Attached files
file | filename |
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8-K - U.S. CONCRETE, INC. | v191715_8k.htm |
EX-2.2 - U.S. CONCRETE, INC. | v191715_ex2-2.htm |
EX-99.1 - U.S. CONCRETE, INC. | v191715_ex99-1.htm |
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
)
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In
re:
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)
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Chapter
11
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)
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U.S.
CONCRETE, INC., et
al.,1
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)
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Case
No. 10-11407 (PJW)
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)
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Debtors.
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)
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Jointly
Administered
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)
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JOINT
PLAN OF REORGANIZATION OF U.S. CONCRETE, INC.,
ET AL., PURSUANT TO CHAPTER
11 OF THE BANKRUPTCY CODE
KIRKLAND &
ELLIS LLP
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PACHULSKI,
STANG, ZIEHL & JONES LLP
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300
North LaSalle Street
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919
North Market Street
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Chicago,
Illinois 60611
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17th
Floor
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Telephone:
(312) 862-2200
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Wilmington,
Delaware 19899
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Facsimile: (312) 862-2200
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Telephone: (302)
652-4100
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Facsimile: (302)
652-4400
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Co-Counsel
for the Debtors
Dated:
July 27, 2010
1
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The
debtors in these chapter 11 cases, along with the last four digits of each
debtor’s federal tax identification number, include: U.S.
Concrete, Inc. (6680); Alberta Investments, Inc. (1497); Alliance Haulers,
Inc. (3236); American Concrete Products, Inc. (3187); Atlas Redi-Mix, LLC
(3123); Atlas-Tuck Concrete, Inc. (1542); Beall Concrete Enterprises, LLC
(3536); Beall Industries, Inc. (2872); Beall Investment Corporation, Inc.
(9865); Beall Management, Inc. (9839); Breckenridge Ready Mix, Inc.
(2482); Central Concrete Supply Co., Inc. (1859); Central Precast
Concrete, Inc. (9358); Concrete Acquisition III, LLC (5638); Concrete
Acquisition IV, LLC (5720); Concrete Acquisition V, LLC (5777); Concrete
Acquisition VI, LLC (5840); Concrete XXXIII Acquisition, Inc. (6120);
Concrete XXXIV Acquisition, Inc. (6167); Concrete XXXV Acquisition, Inc.
(6206); Concrete XXXVI Acquisition, Inc. (6240); Eastern Concrete
Materials, Inc. (1165); Hamburg Quarry Limited Liability Company (3592);
Ingram Concrete, LLC (6753); Local Concrete Supply & Equipment, LLC
(6597); Master Mix Concrete, LLC (0135); Master Mix, LLC (8532); MG, LLC
(9279); NYC Concrete Materials, LLC (0666); Pebble Lane Associates, LLC
(6520); Redi-Mix Concrete, L.P. (4765); Redi-Mix GP, LLC (N/A); Redi-Mix,
LLC (6751); Riverside Materials, LLC (3588); San Diego Precast Concrete,
Inc. (6282); Sierra Precast, Inc. (4227); Smith Pre-Cast, Inc. (0673);
Superior Concrete Materials, Inc. (6503); Titan Concrete Industries, Inc.
(6374); U.S. Concrete On-Site, Inc. (0662); USC Atlantic, Inc. (6002); USC
Management Co., LLC (6749); USC Payroll, Inc. (0665); and USC
Technologies, Inc. (6055). The location of the debtors’
corporate headquarters and the debtors’ service address
is: 2925 Briarpark, Suite 1050, Houston, Texas
77042.
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TABLE OF
CONTENTS
ARTICLE
I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND
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GOVERNING
LAW
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1
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A.
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Defined
Terms
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1
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B.
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Rules
of Interpretation
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9
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C.
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Computation
of Time
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10
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D.
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Governing
Law
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10
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E.
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Reference
to Monetary Figures
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10
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ARTICLE
II. ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS
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10
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A.
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Administrative
Claims
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10
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B.
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DIP
Facility Claims
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11
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C.
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Priority
Tax Claims
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11
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ARTICLE
III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
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11
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A.
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Classification
of Claims and Interests
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11
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B.
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Treatment
of Claims and Interests
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12
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C.
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Special
Provision Governing Unimpaired Claims
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14
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D.
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Acceptance
or Rejection of the Plan
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14
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E.
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Confirmation
Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code
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14
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F.
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Controversy
Concerning Impairment
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14
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G.
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Subordinated
Claims
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14
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ARTICLE
IV. MEANS FOR IMPLEMENTATION OF THE PLAN
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15
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A.
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General
Settlement of Claims and Interests
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15
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B.
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Restructuring
Transactions
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15
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C.
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Reorganized
U.S. Concrete, Inc
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15
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D.
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Existing
Letters of Credit
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15
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E.
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Sources
of Consideration for Plan Distributions
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16
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F.
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Corporate
Existence
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16
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G.
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Vesting
of Assets in the Reorganized Debtors
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16
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H.
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Cancellation
of Securities and Agreements
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17
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I.
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Surrender
of Existing Securities
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17
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J.
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Corporate
Action
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18
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K.
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New
Organizational Documents
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18
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L.
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Directors
and Officers of the Reorganized Debtors
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18
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M.
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Effectuating
Documents; Further Transactions
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18
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N.
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Section
1146 Exemption
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18
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O.
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Director
and Officer Liability Insurance
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19
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P.
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Management
Equity Incentive Plan
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19
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Q.
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Employee
and Retiree Benefits
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19
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R.
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Preservation
of Causes of Action
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20
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S.
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Release
of Avoidance Actions
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20
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ARTICLE
V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
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20
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A.
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Assumption
of Executory Contracts and Unexpired Leases
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20
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B.
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Indemnification
Obligations
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20
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C.
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Cure
of Defaults for Executory Contracts and Unexpired Leases
Assumed
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21
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D.
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Insurance
Policies
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21
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E.
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Modifications,
Amendments, Supplements, Restatements, or Other Agreements
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21
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F.
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Reservation
of Rights
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21
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G.
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Nonoccurrence
of Effective Date
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21
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H.
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Contracts
and Leases Entered Into After the Petition Date
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21
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i
ARTICLE
VI. PROVISIONS GOVERNING DISTRIBUTIONS
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22
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A.
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Timing
and Calculation of Amounts to Be Distributed
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22
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B.
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Disbursing
Agent
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22
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C.
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Rights
and Powers of Disbursing Agent
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22
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D.
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Delivery
of Distributions and Undeliverable or Unclaimed
Distributions
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22
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E.
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Manner
of Payment
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23
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F.
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Section
1145 Exemption
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23
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G.
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Compliance
with Tax Requirements
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24
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H.
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Allocations
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24
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I.
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No
Postpetition Interest on Claims
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24
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J.
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Setoffs
and Recoupment
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24
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K.
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Claims
Paid or Payable by Third Parties
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24
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ARTICLE
VII. TREATMENT OF DISPUTED CLAIMS UNDER THE PLAN
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25
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A.
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Disputed
Claims Process
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25
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B.
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No
Distributions Pending Allowance
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25
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C.
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Distributions
After Allowance
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25
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ARTICLE
VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED
PROVISIONS
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25
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A.
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Compromise
and Settlement
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25
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B.
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Discharge
of Claims and Termination of Interests
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26
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C.
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Release
of Liens
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26
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D.
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Releases
by the Debtors
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27
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E.
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Releases
by Holders of Claims and Interests
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27
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F.
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Exculpation
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28
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G.
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Injunction
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28
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H.
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Protections
Against Discriminatory Treatment
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28
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I.
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Recoupment
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28
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J.
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Subordination
Rights
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29
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K.
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Document
Retention
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29
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ARTICLE
IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE
PLAN
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29
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A.
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Conditions
Precedent to Confirmation
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29
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B.
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Conditions
Precedent to the Effective Date
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30
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C.
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Waiver
of Conditions
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30
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D.
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Effect
of Failure of Conditions
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30
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ARTICLE
X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
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31
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A.
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Modification
and Amendments
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31
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B.
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Effect
of Confirmation on Modifications
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31
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C.
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Revocation
or Withdrawal of Plan
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31
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ARTICLE
XI. RETENTION OF JURISDICTION
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31
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ARTICLE
XII. MISCELLANEOUS PROVISIONS
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33
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A.
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Immediate
Binding Effect
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33
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B.
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Additional
Documents
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33
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C.
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Payment
of Statutory Fees
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33
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D.
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Payment
of Fees and Expenses of Professionals in Connection with the Funded
Debt
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33
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E.
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Statutory
Committee and Cessation of Fee and Expense Payment
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34
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F.
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Reservation
of Rights
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34
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G.
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Successors
and Assigns
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34
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H.
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Notices
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34
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I.
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Term
of Injunctions or Stays
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35
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J.
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Entire
Agreement
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35
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ii
K.
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Exhibits | 35 | |
L.
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Nonseverability
of Plan Provisions
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35
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M.
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Votes
Solicited in Good Faith
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36
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N.
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Closing
of Chapter 11 Cases
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36
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O.
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Conflicts
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36
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iii
INTRODUCTION
U.S.
Concrete, Inc., together with its Affiliates, Alberta Investments, Inc.,
Alliance Haulers, Inc., American Concrete Products, Inc., Atlas Redi-Mix, LLC,
Atlas-Tuck Concrete, Inc., Beall Concrete Enterprises, LLC, Beall Industries,
Inc., Beall Investment Corporation, Inc., Beall Management, Inc., Breckenridge
Ready Mix, Inc., Central Concrete Supply Co., Inc., Central Precast Concrete,
Inc., Concrete Acquisition III, LLC, Concrete Acquisition IV, LLC, Concrete
Acquisition V, LLC, Concrete Acquisition VI, LLC, Concrete XXXIII Acquisition,
Inc., Concrete XXXIV Acquisition, Inc., Concrete XXXV Acquisition, Inc.,
Concrete XXXVI Acquisition, Inc., Eastern Concrete Materials, Inc., Hamburg
Quarry Limited Liability Company, Ingram Concrete, LLC, Local Concrete Supply
& Equipment, LLC, Master Mix Concrete, LLC, Master Mix, LLC, MG, LLC, NYC
Concrete Materials, LLC, Pebble Lane Associates, LLC, Redi-Mix Concrete,
L.P., Redi-Mix GP, LLC, Redi-Mix, LLC, Riverside Materials, LLC, San Diego
Precast Concrete, Inc., Sierra Precast, Inc., Smith Pre-Cast, Inc., Superior
Concrete Materials, Inc., Titan Concrete Industries, Inc., U.S. Concrete
On-Site, Inc., USC Atlantic, Inc., USC Management Co., LLC, USC Payroll,
Inc., and USC Technologies, Inc. as debtors and debtors in possession (each, a
“Debtor” and,
collectively, the “Debtors”) propose
this joint plan of reorganization (the “Plan”) for the
resolution of the outstanding claims against and interests in the Debtors
pursuant to chapter 11 of title 11 of the United States Code, 11 U.S.C. §§
101–1532 (the “Bankruptcy
Code”). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in Article I.A
hereof. Holders of Claims and Interests may refer to the Disclosure
Statement for a discussion of the Debtors’ history, businesses, assets, results
of operations, historical financial information, and projections of future
operations, as well as a summary and description of the Plan and certain related
matters. The Debtors are the proponents of the Plan within the
meaning of section 1129 of the Bankruptcy Code.
ALL
HOLDERS OF CLAIMS AND INTERESTS, TO THE EXTENT APPLICABLE, ARE ENCOURAGED TO
READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO
ACCEPT OR REJECT THE PLAN.
ARTICLE
I.
DEFINED
TERMS, RULES OF INTERPRETATION,
COMPUTATION
OF TIME, AND GOVERNING LAW
A.
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Defined
Terms.
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As used
in this Plan, capitalized terms have the meanings set forth below.
1.
“Administrative Claim”
means a Claim for costs and expenses of administration pursuant to
sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code,
including: (a) the actual and necessary costs and expenses
incurred after the Petition Date and through the Effective Date of preserving
the Estates and operating the businesses of the Debtors (such as wages,
salaries, or commissions for services, and payments for goods and other services
and leased premises); (b) compensation
for legal, financial advisory, accounting, and other services and reimbursement
of expenses awarded or Allowed pursuant to sections 328, 330(a), or 331 of the
Bankruptcy Code or otherwise for the period commencing on the Petition Date and
ending on the Effective Date; (c) all fees and charges assessed against the
Estates pursuant to sections 1911 through 1930 of chapter 123 of the Judicial
Code; and (d) all requests for compensation or expense reimbursement for
making a substantial contribution in the Chapter 11 Cases pursuant to sections
503(b)(3), (4), and (5) of the Bankruptcy Code.
2.
“Affiliate” has the
meaning set forth in section 101(2) of the Bankruptcy Code.
3.
“Allowed” means with
respect to any Claim or Interest, except as otherwise provided
herein: (a) a Claim or Interest as to which no (i) objection to
allowance therof has been interposed on or prior to the Effective Date or (ii)
as to which any objection has been determined by Final Order to the extent such
objection is determined in favor of the respective Holder, (b) a Claim or
Interest as to which the liability of the Debtors and the amount thereof are
determined by Final Order of a court of competent jurisdiction other than the
Bankruptcy Court; or (c) a Claim or Interest expressly allowed
hereunder.
1
4.
“Allowed California Wage and
Hour Claim” shall mean that Claim arising on account of the California
Wage and Hour Litigation, which, subject to approval of the California Wage and
Hour 9019 Motion, shall be an Unimpaired Class 3 Allowed Claim in the amount of
approximately $1.5 million plus administrative costs not to exceed $50,000
plus the Debtors’ portion of withholding taxes for any payment amounts that are
deemed to be on account of employee wages.
5.
“Avoidance Actions”
means Claims and causes of action arising under sections 544, 545, 546, 547,
548, 549, 550, and 553(b) of the Bankruptcy Code.
6.
“Bankruptcy Court”
means the United States Bankruptcy Court for the District of Delaware or any
other court having jurisdiction over the Chapter 11 Cases.
7.
“Bankruptcy Rules”
means the Federal Rules of Bankruptcy Procedure promulgated under
section 2075 of the Judicial Code and the general, local, and chambers
rules of the Bankruptcy Court.
8.
“Business Day” means
any day, other than a Saturday, Sunday, or “legal holiday” (as defined in
Bankruptcy Rule 9006(a)).
9.
“California Wage and Hour
Joint Motion” means the Joint Motion of U.S. Concrete, et.
al., and the Class Representatives For Entry of (I) a Preliminary Order (A)
Certifying Class Proof of Claim, (B) Approving Settlement on a Preliminary
Basis, (C)Approving Form of Notice to Class Members, and (D) Approving Estimate
Procedures for Opt-out Claimants and (II) a Final Order Approving Settlement and
Voluntary Dismissal of Class Action on a Final Basis and Granting Allowed Claim
[Docket No. 104], filed on May 13, 2010, to, among other things, approve
the Allowed California Wage and Hour Claim in settlement of the California Wage
and Hour Litigation.
10. “California Wage and Hour
Litigation” means the class action against Debtor Central Concrete Supply
Co., Inc. pending currently in the Superior Court of the State of
California, in and for the County of Alameda under case number
HG7319366.
11. “Cash” means cash and cash
equivalents.
12. “Causes of Action” means
any: (a) Claims, causes of action, demands, rights, actions,
suits, obligations, liabilities, accounts, defenses, offsets, powers,
privileges, licenses, and franchises; (b) all rights of setoff,
counterclaim, or recoupment and Claims on contracts or for breaches of duties
imposed by law; (c) rights to object to Claims or Interests;
(d) Claims pursuant to sections 362, 510, 542, 543, 544, 545, 546, 547,
548, 549, 550, or 553 of the Bankruptcy Code; and (e) Claims and defenses
as fraud, mistake, duress, and usury and any other defenses set forth in section
558 of the Bankruptcy Code of any kind or character whatsoever, known or
unknown, contingent or non-contingent, matured or unmatured, suspected or
unsuspected, whether arising before, on, or after the Petition Date including
through the Effective Date, in contract, in tort, in law, or in equity, or
pursuant to any other theory of law.
13. “Certificate” means any
instrument evidencing a Claim or an Interest.
14. “Chapter 11 Cases” means (a)
when used with reference to a particular Debtor, the case pending for that
Debtor under chapter 11 of the Bankruptcy Code in the Bankruptcy Court and
(b) when used with reference to all the Debtors, the procedurally
consolidated chapter 11 cases pending for the Debtors in the Bankruptcy
Court.
15. “Claim” means any claim, as
such term is defined in section 101(5) of the Bankruptcy Code, against a
Debtor.
16. “Class” means a class of
Claims or Interests as set forth in Article III hereof pursuant to
section 1122(a) of the Bankruptcy Code.
17. “CM/ECF” means the Bankruptcy
Court’s Case Management and Electronic Case Filing system.
2
18. “Confirmation” means the entry
of the Confirmation Order on the docket of the Chapter 11 Cases, subject to
all conditions specified in Article IX.A hereof having been (a) satisfied
or (b) waived pursuant to Article
IX.C hereof.
19. “Confirmation Date” means the
date upon which the Bankruptcy Court enters the Confirmation Order on the
docket of the Chapter 11 Cases, within the meaning of Bankruptcy Rules 5003 and
9021.
20. “Confirmation Hearing” means
the hearing held by the Bankruptcy Court on Confirmation of the Plan pursuant to
section 1129 of the Bankruptcy Code, as such hearing may be continued from time
to time.
21. “Confirmation Order” means the
order of the Bankruptcy Court confirming the Plan pursuant to section 1129
of the Bankruptcy Code.
22. “Consummation” means the
occurrence of the Effective Date.
23. “Creditors Committee” means
that certain official committee of unsecured creditors appointed by the Office
of the United States Trustee for the District of Delaware on May 12, 2010
[Docket No. 94].
24. “Cure Claim” means a Claim
based upon the Debtors’ defaults on an Executory Contract or Unexpired Lease at
the time such contract or lease is assumed by the Debtors pursuant to section
365 of the Bankruptcy Code.
25. “Debtor Release” means the
release given by the Debtors to the Released Parties as set forth in Article
VIII.D.
26. “DIP Agent” means JPMorgan
Chase Bank, N.A.
27. “DIP Facility” means that
certain $80,000,000 Revolving Credit, Term Loan, and Guarantee Agreement among
U.S. Concrete, Inc., as borrower, certain Affiliates thereof, as guarantors, the
DIP Agent, and certain Lenders thereof..
28. “DIP Facility Claims” means
any secured Claim held by the DIP Lenders and or the DIP Agent arising under or
related to the DIP Facility.
29. “DIP Lenders” means those
certain lenders party to the DIP Facility.
30. “DIP Order” means the order
entered by the Bankruptcy Court on May 21, 2010, authorizing and approving the
DIP Facility.
31. “Director Equity” means up to
0.5% of the fully-diluted New Equity to be reserved for issuance to directors of
Reorganized U.S. Concrete, Inc.
32. “Disbursing Agent” means the
Reorganized Debtors or the Entity or Entities selected by the Debtors or the
Reorganized Debtors, as applicable, to make or facilitate distributions pursuant
to the Plan.
33. “Disclosure Statement” means
the Disclosure Statement
Relating to the Joint Plan of Reorganization of U.S. Concrete, Inc., et al.,
Pursuant to Chapter 11 of the Bankruptcy Code, dated June 4, 2010,
including all exhibits and schedules thereto and references therein that relate
to the Plan, that is prepared and distributed in accordance with the Bankruptcy
Code, the Bankruptcy Rules, and any other applicable law.
34. “Disputed” means any Claim or
Interest that is not yet Allowed.
35. “Distribution Record Date”
means other than with respect to any publicly held securities, the record date
for purposes of making distributions under the Plan on account of Allowed
Claims, which date shall be five Business Days after the Confirmation
Date.
3
36. “Effective Date” means the
date selected by the Debtors that is a Business Day after the Confirmation Date
on which (a) the conditions to the occurrence of the Effective Date have
been met or waived pursuant to Article IX.B and Article IX.C hereof and
(b) no stay of the Confirmation Order is in effect. Unless
otherwise specifically provided herein, anything required to be done by the
Debtors or the Reorganized Debtors, as applicable, on the Effective Date may be
done on the Effective Date.
37. “Entity” means an entity as
such term is defined in section 101(15) of the Bankruptcy
Code.
38. “Equity Security” means any
equity security as defined in section 101(16) of the Bankruptcy Code
in a Debtor.
39. “Estate” means, as to each
Debtor, the estate created for the Debtor in its Chapter 11 Case pursuant
to section 541 of the Bankruptcy Code.
40. “Exchange Act” means the
Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq.
41. “Exculpated Claim” means any
Claim related to any act taken or omitted to be taken in connection with,
relating to, or arising out of the Debtors’ out-of-court restructuring efforts,
the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation,
or filing of the Disclosure Statement or the Plan, or any contract, instrument,
release, or other agreement or document created or entered into in connection
with the Disclosure Statement or the Plan, the preparation or filing of the
Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, and
the administration and implementation of the Plan, including the issuance of New
Equity or the distribution of property under the Plan or any other
agreement.
42. “Exculpated Party” means each
of: (a) the Debtors and (b) the Released Parties.
43. “Exit Facility” means a credit
facility to be entered into by the Reorganized Debtors to fund ongoing
operations and obligations under the Plan.
44. “Executory Contract” means a
contract to which one or more of the Debtors is a party and that is subject to
assumption or rejection under section 365 of the Bankruptcy
Code.
45. “Federal Judgment Rate” means
the federal judgment rate in effect as of the Petition Date.
46. “File” or “Filed” means file, filed, or
filing with the Bankruptcy Court or its authorized designee in the Chapter 11
Cases.
47. “Final Order” means, as
applicable, an order or judgment of the Bankruptcy Court or other court of
competent jurisdiction with respect to the relevant subject matter, which has
not been reversed, stayed, modified, or amended, and as to which the time to
appeal, seek certiorari, or move for a new trial, re-argument, or
rehearing has expired and no appeal, petition for certiorari, or
motion for a new trial, re-argument, or rehearing has been timely filed, or as
to which any appeal that has been taken, any petition for certiorari, or motion
for a new trial, re-argument, or rehearing that has been or may be Filed has
been resolved by the highest court to which the order or judgment was appealed
or from which certiorari was sought.
48. “General Administrative Claim”
means any Administrative Claim, including Cure Claims, other than a Professional
Fee Claim.
49. “General Unsecured Claims”
means any Claim against the Debtors that is not an Administrative Claim, a
Priority Tax Claim, an Other Priority Claim, an Other Secured Claim, a Note
Claim, an Intercompany Claim, or a Section 510(b) Claim.
50. “Governmental Unit” means a
governmental unit as defined in section 101(27) of the
Bankruptcy Code.
4
51. “Holdback Amount” means the
aggregate holdback of those Professional fees billed to the Debtors during the
Chapter 11 Cases that are held back pursuant to the Professional Fee Order
or any other order of the Bankruptcy Court, which amount is to be deposited in
the Holdback Escrow Account as of the Effective Date. The Holdback
Amount shall not be considered property of the Debtors or the Reorganized
Debtors. When all Professional Fee Claims have been paid, amounts
remaining in the Holdback Escrow Account, if any, shall be paid to the
Reorganized Debtors.
52. “Holdback Escrow Account”
means the escrow account established by the Reorganized Debtors into which Cash
equal to the Holdback Amount shall be deposited on the Effective Date for the
payment of Allowed Professional Fee Claims to the extent not previously paid or
disallowed.
53. “Holder” means an Entity
holding a Claim or an Interest.
54. “Impaired” means, with respect
to a Class of Claims or Interests, a Class of Claims or Interests that is not
Unimpaired.
55. “Indemnification Obligation”
means a Debtor’s obligation under an Executory Contract or otherwise to
indemnify directors, officers, or employees of the Debtors with respect to or
based upon any act or omission taken or omitted in any of such capacities, or
for or on behalf of any Debtor, pursuant to and to the maximum extent provided
by the Debtors’ respective articles of incorporation, certificates of formation,
bylaws, similar corporate documents, and applicable law, as in effect on the
Effective Date.
56. “Informal Noteholders
Committee” means the informal committee of the Holders of Note Claims
represented by Paul, Weiss, Rifkind, Wharton & Garrison LLP, which
represents the requisite number, and which collectively hold the requisite
amount, of Note Claims needed to confirm a plan of reorganization pursuant to
Section 1126(c) of the Bankruptcy Code.
57. “Intercompany Claim” means any
Claim held by a Debtor or a Non-Filer against another Debtor or Non-Filer or any
Claim held by an Affiliate against a Debtor.
58. “Intercompany Interest” means
any Interest in a Debtor or a Non-Filer held by another Debtor or Non-Filer or
any Interest in a Debtor or a Non-Filer held by an Affiliate of a Debtor or a
Non-Filer.
59. “Interests” means any:
(a) Equity Security, including all issued, unissued, authorized, or
outstanding shares of capital stock of the Debtors together with any warrants,
options, or contractual rights to purchase or acquire such Equity Securities at
any time and all rights arising with respect thereto; and (b) partnership,
limited liability company, or similar interest in a Debtor.
60. “Judicial Code” means title 28
of the United States Code, 28 U.S.C. §§ 1–4001.
61. “Lien” means a lien as defined
in section 101(37) of the Bankruptcy Code.
62. “Management Equity Incentive
Plan” means that certain post-Effective Date management equity incentive
plan, the form of which shall be included in the Plan Supplement, the terms of
which shall be consistent with what is described in Article IV.O
below.
63. “Michigan Joint Venture” means
a joint venture entered into by the Non-Filers, on the one hand, and the
Michigan Joint Venture Partner, on the other hand, whereby the Non-Filers and
the Michigan Joint Venture Partner formed the Michigan Joint Venture
Entities.
64. “Michigan Joint Venture
Entities” means Superior Materials Holdings, LLC, Superior Materials,
LLC, and BWB, LLC, each a Michigan limited liability company.
65. “Michigan Joint Venture
Partner” means Edw. C. Levy Co., a Michigan corporation, d/b/a Clawson Concrete
Company, and any of its successors or assigns.
5
66. “New Boards” means, with
respect to the Reorganized Debtors that are corporations or manager-managed
limited liability companies, the initial boards of directors of such Reorganized
Debtors.
67. “New Equity” means the equity
of Reorganized U.S. Concrete, Inc. authorized pursuant to the Plan.
68. “New Organizational Documents”
means such certificates or articles of incorporation, bylaws, or such other
applicable formation documents of each of the Reorganized Debtors, which will be
included in the Plan Supplement.
69. “New Warrants” means, subject
in all respects to the New Warrant Agreement, two tranches of warrants, each
with a 7 year term issued by Reorganized U.S. Concrete, Inc. to acquire New
Equity (both subject to dilution by the Management Equity Incentive Plan):
(i) warrants to acquire 7.5% of the New Equity on a fully diluted basis
exercisable at a New Equity value that is equal to a Par Plus Accrued Interest
Recovery to holders of Note Claims; and (ii) warrants to acquire an
additional 7.5% of the New Equity on a fully diluted basis exercisable at a New
Equity value that is equal to a Par Plus Accrued Interest Recovery plus $50
million to holders of Note Claims.
70. “New Warrant Agreement” means
that certain warrant agreement, dated as of the Effective Date, governing
the New Warrants to be issued by the Reorganized Debtors, substantially in the
form to be included in the Plan Supplement.
71. “Non-Executive Bonus Plan”
means that certain prepetition bonus program for non-executive employees, which
provides for payment of $400,000 in the aggregate to non-executive
employees.
72. “Non-Filers” means Builders’
Redi-Mix, LLC, BWB, Inc. of Michigan, Kurtz Gravel Company, Superior Holdings,
Inc., and USC Michigan, Inc.
73. “Notes” means the $285 million
in 8.375% unsecured senior subordinated notes due April 1, 2014,
issued by U.S. Concrete, Inc. pursuant to the Note Indenture, of which
approximately $282.2 million in principal amount and past and due interest,
plus accrued interest thereon, remains outstanding as of the Petition
Date.
74. “Note Claims” means Claims
arising under the Note Indenture.
75. “Note Indenture” means that
certain indenture, dated as of March 31, 2004, as amended by the First
Supplemental Indenture, dated as of July 5, 2006, by and among U.S.
Concrete, Inc., as issuer, certain of its Affiliates, as guarantors, and Wells
Fargo Bank, National Association, as indenture trustee.
76. “Note Indenture Trustee” means
Wells Fargo Bank, National Association., and/or its successors, as indenture
trustee under the Note Indenture.
77. “Notice, Claims, and Balloting
Agent” means Epiq Bankruptcy Solutions, LLC, located at 757 Third
Avenue, New York, New York 10017, (646) 282-2400, retained as the Debtors’
notice, claims, and balloting agent.
78. “Other Priority Claims” means
any Claim, other than an Administrative Claim or a Priority Tax Claim, entitled
to priority in right of payment under section 507(a) of the Bankruptcy
Code.
79. “Other Secured Claim” means
any Secured Claim that is not a Prepetition Secured Claim.
80. “Par Plus Accrued Interest
Recovery” means the value of the New Equity is equal to
$285.009 million.
81. “Petition Date” means April
29, 2010, the date on which the Debtors commenced the Chapter 11
Cases.
6
82. “Plan” means this Joint Plan of Reorganization of the
U.S. Concrete, Inc., et al., Pursuant to Chapter 11 of the Bankruptcy
Code, including the Plan Supplement, which is incorporated herein by
reference.
83. “Plan Supplement” means the
compilation of documents and forms of documents, schedules, and exhibits to the
Plan to be Filed by the Debtors no later than 10 days prior to the
Confirmation Hearing or such later date as may be approved by the Bankruptcy
Court on notice to parties in interest, and additional documents filed with the
Bankruptcy Court prior to the Effective Date as amendments to the Plan
Supplement, comprised of, among other documents, the following: (a)
New Organizational Documents; (b) a list of retained Causes of Action;
(c) Restructuring Transaction Memorandum; (d) Management Equity
Incentive Plan; (e) New Warrant Agreement; and (f) Exit Facility. Any
reference to the Plan Supplement in this Plan shall include each of the
documents identified above as (a) through (f). The Debtors shall have
the right to amend the documents contained in the Plan Supplement, and add
additional documents to the Plan Supplement, through and including the Effective
Date in accordance with Article IX hereof.
84.
“Postpetition Period”
means the period of time following the Petition Date through the Confirmation
Date.
85. “Prepetition Secured Agent”
means JPMorgan Chase Bank, N.A., and/or its successors and assigns, as
administrative agent under the Prepetition Secured Credit
Agreement.
86. “Prepetition Secured Claims”
means Claims arising under the Prepetition Secured Credit Agreement and any
other Claims that, pursuant to the terms of the Prepetition Secured Credit
Agreement, rank pari passu with and are
secured equally and ratably with such Claims.
87. “Prepetition Secured Credit Agreement”
means that certain amended and restated credit agreement, dated as of
June 30, 2006, by and among U.S. Concrete, Inc., as borrower, and
certain of its Affiliates, as guarantors, JPMorgan Chase Bank, N.A., as
administrative agent, Bank of America, N.A., as syndication agent, JPMorgan
Chase Bank, as documentation agent, and certain financial institutions and
lender parties thereto, and any schedules, amendments, guarantees, security
documents, and other documents in connection therewith.
88. “Priority Tax Claim” means any
Claim of the kind specified in section 507(a)(8) of the Bankruptcy
Code.
89. “Pro Rata” means the
proportion that an Allowed Claim or Allowed Interest in a particular Class bears
to the aggregate amount of Allowed Claims or Allowed Interests in that
Class.
90. “Professional” means an
Entity: (a) employed pursuant to a Bankruptcy Court order in
accordance with sections 327 or 1103 of the Bankruptcy Code and to be
compensated for services rendered prior to or on the Confirmation Date, pursuant
to sections 327, 328, 329, 330, 331, and 363 of the Bankruptcy Code; or
(b) awarded compensation and reimbursement by the Bankruptcy Court pursuant
to section 503(b)(4) of the Bankruptcy Code.
91. “Professional Fee Claims”
means all Administrative Claims for the compensation of Professionals and the
reimbursement of expenses incurred by such Professionals through the
Confirmation Date.
92. “Professional Fee Order” means
that certain order of the Bankruptcy Court, establishing procedures for interim
compensation and reimbursement of expenses of Professionals.
93.
“Reinstated”
means: (a) leaving unaltered the legal, equitable, and
contractual rights to which a Claim or Interest entitles the Holder of such
Claim or Interest so as to leave such Claim or Interest Unimpaired; or
(b) notwithstanding any contractual provision or applicable law that
entitles the Holder of a Claim or Interest to demand or receive accelerated
payment of such Claim or Interest after the occurrence of a
default: (i) curing any such default that occurred before or
after the Petition Date, other than a default of a kind specified in
section 365(b)(2) of the Bankruptcy Code or of a kind that section
365(b)(2) expressly does not require to be cured; (ii) reinstating the
maturity (to the extent such maturity has not otherwise accrued by the passage
of time) of such Claim or Interest as such maturity existed before such default;
(iii) compensating the Holder of such Claim or Interest for any damages
incurred as a result of any reasonable reliance by such Holder on such
contractual provision or such applicable law; (iv) if such Claim or
Interest arises from a failure to perform a nonmonetary obligation other than a
default arising from failure to operate a nonresidential real property lease
subject to section 365(b)(1)(A), compensating the Holder of such Claim or
Interest (other than a Debtor or an insider) for any actual pecuniary loss
incurred by such Holder as a result of such failure; and (v) not otherwise
altering the legal, equitable, or contractual rights to which such Claim or
Interest entitles the Holder.
7
94. “Released Party” means each
of: (a) the DIP Agent, the DIP Lenders, and the Holders of DIP
Facility Claims, in each case, in their capacity as such; (b) the
Prepetition Secured Agent and the Holders of Prepetition Secured Claims, in each
case, in their capacity as such; (c) members of the Informal Noteholders
Committee who vote to accept the Plan, the Holders of Note Claims who vote to
accept the Plan, and the Note Indenture Trustee, in each case, in their capacity
as such; (d) the Exit Facility agent and lenders, in each case, in their
capacity as such; and (e) with respect to each of the foregoing entities in
clauses (a) through (d), such person’s current and former Affiliates,
subsidiaries, officers, directors, principals, employees, agents, financial
advisors, attorneys, accountants, investment bankers, consultants,
representatives, and other professionals, in each case in their capacity as
such; and (f) the Debtors’ and the Reorganized Debtors’ current and former
Affiliates, including the Non-Filers, subsidiaries, officers, directors,
principals, employees, agents, financial advisors, attorneys, accountants,
investment bankers, consultants, representatives, and other professionals, in
each case in their capacity as such. No Holder of a Claim or Interest
who votes to reject the Plan shall be a Released Party.
95. “Reorganized Debtors” means
the Debtors, or any successor thereto, by merger, consolidation, or otherwise,
on or after the Effective Date.
96. “Reorganized U.S. Concrete,
Inc.” means U.S. Concrete, Inc., or any successor thereto, by merger,
consolidation, or otherwise, on or after the Effective Date.
97. “Restructuring Transactions”
means those mergers, amalgamations, consolidations, arrangements, continuances,
restructurings, transfers, conversions, dispositions, liquidations,
dissolutions, or other corporate transactions that the Debtors or the
Reorganized Debtors determine to be necessary or appropriate to effect a
restructuring of a Debtor’s business or a restructuring of the overall corporate
structure of the Reorganized Debtors, including those described in the
Restructuring Transactions Memorandum.
98. “Restructuring Transactions
Memorandum” means the memorandum describing the Restructuring
Transactions, including those inter-company mergers, consolidations,
amalgamations, arrangements, continuances, restructurings, transfers,
conversions, dispositions, liquidations, dissolutions, or other corporate
transactions that the Debtors or the Reorganized Debtors may determine to be
necessary or appropriate to implement the Restructuring Transactions and to
effect a restructuring of a Debtor’s business or a restructuring of the overall
corporate structure of the Reorganized Debtors, which will be included in the
Plan Supplement.
99. “Section 510(b) Claim” means
any Claim against the Debtors arising from rescission of a purchase or sale of a
Security of any of the Debtors or an Affiliate of any of the Debtors, for
damages arising from the purchase or sale of such a security, or for
reimbursement or contribution allowed under section 502 of the Bankruptcy Code
on account of such a Claim.
100. “Secured” means when referring
to a Claim: (a) secured by a Lien on property in which the Estate has an
interest, which Lien is valid, perfected, and enforceable pursuant to applicable
law or by reason of a Bankruptcy Court order, or that is subject to setoff
pursuant to section 553 of the Bankruptcy Code, to the extent of the value of
the creditor’s interest in the Estate’s interest in such property or to the
extent of the amount subject to setoff, as applicable, as determined pursuant to
section 506(a) of the Bankruptcy Code; or (b) Allowed as such pursuant to
the Plan.
101. “Securities Act” means the
Securities Act of 1933, 15 U.S.C. §§ 77a-77aa, together with the rules and
regulations promulgated thereunder.
8
102. “Security” means a security as
defined in section 2(a)(1) of the Securities Act.
103. “Successive Forgiveness
Period” means each 12-month period beginning upon the termination of the
First Forgiveness Period.
104. “Third Party Release” means
the release provision set forth in Article VIII.E hereof.
105. “Third Party Releasees” means
the Debtors, the Reorganized Debtors, the Released Parties, and solely with
respect to the Note Claims, the Non-Filers.
106. “Unexpired Lease” means a
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.
107. “Unimpaired” means, with
respect to a Class of Claims or Interests, a Class of Claims or Interests that
is unimpaired within the meaning of section 1124 of the Bankruptcy
Code.
108. “Unsecured Claim” means any
Claim that is neither Secured nor entitled to priority under the Bankruptcy Code
or any order of the Bankruptcy Court, including any Claim arising from the
rejection of an Executory Contract or Unexpired Lease under section 365 of the
Bankruptcy Code.
B.
|
Rules
of Interpretation.
|
For
purposes of this Plan: (1) in the appropriate context, each
term, whether stated in the singular or the plural, shall include both the
singular and the plural, and pronouns stated in the masculine, feminine, or
neuter gender shall include the masculine, feminine, and the neuter gender;
(2) unless otherwise specified, any reference herein to a contract, lease,
instrument, release, indenture, or other agreement or document being in a
particular form or on particular terms and conditions means that the referenced
document shall be substantially in that form or substantially on those terms and
conditions; (3) unless otherwise specified, any reference herein to an
existing document, schedule, or exhibit, whether or not Filed, having been Filed
or to be Filed shall mean that document, schedule, or exhibit, as it may
thereafter be amended, modified, or supplemented; (4) any reference to an
Entity as a Holder of a Claim or Interest includes that Entity’s successors and
assigns; (5) unless otherwise specified, all references herein to
“Articles” are references to Articles hereof or hereto; (6) unless
otherwise specified, all references herein to exhibits are references to
exhibits in the Plan Supplement; (7) unless otherwise specified, the words
“herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than
to a particular portion of the Plan; (8) subject to the provisions of any
contract, certificate of incorporation, bylaw, instrument, release, or other
agreement or document entered into in connection with the Plan, the rights and
obligations arising pursuant to the Plan shall be governed by, and construed and
enforced in accordance with the applicable federal law, including the Bankruptcy
Code and Bankruptcy Rules; (9) captions and headings to Articles are
inserted for convenience of reference only and are not intended to be a part of
or to affect the interpretation of the Plan; (10) unless otherwise
specified herein, the rules of construction set forth in section 102 of the
Bankruptcy Code shall apply; (11) any term used in capitalized form herein
that is not otherwise defined but that is used in the Bankruptcy Code or the
Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy
Code or the Bankruptcy Rules, as the case may be; (12) all references to
docket numbers of documents Filed in the Chapter 11 Cases are references to the
docket numbers under the Bankruptcy Court’s CM/ECF system; (13) all
references to statutes, regulations, orders, rules of courts, and the like shall
mean as amended from time to time, and as applicable to the Chapter 11
Cases, unless otherwise stated; (14) all references to events occurring on
a specified date shall mean that the event will occur on that date or as soon
thereafter as reasonably practicable; and (15) any immaterial effectuating
provisions may be interpreted by the Reorganized Debtors in such a manner that
is consistent with the overall purpose and intent of the Plan all without
further notice to or action, order, or approval of the Bankruptcy Court or any
other Entity. Except as otherwise specifically provided in the Plan
to the contrary, references in the Plan to the Debtors or to the Reorganized
Debtors shall mean the Debtors and the Reorganized Debtors, as applicable, to
the extent the context requires.
9
C.
|
Computation
of Time.
|
Unless
otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a)
shall apply in computing any period of time prescribed or allowed
herein. If the date on which a transaction may occur pursuant to the
Plan shall occur on a day that is not a Business Day, then such transaction
shall instead occur on the next succeeding Business Day.
D.
|
Governing
Law.
|
Unless a
rule of law or procedure is supplied by federal law (including the Bankruptcy
Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of
the State of Delaware, without giving effect to the principles of conflict of
laws, shall govern the rights, obligations, construction, and implementation of
the Plan, any agreements, documents, instruments, or contracts executed or
entered into in connection with the Plan (except as otherwise set forth in those
agreements, in which case the governing law of such agreement shall control);
provided, however, that corporate
governance matters relating to the Debtors or the Reorganized Debtors, as
applicable, not incorporated in Delaware shall be
governed by the laws of the state of incorporation of the relevant Debtor or the
Reorganized Debtors, as applicable.
E.
|
Reference
to Monetary Figures.
|
All
references in the Plan to monetary figures shall refer to currency of the United
States of America, unless otherwise expressly provided.
ARTICLE
II.
ADMINISTRATIVE
CLAIMS AND PRIORITY TAX CLAIMS
In
accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims have not been classified and,
thus, are excluded from the Classes of Claims and Interests set forth in Article
III hereof.
A.
|
Administrative
Claims.
|
1. General Administrative
Claims.
Except as
specified in this Article II hereof, unless otherwise agreed to by the Holder of
a General Administrative Claim and the Debtors or the Reorganized Debtors, as
applicable, each Holder of an Allowed General Administrative Claim will receive,
in full satisfaction of its General Administrative Claim, Cash equal to the
amount of such Allowed General Administrative Claim in the ordinary course of
the Debtors’ business, pursuant to the terms and conditions of the particular
transaction giving rise to such Allowed General Administrative Claims, without
any further action by the Holders of such Allowed General Administrative
Claims.
2. Professional
Compensation.
|
(a)
|
Final
Fee Applications.
|
All final
requests for payment of Professional Fee Claims, including the Holdback Amount
and Professional Fee Claims incurred during the period from Petition Date
through the Confirmation Date, must be filed with the Bankruptcy Court and
served on the Reorganized Debtors no later than 45 days after the Confirmation
Date, unless the Debtors agree otherwise. After notice and a hearing
in accordance with the procedures established by the Bankruptcy Code and prior
orders of the Bankruptcy Court in the Chapter 11 Cases, the allowed amounts
of such Professional Fee Claims shall be determined by the Bankruptcy
Court.
10
|
(b)
|
Post-Confirmation
Date Fees and Expenses.
|
Except as
otherwise specifically provided in the Plan, from and after the Confirmation
Date, the Reorganized Debtors shall, in the ordinary course of business and
without any further notice to or action, order, or approval of the Bankruptcy
Court, pay in Cash the reasonable legal, professional, or other fees and
expenses related to implementation of the Plan and Consummation incurred by the
Reorganized Debtors. Upon the Confirmation Date, any requirement that
Professionals comply with sections 327 through 331 and 1103 of the
Bankruptcy Code in seeking retention or compensation for services rendered after
such date shall terminate, and the Reorganized Debtors may employ and pay any
Professional in the ordinary course of business without any further notice to or
action, order, or approval of the Bankruptcy Court.
B.
|
DIP
Facility Claims.
|
Notwithstanding
anything to the contrary herein, and subject to the terms of the DIP Facility,
in full and final satisfaction, settlement, release, and discharge of and in
exchange for release of all DIP Facility Claims, on the Effective Date, the DIP
Facility Claims shall be paid in full and in Cash.
C.
|
Priority
Tax Claims.
|
Except to
the extent that a Holder of an Allowed Priority Tax Claim agrees to a less
favorable treatment, in full and final satisfaction, settlement, release, and
discharge of and in exchange for each Allowed Priority Tax Claim, each Holder of
such Allowed Priority Tax Claim shall be treated in accordance with the terms
set forth in section 1129(a)(9)(C) of the Bankruptcy Code.
ARTICLE
III.
CLASSIFICATION
AND TREATMENT OF CLAIMS AND INTERESTS
A.
|
Classification
of Claims and Interests.
|
Claims
and Interests, except for Administrative Claims, DIP Facility Claims, and
Priority Tax Claims, are classified in the Classes set forth in this Article
III. 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 portion of the
Claim or Interest qualifies within the description of such other
Classes. A Claim or Interest also is classified in a particular Class
for the purpose of receiving distributions pursuant to the Plan only to the
extent that such Claim is an Allowed Claim in that Class and has not been paid,
released, or otherwise satisfied prior to the Effective Date.
1. Class
Identification.
The
classification of Claims and Interests against the Debtors pursuant to the Plan
is as follows:
Class
|
Claims
and Interests
|
Status
|
Voting
Rights
|
|||
Class
1
|
Other
Priority Claims
|
Unimpaired
|
Not
Entitled to Vote (Deemed to Accept)
|
|||
Class
2
|
Other
Secured Claims
|
Unimpaired
|
Not
Entitled to Vote (Deemed to Accept)
|
|||
Class
3
|
General
Unsecured Claims
|
Unimpaired
|
Not
Entitled to Vote (Deemed to Accept)
|
|||
Class
4
|
Note
Claims
|
Impaired
|
Entitled
to Vote
|
|||
Class
5
|
Intercompany
Claims
|
Unimpaired
|
Not
Entitled to Vote (Deemed to Accept)
|
|||
Class
6
|
Intercompany
Interests
|
Unimpaired
|
Not
Entitled to Vote (Deemed to Accept)
|
|||
Class
7
|
Interests
in U.S. Concrete, Inc.
|
Impaired
|
Entitled
to Vote
|
|||
Class
8
|
Section
510(b) Claims
|
Impaired
|
Not
Entitled to Vote (Deemed to
Reject)
|
11
B.
|
Treatment
of Claims and Interests.
|
1. Class 1 - Other Priority
Claims.
|
(a)
|
Classification: Class
1 consists of all Other Priority Claims against the
Debtors.
|
|
(b)
|
Treatment: Except
to the extent that a Holder of an Allowed Claim in Class 1 agrees to a
less favorable treatment, in full and final satisfaction, settlement,
release, and discharge of and in exchange for each Allowed Claim in Class
1, each such Holder shall be paid in full in Cash by the Debtors or the
Reorganized Debtors, as applicable, in the ordinary course of
business.
|
|
(c)
|
Voting: Class
1 is Unimpaired under the Plan. Holders of Claims in Class 1
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
2. Class 2 - Other Secured
Claims.
|
(a)
|
Classification: Class
2 consists of all Other Secured Claims against the
Debtors.
|
|
(b)
|
Treatment: Except
to the extent that a Holder of an Allowed Claim in Class 2 agrees to a
less favorable treatment, in full and final satisfaction, settlement,
release, and discharge of and in exchange for each Allowed Claim in Class
2, each such Claim shall be Reinstated or otherwise rendered Unimpaired
for the benefit of the Holders
thereof.
|
|
(c)
|
Voting: Class
2 is Unimpaired under the Plan. Holders of Claims in Class 2
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
3. Class 3 – General Unsecured
Claims.
|
(a)
|
Classification: Class
3 consists of all General Unsecured Claims against the
Debtors.
|
|
(b)
|
Treatment: On
the Effective Date, except to the extent that a Holder of a General
Unsecured Claim agrees to less favorable treatment of its Allowed General
Unsecured Claim or has been paid prior to the Effective Date, each Allowed
General Unsecured Claim shall be paid in full, in Cash, in the ordinary
course of business or otherwise rendered Unimpaired. An Allowed
General Unsecured Claim that is not due and payable on or before the
Effective Date shall be paid thereafter (i) in the ordinary course of
business in accordance with the terms of any agreement that governs such
General Unsecured Claim or (ii) in accordance with the course of practice
between the Debtors and such Holder with respect to such General Unsecured
Claim. Holders of General Unsecured Claims who received
payment(s) from the Debtors during the Chapter 11 Cases pursuant to
any Bankruptcy Court Final Order shall not be excluded from receiving
distributions under the Plan of Reorganization on account of such Claims
unless such Claims were fully satisfied by any prior payments from the
Debtors. The Debtors reserve the right to challenge the legal
basis and amount of any General Unsecured
Claim.
|
|
(c)
|
Voting: Class
3 is Unimpaired under the Plan. Holders of Claims in Class 3
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
12
4. Class 4 - Note
Claims.
|
(a)
|
Classification: Class
4 consists of all Note Claims against the
Debtors.
|
|
(b)
|
Treatment: On
the Effective Date, except to the extent that a Holder of a Note Claim
agrees to less favorable treatment of its Allowed Note Claim, each Holder
of an Allowed Note Claim against the Debtors shall receive its Pro Rata
share of 100% of the New Equity issued on the Effective Date (subject to
dilution by amounts reserved pursuant to the Management Equity Incentive
Plan and the New Warrants).
|
|
(c)
|
Voting: Class
4 is Impaired under the Plan. Each Holder of a Note Claim is
entitled to vote to accept or reject the
Plan.
|
5. Class 5 - Intercompany
Claims.
|
(a)
|
Classification: Class
5 consists of all Intercompany
Claims.
|
|
(b)
|
Treatment: Intercompany
Claims may be Reinstated as of the Effective Date or, at the Debtors’ or
the Reorganized Debtors’ option, be cancelled, and no distribution shall
be made on account of such Claims.
|
|
(c)
|
Voting: Class
5 is Unimpaired under the Plan. Holders of Claims in Class 5
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
6. Class 6 - Intercompany
Interests.
|
(a)
|
Classification: Class
6 consists of all Intercompany
Interests.
|
|
(b)
|
Treatment: Intercompany
Interests may be Reinstated as of the Effective Date or, at the Debtors’
or the Reorganized Debtors’ option, be cancelled, and no distribution
shall be made on account of such
Interests.
|
|
(c)
|
Voting: Class
6 is Unimpaired under the Plan. Holders of Interests in Class 6
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
|
7.
|
Class 7 - Interests in
U.S. Concrete, Inc.
|
|
(a)
|
Classification: Class
7 consists of all Interests in U.S. Concrete,
Inc.
|
|
(b)
|
Treatment: On
the Effective Date, except to the extent that a Holder of an Interest in
U.S. Concrete, Inc. agrees to less favorable treatment of its Allowed
Interest, each Holder of an Interest in U.S. Concrete, Inc. shall receive
its Pro Rata share of the New
Warrants.
|
|
(c)
|
Voting: Class
7 is Impaired under the Plan. Each Holder of an Interest in
U.S. Concrete, Inc. is entitled to vote to accept or reject the
Plan.
|
8. Class 8 - Section 510(b)
Claims.
|
(a)
|
Classification: Class
8 consists of all Section 510(b)
Claims.
|
13
|
(b)
|
Treatment: On
the Effective Date, all Claims in Class 8 shall be cancelled without any
distribution.
|
|
(c)
|
Voting: Class
8 is Impaired under the Plan. Holders of Claims in Class 8 are
conclusively presumed to have rejected the Plan pursuant to section
1126(g) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the
Plan.
|
C.
|
Special
Provision Governing Unimpaired
Claims.
|
Except as
otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’
rights in respect of any Unimpaired Claims, including, all rights in respect of
legal and equitable defenses to or setoffs or recoupment against any such
Unimpaired Claims.
D.
|
Acceptance
or Rejection of the Plan.
|
1. Voting
Classes.
Classes 4
and 7 are Impaired under the Plan. Each Holder of a Claim or Interest
in such Classes is entitled to vote to accept or reject the Plan.
2. Presumed Acceptance of the
Plan.
Classes
1, 2, 3, 5, and 6 are Unimpaired under the Plan. Each Holder of a
Claim or Interest in such Classes is deemed to have accepted the Plan pursuant
to section 1126(f) of the Bankruptcy Code and is not entitled to vote to accept
or reject the Plan.
3. Presumed Rejection of
Plan.
Class 8
is Impaired and shall receive no distribution under the Plan. Each
Holder of a Class 8 Claim is deemed to have rejected the Plan pursuant to
section 1126(g) of the Bankruptcy Code and is not entitled to vote to accept or
reject the Plan.
E.
|
Confirmation
Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code.
|
Section
1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of
Confirmation by acceptance of the Plan by Class 4. The Debtors shall
seek Confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy
Code with respect to any rejecting Class of Claims.
F.
|
Controversy
Concerning Impairment.
|
If a
controversy arises as to whether any Claims or Interests, or any Class of Claims
or Interests, are Impaired, the Bankruptcy Court shall, after notice and a
hearing, determine such controversy on or before the Confirmation
Date.
G.
|
Subordinated
Claims
|
The
allowance, classification, and treatment of all Allowed Claims and Allowed
Interests and the respective distributions and treatments under the Plan take
into account and conform to the relative priority and rights of the Claims and
Interests in each Class in connection with any contractual, legal, and equitable
subordination rights relating thereto, whether arising under general principles
of equitable subordination, section 510(b) of the Bankruptcy Code, or
otherwise. Pursuant to section 510 of the Bankruptcy Code, the
Reorganized Debtors reserve the right to re-classify any Allowed Claim or
Interest in accordance with any contractual, legal, or equitable subordination
relating thereto.
14
ARTICLE
IV.
MEANS
FOR IMPLEMENTATION OF THE PLAN
A.
|
General
Settlement of Claims and Interests.
|
As
discussed in detail in the Disclosure Statement and as otherwise provided
herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule
9019, and in consideration for the classification, distributions, releases, and
other benefits provided under the Plan, upon the Effective Date, the provisions
of the Plan shall constitute a good faith compromise and settlement of all
Claims and Interests and controversies resolved pursuant to the
Plan. Subject to Article VI hereof, all distributions made to Holders
of Allowed Claims and Holders of Allowed Interests in any Class are intended to
be and shall be final.
B.
|
Restructuring
Transactions.
|
On or
after the Effective Date, the Debtors or Reorganized Debtors, as applicable,
shall enter into the Restructuring Transactions, including those described in
the Restructuring Transactions Memorandum, and shall take any actions as may be
necessary or appropriate to effect a restructuring of the overall corporate
structure of the Reorganized Debtors, as and to the extent provided
therein. The Restructuring Transactions may include one or more
inter-company mergers, consolidations, amalgamations, arrangements,
continuances, restructurings, conversions, dissolutions, transfers,
liquidations, or other corporate transactions as may be determined by the
Debtors or the Reorganized Debtors, as applicable, to be necessary or
appropriate. The actions to effect the Restructuring Transactions may
include: (1) the execution and delivery of appropriate
agreements or other documents of merger, amalgamation, consolidation,
restructuring, conversion, disposition, transfer, arrangement, continuance,
dissolution, sale, purchase, or liquidation containing terms that are consistent
with the terms of the Plan and that satisfy the applicable requirements of
applicable law and any other terms to which the applicable Entities may agree;
(2) the execution and delivery of appropriate instruments of transfer,
assignment, assumption, or delegation of any asset, property, right, liability,
debt, or obligation on terms consistent with the terms of the Plan and having
other terms for which the applicable parties agree; (3) the filing of
appropriate certificates or articles of incorporation, reincorporation, merger,
consolidation, conversion, amalgamation, arrangement, continuance, or
dissolution pursuant to applicable state or provincial law; and (4) all
other actions that the applicable Entities determine to be necessary or
appropriate, including making filings or recordings that may be required by
applicable law in connection with the Restructuring Transactions.
C.
|
Reorganized
U.S. Concrete, Inc.
|
On the
Effective Date, the New Board of Reorganized U.S. Concrete, Inc. shall be
established, and Reorganized U.S. Concrete, Inc. shall adopt its New
Organizational Documents, shall adopt and implement the Management Equity
Incentive Plan on terms set forth in the Plan Supplement, and shall assume
existing executive employment severance agreements with the Debtors’
management. The employment severance agreements to be assumed shall
be on terms acceptable to the Debtors, counsel to the Informal Noteholders
Committee, and to the executives, provided that, for the Debtors’ Chief
Executive Officer, Chief Financial Officer, General Counsel, and Vice President
of Human Resources, the cash severance benefit payable in the event such
executive is terminated without cause or if such executive terminates his
employment for good cause, shall be not less than twice the amount of
such executive’s base salary. The Reorganized Debtors
shall be authorized to implement the Restructuring Transactions and adopt any
other agreements, documents, and instruments and to take any other actions
contemplated under the Plan as necessary or desirable to consummate the
Plan.
D.
|
Existing
Letters of Credit.
|
On the
Effective Date, all letters of credit outstanding under the DIP Facility shall
be deemed letters of credit outstanding under the Exit
Facility.
15
E.
|
Sources
of Consideration for Plan
Distributions.
|
The
Reorganized Debtors shall fund distributions under the Plan with Cash on hand,
including Cash from operations.
1. Exit
Facility.
On the
Effective Date, the Reorganized Debtors will consummate the Exit
Facility. In accordance with the Exit Financing Agreement, the
Reorganized Debtors will use proceeds of the Exit Facility to fund ongoing
operations and obligations under the Plan, including to pay or refinance the DIP
Facility Claims.
2. Intercompany Account
Settlement.
The
Debtors and the Reorganized Debtors, as applicable, shall be entitled to
transfer funds between and among themselves as they determine to be necessary or
appropriate to enable the Reorganized Debtors to satisfy their obligations under
the Plan. Except as set forth herein, any changes in intercompany
account balances resulting from such transfers will be accounted for and settled
in accordance with the Debtors’ historical intercompany account settlement
practices and will not violate the terms of the Plan.
3. Issuance of New Warrants and
New Equity.
The
issuance of the New Warrants and New Equity, including options, or other equity
awards, if any, reserved for the Management Equity Incentive Plan, by
Reorganized U.S. Concrete, Inc. is authorized without the need for any further
corporate action or without any further action by the Holders of Claims or
Interests.
All of
the shares of New Equity issued pursuant to the Plan shall be duly authorized,
validly issued, fully paid, and non-assessable. Each distribution and
issuance referred to in Article VI hereof shall be governed by the terms and
conditions set forth in the Plan applicable to such distribution or issuance and
by the terms and conditions of the instruments evidencing or relating to such
distribution or issuance, which terms and conditions shall bind each Entity
receiving such distribution or issuance.
F.
|
Corporate
Existence.
|
Except as
otherwise provided in the Plan, each Debtor shall continue to exist after the
Effective Date as a separate corporate entity, limited liability company,
partnership, or other form, as the case may be, with all the powers of a
corporation, limited liability company, partnership, or other form, as the case
may be, pursuant to the applicable law in the jurisdiction in which each
applicable Debtor is incorporated or formed and pursuant to the respective
certificate of incorporation and bylaws (or other formation documents) in effect
prior to the Effective Date, except to the extent such certificate of
incorporation and bylaws (or other formation documents) are amended under the
Plan or otherwise, and to the extent such documents are amended, such documents
are deemed to be amended pursuant to the Plan and require no further action or
approval (other than any requisite filings required under applicable state,
provincial, or federal law).
G.
|
Vesting
of Assets in the Reorganized
Debtors.
|
Except as
otherwise provided in the Plan or any agreement, instrument, or other document
incorporated in the Plan, on the Effective Date, all property in each Estate,
all Causes of Action, and any property acquired by any of the Debtors pursuant
to the Plan shall vest in each respective Reorganized Debtor, free and clear of
all Liens, Claims, charges, or other encumbrances. On and after the
Effective Date, except as otherwise provided in the Plan, each Reorganized
Debtor may operate its business and may use, acquire, or dispose of property and
compromise or settle any Claims, Interests, or Causes of Action without
supervision or approval by the Bankruptcy Court and free of any restrictions of
the Bankruptcy Code or Bankruptcy Rules.
16
H.
|
Cancellation
of Securities and Agreements.
|
On the
Effective Date, except as otherwise specifically provided for in the
Plan: (1) the obligations of the Debtors under the Prepetition
Secured Credit Agreement, the Note Indenture, and any other Certificate, Equity
Security, share, note, bond, indenture, purchase right, option, warrant, or
other instrument or document directly or indirectly evidencing or creating any
indebtedness or obligation of or ownership interest in the Debtors giving rise
to any Claim or Interest (except such Certificates, notes, or other instruments
or documents evidencing indebtedness or obligation of or ownership interest in
the Debtors that are Reinstated pursuant to the Plan), shall be cancelled solely
as to the Debtors and their Affiliates, including the Non-Filers, and the
Reorganized Debtors shall not have any continuing obligations thereunder; and
(2) the obligations of the Debtors and their Affiliates pursuant, relating,
or pertaining to any agreements, indentures, certificates of designation,
bylaws, or certificate or articles of incorporation or similar documents
governing the shares, Certificates, notes, bonds, indentures, purchase rights,
options, warrants, or other instruments or documents evidencing or creating any
indebtedness or obligation of or ownership interest in the Debtors (except such
agreements, Certificates, notes, or other instruments evidencing indebtedness or
obligation of or ownership interest in the Debtors that are specifically
Reinstated pursuant to the Plan) shall be released and discharged; provided, however, that notwithstanding
Confirmation or Consummation, any such indenture or agreement that governs the
rights of the Holder of a Claim shall continue in effect solely for purposes of
allowing Holders to receive distributions under the Plan; provided further, however, that the preceding
proviso shall not affect the discharge of Claims or Interests pursuant to the
Bankruptcy Code, the Confirmation Order, or the Plan, or result in any
expense or liability to the Reorganized Debtors; provided further, however, that the foregoing
shall not effect the cancellation of shares issued pursuant to the Restructuring
Transactions nor any other shares held by one Debtor in the capital of another
Debtor; provided further, however, that the following
provisions of the Note Indenture shall continue in effect: (i) the Note
Indenture Trustee’s rights and remaining obligations relating to the Notes and
Note Claims and to perform such other necessary functions with respect thereto
including as set forth below with respect to the surrender of Notes as provided
for in the Plan including Article IV.I hereof, and (ii) any right to
indemnification, contribution, fees, expenses or other claim that the Note
Indenture Trustee may have under the Note Indenture.
I.
|
Surrender
of Existing Securities.
|
On the
Effective Date, each Holder of Note Claims shall surrender its note(s) to the
Note Indenture Trustee, or in the event such note(s) are held in the name of, or
by a nominee of, The Depository Trust Company, the Reorganized Debtors shall
seek the cooperation of The Depository Trust Company to provide appropriate
instructions to the Note Indenture Trustee. No distributions under
the Plan shall be made for or on behalf of such Holder unless and until such
note is received by the Note Indenture Trustee or appropriate instructions from
The Depository Trust Company shall be received by the Note Indenture Trustee or
the loss, theft, or destruction of such Notes is established to the reasonable
satisfaction of the Note Indenture Trustee, which satisfaction may require such
Holder to submit: (1) a lost instrument affidavit; and
(2) an indemnity bond holding the Debtors, the Reorganized Debtors, and the
Note Indenture Trustee harmless in respect of such Notes and distributions made
thereof. Upon compliance with this Section by a Holder of any Notes,
such Holder shall, for all purposes under the Plan, be deemed to have
surrendered such Notes. Any Holder that fails to surrender such Notes
or satisfactorily explain its non-availability to the Note Indenture Trustee
within one year of the Effective Date shall be deemed to have no further Claim
against the Debtors, the Reorganized Debtors (or their property), or the Note
Indenture Trustee in respect of such Claim and shall not participate in any
distribution under the Plan. All property in respect of such
forfeited distributions, including interest thereon, shall be promptly returned
to the Reorganized Debtors by the Note Indenture Trustee, and any such security
shall be cancelled.
17
J.
|
Corporate
Action.
|
Upon the
Effective Date, all actions contemplated under the Plan shall be deemed
authorized and approved in all respects, including: (1) adoption
or assumption, as applicable, of the agreements with existing management;
(2) selection of the directors and officers for the Reorganized Debtors;
(3) the distribution of the New Equity and the New Warrants;
(4) implementation of the Restructuring Transactions as set forth in the
Restructuring Transactions Memorandum; (5) adoption and implementation of
the Management Equity Incentive Plan, as will be set forth in the Plan
Supplement; (6) execution of the Exit Facility; and (7) all other
actions contemplated under the Plan (whether to occur before, on, or after the
Effective Date). All matters provided for in the Plan involving the
corporate structure of the Debtors or the Reorganized Debtors, and any corporate
action required by the Debtors or the Reorganized Debtors in connection with the
Plan shall be deemed to have occurred and shall be in effect, without any
requirement of further action by the security holders, directors or officers of
the Debtors or the Reorganized Debtors. On or (as applicable) prior
to the Effective Date, the appropriate officers of the Debtors or the
Reorganized Debtors, as applicable, shall be authorized and (as applicable)
directed to issue, execute, and deliver the agreements, documents, securities,
and instruments contemplated under the Plan (or necessary or desirable to effect
the transactions contemplated under the Plan) in the name of and on behalf of
the Reorganized Debtors, including the Exit Facility and any and all other
agreements, documents, securities, and instruments relating to the
foregoing. The authorizations and approvals contemplated by this
Article IV.J shall be effective notwithstanding any requirements under
non-bankruptcy law. The issuance of the New Equity shall be exempt
from the requirements of section 16(b) of the Securities Exchange Act of 1934
(pursuant to Rule 16b-3 promulgated thereunder) with respect to any acquisition
of such securities by an officer or director (or a director deputized for
purposes thereof) as of the Effective Date.
K.
|
New
Organizational Documents.
|
On or
immediately prior to the Effective Date, each of the Reorganized Debtors will
file its New Organizational Documents with the applicable Secretaries of State
and/or other applicable authorities in its respective state, province, or
country of incorporation in accordance with the corporate laws of the respective
state, province, or country of incorporation. Pursuant to section
1123(a)(6) of the Bankruptcy Code, the New Organizational Documents will
prohibit the issuance of non-voting equity securities. After the
Effective Date, the Reorganized Debtors may amend and restate their respective
New Organizational Documents and other constituent documents as permitted by the
laws of their respective state, province, or country of incorporation and its
respective New Organizational Documents.
L.
|
Directors
and Officers of the Reorganized
Debtors.
|
As of the
Effective Date, the term of the current members of the board of directors of the
Debtors shall expire, and the initial boards of directors, including the New
Boards, and the officers of each of the Reorganized Debtors shall be appointed
in accordance with the respective New Organizational Documents. The
New Board of Reorganized U.S. Concrete, Inc. shall be composed of 6 members,
which shall consist of the Chief Executive Officer of Reorganized U.S. Concrete,
Inc. and 5 directors to be selected by the Informal Noteholders
Committee. Pursuant to section 1129(a)(5) of the Bankruptcy
Code, the Debtors will disclose in advance of the Confirmation Hearing the
identity and affiliations of any Person proposed to serve on the initial board
of directors or be an officer of each of the Reorganized Debtors. To
the extent any such director or officer of the Reorganized Debtors is an
“insider” under the Bankruptcy Code, the Debtors also will disclose the nature
of any compensation to be paid to such director or officer. Each such
director and officer shall serve from and after the Effective Date pursuant to
the terms of the New Organizational Documents and other constituent documents of
the Reorganized Debtors.
M.
|
Effectuating
Documents; Further Transactions.
|
On and
after the Effective Date, the Reorganized Debtors, and the officers and members
of the boards of directors thereof, are authorized to and may issue, execute,
deliver, file, or record such contracts, Securities, instruments, releases, and
other agreements or documents and take such actions as may be necessary or
appropriate to effectuate, implement, and further evidence the terms and
conditions of the Plan, the Restructuring Transactions, and the Securities
issued pursuant to the Plan in the name of and on behalf of the Reorganized
Debtors, without the need for any approvals, authorization, or consents except
for those expressly required pursuant to the Plan.
N.
|
Section
1146 Exemption.
|
Pursuant
to section 1146 of the Bankruptcy Code, any transfers of property pursuant
hereto shall not be subject to any document recording tax, stamp tax, conveyance
fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer
tax, mortgage recording tax, or other similar tax or governmental assessment,
and upon entry of the Confirmation Order, the appropriate state or local
governmental officials or agents shall forgo the collection of any such tax or
governmental assessment and accept for filing and recordation any of the
foregoing instruments or other documents without the payment of any such tax,
recordation fee, or governmental assessment.
18
O.
|
Director
and Officer Liability Insurance.
|
On or
before the Effective Date, the Reorganized Debtors will obtain sufficient
liability insurance policy coverage for a period of six years after the
Effective Date for the Debtors’ and the Non-Filers’ current and former directors
and officers serving from and after the Petition Date.
P.
|
Management
Equity Incentive Plan.
|
On the
Effective Date, 9.5% of the New Equity, on a fully-diluted basis, shall be
reserved for issuance as grants of stock, restricted stock, options, or stock
appreciation rights or similar equity awards to management and employees in
connection with the Management Equity Incentive Plan, and 0.5% of the New
Equity, on a fully-diluted basis shall be reserved for Director
Equity. The terms and conditions of the grant of the Director Equity
shall be set forth in the Management Equity Incentive Plan.
A minimum
of 3.5% of the fully-diluted New Equity shall be issued to management and
employees within 30 days of the Effective Date pursuant to the terms of the
Management Equity Incentive Plan. The initial allocation of New
Equity to the Debtors’ Chief Executive Officer, Chief Financial Officer, General
Counsel, and Vice President of Human Resources shall be determined prior to
Confirmation. Such initial awards of New Equity shall vest quarterly
33% in the first year after the Effective Date, 33% in the second year after the
Effective Date, and 33% in the third year after the Effective Date, provided
that in the event an employee is terminated without cause, any New Equity
previously awarded and any New Equity awards that would have vested in the six
month period following such employee’s termination shall vest immediately and
shall be exercisable by such employee within the twelve month period following
termination. A material portion of such New Equity shall be comprised
of restricted stock units.
All New
Equity reserved pursuant to the Management Equity Incentive Plan and not issued
shall be granted to managers of the Reorganized Debtor within 5 years of the
Effective Date.
Q.
|
Employee
and Retiree Benefits.
|
All
employment, retirement, indemnification, and other agreements or arrangements in
place as of the Effective Date with the Debtors’ and the Non-Filers’ officers or
employees, or retirement income plans and welfare benefit plans for such
persons, or discretionary bonus plans or variable incentive plans regarding
payment of a percentage of annual salary based on performance goals and
financial targets for certain employees identified as key leaders, top level
managers, or sales leaders, including, but not limited to, the Debtors’ 2010
Incentive Plan, the Non-Executive Bonus Plan, or indemnification arrangements
with directors of the Debtors and non-Debtor subsidiaries, shall be assumed by
the Reorganized Debtors and shall remain in place after the Effective Date, as
may be amended by agreement between the beneficiaries of such agreements, plans,
or arrangements, on the one hand, and the Debtors and counsel to the Informal
Noteholders Committee, on the other hand, or, after the Effective Date, by
agreement with the Reorganized Debtors, and the Reorganized Debtors will
continue to honor such agreements, arrangements, programs, and plans; provided, however, that the foregoing
shall not apply to any equity-based compensation or incentive-based plan,
agreement, or arrangement existing as of the Petition Date. Nothing
in the Plan shall limit, diminish, or otherwise alter the Reorganized Debtors’
defenses, claims, Causes of Action, or other rights with respect to any such
contracts, agreements, policies, programs, and plans. Notwithstanding
the foregoing, pursuant to section 1129(a)(13) of the Bankruptcy Code, on and
after the Effective Date, all retiree benefits (as that term is defined in
section 1114 of the Bankruptcy Code), if any, shall continue to be paid in
accordance with applicable law.
19
R.
|
Preservation
of Causes of Action.
|
In
accordance with section 1123(b) of the Bankruptcy Code, but subject to Article
VIII and Article IV.S hereof, the Reorganized Debtors shall retain and may
enforce all rights to commence and pursue, as appropriate, any and all Causes of
Action, whether arising before or after the Petition Date, including any actions
specifically enumerated in the Plan Supplement, and the Reorganized Debtors’
rights to commence, prosecute, or settle such Causes of Action shall be
preserved notwithstanding the occurrence of the Effective Date. The
Reorganized Debtors may pursue such Causes of Action, as appropriate, in
accordance with the best interests of the Reorganized Debtors. No Entity may rely on the absence of
a specific reference in the Plan, the Plan Supplement, or the Disclosure
Statement to any Cause of Action against it as any indication that the Debtors
or Reorganized Debtors, as applicable, will not pursue any and all available
Causes of Action against it. The Debtors or Reorganized Debtors, as
applicable, expressly reserve all rights to prosecute any and all Causes of
Action against any Entity, except as otherwise expressly provided in the
Plan. Unless any Causes of Action against an Entity are
expressly waived, relinquished, exculpated, released, compromised, or settled in
the Plan or a Bankruptcy Court order, the Reorganized Debtors expressly reserve
all Causes of Action, for later adjudication, and, therefore, no preclusion
doctrine, including the doctrines of res judicata, collateral estoppel, issue
preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or
laches, shall apply to such Causes of Action upon, after, or as a consequence of
the Confirmation or Consummation.
In
accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action
that a Debtor may hold against any Entity shall vest in the Reorganized
Debtors. The applicable Reorganized Debtors, through their authorized
agents or representatives, shall retain and may exclusively enforce any and all
such Causes of Action. The Reorganized Debtors shall have the
exclusive right, authority, and discretion to determine and to initiate, file,
prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate
to judgment any such Causes of Action and to decline to do any of the foregoing
without the consent or approval of any third party or further notice to or
action, order, or approval of the Bankruptcy Court.
S.
|
Release
of Avoidance Actions.
|
On
Effective Date, the Debtors shall release any and all Avoidance Actions and the
Debtors and the Reorganized Debtors and any of their successors or assigns and
any Entity acting on behalf of the Debtors or the Reorganized Debtors shall be
deemed to have waived the right to pursue any and all Avoidance
Actions.
ARTICLE
V.
TREATMENT
OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A.
|
Assumption
of Executory Contracts and Unexpired
Leases.
|
On the
Effective Date, except as otherwise provided herein, all Executory Contracts or
Unexpired Leases will be deemed assumed in accordance with the provisions and
requirements of sections 365 and 1123 of the Bankruptcy
Code. Entry of the Confirmation Order by the Bankruptcy Court shall
constitute approval of such assumptions pursuant to sections 365(a) and
1123 of the Bankruptcy Code. Any motions to assume Executory
Contracts or Unexpired Leases pending on the Effective Date shall be subject to
approval by the Bankruptcy Court on or after the Effective Date by a Final
Order. Each Executory Contract and Unexpired Lease assumed pursuant
to this Article V.A or by any order of the Bankruptcy Court, which has not been
assigned to a third party prior to the Confirmation Date, shall revest in and be
fully enforceable by the Reorganized Debtors in accordance with its terms,
except as such terms are modified by the provisions of the Plan or any order of
the Bankruptcy Court authorizing and providing for its assumption under
applicable federal law.
B.
|
Indemnification
Obligations.
|
Each
Indemnification Obligation of directors, officers, and employees of the Debtors
who served in such capacity prior to, on, or after the Petition Date shall be
assumed by the applicable Debtor, effective as of the Effective Date, pursuant
to sections 365 and 1123 of the Bankruptcy Code, to the extent such
Indemnification Obligation is executory. Each Indemnification
Obligation that is assumed, deemed assumed, honored, or reaffirmed shall remain
in full force and effect, shall not be modified, reduced, discharged, impaired,
or otherwise affected in any way, and shall survive Unimpaired and unaffected,
irrespective of when such obligation arose.
20
C.
|
Cure
of Defaults for Executory Contracts and Unexpired Leases
Assumed.
|
Any
monetary defaults under 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, by payment of the default amount
in Cash on the Effective Date or in the ordinary course of business, subject to
the limitation described below, or on such other terms as the parties to such
Executory Contracts or Unexpired Leases may otherwise agree. In the
event of a dispute regarding: (1) the amount of any payments to cure such a
default; (2) the ability of the Reorganized Debtors or any assignee to
provide “adequate assurance of future performance” (within the meaning of
section 365 of the Bankruptcy Code) under the Executory Contract or
Unexpired Lease to be assumed; or (3) any other matter pertaining to
assumption, the cure payments required by section 365(b)(1) of the
Bankruptcy Code shall be made following the entry of a Final Order or orders
resolving the dispute and approving the assumption.
Assumption
of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise
shall result in the full release and satisfaction of any Claims or defaults,
whether monetary or nonmonetary, including defaults of provisions restricting
the change in control or ownership interest composition or other
bankruptcy-related defaults, arising under any assumed Executory Contract or
Unexpired Lease at any time prior to the effective date of
assumption. Any Proofs of Claim filed with respect to an Executory
Contract or Unexpired Lease that has been assumed shall be deemed disallowed and
expunged, without further notice to or action, order, or approval of the
Bankruptcy Court.
D.
|
Insurance
Policies.
|
Each of
the Debtors’ insurance policies and any agreements, documents, or instruments
relating thereto, are treated as Executory Contracts under the
Plan. On the Effective Date, the Debtors shall be deemed to have
assumed all insurance policies and any agreements, documents, and instruments
relating to coverage of all insured Claims.
E.
|
Modifications,
Amendments, Supplements, Restatements, or Other
Agreements.
|
Unless
otherwise provided in the Plan, each Executory Contract or Unexpired Lease that
is assumed shall include all modifications, amendments, supplements,
restatements, or other agreements that in any manner affect such Executory
Contract or Unexpired Lease, and all Executory Contracts and Unexpired Leases
related thereto, if any, including all easements, licenses, permits, rights,
privileges, immunities, options, rights of first refusal, and any other
interests, unless any of the foregoing agreements has been previously rejected
or repudiated or is rejected or repudiated under the Plan.
Modifications,
amendments, supplements, and restatements to prepetition Executory Contracts and
Unexpired Leases that have been executed by the Debtors during the Chapter 11
Cases shall not be deemed to alter the prepetition nature of the Executory
Contract or Unexpired Lease, or the validity, priority, or amount of any Claims
that may arise in connection therewith.
F.
|
Reservation
of Rights.
|
Nothing
contained in the Plan, shall constitute an admission by the Debtors that any
Executory Contract or Unexpired Lease is in fact an Executory Contract or
Unexpired Lease or that any of the Reorganized Debtors has any liability
thereunder. If there is a dispute regarding whether a contract or
lease is or was executory or unexpired at the time of assumption or rejection,
the Debtors or the Reorganized Debtors, as applicable, shall have 30 days
following entry of a Final Order resolving such dispute to alter their treatment
of such contract or lease.
G.
|
Nonoccurrence
of Effective Date.
|
In the
event that the Effective Date does not occur, the Bankruptcy Court shall retain
jurisdiction with respect to any request to extend the deadline for assuming or
rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy
Code.
H.
|
Contracts
and Leases Entered Into After the Petition
Date.
|
Contracts
and leases entered into after the Petition Date by any Debtor, including any
Executory Contracts and Unexpired Leases assumed by such Debtor, will be
performed by the applicable Debtor or Reorganized Debtor liable thereunder in
the ordinary course of its business. Accordingly, such contracts and
leases (including any assumed Executory Contracts and Unexpired Leases) will
survive and remain unaffected by entry of the Confirmation
Order.
21
ARTICLE
VI.
PROVISIONS
GOVERNING DISTRIBUTIONS
A.
|
Timing
and Calculation of Amounts to Be
Distributed.
|
Unless
otherwise provided in the Plan, on the Effective Date (or if a Claim is not an
Allowed Claim or Allowed Interest) on the Effective Date, on the date that such
Claim or Interest becomes an Allowed Claim or Allowed Interest, each Holder of
an Allowed Claim or Allowed Interest shall receive the full amount of the
distributions that the Plan provides for Allowed Claims or Allowed Interests in
the applicable Class. In the event that any payment or act under the
Plan is required to be made or performed on a date that is not a
Business Day, then the making of such payment or the performance of such
act may be completed on the next succeeding Business Day, but shall be deemed to
have been completed as of the required date. If and to the extent
that there are Disputed Claims or Disputed Interests, distributions on account
of any such Disputed Claims or Disputed Interests shall be made pursuant to the
provisions set forth in Article VII hereof. Except as otherwise
provided in the Plan, Holders of Claims or Interests shall not be entitled to
interest, dividends, or accruals on the distributions provided for in the Plan,
regardless of whether such distributions are delivered on or at any time after
the Effective Date.
B.
|
Disbursing
Agent.
|
All
distributions under the Plan shall be made by the Disbursing Agent on the
Effective Date. The Disbursing Agent shall not be required to
give any bond or surety or other security for the performance of its duties
unless otherwise ordered by the Bankruptcy Court. Additionally, in
the event that the Disbursing Agent is so otherwise ordered, all costs and
expenses of procuring any such bond or surety shall be borne by the Reorganized
Debtors.
C.
|
Rights
and Powers of Disbursing Agent.
|
1. Powers of the Disbursing
Agent.
The
Disbursing Agent shall be empowered to: (a) effect all actions
and execute all agreements, instruments, and other documents necessary to
perform its duties under the Plan; (b) make all distributions contemplated
hereby; (c) employ professionals to represent it with respect to its
responsibilities; and (d) exercise such other powers as may be vested in
the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan, or
as deemed by the Disbursing Agent to be necessary and proper to implement the
provisions hereof.
2. Expenses Incurred On or
After the Effective Date.
Except as
otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and
expenses incurred by the Disbursing Agent on or after the Effective Date
(including taxes) and any reasonable compensation and expense reimbursement
claims (including reasonable attorney fees and expenses) made by the Disbursing
Agent shall be paid in Cash by the Reorganized Debtors.
D.
|
Delivery
of Distributions and Undeliverable or Unclaimed
Distributions.
|
1. Delivery of Distributions in
General.
Except as
otherwise provided herein, the Reorganized Debtors shall make distributions to
Holders of Allowed Claims and Allowed Interests on the Distribution Record Date
at the address for each such Holder as indicated on the Debtors’ records as of
the date of any such distribution; provided, however, that the manner of
such distributions shall be determined at the discretion of the Reorganized
Debtors.
22
2. Minimum
Distributions.
No
fractional shares of New Equity or New Warrants shall be distributed, and no
Cash shall be distributed in lieu of such fractional amounts. When
any distribution pursuant to the Plan on account of an Allowed Claim or Allowed
Interest would otherwise result in the issuance of a number of shares of New
Equity or New Warrants that is not a whole number, the actual distribution of
shares of New Equity or New Warrants shall be rounded as
follows: (a) fractions of one-half (½) or greater shall be
rounded to the next higher whole number and (b) fractions of less than
one-half (½) shall be rounded to the next lower whole number with no further
payment therefor. The total number of authorized shares of New Equity and New
Warrants to be distributed to Holders of Allowed Claims and Allowed Interests
shall be adjusted as necessary to account for the foregoing
rounding.
3. Undeliverable Distributions
and Unclaimed Property.
In the
event that any distribution to any Holder is returned as undeliverable, no
distribution to such Holder shall be made unless and until the Disbursing Agent
has determined the then-current address of such Holder, at which time such
distribution shall be made to such Holder without interest; provided, however, that such
distributions shall be deemed unclaimed property under section 347(b) of the
Bankruptcy Code at the expiration of one year from the Effective Date; provided further, however, that the Debtors
shall use commercially reasonable efforts to locate a Holder if any distribution
is returned as undeliverable. After such date, all unclaimed property
or interests in property shall revert to the Reorganized Debtors automatically
and without need for a further order by the Bankruptcy Court (notwithstanding
any applicable federal, provincial or state escheat, abandoned, or unclaimed
property laws to the contrary), and the Claim of any Holder to such property or
Interest in property shall be discharged and forever barred.
E.
|
Manner
of Payment
|
1. All
distributions of the New Equity to the Holders of Claims and Interests under the
Plan shall be made by the Disbursing Agent on behalf of Reorganized U.S.
Concrete, Inc.
2. All
distributions of Cash under the Plan shall be made by the Disbursing Agent on
behalf of the applicable Debtor.
3. At
the option of the Disbursing Agent, any Cash payment to be made hereunder may be
made by check or wire transfer or as otherwise required or provided in
applicable agreements.
F.
|
Section
1145 Exemption.
|
Pursuant
to section 1145 of the Bankruptcy Code, the offering, issuance, and distribution
of the New Equity, New Warrants, and New Equity deliverable upon exercise of the
New Warrants and Management Equity Incentive Plan, as contemplated by Article
III.B hereof to Classes 4 and 7, shall be exempt from, among other things, the
registration requirements of section 5 of the Securities Act and any other
applicable law requiring registration prior to the offering, issuance,
distribution, or sale of Securities. In addition, under section 1145
of the Bankruptcy Code, such New Equity will be freely tradable in the U.S. by
the recipients thereof, subject to the provisions of section 1145(b)(1) of the
Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11)
of the Securities Act, and compliance with applicable securities laws and any
rules and regulations of the Securities and Exchange Commission, if any,
applicable at the time of any future transfer of such Securities or instruments
and subject to any restrictions in the New Warrant Agreement or the New
Organizational Documents, as applicable.
23
G.
|
Compliance
with Tax Requirements.
|
In
connection with the Plan, to the extent applicable, the Reorganized Debtors
shall comply with all tax withholding and reporting requirements imposed on them
by any Governmental Unit, and all distributions pursuant to the Plan shall be
subject to such withholding and reporting
requirements. Notwithstanding any provision in the Plan to the
contrary, the Reorganized Debtors and the Disbursing Agent shall be authorized
to take all actions necessary or appropriate to comply with such withholding and
reporting requirements, including liquidating a portion of the distribution to
be made under the Plan to generate sufficient funds to pay applicable
withholding taxes, withholding distributions pending receipt of information
necessary to facilitate such distributions, or establishing any other mechanisms
they believe are reasonable and appropriate. The Reorganized Debtors
reserve the right to allocate all distributions made under the Plan in
compliance with all applicable wage garnishments, alimony, child support, and
other spousal awards, liens, and encumbrances.
H.
|
Allocations.
|
Distributions
in respect of Allowed Claims shall be allocated first to the principal amount of
such Claims (as determined for federal income tax purposes) and then, to the
extent the consideration exceeds the principal amount of the Claims, to any
portion of such Claims for accrued but unpaid interest.
I.
|
No
Postpetition Interest on Claims.
|
Unless
otherwise specifically provided for in the Plan, the Confirmation Order, or
required by applicable bankruptcy law, postpetition interest shall not accrue or
be paid on any Claims against the Debtors, and no Holder of a Claim against the
Debtors shall be entitled to interest accruing on or after the Petition Date on
any such Claim.
J.
|
Setoffs
and Recoupment.
|
The
Debtors may, but shall not be required to, setoff against or recoup from any
Claims of any nature whatsoever that the Debtors may have against the claimant,
but neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtors or the Reorganized Debtors of any
such Claim it may have against the Holder of such Claim.
K.
|
Claims
Paid or Payable by Third Parties.
|
1. Claims Paid by Third
Parties.
The
Debtors or the Reorganized Debtors, as applicable, shall reduce in full a Claim,
and such Claim shall be disallowed without a Claims objection having to be Filed
and without any further notice to or action, order, or approval of the
Bankruptcy Court, to the extent that the Holder of such Claim receives payment
in full on account of such Claim from a party that is not a Debtor or a
Reorganized Debtor. Subject to the last sentence of this paragraph,
to the extent a Holder of a Claim receives a distribution on account of such
Claim and receives payment from a party that is not a Debtor or a Reorganized
Debtor on account of such Claim, such Holder shall, within two weeks of receipt
thereof, repay or return the distribution to the applicable Reorganized Debtor,
to the extent the Holder’s total recovery on account of such Claim from the
third party and under the Plan exceeds the amount of such Claim as of the date
of any such distribution under the Plan. The failure of such Holder
to timely repay or return such distribution shall result in the Holder owing the
applicable Reorganized Debtor annualized interest at the Federal Judgment
Rate on such amount owed for each Business Day after the two-week grace period
specified above until the amount is repaid.
2. Claims Payable by Third
Parties.
No
distributions under the Plan shall be made on account of an Allowed Claim that
is payable pursuant to one of the Debtors’ insurance policies until the Holder
of such Allowed Claim has exhausted all remedies with respect to such insurance
policy. To the extent that one or more of the Debtors’ insurers
agrees to satisfy in full or in part a Claim (if and to the extent adjudicated
by a court of competent jurisdiction), then immediately upon such insurers’
agreement, the applicable portion of such Claim may be expunged without a Claims
objection having to be Filed and without any further notice to or action, order,
or approval of the Bankruptcy Court.
24
3. Applicability of Insurance
Policies.
Except as
otherwise provided in the Plan, distributions to Holders of Allowed Claims shall
be in accordance with the provisions of any applicable insurance
policy. Nothing contained in the Plan shall constitute or be deemed a
waiver of any Cause of Action that the Debtors or any Entity may hold against
any other Entity, including insurers under any policies of insurance, nor shall
anything contained herein constitute or be deemed a waiver by such insurers of
any defenses, including coverage defenses, held by such insurers.
ARTICLE
VII.
TREATMENT
OF DISPUTED CLAIMS UNDER THE PLAN
A.
|
Disputed
Claims Process.
|
Holders
of Claims, Interests, and Administrative Claims need not file proofs of claim
with the Bankruptcy Court and shall be subject to the Bankruptcy Court process
only to the extent provided in the Plan. On and after the Effective
Date, except as otherwise provided in the Plan, all Allowed Claims shall be paid
in the ordinary course of business of the Reorganized Debtors. If the
Debtors or Reorganized Debtors dispute any Claim, such dispute shall be
determined, resolved, or adjudicated, as the case may be, in the manner as if
the Chapter 11 Cases had not been commenced and shall survive the Effective Date
as if the Chapter 11 Cases had not been commenced, provided, however, that the
Debtors or Reorganized Debtors may elect, at their sole option, to object to any
Claim (other than Claims expressly Allowed by the Plan) and to have the validity
or amount of any Claim adjudicated by the Bankruptcy Court; provided further, however, that Holders of
Claims and Administrative Claims may elect to resolve the validity or amount of
any Claim in the Bankruptcy Court. If a Holder makes such an
election, the Bankruptcy Court shall apply the law that would have governed the
dispute if the Chapter 11 Cases had not been filed.
B.
|
No
Distributions Pending Allowance.
|
Notwithstanding
any other provision hereof, if any portion of a Claim is a Disputed Claim, no
payment or distribution provided hereunder shall be made on account of such
Claim unless and until such Disputed Claim becomes an Allowed
Claim.
C.
|
Distributions
After Allowance.
|
To the
extent that a Disputed Claim ultimately becomes an Allowed Claim, distributions
(if any) shall be made to the Holder of such Allowed Claim in accordance with
the provisions of the Plan. As soon as practicable after the date
that the order or judgment of the Bankruptcy Court allowing any Disputed Claim
becomes a Final Order, the Disbursing Agent shall provide to the Holder of such
Claim the distribution (if any) to which such Holder is entitled under the Plan
as of the Effective Date, without any interest to be paid on account of such
Claim.
ARTICLE
VIII.
SETTLEMENT,
RELEASE, INJUNCTION, AND RELATED PROVISIONS
A.
|
Compromise
and Settlement.
|
Notwithstanding
anything contained herein to the contrary, the allowance, classification, and
treatment of all Allowed Claims and their respective distributions and
treatments hereunder takes into account and conforms to the relative priority
and rights of the Claims and the Interests in each Class in connection with any
contractual, legal, and equitable subordination rights relating thereto whether
arising under general principles of equitable subordination, section 510 of the
Bankruptcy Code, or otherwise. As of the Effective Date, any and all
such rights described in the preceding sentence are settled, compromised, and
released pursuant hereto. The Confirmation Order will constitute the
Bankruptcy Court’s finding and determination that the settlements reflected in
the Plan are (1) in the best interests of the Debtors, their estates, and all
Holders of Claims, (2) fair, equitable, and reasonable, (3) made in good
faith, and (4) approved by the Bankruptcy Court pursuant to section 363 of the
Bankruptcy Code and Bankruptcy Rule 9019. In addition, the allowance,
classification, and treatment of Allowed Claims take into account any Causes of
Action, whether under the Bankruptcy Code or otherwise under applicable
non-bankruptcy law, that may exist between the Debtors and any Released Party;
as of the Effective Date, any and all such Causes of Action are settled,
compromised, and released pursuant hereto. The Confirmation Order
shall approve the releases by all Entities of all such contractual, legal, and
equitable subordination rights or Causes of Action that are satisfied,
compromised, and settled pursuant hereto. Nothing in this Article
VIII.A shall compromise or settle in any way whatsoever, any Causes of Action
that the Debtors or the Reorganized Debtors, as applicable, may have against a
non-Released Party or provide for the indemnity of any non-Released
Party.
25
In
accordance with the provisions of this Plan, and pursuant to section 363 of the
Bankruptcy Code and Bankruptcy Rule 9019, without any further notice to or
action, order or approval of the Bankruptcy Court, after the Effective Date (1)
the Reorganized Debtors may, in their sole and absolute discretion, compromise
and settle Claims against the Debtors and (2) the Reorganized Debtors may, in
their sole and absolute discretion, compromise and settle Causes of Action
against other Entities.
B.
|
Discharge
of Claims and Termination of
Interests.
|
Pursuant to section 1141(d) of the
Bankruptcy Code, and except as otherwise specifically provided in the Plan or in
any contract, instrument, or other agreement or document created pursuant to the
Plan, the distributions, rights, and treatment that are provided in the Plan
shall be in complete satisfaction, discharge, and release, effective as of the
Effective Date, of Claims (including any Intercompany Claims resolved or
compromised after the Effective Date by the Reorganized Debtors), Interests, and
Causes of Action of any nature whatsoever, including any interest accrued on
Claims or Interests from and after the Petition Date, whether known or unknown,
against, liabilities of, Liens on, obligations of, rights against, and Interests
in, the Debtors or any of their assets or properties, regardless of whether any
property shall have been distributed or retained pursuant to the Plan on account
of such Claims and Interests, including demands, liabilities, and Causes of
Action that arose before the Effective Date, any contingent or
non-contingent liability on account of representations or warranties issued on
or before the Effective Date, and all debts of the kind specified in
sections 502(g), 502(h), or 502(i) of the Bankruptcy Code; provided, however, that, upon the
Effective Date, all Allowed General Unsecured Claims shall be Reinstated and
shall not be subject to the discharge provisions of this Article
VIII.B. Any default by the Debtors or their Affiliates with respect
to any Claim or Interest that existed immediately prior to or on account of the
filing of the Chapter 11 Cases shall be deemed cured on the Effective
Date. The Confirmation Order shall be a judicial determination of the
discharge of all Claims and Interests subject to the Effective Date
occurring. This Article VIII.B also shall apply to any and all claims
against the Non-Filers on account of or relating to the Notes.
C.
|
Release
of Liens.
|
Except
as otherwise provided in the Plan, or in any contract, instrument, release, or
other agreement or document created pursuant to the Plan, on the Effective Date
and concurrently with the applicable distributions made pursuant to the Plan
and, in the case of a Secured Claim, satisfaction in full of the portion of the
Secured Claim that is Allowed as of the Effective Date, all mortgages,
deeds of trust, Liens, pledges, or other security interests against any property
of the Estates shall be fully released and discharged, and all of the right,
title, and interest of any Holder of such mortgages, deeds of trust, Liens,
pledges, or other security interests shall revert to the Reorganized
Debtors and their successors and assigns.
26
D.
|
Releases
by the Debtors.
|
Pursuant
to section 1123(b) of the Bankruptcy Code, and except as otherwise specifically
provided in the Plan, for good and valuable consideration, on and after the
Effective Date, the Released Parties are deemed released and discharged by the
Debtors, the Reorganized Debtors, and the Estates from any and all Claims,
obligations, rights, suits, damages, causes of action, remedies, and liabilities
whatsoever, whether for tort, fraud, contract, violations of federal or state
securities laws, or otherwise, including any derivative Claims asserted or that
could possibly have been asserted on behalf of the Debtors, whether known or
unknown, foreseen or unforeseen, existing or hereinafter arising, in law,
equity, or otherwise, that the Debtors, the Reorganized Debtors, the Estates, or
their Affiliates would have been legally entitled to assert in their own right
(whether individually or collectively) or on behalf of the Holder of any Claim
or Interest or other Entity, based on or relating to, or in any manner arising
from, in whole or in part, the Debtors or their Affiliates, the Chapter 11
Cases, the purchase, sale, or rescission of the purchase or sale of any Security
of the Debtors or the Reorganized Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in
the Plan, the business or contractual arrangements between any Debtor and any
Released Party, the restructuring of Claims and Interests prior to or in the
Chapter 11 Cases, the negotiation, formulation, or preparation of the Plan and
related Disclosure Statement, or related agreements, instruments, or other
documents, upon any other act or omission, transaction, agreement, event, or
other occurrence taking place on or before the Confirmation Date of the Plan,
other than Claims or liabilities arising out of or related to any contractual or
fixed monetary obligation owed to the Debtors or the Reorganized
Debtors. Notwithstanding any other provision of the Plan to the
contrary, the Debtors and the Non-Filers do not release and shall not be deemed
to have released any claims, rights, or Causes of Action related to the
operation of the Michigan Joint Venture, including, but not limited to, any
claims, rights, or Causes of Action against the Michigan Joint Venture Entities
or the Michigan Joint Venture Partner or any rights under any agreements related
to the Michigan Joint Venture.
Entry
of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by
reference each of the related provisions and definitions contained herein, and
further, shall constitute the Bankruptcy Court’s finding that the Debtor Release
is: (1) in exchange for the good and valuable consideration provided
by the Released Parties; (2) a good faith settlement and compromise of the
Claims released by this Article VIII.D; (3) in the best interests of the Debtors
and all Holders of Claims and Interests; (4) fair, equitable, and reasonable;
(5) given and made after due notice and opportunity for hearing; and (6) a bar
to any of the Debtors asserting any claim or Cause of Action released pursuant
to the Debtor Release.
E.
|
Releases
by Holders of Claims and Interests.
|
Except
as provided in the last sentence of this Article VIII.E, as of the Effective
Date, each Holder of a Claim or an Interest in the Debtors, except to the extent
that such Holder either voted to reject the Plan or is classified in a Class
that is deemed to accept or reject the Plan, shall be deemed to have
conclusively, absolutely, unconditionally, irrevocably, and forever, released
and discharged the Third Party Releasees from any and all Claims, Interests,
obligations, rights, suits, damages, Causes of Action, remedies, and liabilities
whatsoever, whether for tort, fraud, contract, violations of federal or state
securities laws, or otherwise, including any derivative Claims, asserted on
behalf of a debtor, whether known or unknown, foreseen or unforeseen, existing
or hereafter arising, in law, equity, or otherwise, that such entity would have
been legally entitled to assert (whether individually or collectively), based on
or in any way relating to, or in any manner arising from, in whole or in part,
the Debtors, the Non-Filers, the Debtors’ restructuring, the Chapter 11 Cases,
the purchase, sale, or rescission of the purchase or sale of any Security of the
Debtors or the Reorganized Debtors, the subject matter of, or the transactions
or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor and any Released Party,
the restructuring of Claims and Interests prior to or in the Chapter 11 Cases,
the negotiation, formulation, or preparation of the Plan, the related Disclosure
Statement, the related Plan Supplement, or related agreements, instruments, or
other documents, upon any other act or omission, transaction, agreement, event,
or other occurrence taking place on or before the Effective Date of the
Plan. Notwithstanding anything to the contrary in the foregoing, the
release set forth above does not release any post-Effective Date obligations of
any party under the Plan or any document, instrument, or agreement (including
those set forth in the Plan Supplement) executed to implement the
Plan.
Entry
of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the Third Party Release, which includes by
reference each of the related provisions and definitions contained herein, and
further, shall constitute the Bankruptcy Court’s finding that the Third Party
Release is: (1) in exchange for the good and valuable consideration
provided by the Third Party Releasees; (2) a good faith settlement and
compromise of the Claims released by this Article VIII.E; (3) in the best
interests of the Debtors and all Holders of Claims and Interests; (4) fair,
equitable, and reasonable; (5) given and made after due notice and
opportunity for hearing; and (6) a bar to any Entity granting a Third Party
Release from asserting any claim or Cause of Action released pursuant to the
Third Party Release.
27
Nothing
in this Third Party Release shall be deemed to release or Impair any Allowed
General Unsecured Claim against the Debtors, and all Allowed General Unsecured
Claims against the Debtors shall be Reinstated under the Plan.
F.
|
Exculpation.
|
No
Exculpated Party shall have or incur, and each Exculpated Party is hereby
released and exculpated from any Exculpated Claim or any obligation, cause of
action, or liability for any Exculpated Claim; provided, however, that the foregoing
“Exculpation” shall have no effect on the liability of any Entity that results
from any such act or omission that is determined by a Final Order to have
constituted gross negligence or willful misconduct; provided further that in all respects
such Entities shall be entitled to reasonably rely upon the advice of counsel
with respect to their duties and responsibilities pursuant to, or in connection
with, the Plan. The Debtors and the Reorganized Debtors (and each of
their respective Affiliates, agents, directors, officers, employees, advisors,
and attorneys) have participated in compliance with the applicable provisions of
the Bankruptcy Code with regard to the solicitation and distribution of the
Securities pursuant to the Plan, and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any
applicable law, rule, or regulation governing the solicitation of acceptances or
rejections of the Plan or such distributions made pursuant to the
Plan.
G.
|
Injunction.
|
Except
as otherwise expressly provided in the Plan or for obligations issued pursuant
to the Plan, all Entities who have held, hold, or may hold Claims or Interests
that have been released pursuant to Article VIII.D or Article VIII.E hereof,
discharged pursuant to Article VIII.A hereof, or are subject to exculpation
pursuant to Article VIII.F hereof are permanently enjoined, from and after the
Effective Date, from taking any of the following actions against, as applicable,
the Debtors, the Non-Filers, the Reorganized Debtors, the Released Parties, or
the Exculpated Parties: (1) commencing or continuing in any
manner any action or other proceeding of any kind on account of or in connection
with or with respect to any such Claims or Interests; (2) enforcing,
attaching, collecting, or recovering by any manner or means any judgment, award,
decree, or order against such Entities on account of or in connection with or
with respect to any such Claims or Interests; (3) creating, perfecting, or
enforcing any encumbrance of any kind against such Entities or the property or
estates of such Entities on account of or in connection with or with respect to
any such Claims or Interests; (4) asserting any right of subrogation or
recoupment of any kind against any obligation due from such Entities or against
the property or Estates of such Entities on account of or in connection with or
with respect to any such Claims or Interests; and (5) commencing or
continuing in any manner any action or other proceeding of any kind on account
of or in connection with or with respect to any such Claims or Interests
released or settled pursuant to the Plan. Subject only to entry of a
Final Order approving the California Wage and Hour 9019 Motion, the California
Wage and Hour Litigation is permanently enjoined by this Article VIII.G and each
and every plaintiff, class member, or party to the California Wage and Hour
Litigation is permanently bound by this Injunction.
H.
|
Protections
Against Discriminatory Treatment.
|
Consistent
with section 525 of the Bankruptcy Code and the Supremacy Clause of the U.S.
Constitution, no Entities, including Governmental Units, shall discriminate
against the Reorganized Debtors or deny, revoke, suspend, or refuse to renew a
license, permit, charter, franchise, or other similar grant to, condition such a
grant to, discriminate with respect to such a grant against, the Reorganized
Debtors, or another Entity with whom the Reorganized Debtors have been
associated, solely because each Debtor has been a debtor under chapter 11 of the
Bankruptcy Code, has been insolvent before the commencement of the Chapter 11
Cases (or during the Chapter 11 Cases but before the Debtors are granted or
denied a discharge), or has not paid a debt that is dischargeable in the Chapter
11 Cases.
I.
|
Recoupment.
|
In
no event shall any Holder of a Claim or an Interest be entitled to recoup any
Claim or Interest against any claim, right, or Cause of Action of the Debtors or
the Reorganized Debtors, as applicable, unless (i) such Holder actually has
performed such recoupment and provided notice thereof in writing to the Debtors
on or before the Confirmation Date or (ii) such Claim or Interest is Reinstated
under the Plan.
28
J.
|
Subordination
Rights.
|
Any
distributions under the Plan to Holders shall be received and retained free from
any obligations to hold or transfer the same to any other Holder, and shall not
be subject to levy, garnishment, attachment, or other legal process by any
Holder by reason of claimed contractual subordination rights. Any
such subordination rights shall be waived, and the Confirmation Order shall
constitute an injunction enjoining any Entity from enforcing or attempting to
enforce any contractual, legal, or equitable subordination rights to property
distributed under the Plan, in each case other than as provided in the
Plan.
K.
|
Document
Retention.
|
On and
after the Effective Date, the Reorganized Debtors may maintain documents in
accordance with their current document retention policy, as may be altered,
amended, modified, or supplemented by the Reorganized Debtors.
ARTICLE
IX.
CONDITIONS
PRECEDENT TO CONFIRMATION
AND
CONSUMMATION OF THE PLAN
A.
|
Conditions
Precedent to Confirmation.
|
It shall
be a condition precedent to Confirmation of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of
Article IX.C hereof:
1. the
Bankruptcy Court shall have entered the Confirmation Order in form and substance
acceptable to the Debtors and reasonably acceptable to the Informal Noteholders
Committee;
2. the
Confirmation Order shall:
|
(a)
|
authorize
the Debtors and the Reorganized Debtors to take all actions necessary or
appropriate to enter into, implement, and consummate the contracts,
instruments, releases, leases, indentures, and other agreements or
documents created in connection with the
Plan;
|
|
(b)
|
decree
that the provisions of the Confirmation Order and the Plan are
nonseverable and mutually
dependent;
|
|
(c)
|
authorize
the Reorganized Debtors to: (i) issue the New Equity pursuant to the
exemption from registration under the Securities Act provided by section
1145 of the Bankruptcy Code or other exemption from such registration or
pursuant to one or more registration statements; and (ii) enter into
any agreements contained in the Plan
Supplement;
|
|
(d)
|
decree
that the Confirmation Order shall supersede any Bankruptcy Court orders
issued prior to the Confirmation Date that may be inconsistent with the
Confirmation Order;
|
|
(e)
|
authorize
the implementation of the Plan in accordance with its terms;
and
|
|
(f)
|
provide
that, pursuant to section 1146 of the Bankruptcy Code, the assignment or
surrender of any lease or sublease, and the delivery of any deed or other
instrument or transfer order, in furtherance of, or in connection with the
Plan, including any deeds, bills of sale, or assignments executed in
connection with any disposition or transfer of assets contemplated under
the Plan, shall not be subject to any stamp, real estate transfer,
mortgage recording, or other similar tax (including, any mortgages or
security interest filing to be recorded or filed in connection with the
Exit Facility); and
|
29
3. the
Plan must be in form and substance acceptable to the Debtors and reasonably
acceptable to counsel to the Informal Noteholders Committee.
4. all
documentation related to the Plan must be in form and substance reasonably
acceptable to the counsel to the Informal Noteholders Committee.
B.
|
Conditions
Precedent to the Effective Date.
|
It shall
be a condition precedent to the Effective Date of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of
Article IX.C hereof:
1. the
Confirmation Order shall have become a Final Order;
2. the
final version of the Plan Supplement and all of the schedules, documents, and
exhibits contained therein shall have been Filed in form and substance
acceptable to the Debtors and reasonably acceptable to counsel to the Informal
Noteholders Committee;
3. all
actions, documents, Certificates, and agreements necessary to implement the
Plan, including documents contained in the Plan Supplement, shall have been
effected or executed and delivered, as the case may be, to the required parties
and, to the extent required, filed with the applicable Governmental Units in
accordance with applicable laws; provided, however, that each document,
instrument, and agreement must be acceptable to the Debtors and reasonably
acceptable to counsel to the Informal Noteholders Committee;
4. all
authorizations, consents, regulatory approvals, rulings, or documents that are
necessary to implement and effectuate the Plan shall have been
received;
5. the
initial boards of directors of the Reorganized Debtors shall have been
appointed;
6. the
effectiveness of the Exit Facility, in form and substance acceptable to the
Debtors and reasonably acceptable to counsel to the Informal Noteholders
Committee; and
7. The
Debtors shall have satisfied the requirements of Article IV.O of the Plan by
purchasing a director and officer liability insurance tail policy on terms and
conditions satisfactory to the Debtors and Counsel to the Informal Noteholders
Committee.
C.
|
Waiver
of Conditions.
|
The
conditions to Confirmation and Consummation set forth in this Article IX may be
waived only by consent of the Debtors and counsel to the Informal Noteholders
Committee, without notice, leave, or order of the Bankruptcy Court or any formal
action other than proceedings to confirm or consummate the Plan.
D.
|
Effect
of Failure of Conditions.
|
If
Consummation does not occur, the Plan shall be null and void in all respects,
and nothing contained in the Plan or the Disclosure Statement
shall: (1) constitute a waiver or release of any claims by the
Debtors, any Holders of Claims or Interests, or any other Entity;
(2) prejudice in any manner the rights of the Debtors, any Holders of
Claims or Interests, or any other Entity; or (3) constitute an admission,
acknowledgment, offer, or undertaking by the Debtors, any Holders of Claims or
Interests, or any other Entity in any respect.
30
ARTICLE
X.
MODIFICATION,
REVOCATION, OR WITHDRAWAL OF THE PLAN
A.
|
Modification
and Amendments.
|
Except as
otherwise specifically provided in the Plan, the Debtors, with the reasonable
consent of counsel to the Informal Noteholders Committee, reserve the right to
modify the Plan, whether such modification is material or immaterial, and seek
Confirmation consistent with the Bankruptcy Code. Subject to certain
restrictions and requirements set forth in section 1127 of the Bankruptcy Code
and Bankruptcy Rule 3019 and those restrictions on modifications set forth
in the Plan, each of the Debtors expressly reserves its respective rights to
revoke or withdraw, or, with the reasonable consent of counsel to the Informal
Noteholders Committee, to alter, amend, or modify the Plan with respect to such
Debtor, one or more times, after Confirmation, and, to the extent necessary may
initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the
Plan, or remedy any defect or omission, or reconcile any inconsistencies in the
Plan, the Disclosure Statement, or the Confirmation Order, in such matters as
may be necessary to carry out the purposes and intent of the
Plan. Any such modification or supplement shall be considered a
modification of the Plan and shall be made in accordance with this Article
X.
B.
|
Effect
of Confirmation on Modifications.
|
Entry of
a Confirmation Order shall mean that all modifications or amendments to the Plan
since the solicitation thereof are approved pursuant to section 1127(a) of the
Bankruptcy Code and do not require additional disclosure or resolicitation under
Bankruptcy Rule 3019.
C.
|
Revocation
or Withdrawal of Plan.
|
The
Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date and to file subsequent plans of reorganization. If
the Debtors revoke or withdraw the Plan, or if Confirmation or Consummation does
not occur, then: (1) the Plan shall be null and void in all
respects; (2) any settlement or compromise embodied in the Plan (including
the fixing or limiting to an amount certain of any Claim or Interest or Class of
Claims or Interests), assumption or rejection of Executory Contracts or
Unexpired Leases effected under the Plan, and any document or agreement executed
pursuant to the Plan, shall be deemed null and void; and (3) nothing
contained in the Plan shall: (a) constitute a waiver or release
of any Claims or Interests; (b) prejudice in any manner the rights of such
Debtor or any other Entity, including the Non-Filers; or (c) constitute an
admission, acknowledgement, offer, or undertaking of any sort by such Debtor or
any other Entity, including the Non-Filers.
ARTICLE
XI.
RETENTION
OF JURISDICTION
Notwithstanding
the entry of the Confirmation Order and the occurrence of the Effective Date, on
and after the Effective Date, the Bankruptcy Court shall retain exclusive
jurisdiction over all matters arising out of, or related to, the Chapter 11
Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code,
including jurisdiction to:
1.
allow, disallow, determine, liquidate, classify, estimate, or establish the
priority, Secured or unsecured status, or amount of any Claim or Interest,
including (i) the resolution of any request for payment of any Administrative
Claim, and (ii) the resolution of any and all objections to the Secured or
unsecured status, priority, amount, or allowance of Claims or
Interests;
2.
decide and resolve all matters related to the granting and denying, in whole or
in part, any applications for allowance of compensation or reimbursement of
expenses to Professionals authorized pursuant to the Bankruptcy Code or the
Plan;
3.
resolve any matters related to: (a) the assumption or assumption
and assignment of any Executory Contract or Unexpired Lease to which a Debtor is
party or with respect to which a Debtor may be liable and to hear, determine,
and, if necessary, liquidate, any Claims arising therefrom, including Cure
Claims pursuant to section 365 of the Bankruptcy Code; (b) any potential
contractual obligation under any Executory Contract or Unexpired Lease that
is assumed; and (c) any dispute regarding whether a contract or lease is or
was executory or expired;
31
4.
ensure that distributions to Holders of Allowed Claims and Allowed Interests are
accomplished pursuant to the provisions of the Plan;
5.
adjudicate, decide, or resolve any motions, adversary proceedings, contested or
litigated matters, and any other matters, and grant or deny any applications
involving a Debtor that may be pending on the Effective Date;
6.
adjudicate, decide, or resolve any and all matters related to section 1141 of
the Bankruptcy Code;
7.
enter and implement such orders as may be necessary or appropriate to execute,
implement, or consummate the provisions of the Plan and all contracts,
instruments, releases, indentures, and other agreements or documents created in
connection with the Plan or the Disclosure Statement;
8.
enter and enforce any order for the sale of property pursuant to sections 363,
1123, or 1146(a) of the Bankruptcy Code;
9.
resolve any cases, controversies, suits, disputes, or Causes of Action that may
arise in connection with the Consummation, interpretation, or enforcement of the
Plan or any Entity’s obligations incurred in connection with the
Plan;
10. issue
injunctions, enter and implement other orders, or take such other actions as may
be necessary or appropriate to restrain interference by any Entity with
Consummation or enforcement of the Plan;
11. resolve
any cases, controversies, suits, disputes, or Causes of Action with respect to
the releases, injunctions, and other provisions contained in Article VIII hereof
and enter such orders as may be necessary or appropriate to implement such
releases, injunctions, and other provisions;
12. resolve
any cases, controversies, suits, disputes, or Causes of Action with respect to
the repayment or return of distributions and the recovery of additional amounts
owed by the Holder of a Claim or Interest for amounts not timely repaid pursuant
to Article VI.K.1 hereof;
13. enter
and implement such orders as are necessary or appropriate if the Confirmation
Order is for any reason modified, stayed, reversed, revoked, or
vacated;
14. determine
any other matters that may arise in connection with or relate to the Plan, the
Disclosure Statement, the Confirmation Order, or any contract, instrument,
release, indenture, or other agreement or document created in connection with
the Plan or the Disclosure Statement;
15. enter
an order or Final Decree concluding or closing the Chapter 11
Cases;
16. adjudicate
any and all disputes arising from or relating to distributions under the
Plan;
17. consider
any modifications of the Plan, to cure any defect or omission, or to reconcile
any inconsistency in any Bankruptcy Court order, including the Confirmation
Order;
18. determine
requests for the payment of Claims and Interests entitled to priority pursuant
to section 507 of the Bankruptcy Code;
19. hear
and determine disputes arising in connection with the interpretation,
implementation, or enforcement of the Plan or the Confirmation Order, including
disputes arising under agreements, documents, or instruments executed in
connection with the Plan;
32
20. hear
and determine matters concerning state, local, and federal taxes in accordance
with sections 346, 505, and 1146 of the Bankruptcy Code;
21. hear
and determine all disputes involving the existence, nature, scope, or
enforcement of any exculpations, discharges, injunctions and releases granted in
the Plan, including under Article VIII hereof, regardless of whether such
termination occurred prior to or after the Effective Date;
22. enforce
all orders previously entered by the Bankruptcy Court; and
23. hear
any other matter not inconsistent with the Bankruptcy Code.
ARTICLE
XII.
MISCELLANEOUS
PROVISIONS
A.
|
Immediate
Binding Effect.
|
Subject
to Article IX.B hereof and notwithstanding Bankruptcy Rules 3020(e), 6004(h), or
7062 or otherwise, upon the occurrence of the Effective Date, the terms of the
Plan and the Plan Supplement shall be immediately effective and enforceable and
deemed binding upon the Debtors, the Reorganized Debtors, and any and all
Holders of Claims or Interests (irrespective of whether such Claims or Interests
are deemed to have accepted the Plan), all Entities that are parties to or are
subject to the settlements, compromises, releases, discharges, and injunctions
described in the Plan, each Entity acquiring property under the Plan, and any
and all non-Debtor parties to Executory Contracts and Unexpired Leases with the
Debtors.
B.
|
Additional
Documents.
|
On or
before the Effective Date, the Debtors may enter into any such agreements and
other documents as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan. The Debtors or the
Reorganized Debtors, as applicable, and all Holders of Claims or Interests
receiving distributions pursuant to the Plan and all other parties in interest
may, from time to time, prepare, execute, and deliver any agreements or
documents and take any other actions as may be necessary or advisable to
effectuate the provisions and intent of the Plan.
C.
|
Payment
of Statutory Fees.
|
All fees
payable pursuant to section 1930(a) of the Judicial Code, as determined by the
Bankruptcy Court at a hearing pursuant to section 1128 of the Bankruptcy Code,
shall be paid by each of the Reorganized Debtors (or the Disbursing Agent on
behalf of each of the Reorganized Debtors) for each quarter (including any
fraction thereof) until the Chapter 11 Cases are converted, dismissed, or
closed, whichever occurs first.
D.
|
Payment
of Fees and Expenses of Professionals in Connection with the Funded
Debt.
|
On the
Effective Date, the Disbursing Agent shall pay in full in Cash all reasonable
and documented unpaid fees and expenses of the advisors retained by the Informal
Noteholders Committee; provided, however, that
reasonably detailed fee invoices provided by the Entity shall be required as a
condition of payment hereunder.
33
E.
|
Statutory
Committee and Cessation of Fee and Expense
Payment.
|
On the
Effective Date, any statutory committee appointed in the Chapter 11 Cases shall
dissolve, and members thereof shall be released and discharged from all rights
and duties from or related to the Chapter 11 Cases. The Reorganized
Debtors shall no longer be responsible for paying any fees or expenses incurred
by the members of or advisors to the Prepetition Secured Agent, the Note
Indenture Trustee (except as otherwise specifically provided for in the Plan,
including Article IV.H and Article IV.I hereof, and as set forth in this
paragraph), or the Informal Noteholders Committee, and any other statutory
committees after the Effective Date. Notwithstanding the preceding
sentence, all reasonable Note Indenture Trustee fees and expenses owed to the
Note Indenture Trustee shall be paid by the Debtors, in Cash, on the Effective
Date. The Bankruptcy Court shall resolve any objection by the Debtors
to the reasonableness of such Note Indenture Trustee fees and expenses, provided, however, that the Debtors
shall pay and all amounts not in dispute pending determination by the Bankruptcy
Court. The Note Indenture Trustee shall be compensated for all
services and disbursements related to obligations and distributions pursuant to
this Plan occurring on or after the Effective Date (and for the related fees and
expenses of any agent, counsel, or other professional engaged by the Note
Indenture Trustee with respect to administering or implementing such obligations
and distributions), by the Reorganized Debtors in the ordinary course upon the
presentation of invoices by the Note Indenture Trustee. Compensation
of the Note Indenture Trustee for services relating to obligations or
distributions under this Plan on or after the Effective Date shall be made
without the need for filing any application or request with, or approval by, the
Bankruptcy Court. The rights of the Note Indenture Trustee to assert a lien or
administrative claim (as set forth in Section 7.07 in the Note Indenture)
against distributions to be made under this Plan shall be discharged to the
extent that the Note Indenture Trustee fees and expenses (occurring both prior
to and/or subsequent to the Effective Date) are paid in full by the Debtors (or
Reorganized Debtors) or otherwise by order of the Bankruptcy Court.
F.
|
Reservation
of Rights.
|
Except as
expressly set forth in the Plan, the Plan shall have no force or effect unless
the Bankruptcy Court enters the Confirmation Order, and the Confirmation Order
shall have no force or effect if the Effective Date does not
occur. None of the Filing of the Plan, any statement or provision
contained in the Plan, or the taking of any action by any Debtor with respect to
the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be
deemed to be an admission or waiver of any rights of any Debtor with respect to
the Holders of Claims or Interests prior to the Effective Date.
G.
|
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, Affiliate, officer, director, agent,
representative, attorney, beneficiaries, or guardian, if any, of each
Entity.
H.
|
Notices.
|
All
notices, requests, and demands to or upon the Debtors to be effective shall be
in writing (including by facsimile transmission) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when actually
delivered or, in the case of notice by facsimile transmission, when received and
telephonically confirmed, addressed as follows:
1.
|
If to the Debtors, to:
|
|
U.S.
Concrete, Inc.
|
||
2925
Briarpark
|
||
Suite
1050
|
||
Houston,
Texas 77024
|
||
Facsimile: (713)
499-6201
|
||
Attention: Curt
Lindeman
|
||
E-mail
address: clindeman@us-concrete.com
|
||
with
copies to:
|
||
Kirkland
& Ellis LLP
|
||
300
North LaSalle St.
|
||
Chicago,
Illinois 60654
|
||
Facsimile: (312)
862-2200
|
||
Attention: Patrick
Nash and Ross Kwasteniet
|
||
E-mail
addresses: patrick.nash@kirkland.com and
ross.kwasteniet@kirkland.com
|
34
2.
|
If to the Informal Noteholders Committee,
to:
|
|
Paul,
Weiss, Rifkind, Wharton & Garrison LLP
|
||
1285
Avenue of the Americas
|
||
New
York, New York 10019-6064
|
||
Facsimile:
(212) 757-3990
|
||
Attention: Andrew
Rosenberg and Laruen Shumejda
|
||
E-mail
addresses: arosenberg@paulweiss.com and
lshumejda@paulweiss.com
|
||
3.
|
If to the Creditors Committee, to
:
|
|
McDonald
Hopkins LLFC
|
||
600
Superior Avenue East
|
||
Cleveland,
OH 44114
|
||
Facsimile:
(216) 348-5474
|
||
Attention: Sean
Malloy and Scott Opincar
|
||
E-mail
addresses: smalloy@mcdonaldhopkins.com and
sopincar@mcdonaldhopkins.com
|
After the
Effective Date, the Debtors have authority to send a notice to Entities that to
continue to receive documents pursuant to Bankruptcy Rule 2002, such Entity must
file a renewed request to receive documents pursuant to Bankruptcy Rule
2002. After the Effective Date, the Debtors are authorized to limit
the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to
those Entities who have Filed such renewed requests.
I.
|
Term
of Injunctions or Stays.
|
Unless
otherwise provided in the Plan or in the Confirmation Order, all injunctions or
stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the
Bankruptcy Code or any order of the Bankruptcy Court, and extant on the
Confirmation Date (excluding any injunctions or stays contained in the Plan or
the Confirmation Order) shall remain in full force and effect until the
Effective Date. All injunctions or stays contained in the Plan or the
Confirmation Order shall remain in full force and effect in accordance with
their terms.
J.
|
Entire
Agreement.
|
Except as
otherwise indicated, the Plan and the Plan Supplement supersede all previous and
contemporaneous negotiations, promises, covenants, agreements, understandings,
and representations on such subjects, all of which have become merged and
integrated into the Plan.
K.
|
Exhibits.
|
All
exhibits and documents included in the Plan Supplement are incorporated into and
are a part of the Plan as if set forth in full in the Plan. After the
exhibits and documents are Filed, copies of such exhibits and documents shall be
available upon written request to the Debtors’ counsel at the address above or
by downloading such exhibits and documents from the Debtors’ restructuring
website at http://chapter11.epiqsystms.com/usconcrete or the Bankruptcy
Court’s website at www.deb.uscourts.gov. To the extent any exhibit or
document is inconsistent with the terms of the Plan, unless otherwise ordered by
the Bankruptcy Court, the non-exhibit or non-document portion of the Plan shall
control.
L.
|
Nonseverability
of Plan Provisions.
|
If, prior
to Confirmation, any term or provision of the Plan is held by the Bankruptcy
Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the
power to alter and interpret such term or provision to make it valid or
enforceable to the maximum extent practicable, consistent with the original
purpose of the term or provision held to be invalid, void, or unenforceable, and
such term or provision shall then be applicable as altered or
interpreted. Notwithstanding any such holding, alteration, or
interpretation, the remainder of the terms and provisions of the Plan will
remain in full force and effect and will in no way be affected, impaired, or
invalidated by such holding, alteration, or interpretation. The
Confirmation Order shall constitute a judicial determination and shall provide
that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is: (1) valid and
enforceable pursuant to its terms; (2) integral to the Plan and may not be
deleted or modified without the Debtors’ consent; and (3) nonseverable and
mutually dependent.
35
M.
|
Votes
Solicited in Good Faith.
|
Upon
entry of the Confirmation Order, the Debtors will be deemed to have solicited
votes on the Plan in good faith and in compliance with the Bankruptcy Code, and
pursuant to section 1125(e) of the Bankruptcy Code, the Debtors and each of
their respective Affiliates, agents, representatives, members, principals,
shareholders, officers, directors, employees, advisors, and attorneys will be
deemed to have participated in good faith and in compliance with the Bankruptcy
Code in the offer, issuance, sale, and purchase of Securities offered and sold
under the Plan and any previous plan, and, therefore, neither any of such
parties or individuals or the Reorganized Debtors will have any liability for
the violation of any applicable law, rule, or regulation governing the
solicitation of votes on the Plan or the offer, issuance, sale, or purchase of
the Securities offered and sold under the Plan and any previous
plan.
N.
|
Closing
of Chapter 11 Cases.
|
The
Reorganized Debtors shall, promptly after the full administration of the Chapter
11 Cases, File with the Bankruptcy Court all documents required by Bankruptcy
Rule 3022 and any applicable order of the Bankruptcy Court to close the
Chapter 11 Cases.
O.
|
Conflicts.
|
Except as
set forth in the Plan, to the extent that any provision of the Disclosure
Statement, the Plan Supplement, or any other order (other than the
Confirmation Order) referenced in the Plan (or any exhibits, schedules,
appendices, supplements, or amendments to any of the foregoing), conflict with
or are in any way inconsistent with any provision of the Plan, the Plan shall
govern and control.
36
Dated: July 27, 2010
U.S.
CONCRETE, INC.
|
||
(for
itself and on behalf of each of its affiliated
Debtors)
|
||
By:
|
/s/
Michael W. Harlan
|
|
Name:
|
Michael
W. Harlan
|
|
Title:
|
President
and Chief Executive
Officer
|
KIRKLAND &
ELLIS LLP
300 North
LaSalle Street
Chicago,
Illinois 60654
(312)
862-2000 (telephone)
- and
-
PACHULSKI,
STANG, ZIEHL & JONES LLP
919 North
Market Street
17th
Floor
Wilmington,
Delaware 19899
(302)
652-4100 (telephone)
CO-COUNSEL
FOR THE DEBTORS