowed Credit
Facilities Claim shall receive cash in an amount equal to a Pro Rata share of (a) $471,009,479 and
(b) Postpetition Interest on such Allowed Claim. In addition, the Debtors or Reorganized Debtors,
as applicable, shall pay any fees and charges arising under the applicable Credit Facilities,
including any agent fees, applicable letter of credit fees and reasonable legal fees, through the
Effective Date. Any letter of credit under the Credit Facilities outstanding as of the Effective
Date shall be cash-collateralized, refinanced, canceled or replaced in the ordinary course on or
after the Effective Date. The Debtors shall be authorized to take any action necessary or
appropriate to cash-collateralize, refinance, cancel or replace any letter of credit under the
Credit Facilities. Exhibit III.B contains a breakdown of certain components of the Credit
Facilities Claims, including the principal, accrued interest through the Petition Date and accrued
interest through March 31, 2006.
4. Class 4 Claims (Senior Note Claims) are unimpaired. Senior Note Claims shall be allowed in
the aggregate amount (including accrued interest through the Petition Date) of $289,250,578 as of
the Petition Date. On the Effective Date, each holder of an Allowed Senior Note Claim shall
receive cash in an amount equal to a Pro Rata share of (a) $289,250,578 and (b) Postpetition
Interest on such Allowed Claim. In addition, on the Effective Date and in lieu of any claim for
substantial contribution by or on behalf of any Senior Note Indenture Trustee, the Debtors or
Reorganized Debtors, as applicable, shall pay to any Senior Note Indenture Trustee cash in an
amount equal to the reasonable and documented fees and expenses (including reasonable legal fees)
of such Senior Note Indenture Trustee to the extent payable under the applicable Senior Note
Indenture. Until the Senior Note Indenture Trustees fees and expenses are paid in full, nothing
in this Plan shall in any way impair, waive or discharge any charging lien provided by the
applicable Senior Note Indenture. Exhibit III.B contains a breakdown of certain components of the
Senior Note Claims, including the principal, accrued interest through the Petition Date and accrued
interest through March 31, 2006.
5. Class 5 Claims (Industrial Revenue Bond Claims) are unimpaired. Industrial Revenue Bond
Claims shall be allowed as of the Petition Date in such amounts as set forth on Exhibit I.A.80. On
the Effective Date, unless otherwise agreed by the applicable Industrial Revenue Bond Indenture
Trustee and the applicable Debtor or Reorganized Debtor, each holder of a Claim in Class 5 shall
receive treatment in accordance with Option A or B below as indicated and more fully described on
Exhibit I.A.80.
Option A: Claims in Class 5 that are Allowed Claims and with respect to which the
applicable Debtor or Reorganized Debtor elects Option A shall be paid in full
in cash (including any applicable prepayment premium) plus Postpetition
Interest on such Allowed Claim by such Reorganized Debtor, unless the holder
of such Claim agrees to less favorable treatment.
Option B: Claims in Class 5 with respect to which the applicable Debtor or
Reorganized Debtor elects Option B shall be Reinstated in accordance with the
terms of the relevant Industrial Revenue Bond Indenture.
In addition, on the Effective Date and in lieu of any claim for substantial contribution by or on
behalf of the Industrial Revenue Bond Indenture Trustees, the Debtors or Reorganized Debtors, as
applicable, shall pay to any Industrial Revenue Bond Indenture Trustee cash in an amount equal to
the reasonable and documented fees and expenses (including reasonable legal fees) of such
Industrial Revenue Bond Indenture Trustees to the extent payable under the applicable Industrial
Revenue Bond Indentures. Until each Industrial Revenue Bond Indenture Trustees fees and expenses
are paid in full, nothing in this Plan shall in any way impair, waive or discharge any charging
lien provided by the applicable Industrial Revenue Bond Indenture and its related agreements.
Exhibit III.B contains a
20
breakdown of certain components of the Industrial Revenue Bond Claims, including the principal,
accrued interest through the Petition Date, accrued interest through March 31, 2006 and, if
applicable, any prepayment premium.
6. Class 6 Claims (General Unsecured Claims) are unimpaired. On the Effective Date, Claims in
Class 6 (other than Litigation Claims) that are Allowed Claims shall be paid in full in cash plus
Postpetition Interest on such Allowed Claim, unless the holder of such Claim agrees to less
favorable treatment. To the extent any holder of a Class 6 Claim (other than Litigation Claims)
believes that it is entitled to Postpetition Interest at an interest rate other than the rate
described in Section I.A.99.f.i, the holder of such Claim must timely File a Postpetition Interest
Rate Determination Notice no later than June 26, 2006. Failure to File a timely Postpetition
Interest Rate Determination Notice will be deemed an agreement to accept Postpetition Interest as
described in Section I.A.99.f.i. Section IV.P provides the procedure for Filing Postpetition
Interest Rate Determination Notices and resolving disputes relating to any Postpetition Interest
Rate Determination Notice. On the Effective Date, any unliquidated or disputed Litigation Claims
that are Timely Claims shall be Reinstated in accordance with Section VII.A.3. Litigation Claims
that have been liquidated by agreement of the parties prior to the Effective Date shall be paid in
cash on the Effective Date as provided in the parties agreement.
7. Class 7 Claims (Asbestos Personal Injury Claims) are impaired. On the Effective Date, all
Asbestos Personal Injury Claims shall be channeled to the Asbestos Personal Injury Trust, which
shall be funded pursuant to Section IV.G. All Asbestos Personal Injury Claims shall be determined
and paid pursuant to the terms of the Asbestos Personal Injury Trust Agreement and the Asbestos
Personal Injury Trust Distribution Procedures. Pursuant to section 524(g) of the Bankruptcy Code,
the Plan and the Confirmation Order shall permanently and forever stay, restrain and enjoin any
Entity from taking any actions against any Protected Party for the purpose of, directly or
indirectly, collecting, recovering or receiving payment of, on or with respect to any Asbestos
Personal Injury Claim, all of which shall be channeled to the Asbestos Personal Injury Trust for
resolution as set forth in the Asbestos Personal Injury Trust Agreement and the related Asbestos
Personal Injury Trust Distribution Procedures, including:
a. commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including a judicial, arbitral, administrative or other
proceeding) in any forum against any Protected Party or any property or interests in
property of any Protected Party;
b. enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Protected Party or any property or
interests in property of any Protected Party;
c. creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Protected Party or any property or interests in property of any
Protected Party;
d. setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any liability
owed to any Protected Party or any property or interests in property of any Protected Party;
and
e. proceeding in any manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust, except in conformity and
compliance therewith.
Nothing contained herein shall constitute or be deemed a waiver of any claim, right or cause of
action that any Debtor, Reorganized Debtor or the Asbestos Personal Injury Trust may have against
any Entity in connection with or arising out of an Asbestos Personal Injury Claim, and the
injunction shall not apply to the assertion of any such claim, right or cause of action by any
Debtor, Reorganized Debtor or the Asbestos Personal Injury Trust.
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8. Class 8 Claims (Asbestos Property Damage Claims) are unimpaired. On the Effective Date,
any unliquidated or disputed Asbestos Property Damage Claims that are Timely Claims shall be
Reinstated in accordance with Section VII.A.3. Asbestos Property Damage Claims that have been
liquidated by agreement of the parties prior to the Effective Date shall be paid in cash on the
Effective Date as provided in the parties agreement.
9. Class 9 Claims (Environmental Claims) are unimpaired. On the Effective Date, Environmental
Claims shall be Reinstated.
10. Class 10 Claims (Intercompany Claims) are unimpaired. On the Effective Date, Intercompany
Claims shall be Reinstated.
11. Class 11 Interests (Stock Interests of Subsidiary Debtors) are unimpaired. On the
Effective Date, Stock Interests of Subsidiary Debtors shall be Reinstated.
12. Class 12 Interests (Stock Interests of USG) are unimpaired. On the Effective Date, Stock
Interests of USG shall be Reinstated, and the holders of Stock Interests of USG shall retain such
Interests.
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors
Except as otherwise provided herein (and subject to the Restructuring Transaction provisions
of Section IV.B), each Debtor will, as a Reorganized Debtor, continue to exist after the Effective
Date as a separate corporate Entity, with all the powers of a corporation under applicable law and
without prejudice to any right to alter or terminate such existence (whether by merger, dissolution
or otherwise) under applicable state law. Except as otherwise provided herein, as of the Effective
Date, all property of the respective Estates of the Debtors, and any property acquired by a Debtor
or Reorganized Debtor under the Plan, will vest in the applicable Reorganized Debtor, free and
clear of all Claims, liens, charges, other encumbrances and Interests. On and after the Effective
Date, each Reorganized Debtor may operate its businesses and may use, acquire and dispose of
property and compromise or settle any Claims without supervision or approval by the Bankruptcy
Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan or the Confirmation Order. Without limiting the
foregoing, each Reorganized Debtor may pay the charges that it incurs on or after the Effective
Date for Professionals fees, disbursements, expenses or related support services (including fees
relating to the preparation of Final Fee Applications) without application to the Bankruptcy Court.
B. Restructuring Transactions
1. Restructuring Transactions Generally
On or after the Confirmation Date, the applicable Debtors or Reorganized Debtors may enter
into such Restructuring Transactions and may take such actions as the Debtors or Reorganized
Debtors may determine to be necessary or appropriate to effect a corporate restructuring of their
respective businesses or simplify the overall corporate structure of the Reorganized Debtors, all
to the extent not inconsistent with any other terms of the Plan. Such Restructuring Transactions
may include one or more mergers, consolidations, restructurings, dispositions, liquidations or
dissolutions, as may be determined by the Debtors or the Reorganized Debtors to be necessary or
appropriate. The actions to effect these transactions may include: (a) the execution and delivery
of appropriate agreements or other documents of merger, consolidation, restructuring, disposition,
liquidation or dissolution containing terms that are consistent with the terms of the Plan and that
satisfy the applicable requirements of applicable state law and such other terms to which the
applicable Entities may agree; (b) the execution and delivery
22
of appropriate instruments of transfer, assignment, assumption or delegation of any asset,
property, right, liability, duty or obligation on terms consistent with the terms of the Plan and
having such other terms to which the applicable Entities may agree; (c) the filing of appropriate
certificates or articles of merger, consolidation, dissolution or change in corporate form pursuant
to applicable state law; and (d) the taking of all other actions that the applicable Entities
determine to be necessary or appropriate, including making filings or recordings that may be
required by applicable state law in connection with such transactions.
2. Obligations of Any Successor Corporation in a Restructuring Transaction
The Restructuring Transactions may include one or more mergers, consolidations,
restructurings, dispositions, liquidations or dissolutions, as may be determined by the Debtors or
Reorganized Debtors to be necessary or appropriate to result in substantially all of the respective
assets, properties, rights, liabilities, duties and obligations of certain of the Reorganized
Debtors vesting in one or more surviving, resulting or acquiring corporations. In each case in
which the surviving, resulting or acquiring corporation in any such transaction is a successor to a
Reorganized Debtor, such surviving, resulting or acquiring corporation 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 in any contract, instrument or other
agreement or document effecting a disposition to such surviving, resulting or acquiring
corporation, which may provide that another Reorganized Debtor will perform such obligations.
C. |
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Corporate Governance, Directors and Officers, Employment-Related Agreements and Compensation
Programs and Corporate Action |
1. Certificates of Incorporation and By-Laws of the Reorganized Debtors
As of the Effective Date, the certificates of incorporation and the by-laws (or comparable
constituent documents) of Reorganized USG and the Reorganized Subsidiary Debtors will be
substantially in the forms of Exhibits IV.C.1.a and IV.C.1.b, respectively, with such changes as
may be necessary to conform to the applicable law of the state of incorporation. The initial
certificates of incorporation and by-laws or similar constituent documents of each Reorganized
Debtor, among other things, will prohibit the issuance of nonvoting equity securities to the extent
required by section 1123(a) of the Bankruptcy Code. After the Effective Date or the effective time
of any applicable Restructuring Transaction, each such Entity may amend and restate its
certificates of incorporation or by-laws (or comparable constituent documents) as permitted by
applicable state law, subject to the terms and conditions of such constituent documents.
2. 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, the initial board of directors and the officers of each of the Reorganized Debtors
will consist of the directors and the officers of such Debtor immediately prior to the Effective
Date. Each such director and officer will serve from and after the Effective Date until his or her
successor is duly elected or appointed and qualified or until his or her earlier death, resignation
or removal in accordance with the terms of the certificate of incorporation and bylaws (or
comparable constituent documents) of the respective Reorganized Debtor and state law. A schedule
of the annual compensation to be paid to persons serving as executives, officers and directors as
of the Effective Date is set forth on Exhibit IV.C.2.
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3. |
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New Employment, Retirement, Indemnification and Other Related Agreements and
Incentive Compensation Programs |
As of the Effective Date, the Reorganized Debtors shall have authority, as determined by
Reorganized USGs board of directors, to: (a) maintain, amend or revise existing employment,
retirement, welfare, incentive,
23
severance, indemnification and other agreements with their active and retired directors,
officers and employees, subject to the terms and conditions of any such agreement; (b) enter into
new employment, retirement, welfare, incentive, severance, indemnification and other agreements for
active and retired employees; and (c) enter into and implement the Long Term Incentive Plan and the
Management Incentive Plan.
4. Corporate Action
Pursuant to section 1142 of the Bankruptcy Code and section 303 of the Delaware General
Corporation Law and any comparable provisions of the business corporation law of any other state,
the following (which will occur and be deemed effective as of the date specified in the documents
effectuating the same or, if no date is so specified, the Effective Date) shall be authorized and
approved in all respects and for all purposes without any requirement of further action by
stockholders or directors of any of the Debtors or the Reorganized Debtors or any other person or
entity: the Restructuring Transactions; the adoption of new or amended and restated certificates
of incorporation and by-laws or similar constituent documents for the Reorganized Debtors; the
initial selection of directors and officers for the Reorganized Debtors; the Distribution of cash
pursuant to the Plan; the issuance and Distribution of the Note and the Contingent Payment Note
pursuant to the Plan; the entry into and performance under the Rights Offering Documents; the
performance under the New Investor Documents; the issuance and sale of Additional Common Stock
pursuant to the Rights Offering; the filing of the Registration Statement; the adoption, execution,
delivery and implementation of all contracts, leases, instruments, releases and other agreements or
documents related to any of the foregoing; the adoption, execution and implementation of
employment, retirement and indemnification agreements, incentive compensation programs, retirement
income plans, welfare benefit plans and other employee plans and related agreements, including the
Long Term Incentive Plan and the Management Incentive Plan; and other matters involving the
corporate structure of any Debtor or Reorganized Debtor or corporate action to be taken by or
required of any Debtor or Reorganized Debtor.
D. |
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Obtaining Cash for Plan Distributions and Transfers of Funds Among the Debtors and the
Reorganized Debtors |
The Debtors or Reorganized Debtors, as applicable, are authorized to execute and deliver any
documents necessary or appropriate to obtain cash for funding the Plan and the Asbestos Personal
Injury Trust. All cash necessary for the Reorganized Debtors to make payments pursuant to the Plan
and fund the Asbestos Personal Injury Trust will be obtained through a combination of one or more
of the following: (1) the Reorganized Debtors and certain nondebtors cash balances and
operations; (2) the Rights Offering to be commenced on or shortly after the Effective Date; (3) the
proceeds of tax refunds; (4) one or more debt offerings; or (5) any other means of financing or
funding that the Debtors or the Reorganized Debtors determine is necessary or appropriate. Cash
payments to be made pursuant to the Plan will be made by Reorganized USG; provided, however, that
the Debtors and the Reorganized Debtors will be entitled to transfer funds between and among
themselves as they determine to be necessary or appropriate to enable Reorganized USG to satisfy
the Reorganized Debtors obligations under the Plan. Any Intercompany Claims resulting from such
transfers will be accounted for and settled in accordance with the Debtors historical intercompany
account settlement practices.
E. Creation of Asbestos Personal Injury Trust
As of the Effective Date, the Asbestos Personal Injury Trust shall be created. The Asbestos
Personal Injury Trust is intended to be a qualified settlement fund within the meaning of the
Treasury Regulations issued under section 468B of the Internal Revenue Code. The purpose of the
Asbestos Personal Injury Trust shall be to, among other things: (1) direct the processing,
liquidation and payment of all Asbestos Personal Injury Claims in accordance with the Plan, the
Asbestos Personal Injury Trust Distribution Procedures and the Confirmation Order; (2) preserve,
hold, manage and maximize the assets of the Asbestos Personal Injury Trust for use in paying and
satisfying Asbestos Personal Injury Claims; and (3) qualify at all times as a qualified settlement
fund.
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F. Appointment of Asbestos Personal Injury Trustees
On the Confirmation Date, effective as of the Effective Date, in accordance with the Asbestos
Personal Injury Trust Agreement and the Asbestos Personal Injury Trust Distribution Procedures, the
individuals selected jointly by the Asbestos Personal Injury Committee and the Asbestos Personal
Injury Futures Representative (as identified in Exhibit IV.F), after consultation with the Debtors,
shall be appointed to serve as the Asbestos Personal Injury Trustees for the Asbestos Personal
Injury Trust.
G. |
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Transfers of Property to and Assumption of Certain Liabilities by the Asbestos Personal
Injury Trust. |
1. Transfer of Books and Records to the Asbestos Personal Injury Trust
On the Effective Date or as soon thereafter as is reasonably practicable, at the sole cost and
expense of the Asbestos Personal Injury Trust and in accordance with written instructions provided
to the Reorganized Debtors by the Asbestos Personal Injury Trust, the Reorganized Debtors shall
transfer and assign, or cause to be transferred and assigned, to the Asbestos Personal Injury Trust
copies of those books and records agreed upon by the parties that pertain directly to Asbestos
Personal Injury Claims that have been asserted against any Debtor. In furtherance of this Section
IV.G.1, the Reorganized Debtors and the Asbestos Personal Injury Trust may enter into the
Cooperation Agreement in the form of Exhibit IV.G.1. Pursuant to the Plan and the Confirmation
Order, to the extent the Debtors provide any privileged books and records, such transfer shall not
result in the destruction or waiver of any applicable privileges pertaining to such books and
records. If the preservation of privilege pertaining to such books and records is challenged or
disapproved by the Bankruptcy Court or the District Court and if the Asbestos Personal Injury Trust
determines that it needs access to such information, the Reorganized Debtors will, at the sole cost
and expense of the Asbestos Personal Injury Trust, retain the books and records and enter into
arrangements to permit the Asbestos Personal Injury Trust to have access to such books and records,
to the extent such access does not result in the destruction or waiver of any applicable
privileges. If the Asbestos Personal Injury Trust does not issue written instructions for the
transfer or retention of such books and records within 180 days after the Effective Date, or if the
Asbestos Personal Injury Trust so requests, the Reorganized Debtors may (and shall, if the Asbestos
Personal Injury Trust so requests, but at the sole cost and expense of the Asbestos Personal Injury
Trust), destroy any such books and records, and the order of the Bankruptcy Court or the District
Court entered during the Reorganization Cases with respect to the retention of books and records
shall be deemed superseded by this section of the Plan.
2. Funding the Asbestos Personal Injury Trust
a. On the Effective Date, the Reorganized Debtors (i) will pay $890 million in cash to
the Asbestos Personal Injury Trust and (ii) issue the Note, the terms and provisions of
which shall be reasonably acceptable to the Debtors, the Asbestos Personal Injury Committee,
the Asbestos Personal Injury Committee Members Counsel and the Asbestos Personal Injury
Futures Representative.
b. On the Effective Date, the Reorganized Debtors will provide the Contingent Payment
Note, the terms and provisions of which shall be reasonably acceptable to the Debtors, the
Asbestos Personal Injury Committee, the Asbestos Personal Injury Committee Members Counsel
and the Asbestos Personal Injury Futures Representative and the payment of which shall only
be subject to the Condition Precedent; provided, however, that:
i. If the FAIR Act is not enacted and made law on or before the Trigger Date,
the obligations under the Contingent Payment Note shall vest and the Reorganized
Debtors shall satisfy the Contingent Payment Note as set forth in Section IV.G.2.c
below.
25
ii. If the FAIR Act is enacted and made law on or before the Trigger Date, and
is not subject to a Challenge Proceeding on or before 60 days after the Trigger
Date, the obligations under the Contingent Payment Note shall not vest and the
Contingent Payment Note will be fully canceled.
iii. If the FAIR Act is enacted and made law on or before the Trigger Date, but
is subject to a Challenge Proceeding as of 60 days after the Trigger Date, the
obligations under the Contingent Payment Note shall not vest, subject to the
resolution of the Challenge Proceeding by a Final Order as follows:
(a) If the Challenge Proceeding is resolved by a Final Order such that
the FAIR Act is unconstitutional in its entirety or as applied to debtors in
chapter 11 cases whose plans of reorganization have not yet been confirmed
and become substantially consummated (i.e., debtors that are then similarly
situated to the Debtors as of February 1, 2006 (in a chapter 11 case with a
plan of reorganization that has not yet been confirmed)), so that such
debtors will not be subject to the FAIR Act, then the obligations under the
Contingent Payment Note shall vest and the Reorganized Debtors shall satisfy
the Contingent Payment Note, with the first payment of $1.9 billion being
due within 30 days after such Final Order and the second payment of $1.15
billion being due within 180 days after such Final Order.
(b) If the Challenge Proceeding is resolved by a Final Order in a
manner other than as contemplated by the immediately preceding clause (a),
then the obligations under the Contingent Payment Note shall not vest and
the Contingent Payment Note will be fully canceled.
c. If the Condition Precedent is met, subject to Section IV.G.2.b.iii, then $1.9
billion of the Contingent Payment Note will be payable within 30 days after the Trigger
Date, with the remaining $1.15 billion of the Contingent Payment Note payable within 180
days after the Trigger Date.
d. Until such time as the Contingent Payment Note is either paid in full or canceled,
Reorganized USG will not declare any dividend to the holders of its stock or repurchase its
stock in an amount that exceeds $150 million.
e. As set forth in more detail in the Contingent Payment Note, until such time as the
Contingent Payment Note is either paid in full or canceled, the amount of the Reorganized
Debtors indebtedness that is senior to the Contingent Payment Note (through any combination
of the granting of security or subordination) will be limited to:
i. an exit financing facility in an amount not to exceed $750 million;
ii. amounts necessary to fund any Plan Distributions, after taking into account
available cash, including payments to the Asbestos Personal Injury Trust (including
payments on the Note and the Contingent Payment Note), payments to unsecured
creditors and payments to holders of Asbestos Property Damage Claims;
iii. amounts necessary to fund the operations, capital expenditures and working
capital of the Reorganized Debtors;
iv. other customary items such as leases, hedging, interest rate protection,
taxes and similar items;
26
v. $125 million general basket; and
vi. any refinancing of the above.
3. Transfer of the Asbestos Personal Injury Insurance Asset
On the Effective Date, the Reorganized Debtors shall transfer to the Asbestos Personal Injury
Trust the Asbestos Personal Injury Insurance Asset.
4. Assumption of Certain Liabilities by the Asbestos Personal Injury Trust
In consideration for the property transferred to the Asbestos Personal Injury Trust pursuant
to Section IV.G.2 hereof and in furtherance of the purposes of the Asbestos Personal Injury Trust
and the Plan, the Asbestos Personal Injury Trust shall assume all Liabilities and responsibility
for all Asbestos Personal Injury Claims, and the Reorganized Debtors shall have no further
financial or other responsibility or liability therefor. The Asbestos Personal Injury Trust also
shall assume all liability for premiums, deductibles, retrospective premium adjustments, security
or collateral arrangements, or any other charges, costs, fees or expenses (if any) that become due
to any insurer in connection with the Asbestos Personal Injury Insurance Asset as a result of
Asbestos Personal Injury Claims against Entities insured under policies included in the Asbestos
Personal Injury Insurance Asset by reason of vendors endorsements, or under the indemnity
provisions of settlement agreements that any Debtor made with various insurers prior to the
Petition Date to the extent that those indemnity provisions relate to Asbestos Personal Injury
Claims, and the Reorganized Debtors shall have no further financial or other responsibility or
liability for any of the foregoing. Except as otherwise provided in the Plan, the Asbestos
Personal Injury Trust Agreement and the Asbestos Personal Injury Trust Distribution Procedures, the
Asbestos Personal Injury Trust shall have all defenses, cross-claims, offsets and recoupments, as
well as rights of indemnification, contribution, subrogation and similar rights, regarding such
Asbestos Personal Injury Claims that the Debtors or the Reorganized Debtors have or would have had
under applicable law.
5. Indemnification by the Asbestos Personal Injury Trust
The Asbestos Personal Injury Trust shall protect, defend, indemnify and hold harmless, to the
fullest extent permitted by applicable law, each Protected Party from and against any Asbestos
Personal Injury Claim and any related damages.
6. Cooperation with Respect to Insurance Matters
The Reorganized Debtors shall cooperate with the Asbestos Personal Injury Trust and use
commercially reasonable efforts to take or cause to be taken all appropriate actions and to do or
cause to be done all things necessary or appropriate to effectuate the transfer of the Asbestos
Personal Injury Insurance Asset to the Asbestos Personal Injury Trust. By way of enumeration and
not of limitation, the Reorganized Debtors shall be obligated: (a) to provide the Asbestos
Personal Injury Trust with copies of insurance policies, other coverage agreements and settlement
agreements included within or relating to the Asbestos Personal Injury Insurance Asset; (b) to
provide the Asbestos Personal Injury Trust with information necessary or helpful to the Asbestos
Personal Injury Trust in connection with its efforts to obtain insurance and other coverage for
Asbestos Personal Injury Claims; and (c) to execute further assignments or allow the Asbestos
Personal Injury Trust to pursue claims relating to the Asbestos Personal Injury Insurance Asset in
its name (subject to appropriate disclosure of the fact that the Asbestos Personal Injury Trust is
doing so and the reasons why it is doing so), including by means of arbitration, alternative
dispute resolution proceedings or litigation, to the extent necessary or helpful to the efforts of
the Asbestos Personal Injury Trust to obtain insurance and other coverage under the Asbestos
Personal Injury Insurance Asset for Asbestos Personal Injury Claims. To the extent that the
transfer of the Asbestos Personal Injury Insurance Asset to the Asbestos Personal Injury Trust is
determined to be invalid, ineffective or in violation of the Asbestos Personal Injury
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Insurance Asset by a court or arbitrator of competent jurisdiction, upon the request of the
Asbestos Personal Injury Trust, the Reorganized Debtors shall (a) pursue any rights to the Asbestos
Personal Injury Insurance Asset for the benefit of, and to the fullest extent required by, the
Asbestos Personal Injury Trust and (b) immediately transfer any amounts recovered under or on
account of the Asbestos Personal Injury Insurance Asset to the Asbestos Personal Injury Trust. The
Asbestos Personal Injury Trust shall be obligated to compensate the Reorganized Debtors for costs
reasonably incurred in connection with providing assistance to the Asbestos Personal Injury Trust
or in pursuing recovery for the benefit of the Asbestos Personal Injury Trust pursuant to this
Section IV.G.6, including out-of-pocket costs and expenses, consultant fees and attorneys fees.
7. Authority of the Reorganized Debtors
Effective on the Confirmation Date, the Reorganized Debtors shall be empowered and authorized
to take or cause to be taken, prior to the Effective Date, all actions necessary or appropriate to
enable them to implement effectively the provisions of the Plan and the Asbestos Personal Injury
Trust Agreement.
H. Preservation of Rights of Action; Settlement of Claims and Releases
1. Preservation of Rights of Action by the Debtors and the Reorganized Debtors
Except as provided in the Plan or in any contract, instrument, release or other agreement
entered into or delivered in connection with the Plan, in accordance with section 1123(b) of the
Bankruptcy Code and to the fullest extent possible under applicable law, the Reorganized Debtors
shall retain and may enforce, and shall have the sole right to enforce, any claims, demands, rights
and causes of action that any Debtor or Estate may hold against any Entity, including any Recovery
Actions. The Reorganized Debtors or their successors may pursue such retained claims, demands,
rights or causes of action, as appropriate, in accordance with the best interests of the
Reorganized Debtors or their successors holding such claims, demands, rights or causes of action.
Further, the Reorganized Debtors retain their right to File and pursue, and shall have the sole
right to File and pursue, any adversary proceedings against any trade creditor or vendor related to
debit balances or deposits owed to any Debtor. Notwithstanding the foregoing, on the Effective
Date, the Reorganized Debtors shall be deemed to waive and release any Recovery Actions arising
under section 547 of the Bankruptcy Code relating to preferential transfers held by any Debtor or
its Estate or any Reorganized Debtor against any Entity, and any adversary proceeding Filed on
account of such Recovery Actions arising under section 547 of the Bankruptcy Code shall be
dismissed. A nonexclusive schedule of currently pending actions and claims brought by one or more
of the Debtors is attached as Exhibit IV.H.1. In accordance with and subject to any applicable
law, the Debtors inclusion or failure to include any right of action or claim on Exhibit IV.H.1
shall not be deemed an admission, denial or waiver of any claims, demands, rights or causes of
action that any Debtor or Estate may hold against any Entity.
2. 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, including the releases set forth in Section
IV.H.3, shall 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 Claim,
Asbestos Personal Injury Claim or Interest or any Distribution to be made pursuant to the Plan on
account of any Allowed Claim, Asbestos Personal Injury Claim or Interest. The entry of the
Confirmation Order shall constitute the Bankruptcy Courts approval, as of the Effective Date, of
the compromise or settlement of all such claims or controversies and the Bankruptcy Courts finding
that such compromise or settlement is in the best interests of the Debtors, the Reorganized Debtors
and their respective property and Claim and Interest holders and is fair, equitable and reasonable.
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3. Releases
a. General Releases of Debtors and Reorganized Debtors
Except as otherwise expressly set forth in the Plan, on and after the Effective Date, the
Debtors are released from all Liabilities from the beginning of time.
b. Release by the Debtors and Reorganized Debtors
i. Without limiting any applicable provisions of or releases contained in the
Plan, as of the Effective Date, the Debtors and the Reorganized Debtors, on behalf
of themselves and their affiliates, the Estates and their respective successors,
assigns and any and all Entities who may purport to claim by, through, for or
because of them, shall be deemed to forever release, waive and discharge all claims,
obligations, suits, judgments, damages, demands, debts, rights, causes of action and
liabilities, whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter
arising in law, equity or otherwise, that are based in whole or in part on any act,
omission, transaction or other occurrence taking place on or prior to the Effective
Date in any way relating to any Debtor, the Reorganization Cases or the Plan that
such Entity has, had or may have against each of the present or former directors or
officers of the Debtors acting in such capacity.
ii. Without limiting any applicable provisions of or releases contained in the
Plan, as of the Effective Date, the Debtors and the Reorganized Debtors, on behalf
of themselves and their affiliates, the Estates and their respective successors,
assigns and any and all Entities who may purport to claim by, through, for or
because of them, shall be deemed to forever release, waive and discharge the New
Investor and its affiliates, and their respective officers, directors, employees,
subsidiaries, members, managers, agents, attorneys, representatives and advisors
from all claims, obligations, suits, judgments, damages, demands, debts, rights,
causes of action and liabilities, whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then
existing or thereafter arising in law, equity or otherwise, that are based in whole
or in part on any act, omission, transaction or other occurrence taking place on or
prior to the Effective Date, arising from, or related to such parties participation
in the Equity Committee, the Reorganization Cases, the Plan, the Rights Offering or
the New Investor Documents, other than such parties contractual liability to the
Debtors pursuant to the New Investor Documents and any exhibit or attachment
thereto.
c. General Releases by Holders of Claims or Interests
Without limiting any other applicable provisions of, or releases contained in, the Plan or the
Bankruptcy Code, as of the Effective Date, in consideration for, among other things, the
obligations of the Debtors and the Reorganized Debtors under the Plan, the Note, the Contingent
Payment Note, the New Investor Documents, cash and other contracts, instruments, releases,
agreements or documents to be entered into or delivered in connection with the Plan, each holder of
a Claim or Interest that votes in favor of the Plan shall be deemed to forever release, waive and
discharge all Liabilities in any way relating to any Debtor, the Reorganization Cases or the Plan
that such Entity has, had or may have against any Debtor, any Reorganized Debtor, the New Investor
and each of their respective present or former directors, officers, employees, subsidiaries,
predecessors, successors, members, attorneys, accountants, underwriters, investment bankers,
financial advisors, appraisers, representatives and agents, acting in such capacity (which release
shall be in
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addition to the discharge of Claims provided herein and under the Confirmation Order and the
Bankruptcy Code).
d. Injunction Related to Releases
As further provided in Section IX.B, the Confirmation Order shall permanently enjoin the
commencement or prosecution by any Entity, whether directly, derivatively or otherwise, of any
Liabilities released pursuant to the Plan.
I. Continuation of Certain Employee, Retiree and Workers Compensation Benefits
1. Employee Benefits
From and after the Effective Date, the Reorganized Debtors intend to continue (or continue as
modified or replaced) their existing employee benefit policies, plans and agreements, including:
(a) medical, dental, life, travel accident and accidental death and dismemberment insurance; (b)
sick pay, short-term disability pay and long-term disability insurance; (c) vacation and holiday
pay; (d) bonus and severance programs; (e) tuition assistance policies; and (f) qualified deferred
compensation plans.
2. Retiree Benefits
From and after the Effective Date, the Reorganized Debtors shall be obligated to pay retiree
benefits (as defined in section 1114(a) of the Bankruptcy Code) and any similar health, disability
or death benefits in accordance with the terms of the retiree benefit plans or other agreements
governing the payment of such benefits, subject to any rights to amend, modify or terminate such
benefits under the terms of the applicable retiree benefits plan, other agreement or applicable
nonbankruptcy law.
3. Workers Compensation Benefits
From and after the Effective Date, the Reorganized Debtors, in their sole discretion, may
continue to pay valid Claims arising before the Petition Date under the Debtors workers
compensation programs.
J. Special Provisions Regarding Insured Claims and Insurance Policies
1. Limitations on Amounts to Be Distributed to Holders of Allowed Insured Claims
Distributions under the Plan to each holder of an Allowed Insured Claim shall be in accordance
with the treatment provided under the Plan for the Class in which such Allowed Insured Claim is
classified, but solely to the extent that such Allowed Insured Claim is not satisfied from proceeds
payable to the holder thereof under any pertinent insurance policies and applicable law. Nothing
in this Section IV.J.1 shall constitute a waiver of any claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action or liabilities that any Entity may hold against
any other Entity, including the Debtors insurance carriers.
2. Reinstatement and Continuation of Insurance Policies
From and after the Effective Date, each of the Debtors insurance policies in existence as of
the Effective Date shall be reinstated and continued in accordance with its terms and, to the
extent applicable, shall be deemed assumed by the applicable Reorganized Debtor pursuant to section
365 of the Bankruptcy Code and Section V.A.
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3. Insurance Neutrality
a. Notwithstanding anything to the contrary in the Plan or the Confirmation Order,
nothing in the Plan or the Confirmation Order (including any other provision that purports
to be preemptory or supervening), shall in any way operate to, or have the effect of,
impairing the insurers legal, equitable or contractual rights, if any, in respect of any
Claims. The rights of insurers shall be determined under the relevant insurance policies or
insurance settlements, as applicable, and under applicable law.
b. Nothing in the Plan, including the injunction and release provisions of Sections
IV.H.3, IX.A and IX.B, or in the Confirmation Order (other than the Asbestos Personal Injury
Insurance Asset Entity Injunction) shall preclude any Entity from asserting in any
proceeding any and all claims, defenses, rights or causes of action that it has or may have
under or in connection with any insurance policy or any insurance settlement agreement.
Nothing in the Plan or the Confirmation Order (other than the Asbestos Personal Injury
Insurance Asset Entity Injunction) shall be deemed to waive any claims, defenses, rights or
causes of action that any Entity has or may have under the provisions, terms, conditions,
defenses or exclusions contained in such insurance policy or insurance settlement
agreements, including any and all such claims, defenses, rights or causes of action based
upon or arising out of Asbestos Personal Injury Claims that are liquidated, resolved,
discharged, channeled or paid in connection with the Plan.
K. Cancellation and Surrender of Instruments, Securities and Other Documentation
Except as otherwise provided in the Plan (including with respect to those Industrial Revenue
Bonds that are Reinstated pursuant to Section III.B.5) or in any contract, instrument or other
agreement or document entered into or delivered in connection with the Plan, on the Effective Date
and concurrently with the applicable Distributions made pursuant to Article III, the Credit
Facilities, the Senior Note Indenture, the Senior Notes and the Industrial Revenue Bond Indentures
that are not Reinstated shall be canceled and of no further force and effect, without any further
action on the part of any Debtor or Reorganized Debtor, and the obligations of the Debtors and the
Indenture Trustees, if applicable, under such agreements, contracts, instruments and other
documents shall be discharged; provided, however, that the Senior Notes, the Industrial Revenue
Bonds and the relevant indentures shall continue in effect solely for the purpose of (1) allowing
the relevant holders of notes to receive their Distributions hereunder and (2) allowing the
Indenture Trustees to make the Distributions, if any, to be made on account of the Senior Note
Claims and the Industrial Revenue Bonds Claims. The holders of or parties to such canceled
instruments, securities and other documentation shall have no rights arising from or relating to
such instruments, securities and other documentation or the cancellation thereof, except the rights
provided pursuant to the Plan; provided, however, that no Distribution under the Plan shall be made
to or on behalf of any holder of an Allowed Claim evidenced by such canceled instruments or
securities unless and until such instruments or securities are received by the applicable
Disbursing Agent to the extent required in Section VI.H. Notwithstanding any provision contained
in this Plan to the contrary, the distribution provisions contained in the Senior Note Indenture
and the Industrial Revenue Bond Indentures, as applicable, shall continue in effect to the extent
necessary to authorize the Indenture Trustees to receive and distribute to the holders of Allowed
Senior Note Claims and Industrial Revenue Bond Claims any Distributions made pursuant to the Plan
on account of such Allowed Claims and shall terminate completely upon completion of all such
Distributions.
L. Release of Liens
Except as otherwise provided in the Plan (including with respect to those Industrial Revenue
Bonds that are Reinstated pursuant to Section III.B.5) or in any contract, instrument, release or
other agreement or document entered into or delivered in connection with the Plan, on the Effective
Date and concurrently with the applicable Distributions made pursuant to Article III, all
mortgages, deeds of trust, liens or other security interests against the property of any Estate
shall be fully released and discharged, and all of the right, title and interest of any holder of
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such mortgages, deeds of trust, liens or other security interests, including any rights to any
collateral thereunder, shall revert to the applicable Reorganized Debtor and its successors and
assigns.
M. Effectuating the Rights Offering
As of the Confirmation Date, the Debtors may enter into and effectuate any Rights Offering
Documents, if applicable, perform under the New Investor Documents and take any actions appropriate
or necessary to consummate the Rights Offering.
N. Effectuating Documents; Further Transactions; Exemption from Certain Transfer Taxes
The Chairman of the Board, Chief Executive Officer, President, Executive Vice President, Chief
Financial Officer, Chief Operating Officer, Senior Vice President or any Vice President of each
Debtor or Reorganized Debtor shall be authorized to execute, deliver, file or record such
contracts, instruments, releases and other agreements or documents and take such actions as may be
necessary or appropriate to effectuate and implement the provisions of the Plan. The Secretary or
any Assistant Secretary of each Debtor or Reorganized Debtor shall be authorized to certify or
attest to any of the foregoing actions. Pursuant to section 1146(c) of the Bankruptcy Code, the
following shall not be subject to any stamp tax or similar tax: (1) the issuance, transfer or
exchange of the Additional Common Stock, the Note or the Contingent Payment Note; (2) the creation
of any mortgage, deed of trust, lien or other security interest; (3) the making or assignment of
any lease or sublease; (4) any Restructuring Transaction; or (5) the making or delivery of any deed
or other instrument of transfer under, in furtherance of or in connection with the Plan, including
any merger agreements, agreements of consolidation, restructuring, disposition, liquidation or
dissolution, deeds, bills of sale or assignments executed in connection with any Restructuring
Transaction pursuant to the Plan.
O. Compliance with QSF Regulations
Reorganized USG and the Asbestos Personal Injury Trustees shall take all actions required of
them as transferor and administrator, respectively, pursuant to Treasury Regulations
promulgated under section 468B of the Internal Revenue Code.
P. Procedure for Resolution of Postpetition Interest Disputes
1. To the extent any holder of a Class 6 Claim believes that it is entitled to Postpetition
Interest at an interest rate other than the rate described in Section I.A.99.f.i, the holder of
such Claim must timely File and serve on the Debtors at the addresses set forth in Section XI.H. a
Postpetition Interest Rate Determination Notice no later than June 26, 2006. The Debtors or
Reorganized Debtors, as applicable, will have the opportunity to review and dispute the
Postpetition Interest Rate Determination Notice and shall File any objection to the Postpetition
Interest Rate Determination Notice no later than 60 days after the Effective Date. In objecting to
the Postpetition Interest Rate Determination Notice, the Debtors or Reorganized Debtors, as
applicable, may assert that the holder of the Claim that Filed the Postpetition Interest Rate
Determination Notice is entitled to no Postpetition Interest under applicable law, and the
Bankruptcy Court may find that no Postpetition Interest is required and order that none shall be
paid on account of such Claim. To the extent the Postpetition Interest Rate Determination Notice
does not relate to a Disputed Claim, the Debtors may pay the principal amount of the Allowed Claim
on the Effective Date, in accordance with the applicable provisions of the Plan; provided, however,
that no payment of Postpetition Interest will be made until the Postpetition Interest Rate
Determination Notice is resolved in accordance with this Section IV.P.
2. If the Debtors or Reorganized Debtors, as applicable, determine that the interest rate
asserted in the Postpetition Interest Rate Determination Notice is appropriate, the Debtors may
File a certificate of no objection at any time with respect to such notice and pay Postpetition
Interest at the rate requested in the Postpetition Interest
32
Rate Determination Notice. No hearing is required by the Bankruptcy Court with respect to any
Postpetition Interest Rate Determination Notice for which a certificate of no objection is Filed or
for which the Debtors or Reorganized Debtors, as applicable, do not File a timely objection.
3. If the Debtors or Reorganized Debtors, as applicable, File an objection to the Postpetition
Interest Rate Determination and no stipulation or agreement is reached with respect to the
appropriate rate of Postpetition Interest for such Claim, the Debtors or Reorganized Debtors, as
applicable, may ask the Bankruptcy Court to schedule a hearing on the particular Postpetition
Interest Rate Determination Notice and the related objection at an appropriate time.
4. The Debtors or Reorganized Debtors, as applicable, and the holder of the Claim that Filed
the Postpetition Interest Rate Determination Notice at any time may enter into a stipulation or
agreement as to the appropriate rate of Postpetition Interest with respect to such Claim, without
further action of the Bankruptcy Court.
ARTICLE V.
TREATMENT OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES
A. Executory Contracts and Unexpired Leases to Be Assumed
1. Assumption Generally
Except as otherwise provided in the Plan or in any contract, instrument, release or other
agreement or document entered into in connection with the Plan, on the Effective Date, pursuant to
section 365 of the Bankruptcy Code, the applicable Debtor or Reorganized Debtor shall assume each
of its respective Executory Contracts and Unexpired Leases other than those listed on Exhibit V.C;
provided, however, that the Debtors reserve the right, at any time prior to the Effective Date, to
amend Exhibit V.C to: (a) delete any Executory Contract or Unexpired Lease listed therein, thus
providing for its assumption pursuant hereto; or (b) add any Executory Contract or Unexpired Lease
to Exhibit V.C, thus providing for its rejection pursuant to this Section V.A.1. The Debtors shall
provide notice of any amendments to Exhibit V.C to the parties to the Executory Contracts or
Unexpired Leases affected thereby and to the parties on the then-applicable service list in the
Reorganization Cases. Nothing herein shall constitute an admission by a Debtor or Reorganized
Debtor that any contract or lease is an Executory Contract or Unexpired Lease or that a Debtor or
Reorganized Debtor has any liability thereunder.
2. Assumptions of Executory Contracts and Unexpired Leases
Each Executory Contract or Unexpired Lease assumed under Section V.A.1 shall include any
modifications, amendments, supplements or restatements to such contract or lease.
3. Assignments Related to the Restructuring Transactions
As of the effective time of an applicable Restructuring Transaction, any Executory Contract or
Unexpired Lease to be held by any Debtor or another surviving, resulting or acquiring corporation
in an applicable Restructuring Transaction, shall be deemed assigned to the applicable Entity,
pursuant to section 365 of the Bankruptcy Code.
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4. Approval of Assumptions and Assumption Procedures
The Confirmation Order shall constitute an order of the Bankruptcy Court approving the
assumptions described in Section V.A.1, pursuant to section 365 of the Bankruptcy Code, as of the
Effective Date. The appropriate procedures for assumption of an Executory Contract or Unexpired
Lease are as follows:
a. After the entry of the Confirmation Order, the Debtors shall serve upon each party
to an Executory Contract or Unexpired Lease being assumed pursuant to the Plan notice of:
(i) the contract or lease being assumed or assumed and assigned; (ii) the Cure Amount Claim,
if any, that the applicable Debtor believes it would be obligated to pay in connection with
such assumption; and (iii) the procedures for such party to object to the assumption or
assumption and assignment of the applicable contract or lease or the amount of the proposed
Cure Amount Claim.
b. Any entity wishing to object to (i) the proposed assumption of an Executory Contract
or Unexpired Lease under the Plan or (ii) the proposed amount of the related Cure Amount
Claim must File and serve on counsel to the Debtors a written objection setting forth the
basis for the objection within 20 days of service of the notice described in Section
V.A.4.a.
c. If no objection to the proposed assumption or Cure Amount Claim is properly Filed
and served prior to the objection deadline with respect to an Executory Contract or
Unexpired Lease: (i) the proposed assumption of the Executory Contract or Unexpired Lease
shall be approved in accordance with the Plan and the Confirmation Order, effective as of
the Effective Date, without further action of the Bankruptcy Court; and (ii) the Cure Amount
Claim identified by the Debtors in the notice shall be fixed and shall be paid in accordance
with the Plan on or after the Effective Date, without further action of the Bankruptcy
Court, to the appropriate contract or lease party identified on the notice.
d. If an objection to the proposed assumption or Cure Amount Claim is properly Filed
and served prior to the objection deadline with respect to an Executory Contract or
Unexpired Lease, the Debtors or Reorganized Debtors, as applicable, and the objecting party
may resolve such objection by stipulation, without further action of the Bankruptcy Court.
e. If an objection to the proposed assumption or Cure Amount Claim is properly Filed
and served prior to the objection deadline with respect to an Executory Contract or
Unexpired Lease and the parties are unable to resolve such objection: (i) the Debtors or
Reorganized Debtors may File a reply to such objection no later than 30 days after the
Filing and service of such objection and ask the Bankruptcy Court to schedule a hearing on
the particular objection and the related reply at an appropriate time; or (ii) the Debtors
or Reorganized Debtors, as applicable, may designate the Executory Contract or Unexpired
Lease underlying such objection for rejection pursuant to Section V.C and amend Exhibit V.C
accordingly.
B. Payments Related to the Assumption of Executory Contracts and Unexpired Leases
To the extent that such Claims constitute monetary defaults, the Cure Amount Claims associated
with each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be
satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, at the option of the Debtor or
Reorganized Debtor assuming such contract or lease or the assignee of such Debtor or Reorganized
Debtor, if any: (1) by payment of the Cure Amount Claim in cash on the Effective Date or (2) on
such other terms as are agreed to by the parties to such Executory Contract or Unexpired Lease.
Pursuant to section 365(b)(2)(D) of the Bankruptcy Code, no Cure Amount Claim shall be allowed for
a penalty rate or other form of default rate of interest. If there is a dispute regarding: (1)
the amount of any Cure Amount Claim; (2) the ability of the applicable Reorganized Debtor 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 (3) any other matter
pertaining to assumption of such contract or lease, the
34
payment of any Cure Amount Claim required by section 365(b)(1) of the Bankruptcy Code shall be
made following the entry of a Final Order resolving the dispute and approving the assumption. For
assumptions of Executory Contracts or Unexpired Leases between Debtors, the Reorganized Debtor
assuming such contract may cure any monetary default (1) by treating such amount as either a direct
or indirect contribution to capital or Distribution (as appropriate) or (2) through an intercompany
account balance in lieu of payment in cash.
C. Executory Contracts and Unexpired Leases to Be Rejected and Rejection Procedures
On the Effective Date, each Executory Contract and Unexpired Lease listed on Exhibit V.C shall
be rejected pursuant to section 365 of the Bankruptcy Code. Each contract and lease listed on
Exhibit V.C shall be rejected only to the extent that any such contract or lease constitutes an
Executory Contract or Unexpired Lease. Listing a contract or lease on Exhibit V.C shall not
constitute an admission by a Debtor or Reorganized Debtor that such contract or lease is an
Executory Contract or Unexpired Lease or that a Debtor or Reorganized Debtor has any liability
thereunder. The Confirmation Order shall constitute an order of the Bankruptcy Court approving
such rejections, pursuant to section 365 of the Bankruptcy Code, as of the Effective Date. The
appropriate procedures for rejection of an Executory Contract or Unexpired Lease are as follows:
1. After the entry of the Confirmation Order, the Debtors shall serve upon each party to an
Executory Contract or Unexpired Lease being rejected pursuant to the Plan notice of such proposed
rejection.
2. Any entity wishing to object to the proposed rejection of an Executory Contract or
Unexpired Lease under the Plan must File and serve on counsel to the Debtors a written objection
setting forth the basis for the objection within 20 days of service of the notice described in
Section V.C.1.
3. If no objection to the proposed rejection is properly Filed and served prior to the
objection deadline with respect to an Executory Contract or Unexpired Lease, the proposed rejection
of the applicable Executory Contract or Unexpired Lease shall be approved in accordance with the
Plan and the Confirmation Order, effective as of the Effective Date, without further action of the
Bankruptcy Court.
4. If an objection to the proposed rejection is properly Filed and served prior to the
objection deadline with respect to an Executory Contract or Unexpired Lease, the Debtors or
Reorganized Debtors, as applicable, and the objecting party may resolve such objection by
stipulation, without further action of the Bankruptcy Court.
5. If an objection to the proposed rejection is properly Filed and served prior to the
objection deadline with respect to an Executory Contract or Unexpired Lease and the parties are
unable to resolve such objection the Debtors or Reorganized Debtors, as applicable, may File a
reply to such objection no later than 30 days after the Filing and service of such objection and
ask the Court to schedule a hearing on the particular objection and the related reply at an
appropriate time.
D. Bar Date for Rejection Damages
Notwithstanding anything in the Bar Date Order to the contrary, if the rejection of an
Executory Contract or Unexpired Lease gives rise to a Claim by the other party or parties to such
contract or lease, such Claim shall be forever barred and shall not be enforceable against the
Debtors, the Reorganized Debtors, their respective successors or their respective properties unless
a proof of Claim is Filed and served on the Reorganized Debtors, pursuant to the procedures
specified in the Confirmation Order and the notice of the entry of the Confirmation Order or
another order of the Bankruptcy Court, on the later to occur of (1) 60 days after the Effective
Date or (2) 30 days after the date of entry of an Order rejecting such Executory Contract or
Unexpired Lease.
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E. Obligations to Indemnify Directors, Officers and Employees
The obligations of each Debtor or Reorganized Debtor to indemnify any person serving as one of
its directors, officers or employees prior to or following the Petition Date by reason of such
persons prior or future service in such a capacity or as a director, officer or employee of any
Debtor or any other corporation, partnership or other legal Entity, to the extent provided in the
applicable certificates of incorporation, by-laws or similar constituent documents, by statutory
law or by written agreement, policies or procedures of or with such Debtor, shall be deemed and
treated as executory contracts that are assumed by the applicable Debtor or Reorganized Debtor
pursuant to the Plan and section 365 of the Bankruptcy Code as of the Effective Date. Accordingly,
such indemnification obligations shall survive and be unaffected by entry of the Confirmation
Order, irrespective of whether such indemnification is owed for an act or event occurring before or
after the Petition Date.
F. Contracts and Leases Entered Into After the Petition Date
Notwithstanding any other provisions of the Plan, contracts and leases entered into after the
Petition Date by any Debtor, including any Executory Contracts and Unexpired Leases assumed by such
Debtor, shall be performed by the Debtor or Reorganized Debtor liable thereunder in accordance with
the terms and conditions of such contracts and leases in the ordinary course of its business.
Accordingly, such contracts and leases and other obligations (including any assumed Executory
Contracts and Unexpired Leases) shall survive and remain unaffected by entry of the Confirmation
Order.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date
Except as otherwise provided in the Plan (including with respect to Asbestos Personal Injury
Claims), Distributions to be made on the Effective Date to holders of Claims that are Allowed
Claims as of the Effective Date shall be deemed made on the Effective Date if made on the Effective
Date or as promptly thereafter as practicable, but in any event no later than: (1) 60 days after
the Effective Date or (2) such later date when the applicable conditions of Section V.B (regarding
cure payments for Executory Contracts and Unexpired Leases being assumed), Section VI.D.2.a
(regarding undeliverable Distributions), Section VI.G.4 (regarding compliance with Tax
requirements) or Section VI.H (regarding surrender of canceled instruments or securities) are
satisfied. Distributions on account of Claims that become Allowed Claims after the Effective Date
shall be made pursuant to Section VI.G.3. Any Claim that is disallowed by order of the Bankruptcy
Court (or the District Court) prior to the Effective Date shall be deemed expunged (to the extent
not already expunged) as of the Effective Date without the necessity for further Bankruptcy Court
approval and the holder of any such Claim shall not be entitled to any Distributions under the
Plan.
B. Method of Distributions to Holders of Claims
Reorganized USG or such Third Party Disbursing Agents as Reorganized USG may employ in its
sole discretion shall make all Distributions of cash, the Note, the Contingent Payment Note and
other instruments or documents required under the Plan. Each Disbursing Agent shall serve without
bond, and any Disbursing Agent may employ or contract with other Entities to assist in or make the
Distributions required by the Plan. The Debtors intend that the Indenture Trustees and the Credit
Facilities Agent will serve as Third Party Disbursing Agents and will receive Distributions for the
benefit of, and make Distributions to, holders of Allowed Industrial Revenue Bond Claims, Allowed
Senior Note Claims and Credit Facilities Claims, as applicable.
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C. Compensation and Reimbursement for Services Related to Distributions
Each Third Party Disbursing Agent providing services related to Distributions pursuant to the
Plan shall receive from Reorganized USG, without further Bankruptcy Court approval, reasonable
compensation for such services and reimbursement of reasonable out-of-pocket expenses incurred in
connection with such services. These payments shall be made on terms agreed to with Reorganized
USG and shall not be deducted from Distributions to be made pursuant to the Plan to holders of
Allowed Claims receiving Distributions from a Third Party Disbursing Agent.
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions
1. Delivery of Distributions
Except for Asbestos Personal Injury Claims, Distributions to holders of Allowed Claims shall
be made by a Disbursing Agent (a) at the addresses set forth on the respective proofs of Claim
Filed by holders of such Claims; (b) at the addresses set forth in any written certification of
address change delivered to the Disbursing Agent (including pursuant to a letter of transmittal
delivered to a Disbursing Agent) after the date of Filing of any related proof of Claim; or (c) at
the addresses reflected in the applicable Debtors Schedules if no proof of Claim has been Filed
and the Disbursing Agent has not received a written notice of a change of address.
2. Undeliverable Distributions Held by Disbursing Agents
a. Holding and Investment of Undeliverable Distributions
If any Distribution to a holder of an Allowed Claim is returned to a Disbursing Agent as
undeliverable, no further Distributions shall be made to such holder unless and until the
applicable Disbursing Agent is notified by written certification of such holders then-current
address. Undeliverable Distributions shall remain in the possession of the applicable Disbursing
Agent pursuant to this Section VI.D.2.a until such time as a Distribution becomes deliverable.
Undeliverable cash shall be held in segregated bank accounts in the name of the applicable
Disbursing Agent for the benefit of the potential claimants of such funds. Any Disbursing Agent
holding undeliverable cash shall invest such cash in a manner consistent with the Reorganized
Debtors investment and deposit guidelines.
b. After Distributions Become Deliverable
On each Quarterly Distribution Date, the applicable Disbursing Agents shall make all
Distributions that become deliverable to holders of Allowed Claims (other than Asbestos Personal
Injury Claims) during the preceding calendar quarter, to the extent not distributed earlier at the
discretion of the applicable Disbursing Agent.
c. Failure to Claim Undeliverable Distributions
Any holder of an Allowed Claim that does not assert a claim pursuant to the Plan for an
undeliverable Distribution to be made by a Disbursing Agent within one year after the later of (i)
the Effective Date and (ii) the last date on which a Distribution was attempted to be made to such
holder shall have its claim for such undeliverable Distribution discharged and shall be forever
barred from asserting any such claim against the Reorganized Debtors or their respective property.
Unclaimed Distributions shall become property of Reorganized USG, free of any restrictions thereon,
and any such Distributions held by a Third Party Disbursing Agent shall be returned to Reorganized
USG. Nothing contained in the Plan shall require any Debtor, Reorganized Debtor or Disbursing
Agent to attempt to locate any holder of an Allowed Claim.
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E. Distribution Record Date
1. A Disbursing Agent shall have no obligation to recognize the transfer of, or the sale of
any participation in, any Claim that occurs after the close of business on the Distribution Record
Date and shall be entitled for all purposes herein to recognize and make Distributions 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.
2. As of the close of business on the Distribution Record Date, the respective transfer or
Claims registers for the Credit Facilities Claims, Senior Note Claims and Industrial Revenue Bond
Claims, as maintained by the Debtors or the Credit Facilities Agent, Senior Note Indenture Trustee
or Industrial Revenue Bond Indenture Trustees, as applicable, shall be closed and any transfer of
any Claim or interest therein shall be prohibited. The applicable Disbursing Agent shall have no
obligation to recognize the transfer or sale of any Credit Facilities Claim, Senior Note Claim or
Industrial Revenue Bond Claim that occurs after the close of business on the Distribution Record
Date and shall be entitled for all purposes herein to recognize and make Distributions only to
those holders of Credit Facilities Claims, Senior Note Claims or Industrial Revenue Bond Claims who
are holders of such Claims as of the close of business on the Distribution Record Date.
3. Except as otherwise provided in a Final Order of the Bankruptcy Court, the transferees of
Claims that are transferred pursuant to Bankruptcy Rule 3001 on or prior to the Distribution Record
Date shall be treated as the holders of such Claims for all purposes, notwithstanding that any
period provided by Bankruptcy Rule 3001 for objecting to such transfer has not expired by the
Distribution Record Date.
F. Means of Cash Payments
Except as otherwise specified herein, cash payments made pursuant to the Plan to holders of
Claims shall be in U.S. currency by checks drawn on a domestic bank selected by Reorganized USG or,
at the option of Reorganized USG, by wire transfer from a domestic bank; provided, however, that
cash payments to foreign holders of Allowed Claims may be made, at the option of Reorganized USG,
in such funds and by such means as are necessary or customary in a particular foreign jurisdiction.
G. Timing and Calculation of Amounts to Be Distributed
1. Timing of Distributions Under the Plan
Any Distribution to be made by any Debtor or Reorganized Debtor pursuant to the Plan shall be
deemed to have been timely made if made within 60 days after the time therefore specified in the
Plan. Except as otherwise provided in the Plan, no interest shall accrue or be paid with respect
to any Distribution as a consequence of such Distribution not having been made on the Effective
Date.
2. Distribution to the Asbestos Personal Injury Trust
The Distribution to the Asbestos Personal Injury Trust shall be made on the Effective Date.
3. Allowed Claims
On the Effective Date, each holder of an Allowed Claim (other than an Asbestos Personal Injury
Claim) shall receive the full amount of the Distributions that the Plan provides for Allowed Claims
in the applicable Class. On each Quarterly Distribution Date, Distributions also shall be made
pursuant to Section VII.D to holders of Disputed Claims in any such Class that were allowed during
the preceding calendar quarter, to the extent not distributed earlier at the discretion of the
applicable Disbursing Agent. Such quarterly Distributions also shall be in the full amount that
the Plan provides for Allowed Claims in the applicable Class.
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4. Compliance with Tax Requirements
a. In connection with the Plan and as described in greater detail in Sections XII.D and
XII.E of the Disclosure Statement, to the extent applicable, each Disbursing Agent shall
comply with all Tax withholding and reporting requirements imposed on it by any governmental
unit, and all Distributions pursuant to the Plan shall be subject to such withholding and
reporting requirements. Each Disbursing Agent shall be authorized to take any actions that
may be necessary or appropriate to comply with such withholding and reporting requirements.
b. Without limiting the generality of the foregoing, in accordance with the Internal
Revenue Codes backup withholding rules, a holder of a Claim may be subject to backup
withholding with respect to Distributions made pursuant to the Plan, unless the holder (i)
comes within certain exempt categories (which generally include corporations) and, when
required, demonstrates this fact or (ii) provides at the applicable Disbursing Agents
request a completed IRS Form W-9 (or substitute therefore) on which the holder includes a
correct taxpayer identification number and certifies under penalty of perjury that the
taxpayer identification number is correct and that the taxpayer is not subject to backup
withholding because of a failure to report all dividend and interest income. Among other
things, to receive any Postpetition Interest, if requested by a Disbursing Agent, a holder
of an Allowed Claim shall be required to establish an exemption from backup withholding or
to make arrangements with respect to the payment of backup withholding. Non-U.S. holders
may be required by the applicable Disbursing Agent to provide a completed IRS Form W-8 to
establish an exemption from or a treaty-reduced rate of withholding on interest distributed
pursuant to the Plan. No Distributions on account of Postpetition Interest shall be made to
a holder of an Allowed Claim until such time as the holder of such Claim establishes
exemption from withholding or provides the relevant IRS Form W-8 or W-9, as applicable.
c. Notwithstanding any other provision of the Plan, each Entity receiving a
Distribution of cash, the Note or the Contingent Payment Note pursuant to the Plan shall
have sole and exclusive responsibility for the satisfaction and payment of any Tax
obligations imposed on it by any governmental unit on account of such Distribution,
including income, withholding and other Tax obligations.
H. Surrender of Canceled Instruments or Securities
As a condition precedent to receiving any Distribution pursuant to the Plan on account of an
Allowed Claim evidenced by the notes, instruments, securities or other documentation canceled
pursuant to Section IV.K, the holder of such Claim must tender, as specified in this Section VI.H,
the applicable notes (other than any notes that may have been issued under the Credit Facilities),
instruments, securities or other documentation evidencing such Claim to the applicable Disbursing
Agent, together with any letter of transmittal required by such Disbursing Agent. Pending such
surrender, any Distributions pursuant to the Plan on account of any such Claim shall be treated as
an undeliverable Distribution pursuant to Section VI.D.2.a.
I. Setoffs
Except with respect to claims of a Debtor or Reorganized Debtor released pursuant to the Plan
or any contract, instrument, release or other agreement or document entered into or delivered in
connection with the Plan, the Reorganized Debtors or, as instructed by the applicable Reorganized
Debtor, a Third Party Disbursing Agent may, pursuant to section 553 of the Bankruptcy Code or
applicable nonbankruptcy law, set off against any Allowed Claim and the Distributions to be made
pursuant to the Plan on account of such Claim (before any Distribution is made on account of such
Claim) the claims, rights and causes of action of any nature that the applicable Debtor or
Reorganized Debtor may hold against the holder of such Allowed Claim; provided, however, that
neither the failure to effect a setoff nor the allowance of any Claim hereunder shall constitute a
waiver or release by the applicable
39
Debtor or Reorganized Debtor of any claims, rights and causes of action that the Debtor or
Reorganized Debtor may possess against such a Claim holder.
J. Allocation of Payments
Amounts paid to holders of Claims in satisfaction thereof shall be allocated first to the
principal amounts of such Claims, with any excess being allocated to interest that has accrued on
such Claims but remains unpaid.
ARTICLE VII.
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. Prosecution of Objections to Claims
1. Objections to Claims
Objections to Claims (other than Asbestos Personal Injury Claims) must be Filed and served on
the holders of such Claims by the Claims Objection Bar Date, and, if Filed prior to the Effective
Date, such objections shall be served on the parties on the then-applicable service list in the
Reorganization Cases. If an objection has not been Filed to a proof of Claim or an amendment has
not been made to the Schedules with respect to a scheduled Claim by the Claims Objection Bar Date,
the Claim to which the proof of Claim or Schedules relates shall be treated as an Allowed Claim if
such Claim has not been allowed earlier.
2. Authority to Prosecute Objections
After the Effective Date, the Reorganized Debtors shall have the authority to File (if
applicable), settle, compromise, withdraw or litigate to judgment objections to all Claims (other
than Asbestos Personal Injury Claims), including pursuant to any alternative dispute resolution or
similar procedures approved by the Bankruptcy Court. After the Effective Date, the Reorganized
Debtors may settle, compromise or otherwise resolve any Disputed Claim or any objection or
controversy relating to any Claim without approval of the Bankruptcy Court.
3. Liquidation and Resolution of Litigation Claims and Asbestos Property Damage Claims
Any unliquidated or disputed Litigation Claim or Asbestos Property Damage Claim that is a
Timely Claim shall be liquidated, in accordance with applicable law, in: (a) the Bankruptcy Court
(or the District Court) or (b)(i) the court in which it is pending on the Effective Date or (ii) if
no action was pending on the Effective Date, any court of appropriate jurisdiction. This Section
VII.A.3 is without prejudice to any partys ability to request liquidation of a Claim in any
applicable forum. If a Claim is to be liquidated in a court other than the Bankruptcy Court (or
the District Court), upon the entry of an order of the Bankruptcy Court (or the District Court) or
the execution of a written agreement by the Reorganized Debtors and the particular claimant, the
injunction provided under Section IX.B.1 shall be deemed modified solely to the extent necessary to
allow the parties to liquidate the Litigation Claim or the Asbestos Property Damage Claim in the
applicable court. Notwithstanding the foregoing, at all times prior to or after the Effective
Date, the Bankruptcy Court shall retain jurisdiction relating to Litigation Claims and Asbestos
Property Damage Claims, including the Debtors right to have such Claims liquidated in the
Bankruptcy Court (or the District Court) pursuant to section 157(b)(2)(B) of title 28 of the United
States Code, as may be applicable. Any Litigation Claim or Asbestos Property Damage Claim
liquidated pursuant to a judgment obtained in accordance with this Section VII.A.3 and applicable
nonbankruptcy law that is no longer appealable or subject to review shall be deemed an Allowed
Claim in Class 6 or Class 8, as applicable, against the applicable Debtor in such liquidated amount
upon the agreement of the parties or order of the Bankruptcy Court. The holder of any Litigation
Claim or Asbestos Property Damage Claim allowed in accordance with the procedures in this Section
VII.A.3 shall be entitled to any interest on such Allowed Claim required by applicable law and
awarded by a
40
Final Order. In the event a Litigation Claim or Asbestos Property Damage Claim is resolved
pursuant to a judgment or order that (a) is obtained in accordance with this Section VII.A.3, (b)
is no longer appealable or subject to review and (c) provides for no recovery against the
applicable Reorganized Debtor, such Litigation Claim or Asbestos Property Damage Claim shall be
deemed expunged without the necessity for further Bankruptcy Court approval upon the applicable
Reorganized Debtors service of a copy of such judgment or order upon the holder of such Litigation
Claim or Asbestos Property Damage Claim. Nothing contained in this Section VII.A.3 shall
constitute or be deemed a waiver of any claim, right or cause of action that a Debtor or
Reorganized Debtor may have against any person or entity in connection with or arising out of any
Litigation Claim or Asbestos Property Damage Claim.
4. Authority to Amend Schedules
The Debtors or the Reorganized Debtors shall have the authority to amend the Schedules with
respect to any Claim and to make Distributions based on such amended Schedules without approval of
the Bankruptcy Court. If any such amendment to the Schedules reduces the amount of a Claim or
changes the nature or priority of a Claim, the Debtor or Reorganized Debtor shall provide the
holder of such Claim with notice of such amendment and such holder shall have 20 days to File an
objection to such amendment with the Bankruptcy Court. If no such objection is Filed, the Debtor
or Reorganized Debtor may proceed with Distributions based on such amended Schedules without
approval of the Bankruptcy Court.
B. Treatment of Disputed Claims
Notwithstanding any other provisions of the Plan, no payments or Distributions shall be made
on account of a Disputed Claim until such Claim becomes an Allowed Claim.
C. Enforcement of Bar Date Order
In accordance with the Bar Date Order and section 502(b)(9) of the Bankruptcy Code, any Entity
that failed to File a proof of Claim by the applicable Bar Date or was not otherwise permitted to
File a proof of Claim after the applicable Bar Date by a Final Order of the Bankruptcy Court is and
shall be barred, estopped and enjoined from asserting any Claim against the Debtors (1) in an
amount that exceeds the amount, if any, that is identified in the Schedules on behalf of such
Entity as undisputed, noncontingent and liquidated; or (2) of a different nature or a different
classification than any Claim identified in the Schedules on behalf of such Entity. All Claims
Filed after the applicable Bar Date and for which no Final Order has been entered by the Bankruptcy
Court determining that such Claims were timely Filed shall be disallowed and expunged. Any
Distribution on account of such Claims shall be limited to the amount, if any, listed in the
applicable Schedules as undisputed, noncontingent and liquidated.
D. Distributions on Account of Disputed Claims Once Allowed
On each Quarterly Distribution Date, the applicable Disbursing Agent shall make all
Distributions on account of any Disputed Claim that has become an Allowed Claim during the
preceding calendar quarter, to the extent not distributed earlier at the discretion of the
applicable Disbursing Agent. Such Distributions shall be made pursuant to the provisions of the
Plan governing the applicable Class.
E. Indenture Trustees as Relevant Claim Holders
Consistent with Bankruptcy Rule 3003(c), the Debtors or Reorganized Debtors, as applicable,
shall recognize a Proof of Claim filed by the Senior Note Indenture Trustee with respect to any
Senior Note Claim or the relevant Industrial Revenue Bond Indenture Trustee with respect to the
applicable Industrial Revenue Bond Claim; provided, however, such recognition in no way waives any
of the Debtors or Reorganized Debtors rights against or defenses to such Claim. Accordingly, any
Claim, proof of which is filed by the registered or beneficial holder of a
41
Claim, shall be disallowed as duplicative of the Claim of the pertinent Indenture Trustee,
without further action by the Debtors or Reorganized Debtors and without further order from the
Bankruptcy Court.
ARTICLE VIII.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Conditions to Confirmation
The following shall be conditions to Confirmation unless such conditions shall have been duly
waived pursuant to Section VIII.C:
1. The Confirmation Order shall have been entered by the Bankruptcy Court or the District
Court (and, if the Confirmation Order is entered by the Bankruptcy Court, shall have been fully
affirmed by the District Court), shall be acceptable in form and substance to the Debtors and shall
be reasonably satisfactory to the Asbestos Personal Injury Committee and the Asbestos Personal
Injury Futures Representative.
2. The Plan and Confirmation Order, as entered, shall ratify and approve the New Investor
Documents without any change or modification.
3. All Exhibits to the Plan are in form and substance satisfactory to the Debtors and
reasonably satisfactory to the Asbestos Personal Injury Committee and the Asbestos Personal Injury
Futures Representative.
4. The Bankruptcy Court or the District Court makes the following findings, each of which
shall be contained in the Confirmation Order and each of which, if the Confirmation Order is
entered by the Bankruptcy Court, shall be fully affirmed by the District Court:
a. The Asbestos Permanent Channeling Injunction is to be implemented in connection with
the Plan and the Asbestos Personal Injury Trust.
b. The Asbestos Personal Injury Trust, as of the Effective Date, shall assume the
liabilities of each of the Protected Parties with respect to all Asbestos Personal Injury
Claims, and, upon such assumption, no Protected Party shall have any liability for any
Asbestos Personal Injury Claim.
c. Each Debtor had been named as a defendant in a personal injury, wrongful death or
property damage action seeking recovery for damages allegedly caused by the presence of, or
exposure to, asbestos or asbestos-containing products.
d. The Asbestos Personal Injury Trust is to be funded in whole or in part by securities
of one or more of the Reorganized Debtors and by the obligation of such Reorganized Debtor
or Reorganized Debtors to make future payments, including dividends.
e. The Asbestos Personal Injury Trust is to own, or by the exercise of rights granted
under the Plan would be entitled to own if specified contingencies occur, a majority of the
voting shares of each such Reorganized Debtor, the parent corporation of each such
Reorganized Debtor or a subsidiary of each such Reorganized Debtor that is also a
Reorganized Debtor.
f. The Asbestos Personal Injury Trust shall use its assets or income to pay Asbestos
Personal Injury Claims, including Demands.
42
g. Each of the Debtors is likely to be subject to substantial future Demands for
payment arising out of the same or similar conduct or events that gave rise to the Claims
that are addressed by the Asbestos Permanent Channeling Injunction.
h. The actual amounts, numbers and timing of such future Demands cannot be determined.
i. Pursuit of such Demands outside the procedures prescribed by the Plan is likely to
threaten the Plans purpose to deal equitably with Claims and future Demands.
j. The terms of the Asbestos Permanent Channeling Injunction, including any provisions
barring actions against third parties pursuant to section 524(g)(4)(A) of the Bankruptcy
Code, are set out in the Plan and in the Disclosure Statement.
k. The Plan establishes, in Class 7 (Asbestos Personal Injury Claims), a separate class
of the claimants whose Claims are to be addressed by the Asbestos Personal Injury Trust.
l. Class 7 (Asbestos Personal Injury Claims) has voted, by at least 75 percent of those
voting, in favor of the Plan.
m. Pursuant to court orders or otherwise, the Asbestos Personal Injury Trust shall
operate through mechanisms such as structured, periodic or supplemental payments, pro rata
distributions, matrices or periodic review of estimates of the numbers and values of
Asbestos Personal Injury Claims or other comparable mechanisms, that provide reasonable
assurance that the Asbestos Personal Injury Trust shall value and be in a financial position
to pay, Asbestos Personal Injury Claims, including Demands, that involve similar Claims in
substantially the same manner.
n. Each Protected Party is identifiable from the terms of the Asbestos Permanent
Channeling Injunction by name or as part of an identifiable group, and each Protected Party
is or may be alleged to be directly or indirectly liable for the conduct of, Claims against
or Demands on a Debtor to the extent that such alleged liability arises by reason of one or
more of the following:
i. such Entitys ownership of a financial interest in any Debtor, Reorganized
Debtor, a Past Affiliate, a present Affiliate of any Debtor or Reorganized Debtor,
or Predecessor in Interest;
ii. such Entitys involvement in the management of any Debtor, any Reorganized
Debtor or any Predecessor in Interest;
iii. such Entitys service as an officer, director or employee of any Debtor,
any Reorganized Debtor, any Past Affiliate, any present Affiliate of any Debtor or
Reorganized Debtor, any Predecessor in Interest or any Entity that owns or at any
time has owned a financial interest in any Debtor, any Reorganized Debtor, any Past
Affiliate, any present Affiliate of any Debtor or Reorganized Debtor, or any
Predecessor in Interest; or
iv. such Entitys involvement in a transaction changing the corporate
structure, or in a loan or other financial transaction affecting the financial
condition, of any Debtor, any Reorganized Debtor or any Past Affiliate, any present
Affiliate of any Debtor or Reorganized Debtor, any Predecessor in Interest or any
Entity that owns or at any time has owned a financial interest in any Debtor, any
Reorganized Debtor, any Past Affiliate, any present Affiliate of any Debtor or
Reorganized Debtor, or any Predecessor in Interest, including (A) involvement in
43
providing financing (debt or equity) or advice to an Entity involved in such a
transaction or (B) acquiring or selling a financial interest in any Entity as part
of such transaction.
o. The Asbestos Personal Injury Futures Representative was appointed as part of the
proceedings leading to issuance of the Asbestos Permanent Channeling Injunction for the
purpose of protecting the rights of all persons, whether known or unknown, that might
subsequently assert, directly or indirectly against any Debtor, an Asbestos Personal Injury
Claim that is a Demand that is addressed in the Asbestos Permanent Channeling Injunction and
transferred to the Asbestos Personal Injury Trust, regardless of the nature or theory of
such Demand.
p. Identifying each Protected Party (by name or as part of identifiable group, as
applicable) in the Asbestos Permanent Channeling Injunction is fair and equitable with
respect to persons that might subsequently assert Demands against each such Protected Party,
in light of the benefits provided, or to be provided, to the Asbestos Personal Injury Trust,
on behalf of any such Protected Party.
q. The Plan and the Asbestos Personal Injury Trust (and related documents) comply with
section 524(g) of the Bankruptcy Code.
r. The Plan and its Exhibits are a fair, equitable and reasonable resolution of the
liabilities of the Debtors for the Asbestos Personal Injury Claims.
s. The Asbestos Personal Injury Futures Representative has adequately and completely
fulfilled his duties, responsibilities and obligations as the representative for the persons
set forth in finding Section VIII.A.4.o above in accordance with section 524(g) of the
Bankruptcy Code.
t. Adequate and sufficient notice of the Disclosure Statement, the Plan and the
Confirmation Hearing, along with all deadlines for voting on or objecting to the Plan has
been given to (i) all known creditors and holders of Interests, (ii) parties that requested
notice in accordance with Bankruptcy Rule 2002 (including the Asbestos Personal Injury
Committee, Asbestos Personal Injury Futures Representative, Asbestos Property Damage
Committee, the Equity Committee and the Creditors Committee), (iii) all parties to
Unexpired Leases and Executory Contracts with the Debtors and (iv) all taxing authorities
listed on the Debtors Schedules or in the Debtors Claims database, in each case, (A) in
accordance with the solicitation procedures governing such service and (B) in substantial
compliance with Bankruptcy Rules 2002(b), 3017 and 3020(b). Such transmittal and service
were adequate and sufficient to bind, among other parties, any holder of an Asbestos
Personal Injury Claim, and no other or further notice is or shall be required.
5. The Bankruptcy Court and the District Court, as required, shall have entered the Asbestos
Permanent Channeling Injunction (which may be included in the Confirmation Order), which shall
contain terms satisfactory to the Debtors and reasonably satisfactory to the Asbestos Personal
Injury Committee and the Asbestos Personal Injury Futures Representative.
B. Conditions to the Effective Date
The Effective Date shall not occur and the Plan shall not be consummated unless and until each
of the following conditions have been satisfied or duly waived pursuant to Section VIII.C:
1. The Bankruptcy Court or the District Court shall have entered an order (contemplated to be
part of the Confirmation Order) in form and substance satisfactory to the Debtors and reasonably
satisfactory to the Asbestos Personal Injury Committee and the Asbestos Personal Injury Futures
Representative approving and authorizing the Debtors and the Reorganized Debtors to take all
actions necessary or appropriate to implement the
44
Plan, including completion of the Restructuring Transactions and other transactions
contemplated by the Plan and the implementation and consummation of contracts, instruments,
releases and other agreements or documents created in connection with the Plan.
2. The Confirmation Order has been entered by the Bankruptcy Court or the District Court (and,
if the Confirmation Order is entered by the Bankruptcy Court, has been fully affirmed by the
District Court) and shall have become a Final Order.
3. The Confirmation Order and the Asbestos Permanent Channeling Injunction shall be in full
force and effect.
4. The Asbestos Personal Injury Trustees shall have been selected and shall have executed and
delivered the Asbestos Personal Injury Trust Agreement.
5. Each of the Exhibits, the Rights Offering Documents and any debt documents shall be fully
executed and delivered to the Debtors, shall be in form and substance acceptable to the Debtors and
reasonably satisfactory to the Asbestos Personal Injury Committee and the Asbestos Personal Injury
Futures Representative and shall be fully enforceable in accordance with their terms.
6. The Registration Statement shall have become effective and no stop order suspending the
effectiveness thereof shall have been issued or proceedings therefor been initiated or threatened
in writing by the Securities and Exchange Commission and shall be in full force and effect.
7. The Effective Date shall have occurred on or before August 1, 2006.
C. Waiver of Conditions to Confirmation or the Effective Date
The conditions to Confirmation set forth in Section VIII.A and the conditions to the Effective
Date set forth in Section VIII.B may be waived in whole or part in writing by the Debtors at any
time without an order of the Bankruptcy Court or the District Court; provided, however, (1) the
conditions contained in Sections VIII.A.1, VIII.A.3, VIII.A.5, VIII.B.1, VIII.B.5 and VIII.B.7 may
only be waived with the consent of the Asbestos Personal Injury Committee and Asbestos Personal
Injury Futures Representative, which shall not be unreasonably withheld; and (2) the conditions
contained in Section VIII.A.2 may only be waived with the consent of the New Investor.
D. Effect of Nonoccurrence of Conditions to the Effective Date
If each of the conditions to the Effective Date is not satisfied or duly waived in accordance
with Section VIII.C, then upon motion by the Debtors made before the time that each of such
conditions has been satisfied or duly waived and upon notice to such parties in interest as the
Bankruptcy Court may direct, the Confirmation Order shall be vacated by the Bankruptcy Court;
provided, however, that, notwithstanding the Filing of such motion, the Confirmation Order may not
be vacated if each of the conditions to the Effective Date is either satisfied or duly waived
before the Bankruptcy Court enters an order granting such motion. If the Confirmation Order is
vacated pursuant to this Section VIII.D, (1) the Plan shall be null and void in all respects,
including with respect to the discharge of Claims; and (2) nothing contained in the Plan shall (a)
constitute a waiver or release of any claims by or against, or any Interest in, the Debtors or (b)
prejudice in any manner the rights of the Debtors or any other party in interest.
45
ARTICLE IX.
DISCHARGE, INJUNCTION
AND SUBORDINATION RIGHTS
A. Discharge of Claims
1. Except as provided in the Plan or in the Confirmation Order, the rights afforded under the
Plan and the treatment of Claims and Interests under the Plan shall be in exchange for and in
complete satisfaction, discharge and release of all Claims, including any Asbestos Personal Injury
Claims (other than Demands) and including any interest accrued on Claims from the Petition Date.
Except as provided in the Plan or in the Confirmation Order, Confirmation shall, as of the
Effective Date discharge the Debtors from all Claims or other Liabilities that arose on or before
the Effective Date and all debts of the kind specified in section 502(g), 502(h) or 502(i) of the
Bankruptcy Code, whether or not (a) a proof of Claim based on such debt is Filed or deemed Filed
pursuant to section 501 of the Bankruptcy Code, (b) a Claim based on such debt is allowed pursuant
to section 502 of the Bankruptcy Code or (c) the holder of a Claim based on such debt has accepted
the Plan.
2. In accordance with the foregoing, except as provided in the Plan or the Confirmation Order,
the Confirmation Order shall be a judicial determination, as of the Effective Date, of a discharge
of all Claims, including any Asbestos Personal Injury Claims (other than Demands) and other debts
and Liabilities against the Debtors, pursuant to sections 524 and 1141 of the Bankruptcy Code, and
such discharge shall void any judgment obtained against a Debtor at any time, to the extent that
such judgment relates to a discharged Claim.
B. Injunctions
1. General Injunctions
a. Except as provided in the Plan or the Confirmation Order, as of the Effective Date,
all Entities that have held, currently hold or may hold a Claim or other debt or liability
that is discharged pursuant to the terms of the Plan shall be permanently enjoined from
taking any of the following actions on account of any such discharged Claims, debts or
liabilities: (i) commencing or continuing in any manner any action or other proceeding
against the Debtors, the Reorganized Debtors or their respective property, other than to
enforce any right pursuant to the Plan to a Distribution; (ii) enforcing, attaching,
collecting or recovering in any manner any judgment, award, decree or order against the
Debtors, the Reorganized Debtors or their respective property, other than as permitted
pursuant to (i) above; (iii) creating, perfecting or enforcing any lien or encumbrance
against the Debtors, the Reorganized Debtors or their respective property; (iv) asserting a
setoff, right of subrogation or recoupment of any kind against any debt, liability or
obligation due to the Debtors or the Reorganized Debtors; and (v) commencing or continuing
any action, in any manner, in any place that does not comply with or is inconsistent with
the provisions of the Plan.
b. As of the Effective Date, all Entities that have held, currently hold or may hold
any Claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action
or liabilities that are released pursuant to the Plan shall be permanently enjoined from
taking any of the following actions against any released Entity or its property on account
of such released claims, obligations, suits, judgments, damages, demands, debts, rights,
causes of action or liabilities: (i) commencing or continuing in any manner any action or
other proceeding; (ii) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order; (iii) creating, perfecting or enforcing any lien or
encumbrance; (iv) asserting a setoff, right of subrogation or recoupment of any kind against
any debt, liability or obligation due to any released
46
Entity; and (v) commencing or continuing any action, in any manner, in any place that
does not comply with or is inconsistent with the provisions of the Plan.
c. By accepting Distributions pursuant to the Plan, each holder of an Allowed Claim
receiving Distributions pursuant to the Plan shall be deemed to have specifically consented
to the injunctions set forth in this Section IX.B.
2. Asbestos Permanent Channeling Injunction
Pursuant to section 524(g) of the Bankruptcy Code, the Plan and the Confirmation Order shall
permanently and forever stay, restrain and enjoin any Entity from taking any actions against any
Protected Party for the purpose of, directly or indirectly, collecting, recovering or receiving
payment of, on or with respect to any Asbestos Personal Injury Claim, all of which shall be
channeled to the Asbestos Personal Injury Trust for resolution as set forth in the Asbestos
Personal Injury Trust Agreement and the related Asbestos Personal Injury Trust Distribution
Procedures, including:
a. commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including a judicial, arbitral, administrative or other
proceeding) in any forum against any Protected Party or any property or interests in
property of any Protected Party;
b. enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Protected Party or any property or
interests in property of any Protected Party;
c. creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Protected Party or any property or interests in property of any
Protected Party;
d. setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any liability
owed to any Protected Party or any property or interests in property of any Protected Party;
and
e. proceeding in any manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust, except in conformity and
compliance therewith.
The Asbestos Personal Injury Trust shall protect, defend, indemnify and hold harmless, to the
fullest extent permitted by applicable law, each Protected Party from and against any Asbestos
Personal Injury Claim and any related damages.
3. Asbestos Personal Injury Insurance Asset Entity Injunction
a. Purpose and Provisions
In order to protect the Asbestos Personal Injury Trust and to preserve its assets, pursuant to
the equitable jurisdiction and power of the Bankruptcy Court under section 105(a) of the Bankruptcy
Code, the Bankruptcy Court shall issue the Asbestos Personal Injury Insurance Entity Injunction as
described in Section IX.B.3.b; provided, however, that, except as otherwise provided in the
Confirmation Order, (i) the Asbestos Personal Injury Trust shall have the sole and exclusive
authority at any time to terminate, or reduce or limit the scope of, the Asbestos Personal
47
Injury Insurance Entity Injunction with respect to any Asbestos Personal Injury Insurance
Asset upon express written notice to such Asbestos Personal Injury Insurance Asset Entity; and (ii)
the Asbestos Personal Injury Insurance Asset Entity Injunction is not issued for the benefit of any
Asbestos Personal Injury Insurance Asset Entity, and no Asbestos Personal Injury Insurance Asset
Entity is a third-party beneficiary of the Asbestos Personal Injury Insurance Entity Injunction.
b. Terms
Subject to the provisions of Section IX.B.3.a, all Entities (not including the Asbestos
Personal Injury Trust or the Reorganized Debtors) that have held or asserted, that hold or assert
or that may in the future hold or assert any Claim, Demand or cause of action (including any
Asbestos Personal Injury Claim assumed by the Asbestos Personal Injury Trust) against any Asbestos
Personal Injury Insurance Asset Entity based upon, relating to, arising out of or in any way
connected with any Asbestos Personal Injury Claim or Asbestos Personal Injury Insurance Asset
whenever and wherever arisen or asserted (including all Claims in the nature of or sounding in
tort, or under contract, warranty or any other theory of law, equity or admiralty) shall be stayed,
restrained and enjoined from taking any action for the purpose of directly or indirectly
collecting, recovering or receiving payments, satisfaction or recovery with respect to any such
Claim, Demand or cause of action, including:
i. commencing, conducting or continuing, in any manner, directly or indirectly, any
suit, action or other proceeding of any kind (including a judicial, arbitration,
administrative or other proceeding) in any forum with respect to any such Claim, Demand, or
cause of action against any Asbestos Personal Injury Insurance Asset Entity, or against the
property of any Asbestos Personal Injury Insurance Asset Entity, with respect to any such
Claim, Demand or cause of action;
ii. enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Asbestos Personal Injury Insurance Asset
Entity, or against the property of any Asbestos Personal Injury Insurance Asset Entity, with
respect to any such Claim, Demand or cause of action;
iii. creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Asbestos Personal Injury Insurance Asset Entity, or the property
of any Asbestos Personal Injury Insurance Asset Entity, with respect to any such Claim,
Demand or cause of action; and
iv. setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any obligation
of any Asbestos Personal Injury Insurance Asset Entity, or against the property of any
Asbestos Personal Injury Insurance Asset Entity, with respect to any such Claim, Demand and
or cause of action.
c. Reservations
Notwithstanding anything to the contrary above, this Asbestos Personal Injury Insurance Entity
Injunction shall not enjoin:
i. the rights of Entities to the treatment accorded them under Articles II and III of
this Plan, as applicable, including the rights of Entities with Asbestos Personal Injury
Claims to assert such Asbestos Personal Injury Claims against the Asbestos Personal Injury
Trust, in accordance with the Asbestos Personal Injury Trust Distribution Procedures and the
terms of this Plan;
48
ii. the rights of Entities to assert any Claim, debt, obligation or liability for
payment of Asbestos Personal Injury Trust-related expenses against the Asbestos Personal
Injury Trust;
iii. the rights of the Asbestos Personal Injury Trust and the Reorganized Debtors, as
applicable, to prosecute any action based on or arising from Asbestos Personal Injury
Insurance Asset;
iv. the rights of the Asbestos Personal Injury Trust to assert any claim, debt,
obligation or liability for payment against an Asbestos Personal Injury Insurance Asset
Entity based on or arising from the Asbestos Personal Injury Insurance Asset; and
v. the rights of Entities to assert any claim, debt, right, obligation or liability
that (A) arises or relates to any insurance policy or any portion of any insurance policy
that is not an Asbestos Personal Injury Insurance Asset and (B) is not subject to the
Asbestos Permanent Channeling Injunction.
C. Subordination Rights
The classification and manner of satisfying Claims and Interests under the Plan does not take
into consideration subordination rights, and nothing in the Plan or Confirmation Order shall affect
any subordination rights that a holder of a Claim may have with respect to any Distribution to be
made pursuant to the Plan, whether arising under general principles of equitable subordination,
contract, section 510(c) of the Bankruptcy Code or otherwise.
ARTICLE X.
RETENTION OF JURISDICTION
A. Retention of Exclusive Jurisdiction by the Bankruptcy Court
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date,
but subject to Section X.B, the Bankruptcy Court shall retain such exclusive jurisdiction over the
Reorganization Cases and any matter related to the Reorganization Cases after the Effective Date as
is legally permissible, including exclusive jurisdiction to:
1. Other than with respect to Asbestos Personal Injury Claims, allow, disallow, determine,
liquidate, classify, estimate or establish the priority or secured or unsecured status of any Claim
or Interest, including the resolution of any request for payment of any Administrative Claim or the
resolution of any objections to the allowance, priority or classification of Claims or Interests;
2. Grant or deny any applications for allowance of compensation or reimbursement of expenses
authorized pursuant to the Bankruptcy Code or the Plan for periods ending on or before the
Effective Date;
3. Resolve any matters, related to the assumption, assumption and assignment or rejection of
any Executory Contract or Unexpired Lease to which any Debtor is a party or with respect to which
any Debtor or Reorganized Debtor may be liable and to hear, determine and, if necessary, liquidate
any Claims arising therefrom, including any Cure Amount Claims;
4. Ensure that Distributions to holders of Allowed Claims are accomplished pursuant to the
provisions of the Plan;
49
5. 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 or brought thereafter;
6. Enter such orders as may be necessary or appropriate to implement or consummate the
provisions of the Plan and all contracts, instruments, releases and other agreements or documents
entered into or delivered in connection with the Plan, the Disclosure Statement or the Confirmation
Order;
7. Resolve any cases, controversies, suits or disputes that may arise in connection with the
consummation, interpretation or enforcement of the Plan or any contract, instrument, release or
other agreement or document that is entered into or delivered pursuant to the Plan or any Entitys
rights arising from or obligations incurred in connection with the Plan or such documents;
8. Modify the Plan before or after the Effective Date pursuant to section 1127 of the
Bankruptcy Code; modify the Disclosure Statement, the Confirmation Order or any contract,
instrument, release or other agreement or document entered into or delivered in connection with the
Plan, the Disclosure Statement or the Confirmation Order; or remedy any defect or omission or
reconcile any inconsistency in any Bankruptcy Court order, the Plan, the Disclosure Statement, the
Confirmation Order or any contract, instrument, release or other agreement or document entered
into, delivered or created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, in such manner as may be necessary or appropriate to consummate the Plan;
9. Issue injunctions, enforce the injunctions contained in the Plan and the Confirmation
Order, enter and implement other orders or take such other actions as may be necessary or
appropriate to restrain interference by any Entity with consummation, implementation or enforcement
of the Plan or the Confirmation Order;
10. Enter and implement such orders as are necessary or appropriate if the Confirmation Order
is for any reason or in any respect modified, stayed, reversed, revoked or vacated or Distributions
pursuant to the Plan are enjoined or stayed;
11. Determine such other matters that may arise in connection with or relate to the Plan, the
Disclosure Statement, the Confirmation Order or any contract, instrument, release or other
agreement or document entered into or delivered in connection with the Plan, the Disclosure
Statement or the Confirmation Order;
12. Determine matters concerning state, local and federal Taxes in accordance with sections
346, 505 and 1146 of the Bankruptcy Code, including any Disputed Claims for Taxes; and
13. Enter a final decree closing the Reorganization Cases.
To the extent that it is not legally permissible for the Bankruptcy Court to have exclusive
jurisdiction over any of the foregoing matters, the Bankruptcy Court shall have nonexclusive
jurisdiction over such matters to the extent legally permissible.
B. Exclusive Jurisdiction of the District Court
Notwithstanding the entry of the Confirmation Order, the occurrence of the Effective Date and
anything to the contrary in Section X.A, the District Court shall retain exclusive jurisdiction
over matters relating to section 524(g) of the Bankruptcy Code and the Asbestos Permanent
Channeling Injunction, including exclusive jurisdiction to determine matters that may be set forth
in the Asbestos Permanent Channeling Injunction, or that may arise in connection with the Asbestos
Permanent Channeling Injunction.
50
C. Jurisdiction Relating to Asbestos Personal Injury Claims
Notwithstanding anything in this Article X to the contrary, the resolution of Asbestos
Personal Injury Claims and the forum in which such resolution shall be determined shall be governed
by and in accordance with the Asbestos Personal Injury Trust Distribution Procedures and the
Asbestos Personal Injury Trust Agreement.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
A. Dissolution of the Committee and Discharge of Asbestos Personal Injury Futures Representative
On the Effective Date, each of the Creditors Committee, Asbestos Personal Injury Committee,
Asbestos Property Damage Committee and Equity Committee shall dissolve and the members of such
committees shall be released and discharged from all duties and obligations arising from or related
to the Reorganization Cases. Similarly, on the Effective Date, the Asbestos Personal Injury
Futures Representative shall be deemed released and discharged from all duties and obligations from
or related to the Reorganization Cases; provided, however, that the Asbestos Personal Injury
Futures Representative may continue to serve or have obligations under the Asbestos Personal Injury
Trust Agreement and be paid solely from the Asbestos Personal Injury Trust. The Professionals
retained by such committees and the members thereof or by the Asbestos Personal Injury Futures
Representative shall not be entitled to assert any Fee Claim for any services rendered or expenses
incurred after the Effective Date, except for services rendered and expenses incurred in connection
with any applications for allowance of compensation and reimbursement of expenses pending on the
Effective Date or Filed and served after the Effective Date pursuant to Section III.A.1.e.ii.A and
in connection with any appeal of the Confirmation Order.
B. Limitation of Liability
1. The Debtors, the Reorganized Debtors, the Credit Facilities Agent, the Creditors
Committee, the Asbestos Personal Injury Futures Representative, the Asbestos Personal Injury
Committee, the Equity Committee, the DIP Lender, the Indenture Trustees, the New Investor and their
respective directors, officers, employees, affiliates, subsidiaries, predecessors, successors,
members, attorneys, accountants, underwriters, investment bankers, financial advisors, appraisers,
representatives and agents, acting in such capacity, shall neither have nor incur any liability to
any Entity for any act taken or omitted to be taken in connection with, related to or arising out
of the Reorganization Cases or the consideration, formulation, preparation, dissemination,
implementation, Confirmation or consummation of the Plan, the Disclosure Statement or any
transaction proposed in connection with the Reorganization Cases or any contract, instrument,
release or other agreement or document created or entered into, or any other act taken or omitted
to be taken, in connection therewith; provided, however, that the foregoing provisions of this
Section XI.B.1 shall have no effect on: (a) the liability of any Entity that would otherwise
result from the failure to perform or pay any obligation or liability under the Plan or any
contract, instrument, release or other agreement or document to be entered into or delivered in
connection with the Plan or (b) the liability of any Entity that would otherwise result from any
such act or omission to the extent that such act or omission is determined in a Final Order to have
constituted gross negligence or willful misconduct.
2. Notwithstanding any other provision of this Plan, no holder of a Claim or Interest, no
other party in interest, none of their respective agents, employees, representatives, financial
advisors, attorneys or affiliates, and no successors or assigns of the foregoing, shall have any
right of action against the Debtors, the Reorganized Debtors, the Credit Facilities Agent, the
Creditors Committee, the Asbestos Personal Injury Futures Representative, the Asbestos Personal
Injury Committee, the Equity Committee, the DIP Lender, the Indenture Trustees, the New Investor or
their respective directors, officers, employees, affiliates, subsidiaries, predecessors,
successors, members, attorneys, accountants, underwriters, investment bankers, financial
51
advisors, appraisers, representatives and agents, acting in such capacity, for any act or
omission in connection with, relating to or arising out of the Reorganization Cases or the
consideration, formulation, preparation, dissemination, implementation, Confirmation or
consummation of the Plan, the Disclosure Statement or any transaction or document created or
entered into, or any other act taken or omitted to be taken, in connection therewith, except for:
(a) the liability of any Entity that would otherwise result from the failure to perform or pay any
obligation or liability under the Plan or any contract, instrument, release or other agreement or
document to be entered into or delivered in connection with the Plan or (b) the liability of any
Entity that would otherwise result from any such act or omission to the extent that such act or
omission is determined in a Final Order to have constituted gross negligence or willful misconduct.
C. Modification of the Plan and Exhibits
Subject to the restrictions on modifications set forth in section 1127 of the Bankruptcy Code,
the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend or modify
the Plan and the Exhibits to the Plan at any time before its substantial consummation. In
addition, any modification or amendment to the Plan or the Exhibits that affects the treatment of
Asbestos Personal Injury Claims shall require the consent of the Asbestos Personal Injury Committee
and the Asbestos Personal Injury Futures Representative, which shall not be unreasonably withheld.
D. Revocation of the Plan
The Debtors reserve the right to revoke or withdraw the Plan as to any or all of the Debtors
prior to the Confirmation Date. If the Debtors revoke or withdraw the Plan as to any or all of the
Debtors, or if Confirmation as to any or all of the Debtors does not occur, then, with respect to
such Debtors, the Plan shall be null and void in all respects, and nothing contained in the Plan
shall: (1) constitute a waiver or release of any claims by or against, or any Interests in, such
Debtors or (2) prejudice in any manner the rights of any Debtors or any other party.
E. Headings
The headings used in the Plan are inserted for convenience only and neither constitute a
portion of the Plan nor in any manner affect the construction of the provisions of the Plan.
F. Successors and Assigns
The rights, benefits and obligations of any Entity named or referred to in the Plan shall be
binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or
assign of such Entity.
G. Service of Certain Plan Exhibits and Disclosure Statement Exhibits
Certain Exhibits are not being Filed or served with copies of the Plan and the Disclosure
Statement. The Debtors shall File such Exhibits no later than 10 days before the deadline to vote
to accept or reject the Plan. Once Filed, the Debtors shall make available for review the relevant
Exhibits on their web site at www.usg.com.
H. Service of Documents
Any pleading, notice or other document required by the Plan or Confirmation Order to be served
on or delivered to the Debtors, the Reorganized Debtors, the Creditors Committee, the Asbestos
Personal Injury Futures Representative, the Asbestos Personal Injury Committee, the Asbestos
Property Damage Committee, the Equity Committee or the U.S. Trustee must be sent by overnight
delivery service, facsimile transmission, courier service or messenger to:
52
1. The Debtors and the Reorganized Debtors
Daniel J. DeFranceschi
Paul N. Heath
RICHARDS, LAYTON & FINGER
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Fax: (302) 651-7701
and
David G. Heiman
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Fax: (216) 579-0212
and
Brad B. Erens
Michelle M. Harner
Mark A. Cody
JONES DAY
77 West Wacker Drive
Chicago, Illinois 60601
Fax: (312) 782-8585
2. The Creditors Committee
Lewis Kruger
Kenneth Pasquale
Denise K. Wildes
STROOCK & STROOCK & LAVAN
180 Maiden Lane
New York, NY 10038-4982
Fax: (212) 806-6006
53
3. Asbestos Personal Injury Futures Representative
Dean M. Trafelet
P.O. Box 518
9130 Wild Lane
Baileys Harbor, WI 54202
Fax: (920) 839-9438
and
Andrew Kress
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Fax: (212) 836-8689
4. The Asbestos Personal Injury Committee
Elihu Inselbuch
CAPLIN & DRYSDALE, CHTD.
375 Park Avenue
New York, NY 10022-4614
Fax: (212) 644-6755
and
Peter Van N. Lockwood
CAPLIN & DRYSDALE, CHTD.
One Thomas Circle, N.W.
Washington, D.C. 20005-5803
Fax: (202) 429-3301
5. The Asbestos Property Damage Committee
Scott L. Baena
Jay M. Sakalo
BILZIN SUMBERG BAENA
PRICE & AXELROD, LLP
2500 First Union Financial Center
200 South Biscayne Boulevard, Suite 2500
Miami, FL 33131-2336
Fax: (305) 374-7593
6. The Equity Committee
Martin J. Bienenstock
Judy G.Z. Liu
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Fax: (212) 310-8007
54
and
David A. Hickerson
WEIL, GOTSHAL & MANGES LLP
1300 Eye Street, N.W., Suite 900
Washington, DC 20005
Fax: (202) 857-0940
and
Ralph I. Miller
WEIL, GOTSHAL & MANGES LLP
200 Crescent Court, Suite 300
Dallas, TX 75201
Fax: (214) 746-7777
7. The U.S. Trustee
David Klauder
Office of the United States Trustee
844 King Street, Suite 2313, Lockbox 35
Wilmington, Delaware 19801
Fax: (302) 573-6497
8. The New Investor
Marc D. Hamburg
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, NE 68131
Fax: (402) 346-3375
and
Thomas B. Walper
Munger, Tolles & Olson LLP
355 South Grand Avenue
35th Floor
Los Angeles, CA 90071-1560
Fax: (213) 683-5193
55
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Dated: March 27, 2006 |
Respectfully submitted,
USG CORPORATION (for itself and on behalf of the
USG Subsidiary Debtors)
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By: |
/s/ Stanley L. Ferguson
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Stanley L. Ferguson |
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Executive Vice President and General Counsel |
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COUNSEL:
Daniel J. DeFranceschi (DE 2732)
Paul N. Heath (DE 3704)
RICHARDS, LAYTON & FINGER
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Telephone: (302) 651-7700
- and -
David G. Heiman (OH 0038271)
Gus Kallergis (OH 0071557)
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telephone: (216) 586-3939
Brad B. Erens (IL 6206864)
Michelle M. Harner (IL 6276282)
Mark A. Cody (IL 6236871)
Daniel B. Prieto (IL 6272888)
JONES DAY
77 West Wacker
Chicago, Illinois 60601
Telephone: (312) 782-3939
ATTORNEYS FOR DEBTORS
56
Exhibit 2.02
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
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In re:
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:
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Chapter 11 |
USG CORPORATION,
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a
Delaware corporation, et al.,
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:
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Jointly Administered |
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:
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Misc. No. 06-119 |
Debtors.
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re:
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:
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Chapter 11 |
USG CORPORATION,
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a
Delaware corporation, et al.,1
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Jointly Administered |
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Case No. 01-2094 (JKF) |
Debtors.
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ORDER CONFIRMING THE FIRST AMENDED JOINT
PLAN OF REORGANIZATION OF USG CORPORATION
AND ITS DEBTOR SUBSIDIARIES, AS MODIFIED
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1 |
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The Debtors are the following 11 entities: USG Corporation, United States Gypsum Company, USG Interiors, Inc.,
USG Interiors International, Inc., L&W Supply Corporation, Beadex Manufacturing, LLC, B-R Pipeline Company, La Mirada Products Co.,
Inc., USG Industries, Inc., USG Pipeline Company and Stocking Specialists, Inc. |
TABLE OF CONTENTS
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Page |
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I. |
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GENERAL PROVISIONS REGARDING CONFIRMATION OF THE PLAN AND APPROVAL OF PLAN-RELATED DOCUMENTS |
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5 |
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A. MODIFICATIONS TO THE PLAN |
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5 |
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B. CONFIRMATION OF THE PLAN |
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5 |
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C. CONDITIONS TO CONFIRMATION AND CONSUMMATION OF THE PLAN |
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5 |
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D. EFFECTS OF CONFIRMATION |
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6 |
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E. APPROVAL, MODIFICATION AND EXECUTION OF PLAN-RELATED DOCUMENTS |
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II. |
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CLAIMS BAR DATES AND OTHER CLAIMS MATTERS |
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A. GENERAL BAR DATE PROVISIONS FOR ADMINISTRATIVE CLAIMS |
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B. BAR DATE FOR PROFESSIONAL FEE CLAIMS |
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C. BAR DATE FOR REJECTION DAMAGES CLAIMS |
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9 |
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D. RESOLUTION OF POSTPETITION INTEREST DISPUTES |
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9 |
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E. REINSTATEMENT OF CERTAIN CONTINGENT CLAIMS |
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F. ENFORCEMENT OF BAR DATE ORDER |
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III. |
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APPROVAL OF EXECUTORY CONTRACT AND UNEXPIRED LEASE PROVISIONS AND RELATED PROCEDURES |
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11 |
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IV. |
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MATTERS RELATING TO IMPLEMENTATION OF THE PLAN |
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11 |
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A. ACTIONS IN FURTHERANCE OF THE PLAN |
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B. APPROVAL OF NEW INVESTOR DOCUMENTS AND RIGHTS OFFERING |
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C. CREATION OF ASBESTOS PERSONAL INJURY TRUST |
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D. TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE
ASBESTOS PERSONAL INJURY TRUST |
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1. Transfer of Books and Records to the Asbestos Personal Injury Trust |
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2. Funding the Asbestos Personal Injury Trust |
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3. Transfer of the Asbestos Personal Injury Insurance Asset |
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4. Assumption of Certain Liabilities by the Asbestos Personal Injury Trust |
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15 |
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5. Indemnification by the Asbestos Personal Injury Trust |
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16 |
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-i-
TABLE
OF CONTENTS
(Continued)
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Page |
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E. RELEASE OF LIENS |
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16 |
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F. EXEMPTIONS FROM TAXATION |
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16 |
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V. |
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RELEASES AND EXCULPATION PROVISIONS |
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17 |
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VI. |
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OBJECTIONS TO CONFIRMATION |
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17 |
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A. RESOLUTION OF CERTAIN OBJECTIONS TO CONFIRMATION |
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17 |
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B. OVERRULING OF CERTAIN OBJECTIONS TO CONFIRMATION |
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19 |
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VII. |
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DISCHARGE AND INJUNCTIONS |
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19 |
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A. DISCHARGE OF CLAIMS |
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19 |
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B. INJUNCTIONS |
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19 |
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1. Issuance of the Asbestos Permanent Channeling
Injunction and the Asbestos Personal Injury Insurance Asset Entity
Injunction |
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19 |
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2. Protected Parties Under the Asbestos Permanent
Channeling Injunction |
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20 |
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3. Asbestos Permanent Channeling Injunction |
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21 |
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4. Asbestos Personal Injury Insurance Asset Entity Injunction |
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23 |
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5. General Injunctions Related to Discharge or Releases
Granted Pursuant to the Plan |
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25 |
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VIII. |
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DISSOLUTION OF THE COMMITTEES AND DISCHARGE OF THE ASBESTOS PERSONAL INJURY |
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26 |
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FUTURES REPRESENTATIVE |
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IX. |
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RETENTION OF JURISDICTION BY THE BANKRUPTCY COURT AND THE DISTRICT |
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27 |
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A. RETENTION OF EXCLUSIVE JURISDICTION BY THE BANKRUPTCY COURT |
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27 |
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B. EXCLUSIVE JURISDICTION OF THE DISTRICT COURT |
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27 |
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C. JURISDICTION RELATING TO ASBESTOS PERSONAL INJURY CLAIMS |
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28 |
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X. |
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WAIVER OF THE STAY OF BANKRUPTCY RULE 3020(E) |
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28 |
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XI. |
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NOTICE OF ENTRY OF CONFIRMATION ORDER |
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28 |
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XII. |
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ORDERS OF THE BANKRUPTCY COURT AND THE DISTRICT COURT |
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30 |
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-ii-
TABLE OF EXHIBITS
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Exhibit |
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Exhibit Name |
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A
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Plan |
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B
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Modifications |
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C
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Confirmation Notice |
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D
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|
Confirmation Notice Publication Version |
iii
INTRODUCTION
WHEREAS, USG Corporation, United States Gypsum Company, USG Interiors, Inc., USG Interiors
International, Inc., L&W Supply Corporation, Beadex Manufacturing, LLC, B-R Pipeline Company, La
Mirada Products Co., Inc., USG Industries, Inc., USG Pipeline Company and Stocking Specialists,
Inc., the above-captioned debtors (collectively, the Debtors and, as reorganized entities after
emergence, the Reorganized Debtors), proposed the First Amended Joint Plan of Reorganization of
USG Corporation and Its Debtor Subsidiaries, dated March 27, 2006, as modified by the modifications
set forth in Exhibit B attached hereto and incorporated herein by reference (as it may be further
modified, the Plan);2
WHEREAS, the Bankruptcy Court, on April 7, 2006, entered its Order Approving (A) Disclosure
Statement, (B) Notice of Disclosure Statement Hearing, (C) Contents of Plan Solicitation Packages,
(D) Procedures for the Distribution of Solicitation Packages and the Solicitation and Tabulation of
Votes to Accept or Reject Proposed Joint Plan of Reorganization and (E) Certain Related Relief
(D.I. 10847) (the Disclosure Statement Order), by which the Bankruptcy Court, among other things,
approved the Debtors proposed disclosure statement (the Disclosure Statement), established
procedures for the solicitation and tabulation of votes to accept or reject the Plan and scheduled
a hearing to consider Confirmation of the Plan for June 15, 2006 at 9:00 a.m., to be continued on
June 16, 2006 if necessary (the Confirmation Hearing);
|
|
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2 |
|
Capitalized terms and phrases used herein have the meanings given to them in the Plan. The rules of interpretation set forth in Section I.B.1 of the Plan apply to the Findings of Fact and Conclusions of Law (the Findings and Conclusions), which are being entered concurrently herewith, and to this Order (this Confirmation Order). In addition, in accordance with Section I.A of the Plan, any term used in the Plan or this Confirmation Order that is not defined in the Pl
an or this Confirmation Order, but that is used in the Bankruptcy Code or the Bankruptcy Rules, has the meaning given to that term in the Bankruptcy Code or the Bankruptcy Rules, as applicable. |
|
|
|
A copy of the Plan (without the exhibits thereto) is attached hereto as Exhibit A and incorporated herein by reference. |
WHEREAS, affidavits of service were executed by Kathleen M. Logan with respect to the mailing
of notice of the Confirmation Hearing and solicitation materials in respect of the Plan in
accordance with the Disclosure Statement Order (collectively, the Affidavits of Service) and were
filed with the Bankruptcy Court on May 31, 2006 (D.I. 11487), May 31, 2006 (D.I. 11488), May 31,
2006 (D.I. 11489); May 31, 2006 (D.I. 11490) and June 1, 2006 (D.I. 11523);
WHEREAS, the Affidavit of Katherine Kinsella Outlining Implementation of the Notice of (A)
Deadline for Casting Votes to Accept or Reject Proposed Joint Plan of Reorganization, (B) Hearing
to Consider Confirmation of Proposed Joint Plan of Reorganization and (C) Related Matters (D.I.
11338) (the Publication Affidavit) was filed with the Bankruptcy Court on May 16, 2006, regarding
the publication of the Notice of (A) Deadline for Casting Votes to Accept or Reject Proposed Joint
Plan of Reorganization, (B) Hearing to Consider Confirmation of Proposed Joint Plan of
Reorganization and (C) Related Matters and/or the other form of publication notice approved by the
Bankruptcy Court in certain magazines and newspapers as set forth in the Disclosure Statement
Order;
WHEREAS, Logan & Company, Inc., the Bankruptcy Court-appointed solicitation and tabulation
agent in respect of the Plan, filed the Declaration of Kathleen M. Logan Certifying the Methodology
for Tabulating Votes on, and the Results of Voting with Respect to, the First Amended Joint Plan of
Reorganization of USG Corporation and Its Debtor Subsidiaries (D.I. 11650) (the Voting
Declaration) on June, 14, 2006, attesting to the results of the tabulation of the properly
executed and timely received Ballots for the Plan as follows:
Class 7 Claimants. The Debtors received 252,469 acceptances out of 253,136 votes from
holders of Claims under Class 7 (Asbestos Personal Injury Claims), with Class 7
- 2 -
claimants who voted
in favor of the Plan holding Claims in the amount of $3,002,987,928 for voting purposes, such
acceptances being 99.74 percent in number and 99.68 percent in amount of all ballots received from
holders of Class 7 Claims (Voting Declaration ¶¶ 18-19);
WHEREAS, objections to Confirmation of the Plan (collectively, the Objections) were filed
by: the Nevada Department of Taxation (D.I. 11427); the New York State Department of Taxation and
Finance (not listed on docket); New Jersey Self-Insurers Guaranty Association (D.I. 11447);
Wilmington Trust Company (D.I. 11452); United States Trustee (D.I. 11455); and Wells Fargo Bank,
N.A. (D.I. 11456);
WHEREAS, the Debtors filed modifications to the Plan (D.I. 11602, which are set forth in
Exhibit B attached hereto (collectively, the Modifications);
WHEREAS, the Debtors filed a memorandum of law in support of Confirmation of the Plan and in
response to certain of the Objections (D.I. 11603) (the Memorandum of Law);
WHEREAS, the declarations of Matthew R. Rosenberg (D.I. 11599), Richard H. Fleming (D.I.
11600), Stanley L. Ferguson (D.I. 11601), Dean M. Trafelet (D.I. 11598) and Mark A. Peterson (D.I.
11597) were submitted in support of the Plan (collectively, the Declarations);
WHEREAS the expert report of Mark A. Peterson, which was included as Exhibit 2 to the Peterson
Declaration, was submitted in support of the Plan (the Peterson Report) and was uncontradicted at
the Confirmation Hearing;
WHEREAS, the Bankruptcy Court and the District Court have reviewed the Plan, the Disclosure
Statement, the Disclosure Statement Order, the Voting Declaration, the Affidavits of Service, the
Publication Affidavit, the Objections, the Memorandum of Law, the Declarations
- 3 -
and the other papers
before the Bankruptcy Court and the District Court in connection with the Confirmation of the Plan;
WHEREAS, the Bankruptcy Court and the District Court, sitting jointly together for purposes of
the Confirmation Hearing, (1) heard the statements of counsel and the testimony of Stanley L.
Ferguson in support of Confirmation and (2) considered the Declarations submitted into evidence,
all as reflected in the record made at the Confirmation Hearing;
WHEREAS, the Bankruptcy Court and the District Court have considered all evidence presented at
the Confirmation Hearing;
WHEREAS, the Bankruptcy Court and the District Court have taken judicial notice of the papers
and pleadings on file in these chapter 11 cases;
WHEREAS, the Bankruptcy Court has separately entered the Findings and Conclusions, including
the findings that (i) the Bankruptcy Court and the District Court have jurisdiction over this
matter pursuant to 28 U.S.C. §§ 157 and 1334, (ii) this is a core proceeding pursuant to 28 U.S.C.
§ 157(b)(2), (iii) the Debtors were and are qualified to be debtors under section 109 of the
Bankruptcy Code and (iv) venue of the Reorganization Cases in the United States Court for the
District of Delaware was proper as of the Petition Date, pursuant to 28 U.S.C. § 1408, and
continues to be proper; and
WHEREAS, the Findings and Conclusions establish just cause for the relief granted herein;
- 4 -
THE BANKRUPTCY COURT AND THE DISTRICT COURT HEREBY ORDER THAT:
I. |
|
GENERAL PROVISIONS REGARDING CONFIRMATION OF THE PLAN AND APPROVAL OF PLAN-RELATED
DOCUMENTS. |
|
A. |
|
MODIFICATIONS TO THE PLAN. |
The Modifications to the Plan are approved in all respects. Accordingly, the Debtors are
authorized to make the Modifications to the Plan.
|
B. |
|
CONFIRMATION OF THE PLAN. |
The Plan and each of its provisions (whether or not specifically approved herein) and all
exhibits thereto are CONFIRMED in each and every respect, pursuant to section 1129 of the
Bankruptcy Code; provided, however, that if there is any direct conflict between the terms of the
Plan or any exhibit thereto and the terms of this Confirmation Order, the terms of the Plan shall
control. The record of the Confirmation Hearing is closed.
|
C. |
|
CONDITIONS TO CONFIRMATION AND
CONSUMMATION OF THE PLAN. |
Nothing in this Confirmation Order or in the Findings and Conclusions shall in any way affect
the provisions of Article VIII of the Plan, which includes provisions regarding (1) the conditions
precedent to Confirmation of the Plan and to the Effective Date of the Plan, (2) the waiver of any
such conditions and (3) the effect that the nonoccurrence of such conditions may have with regard
to the Plan and this Confirmation Order. Upon the satisfaction or waiver of the conditions
contained in Section VIII.B of the Plan and the occurrence of the Effective Date, substantial
consummation of the Plan, within the meaning of section 1127 of the Bankruptcy Code, is deemed to
occur.
- 5 -
|
D. |
|
EFFECTS OF CONFIRMATION. |
Subject to Section I.C of this Confirmation Order, notwithstanding any otherwise applicable
law, immediately upon the entry of this Confirmation Order, the terms of the Plan and this
Confirmation Order shall be binding upon all Entities, including the Debtors, the Reorganized
Debtors, any and all holders of Claims, Demands or Interests (irrespective of whether such Claims
or Interests are impaired under the Plan or whether the holders of such Claims or Interests
accepted, rejected or are deemed to have accepted or rejected the Plan), any and all nondebtor
parties to Executory Contracts and Unexpired Leases with any of the Debtors and any and all
Entities who are parties to or are subject to the settlements, compromises, releases, waivers,
discharges and injunctions described herein and in the Findings and Conclusions and the respective
heirs, executors, administrators, trustees, affiliates, officers, directors, agents,
representatives, attorneys, beneficiaries, guardians, successors or assigns, if any, of any of the
foregoing.
|
E. |
|
APPROVAL, MODIFICATION AND EXECUTION OF PLAN-RELATED
DOCUMENTS. |
1. The Plan and all exhibits thereto, substantially in the form as they exist at the time of
the entry of this Confirmation Order, including the documents relating to the Asbestos Personal
Injury Trust, are approved in all respects.
2. All relevant parties, including the Debtors and the Asbestos Personal Injury Trustees,
shall be authorized, without further action by the Bankruptcy Court, to execute the applicable
Plan-Related Documents (as such capitalized term is defined in Section IV.A of this Confirmation
Order) and make modifications to such documents in accordance with the Plans terms, including
Section XI.C of the Plan, and the terms of the Plan-Related Documents, if
- 6 -
applicable, between the
time of entry of this Confirmation Order and the Effective Date of the Plan.
3. The Debtors are hereby authorized to amend or modify the Plan at any time prior to the
substantial consummation of the Plan, but only in accordance with section 1127 of the Bankruptcy
Code and Section XI.C of the Plan. In addition, without the need for a further order or
authorization of the Bankruptcy Court or further notice to any Entities, but subject to the express
provisions of this Confirmation Order and Section XI.C of the Plan, the Debtors shall be authorized
and empowered to make modifications to the documents Filed with the Bankruptcy Court, including
exhibits to the Plan or documents forming part of the evidentiary record at the Confirmation
Hearing, consistent with the terms of such documents in their reasonable business judgment as may
be necessary.
II. CLAIMS BAR DATES AND OTHER CLAIMS MATTERS.
|
A. |
|
GENERAL BAR DATE PROVISIONS FOR ADMINISTRATIVE CLAIMS. |
Except as otherwise provided in Section III.A.1.e.ii of the Plan and Sections II.B and II.C
below, unless previously Filed, requests for payment of Administrative Claims must be Filed and
served on the Reorganized Debtors at the addresses set forth in Section XI.H of the Plan no later
than 60 days after the Effective Date. Holders of Administrative Claims that are required to File
and serve a request for payment of such Administrative Claims and that do not File and serve such a
request by the applicable Bar Date shall be forever barred from asserting such Administrative
Claims against the Debtors, the Reorganized Debtors or their respective property and such
Administrative Claims shall be deemed discharged as of the Effective Date. Objections to such
requests must be Filed and served on the requesting party by 120 days after the Effective Date.
- 7 -
|
B. |
|
BAR DATE FOR PROFESSIONAL FEE CLAIMS. |
Professionals or other Entities asserting a Fee Claim for services rendered before the
Effective Date must File and serve on the Reorganized Debtors and such other Entities who are
designated by the Bankruptcy Rules, the Confirmation Order, the Fee Order or other order of the
Bankruptcy Court a Final Fee Application no later than the last business day of the month following
the month in which the Effective Date occurs; provided, however, that any professional who may
receive compensation or reimbursement of expenses pursuant to the Ordinary Course Professionals
Order may continue to receive such compensation and reimbursement of expenses for services rendered
before the Effective Date, without further Bankruptcy Court review or approval, pursuant to the
Ordinary Course Professionals Order. A Professional may include any outstanding, non-Filed monthly
or interim request for payment of a Fee Claim pursuant to the Fee Order in its Final Fee
Application. Objections to any Final Fee Application must be Filed and served on the Reorganized
Debtors and the requesting party no later than 30 days after the deadline for Filing Final Fee
Applications. The fee auditor in these Reorganization Cases (the Fee Auditor) shall provide
initial reports (Initial Reports) to all Final Fee Applications no later than 30 days after the
deadline for Filing Final Fee Applications, and any response to an Initial Report shall be provided
within 30 days of the Filing of the applicable Initial Report. If a Professional or other Entity
fails to respond timely to an Initial Report, the Fee Auditor is authorized to File a final report
(Final Report) immediately with respect to such Final Fee Application. Regardless of whether a
Professional provides a response to an Initial Report, the Fee Auditor shall File all Final Reports
regarding Final Fee Applications no later than 90 days after the deadline for Filing Final Fee
Applications. Any replies to the Fee Auditors Final Report shall be Filed within seven days of
the Filing of the applicable Final
- 8 -
Report. The December 18, 2006 omnibus hearing shall be the
final hearing on all Final Fee Applications. To the extent necessary, this Confirmation Order
shall amend and supersede any previously entered order of the Bankruptcy Court, including the Fee
Order, regarding the payment of Fee Claims. Any pending, Filed interim requests for a Fee Claim
pursuant to the Fee Order shall be resolved in the ordinary course in accordance with the Fee Order
or, if sooner, in connection with the particular Professionals Final Fee Application.
|
C. |
|
BAR DATE FOR REJECTION DAMAGES CLAIMS. |
Notwithstanding anything in the Bar Date Order to the contrary, if the rejection of an
Executory Contract or Unexpired Lease pursuant to Section V.C of the Plan gives rise to a Claim by
the other party or parties to such contract or lease, such Claim shall be forever barred and shall
not be enforceable against the Debtors, the Reorganized Debtors, their respective successors or
their respective properties unless a proof of Claim is Filed and served on the Reorganized Debtors
at the addresses set forth in Section XI.H of the Plan, on the later to occur of (1) 60 days after
the Effective Date or (2) 30 days after the date of entry of an Order rejecting such Executory
Contract or Unexpired Lease.
|
D. |
|
RESOLUTION OF POSTPETITION INTEREST DISPUTES. |
To the extent any holder of a Class 6 Claim believes that it is entitled to Postpetition
Interest at an interest rate other than the rate described in Section I.A.99.f.i of the Plan, the
holder of such Claim must timely File and serve on the Debtors at the addresses set forth in
Section XI.H of the Plan a Postpetition Interest Rate Determination Notice no later than June 26,
2006. Any disputes relating to a Postpetition Interest Rate Determination Notice shall be resolved
in accordance with Section IV.P of the Plan.
- 9 -
|
E. |
|
REINSTATEMENT OF CERTAIN CONTINGENT CLAIMS. |
1. Timely Claims (other than Asbestos Personal Injury Claims, Asbestos Property Damage Claims
or Litigation Claims) (a) that remain contingent Claims as of the Effective Date (including, any
liability or Claim for withdrawal liability under 29 U.S.C. §§ 1383 and/or 1385 of the Debtors or
any third-party) and (b) that have not been objected to or disallowed under section 502(e)(1)(b) of
the Bankruptcy Code or otherwise on or before the Claims Objection Bar Date shall be Reinstated and
left unimpaired under the Plan.
2. Such treatment as referenced in Section II.D.1 above includes any such Claim or liability
of the Debtors or any third-party to Central States, Southeast and Southwest Area Pension Fund
(Central States), a multi-employer plan as that term is defined by 29 U.S.C. § 1301(a)(3) (the
Central States Plan), which Claim shall be left unimpaired, shall not be discharged and shall
continue unaltered as if the Reorganization Cases had not been commenced. No third-party shall be
released from any liability or Claim that Central States may have against that third-party as a
result of the Debtors participation in the Central States Plan.
|
F. |
|
ENFORCEMENT OF BAR DATE ORDER. |
In accordance with the Bar Date Order and section 502(b)(9) of the Bankruptcy Code, any Entity
that failed to File a proof of Claim by the applicable Bar Date or was not otherwise permitted to
File a proof of Claim after the applicable Bar Date by a Final Order of the Bankruptcy Court is and
shall be barred, estopped and enjoined from asserting any Claim against the Debtors (1) in an
amount that exceeds the amount, if any, that is identified in the Schedules on behalf of such
Entity as undisputed, noncontingent and liquidated; or (2) of a different nature or a different
classification than any Claim identified in the Schedules on behalf of such Entity. All Claims
Filed after the applicable Bar Date and for which no Final Order has been entered by
- 10 -
the Bankruptcy
Court determining that such Claims were timely Filed shall be disallowed and expunged. Any
Distribution on account of such Claims shall be limited to the amount, if any, listed in the
applicable Schedules as undisputed, noncontingent and liquidated.
III. |
|
APPROVAL OF EXECUTORY CONTRACT AND UNEXPIRED LEASE PROVISIONS AND RELATED
PROCEDURES. |
A. The Executory Contract and Unexpired Lease provisions of Article V of the Plan are
specifically approved.
B. This Confirmation Order shall constitute an order of the Bankruptcy Court approving the
assumptions, assumptions and assignments and rejections described in Sections V.A and V.C of the
Plan, pursuant to section 365 of the Bankruptcy Code, as of the Effective Date.
IV. |
|
MATTERS RELATING TO IMPLEMENTATION OF THE PLAN. |
|
A. |
|
ACTIONS IN FURTHERANCE OF THE PLAN. |
1. Pursuant to section 1142 of the Bankruptcy Code, section 303 of the Delaware General
Corporation Law and any comparable provisions of the business corporation law of any other state
(collectively, the Reorganization Effectuation Statutes), without further action by the
Bankruptcy Court or the stockholders, members, managers or board of directors of any Debtor or
Reorganized Debtor, the Debtors, the Reorganized Debtors, as well as the Chairman of the Board,
Chief Executive Officer, President, Executive Vice President, Chief Financial Officer, Chief
Operating Officer, Executive Vice President, Senior Vice President or any Vice President
(collectively, the Responsible Officers) of the appropriate Debtor or Reorganized Debtor, are
authorized to: (a) take any and all actions necessary or appropriate to implement, effectuate and
consummate the Plan, this Confirmation Order or the transactions contemplated thereby or hereby,
including those transactions identified in Article IV of the Plan;
- 11 -
and (b) execute and deliver,
adopt or amend, as the case may be, any contracts, instruments, releases, agreements and documents
necessary to implement, effectuate and consummate the Plan (collectively, the Plan-Related
Documents), including those contracts, instruments, releases, agreements and documents identified
in Article IV of the Plan.
2. To the extent that, under applicable non-bankruptcy law, any of the foregoing actions would
otherwise require the consent or approval of the stockholders or directors of any of the Debtors or
Reorganized Debtors, this Confirmation Order shall, pursuant to section 1142 of the Bankruptcy Code
and the Reorganization Effectuation Statutes, constitute such consent or approval, and such actions
are deemed to have been taken by unanimous action of the directors and stockholders of the
appropriate Debtor or Reorganized Debtor.
3. The approvals and authorizations specifically set forth in this Confirmation Order are
nonexclusive and are not intended to limit the authority of any Debtor or Reorganized Debtor or any
officer thereof to take any and all actions necessary or appropriate to implement, effectuate and
consummate the Plan, this Confirmation Order or the transactions contemplated thereby or hereby.
In addition to the authority to execute and deliver, adopt or amend, as the case may be, the
contracts, instruments, releases and other agreements specifically granted in this Confirmation
Order, each of the Debtors and the Reorganized Debtors is authorized and empowered, without further
action in the Bankruptcy Court or its directors, managers, trustees, members or stockholders, to
take any and all such actions as any of its Responsible Officers may determine are necessary or
appropriate to implement, effectuate and consummate the Plan, this Confirmation Order or the
transactions contemplated thereby or hereby.
- 12 -
|
B. |
|
APPROVAL OF NEW INVESTOR DOCUMENTS AND RIGHTS OFFERING. |
1. The New Investor Documents are ratified and approved in all respects.
2. As of the Confirmation Date, the Debtors may enter into and effectuate any Rights Offering
Documents, if applicable, perform under the New Investor Documents and take any actions appropriate
or necessary to consummate the Rights Offering.
|
C. |
|
CREATION OF ASBESTOS PERSONAL INJURY TRUST. |
1. On the Effective Date, the Asbestos Personal Injury Trust shall be created in accordance
with the Plan and the Asbestos Personal Injury Trust Agreement. The Asbestos Personal Injury Trust
and the Asbestos Personal Injury Trustees are authorized and empowered to receive the property to
be transferred to the Asbestos Personal Injury Trust pursuant to Section IV.G of the Plan.
2. Pursuant to the Reorganization Effectuation Statutes, as applicable, and other appropriate
provisions of applicable state laws governing corporations or other legal Entities and section
1142(b) of the Bankruptcy Code, without further action by the Bankruptcy Court or the directors,
managers, trustees, partners, members or stockholders of any Reorganized Debtor, the Reorganized
Debtors are authorized and directed to execute, deliver and perform their obligations under the
Asbestos Personal Injury Trust Agreement and to execute, deliver, file and record all such other
contracts, instruments, agreements or documents and take all such other actions as any of the
Responsible Officers of the Reorganized Debtors may determine are necessary, appropriate or
desirable in connection therewith. The Asbestos Personal Injury Trust Agreement, as in effect on
the Effective Date, shall be substantially in the form of Exhibit I.A.18 to the Plan. The Asbestos
Personal Injury Trust Distribution Procedures shall be substantially in the form of Exhibit I.A.19;
provided, however, that any holder of an Asbestos Personal Injury
- 13 -
Claim in Class 7 submitting a
ballot to accept or reject the Plan after June 2, 2006 but on or before June 13, 2006 shall not be
disqualified from being considered a PI Trust Voting Claim for purposes of the Asbestos Personal
Injury Trust Distribution Procedures on account of such holders submission of a ballot after the
June 2, 2006 voting deadline.
|
D. |
|
TRANSFERS OF PROPERTY TO AND ASSUMPTION OF CERTAIN LIABILITIES BY THE ASBESTOS
PERSONAL INJURY TRUST. |
|
1. |
|
Transfer of Books and Records to the Asbestos Personal Injury
Trust. |
a. As described in Section IV.G.1 of the Plan, on the Effective Date or as soon
thereafter as is reasonably practicable, on the terms of the Cooperation Agreement and in
accordance with written instructions provided to the Reorganized Debtors by the Asbestos
Personal Injury Trust, the Reorganized Debtors shall transfer and assign, or cause to be
transferred and assigned, to the Asbestos Personal Injury Trust copies of those books and
records agreed upon by the parties that pertain directly to Asbestos Personal Injury Claims
that have been asserted against any Debtor.
b. In furtherance of Section IV.G.1 of the Plan, the Cooperation Agreement, in
substantially the form of Exhibit IV.G.1 to the Plan, is approved and the Reorganized
Debtors are authorized to enter into and perform under such agreement.
c. Pursuant to the Plan and this Confirmation Order, to the extent the Debtors or
Reorganized Debtors provide any privileged books and records under Section IV.G.1 of the
Plan, such transfer shall not result in the destruction or waiver of any applicable
privileges pertaining to such books and records.
|
2. |
|
Funding the Asbestos Personal Injury Trust. |
|
|
The Reorganized Debtors shall fund the Asbestos Personal Injury Trust in accordance with
Section IV.G.2 of the Plan. |
- 14 -
|
3. |
|
Transfer of the Asbestos Personal Injury Insurance Asset. |
On the Effective Date, the Reorganized Debtors shall transfer to the Asbestos Personal Injury
Trust the Asbestos Personal Injury Insurance Asset.
|
4. |
|
Assumption of Certain Liabilities by the Asbestos Personal
Injury Trust. |
On the Effective Date, upon creation of the Asbestos Personal Injury Trust, the Asbestos
Personal Injury Trust, in consideration for the property transferred to the Asbestos Personal
Injury Trust pursuant to Sections IV.G.2 and IV.G.3 of the Plan and in furtherance of the purposes
of the Asbestos Personal Injury Trust and the Plan, shall, automatically and without further act or
deed, assume all Liabilities and responsibility for all Asbestos Personal Injury Claims, and the
Reorganized Debtors shall have no further financial or other responsibility or liability therefor.
The Asbestos Personal Injury Trust also shall, automatically and without further act or deed,
assume all liability for premiums, deductibles, retrospective premium adjustments, security or
collateral arrangements, or any other charges, costs, fees or expenses (if any) that become due to
any insurer in connection with the Asbestos Personal Injury Insurance Asset as a result of Asbestos
Personal Injury Claims against Entities insured under policies included in the Asbestos Personal
Injury Insurance Asset by reason of vendors endorsements, or under the indemnity provisions of
settlement agreements that any Debtor made with various insurers prior to the Petition Date to the
extent that those indemnity provisions relate to Asbestos Personal Injury Claims, and the
Reorganized Debtors shall have no further financial or other responsibility or liability for any of
the foregoing. Except as otherwise provided in the Plan, the Asbestos Personal Injury
Trust Agreement and the Asbestos Personal Injury Trust Distribution Procedures, the Asbestos
Personal Injury Trust shall have all defenses, cross-claims, offsets and recoupments, as well as
rights of indemnification, contribution, subrogation and similar rights,
- 15 -
regarding such Asbestos
Personal Injury Claims that the Debtors or the Reorganized Debtors have or would have had under
applicable law.
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5. |
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Indemnification by the Asbestos Personal Injury Trust. |
The Asbestos Personal Injury Trust shall protect, defend, indemnify and hold harmless, to the
fullest extent permitted by applicable law, each Protected Party from and against any Asbestos
Personal Injury Claim and any related damages.
Except as otherwise provided in the Plan (including with respect to those Industrial Revenue
Bonds that are Reinstated pursuant to Section III.B.5 of the Plan) or in any contract, instrument,
release or other agreement or document entered into or delivered in connection with the Plan, on
the Effective Date and concurrently with the applicable Distributions made pursuant to Article III
of the Plan, all mortgages, deeds of trust, liens or other security interests against the property
of any Estate shall be fully released and discharged, and all of the right, title and interest of
any holder of such mortgages, deeds of trust, liens or other security interests, including any
rights to any collateral thereunder, shall revert to the applicable Reorganized Debtor and its
successors and assigns and the former holder thereof will, upon request of any Debtor, execute such
documents evidencing such release and discharge as such Debtor may reasonably request.
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F. |
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EXEMPTIONS FROM TAXATION. |
Pursuant to section 1146(a) (formerly 1146(c)) of the Bankruptcy Code, (1) the following shall
not be subject to any stamp tax or similar tax: (a) the issuance, transfer or exchange of the
Additional Common Stock, the Note or the Contingent Payment Note; (b) the creation of any mortgage,
deed of trust, lien or other security interest; (c) the making or
- 16 -
assignment of any lease or
sublease; (d) any Restructuring Transaction; or (e) the making or delivery of any deed or other
instrument of transfer under, in furtherance of or in connection with the Plan, including any
merger agreements, agreements of consolidation, restructuring, disposition, liquidation or
dissolution, deeds, bills of sale or assignments executed in connection with any Restructuring
Transaction pursuant to the Plan; and (2) the appropriate state or local governmental officials or
agents are hereby directed to forego the collection of any such tax and to accept for filing and
recordation any of the foregoing instruments or other documents without the payment of any such
tax.
V. |
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RELEASES AND EXCULPATION PROVISIONS. |
The Plan release, exculpation and injunction provisions as set forth in, among others,
Sections IV.H.3 and XI.B of the Plan are approved in all respects, are incorporated herein in their
entirety, are so ordered and shall be immediately effective on the Effective Date of the Plan
without further action by the Bankruptcy Court, any of the parties to such releases or any other
party.
VI. |
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OBJECTIONS TO CONFIRMATION. |
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A. |
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RESOLUTION OF CERTAIN OBJECTIONS TO CONFIRMATION. |
Certain of the Objections to Confirmation, whether informal or filed, to the extent not
satisfied by the Plan Modifications or by a separate agreement, are hereby resolved on the terms
and subject to the conditions set forth below. The compromises and settlements contemplated by
each resolution to an Objection are fair, equitable and reasonable, are in the best interests of
the Debtors and their respective Estates and creditors and are expressly approved pursuant to
Bankruptcy Rule 9019.
- 17 -
1. Informal Objections of Safeco Insurance Company of America. Nothing in the Plan or
this Confirmation Order shall alter the rights of Safeco Insurance Company of America (Safeco)
under the Collateral Pledge Agreement (the CPA) executed by USG on January 24, 2001 and the
letter of credit issued in connection therewith, and the issuer of the letter of credit referenced
in that agreement shall not be discharged from its obligations under such letter of credit.
Moreover, to the extent that any such letter of credit issued for the benefit of Safeco is drawn in
full, any remaining Claim of Safeco for attorneys fees that relate to the Bond(s) referenced in
the CPA or which are otherwise payable under the CPA will be satisfied by the Reorganized Debtors
in the ordinary course of business.
2. Informal Objections of the IRS. The Plan shall not be deemed to extinguish, waive
or otherwise prejudice the rights of the IRS under section 553 of the Bankruptcy Code in respect of
prepetition indebtedness owed by the IRS to the Debtors. With respect to any Priority Tax Claim of
the IRS, Postpetition Interest will be paid up through the date of payment.
3. Filed Objection of the Nevada Department of Taxation. The Nevada Department of
Taxations two proofs of claim (a) proof of claim number 1213, consisting of a Priority Tax Claim
in the amount of $1,474.89 and a General Unsecured Claim in the amount of $50.00, and (b) proof of
claim number 1345, consisting of a Priority Tax Claim in the amount of $7,551.63 shall be Allowed
Claims and shall be paid, in accordance with Plan, with applicable Postpetition Interest.
4. Agreement with Federal Insurance Company. Subject to the satisfaction of Federal
Insurance Companys obligations under the Settlement Agreement and Mutual Release with Federal
Insurance Company (the Federal Settlement) and the entry of an order
- 18 -
approving the Federal
Settlement, the Federal Parties (as defined in the Federal Settlement) shall be Settling Insurers
and Protected Parties under the Plan and entitled to receive the benefits and protections of the
Asbestos Permanent Channeling Injunction.
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B. |
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OVERRULING OF CERTAIN OBJECTIONS TO CONFIRMATION. |
All Objections not otherwise addressed herein or previously withdrawn are hereby overruled for
the reasons set forth on the record at the Confirmation Hearing and in Section II.G of the Findings
and Conclusions.
VII. |
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DISCHARGE AND INJUNCTIONS. |
1. The Plan discharge provisions as set forth in Section IX.A of the Plan are approved in all
respects, are incorporated herein in their entirety, are so ordered and shall be immediately
effective on the Effective Date of the Plan without further action by the Bankruptcy Court or any
other party.
2. Except as specifically set forth in Section IX.A of the Plan, as of the Effective Date,
pursuant to sections 524 and 1141 of the Bankruptcy Code, the Reorganized Debtors shall be
discharged of all Claims and other debts and Liabilities, in accordance with Section IX.A of the
Plan.
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1. |
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Issuance of the Asbestos Permanent Channeling Injunction and
the Asbestos Personal Injury Insurance Asset Entity Injunction. |
In connection with the creation of the Asbestos Personal Injury Trust, the Asbestos Permanent
Channeling Injunction shall be, and hereby is, issued as of the Effective Date, pursuant to section
524(g) of the Bankruptcy Code. In connection with the creation of the Asbestos Personal Injury
Trust and to supplement the injunctive relief of a discharge under
- 19 -
section 524 of the Bankruptcy
Code, the Asbestos Personal Injury Insurance Asset Entity Injunction shall be, and hereby is,
issued as of the Effective Date, pursuant to section 105(a) of the Bankruptcy Code.
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2. |
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Protected Parties Under the Asbestos Permanent Channeling
Injunction. |
In connection with the Asbestos Permanent Channeling Injunction set forth below, Protected
Party means any of the following parties:
a. any Debtor, Reorganized Debtor or any Affiliate of the foregoing;
b. any former or present director, officer or employee of any Debtor, Reorganized
Debtor or any Affiliate of the foregoing but only in their capacity as such;
c. any stockholder of any Debtor but only in their capacity as such;
d. any Entity that, pursuant to the Plan or on or after the Effective Date, becomes a
direct or indirect transferee of, or successor to, any assets of any Debtor, Reorganized
Debtor or the Asbestos Personal Injury Trust (but only to the extent that liability is
asserted to exist by reason of it becoming such a transferee or successor);
e. any Entity that, pursuant to the Plan or on or after the Effective Date, makes a
loan to any Debtor, Reorganized Debtor or the Asbestos Personal Injury Trust or to a
successor to, or transferee of, any assets of any Debtor, Reorganized Debtor or the Asbestos
Personal Injury Trust (but only to the extent that liability is asserted to exist by reason
of such Entity becoming such a lender or to the extent any pledge of assets made in
connection with such a loan is sought to be upset or impaired);
f. any Entity to the extent such Entity is alleged to be directly or indirectly liable
for the conduct of, Claims against or Demands on any Debtor,
- 20 -
Reorganized Debtor or the
Asbestos Personal Injury Trust to the extent that such alleged liability arises by reason of
one or more of the following:
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(i) |
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such Entitys ownership of a
financial interest in any Debtor, Reorganized Debtor, a Past
Affiliate, a present Affiliate of any Debtor or Reorganized
Debtor, or Predecessor in Interest; |
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(ii) |
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such Entitys involvement in the
management of any Debtor, any Reorganized Debtor or any
Predecessor in Interest; |
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(iii) |
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such Entitys service as an
officer, director or employee of any Debtor, any Reorganized
Debtor, any Past Affiliate, any present Affiliate of any Debtor
or Reorganized Debtor, any Predecessor in Interest or any Entity
that owns or at any time has owned a financial interest in any
Debtor, any Reorganized Debtor, any Past Affiliate, any present
Affiliate of any Debtor or Reorganized Debtor, or any
Predecessor in Interest; or |
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(iv) |
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such Entitys involvement in a
transaction changing the corporate structure, or in a loan or
other financial transaction affecting the financial condition,
of any Debtor, any Reorganized Debtor or any Past Affiliate, any
present Affiliate of any Debtor or Reorganized Debtor, any
Predecessor in Interest or any Entity that owns or at any time
has owned a financial interest in any Debtor, any Reorganized
Debtor, any Past Affiliate, any present Affiliate of any Debtor
or Reorganized Debtor, or any Predecessor in Interest, including
(A) involvement in providing financing (debt or equity) or
advice to an Entity involved in such a transaction or (B)
acquiring or selling a financial interest in any Entity as part
of such transaction; or |
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3. |
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Asbestos Permanent Channeling Injunction. |
Pursuant to section 524(g) of the Bankruptcy Code, all Entities shall be permanently and
forever stayed, restrained and enjoined from taking any actions against any Protected Party for the
purpose of, directly or indirectly, collecting, recovering or receiving
- 21 -
payment of, on or with
respect to any Asbestos Personal Injury Claim, all of which shall be channeled to the Asbestos
Personal Injury Trust for resolution as set forth in the Asbestos Personal Injury Trust Agreement
and the related Asbestos Personal Injury Trust Distribution Procedures, including:
a. commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including a judicial, arbitral, administrative or other
proceeding) in any forum against any Protected Party or any property or interests in
property of any Protected Party;
b. enforcing, levying, attaching (including any prejudgment attachment), collecting or
otherwise recovering by any means or in any manner, whether directly or indirectly, any
judgment, award, decree or other order against any Protected Party or any property or
interests in property of any Protected Party;
c. creating, perfecting or otherwise enforcing in any manner, directly or indirectly,
any Encumbrance against any Protected Party or any property or interests in property of any
Protected Party;
d. setting off, seeking reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against any liability
owed to any Protected Party or any property or interests in property of any Protected Party;
and
e. proceeding in any manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust, except in conformity and
compliance therewith.
- 22 -
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4. |
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Asbestos Personal Injury Insurance Asset Entity Injunction. |
a. Subject to the provisions of Section IX.B.3.a of the Plan, all Entities (not
including the Asbestos Personal Injury Trust or the Reorganized Debtors) that have held or
asserted, that hold or assert or that may in the future hold or assert any Claim, Demand or
cause of action (including any Asbestos Personal Injury Claim assumed by the Asbestos
Personal Injury Trust) against any Asbestos Personal Injury Insurance Asset Entity based
upon, relating to, arising out of or in any way connected with any Asbestos Personal Injury
Claim or Asbestos Personal Injury Insurance Asset whenever and wherever arisen or asserted
(including all Claims in the nature of or sounding in tort, or under contract, warranty or
any other theory of law, equity or admiralty) shall be stayed, restrained and enjoined from
taking any action for the purpose of directly or indirectly collecting, recovering or
receiving payments, satisfaction or recovery with respect to any such Claim, Demand or cause
of action, including:
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(i) |
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commencing, conducting or
continuing, in any manner, directly or indirectly, any suit,
action or other proceeding of any kind (including a judicial,
arbitration, administrative or other proceeding) in any forum
with respect to any such Claim, Demand, or cause of action
against any Asbestos Personal Injury Insurance Asset Entity, or
against the property of any Asbestos Personal Injury Insurance
Asset Entity, with respect to any such Claim, Demand or cause of
action; |
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(ii) |
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enforcing, levying, attaching
(including any prejudgment attachment), collecting or otherwise
recovering by any means or in any manner, whether directly or
indirectly, any judgment, award, decree or other order against
any Asbestos Personal Injury Insurance Asset Entity, or against
the property of any Asbestos Personal Injury Insurance Asset
Entity, with respect to any such Claim, Demand or cause of
action;
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-23-
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(iii) |
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creating, perfecting or
otherwise enforcing in any manner, directly or indirectly, any
Encumbrance against any
Asbestos Personal Injury Insurance Asset Entity, or the
property of any Asbestos Personal Injury Insurance Asset
Entity, with respect to any such Claim, Demand or cause of
action; and |
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(iv) |
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setting off, seeking
reimbursement of, contribution from or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any
amount against any obligation of any Asbestos Personal Injury
Insurance Asset Entity, or against the property of any Asbestos
Personal Injury Insurance Asset Entity, with respect to any such
Claim, Demand and or cause of action. |
b. Notwithstanding anything to the contrary above, the Asbestos Personal Injury
Insurance Entity Injunction shall not enjoin:
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(i) |
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the rights of Entities to the
treatment accorded them under Articles II and III of the Plan,
as applicable, including the rights of Entities with Asbestos
Personal Injury Claims to assert such Asbestos Personal Injury
Claims against the Asbestos Personal Injury Trust, in accordance
with the Asbestos Personal Injury Trust Distribution Procedures
and the terms of the Plan; |
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(ii) |
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the rights of Entities to assert
any Claim, debt, obligation or liability for payment of Asbestos
Personal Injury Trust-related expenses against the Asbestos
Personal Injury Trust; |
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(iii) |
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the rights of the Asbestos
Personal Injury Trust and the Reorganized Debtors, as
applicable, to prosecute any action based on or arising from
Asbestos Personal Injury Insurance Asset; |
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(iv) |
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the rights of the Asbestos
Personal Injury Trust to assert any claim, debt, obligation or
liability for payment against an Asbestos Personal Injury
Insurance Asset Entity based on or arising from the Asbestos
Personal Injury Insurance Asset; and |
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(v) |
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the rights of Entities to assert
any claim, debt, right, obligation or liability that (A) arises
or relates to any insurance policy or any portion of any
insurance policy that
|
-24-
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is not an Asbestos Personal Injury
Insurance Asset and (B) is not subject to the Asbestos Permanent
Channeling Injunction. |
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5. |
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General Injunctions Related to Discharge or
Releases Granted Pursuant to the Plan. |
a. In addition to the Asbestos Permanent Injunction and Asbestos Personal Injury
Insurance Asset Entity Injunction set forth above, except as provided in the Plan or this
Confirmation Order, as of the Effective Date, all Entities that have held, currently hold or
may hold a Claim or other debt or liability that is discharged pursuant to the terms of the
Plan shall be permanently enjoined from taking any of the following actions on account of
any such discharged Claims, debts or liabilities: (i) commencing or continuing in any
manner any action or other proceeding against the Debtors, the Reorganized Debtors or their
respective property, other than to enforce any right pursuant to the Plan to a Distribution;
(ii) enforcing, attaching, collecting or recovering in any manner any judgment, award,
decree or order against the Debtors, the Reorganized Debtors or their respective property,
other than as permitted pursuant to (i) above; (iii) creating, perfecting or enforcing any
lien or encumbrance against the Debtors, the Reorganized Debtors or their respective
property; (iv) asserting a setoff, right of subrogation or recoupment of any kind against
any debt, liability or obligation due to the Debtors or the Reorganized Debtors; and (v)
commencing or continuing any action, in any manner, in any place that does not comply with
or is inconsistent with the provisions of the Plan.
b. In addition to the Asbestos Permanent Injunction and Asbestos Personal Injury
Insurance Asset Entity Injunction set forth above, except as provided in the Plan or this
Confirmation Order, as of the Effective Date, all Entities that have held,
-25-
currently hold or
may hold any Claims, obligations, suits, judgments, damages, demands, debts, rights, causes
of action or liabilities that are released pursuant to the Plan shall be
permanently enjoined from taking any of the following actions against any released
Entity or its property on account of such released claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action or liabilities: (i) commencing or
continuing in any manner any action or other proceeding; (ii) enforcing, attaching,
collecting or recovering in any manner any judgment, award, decree or order; (iii) creating,
perfecting or enforcing any lien or encumbrance; (iv) asserting a setoff, right of
subrogation or recoupment of any kind against any debt, liability or obligation due to any
released Entity; and (v) commencing or continuing any action, in any manner, in any place
that does not comply with or is inconsistent with the provisions of the Plan.
VIII. |
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DISSOLUTION OF THE COMMITTEES AND DISCHARGE OF THE ASBESTOS PERSONAL INJURY FUTURES
REPRESENTATIVE. |
In accordance with Section XI.A of the Plan, on the Effective Date, each of the Creditors
Committee, Asbestos Personal Injury Committee, Asbestos Property Damage Committee and Equity
Committee shall dissolve and the members of such committees shall be released and discharged from
all duties and obligations arising from or related to the Reorganization Cases. Similarly, on the
Effective Date, the Asbestos Personal Injury Futures Representative shall be deemed released and
discharged from all duties and obligations from or related to the Reorganization Cases; provided,
however, that the Asbestos Personal Injury Futures Representative may continue to serve or have
obligations under the Asbestos Personal Injury Trust Agreement and be paid solely from the Asbestos
Personal Injury Trust. As of the Effective Date, the Reorganized Debtors obligations to indemnify
or provide liability insurance for the Asbestos Personal Injury Futures Representative shall
terminate. The Professionals
-26-
retained by such committees and the members thereof or by the
Asbestos Personal Injury Futures Representative shall not be entitled to assert any Fee Claim for
any services rendered or expenses
incurred after the Effective Date, except for services rendered and expenses incurred in
connection with any applications for allowance of compensation and reimbursement of expenses
pending on the Effective Date or Filed and served after the Effective Date pursuant to Section
III.A.1.e.ii.A of the Plan and in connection with any appeal of the Confirmation Order.
IX. |
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RETENTION OF JURISDICTION BY THE BANKRUPTCY COURT AND THE DISTRICT. |
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A. |
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RETENTION OF EXCLUSIVE JURISDICTION BY THE BANKRUPTCY COURT. |
Notwithstanding the entry of this Confirmation Order and the occurrence of the Effective Date,
pursuant to Section X.A of the Plan and subject to Section X.B of the Plan, the Bankruptcy Court
shall retain such exclusive jurisdiction over the Reorganization Cases and any matter related to
the Reorganization Cases after the Effective Date as is legally permissible, including exclusive
jurisdiction over the matters described in Sections X.A.1 through X.A.13 of the Plan. To the
extent that it is not legally permissible for the Bankruptcy Court to have exclusive jurisdiction
over any of the matters described in Section X.A of the Plan, the Bankruptcy Court shall have
nonexclusive jurisdiction over such matters to the extent legally permissible.
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B. |
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EXCLUSIVE JURISDICTION OF THE DISTRICT COURT. |
Notwithstanding the entry of this Confirmation Order, the occurrence of the Effective Date and
anything to the contrary in Section X.A of the Plan, the District Court shall retain exclusive
jurisdiction over matters relating to section 524(g) of the Bankruptcy Code and the Asbestos
Permanent Channeling Injunction, including exclusive jurisdiction to determine
-27-
matters that may be
set forth in the Asbestos Permanent Channeling Injunction, or that may arise in connection with the
Asbestos Permanent Channeling Injunction.
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C. |
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JURISDICTION RELATING TO ASBESTOS PERSONAL INJURY CLAIMS. |
Notwithstanding anything in this Section IX or Article X of the Plan to the contrary, the
resolution of Asbestos Personal Injury Claims and the forum in which such resolution shall be
determined shall be governed by and in accordance with the Asbestos Personal Injury Trust
Distribution Procedures and the Asbestos Personal Injury Trust Agreement.
X. |
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WAIVER OF THE STAY OF BANKRUPTCY RULE 3020(e). |
Pursuant to Bankruptcy Rule 3020(e), this Confirmation Order shall not be stayed and shall be
immediately effective upon entry on the docket of the Bankruptcy Court and the District Court.
XI. |
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NOTICE OF ENTRY OF CONFIRMATION ORDER. |
A. Pursuant to Bankruptcy Rules 2002(f)(7) and 3020(c), the Debtors or the Reorganized Debtors
are directed to serve, within 10 days after the occurrence of the Effective Date, a notice of the
entry of this Confirmation Order, which shall include notice of the bar dates established by the
Plan and this Confirmation Order and notice of the Effective Date, substantially in the form of
Exhibit C attached hereto and incorporated herein by reference (the Confirmation Notice), on all
parties that received notice of the Confirmation Hearing; provided, however, that, with respect to
Asbestos Personal Injury Claims, the Reorganized Debtors shall be obligated to serve the
Confirmation Notice only to counsel to holders of Asbestos Personal Injury Claims, to the extent
that the holders of such claims are represented by known counsel, unless such counsel requests
otherwise in writing within 10 days of service of the Confirmation Notice.
-28-
B. As soon as practicable after the entry of this Confirmation Order, the Debtors shall make
copies of this Confirmation Order and the Confirmation Notice available on the Debtors website.
C. No later than 20 Business Days after the Effective Date, the Debtors are directed to
publish the version of the Confirmation Notice attached hereto as Exhibit D once in the national
editions of The Wall Street Journal, The New York Times and USA Today and once in the national
edition of a Canadian newspaper (either The Globe & Mail or National Post). The Debtors are
authorized to pay all fees associated with the publication program described in this paragraph to
Kinsella/Novak Communications, Ltd., which will coordinate publication of the Confirmation Notice
for the Debtors.
-29-
XII. |
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ORDERS OF THE BANKRUPTCY COURT AND THE DISTRICT COURT |
The Plan is hereby confirmed in its entirety pursuant to section 1129 of the Bankruptcy Code,
and the Asbestos Permanent Channeling Injunction is hereby issued pursuant to section 524(g) of the
Bankruptcy Code. To the extent necessary, the District Court withdraws the reference for purposes
of entering this Confirmation Order.
THIS
ORDER IS HEREBY DECLARED TO BE IN RECORDABLE FORM AND SHALL BE
ACCEPTED BY ANY RECORDING OFFICER FOR FILING AND RECORDING PURPOSES
WITHOUT FURTHER OR ADDITIONAL ORDERS, CERTIFICATIONS OR OTHER
SUPPORTING DOCUMENTS.
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Dated:
6/15/2006
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/s/ Judith K. Fitzgerald |
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16:45:19
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UNITED STATES BANKRUPTCY JUDGE |
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Dated:
June 15, 2006 |
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/s/ Joy Flowers Conti |
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UNITED STATES DISTRICT JUDGE |
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-30-
EXHIBIT B
MODIFICATIONS TO FIRST AMENDED JOINT PLAN OF
REORGANIZATION OF USG CORPORATION AND ITS DEBTOR SUBSIDIARIES
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re:
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:
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Chapter 11 |
USG CORPORATION,
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a Delaware
corporation, et al.,1 |
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Jointly Administered |
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:
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Case No. 01-2094 (JKF) |
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Debtors.
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: |
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: |
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MODIFICATIONS TO FIRST AMENDED JOINT PLAN OF
REORGANIZATION OF USG CORPORATION AND ITS DEBTOR SUBSIDIARIES
The above-captioned debtors (collectively, the Debtors) hereby propose the following
additions and modifications to the First Amended Joint Plan of Reorganization of USG Corporation
and Its Debtor Subsidiaries, dated March 27, 2006 (as included in the solicitation packages, the
Plan), pursuant to section 1127 of the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and Section XI.C
of the Plan:
1. Section I.A.42 of the Plan is modified and restated as follows:2
42. Confirmation Order means the order, including the findings of facts and
conclusions of law, of the Bankruptcy Court or the District Court, which, if entered
only by the Bankruptcy Court, is affirmed by the District Court, that confirms the Plan
pursuant to section 1129 of the Bankruptcy Code.
2. Section I.A.60 of the Plan is modified and restated as follows:
60. Distribution Record Date means the first day of the Confirmation
DateHearing.
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1 |
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The Debtors are the following 11 entities:
USG Corporation, United States Gypsum Company, USG Interiors, Inc., USG
Interiors International, Inc., L&W Supply Corporation, Beadex Manufacturing,
LLC, B-R Pipeline Company, La Mirada Products Co., Inc., USG Industries, Inc.,
USG Pipeline Company and Stocking Specialists, Inc. |
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2 |
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All modified and restated Plan provisions are
marked to reflect the modifications thereto. |
3. Section I.A.97a is added to the Plan as follows:
97a. PI Insurer Coverage Defenses means all defenses at law or in equity
that any Asbestos Personal Injury Insurance Asset Entity may have under applicable law to
provide insurance coverage to or for any Claim, Demand, or any other claim for coverage,
payment or reimbursement of any kind.
4. Section III.A.1.e.ii.A of the Plan is modified and restated as follows:
A. Professional Compensation
Professionals or other Entities asserting a Fee Claim for services rendered before the
Effective Date must File and serve on the Reorganized Debtors and such other Entities who
are designated by the Bankruptcy Rules, the Confirmation Order, the Fee Order or other order
of the Bankruptcy Court a Final Fee Application no later than 90 days afterthe last
business day of the month following the month in which the Effective Date
occurs; provided, however, that any professional who may receive compensation or
reimbursement of expenses pursuant to the Ordinary Course Professionals Order may continue
to receive such compensation and reimbursement of expenses for services rendered before the
Effective Date, without further Bankruptcy Court review or approval, pursuant to the
Ordinary Course Professionals Order. A Professional may include any outstanding, non-Filed
monthly or interim request for payment of a Fee Claim pursuant to the Fee Order in its Final
Fee Application. Objections to any Final Fee Application must be Filed and served on the
Reorganized Debtors and the requesting party by theno later of (1) 120 days after
the Effective Date or (2) 30 days after the Filing of the applicable Final Fee
Applicationthan 30 days after the deadline for Filing Final Fee Applications. The fee
auditor in these Reorganization Cases (the Fee Auditor) shall provide initial reports
(Initial Reports) to all Final Fee Applications no later than 30 days after the deadline
for Filing Final Fee Applications, and any response to an Initial Report shall be provided
within 30 days of the Filing of the applicable Initial Report. If a Professional or other
Entity fails to respond timely to an Initial Report, the Fee Auditor is authorized to File a
final report (Final Report) immediately with respect to such Final Fee Application.
Regardless of whether a Professional provides a response to an Initial Report, the Fee
Auditor shall File all Final Reports regarding Final Fee Applications no later than 90 days
after the deadline for Filing Final Fee Applications. Any replies to the Fee Auditors
Final Report shall be Filed within seven days of the Filing of the applicable Final Report.
The December 18, 2006 omnibus hearing shall be the final hearing on all Final Fee
Applications. To the extent necessary, the Confirmation Order shall amend and supersede
any previously entered order of the Bankruptcy Court, including the Fee Order, regarding the
payment of Fee Claims. Any pending, Filed interim requests for a Fee Claim pursuant to the
Fee Order shall be resolved in the ordinary course in accordance with the Fee Order or, if
sooner, in connection with the particular Professionals Final Fee Application.
-2-
5. Section III.A.2.a of the Plan is modified and restated as follows:
a. Priority Tax Claims
Pursuant to section 1129(a)(9)(C) of the Bankruptcy Code, unless otherwise agreed by
the holder of a Priority Tax Claim and the applicable Debtor or Reorganized Debtor, each
holder of an Allowed Priority Tax Claim shall receive, in full satisfaction of its Priority
Tax Claim, payment in full of the allowed amount of the Priority Tax Claim plus Postpetition
Interest on the later of the Effective Date or as soon as practicable90 days after
the date when such Claim becomes an Allowed Claim.
6. Section III.B.7 of the Plan is modified to include the additional language shown below:
7. Class 7 Claims (Asbestos Personal Injury Claims) are impaired. On the Effective
Date, all Asbestos Personal Injury Claims shall be channeled to the Asbestos Personal Injury
Trust, which shall be funded pursuant to Section IV.G. All Asbestos Personal Injury Claims
shall be determined and paid pursuant to the terms of the Asbestos Personal Injury Trust
Agreement and the Asbestos Personal Injury Trust Distribution Procedures, subject to the
right of any Asbestos Personal Injury Insurance Asset Entity to assert any PI Insurer
Coverage Defense in response to a demand that such insurer handle, defend or pay any such
Claim. Pursuant to section 524(g) of the Bankruptcy Code, the Plan and the Confirmation
Order shall permanently and forever stay, restrain and enjoin any Entity from taking any
actions against any Protected Party for the purpose of, directly or indirectly, collecting,
recovering or receiving payment of, on or with respect to any Asbestos Personal Injury
Claim, all of which shall be channeled to the Asbestos Personal Injury Trust for resolution
as set forth in the Asbestos Personal Injury Trust Agreement and the related Asbestos
Personal Injury Trust Distribution Procedures, including:
7. Section IV.H.2 of the Plan is modified and restated as follows:
2. 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, including the releases set
forth in Section IV.H.3, shall 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 Claim, Asbestos Personal Injury Claim or Interest or any Distribution to
be made pursuant to the Plan on account of any Allowed Claim, Asbestos Personal Injury Claim
or Interest. The entry of the Confirmation Order shall constitute the Bankruptcy Courts
or the District Courts approval, as of the Effective Date, of the compromise or
settlement of all such claims or controversies and the Bankruptcy Courts or the
District Courts finding that such compromise or settlement is in the best interests of
the Debtors, the Reorganized Debtors
-3-
and their respective property and Claim and Interest holders and is fair, equitable and
reasonable.
8. Section IV.H.3.b.i of the Plan is modified and restated as follows:
b. Release by the Debtors and Reorganized Debtors
Without limiting any applicable provisions of or releases contained in the Plan, as of
the Effective Date, the Debtors and the Reorganized Debtors, on behalf of themselves and
their affiliates, the Estates and their respective successors, assigns and any and all
Entities who may purport to claim by, through, for or because of them, shall be deemed to
forever release, waive and discharge all claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action and liabilities, whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or
unforeseen, then existing or thereafter arising in law, equity or otherwise, that are based
in whole or in part on any act, omission, transaction or other occurrence taking place on or
prior to the Effective Date in any way relating to any Debtor, the Reorganization Cases or
the Plan that such Entity has, had or may have against each of the present or, to the
extent they served during the Reorganization Cases, former directors or officers of the
Debtors acting in such capacity.
9. Section IV.H.3.c is modified and restated as follows:
c. General Releases by Holders of Claims or Interests
WithoutTo the maximum extent permitted by applicable law, without limiting any
other applicable provisions of, or releases contained in, the Plan or the Bankruptcy Code,
as of the Effective Date, in consideration for, among other things, the obligations of the
Debtors and the Reorganized Debtors under the Plan, the Note, the Contingent Payment Note,
the New Investor Documents, cash and other contracts, instruments, releases, agreements or
documents to be entered into or delivered in connection with the Plan, each holder of a
Claim or Interest that votes in favor of the Plan shall be deemed to forever release, waive
and discharge all Liabilities in any way relating to any Debtor, the Reorganization Cases or
the Plan that such Entity has, had or may have against any Debtor, any Reorganized Debtor,
the New Investor and each of their respective present or former directors, officers,
employees, subsidiaries, predecessors, successors, members, attorneys, accountants,
underwriters, investment bankers, financial advisors, appraisers, representatives and
agents, acting in such capacity (which release shall be in addition to the discharge of
Claims provided herein and under the Confirmation Order and the Bankruptcy Code).
-4-
10. Section IV.I.3 of the Plan is modified and restated as follows:
3. Workers Compensation Benefits
From and after the Effective Date, the Reorganized Debtors, in their sole discretion,
may shall continue to pay validin the ordinary course compensable Claims
arising before the Petition Date under the Debtors workers compensation programs.
11. Section IV.J.3.a of the Plan is modified and restated as follows:
3. Insurance Neutrality
a. Notwithstanding anything to the contrary in the Plan or the Confirmation Order,
nothing in the Plan or the Confirmation Order (including any other provision that purports
to be preemptory or supervening), shall in any way operate to, or have the effect of,
impairing the insurers legal, equitable or contractual rights, if any, in respect of any
Claims, any Exhibit to the Plan, the Confirmation Order or any finding of fact and/or
conclusion of law with respect to the Confirmation of the Plan, shall limit the right of any
Asbestos Personal Injury Insurance Asset Entity to assert any PI Insurer Coverage
Defense. The rights of insurers shall be determined under the relevant insurance
policies or insurance settlements, as applicable, and under applicable law.
12. Section IV.J.4 is added to the Plan as follows:
4. Collateral Effects of Confirmation
a. The Plan and the Confirmation Order shall be binding on the Debtors, the Reorganized
Debtors, the Asbestos Personal Injury Trust and the beneficiaries of the Asbestos Personal
Injury Trust. While the obligations, if any, of the Asbestos Personal Injury Trust to pay
holders of Asbestos Personal Injury Claims shall be determined pursuant to the Plan and the
Asbestos Personal Injury Trust Distribution Procedures, neither the Bankruptcy Courts or
District Courts approval of the Plan and the Asbestos Personal Injury Trust Distribution
Procedures, nor the Confirmation Order shall, with respect to any Asbestos Personal Injury
Insurance Asset Entity (including on the basis of the decisions in UNR Industries, Inc. v.
Continental Casualty Co., 942 F.2d 1101 (7th Cir. 1991) or Fuller-Austin Insulation Co. v.
Firemans Fund Inc. Co., et al., Case No. BC 116835, 2002 WL 31005090 (Cal. Superior Ct.
Aug. 6, 2002)), constitute a trial or hearing on the merits, an adjudication or judgment, or
be used as evidence to prove:
i. that any of the Debtors, the Asbestos Personal Injury Trust or any Asbestos
Personal Injury Insurance Asset Entity is liable for, or otherwise obligated to pay
with respect to, any individual Asbestos Personal Injury Claim;
ii. that the procedures established by the Plan, including the Asbestos
Personal Injury Trust Distribution Procedures, for evaluating and paying
-5-
channeled Asbestos Personal Injury Claims are reasonable and/or consistent with
any procedures that were used to evaluate or settle channeled Asbestos Personal
Injury Claims against the Debtors before the Petition Date;
iii. that the settlement of, or the value assigned to, any individual channeled
Asbestos Personal Injury Claim pursuant to the Asbestos Personal Injury Trust
Distribution Procedures was reasonable and/or otherwise appropriate;
iv. that any of the Asbestos Personal Injury Insurance Asset Entities
participated in and/or consented to the negotiation of the Plan or the Asbestos
Personal Injury Trust Distribution Procedures;
v. that any of the Debtors or the Asbestos Personal Injury Trust Distribution
Procedures have suffered an insured loss with respect to any channeled Asbestos
Personal Injury Claim; or
vi. as to the liability, or amount thereof on an aggregate basis or for any
individual claim, of the Debtors or any of the Asbestos Personal Injury Trust for
Asbestos Personal Injury Claims.
b. Notwithstanding anything in Sections IV.J.3 or IV.J.4 to the contrary, nothing in
Sections IV.J.3 or IV.J.4 shall affect or limit or be construed as affecting or limiting
the protection afforded to any Settling Insurer by the Asbestos Permanent Channeling
Injunction and/or the Asbestos Personal Injury Insurance Asset Entity Injunction.
c. Nothing in Sections IV.J.3 or IV.J.4 is intended or shall be construed to preclude
otherwise applicable principles of res judicata or collateral estoppel from being applied
against any Asbestos Personal Injury Insurance Asset Entity with respect to any issue that
is actually litigated by such Asbestos Personal Injury Insurance Asset Entity as part of its
objections, if any, to Confirmation of the Plan or as part of any contested matter or
adversary proceeding filed by such Asbestos Personal Injury Insurance Asset Entity in
conjunction with or related to Confirmation of the Plan.
d. Nothing in the Plan, the Confirmation Order or any findings of fact and/or
conclusions of law with respect to the Confirmation or consummation of the Plan shall limit
the right, if any, of (i) any Asbestos Personal Injury Insurance Asset Entity to assert any
PI Insurer Coverage Defense including by presenting evidence and/or argument with respect to
any of the matters specified in clauses Section IV.J.4.a.i through Section IV.J.4.a.vi above
or (ii) any other party in any such insurance coverage action to assert any appropriate
position. Except as provided in Section IV.J.4.c above, none of the matters specified in
Section IV.J.4.a.i through Section IV.J.4.a.vi above shall have any res judicata or
collateral estoppel effect against any Asbestos Personal Injury Insurance Asset Entity.
-6-
13. Section IV.J.5 is added to the Plan as follows:
5. Contribution Claims
If a non-settling Asbestos Personal Injury Insurance Asset Entity asserts that it has
rights of contribution, indemnity, reimbursement, subrogation or other similar claims
(collectively, for purposes of this Section IV.J.5, Contribution Claims) against a
Settling Insurer, (a) such Contribution Claims may be asserted as a defense or counterclaim
against the Asbestos Personal Injury Trust or the Reorganized Debtors (as applicable) in any
action including such non-settling Asbestos Personal Injury Insurance Asset Entity, and the
Asbestos Personal Injury Trust or the Reorganized Debtors (as applicable) may assert the
legal or equitable rights, if any, of the Settling Insurer, and (b) to the extent such
Contribution Claims are determined to be valid, the liability (if any) of such non-settling
Asbestos Personal Injury Insurance Asset Entity to the Asbestos Personal Injury Trust or the
Reorganized Debtors (as applicable) shall be reduced by the amount of such Contribution
Claims.
14. Section V.A. 4 of the Plan is modified to include the additional language shown below:
4. Approval of Assumptions and Assumption Procedures
The Confirmation Order shall constitute an order of the Bankruptcy Court or the
District Court approving the assumptions described in Section V.A.1, pursuant to section
365 of the Bankruptcy Code, as of the Effective Date. The appropriate procedures for
assumption of an Executory Contract or Unexpired Lease are as follows:
15. Section V.C of the Plan is modified to include the additional language shown below:
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Executory Contracts and Unexpired Leases to Be Rejected and Rejection
Procedures |
On the Effective Date, each Executory Contract and Unexpired Lease listed on Exhibit
V.C shall be rejected pursuant to section 365 of the Bankruptcy Code. Each contract and
lease listed on Exhibit V.C shall be rejected only to the extent that any such contract or
lease constitutes an Executory Contract or Unexpired Lease. Listing a contract or lease on
Exhibit V.C shall not constitute an admission by a Debtor or Reorganized Debtor that such
contract or lease is an Executory Contract or Unexpired Lease or that a Debtor or
Reorganized Debtor has any liability thereunder. The Confirmation Order shall constitute an
order of the Bankruptcy Court or the District Court approving such rejections,
pursuant to section 365 of the Bankruptcy Code, as of the Effective Date. The appropriate
procedures for rejection of an Executory Contract or Unexpired Lease are as follows:
-7-
16. Section VIII.A.1 of the Plan is modified and restated as follows:
1. The Confirmation Order shall have been entered by the Bankruptcy Court or the
District Court (and, if the Confirmation Order is entered by the Bankruptcy Court, shall
have been fully affirmed byand the District Court), shall be acceptable in form and
substance to the Debtors and shall be reasonably satisfactory to the Asbestos Personal
Injury Committee and the Asbestos Personal Injury Futures Representative.
17. Section VIII.B.2 of the Plan is modified and restated as follows:
2. The Confirmation Order has been entered by the Bankruptcy Court or the District
Court (and, if the Confirmation Order is entered by the Bankruptcy Court, has been fully
affirmed byand the District Court) and shall have become a Final Order.
18. Section VIII.D of the Plan is modified and restated as follows:
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Effect of Nonoccurrence of Conditions to the Effective Date |
If each of the conditions to the Effective Date is not satisfied or duly waived in
accordance with Section VIII.C, then upon motion by the Debtors made before the time that
each of such conditions has been satisfied or duly waived and upon notice to such parties in
interest as the Bankruptcy Court may direct, the Confirmation Order shall be vacated by the
Bankruptcy Court or the District Court; provided, however, that, notwithstanding the
Filing of such motion, the Confirmation Order may not be vacated if each of the conditions
to the Effective Date is either satisfied or duly waived before the Bankruptcy Court or
the District Court enters an order granting such motion. If the Confirmation Order is
vacated pursuant to this Section VIII.D, (1) the Plan shall be null and void in all
respects, including with respect to the discharge of Claims; and (2) nothing contained in
the Plan shall (a) constitute a waiver or release of any claims by or against, or any
Interest in, the Debtors or (b) prejudice in any manner the rights of the Debtors or any
other party in interest.
19. Section XI.B of the Plan is modified and restated as follows:
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Limitation of Liability |
1. TheTo the maximum extent permitted by applicable law, the Debtors, the
Reorganized Debtors, the Credit Facilities Agent, the Creditors Committee, the Asbestos
Personal Injury Futures Representative, the Asbestos Personal Injury Committee, the
Asbestos Property Damage Committee, the Equity Committee, the DIP Lender, the Indenture
Trustees, the New Investor and their respective directors, officers, employees, affiliates,
subsidiaries, predecessors, successors, members, attorneys, accountants, underwriters,
investment bankers, financial advisors, appraisers, representatives and agents, acting in
such capacity, shall neither have nor incur any liability to any Entity for any act taken or
omitted to be taken in connection with, related to or arising out of the Reorganization
Cases or the consideration, formulation,
-8-
preparation, dissemination, implementation, Confirmation or consummation of the Plan,
the Disclosure Statement or any transaction proposed in connection with the Reorganization
Cases or any contract, instrument, release or other agreement or document created or entered
into, or any other act taken or omitted to be taken, in connection therewith; provided,
however, that the foregoing provisions of this Section XI.B.1 shall have no effect on: (a)
the liability of any Entity that would otherwise result from the failure to perform or pay
any obligation or liability under the Plan or any contract, instrument, release or other
agreement or document to be entered into or delivered in connection with the Plan or (b) the
liability of any Entity that would otherwise result from any such act or omission to the
extent that such act or omission is determined in a Final Order to have constituted gross
negligence or willful misconduct.
2. NotwithstandingTo the maximum extent permitted by applicable law,
notwithstanding any other provision of this Plan, no holder of a Claim or Interest, no
other party in interest, none of their respective agents, employees, representatives,
financial advisors, attorneys or affiliates, and no successors or assigns of the foregoing,
shall have any right of action against the Debtors, the Reorganized Debtors, the Credit
Facilities Agent, the Creditors Committee, the Asbestos Personal Injury Futures
Representative, the Asbestos Personal Injury Committee, the Asbestos Property Damage
Committee, the Equity Committee, the DIP Lender, the Indenture Trustees, the New
Investor or their respective directors, officers, employees, affiliates, subsidiaries,
predecessors, successors, members, attorneys, accountants, underwriters, investment bankers,
financial advisors, appraisers, representatives and agents, acting in such capacity, for any
act or omission in connection with, relating to or arising out of the Reorganization Cases
or the consideration, formulation, preparation, dissemination, implementation, Confirmation
or consummation of the Plan, the Disclosure Statement or any transaction or document created
or entered into, or any other act taken or omitted to be taken, in connection therewith,
except for: (a) the liability of any Entity that would otherwise result from the failure to
perform or pay any obligation or liability under the Plan or any contract, instrument,
release or other agreement or document to be entered into or delivered in connection with
the Plan or (b) the liability of any Entity that would otherwise result from any such act or
omission to the extent that such act or omission is determined in a Final Order to have
constituted gross negligence or willful misconduct.
-9-
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Dated: June 8, 2006 |
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Respectfully submitted, |
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USG CORPORATION (for itself and on behalf of the
USG Subsidiary Debtors) |
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By:
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/s/ Stanley L. Ferguson |
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Stanley L. Ferguson |
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Executive Vice President and General Counsel |
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COUNSEL: |
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Daniel J. DeFranceschi (DE 2732) |
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Paul N. Heath (DE 3704) |
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RICHARDS, LAYTON & FINGER |
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One Rodney Square |
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P.O. Box 551 |
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Wilmington, Delaware 19899 |
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Telephone: (302) 651-7700 |
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- and - |
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David G. Heiman (OH 0038271) |
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Gus Kallergis (OH 0071557) |
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JONES DAY |
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North Point |
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901 Lakeside Avenue |
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Cleveland, Ohio 44114 |
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Telephone: (216) 586-3939 |
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Brad B. Erens (IL 6206864) |
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Mark A. Cody (IL 6236871) |
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Daniel B. Prieto (IL 6272888) |
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JONES DAY |
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77 West Wacker |
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Chicago, Illinois 60601 |
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Telephone: (312) 782-3939 |
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ATTORNEYS FOR DEBTORS |
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-10-
Exhibit 3.01
RESTATED CERTIFICATE OF INCORPORATION
OF
USG CORPORATION
(Originally incorporated October 22, 1984)
(Pursuant to Section 303 of the
Delaware General Corporation Law)
USG Corporation (the corporation), a corporation organized and existing under and by virtue
of the Delaware General Corporation Law, does hereby certify:
FIRST: That the corporation filed a plan of reorganization (the Plan) which,
pursuant to chapter 11 of Title 11 the United States Code, was confirmed by an order dated June 16,
2006 of the United States Bankruptcy Court for the District of Delaware, a Court having
jurisdiction of a proceeding under the United States Bankruptcy Code (the Order), and that such
Order provides for the making and filing of this Restated Certificate of Incorporation.
SECOND: That this Restated Certificate of Incorporation has been duly adopted and
executed in accordance with Sections 303, 242 and 245 of the Delaware General Corporation Law, as
authorized by the Order, it being necessary to put into effect and carry out the Plan by amending,
restating and integrating the corporations Restated Certificate of Incorporation as set forth
herein, and that this Restated Certificate of Incorporation shall become effective at 5:00 p.m.
Eastern Time on June 19, 2006.
THIRD: That, pursuant to the Order, the provisions of the corporations Restated
Certificate of Incorporation to be effected thereunder and hereunder are as follows:
ARTICLE FIRST
The name of the corporation is USG Corporation.
ARTICLE SECOND
The corporations registered office in the State of Delaware is located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its
registered agent is The Corporation Trust Company.
ARTICLE THIRD
The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE FOURTH
The total number of shares which the corporation shall have authority to issue is 236,000,000,
of which 36,000,000 shares of the par value of one dollar each shall be preferred stock and
200,000,000 shares of the par value of $0.10 each shall be common stock.
Shares of the stock of any class of the corporation may be issued by the corporation from time
to time for such consideration as may be fixed from time to time by the board of directors thereof,
and any and all such shares so issued the full consideration for which shall have been paid or
delivered, shall be deemed fully paid and nonassessable stock and not liable to any further call or
assessment thereon.
Notwithstanding any other provision of this article FOURTH, (i) the corporation will not issue
any nonvoting equity securities, within the meaning of §1123(a)(6) of the United States Bankruptcy
Code, 11 U.S.C., or any successor statute thereto and (ii) in the event that the corporation issues
any class of equity securities having a preference over another class of equity securities with
respect to dividends, the terms of such class of equity securities will include adequate provisions
for the election of directors representing such preferred class in the event of default in the
payment of such dividends, within the meaning of §l123(a)(6) of the United States Bankruptcy Code,
11 U.S.C., or any successor statute thereto.
A description of the different classes of stock of the corporation and a statement of the
designations and the powers, preferences and rights and the qualifications, limitations or
restrictions thereof, in respect of each class of said stock are as follows:
Section 1. Provisions Applicable to Preferred Stock
(a) The board of directors is expressly authorized at any time and from time to time to
provide for the issuance of shares of preferred stock in one or more series with such voting powers
full or limited or, subject to the other provisions of this article FOURTH, without voting powers
and with such designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof as shall be stated and expressed in
the resolution or resolutions providing for the issue thereof adopted by the board of directors and
as are not stated and expressed in the Restated Certificate of Incorporation including (but without
limiting the generality thereof) the following:
(i) The designation of such series.
(ii) The dividend rate of such series, the conditions and dates upon which such dividends
shall be payable, the relation which such dividends shall bear to the dividends payable on any
other class or classes of stock and whether such dividends shall be cumulative or non-cumulative.
(iii) Whether the shares of such series shall be subject to redemption by the corporation and,
if made subject to such redemption, the time, prices and other terms and conditions of such
redemption.
- 2 -
(iv) The terms and amount of any sinking fund provided for the purchase or redemption of the
shares of such series.
(v) Whether or not the shares of such series shall be convertible into or exchangeable for
shares of any other class or classes or of any other series of any class or classes of stock of the
corporation, and if provision be made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or exchange.
(vi) The extent, if any, to which the holders of the shares of such series shall be entitled
to vote with respect to the election of directors or otherwise.
(vii) The restrictions, if any, on the issue or reissue of any additional preferred stock.
(viii) The rights of the holders of the shares of such series upon the dissolution of, or upon
the distribution of, assets of the corporation.
(b) Except as otherwise required by law and except for such voting powers with respect to the
election of directors or other matters as may be stated in paragraph (c) hereof or in the
resolutions of the board of directors creating any series of preferred stock, the holders of any
such series shall have no voting power whatsoever. Any amendment to the Restated Certificate of
Incorporation which shall increase or decrease the authorized stock of any class or classes may be
adopted by the affirmative vote of the holders of a majority of the outstanding shares of the
voting stock of the corporation.
(c) If at any time dividends in respect of any series of preferred stock shall be in default
in an amount equal to or exceeding the dividend thereon for six quarterly periods at the rate fixed
therefore, the holders of the outstanding preferred stock of all series, voting separately as a
class, each share of preferred stock having one vote, in addition to any other voting right of such
stock with respect to election of directors, shall become entitled at the next annual meeting of
stockholders and at each annual meeting thereafter until all dividends in default on all series of
preferred stock shall have been paid or declared and a sum sufficient for the payment thereof set
apart, to elect two directors of the corporation, and the remaining directors of the corporation
shall be elected by the holders of stock of the corporation entitled to vote at elections of
directors in the absence of such a default in the payment of dividends, including the holders of
outstanding preferred stock with voting rights in the election of directors. When all dividends in
default on all series of preferred stock shall thereafter be paid or declared and a sum sufficient
for the payment thereof set apart, the holders of the outstanding preferred stock shall then be
divested of such right to elect two directors of the corporation and at the next annual meeting of
stockholders and at each annual meeting thereafter each holder of preferred stock shall again have
the same voting rights at the election of directors as such holder would have had but for such
default in the payment of dividends, but always subject to the same provisions for the vesting of
such right to elect two directors in case of any similar future default in the payment of dividends
on any series of preferred stock.
(d) No holder of shares of preferred stock of the corporation shall be entitled as a matter of
right, to any preemptive right to subscribe to any additional issues of stock of the
- 3 -
corporation of
any class, or any securities convertible into any class of stock of the corporation, except as may
otherwise be stated in the resolution of the board of directors creating any series of preferred
stock.
Section 2. Junior Participating Preferred Stock, Series C
There is hereby established a series of preferred stock which shall be designated as Junior
Participating Preferred Stock, Series C (the Series C Preferred Stock) and shall consist of two
million (2,000,000) shares. The voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications, limitations or
restrictions are as follows:
A. Dividends and Distributions.
(1) Subject to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series C Preferred Stock with respect
to dividends, the holders of shares of Series C Preferred Stock, in preference to the holders of
Common Stock, $0.10 par value per share, of the corporation (the common stock) and of any other
junior stock, shall be entitled to receive, when, as and if declared by the board of directors out
of funds legally available for the purpose, quarterly dividends payable in cash on the fifteenth
day of March, June, September and December in each year (each such date being referred to herein as
a Quarterly Dividend Payment Date), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series C Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $25.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of common stock or a
subdivision of the outstanding shares of common stock (by reclassification or otherwise), declared
on the common stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series C Preferred Stock. In the event the corporation shall at any time on
or after May 7, 1993 declare or pay any dividend on common stock payable in shares of common stock,
or effect a subdivision or combination or consolidation of the outstanding shares of common stock
(by reclassification or otherwise than by payment of a dividend in shares of common stock) into a
greater or lesser number of shares of common stock, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of common stock outstanding immediately after such event
and the denominator of which is the number of shares of common stock that were outstanding
immediately prior to such event.
(2) The corporation shall declare a dividend or distribution on the Series C Preferred Stock
as provided in paragraph (1) of this Section immediately after it declares a dividend or
distribution on the common stock (other than a dividend payable in shares of common stock);
provided that, in the event no dividend or distribution shall have been declared on the common
stock during the period between any Quarterly Dividend Payment Date and the next subsequent
- 4 -
Quarterly Dividend Payment Date, a dividend of $25.00 per share on the Series C Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(3) Dividends shall begin to accrue and be cumulative on outstanding shares of Series C
Preferred Stock from the Quarterly Dividend Payment Dale next preceding the date of issue of such
shares of Series C Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series C Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series C Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be allocated pro rats
on a share-by-share basis among all such shares at the lime outstanding. The board of directors may
fix a record date for the determination of holders of shares of Series C Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
B. Voting Rights. The holders of shares of Series C Preferred Stock shall have the following
voting rights:
(1) Subject to the provision for adjustment hereinafter set forth, each share of Series C
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the corporation. In the event the corporation shall at any time on or after May
7, 1993 declare or pay any dividend on common stock payable in shares of common stock, or effect a
subdivision or combination or consolidation of the outstanding shares of common stock (by
reclassification or otherwise than by payment of a dividend in shares of common stock) into a
greater or lesser number of shares of common stock, then in each such case the number of votes per
share to which holders of shares of Series C Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction the numerator of which is the
number of shares of common stock outstanding immediately after such event and the denominator of
which is the number of shares of common stock that were outstanding immediately prior to such
event.
(2) Except as otherwise provided herein or by law, the holders of shares of Series C Preferred
Stock and the holders of shares of common stock shall vote together as one class on all matters
submitted to a vote of stockholders of the corporation.
(3) Except as set forth herein, holders of Series C Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they are entitled to
vote with holders of common stock as set forth herein) for taking any corporate action.
- 5 -
C. Certain Restrictions.
(1) Whenever quarterly dividends or other dividends or distributions payable on the Series C
Preferred Stock as provided in Section A are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series C Preferred Stock
outstanding shall have been paid in full, the corporation shall not:
(i) declare or pay dividends on, or make any other distributions on, any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series C Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series C Preferred Stock, except dividends paid ratably on the Series C Preferred Stock and all
such parity stock on which dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem ox purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series C
Preferred Stock, provided that the corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of the corporation
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the
Series C Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series C Preferred Stock,
or any shares of stock ranking on a parity with the Series C Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the board of directors)
to all holders of such shares upon such terms as the board of directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(1) The corporation shall not permit any subsidiary of the corporation to purchase or
otherwise acquire for consideration any shares of stock of the corporation unless the corporation
could, under paragraph (1) of this Section C, purchase or otherwise acquire such shares at such
time and in such manner.
D. Reacquired Shares. Any shares of Series C Preferred Stock purchased or otherwise acquired
by the corporation in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new series of preferred stock to be
created by resolution or resolutions of the board of directors, subject to the conditions and
restrictions on issuance set forth therein.
E. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of
the corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series C Preferred
Stock unless, prior thereto, the holders of shares of Series C Preferred Stock shall
- 6 -
have received
$100.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the holders of shares of Series
C Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of common stock, or (2) to the holders of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series C
Preferred Stock, except distributions made ratably on the Series C Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the corporation shall at
any time on or after May 7, 1993 declare or pay any dividend on common stock payable in shares of
common stock, or effect a subdivision or combination or consolidation of the outstanding shares of
common stock (by reclassification or otherwise than by payment of a dividend in shares of common
stock), then in each such case the aggregate amount to which holders of shares of Series C
Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of common stock outstanding immediately after such event and the
denominator of which is the number of shares of common stock that were outstanding immediately
prior to such event.
F. Consolidation, Merger, etc. In case the corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of common stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in any such case the
shares of Series C Preferred Stock then outstanding shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of common stock is
changed or exchanged. In the event the corporation shall at any time on or after May 7, 1993
declare or pay any dividend on common stock payable in shares of common stock, or effect a
subdivision or combination or consolidation of the outstanding shares of common stock, (by
reclassification or otherwise) into a greater or lesser number of shares of common stock, then in
each such case the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series C Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of common stock outstanding immediately
after such event and the denominator of which is the number of shares of common stock that were
outstanding immediately prior to such event.
G. No Redemption. The shares of Series C Preferred Stock shall not be redeemable.
H. Amendment. The Restated Certificate of Incorporation, as amended, of the corporation shall
not be amended in any manner which would materially alter or change the powers, preferences or
special rights of the Series C Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds of the outstanding shares of Series C Preferred
Stock, voting together as a single class.
- 7 -
Section 3. Provisions Applicable to Common Stock
(a) After the requirements in respect of dividends upon the preferred stock to the end of the
then current quarterly dividend period or periods for the preferred stock shall have been met, the
holders of the common stock shall be entitled to receive out of any remaining net profits or net
assets of the corporation applicable to dividends, such dividends as may from time to time be
declared by the board of directors, and the holders of the common stock shall be entitled to share
ratably in any dividends so declared to the exclusion of the holders of the preferred stock.
(b) In the event of any liquidation or dissolution or winding up of the corporation (whether
voluntary or involuntary) after payment in full of the amounts payable in respect of the preferred
stock, the holders of the common stock shall be entitled, to the exclusion of the holders of the
preferred stock, to share ratably in all the assets of the corporation then remaining.
(c) Except as otherwise made mandatory by law, each holder of common stock shall be entitled
to one vote for each full share of such stock then outstanding and of record in his name on the
books of the corporation.
(d) The holders of common stock shall have no preemptive right to purchase or subscribe for
any additional shares of capital stock (or securities convertible into capital stock) which may
hereafter be issued or sold by the corporation.
(e) Upon the filing in the Office of the Secretary of State of the State of Delaware of this
Restated Certificate of Incorporation, the shares of common stock, par value $0.10 per share, of
the corporation issued and outstanding immediately prior to the time when this Restated Certificate
becomes effective are hereby automatically reclassified and changed without any action on the part
of the holders thereof so that each fifty (50) shares of common stock becomes one (1) validly
issued, fully paid and non-assessable share of common stock of the corporation. When such
reclassification of any holders shares of common stock would otherwise result in a number of
shares that is not a whole number, the actual reclassified number of shares of such stock shall be
rounded to the next higher or lower whole number as follows: (i) fractions of 1/2 or greater shall
be rounded to the next higher or lower whole number, and (ii) fractions of less than 1/2 shall be
rounded to the next lower whole number. Upon consummation of the reclassification of the common
stock of the corporation as set forth in this paragraph, the holders of shares of common stock of
the corporation shall have all of the rights accorded to them by law.
ARTICLE FIFTH
Any action required or permitted to be taken at any annual or special meeting of stockholders
of the corporation may only be taken without a meeting if a consent in writing setting forth the
action so taken shall be signed by the holders of 80% of the voting power of all of the stock of
the corporation entitled to vote with respect to the subject matter thereof.
ARTICLE SIXTH
(a) Except as set forth in paragraph (d) of this article SIXTH, the affirmative vote or
consent of the holders of 80% of the voting power of all of the stock of this corporation entitled
- 8 -
to vote in elections of directors (computed without regard to the additional voting rights referred
to in Section 1(c) of article FOURTH) shall be required:
(i) for a merger or consolidation of this corporation or any subsidiary thereof with or into
any other corporation, or
(ii) for any sale or lease of all or any substantial part of the assets of this corporation or
any subsidiary thereof to any other corporation, person or other entity, or
(iii) for any sale or lease of this corporation or any subsidiary thereof of any assets
(except assets having an aggregate fair market value of less than $10,000,000) in exchange for
voting securities (or securities convertible into voting securities or options, warrants, or rights
to purchase voting securities or securities convertible into voting securities) of this corporation
or any subsidiary by any other corporation, person or other entity, if as of the record date for
the determination of stockholders entitled to notice thereof and to vote thereon or consent thereto
such other entity which is party to such a transaction is the beneficial owner, directly or
indirectly of 5% or more in number of shares of the outstanding shares of any class of stock of
this corporation entitled to vote in elections of directors.
(b) For purposes of this article SIXTH, any corporation, person or other entity, shall be
deemed to be the beneficial owner of arty shares of stock of this corporation,
(i) which it owns directly, whether or not of record, or
(ii) which it has the right to acquire pursuant to any agreement or understanding or upon
exercise of conversion rights, warrants or options or otherwise, whether or not presently
exercisable, or
(iii) which are beneficially owned, directly or indirectly (including shares deemed to be
owned through application of clause (ii) above), by an affiliate or associate as those terms
are defined herein, or
(iv) which are beneficially owned, directly or indirectly by any other corporation, person or
entity (including any shares which such other corporation, person or entity has the right to
acquire pursuant to any agreement or understanding or upon exercise of conversion rights, warrants
or options or otherwise, whether or not presently exercisable) with which it or its affiliate or
associate has any agreement or arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of this corporation.
For the purposes of this article SIXTH, the outstanding shares of stock of this corporation shall
include shares deemed owned through the application of clauses (b)(ii), (iii) and (iv) above, but
shall not include any other shares which may be issuable pursuant to any agreement or upon exercise
of conversion rights, warrants, options or otherwise.
For the purposes of this article SIXTH, the term affiliate shall mean any person that directly,
or indirectly, through one or more intermediaries, controls, or is controlled by, or is under
common control with, such corporation, person or other entity. The term control (including the
terms controlling, controlled by and under common control with) means the possession,
directly
- 9 -
or indirectly, of the power to direct or cause the direction of the management and
policies of a corporation, person or other entity, whether through the ownership of voting
securities, by contract, or otherwise.
For purposes of this article SIXTH, the term associate shall mean (1) any corporation or
organization (other than this corporation or a majority-owned subsidiary of this corporation) of
which such corporation, person or other entity is an officer or partner or is, directly or
indirectly, the beneficial owner of ten percent (10%) or more of any class of equity securities,
(2) any trust or other estate in which such corporation, person or other entity has a substantial
beneficial interest or as to which such corporation, person or other entity serves as a trustee or
in a similar fiduciary capacity and (3) any relative or spouse of such person or arty relative of
such spouse who has the same home as such person or who is a director or officer of this
corporation or any of its subsidiaries.
(c) The board of directors shall have the power and duty to determine for the purposes of this
article SIXTH on the basis of information known to the board of directors of this corporation,
whether
(i) such other corporation, person or other entity beneficially owns more than 5% in number of
shares of the outstanding shares of any class of stock of this corporation entitled to vote in
elections of directors,
(ii) a corporation, person or other entity is an affiliate or associate (as defined in
paragraph (b) above) of another, and
(iii) the assets being acquired by this corporation, or any subsidiary thereof, have an
aggregate fair market value of less than $10,000,000.
Any such determination shall be conclusive and binding for all purposes of this article SIXTH.
(d) The provisions of this article SIXTH shall not apply to any merger or other transaction
referred to in this article SIXTH with any corporation, person or other entity if (1) the board of
directors of this corporation has approved a memorandum of understanding with such other
corporation, person or other entity with respect to such transaction prior to the time that such
other corporation, person or other entity shall have become a beneficial owner of more than
5% in
number of shares of the outstanding shares of stock of any class of this corporation entitled to
vote in elections of directors, or (2) if such transaction is otherwise approved by the board of
directors of this corporation, provided that a majority of the members of the board of directors
voting for the approval of such transaction were duly elected and acting members of the board of
directors prior to the time that such other corporation, person or other entity shall have become a
beneficial owner of more than
5% in number of shares of the outstanding shares of stock of any
class of this corporation entitled to vote in elections of directors. In addition, the provisions
of this article SIXTH shall not apply to any merger or other transaction referred to in this
article SIXTH with a subsidiary (which term shall mean a corporation of which a majority of the
outstanding shares of stock entitled to vote in elections of directors is owned by this corporation
directly, and/or indirectly through one or more other subsidiaries).
- 10 -
ARTICLE SEVENTH
The number of directors of the corporation shall be fixed from time to time by or in the
manner provided in the by-laws and may be increased or decreased as therein provided, but the
number thereof may not be less than three.
The directors to be elected by the holders of all classes of stock entitled to vote thereon shall
be divided into three classes, as nearly equal in number as may be, the term of office of those of
the first class to expire at the first annual meeting of stockholders after their election, the
term of office of those of the second class to expire at the second annual meeting of stockholders
after their election, and the term of office of those of the third class to expire at the third
annual meeting of stockholders after their election, At each annual election, directors elected to
succeed those whose terms expire shall be elected for a term of office to expire at the third
annual meeting of stockholders after their election.
Newly created directorships resulting from any increase in the authorized number of directors
and vacancies in the board of directors from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of the directors then in
office, and directors so chosen shall hold office for a term expiring at the annual meeting at
which the term of the class to which they shall have been elected expires. No decrease in the
number of directors constituting the board of directors shall shorten the term of any incumbent
director. The affirmative vote of the holders of two-thirds (2/3) of the voting power of all of the
stock of the corporation entitled to vote in the election of directors (computed without regard to
the additional voting rights referred to in Section 1(c) of article FOURTH) shall be required to
remove a director from office. The stockholders of the corporation are expressly prohibited from
cumulating their votes in any election of directors of the corporation. The right provided by
Section 1(c) of article FOURTH to elect two directors shall be construed as the right to elect not
more than an aggregate of two members of the board of directors (of any class or classes); and, any
other provision herein or in the General Corporation Law of the State of Delaware to the contrary
notwithstanding, any director elected pursuant to such right may be removed from office without
cause but in such case only by the holders of a majority of the voting power of the outstanding
preferred stock of all series, voting separately as a class.
The board of directors, by resolution passed by a majority of the whole board, may designate
one or more committees, each committee to consist of two or more of the directors of the
corporation, which, to the extent provided in the resolution or in the by-laws of the corporation,
shall have and may exercise the powers of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name or names as may be
stated in the by-laws of the corporation or as may be determined from time to time by resolution
adopted by the board of directors.
Notwithstanding the foregoing paragraph, the corporation shall maintain a Finance Committee,
which shall have the power to review all of the corporations significant financial matters,
including, but not limited to, strategies, policies or transactions, contemplated by the
corporation. Without limiting the foregoing, the Finance Committee shall provide review
and oversight of and make recommendations to the board of directors on the corporations financing
- 11 -
requirements and programs to obtain funds; relations with banks, bondholders and other creditors;
forecasting procedures on revenues, expenses, earnings, and cash flow; operating and capital
expenditure budgets; dividend policy; the adoption of any compensation plan for key employees which
contemplates the issuance of stock of the corporation or which is a significant cash compensation
plan (other than an annual cash bonus plan consistent with past practice); and acquisitions,
divestitures and significant transactions affecting the corporations capital structure or
ownership. The Finance Committee shall confer with the Pension Committee established under the
corporations retirement plan and report periodically to the board of directors on the funding of
qualified pension plans of the corporation and its subsidiaries and the investment performance of
plan funds and, on behalf of the board of directors, authorize necessary or desirable changes in
actuarial assumptions for funding the plans. The Finance Committee shall consider such other
matters as may be referred to it from time to time by the board of directors and shall at all times
prior to June 22, 1997 be composed of four members of the board of directors who are not officers
or employees of the corporation. Any actions by the Finance Committee shall be by a majority vote
of at least 3 of its members. Prior to June 22 1997, (i) the scope and power of review of the
Finance Committee as set forth herein shall not in any way be limited or reduced and (ii) the
composition, existence and function of the Finance Committee as set forth herein shall not be
altered or diminished, in either such case without the unanimous consent of all directors then in
office.
The by laws of the corporation shall designate the officers of the corporation, which shall
include but not necessarily be limited to, a president, a secretary and a treasurer to be elected
by the board of directors.
Any officer elected by the board of directors may be removed at any time with or without cause
by a majority of the whole board of directors.
The board of directors shall have power to issue bonds, debentures and other obligations,
either nonconvertible or convertible into the corporations stock, upon such terms, in such manner
and under such conditions in conformity with law, as may be fixed by the board of directors prior
to the issuance of such bonds, debentures and other obligations.
ARTICLE EIGHTH
Meetings of stockholders may be held outside the State of Delaware, if the by-laws so provide.
Elections of directors need not be by ballot unless the by laws of the corporation shall so
provide.
ARTICLE NINTH
By-laws of the corporation may be adopted, amended or repealed by the affirmative vote of a
majority of the total number of directors (fixed by, or in the manner provided in, such by-laws as
in effect immediately prior to such vote) or by the affirmative vote of the holders of 80% of the
voting power of the corporations stock outstanding and entitled to vote thereon. Such by-laws may
contain any provision for the regulation and management of the affairs of the corporation and the
rights or powers of its stockholders, directors or employees not inconsistent with statute or this
Restated Certificate of Incorporation.
- 12 -
ARTICLE TENTH
The corporation reserves the right to amend, alter, change or repeal any provision contained
in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding any other provision of this Restated Certificate of Incorporation or the by-laws of
this corporation (and in addition to any other vote that may be required by law, this Restated
Certificate of Incorporation or the by-laws of this corporation), the affirmative vote of the
holders of 80% of the voting power of all stock of this corporation entitled to vote in elections
of directors (considered for this purpose as one class and with such voting power computed without
regard to the additional voting rights referred to in Section 1(c) of article FOURTH) shall be
required to amend, alter, change or repeal article FIFTH, SIXTH, SEVENTH, NINTH, TENTH, ELEVENTH or
TWELFTH of this Restated Certificate of Incorporation.
ARTICLE ELEVENTH
No director shall be liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (i) for any breach of a directors duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of Delaware and (iv) for any transaction from which a director derived an
improper personal benefit.
ARTICLE TWELFTH
Notwithstanding any other provisions of this Restated Certificate of Incorporation, those
provisions of the by-laws of the corporation which relate to the Finance Committee shall not, prior
to June 22, 1997, be amended or deleted without amendment of this article TWELFTH and those
provisions of the by-laws of the corporation which relate to indemnification of directors and
officers shall not, prior to June 22, 2003, be amended so as to reduce or prejudice the rights of
directors or officers thereunder or be deleted without amendment of this article TWELFTH.
* * * * *
FOURTH: That no trustee has been appointed to act for and on behalf of the
corporation, and the undersigned officers of the corporation have been duly designated under the
Plan to execute and file this Restated Certificate of Incorporation.
- 13 -
IN WITNESS WHEREOF, the undersigned, for the purpose of amending, integrating and restating
the Restated Certificate of Incorporation of the corporation pursuant to the General Corporation
Law of the State of Delaware, do each hereby declare and certify that this Restated Certificate of
Incorporation has been duly adopted in accordance with Sections 303, 242 and 245 of the General
Corporation Law of the State of Delaware.
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USG CORPORATION
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By: |
/s/
Richard H. Fleming |
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Name: |
Richard H. Fleming |
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Title: |
Executive Vice President and Chief Financial
Officer |
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Attest:
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By: |
/s/
Suzanne K. Torrey |
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Name: |
Suzanne K. Torrey |
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Title: |
Assistant Secretary |
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- 14 -
Exhibit 99.01
USG CORPORATION EMERGES FROM CHAPTER 11
Court-approved Plan Becomes Effective Today
New trust fund will pay asbestos claims, stockholders retain ownership,
creditors reimbursed 100 percent plus interest
CHICAGO, June 20, 2006 - USG Corporation (NYSE:USG) announced that its Plan of Reorganization
became effective today, formally concluding its Chapter 11 proceedings. The Plan was confirmed
last week by two judges for the United States Bankruptcy Court and the U.S. District Court for the
District of Delaware, enabling the building materials company to complete the bankruptcy case and
emerge from Chapter 11. The company is beginning the process of repaying its creditors
and funding an asbestos trust that will be responsible for compensating asbestos personal injury
claimants.
It is a great day for USG, said William C. Foote, USG Corporation chairman and chief
executive officer. The Courts action enables us to bring to a close one of the most challenging
and extraordinary events in the companys 104-year history.
The successful resolution of our Chapter 11 case is historic in the context of asbestos
bankruptcy cases, said Foote. Asbestos claimants will be compensated, our banks, bondholders and
suppliers will be repaid in full-100 cents on the dollar, with interest-and shareholders who stood
by us through this process will be rewarded by retaining ownership in the company.
-more-
USG CORPORATION TO EMERGE FROM CHAPTER 11/2
The plan of reorganization, which was approved by more than 99 percent of the asbestos
personal injury claimants voting, requires USG to establish and fund a personal injury trust to pay
asbestos personal injury claims. A $900 million payment to the new trust was made today. Two
subsequent payments totaling $3.05 billion would be made within the next 12 months if Congress
fails to enact legislation establishing a national asbestos personal injury trust fund, such as the
FAIR Act, which is currently being considered in the United States Senate (S. 3274). The terms of
the agreement are contained in the plan of reorganization that was confirmed by the Delaware court.
Financing for the plan is expected to be provided from USGs cash on hand, a $1.8 billion
rights offering to stockholders backstopped by Berkshire Hathaway Inc., tax refunds and new
long-term debt.
Our Plan is fair, fast, final and affordable, Foote explained. Its fair for everyone who
has a stake in USG, including those suffering from an asbestos-related illness, who will begin
receiving compensation soon. The Plan is fast because it brings to a close a highly complex case
less than six months after the initial agreement with the Asbestos Personal Injury Committee and
Future Claimants Representative was first announced in January. The Plan provides a final solution
to the companys asbestos personal injury liability; all present and future asbestos personal
injury claims will be permanently channeled to an independent 524 (g) personal injury trust. And
the Plan is affordable because the companys strong operational and financial performance over the
past five years has given it the financial resources and access to capital that make the Plan
possible.
Emerging from Chapter 11 is enormously satisfying to everyone at USG because we kept our
promises, Foote said. When we entered Chapter 11, we committed to treating asbestos claimants
fairly; sustaining our market leadership and operational excellence;
maintaining a strong organization; paying our creditors in full; gaining the best possible outcome
for current shareholders; putting asbestos personal injury claims behind us, once and for all; and
emerging as quickly as possible, without sacrificing our other goals. The 14,000 men and
women of USG can look back over the past five years and be especially proud of what they have
accomplished.
-more-
USG CORPORATION TO EMERGE FROM CHAPTER 11/3
USG Corporation is a Fortune 500 company with subsidiaries that are market leaders in their
key product groups: gypsum wallboard, joint compound and related gypsum products; cement board;
gypsum fiber panels; ceiling panels and grid; and building products distribution. For additional
information, visit the USG Web site at www.usg.com.
A registration statement relating to the rights offering has been filed with the Securities
and Exchange Commission but has not yet become effective. The securities covered by the rights
offering may not be sold nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This letter shall not constitute an offer to sell or the solicitation
of an offer to buy nor shall there be any sale of the rights or the underlying shares of USGs
common stock in any State in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State. In addition, the rights
have not been registered or qualified for offer or sale to shareholders of record in any
jurisdiction outside the United States. Such shareholders should contact our information agent,
Georgeson Shareholder Communications, Inc. at (888) 206-5896, 17 State Street, 10th floor, New
York, NY 10004. A copy of the preliminary prospectus relating to the rights offering is available
from Georgeson and at the SEC web site, www.sec.gov. A copy of the final prospectus relating to
the rights offering will be available after the rights offering commences.
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This press release contains forward-looking statements related to managements expectations
about future conditions. The effects of the USGs Chapter 11 reorganization, including the ultimate
outcome and costs associated with USGs plan of reorganization and its obligations that remain may
differ from managements expectations. Actual business, market or other conditions may also differ
from managements expectations and accordingly affect USGs financing terms, sales, profitability
or other results. Future conditions may differ due to various other factors, including economic
conditions such as the conditions of financing markets, levels of construction activity, mortgage
interest rates, housing affordability, currency exchange rates and consumer confidence; competitive
conditions such as price and product competition; shortages in raw materials; increases in raw
material, energy and employee benefit costs; loss of one or more major customers; capacity
constraints; the unpredictable effects of acts of terrorism or war upon domestic and international
economies and financial markets; and acts of God. USG Corporation assumes no obligation to update
any forward-looking information contained in this press release.
Exhibit 99.02
USG CORPORATION ANNOUNCES RECORD DATE FOR RIGHTS OFFERING
CHICAGO, June 20, 2006 USG Corporation (NYSE:USG) announced today that it has set Friday,
June 30, 2006 as the record date for its previously announced rights offering. USG intends to
distribute at no charge to stockholders on the record date one transferable right for each share of
common stock held on the record date.
Each right will entitle a stockholder to purchase one share of USG common stock for $40.00.
The rights will be exercisable until Thursday, July 27, 2006 (unless extended), after which they
will expire. It is expected that certificates evidencing the rights, together with a prospectus
and other information regarding the rights, will be mailed to stockholders of record promptly
following the record date. Stockholders who hold their USG shares through a bank or broker will
receive the rights materials from their bank or broker.
USG common stock is listed on the New York Stock Exchange and the Chicago Stock Exchange under
the symbol USG. The rights are expected to trade on the New York Stock Exchange under the
symbol USG RT. Current trading prices for both USG common stock and the rights can be obtained
from a broker or through normal sources of financial information on the internet.
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USG CORPORATION ANNOUNCES RECORD DATE FOR RIGHTS OFFERING/2
A copy of the preliminary prospectus relating to the rights offering is available from
Georgeson Shareholder Communications, Inc. at (888) 206-5896, 17 State Street, 10th
floor, New York, NY, 10004 and is also available at the SEC web site, www.sec.gov. A copy of the final
prospectus relating to the rights offering will be available after the rights offering commences.
A registration statement relating to the rights offering has been filed with the Securities
and Exchange Commission but has not yet become effective. The securities covered by the rights
offering may not be sold nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This press release does not constitute an offer to sell or the
solicitation of an offer to buy the securities discussed herein, and there shall not be any offer,
solicitation or sale of the securities in any State in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of any such State. In
addition, the rights have not been registered or qualified for offer or sale to stockholders of
record in any jurisdiction outside the United States.
USG Corporation is a Fortune 500 company with subsidiaries that are market leaders in their
key product groups: gypsum wallboard, joint compound and related gypsum products; cement board;
gypsum fiber panels; ceiling panels and grid; and building products distribution. For more
information about USG Corporation, visit the USG Web Site at www.usg.com.
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