Attached files
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8-K - LANXESS Solutions US Inc. | v201055_8k.htm |
EX-2.1 - LANXESS Solutions US Inc. | v201055_ex2-1.htm |
Richard
M. Cieri
M.
Natasha Labovitz
Craig A.
Bruens
Dana
Yankowitz
KIRKLAND & ELLIS
LLP
601
Lexington Avenue
New York,
New York 10022-4611
Telephone:
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(212) 446-4800
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Facsimile:
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(212) 446-4900
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Counsel
to the Debtors and Debtors in Possession
UNITED
STATES BANKRUPTCY COURT
SOUTHERN
DISTRICT OF NEW YORK
)
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In
re:
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)
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Chapter 11
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)
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CHEMTURA
CORPORATION, et
al.,1
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)
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Case
No. 09-11233 (REG)
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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
CHAPTER 11 PLAN OF CHEMTURA CORPORATION, ET AL.
Dated: October
29, 2010
1
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The
Debtors in these chapter 11 cases, along with the last four digits of
each Debtor’s federal taxpayer-identification number,
are: Chemtura Corporation (3153); A&M Cleaning Products,
LLC (4712); Aqua Clear Industries, LLC (1394); ASCK, Inc. (4489); ASEPSIS,
Inc. (6270); BioLab Company Store, LLC (0131); BioLab Franchise Company,
LLC (6709); Bio-Lab, Inc. (8754); BioLab Textile Additives, LLC (4348);
CNK Chemical Realty Corporation (5340); Crompton Colors Incorporated
(3341); Crompton Holding Corporation (3342); Crompton Monochem, Inc.
(3574); GLCC Laurel, LLC (5687); Great Lakes Chemical Corporation (5035);
Great Lakes Chemical Global, Inc. (4486); GT Seed Treatment, Inc. (5292);
HomeCare Labs, Inc. (5038); ISCI, Inc. (7696); Kem Manufacturing
Corporation (0603); Laurel Industries Holdings, Inc. (3635); Monochem,
Inc. (5612); Naugatuck Treatment Company (2035); Recreational Water
Products, Inc. (8754); Uniroyal Chemical Company Limited (Delaware)
(9910); Weber City Road LLC (4381); and WRL of Indiana, Inc.
(9136).
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TABLE
OF CONTENTS
ARTICLE
I DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME
AND GOVERNING LAW
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1
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1.1
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Defined
Terms
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1
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1.2
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Additional
Defined Terms
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14
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1.3
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Rules
of Interpretation
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14
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1.4
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Computation
of Time
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14
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1.5
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Governing
Law
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15
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1.6
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Reference
to Monetary Figures
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15
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1.7
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Reference
to the Debtors or the Reorganized Debtors
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15
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ARTICLE
II ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS, DIP CLAIMS AND STATUTORY
FEES
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15
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2.1
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Administrative
Claims
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15
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2.2
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Priority
Tax Claims
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16
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2.3
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DIP
Claims
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16
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2.4
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Statutory
Fees
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17
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2.5
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Administrative
Claims, Priority Tax Claims and DIP Claims Against Chemtura
Canada
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17
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ARTICLE
III CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
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17
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3.1
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Classification
of Claims and Interests
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17
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3.2
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Summary
of Classification
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17
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3.3
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Treatment
of Claims and Interests
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18
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3.4
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Treatment
of Claims Against and Interests in Chemtura Canada
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25
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ARTICLE
IV ACCEPTANCE REQUIREMENTS
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26
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4.1
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Acceptance
or Rejection of the Plan
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26
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4.2
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Confirmation
Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code
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26
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ARTICLE
V MEANS FOR IMPLEMENTATION OF THE PLAN
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26
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5.1
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General
Settlement of Claims and Interests
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26
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5.2
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The
Creditors’ Committee Action
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26
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5.3
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The
PBGC Settlement
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27
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5.4
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The
CHCI Preferred Stock Settlement
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27
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5.5
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The
Make-Whole Settlement and the No-Call Settlement
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27
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5.6
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The
Settlement Regarding the Fees of the Ad Hoc Bondholders’
Committee
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27
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5.7
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Environmental
Matters
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28
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5.8
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The
Unsecured Distribution Pool
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29
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5.9
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Election
of Cash and New Common Stock
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29
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5.10
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Exit
Financing/Incurrence of New Indebtedness
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30
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5.11
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Sources
of Consideration for Plan Distributions
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30
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5.12
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The
Rights Offering
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30
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5.13
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Cancellation
of Securities and Agreements
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31
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5.14
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Surrender
of Existing Securities
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31
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5.15
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Section
1145 Exemption
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31
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5.16
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Corporate
Existence
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32
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5.17
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New
Certificate of Incorporation and New By-Laws
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32
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5.18
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New
Chemtura’s and Reorganized Debtors’ Boards of Directors
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32
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5.19
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Officers
of New Chemtura and Reorganized Debtors
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32
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5.20
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Employee
Benefits
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33
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5.21
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Retiree
Benefits
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33
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5.22
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The
Incentive Plans
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33
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5.23
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Vesting
of Assets in the Reorganized Debtors
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34
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5.24
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Restructuring
Transactions
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34
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5.25
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Corporate
Action
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34
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5.26
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Effectuating
Documents; Further Transactions
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34
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5.27
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Section
1146 Exemption from Certain Taxes and Fees
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35
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5.28
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D&O
Liability Insurance Policies
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35
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5.29
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Preservation
of Rights of Action
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35
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5.30
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Single
Satisfaction of Claims
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35
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ARTICLE
VI TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
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36
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6.1
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Assumption
and Rejection of Executory Contracts and Unexpired Leases
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36
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6.2
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Claims
Based on Rejection of Executory Contracts or Unexpired
Leases.
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36
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6.3
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Cure
of Defaults for Executory Contracts and Unexpired Leases
Assumed.
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36
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6.4
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Modifications,
Amendments, Supplements, Restatements or Other Agreements.
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37
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6.5
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Reservation
of Rights.
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37
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6.6
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Contracts
and Leases Entered Into After the Petition Date.
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37
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6.7
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Assumption
of Insurance Policies
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38
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ARTICLE
VII PROVISIONS GOVERNING DISTRIBUTIONS
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38
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7.1
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Total
Enterprise Value
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38
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7.2
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Record
Date for Distributions
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38
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7.3
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Timing
and Calculation of Amounts to Be Distributed
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38
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7.4
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Disbursing
Agent
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38
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7.5
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Rights
and Powers of Disbursing Agent
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39
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7.6
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Distributions
on Account of Claims Allowed After the Effective Date
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39
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7.7
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Delivery
of Distributions and Undeliverable or Unclaimed
Distributions
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39
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7.8
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Compliance
with Tax Requirements and Allocations
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40
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7.9
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Setoffs
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41
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7.10
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Claims
Paid or Payable by Third Parties
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41
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ARTICLE
VIII PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED AND DISPUTED
CLAIMS OTHER THAN DIACETYL CLAIMS
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41
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8.1
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Prosecution
of Objections to Claims
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41
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8.2
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Allowance
of Claims and Interests
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42
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8.3
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Disputed
Claims Reserve
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42
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8.4
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Distributions
After Allowance
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42
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8.5
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Distribution
of Excess Amounts in the Disputed Claims Reserve
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42
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8.6
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Property
Held in the Disputed Claims Reserve
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44
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8.7
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Estimation
of Claims
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44
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8.8
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Deadline
to File Objections to Claims
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44
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ARTICLE
IX PROCEDURES FOR RESERVING FOR ENVIRONMENTAL CLAIMS
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44
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9.1
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Formation
of Environmental Trust
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44
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9.2
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Environmental
Reserve
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44
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9.3
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Distributions
from the Environmental Reserve
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45
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9.4
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Distribution
of Excess Amounts in the Environmental Reserve
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45
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9.5
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Property
Held in the Environmental Reserve
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45
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ARTICLE
X PROCEDURES FOR RESERVING FOR AND RESOLVING DIACETYL
CLAIMS
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45
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10.1
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Formation
of Diacetyl Trust
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45
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10.2
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Objections
to Diacetyl Claims
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46
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10.3
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Diacetyl
Reserve
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46
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10.4
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Distributions
from the Diacetyl Reserve
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46
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10.5
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Distribution
of Excess Amounts in the Diacetyl Reserve
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46
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10.6
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Property
Held in the Diacetyl Reserve
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47
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ARTICLE
XI SETTLEMENT, RELEASE, INJUNCTION AND RELATED PROVISIONS
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47
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11.1
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Compromise
and Settlement of Claims, Interests and Controversies
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47
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11.2
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Releases
by the Debtors
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47
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11.3
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Releases
by Holders of Claims and Interests
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48
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11.4
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Releases
by Holders of Diacetyl Claims
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48
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11.5
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Liabilities
to, and Rights of, Governmental Units
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48
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11.6
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Exculpation
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49
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11.7
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Discharge
of Claims and Termination of Interests
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49
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11.8
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Injunction
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49
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11.9
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Term
of Injunctions or Stays
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50
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11.10
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Protection
Against Discriminatory Treatment
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50
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11.11
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Release
of Liens
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51
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ARTICLE
XII CONDITIONS PRECEDENT TO CONFIRMATION OF THE PLAN AND THE EFFECTIVE
DATE
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51
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12.1
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Conditions
Precedent to Confirmation
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51
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12.2
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Additional
Condition Precedent to Confirmation
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51
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12.3
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Conditions
Precedent to the Effective Date
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51
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12.4
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Additional
Conditions Precedent to the Effective Date
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52
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12.5
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Waiver
of Conditions
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52
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12.6
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Effect
of Failure of Conditions
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52
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ARTICLE
XIII MODIFICATION, REVOCATION OR WITHDRAWAL OF THE PLAN
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52
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13.1
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Modification
and Amendments
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52
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13.2
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Effect
of Confirmation on Modifications
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53
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13.3
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Revocation
or Withdrawal of the Plan
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53
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ARTICLE
XIV RETENTION OF JURISDICTION
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53
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14.1
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Jurisdiction
of the Bankruptcy Court
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53
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14.2
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Jurisdiction
of the Bankruptcy Court in the Event Chemtura Canada Becomes a
Debtor
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55
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ARTICLE
XV MISCELLANEOUS PROVISIONS
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55
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15.1
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Immediate
Binding Effect
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55
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15.2
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Additional
Documents
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55
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15.3
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Dissolution
of Creditors’ Committee and Equity Committee
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55
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15.4
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Payment
of Fees and Expenses of the Creditors’ Committee, the Equity Committee,
the Prepetition Administrative Agent and the Indenture
Trustees
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56
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15.5
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Reservation
of Rights
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56
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15.6
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Successors
and Assigns
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56
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15.7
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Service
of Documents
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56
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15.8
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Entire
Agreement
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57
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15.9
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Severability
of Plan Provisions
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57
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15.10
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Exhibits
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57
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15.11
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Votes
Solicited in Good Faith
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57
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15.12
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Closing
of Chapter 11 Cases
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58
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15.13
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Conflicts
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58
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15.14
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Insurance
Neutrality
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58
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INTRODUCTION
Chemtura
Corporation and its affiliated debtors and debtors in possession in the
above-captioned Chapter 11 Cases respectfully propose the following joint
chapter 11 plan of reorganization. Capitalized terms used in the Plan
and not otherwise defined shall have the meanings ascribed to such terms in
Section 1.1
hereof.
ARTICLE
I
DEFINED
TERMS, RULES OF INTERPRETATION,
COMPUTATION
OF TIME AND GOVERNING LAW
1.1
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Defined
Terms
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Unless
the context otherwise requires, the following terms shall have the following
meanings when used in capitalized form:
1. “2009 Notes” means the
approximately $370 million in principal amount outstanding of 7% unsecured
notes, issued by Great Lakes Chemical Corporation pursuant to the 2009 Notes
Indenture.
2. “2009 Notes Claims” means any
Claim arising under the 2009 Notes.
3. “2009 Notes Indenture” means
the Indenture, dated as of July 16, 1999, between Great Lakes Chemical
Corporation, as issuer and the 2009 Notes Indenture Trustee, as well as any
guarantees and other documents entered into in connection therewith, and as
amended by a Supplemental Indenture, dated as of July 1, 2005.
4. “2009 Notes Indenture Trustee”
means The Bank of New York Mellon Trust Company and/or its duly appointed
successor, in its capacity as indenture trustee under the 2009 Notes
Indenture.
5. “2016 Notes” means the
approximately $500 million in principal amount outstanding of 6.875%
unsecured notes, issued by Chemtura Corporation pursuant to the 2016 Notes
Indenture.
6. “2016 Notes Claims” means any
Claim arising under the 2016 Notes.
7. “2016 Notes Indenture” means
the Indenture, dated as of April 24, 2006 between Chemtura Corporation, as
issuer, each of the guarantors named therein and the 2016 Notes Indenture
Trustee, as well as any guarantees and other documents entered into in
connection therewith, and as amended by a Supplemental Indenture, dated as of
February 11, 2009.
8. “2016 Notes Indenture Trustee”
means U.S. Bank National Association and/or its duly appointed successor,
in its capacity as indenture trustee under the 2016 Notes
Indenture.
9. “2026 Notes” means the
approximately $150 million in principal amount outstanding of 6.875%
unsecured debentures, issued by Witco Corporation, predecessor in interest to
Chemtura Corporation, pursuant to the 2026 Notes Indenture.
10. “2026 Notes Claims” means any
Claim arising under the 2026 Notes.
11. “2026 Notes Indenture” means
the Indenture, dated as of February 1, 1993, between Chemtura Corporation (as
successor to Witco Corporation), as issuer and the 2026 Notes Trustee, as well
any guarantees and other documents entered into in connection therewith, and as
amended by a First Supplemental Indenture, dated as of February 1, 1996, a
Second Supplemental Indenture, dated as of August 31, 1999, a Third Supplemental
Indenture, dated as of August 5, 2004, and a Fourth Supplemental Indenture,
dated as of July 1, 2005.
12. “2026 Notes Indenture Trustee”
means Manufacturers & Traders Trust Co. and/or its duly appointed
successor, in its capacity as indenture trustee under the 2026 Notes
Indenture.
13. “Accrued Professional
Compensation” means, at any given moment, all accrued, contingent and/or
unpaid fees (including success fees) for legal, financial advisory, accounting
and other services and obligations for reimbursement of expenses rendered or
incurred before the Effective Date that are awardable and allowable under
sections 328, 330(a) or 331 of the Bankruptcy Code by any retained Professional
in the Chapter 11 Cases, or that are awardable and allowable under
section 503 of the Bankruptcy Code, that has not been denied by a Final
Order, all to the extent that any such fees and expenses have not been
previously paid. To the extent that the Bankruptcy Court or any
higher court denies or reduces by a Final Order any amount of a Professional’s
fees or expenses, then those reduced or denied amounts shall no longer
constitute Accrued Professional Compensation. For the avoidance of
doubt, Accrued Professional Compensation shall not include any accrued,
contingent and/or unpaid fees for services and obligations for reimbursement of
expenses rendered or incurred before the Effective Date by any Entity retained
pursuant to the Ordinary Course Professional Order and authorized to be
compensated thereunder without filing a fee application.
14. “Ad Hoc Bondholders’ Committee”
means the ad hoc
committee representing certain holders of Notes Claims and Prepetition
Unsecured Lender Claims.
15. “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; (b) compensation
for legal, financial advisory, accounting and other services and reimbursement
of expenses Allowed pursuant to sections 328, 330(a), 331 or 363 of the
Bankruptcy Code or otherwise for the period commencing on the Petition Date and
through the Effective Date; (c) all fees and charges assessed against the
Estates pursuant to chapter 123 of title 28 of the United States Code, 28 U.S.C.
§§ 1–4001; 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.
16. “Affiliate” has the meaning
set forth in section 101(2) of the Bankruptcy Code.
17. “Allowed” means, (a) with
respect to Claims, and including applicable premiums and penalties to the extent
allowable: (i) any Claim proof of which is timely filed by the applicable
Claims Bar Date; (ii) any Claim that is listed in the Schedules as not
contingent, not unliquidated and not disputed, and for which no Proof of Claim
has been timely filed; or (iii) any Claim that is allowed pursuant to the
Plan; provided,
however, that with respect to any Claim described in clauses (i) and (ii)
above, such Claim shall be considered Allowed only if and to the extent that no
objection to the allowance of such Claim or any portion thereof has been filed
within the applicable period of time fixed by the Plan, the Bankruptcy Code, the
Bankruptcy Rules or the Bankruptcy Court, or such an objection is filed and the
Claim shall have been Allowed by a Final Order, and (b) with respect to
Interests: (i) any Interest reflected in the Debtors’ books and records; (ii)
any Interest in Chemtura Corporation reflected in files maintained by Chemtura
Corporation’s stock transfer agent; (iii) any Interest that is allowed pursuant
to the Plan; or (iv) any other Interest that has been allowed by a Final Order
of the Bankruptcy Court.
18. “Bankruptcy Code” means title
11 of the United States Code, as amended from time to time.
19. “Bankruptcy Court” means the
United States Bankruptcy Court for the Southern District of New York having
jurisdiction over the Chapter 11 Cases or any other court having jurisdiction
over the Chapter 11 Cases, including, to the extent of the withdrawal of any
reference under 28 U.S.C. § 157, the United States
District Court for the Southern District of New York.
20. “Bankruptcy Rules” means the
Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Cases,
promulgated under section 2075 of title 28 of the United States Code, 28
U.S.C. §§ 1–4001, as well as the general and local rules of the
Bankruptcy Court and Case
Management Order #2 (Docket No. 351).
21. “Cash” means the legal tender
of the United States of America or the equivalent thereof.
2
22. “Causes of Action” means any
action, claim, cause of action, controversy, demand, right, action, Lien,
indemnity, guaranty, suit, obligation, liability, damage, judgment, account,
defense, offset, power, privilege, license and franchise of any kind or
character whatsoever, known, unknown, contingent or non-contingent, matured or
unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or
undisputed, secured or unsecured, assertable directly or derivatively, whether
arising before, on, or after the Petition Date, in contract or in tort, in law
or in equity or pursuant to any other theory of law. Causes of Action
also include: (a) any right of setoff, counterclaim or recoupment and any
claim on contracts or for breaches of duties imposed by law or in equity;
(b) the right to object to Claims or Interests; (c) any claim pursuant
to section 362 or chapter 5 of the Bankruptcy Code; (d) any claim or
defense including fraud, mistake, duress and usury and any other defenses set
forth in section 558 of the Bankruptcy Code; (e) any state law
fraudulent transfer claim; and (f) any claim listed in the Plan
Supplement.
23. “Chapter 11 Cases” means
(a) when used with reference to a particular Debtor, the chapter 11 case
pending for that Debtor under chapter 11 of the Bankruptcy Code in the
Bankruptcy Court and (b) when used with reference to all Debtors, the
procedurally consolidated chapter 11 cases pending for the Debtors in the
Bankruptcy Court under Case No. 09-11233 (REG).
24. “CHCI” means the Non-Debtor
Affiliate Chemtura Holding Company, Inc.
25. “CHCI Preferred Stock” means
the 500 shares of preferred stock in CHCI, with a face preference value at
issuance of $1.1 billion, issued in favor of Great Lakes Chemical
Corporation.
26. “Chemtura Canada” means the
Non-Debtor Affiliate Chemtura Canada Company/Cie.
27. “Claim” means any claim
against a Debtor or, to the extent specifically referenced in the Plan, a
Non-Debtor Affiliate, as defined in section 101(5) of the Bankruptcy
Code.
28. “Claims Bar Date” means, as
applicable, (a) October 30, 2009 or (b) such other period of
limitation as may be specifically fixed by an order of the Bankruptcy Court for
the filing of certain Claims.
29. “Claims Objection Bar Date”
means, for each Claim, the later of (a) the Effective Date and (b) such
other period of limitation as may be specifically fixed by an order of the
Bankruptcy Court for objecting to certain Claims.
30. “Claims Register” means the
official register of Claims maintained by the Notice and Claims
Agent.
31. “Class” means a category of
Claims or Interests as set forth in Article
III.
32. “Company” means,
collectively, Chemtura Corporation and all of its direct and indirect affiliates
and subsidiaries, including Subsidiary Debtors and Non-Debtor
Affiliates.
33. “Confirmation” means the
entry of the Confirmation Order on the docket of the Chapter 11
Cases.
34. “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.
35. “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.
36. “Confirmation Order” means
the order of the Bankruptcy Court confirming the Plan pursuant to
section 1129 of the Bankruptcy Code.
37. “Consummation” means the
occurrence of the Effective Date.
3
38. “Contract Interest Rate
Procedures” means certain procedures by which any holder of an Unsecured
Claim may substantiate the existence of an existing contract that specifies the
payment of interest, in substantially the form approved by the Bankruptcy Court
before the Confirmation Hearing.
39. “Corporate Governance
Documents” means the New Certificates of Incorporation and the New
By-Laws, each of which shall be filed with the Bankruptcy Court in the Plan
Supplement.
40. “Creditors’ Committee” means
the statutory committee of unsecured creditors of the Debtors appointed in the
Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code by the
U.S. Trustee on March 26, 2009, membership of which was reconstituted on August
10, 2009 (Docket Nos. 895 and 897) and as may be further reconstituted from time
to time.
41. “Creditors’ Committee Action”
means the adversary proceeding [Adv. Case. No. 09-01394] commenced by the
Creditors’ Committee against the Prepetition Administrative Agent, as such
complaint and the parties thereto may be amended from time to time, seeking,
among other things, to avoid certain transfers as preferences and seeking
certain declaratory relief related to the Prepetition Secured Lender Claims
requiring, among other things, disgorgement of certain payments made to the
Prepetition Administrative Agent and unwinding the postpetition refinancing of
certain amounts outstanding under the Prepetition Security
Agreement.
42. “Cure Claim” means a Claim
based upon a monetary default, if any, by any Debtor on an Executory Contract or
Unexpired Lease at the time such contract or lease is assumed by such Debtor
pursuant to sections 365 or 1123 of the Bankruptcy Code.
43. “D&O Liability Insurance
Policies” means all insurance policies of any of the Debtors or
Reorganized Debtors for directors’, managers’ and officers’
liability.
44. “Debtor” means one of the
Debtors, in its individual capacity as a debtor and debtor in possession in the
Chapter 11 Cases.
45. “Debtors” means,
collectively: Chemtura Corporation; A&M Cleaning Products, LLC;
Aqua Clear Industries, LLC; ASCK, Inc.; ASEPSIS, Inc.; BioLab Company Store,
LLC; BioLab Franchise Company, LLC; BioLab, Inc.; BioLab Textile Additives, LLC;
CNK Chemical Realty Corporation; Crompton Colors Incorporated; Crompton Holding
Corporation; Crompton Monochem, Inc.; GLCC Laurel, LLC; Great Lakes Chemical
Corporation; Great Lakes Chemical Global, Inc.; GT Seed Treatment, Inc.;
HomeCare Labs, Inc.; ISCI, Inc.; Kem Manufacturing Corporation; Laurel
Industries Holdings, Inc.; Monochem, Inc.; Naugatuck Treatment Company;
Recreational Water Products, Inc.; Uniroyal Chemical Company Limited (Delaware);
Weber City Road LLC; WRL of Indiana, Inc; and, in the event it files a voluntary
petition for relief under chapter 11 of the Bankruptcy Code before the
Confirmation Date, Chemtura Canada.
46. “Diacetyl Claim Value” means
(a) the estimated aggregate liability of the Debtors in respect of Diacetyl
Claims as determined by the Bankruptcy Court through an estimation proceeding
before the Effective Date minus (b) Insurance
Proceeds, if any, available in respect of Diacetyl Claims as of the Effective
Date pursuant to (i) a separate settlement or agreement that has been
approved by the Bankruptcy Court as of the Effective Date or (ii) a Final
Order by the Bankruptcy Court or other court of competent
jurisdiction.
47. “Diacetyl Claims” means,
collectively, all Claims against any Debtor or any Non-Debtor Affiliate
resulting, directly or indirectly, from alleged injury from exposure to
diacetyl, acetoin and/or acetaldehyde, including all Claims for indemnification
or contribution relating to alleged injury from exposure to diacetyl, acetoin
and/or acetaldehyde.
48. “Diacetyl Reserve” means the
reserve to be created by the Debtors to hold a contribution of Cash from
Chemtura Corporation and Chemtura Canada in the amount of the Diacetyl Claim
Value, which reserve shall be held for the benefit of holders of Allowed
Diacetyl Claims for distribution according to the procedures set forth in Article
X.
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49. “Diacetyl Trust” means a
trust that the Debtors may, at their option, establish for the exclusive benefit
of the holders of Diacetyl Claims.
50. “DIP Agent” means
Citibank, N.A. or its duly appointed successor, in its capacity as
administrative agent under the DIP Loan Agreement.
51. “DIP Claims” means any Claim
derived from or based upon the DIP Loan Agreement, including the DIP Revolver
Claims and the DIP Term Claims.
52. “DIP Lenders” means the
banks, financial institutions and other lender parties to the DIP Loan Agreement
from time to time, each in their capacity as such.
53. “DIP Loan Agreement” means
that certain Amended and Restated Senior Secured Superpriority
Debtor-in-Possession Credit Agreement, dated as of February 3, 2010, among
Chemtura Corporation, as borrower, each of the other Debtors, as guarantors, the
DIP Agent and the DIP Lenders, as well as any other documents entered into in
connection therewith.
54. “DIP Revolver Claims” means
any Claim derived from or based upon the DIP Revolver Loan under the DIP Loan
Agreement.
55. “DIP Revolver Loan” means the
superpriority priming revolver loan and letter of credit facility up to an
aggregate principal amount of $150 million made available to the Debtors under
section 2.01(b) of the DIP Loan Agreement.
56. “DIP Term Claims” means any
Claim derived from or based upon the DIP Term Loan under the DIP Loan
Agreement.
57. “DIP Term Loan” means the
superpriority priming term loan facility in an aggregate principal amount of up
to $300 million made available to the Debtors under section 2.01(a) of the
DIP Loan Agreement.
58. “Disbursing Agent” means the
Reorganized Debtors or the Entity or Entities chosen by the Reorganized Debtors
to make or facilitate distributions pursuant to the Plan, including each of the
Indenture Trustees.
59. “Disclosure Statement” means
the Disclosure Statement for
the Joint Chapter 11 Plan of Chemtura Corporation et al., dated June 17,
2010, including all exhibits and schedules thereto and references therein that
relate to the Plan that is prepared, approved by order of the Bankruptcy Court
and distributed in accordance with such order of approval.
60. “Disputed” means, with
respect to any Claim or Interest, any Claim or Interest that is not yet
Allowed.
61. “Disputed Claims Reserve”
means the reserve to be created by the Debtors to hold a contribution of Cash
and New Common Stock, which reserve shall be held for the benefit of holders of
subsequently Allowed Claims for distribution according to the procedures set
forth in Article
VIII.
62. “Disputed Claims Reserve Periodic
Distributions” means, for each holder of an Interest in Class 13a for
Chemtura Corporation, such holder’s Pro Rata share of any supplemental
distributions in the amount of any reductions of Cash and New Common Stock held
in the Disputed Claims Reserve ordered by the Bankruptcy Court pursuant to the
procedures for Disputed Claims Reserve Periodic Distributions as set forth in
Section 8.5(b),
to the extent that all holders of Claims in the Participating Creditor Classes
(except holders of Claims that are Disputed Claims as of the date any motion for
approval of a Disputed Claims Reserve Periodic Distribution is filed) have been
paid in full, plus postpetition interest as applicable pursuant to Section
3.3(n)(i).
63. “Distribution Date” means any
of the Initial Distribution Date or the Periodic Distribution
Dates.
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64. “Distribution Record Date”
means, except with respect to publicly traded debt securities, the date that the
Confirmation Order is entered by the Bankruptcy Court.
65. “DTC” means The Depository
Trust Company.
66. “Effective Date” means the
first business day after which all provisions, terms and conditions specified in
Section 12.3
have been satisfied or waived pursuant to Section 12.5.
67. “Electing Creditors” means
the holders of Allowed Claims in the Participating Creditor Classes who, at the
time of voting on the Plan, make a binding election to seek to receive the
maximum available percentage of their recovery in the form of Cash or the
maximum available percentage of their recovery in the form of New Common
Stock.
68. “Electing Creditors’ Pool”
means the pool of Cash and New Common Stock that otherwise would be
distributable to the Electing Creditors.
69. “Emergence Deadline” means
November 15, 2010.
70. “Emergence Incentive Plan”
means payments on account of (a) any awards earned under the Bankruptcy Court’s
Order (A) Approving the
Debtors’ Key Employee Incentive Plan and (B) Authorizing the Debtors to
Honor Certain Prepetition Bonus Programs (Docket No. 847), as such awards
may be modified or implemented with the consent of the Creditors’ Committee and
the Ad Hoc Bondholders’ Committee, which consent shall not be unreasonably
withheld, on terms set forth in the Plan Supplement, and (b) any awards
earned under the Bankruptcy Court’s Order Approving the Debtors’ 2010
Key Employee Incentive Plan (Docket No. 2707), as such awards may be
modified or implemented with the consent of the Creditors’ Committee and the Ad
Hoc Bondholders’ Committee, which consent shall not be unreasonably withheld, on
terms set forth in the Plan Supplement.
71. “Entity” has the meaning set
forth in section 101(15) of the Bankruptcy Code.
72. “Environmental Claim” means
any Claim by a Governmental Unit against Chemtura Corporation or any of the
Subsidiary Debtors arising out of, related to or based upon federal or state
environmental laws or regulations, environmental orders, consent decrees and
other obligations in connection with (a) sites that are not part of the Debtors’
bankruptcy estates, including previously owned or operated sites that are no
longer owned or operated by the Debtors and third-party sites that have never
been owned or operated by the Debtors to which the Debtors or their predecessors
are alleged to have sent waste or other materials and (b) the Debtors’ owned or
operated sites solely to the extent that such Claims arise out of, relate to or
are based upon costs expended or paid by a Governmental Unit before the Petition
Date or penalties owing to a Governmental Unit for violations of environmental
laws or regulations that occurred before the Petition Date.
73. “Environmental Reserve” means
the reserve to be created by Chemtura Corporation and the Subsidiary Debtors to
hold a contribution of Cash from Chemtura Corporation and the Subsidiary Debtors
in an amount to be determined by the Bankruptcy Court or agreed to by the
Debtors (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld) and
the holders of Disputed Environmental Claims, which reserve shall be held for
the benefit of holders of Allowed Environmental Claims for distribution
according to the procedures set forth in Article
IX.
74. “Environmental Settlement Agreement” means any
settlement agreement that is entered into between any of the Debtors and a
Governmental Unit, is filed with the Bankruptcy Court on or before the
Confirmation Date, is subsequently approved by order of the Bankruptcy Court
pursuant to Bankruptcy Rule 9019 and arises out of, relates to, or is based upon
any federal or state environmental law.
75. “Environmental Trust” means a
trust that the Debtors may, at their option, establish for the exclusive benefit
of the holders of Environmental Claims.
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76. “Equity Committee” means the
official committee of equity security holders of the Debtors appointed in the
Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code by the
U.S. Trustee on December 29, 2009 (Docket No. 1676), membership of which was
reconstituted on January 7, 2010 and January 12, 2010 (Docket Nos. 1718 and
1748) and as may be further reconstituted from time to time.
77. “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.
78. “Exculpated Claim” means any
claim related to any act or omission in connection with, relating to or arising
out of the Debtors’ in or out of court restructuring efforts, the Chapter 11
Cases, 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 filing of the Chapter 11 Cases, the pursuit of
Confirmation, the pursuit of Consummation, the administration and implementation
of the Plan, including the issuance of Plan securities, or the distribution of
property under the Plan or any other related agreement; provided, however, that
Exculpated Claims shall not include any act or omission that is determined in a
Final Order to have constituted gross negligence, willful misconduct or
fraud. For the avoidance of doubt, no Cause of Action, obligation or
liability expressly set forth in or preserved by the Plan or the Plan Supplement
constitutes an Exculpated Claim.
79. “Exculpated Party” means each
of: (a) the Debtors, the Reorganized Debtors and their
Affiliates, (b) the Creditors’ Committee and the current and former members
thereof, in their capacity as such; (c) the Indenture Trustees in their capacity
as such; (d) the Ad Hoc Bondholders’ Committee and the members thereof, in their
capacity as such; (e) with respect to each of the foregoing Entities in
clauses (a) through (d), such Entities’ subsidiaries, affiliates, members,
officers, directors, agents, financial advisors, accountants, investment
bankers, consultants, attorneys, employees, partners, affiliates and
representatives, in each case only in their capacity as such; and (f) the PBGC
and its agents, attorneys and financial advisors.
80. “Exculpation” means the
exculpation provision set forth in Section 11.5
hereof.
81. “Executory Contract” means a
contract 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.
82. “Exit Credit Facility Agreement”
means one or more financing agreements to be executed by the Reorganized
Debtors on or before the Effective Date, providing for a senior secured
revolving credit facility and, if entered into, a senior secured or unsecured
term loan or notes, including any agreements, amendments, supplements or
documents related thereto, the substantially final form of which shall be filed
as part of the Plan Supplement.
83. “Exit Financing” means,
together, (a) a senior secured or unsecured term loan and/or the issuance
of senior secured or unsecured notes which, in the aggregate, have a principal
amount of $750 million and (b) a senior secured revolver facility up
to a principal amount of $275 million entered into pursuant to an Exit
Credit Facility Agreement.
84. “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 or seek certiorari has expired and no appeal or petition for certiorari
has been timely taken, or as to which any appeal that has been taken or any
petition for certiorari that has been or may be filed has been resolved by the
highest court to which the order or judgment could be appealed or from which
certiorari could be sought or the new trial, reargument or rehearing shall have
been denied, resulted in no modification of such order or has otherwise been
dismissed with prejudice.
85. “General Unsecured Claims”
means any Unsecured Claim against any Debtor, unless such Claim is: (a) a
2009 Notes Claim, (b) a 2016 Notes Claim, (c) a 2026 Notes Claim,
(d) a Diacetyl Claim, (e) an Environmental Claim, (f) a Prepetition
Unsecured Lender Claim, (g) an Unsecured Convenience Claim, (h) an
Intercompany Claim (i) an Administrative Claim, (j) a Priority Tax
Claim, (k) an Other Priority Claim, (l) a Claim Accrued for
Professional Compensation or (m) the portion of any Insured Claim that is not an
Insured Deficiency Claim.
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86. “Governmental Unit” means any
domestic, foreign, provincial, federal, state, local or municipal (a)
government, (b) governmental agency, commission, department, bureau, ministry or
other governmental entity, (c) natural resource trustee agency or (d)
any other governmental unit as defined in section 101(27) of the Bankruptcy
Code.
87. “Impaired” means any Claim or
Interest in an Impaired Class.
88. “Impaired Class” means a
Class that is impaired within the meaning of section 1124 of the Bankruptcy
Code. For the avoidance of doubt, Impaired Classes are Class 4a for
Chemtura Corporation, Class 4b for each of the applicable Subsidiary Debtors,
Classes 5, 6 and 11 for Chemtura Corporation and each of the applicable
Subsidiary Debtors, Class 7 for Chemtura Corporation and Great Lakes Chemical
Corporation, Classes 8 and 13a for Chemtura Corporation and Class 10 for
Chemtura Corporation and Chemtura Canada (in the event it becomes a Debtor
before the Confirmation Date). For the avoidance of doubt, the only
Impaired Class with respect to Chemtura Canada, in the event it becomes a Debtor
before the Confirmation Date, will be Class 10.
89. “Incentive Plans” means the
Emergence Incentive Plan and the New Incentive Plan.
90. “Indemnification Provision”
means each of the indemnification provisions, agreements or obligations
currently in place, whether in the bylaws, certificates of incorporation or
other formation documents in the case of a limited liability company, board
resolutions or employment contracts, for the Debtors and the current and former
directors, officers, members (including ex officio members),
employees, attorneys, other professionals and agents of the Debtors and such
current and former directors, officers and members’ respective
Affiliates.
91. “Indemnified Parties” means,
collectively, any Debtor and current and former director, officer, member
(including ex officio
members), employee, attorney, other professional and agent of the Debtors and
such current and former directors, officers and members’ respective Affiliates
who is the beneficiary of an Indemnification Provision.
92. “Indenture Trustees” means,
collectively, the 2009 Notes Indenture Trustee, the 2016 Notes Indenture Trustee
and the 2026 Notes Indenture Trustee.
93. “Indentures” means,
collectively, the 2009 Notes Indenture, the 2016 Notes Indenture and the 2026
Notes Indenture.
94. “Initial Distribution Date”
means the date occurring as soon as reasonably practicable after the Effective
Date when distributions under the Plan shall commence.
95. “Insurance Policies” means
any insurance policies, insurance settlement agreements, coverage-in-place
agreements or other agreements related to the provision of insurance entered
into by or issued to or for the benefit of any of the Debtors or their
predecessors.
96. “Insurance Coverage Action”
means any action brought before a court, arbitrator, or other tribunal seeking
determination of one or more causes of action, including declaratory relief,
indemnification, contribution, or an award of damages, arising out of or
relating to any of the Insurance Policies.
97. “Insurance Proceeds” means
the insurance proceeds available to the Debtors or holders of Insured Claims
under any of the Insurance Policies.
98. “Insured Claim” means any
Claim that is payable or subject to indemnification, in whole or in part, from
Insurance Proceeds under one or more of the Insurance Policies.
8
99. “Insured Deficiency Claim”
means the unsecured balance, if any, of an Insured Claim that remains
after deducting the amount of Insurance Proceeds available on account of such
Insured Claim.
100. “Insurer” means a
counterparty to any Insurance Policy that is not one of the Debtors, their
predecessors, or affiliates.
101. “Intercompany Claim” means
(a) any Claim held by a Debtor against another Debtor or (b) any Claim
held against a Debtor by a Non-Debtor Affiliate that is a direct or indirect
subsidiary of Chemtura Corporation.
102. “Interest” means any share of
common stock, preferred stock or other instrument evidencing an ownership
interest in any of the Debtors, whether or not transferable, and any option,
warrant or other right, contractual or otherwise, to acquire any such interest
in a Debtor that existed before the Effective Date, any phantom stock or other
similar stock unit provided pursuant to the Debtors’ prepetition employee
compensation programs and any Claim related to the purchase of interests subject
to subordination pursuant to section 510(b) of the Bankruptcy Code;
provided, however, that to the extent an Interest is subject to the compliance
with the terms of a prepetition contract or other agreement, any recovery under
the Plan on account of such Interest shall be subject to the terms of such
contract or agreement.
103. “Interim Compensation Order”
means the Order
Establishing Procedures for Interim Compensation and Reimbursement of Expenses
for Professionals (Docket No. 112).
104. “Lien” has the meaning set
forth in section 101(37) of the Bankruptcy Code.
105. “Lien Claim” means any
Secured Claim that is not: (a) a DIP Claim or (b) a Prepetition
Secured Lender Claim.
106. “Make-Whole Premium” means
the claim asserted by certain holders of 2016 Notes and the 2016 Notes Indenture
Trustee for obligations, if any, for payment of a make-whole premium or similar
damages or prepayment penalties as required in connection with the 2016 Notes
Indenture.
107. “Make-Whole Settlement Amount”
is $50 million.
108. “New Board” means, with
respect to each Reorganized Debtor and New Chemtura, the initial board of
directors of such Entity appointed as of the Effective Date, the members of
which shall be determined in accordance with Section 5.18.
109. “New By-Laws” means, with
respect to each Reorganized Debtor and New Chemtura, the new by-laws of such
Entity, the form of which shall be included in the Plan Supplement.
110. “New Certificate of
Incorporation” means, with respect to each Reorganized Debtor and New
Chemtura, the form of the initial certificate of incorporation of each such
Entity, the form of which shall be included in the Plan Supplement.
111. “New Chemtura” means
Reorganized Chemtura.
112. “New Chemtura Total Enterprise
Value” is $2.05 billion plus, except as otherwise agreed among the
Debtors, the Creditors’ Committee and the Ad Hoc Bondholders’ Committee in their
discretion, total Cash available to satisfy Allowed Unsecured Claims plus the
amount of Cash to be retained following the Effective Date (which is expected to
be approximately $125 million).
113. “New Common Stock” means a
certain number of common shares in the capital of New Chemtura authorized
pursuant to the Plan, of which up to 100 million shares shall be initially
issued and outstanding pursuant to the Plan as of the Effective
Date.
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114. “New Employment Agreements”
means employment agreements between the Debtors and certain individuals in the
Debtors’ senior management, the terms of which shall be included in the Plan
Supplement. The individuals and terms are to be agreed to prior to
the hearing on the Disclosure Statement.
115. “New Incentive Plan” means
the compensation program that will be implemented by the New Board of Chemtura
Corporation and will become effective upon the Effective Date, which shall
include a stock-based long-term incentive plan and may include other stock-based
compensation consistent with the New Employment Agreements that will be adopted
and become effective upon the Effective Date as well as a cash-based annual
incentive plan consistent with past practice, as to which awards are subject to
the approval of the New Board. Certain New Common Stock shall be
reserved for issuance under the New Incentive Plan, in addition to shares
reserved that may be issued pursuant to the Emergence Incentive Plan, as the
Emergence Incentive Plan may be modified, with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, which consent shall not be
unreasonably withheld, and which modification shall be disclosed in the Plan
Supplement. The terms of the New Incentive Plan shall be included in
the Plan Supplement. The reserve number and New Incentive Plan terms
are to be agreed to prior to the hearing on the Disclosure
Statement.
116. “No-Call Penalty” means the
claim asserted by certain holders of 2026 Notes and the 2026 Notes Indenture
Trustee for obligations, if any, for payment of damages or prepayment penalties
in connection with the 2026 Notes Indenture.
117. “No-Call Settlement Amount”
is $20 million.
118. “Non-Debtor Affiliate” means
any Entity that is either directly or indirectly a wholly-owned subsidiary of
Chemtura Corporation that is not or does not become, before the Confirmation
Date, a Debtor in the Chapter 11 Cases.
119. “Non-Qualified Pension Arrangements”
means the non-qualified pension and other deferred compensation
arrangements pursuant to which the Debtors provided benefits to certain
executive officers and former executive officers of the Debtors, predecessor
companies and other legacy entities whose liabilities and obligations were
assumed by the Debtors either contractually or by law, including through past
merger and acquisition activity, before the Petition Date.
120. “Notes” means, collectively,
the 2009 Notes, the 2016 Notes and the 2026 Notes.
121. “Notes Claims” means,
collectively, the 2009 Notes Claims, the 2016 Notes Claims and the 2026 Notes
Claims.
122. “Notice and Claims Agent”
means Kurtzman Carson Consultants LLC, located at 2335 Alaska Avenue, El
Segundo, California 90245, (866) 967-0678, retained as the Debtors’ notice,
claims and solicitation agent.
123. “Ordinary Course Professional
Order” means the Order
Authorizing the Debtors’ Retention and Compensation of Certain Professionals
Utilized in the Ordinary Course of Business (Docket No.
181).
124. “Other Priority Claim” means
any Claim accorded priority in right of payment under section 507(a) of the
Bankruptcy Code, other than: (a) an Administrative Claim or
(b) a Priority Tax Claim.
125. “Participating Creditor Classes”
means the Classes of Prepetition Unsecured Lender Claims, Notes Claims
and General Unsecured Claims (other than General Unsecured Claims against
Chemtura Canada, in the event it becomes a Debtor before the Confirmation Date),
the holders of which Claims shall receive distributions from the Unsecured
Distribution Pool.
126. “PBGC” means the Pension
Benefit Guaranty Corporation.
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127. “Periodic Distribution Date”
means, unless otherwise ordered by the Bankruptcy Court, the first business day
that is 120 days after the Initial Distribution Date, and for the first year
thereafter, the first business day that is 120 days after the immediately
preceding Periodic Distribution Date. After one year following the
Distribution Date, the Periodic Distribution Date will occur on the first
business day that is 180 days after the immediately preceding Periodic
Distribution Date.
128. “Person” has the meaning set
forth in section 101(41) of the Bankruptcy Code.
129. “Petition Date” means March
18, 2009.
130. “Plan” means this Joint Chapter 11 Plan of Chemtura
Corporation et al., including the Plan Supplement, which is incorporated
herein by reference.
131. “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 fourteen days before the
Confirmation Hearing or such later date as may be approved by the Bankruptcy
Court, and additional documents filed with the Bankruptcy Court before the
Effective Date as amendments, modifications or supplements to the Plan
Supplement, including the following: (a) to the extent known, the
identity of the members of the New Boards of New Chemtura and each of the
Reorganized Debtors, as well as the nature and amount of compensation for any
member of the New Board who is an “insider” under section 101(31) of the
Bankruptcy Code; (b) a list of Executory Contracts and Unexpired Leases to be
assumed, together with the proposed Cure Claim amount for each such contract;
(c) a list of Executory Contracts and Unexpired Leases to be rejected; (d) a
list of retained Causes of Action; (e) the form of the Exit Credit Facility
Agreement and any other indenture or similar operative credit document setting
forth the terms of the Exit Financing; (f) the Corporate Governance Documents;
(g) the elected treatment of Intercompany Claims; (h) the terms of the New
Incentive Plan, the Emergence Incentive Plan and the New Employment Agreements;
(i) the terms of the coverage under any new D&O Liability Insurance
Policies, including the policy or policies providing tail coverage; (j) details
regarding reasonable and customary registration rights; (k) to the extent the
Disbursing Agent includes an Entity or Entities other than the Reorganized
Debtors, the identity of such Entity or Entities; and (l) the Rights Offering
Instructions and Exercise Forms
132. “Prepetition Administrative Agent”
means Citibank, N.A. and/or its duly appointed successor, as
administrative agent under the Prepetition Credit Agreement.
133. “Prepetition Credit Agreement”
means the Credit Agreement, dated as of July 1, 2005, among Chemtura
Corporation, as borrower, each of the guarantors named therein, the lenders
party thereto and the Prepetition Administrative Agent, as amended by the
Amended and Restated Credit Agreement, dated as of July 31, 2007, together with
any guarantees and other documents entered into in connection therewith
including the Prepetition Security Agreement.
134. “Prepetition Lenders” means
those lenders party to the Prepetition Credit Agreement from time to
time.
135. “Prepetition Secured Lender
Claims” means any Claim derived from or based upon the Prepetition Credit
Agreement that is Secured by the “collateral,” as such term is defined in
section 2 of the Prepetition Security Agreement, including unpaid
reasonable, documented and necessary out-of-pocket fees and expenses of the
Prepetition Administrative Agent through and including the Effective Date, all
to the extent not previously paid by any of the Debtors.
136. “Prepetition Security Agreement”
means the Second Amended and Restated Pledge and Security Agreement,
dated as of December 30, 2008, among certain of the Debtors, as grantors, and
Citibank, N.A., as agent.
137. “Prepetition Unsecured Lender
Claims” means any Claim derived from or based upon the Prepetition Credit
Agreement other than the Prepetition Secured Lender Claims.
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138. “Priority Tax Claim” means
any Claim of a Governmental Unit of the kind specified in section 507(a)(8)
of the Bankruptcy Code.
139. “Pro Rata” means, as
applicable, the proportion that an Allowed Claim or Interest in a particular
Class bears to the aggregate amount of Allowed Claims or Interests in that
Class, or the proportion that all Allowed Claims or Interests in a particular
Class bear to the aggregate amount of Allowed Claims or Interests in such Class
and other Classes entitled to share in the same recovery under the
Plan.
140. “Professional” means an
Entity: (a) retained pursuant to a Final Order in accordance
with sections 327, 363 or 1103 of the Bankruptcy Code and to be compensated for
services rendered before or on the Confirmation Date, pursuant to sections 327,
328, 329, 330, 363 and 331 of the Bankruptcy Code or (b) awarded
compensation and reimbursement by the Bankruptcy Court pursuant to
section 503(b)(4) of the Bankruptcy Code.
141. “Proof of Claim” means a
proof of Claim filed against any of the Debtors in the Chapter 11
Cases.
142. “Reinstated” means, with
respect to Claims and Interests, that the Claim or Interest shall be rendered
unimpaired in accordance with section 1124 of the Bankruptcy Code.
143. “Rejection Claim” means a
Claim arising from the rejection of an Executory Contract or Unexpired Lease
pursuant to section 365 of the Bankruptcy Code.
144. “Releasing Parties” means all
Entities who have held, hold or may hold Claims or Interests that have been
released pursuant to Sections 11.2,
11.3 or 11.4, discharged
pursuant to Section 11.7 or
are subject to exculpation pursuant to Section 11.6.
145. “Released Party” means each
of: (a) the Debtors, New Chemtura and the other Reorganized Debtors; (b) the
current and former directors and officers of the Debtors; (c) the Creditors’
Committee and the current and former members thereof, in their capacity as such;
(d) the Indenture Trustees; (e) the Ad Hoc Bondholders’ Committee and the
current members thereof, in their capacity as such; (f) the DIP Agent;
(g) the DIP Lenders; and (h) with respect to each of the foregoing
Entities in clauses (a) through (g), such Entities’ subsidiaries, affiliates,
members, officers, directors, agents, financial advisors, accountants,
investment bankers, consultants, attorneys, employees, partners and
representatives, in each case, only in their capacity as such; and (i) the PBGC
and its agents, attorneys and financial advisors.
146. “Reorganized” means, with
respect to the Debtors, any Debtor or any successor thereto, by merger,
consolidation or otherwise, on or after the Effective Date.
147. “Rights” means the rights to
subscribe for and acquire on the Effective Date New Common Stock in exchange for
$100 million in Cash, with such subscription and acquisition to be at a price
consistent with the New Chemtura Total Enterprise Value, and in accordance with
the other terms and conditions of the Rights Offering as set forth in the Rights
Offering Procedures.
148. “Rights Offering” means the
offering of the Rights by the Debtors to the holders of Interests in Class 13a
for Chemtura Corporation, to the extent such Class votes to accept the
Plan.
149. “Rights Offering Deadline”
means 5:00 p.m. (EDT) on the date that is 30 days after the Debtors
commence the Rights Offering in accordance with the Rights Offering
Procedures.
150. “Rights Offering Procedures”
means certain procedures setting forth the terms and conditions of the Rights
Offering, in substantially the form annexed hereto as Exhibit
1.
151. “Rights Offering Record Date”
means August 24, 2010.
12
152. “Schedules” means,
collectively, the schedules of assets and liabilities, schedules of Executory
Contracts and Unexpired Leases and statements of financial affairs filed by the
Debtors pursuant to section 521 of the Bankruptcy Code and in substantial
accordance with the Official Bankruptcy Forms.
153. “Secured” means, when
referring to a Claim: (a) secured by a Lien on property in which
the Estate of the Debtor against which the Claim is asserted has an interest,
which Lien is valid, perfected and enforceable pursuant to applicable law or by
reason of a Bankruptcy Court order, to the extent of the value of the creditor’s
interest in the Estate’s interest in such property as determined pursuant to
section 506(a) of the Bankruptcy Code; (b) subject to setoff pursuant to
section 553 of the Bankruptcy Code, to the extent of the value of the
property subject to setoff; or (c) otherwise Allowed pursuant to the Plan
as a Secured Claim.
154. “Shortfall Adjustment” means
the reduction to the distributions to certain Classes pursuant to the Plan, in
the following order: (a) first, distributions to the holders of 2026 Notes
Claims on account of the No-Call Settlement Amount; (b) second, distributions to
the holders of 2016 Notes Claims on account of the Make-Whole Settlement Amount;
(c) third, on a pro rata basis, postpetition interest payments payable to the
General Unsecured Claims against Chemtura Corporation and the 2026 Notes Claims,
and (d) fourth, on a pro rata basis, payments payable on account of the General
Unsecured Claims against Chemtura Corporation and 2026 Notes
Claims.
155. “Shortfall Readjustment”
means the increase in the distributions to certain Classes pursuant to
the Plan, in the following order: (d) first, on a pro rata basis, payments
payable on account of the General Unsecured Claims against Chemtura Corporation
and 2026 Notes Claims; (b) second, on a pro rata basis, postpetition interest
payments payable to the General Unsecured Claims against Chemtura Corporation
and the 2026 Notes Claims; (c) third, distributions to the holders of 2016 Notes
Claims on account of the Make-Whole Settlement Amount; and (d) fourth,
distributions to the holders of 2026 Notes Claims on account of the No-Call
Settlement Amount.
156. “Subsidiary Debtors” means all
of the Debtors other than Chemtura Corporation and Chemtura Canada (in the event
it becomes a Debtor before the Confirmation Date).
157. “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.
158. “Unimpaired” means any Claim
or Interest that is not designated as Impaired. For the avoidance of
doubt, Unimpaired Classes are Classes 1, 2, 3 and 9 for each of the applicable
Debtors and Class 4c for Chemtura Canada (in the event it becomes a Debtor
before the Confirmation Date).
159. “Unsecured Claims” means any
unsecured claim against any Debtor including (a) a General Unsecured Claim,
(b) a Prepetition Unsecured Lender Claim, (c) a 2009 Notes Claim, (d) a
2016 Notes Claim, (e) a 2026 Notes Claim, (f) a Diacetyl Claim, (g) an
Environmental Claim, (h) an Unsecured Convenience Claim or (i) an Insured
Deficiency Claim.
160. “Unsecured Convenience Claims”
means any Unsecured Claim against any of the Debtors, except Chemtura
Canada (in the event it becomes a Debtor before the Confirmation Date), that,
but for being defined as an Unsecured Convenience Claim, would be a General
Unsecured Claim, and either (a) is Allowed in an amount of $50,000 or less or
(b) is Allowed in an amount greater than $50,000, but is subject to an
irrevocable election by the holder thereof to reduce the Allowed amount of the
Claim to $50,000 for the purpose of rendering the Claim an Unsecured Convenience
Claim.
161. “Unsecured Distribution Pool”
means the pool from which distributions shall be made to the Participating
Creditor Classes, which pool shall be funded with: (a) available distributable
Cash following funding of the Diacetyl Reserve, the Environmental Reserve and
payment to all holders of Allowed Unsecured Convenience Claims, (b) all proceeds
of the Rights Offering, to the extent that Class 13a for Chemtura Corporation
votes to accept the Plan and holders of Interests in such Class elect to
participate in the Rights Offering and (c) the New Common Stock, subject to
reduction solely to the extent that Class 13a for Chemtura Corporation votes to
accept the Plan in the amount of the 5% of the New Common Stock made available
to holders of Interests in such Class and up to $100 million in value of New
Common Stock made available to holders of Interests in such Class in the form of
the Rights Offering, and subject to dilution for the Incentive
Plans.
13
162. “U.S. Pension Plans” means
the tax-qualified defined benefit pension plans maintained by Chemtura
Corporation.
163. “U.S. Trustee” means the
United States Trustee for the Southern District of New York.
164. “Waiver Rate” means the
interest rate applicable with respect to the Prepetition Credit Agreement as
determined pursuant to section 2 of the Waiver and Amendment No. 2 to the
Amended and Restated Credit Agreement, dated December 30, 2008, by and among
Chemtura Corporation, as borrower, each of the guarantors named therein, the
lenders party thereto and the Prepetition Administrative Agent.
1.2
|
Additional Defined
Terms
|
In the event Chemtura Canada becomes a
Debtor before the Confirmation Date, the following defined terms shall apply in
addition to (or, where applicable, in the stead of) the defined terms set forth
in Section
1.1:
1. “Canadian Case” means the
recognition proceedings commenced by Chemtura Canada under Part IV of the Companies’ Creditors Arrangement
Act in the Canadian Court.
2. “Canadian Confirmation Order”
means the order of the Canadian Court, which shall, among other things, order
and declare that the Confirmation Order and this Plan, as they relate to
Chemtura Canada, are recognized and shall be implemented and effective in Canada
in accordance with their terms.
3. “Canadian Court” means the
Ontario Superior Court of Justice (Commercial List).
4. “Canadian Recognition Order”
means the order of the Canadian Court, which shall, among other things, order
and declare that the Chapter 11 Case for Chemtura Canada is recognized and given
full force and effect in Canada.
5. “Chemtura Canada” means
Chemtura Canada Company/Cie, in its capacity as a Debtor.
1.3
|
Rules of
Interpretation
|
For
purposes of this Plan: (a) 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; (b) 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; (c) any reference herein to an
existing document or exhibit having been filed or to be filed shall mean that
document or exhibit, as it may thereafter be amended, modified or supplemented;
(d) unless otherwise specified, all references herein to “Articles” are
references to Articles hereof or hereto; (e) unless otherwise stated, the words
“herein,” “hereof” and ‘‘hereto’’ refer to the Plan in its entirety rather than
to a particular portion of the Plan; (f) 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 hereof; (g) the rules of construction set
forth in section 102 of the Bankruptcy Code shall apply; and (h) any
immaterial effectuating provisions may be interpreted by the Reorganized Debtors
in a manner that is consistent with the overall purpose and intent of the Plan
all without further Bankruptcy Court order.
1.4
|
Computation of
Time
|
The
provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of
time prescribed or allowed herein.
14
1.5
|
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 New York, 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 New York shall be
governed by the laws of the jurisdiction of incorporation of the applicable
Debtor or Reorganized Debtor, as applicable.
1.6
|
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.
1.7
|
Reference to the
Debtors or the Reorganized
Debtors
|
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.
ARTICLE
II
ADMINISTRATIVE
CLAIMS, PRIORITY TAX CLAIMS, DIP CLAIMS AND STATUTORY FEES
In
accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims, Priority Tax Claims and DIP Claims have not been
classified and, thus, are excluded from the Classes of Claims and Interests set
forth in Article
III and shall receive the following treatment:
2.1
|
Administrative
Claims
|
|
(a)
|
Administrative
Claims
|
Except
with respect to Administrative Claims that are Claims for Accrued Professional
Compensation and except to the extent that a holder of an Allowed Administrative
Claim and the applicable Debtor (with the consent of the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee, which consent shall not be unreasonably
withheld) or Reorganized Debtor agrees to less favorable treatment to such
holder, each holder of an Allowed Administrative Claim shall be paid in full, in
Cash, on the later of: (a) the Initial Distribution Date; (b) the first date
such Administrative Claim is Allowed or as soon as reasonable practicable
thereafter; and (c) the date such Allowed Administrative Claim becomes due and
payable by its terms, or as soon thereafter as is practicable.
|
(b)
|
Professional
Compensation
|
|
(i)
|
Claims
for Accrued Professional
Compensation
|
Professionals
or other Entities asserting a Claim for Accrued Professional Compensation for
services rendered before the Effective Date must file and serve on the Debtors
and such other Entities who are designated by the Bankruptcy Rules, the
Confirmation Order, the Interim Compensation Order or other order of the
Bankruptcy Court an application for final allowance of such Claim for Accrued
Professional Compensation no later than 45 days after the Effective Date; provided that the Reorganized
Debtors may pay retained Professionals or other Entities in the ordinary course
of business after the Effective Date without the need to file a final fee
application. Objections to any Claim for Accrued Professional
Compensation must be filed and served on the Reorganized Debtors, the Creditors’
Committee, the U.S. Trustee and the requesting party no later than 75 days after
the Effective Date.
15
|
(ii)
|
Post-
Effective Date Fees and Expenses
|
Upon the
Effective 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 for services rendered or expenses
incurred after the Effective Date in the ordinary course of business, including
fees and expenses for the Creditors’ Committee’s Professionals for services
rendered post-Effective Date as contemplated by the Plan, if any, without any
further notice to any party or action, order or approval of the Bankruptcy
Court.
|
(c)
|
Administrative
Claim Bar Date
|
Except as
otherwise provided in this Section 2.1,
requests for payment of Administrative Claims must be filed and served on the
Reorganized Debtors pursuant to the procedures specified in the Confirmation
Order and the notice of entry of the Confirmation Order no later than 60 days
after the Effective Date. Holders of Administrative Claims that are
required to, but do not, file and serve a request for payment of such
Administrative Claims by such date shall be forever barred, estopped and
enjoined from asserting such Administrative Claims against the Debtors or
Reorganized Debtors or their property and such Administrative Claims shall be
deemed discharged as of the Effective Date. Objections to such
requests, if any, must be filed and served on the Reorganized Debtors and the
requesting party no later than 90 days after the Effective
Date. Notwithstanding the foregoing, no request for payment of an
Administrative Claim need be filed with respect to an Administrative Claim
previously Allowed by Final Order, including all Administrative Claims expressly
Allowed under this Plan.
2.2
|
Priority Tax
Claims
|
Each
holder of an Allowed Priority Tax Claim due and payable on or before the
Effective Date shall receive, on the Distribution Date, at the option of the
Debtors (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld), one
of the following treatments: (1) Cash in an amount equal to the amount of such
Allowed Priority Tax Claim, plus interest at the rate determined under
applicable nonbankruptcy law and to the extent provided for by section 511 of
the Bankruptcy Code; (2) Cash in an aggregate amount of such Allowed Priority
Tax Claim payable in installment payments over a period of time not to exceed
five years after the Petition Date, pursuant to section 1129(a)(9)(C) of
the Bankruptcy Code, plus interest at the rate determined under applicable
nonbankruptcy law and to the extent provided for by section 511 of the
Bankruptcy Code; or (3) such other treatment as may be agreed upon by such
holder and the Debtors (with the consent of the Creditors’ Committee and the Ad
Hoc Bondholders’ Committee, which consent shall not be unreasonably withheld) or
otherwise determined upon an order of the Bankruptcy Court.
2.3
|
DIP
Claims
|
|
(a)
|
DIP
Revolver Claims
|
The DIP
Revolver Claims shall be Allowed and deemed to be Allowed Claims in the full
amount due and owing under the DIP Revolver Loan, including principal, interest,
reasonable fees, reasonable expenses and issued, outstanding and undrawn letters
of credit, in each case to the extent required to be paid under the terms of the
DIP Loan Agreement. Holders of DIP Revolver
Claims will receive, on or as soon as practicable after the Initial Distribution
Date, as indefeasible payment in full and final satisfaction of the DIP Revolver
Claims, Cash in the full Allowed amount of their Claims, provided, however, that
any DIP Revolver Claims representing unfunded letters of credit shall be deemed
fully satisfied without any payment in Cash upon such letters of credit being
replaced by new letters of credit issued under the Exit Financing.
|
(b)
|
DIP
Term Claims
|
The DIP
Term Claims shall be Allowed and deemed to be Allowed Claims in the amount of
$300 million, plus contingent and unliquidated claims arising under the DIP
Refinancing Facility. Holders of DIP Term Claims will receive, on or
as soon as practicable after the Initial Distribution Date, as indefeasible
payment in full and final satisfaction of the DIP Term Claims, Cash in the full
Allowed amount of their Claims.
16
2.4
|
Statutory
Fees
|
The
Debtors shall pay in full, in Cash, any fees due and owing to the U.S. Trustee,
including quarterly fees payable under 28 U.S.C. §1930(a)(6), plus interest due
and payable under 31 U.S.C. § 3717 (if any), on all disbursements,
including Plan payments and disbursements in and outside the ordinary course of
the Debtors’ business at the time of Confirmation. On and after the
Effective Date, the Reorganized Debtors shall pay the applicable U.S. Trustee
fees for each of the Reorganized Debtors when due in the ordinary course until
such time as the Bankruptcy Court enters a final decree in such Reorganized
Debtor’s Chapter 11 Case.
2.5
|
Administrative Claims,
Priority Tax Claims and DIP Claims Against Chemtura
Canada
|
This Plan
constitutes a pre-arranged Plan for Chemtura Canada in the event it becomes a
Debtor before the Confirmation Date. For the avoidance of doubt, in
the event Chemtura Canada becomes a Debtor before the Confirmation Date, each
holder of an Administrative Claim, Priority Tax Claim or DIP Claim against
Chemtura Canada (to the extent there are any such Claims against Chemtura
Canada) shall receive the same treatment as the treatment for holders of
Administrative Claims, Priority Tax Claims and DIP Claims, respectively, as set
forth in this Article
II.
ARTICLE
III
CLASSIFICATION
AND TREATMENT OF CLAIMS AND INTERESTS
3.1
|
Classification of
Claims and Interests
|
Pursuant
to section 1122 of the Bankruptcy Code, set forth below is a designation of
Classes of Claims and Interests. A Claim or Interest is placed in a
particular Class for the purposes of voting on the Plan and receiving
distributions pursuant to the Plan only to the extent that such Claim or
Interest has not been paid, released, withdrawn or otherwise settled before the
Effective Date.
3.2
|
Summary of
Classification
|
This Plan
constitutes a separate chapter 11 plan of reorganization for each Debtor, each
of which shall include the classifications set forth below (and described in
more detail in Section 3.3
below), except that Class 7 shall be applicable only to Chemtura Corporation and
Great Lakes Chemical Corporation, Class 8 shall be applicable only to Chemtura
Corporation and Class 10 shall be applicable only to Chemtura Corporation and
Chemtura Canada (in the event it becomes a Debtor before the Confirmation
Date). For the avoidance of doubt, to the extent a Class contains
Allowed Claims or Interests with respect to a particular Debtor, such Class is
designated with respect to such Debtor. To the extent there are no
Allowed Claims or Interests with respect to a particular Debtor, such Class is
deemed to be omitted with respect to such Debtor.
The
following chart represents the general classification of Claims and Interests
for each Debtor pursuant to the Plan:
Class
|
Claim
|
Status
|
Voting
Rights
|
|||
1
|
Prepetition
Secured Lender Claims
|
Unimpaired
|
Permitted
to Vote on a Provisional Basis1
|
|||
2
|
|
Lien
Claims
|
|
Unimpaired
|
|
Deemed
to Accept
|
1
|
Although
the Debtors believe that Class 1 holders of Prepetition Secured
Lender Claims are Unimpaired by the terms of the Plan and therefore are
deemed to accept the Plan pursuant to 1126(f) of the Bankruptcy Code, such
Class shall be permitted to vote to accept or reject the Plan on a
provisional basis. The Debtors, the Creditors’ Committee, the
Ad Hoc Bondholders’ Committee and the Prepetition Administrative Agent
reserve all rights with respect to whether holders of Class 1
Prepetition Secured Lender Claims are in fact Unimpaired by the terms of
the Plan.
|
17
Class
|
Claim
|
Status
|
Voting
Rights
|
|||
3
|
Other
Priority Claims
|
Unimpaired
|
Deemed
to Accept
|
|||
4a
|
General
Unsecured Claims Against Chemtura Corporation
|
Impaired
|
Entitled
to Vote
|
|||
4b
|
General
Unsecured Claims Against the Subsidiary Debtors
|
Impaired
|
Entitled
to Vote
|
|||
4c
|
General
Unsecured Claims Against Chemtura Canada
|
Unimpaired
|
Deemed
to Accept
|
|||
5
|
Prepetition
Unsecured Lender Claims
|
Impaired
|
Entitled
to Vote
|
|||
6
|
2016
Notes Claims
|
Impaired
|
Entitled
to Vote
|
|||
7
|
2009
Notes Claims
|
Impaired
|
Entitled
to Vote
|
|||
8
|
2026
Notes Claims
|
Impaired
|
Entitled
to Vote
|
|||
9
|
Unsecured
Convenience Claims
|
Unimpaired
|
Deemed
to Accept
|
|||
10
|
Diacetyl
Claims
|
Impaired
|
Entitled
to Vote
|
|||
11
|
Environmental
Claims
|
Impaired
|
Entitled
to Vote
|
|||
12
|
Intercompany
Claims
|
Impaired
|
Deemed
to Accept
|
|||
13a
|
Interests
in Chemtura Corporation
|
Impaired
|
Entitled
to Vote
|
|||
13b
|
|
Interests
in the Subsidiary Debtors and Chemtura Canada
|
|
Unimpaired
/ Impaired
|
|
Deemed
to Accept
|
3.3
|
Treatment of Claims
and Interests
|
To the
extent a Class contains Allowed Claims or Interests with respect to any Debtor,
the classification of Allowed Claims and Interests is specified
below.
|
(a)
|
Treatment
of Class 1 - Prepetition Secured Lender
Claims.
|
|
(i)
|
Allowance: The
Prepetition Secured Lender Claims against Chemtura Corporation and each of
the Subsidiary Debtors shall be Allowed in the amount of $52.7 million
less any amounts attributable to letters of credit that expire undrawn
before the Effective Date, plus unpaid postpetition interest, if any, at
the Waiver Rate and unpaid reasonable, documented and necessary
out-of-pocket fees and expenses of the Prepetition Administrative Agent
through and including the Effective Date. Holders of Class 1
Prepetition Secured Lender Claims are not entitled to and will not receive
default interest in addition to interest at the Waiver
Rate.
|
|
(ii)
|
Treatment: Each
holder of a Prepetition Secured Lender Claim will receive, on the
Effective Date, in full and final satisfaction of its Prepetition Secured
Lender Claim, payment in full in
Cash.
|
|
(iii)
|
Voting: Class
1 for Chemtura Corporation and each of the Subsidiary Debtors is
Unimpaired; however, holders of Class 1 Prepetition Secured Lenders
Claims shall be permitted to vote to accept or reject the Plan on a
provisional basis. The Debtors, the Creditors’ Committee, the
Ad Hoc Bondholders’ Committee and the Prepetition Administrative Agent
reserve all rights with respect to whether holders of Class 1
Prepetition Secured Lender Claims are in fact Unimpaired by the terms of
the Plan.
|
|
(b)
|
Treatment
of Class 2 - Lien Claims.
|
|
(i)
|
Treatment: On
or as soon as practicable after the Initial Distribution Date, each holder
of an Allowed Claim in Class 2 for each of the applicable Debtors, in full
and final satisfaction of its Secured Claim, shall receive one of the
following treatments at the option of the applicable Debtor (with the
consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee,
which consent shall not be unreasonably
withheld):
|
18
|
A.
|
payment
of the Allowed Claim in full in Cash on the later of the Initial
Distribution Date or as soon as practicable after a particular Claim
becomes Allowed and, to the extent such allowed Lien Claim is oversecured,
interest as applicable pursuant to Section 3.3(n)(i) from
and after the later of the date such Lien Claim (I) became due in the
ordinary course of business or (II) was invoiced to the applicable
Debtor;
|
|
B.
|
such
other treatment as may be agreed to by the applicable Debtor and the
holder; or
|
|
C.
|
the
holder shall retain its Lien on such property and be
Reinstated.
|
|
(ii)
|
Voting: Class
2 for each of the applicable Debtors is Unimpaired, and holders of Class 2
Claims are conclusively presumed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code. Therefore, holders
of Class 2 Lien Claims are not entitled to vote to accept or reject the
Plan.
|
|
(c)
|
Treatment
of Class 3 - Other Priority Claims.
|
|
(i)
|
Treatment: Each
holder of an Allowed Claim in Class 3 for each of the applicable Debtors
shall receive, on or as soon as reasonably practicable after the Initial
Distribution Date, in full and final satisfaction of its Claim, one of the
following treatments on account of such Claim, determined at the option of
the applicable Debtor (with the consent of the Creditors’ Committee and
the Ad Hoc Bondholders’ Committee, which consent shall not be unreasonably
withheld):
|
|
A.
|
payment
of the Allowed Claim in full in Cash, plus interest as applicable pursuant
to Section 3.3(n)(i), on
the later of the Initial Distribution Date or as soon as practicable after
such claim becomes Allowed or
|
|
B.
|
such
other treatment as may be agreed to by the applicable
Debtor.
|
|
(ii)
|
Voting: Class
3 for each of the applicable Debtors is Unimpaired, and holders of Class 3
Claims are conclusively presumed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code. Therefore, holders
of Class 3 Other Priority Claims are not entitled to vote to accept or
reject the Plan.
|
|
(d)
|
Treatment
of Class 4 - General Unsecured
Claims.
|
|
(i)
|
Treatment of Class 4a for
Chemtura Corporation: Each holder of an Allowed Claim in
Class 4a for Chemtura Corporation, in full and final satisfaction of its
Claim, on or as soon as reasonably practicable after the Initial
Distribution Date: (A) shall receive its Pro Rata share (determined with
respect to all Claims in Class 4a for Chemtura Corporation and all Claims
in Class 8) of the Cash and New Common Stock available in the Unsecured
Distribution Pool following payment in full of (or appropriate funding of
the Disputed Claims Reserve for) all Claims in Classes 4, 5, 6 and 7 for
each of the Subsidiary Debtors, with the distribution of New Common Stock
subject to dilution for the Incentive Plans, up to the full amount of its
Allowed Claim, plus postpetition interest as applicable pursuant to Section 3.3(n)(i);
or (B) will be Reinstated, unless the holder and Chemtura Corporation
(with the consent of the Creditors’ Committee and the Ad Hoc Bondholders’
Committee, which consent shall not be unreasonably withheld) otherwise
agree to a different treatment. Each payment of Cash and New
Common Stock shall have an aggregate value equal to the full amount of
such holder’s Allowed Claim plus postpetition interest, as applicable, in
each case, subject to the applicable Shortfall Adjustment, if any, or the
applicable Shortfall Readjustment, if
any.
|
19
To the
extent that insufficient value is available in the Unsecured Distribution Pool
to pay all holders of Allowed Claims in Class 4a for Chemtura Corporation, in
full, plus postpetition interest as applicable pursuant to Section 3.3(n)(i),
each holder shall be entitled to payment pursuant to Section 8.5 of
its Pro Rata share (determined with respect to all Claims in Class 4a for
Chemtura Corporation and in Class 8), in accordance with the Shortfall
Adjustment and Shortfall Readjustment, if any, of the excess amounts of Cash and
New Common Stock, if any, held in the Disputed Claims Reserve, Diacetyl Reserve
and Environmental Reserve following liquidation of all Disputed Claims, Diacetyl
Claims and Environmental Claims and payment of all formerly Disputed Claims that
have become Allowed.
|
(ii)
|
Treatment of Class 4b for each
of the applicable Subsidiary Debtors: Each holder of an
Allowed Claim in Class 4b for each of the applicable Subsidiary Debtors,
in full and final satisfaction of its Claim, on or as soon as reasonably
practicable after the Initial Distribution Date: (A) shall
receive payment from the Cash and New Common Stock available in the
Unsecured Distribution Pool, with the distribution of New Common Stock
subject to dilution for the Incentive Plans, in the full amount of its
Allowed Claim, plus postpetition interest as applicable pursuant to Section 3.3(n)(i);
or (B) will be Reinstated, unless the holder and the applicable Debtor
(with the consent of the Creditors’ Committee and the Ad Hoc Bondholders’
Committee, which consent shall not be unreasonably withheld) otherwise
agree to a different treatment.
|
|
(iii)
|
Treatment of Class 4c for
Chemtura Canada: Each holder of a Claim in Class 4c for
Chemtura Canada (in the event it becomes a Debtor before the Confirmation
Date) shall, unless the holder of such Claim and Chemtura Canada (with the
consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee,
which consent shall not be unreasonably withheld) otherwise agree to a
different treatment, and unless otherwise satisfied pursuant to an order
of the Bankruptcy Court before the Initial Distribution Date, be paid in
full, in Cash, on the later of: (A) the Initial Distribution Date; (B) the
first date such Claim is Allowed or as soon as reasonable practicable
thereafter; and (C) the date such Allowed Claim becomes due and payable by
its terms, or as soon thereafter as is
practicable.
|
|
(iv)
|
Voting for Class 4a for
Chemtura Corporation: Class 4a for Chemtura Corporation
is Impaired. Therefore, holders of Class 4a General Unsecured
Claims are entitled to vote to accept or reject the
Plan.
|
|
(v)
|
Voting for Class 4b for each
of the applicable Subsidiary Debtors: Class 4b for each
of the applicable Subsidiary Debtors is Impaired. Therefore,
holders of Class 4b General Unsecured Claims are entitled to vote to
accept or reject the Plan.
|
|
(vi)
|
Voting for Class 4c for
Chemtura Canada: Class 4c for Chemtura Canada (in the
event it becomes a Debtor before the Confirmation Date) is Unimpaired, and
holders of Class 4c Claims against Chemtura Canada are conclusively
presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code. Therefore, holders of Class 4c General
Unsecured Claims against Chemtura Canada (in the event it becomes a Debtor
before the Confirmation Date) are not entitled to vote to accept or reject
the Plan.
|
|
(vii)
|
Election for Class 4a for
Chemtura Corporation and for Class 4b for each of the applicable
Subsidiary Debtors: Each holder of an Allowed Claim in
Class 4a for Chemtura Corporation and Class 4b for each of the applicable
Subsidiary Debtors shall have the right to make a binding election to seek
to receive its recovery in the form of the maximum available percentage of
Cash or the maximum available percentage of New Common Stock, to the
extent such recovery is available from the Electing Creditors’ Pool, as
described in Section 5.9.
|
20
|
(e)
|
Treatment
of Class 5 - Prepetition Unsecured Lender
Claims.
|
|
(i)
|
Allowance: The
Prepetition Unsecured Lender Claims against Chemtura Corporation and each
of the Subsidiary Debtors shall be Allowed in the amount of $118.1 million
less any amounts attributable to letters of credit that expire undrawn
before the Effective Date, plus unpaid postpetition interest, if any, at
the Waiver Rate. Holders of Class 5 Prepetition Unsecured
Lender Claims are not entitled to and will not receive default interest in
addition to interest at the Waiver
Rate.
|
|
(ii)
|
Treatment: Each
holder of an Allowed Claim in Class 5 for Chemtura Corporation and each of
the Subsidiary Debtors, in full and final satisfaction of its Claim, on or
as soon as reasonably practicable after the Initial Distribution Date
shall receive payment from the Cash and New Common Stock available in the
Unsecured Distribution Pool, with the distribution of New Common Stock
subject to dilution for the Incentive Plans, in the full amount of its
Allowed Claim, plus postpetition interest as applicable pursuant to Section 3.3(n)(i),
provided, however, that any Prepetition Unsecured Lender Claims
representing unfunded letters of credit shall be deemed fully satisfied
without any payment in the form of Cash or New Common Stock upon such
letters of credit being replaced by new letters of credit issued under the
Exit Financing.
|
|
(iii)
|
Election: Each
holder of an Allowed Claim in Class 5 shall have the right to make a
binding election to seek to receive its recovery in the form of the
maximum available percentage of Cash or the maximum available percentage
of New Common Stock, to the extent such recovery is available from the
Electing Creditors’ Pool, as described in Section 5.9.
|
|
(iv)
|
Voting: Class
5 for Chemtura Corporation and each of the Subsidiary Debtors is
Impaired. Therefore, holders of Class 5 Prepetition Unsecured
Lender Claims are entitled to vote to accept or reject the
Plan.
|
|
(f)
|
Treatment
of Class 6 - 2016 Notes Claims.
|
|
(i)
|
Allowance: The
2016 Notes Claims against Chemtura Corporation and each of the Subsidiary
Debtors shall be Allowed in the amount of $508,263,159 on account of
principal and prepetition interest, plus postpetition interest at the
contract rate, including amortization of original issue discount, as
provided in the 2016 Notes Indenture, plus the Make-Whole Settlement
Amount of $50 million, provided, however, that interest shall not apply to
or accrue on the Make-Whole Settlement
Amount.
|
|
(ii)
|
Treatment: Each
holder of an Allowed Claim in Class 6 for Chemtura Corporation and each of
the Subsidiary Debtors, in full and final satisfaction of its Claim, on or
as soon as reasonably practicable after the Initial Distribution Date
shall receive payment from the Cash and New Common Stock available in the
Unsecured Distribution Pool, with the distribution of New Common Stock
subject to dilution for the Incentive Plans, in the amount of its Allowed
Claim, plus postpetition interest as applicable pursuant to Section 3.3(n)(i),
with such payment of Cash and New Common Stock having an aggregate value
equal to the full amount of such holder’s Allowed Claim plus postpetition
interest, as applicable, in each case, subject to the applicable Shortfall
Adjustment, if any, or the applicable Shortfall Readjustment, if
any.
|
|
(iii)
|
Election: Each
holder of an Allowed Claim in Class 6 shall have the right to make a
binding election to seek to receive its recovery in the form of the
maximum available Cash or the maximum available New Common Stock, to the
extent such recovery is available from the Electing Creditors’ Pool, as
described in Section 5.9.
|
21
|
(iv)
|
Voting: Class
6 for Chemtura Corporation and each of the Subsidiary Debtors is
Impaired. Therefore, holders of Class 6 2016 Notes Claims are
entitled to vote to accept or reject the
Plan.
|
|
(g)
|
Treatment
of Class 7 for Chemtura Corporation and Great Lakes Chemical Corporation-
2009 Notes Claims.
|
|
(i)
|
Allowance: The
2009 Notes Claims against Chemtura Corporation and Great Lakes Chemical
Corporation shall be Allowed in the amount of $374,508,524 on account of
principal and pre petition interest, plus all postpetition interest at the
contract rate as provided in the 2009 Notes Indenture, and, for the
avoidance of doubt, the amount of any original issue discount amortized
post petition, which is estimated in the amount of $23,976 as of July 15,
2009.
|
|
(ii)
|
Treatment: Each
holder of an Allowed Claim in Class 7 for Chemtura Corporation and Great
Lakes Chemical Corporation, in full and final satisfaction of its Claim,
on or as soon as reasonably practicable after the Initial Distribution
Date shall receive payment from the Cash and New Common Stock available in
the Unsecured Distribution Pool, with the distribution of New Common Stock
subject to dilution for the Incentive Plans, in the full amount of its
Allowed Claim, plus postpetition interest as applicable pursuant to Section 3.3(n)(i).
|
|
(iii)
|
Election: Each
holder of an Allowed Claim in Class 7 shall have the right to make a
binding election to seek to receive its recovery in the form of the
maximum available Cash or the maximum available New Common Stock, to the
extent such recovery is available from the Electing Creditors’ Pool, as
described in Section 5.9.
|
|
(iv)
|
Voting: Class
7 for Chemtura Corporation and Great Lakes Chemical Corporation is
Impaired. Therefore, holders of Class 7 2009 Notes Claims are
entitled to vote to accept or reject the
Plan.
|
|
(h)
|
Treatment
of Class 8 for Chemtura Corporation - 2026 Notes
Claims.
|
|
(i)
|
Allowance: Allowance:
The 2026 Notes Claims against Chemtura Corporation shall be Allowed in the
amount of $151,253,447 on account of principal and prepetition interest,
plus postpetition interest at the contract rate, including amortization of
original issue discount, as provided in the 2026 Notes Indenture, plus the
No-Call Settlement Amount of $20 million, provided, however, that interest
shall not apply to or accrue on the No-Call Settlement
Amount.
|
|
(ii)
|
Treatment: Each
holder of an Allowed Claim in Class 8 for Chemtura Corporation, in full
and final satisfaction of its Claim, on or as soon as reasonably
practicable after the Initial Distribution Date shall receive its Pro Rata
share (determined with respect to all Claims in Class 4a for Chemtura
Corporation and all Claims in Class 8) of the Cash and New Common Stock
available in the Unsecured Distribution Pool following payment in full of
(or appropriate funding of the Disputed Claims Reserve for) all Claims in
Classes 4, 5, 6 and 7 for each of the Subsidiary Debtors, with the
distribution of New Common Stock subject to dilution for the Incentive
Plans, in the amount of its Allowed Claim, plus postpetition interest as
applicable pursuant to Section 3.3(n)(i),
with such payment of Cash and New Common Stock having an aggregate value
equal to the full amount of such holder’s Allowed Claim plus postpetition
interest, as applicable, in each case, subject to the applicable Shortfall
Adjustment, if any, or the applicable Shortfall Readjustment, if
any.
|
22
To the
extent that insufficient value is available in the Unsecured Distribution Pool
to pay all holders of Allowed Claims in Class 8, in full, plus postpetition
interest as applicable pursuant to Section 3.3(n)(i),
each holder shall be entitled to payment pursuant to Section 8.5 of
its Pro Rata share (determined with respect to all Claims in Class 4a for
Chemtura Corporation and in Class 8), in accordance with the Shortfall
Adjustment and Shortfall Readjustment, if any, of the excess amounts of Cash and
New Common Stock, if any, held in the Disputed Claims Reserve, Diacetyl Reserve
and Environmental Reserve following liquidation of all Disputed Claims, Diacetyl
Claims and Environmental Claims and payment of all formerly Disputed Claims that
have become Allowed.
|
(iii)
|
Election: Each
holder of an Allowed Claim in Class 8 shall have the right to make a
binding election to seek to receive its recovery in the form of the
maximum available Cash or the maximum available New Common Stock, to the
extent such recovery is available from the Electing Creditors’ Pool, as
described in Section 5.9.
|
|
(iv)
|
Voting: Class
8 for Chemtura Corporation is Impaired. Therefore, holders of
Class 8 2026 Notes Claims are entitled to vote to accept or reject the
Plan.
|
|
(i)
|
Treatment
of Class 9 - Unsecured Convenience
Claims.
|
|
(i)
|
Treatment: Each holder
of an Allowed Unsecured Convenience Claim in Class 9 for Chemtura
Corporation and each of the applicable Subsidiary Debtors shall receive,
in full and final satisfaction of such Unsecured Convenience Claim, Cash
in the amount of its Allowed Unsecured Convenience Claim, plus interest as
applicable pursuant to Section 3.3(n)(i).
|
|
(ii)
|
Voting: Class
9 for Chemtura Corporation and each of the applicable Subsidiary Debtors
is Unimpaired and holders of Class 9 Claims are conclusively presumed to
have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code. Therefore, holders of Class 9 Unsecured Convenience
Claims are not entitled to vote to accept or reject the
Plan.
|
|
(j)
|
Treatment
of Class 10 for Chemtura Corporation and Chemtura Canada - Diacetyl
Claims.
|
|
(i)
|
Treatment: Each holder
of an Allowed Diacetyl Claim in Class 10 for Chemtura Corporation and
Chemtura Canada (in the event it becomes a Debtor before the Confirmation
Date) shall receive, in full and final satisfaction of such holder’s
Allowed Diacetyl Claim: (A) payment in Cash on the Effective
Date pursuant to a negotiated settlement pursuant to Bankruptcy Rule 9019
and section 1123 of the Bankruptcy Code and as approved by order of the
Bankruptcy Court or (B) to the extent an Allowed Diacetyl Claim is not
subject to a negotiated settlement as of the Effective Date, a
distribution from the Diacetyl Reserve in accordance with the procedures
set forth in Article X in
the amount of such holder’s Allowed Insured Deficiency
Claim.
|
|
(ii)
|
Voting: Class
10 for Chemtura Corporation and Chemtura Canada (in the event it becomes a
Debtor before the Confirmation Date) is Impaired. Therefore,
holders of Class 10 Diacetyl Claims are entitled to vote to accept or
reject the Plan.
|
|
(k)
|
Treatment
of Class 11 - Environmental Claims.
|
|
(i)
|
Treatment: Each holder
of an Allowed Environmental Claim in Class 11 for Chemtura Corporation and
each of the applicable Subsidiary Debtors shall receive one of the
following treatments at the option of the applicable Debtor (with the
consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee,
which consent shall not be unreasonably withheld): (A) payment
in Cash on the Effective Date or such other treatment as agreed pursuant
to a negotiated settlement pursuant to Bankruptcy Rule 9019 and section
1123 of the Bankruptcy Code and as approved by order of the Bankruptcy
Court, (B) to the extent an Allowed Environmental Claim is not subject to
a negotiated settlement as of the Effective Date, a distribution from the
Environmental Reserve in Cash in accordance with the procedures set forth
in Article
IX, in the amount of such holder’s Allowed Environmental Claim or
(C) the holder will retain its Environmental Claim, which will be
Reinstated.
|
23
|
(ii)
|
Voting: Class
11 for Chemtura Corporation and each of the applicable Subsidiary Debtors
is Impaired. Therefore, holders of Class 11 Environmental
Claims are entitled to vote to accept or reject the
Plan.
|
|
(l)
|
Treatment
of Class 12 - Intercompany Claims.
|
|
(i)
|
Treatment: At
the election of the applicable Debtor (with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, which consent shall not
be unreasonably withheld), Intercompany Claims shall (A) be Reinstated,
(B) remain in place subject to certain revised documentation, (C) be
modified or cancelled as of the Effective Date, (D) include Cash payments
to address the treatment of certain foreign pension obligations of the
Company and/or (E) with respect to certain Intercompany Claims in respect
of goods, services, interest and other amounts that would have been
satisfied in Cash directly or indirectly in the ordinary course of
business had they not been outstanding as of the Petition Date, may be
settled in Cash in an amount not to exceed $25 million. The
Plan Supplement shall set forth the applicable Debtor’s election with
respect to the treatment of each Intercompany
Claim.
|
|
(ii)
|
Voting: Class
12 for each of the applicable Debtors is Impaired. Holders of
Class 12 Intercompany Claims are deemed to accept the
Plan.
|
|
(m)
|
Treatment
of Class 13 - Interests.
|
|
(i)
|
Treatment of Class 13a for Chemtura
Corporation: On and after the Effective Date, all Class
13a Interests in Chemtura Corporation shall be cancelled and shall be of
no further force and effect, whether surrendered for cancellation or
otherwise, and each holder of an Interest shall receive, in full and final
satisfaction of such Interest, on the Effective Date, one of the following
treatments:
|
|
A.
|
to
the extent that Class 13a for Chemtura Corporation votes to accept the
Plan, on or as soon as practicable after the Effective Date, each holder
of a share of prepetition common stock or equivalent Interest in Chemtura
Corporation shall receive its Pro Rata share (determined with respect to
all holders of Interests in Class 13a) of 5% of the New Common Stock,
subject to dilution for the New Incentive Plan, and its Pro Rata share of
the Rights to participate in the Rights Offering;
and
|
|
B.
|
to
the extent that Class 13a for Chemtura Corporation votes to reject the
Plan, each holder of an Interest shall receive its Pro Rata share
(determined with respect to all holders of Interests in Class 13a) of
value available for distribution after all Allowed Unsecured Claims have
been paid in full in accordance with the terms of this Plan and the
Disputed Claims Reserve, Diacetyl Reserve and Environmental Reserve have
been established in accordance with the terms of this
Plan.
|
24
|
(ii)
|
Treatment of Class 13b for the
applicable Subsidiary Debtors and Chemtura Canada: At
the option of the Debtors, with the consent of the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee, which consent shall not be
unreasonably withheld, on the Effective Date, all Class 13b Interests in
the applicable Subsidiary Debtors and Chemtura Canada (in the event it
becomes a Debtor before the Confirmation Date) shall remain outstanding,
shall be cancelled or shall be transferred pursuant to the Plan, including
as set forth in Section
5.24.
|
|
(iii)
|
Voting for Class 13a for
Chemtura Corporation: Class 13a for Chemtura Corporation
is Impaired. Therefore, holders of Class 13a Interests in
Chemtura Corporation are entitled to vote to accept or reject the
Plan.
|
|
(iv)
|
Voting for Class 13b for the
applicable Subsidiary Debtors and Chemtura Canada: Class
13b for each of the applicable Subsidiary Debtors and Chemtura Canada (in
the event it becomes a Debtor before the Confirmation Date) is Unimpaired
or Impaired, and holders of Class 13b Subsidiary Debtor and Chemtura
Canada Interests are conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy
Code. Therefore, holders of Interests in Class 13b for each of
the applicable Subsidiary Debtors and Chemtura Canada (in the event it
becomes a Debtor before the Confirmation Date) are not entitled to vote to
accept or reject the Plan.
|
|
(n)
|
Treatment
Provisions Applicable to All Classes of Unsecured Claims and
Interests.
|
|
(i)
|
Payment of
Interest: To the extent that the Plan provides for
payment of interest to holders of Allowed Unsecured Claim, such interest
shall be paid in the same form of consideration as the underlying Allowed
Unsecured Claim, and the amount of Allowed interest shall be calculated
between the later of the date such Allowed Claim (A) became due in the
ordinary course of business or (B) was invoiced to the applicable Debtor,
on the one hand, and the Effective Date, on the other hand, with such
interest to be payable (except as expressly specified herein) at the
federal judgment rate as of the Petition Date or at the contract rate to
the extent allowable under applicable law in accordance with the Contract
Interest Rate Procedures. For the avoidance of doubt, to the
extent interest is payable on a particular Allowed Claim in accordance
with the foregoing, the amount of such Allowed Claim shall be increased to
include interest.
|
|
(ii)
|
Distribution from the Disputed
Claims Reserve, Diacetyl Reserve and Environmental
Reserve: To the extent excess Cash or New Common Stock
remains in the Disputed Claims Reserve, Diacetyl Reserve or Environmental
Reserve following the resolution of all Disputed Claims, Diacetyl Claims
and Environmental Claims, such excess Cash or New Common Stock shall be
distributed among Claims and Interests as and to the extent provided in
Section 8.5.
|
3.4
|
Treatment of Claims
Against and Interests in Chemtura
Canada
|
This Plan
constitutes a pre-arranged Plan for Chemtura Canada in the event it becomes a
Debtor before the Confirmation Date. For the avoidance of doubt, in
the event Chemtura Canada becomes a Debtor before the Confirmation
Date: (a) each holder of a Lien Claim, Other Priority Claim or
Intercompany Claim against Chemtura Canada shall receive the same treatment as
the treatment for holders of all other Lien Claims, Other Priority Claims and
Intercompany Claims, respectively, as set forth in this Article III, (b) each
holder of a General Unsecured Claim against Chemtura Canada shall receive the
treatment as set forth in Section 3.3(d)(iii),
(c) each holder of a Diacetyl Claim against Chemtura Canada shall receive the
treatment as set forth in Section 3.3(j) and
(d) each holder of an Interest in Chemtura Canada shall receive the same
treatment as the treatment for holders of Interests in Subsidiary Debtors as set
forth in Section 3.3(m)(ii).
25
ARTICLE
IV
ACCEPTANCE
REQUIREMENTS
4.1
|
Acceptance or
Rejection of the Plan
|
|
(a)
|
Voting
Class
|
Class 4a
for Chemtura Corporation and Class 4b for each of the applicable Subsidiary
Debtors, Classes 5, 6 and 11 for Chemtura Corporation and each of the applicable
Subsidiary Debtors, Class 7 for Chemtura Corporation and Great Lakes Chemical
Corporation, Classes 8 and 13a for Chemtura Corporation and Class 10 for
Chemtura Corporation and Chemtura Canada (in the event it becomes a Debtor
before the Confirmation Date) are Impaired under the Plan and are, therefore,
entitled to vote to accept or reject the Plan.
|
(b)
|
Presumed
Acceptance of the Plan
|
Classes 1
and 9 for Chemtura Corporation and each of the applicable Subsidiary Debtors,
Classes 2 and 3 for each of the applicable Debtors and Class 4c for Chemtura
Canada (in the event it becomes a Debtor before the Confirmation Date) are
Unimpaired under the Plan and are, therefore, conclusively presumed to have
accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code,
provided, however, that holders of Class 1 Prepetition Secured Lender
Claims shall be permitted to vote to accept or reject the Plan on a provisional
basis. Class 12 for each of the Debtors and Class 13b for each of the
applicable Subsidiary Debtors and Chemtura Canada (in the event it becomes a
Debtor before the Confirmation Date) are presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code because all holders of
Claims in Class 12 for each of the Debtors and holders of Interests in Class 13b
for each of the applicable Subsidiary Debtors and Chemtura Canada (in the event
it becomes a Debtor before the Confirmation Date) are either Plan proponents or
affiliates of Plan proponents.
4.2
|
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 an Impaired Class of Claims. 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 or
Interests. The Debtors (with the consent of the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee, which consent shall not be unreasonably
withheld) reserve the right to modify the Plan in accordance with Article XIII hereof
to the extent, if any, that Confirmation pursuant to section 1129(b) of the
Bankruptcy Code requires modification.
ARTICLE
V
MEANS
FOR IMPLEMENTATION OF THE PLAN
5.1
|
General Settlement of
Claims and Interests
|
As
discussed in detail in the Disclosure Statement and as otherwise provided
herein, as one element of, and in consideration for, an overall negotiated
settlement of numerous disputed Claims and issues embodied in the Plan, pursuant
to Bankruptcy Rule 9019 and section 1123 of the Bankruptcy Code and in
consideration for the classification, Distributions, Releases and other benefits
provided under the Plan, the provisions of the Plan shall upon Consummation
constitute a good faith compromise and settlement of all Claims, Interests and
controversies resolved pursuant to the Plan. Subject to Article VII, all
distributions made to holders of Allowed Claims and Interests in any Class are
intended to be and shall be final.
5.2
|
The Creditors’
Committee Action
|
As
discussed in detail in the Disclosure Statement, as set forth in the
Confirmation Order and as otherwise provided herein, as one element of, and in
consideration for, an overall negotiated settlement of numerous disputed claims
and issues embodied in the Plan, pursuant to Bankruptcy Rule 9019 and
section 1123 of the Bankruptcy Code, on the Effective Date of the Plan the
Creditors’ Committee will agree to dismiss the Creditors’ Committee Action with
prejudice, provided, however, that the Creditors’ Committee reserves all rights
to pursue the Creditors’ Committee Action in the event that, for any reason, the
Effective Date does not occur.
26
5.3
|
The PBGC
Settlement
|
As
discussed in detail in the Disclosure Statement, as set forth in the
Confirmation Order and as otherwise provided herein, as one element of, and in
consideration for, an overall negotiated settlement of numerous disputed claims
and issues embodied in the Plan, pursuant to Bankruptcy Rule 9019 and
section 1123 of the Bankruptcy Code, the provisions of the Plan shall
constitute a good faith compromise and settlement between the Debtors, the
Creditors’ Committee and the PBGC, with the consent of the Ad Hoc Bondholders’
Committee, arising from or related to the disputed Claims and PBGC’s asserted
rights of regulatory action, whereby Chemtura Corporation shall make a
contribution in the amount of $50 million with respect to its underfunded U.S.
pension obligations on the Effective Date, which shall have the effect of
reducing later contribution requirements according to statute.
5.4
|
The CHCI Preferred
Stock Settlement
|
As
discussed in detail in the Disclosure Statement, as set forth in the
Confirmation Order and as otherwise provided herein, as one element of, and in
consideration for, an overall negotiated settlement of numerous disputed claims
and issues embodied in the Plan, pursuant to Bankruptcy Rule 9019 and
section 1123 of the Bankruptcy Code and with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, the provisions of the Plan
shall constitute a good faith compromise and settlement of all Claims and
controversies between the Estates and CHCI arising from or related to Great
Lakes Chemical Corporation’s ownership of the CHCI Preferred Stock, whereby for
all purposes related to distributions and allocated value among the Debtors
pursuant to the Plan (and solely for Plan purposes) the CHCI Preferred Stock
shall be given effect for 50% of its value.
5.5
|
The Make-Whole
Settlement and the No-Call
Settlement
|
As
discussed in detail in the Disclosure Statement, as set forth in the
Confirmation Order and as otherwise provided herein, as one element of, and in
consideration for, an overall negotiated settlement of numerous disputed claims
and issues embodied in the Plan, pursuant to Bankruptcy Rule 9019 and
section 1123 of the Bankruptcy Code and with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, the provisions of the Plan
shall constitute (a) a good faith compromise and settlement of all Claims and
controversies between the Debtors, the Creditors’ Committee, the Ad Hoc
Bondholders’ Committee and the 2016 Notes Indenture Trustee arising from or
related to the Make-Whole Premium and (b) a good faith compromise and settlement
of all Claims and controversies between the Debtors, the Creditors’ Committee,
the Ad Hoc Bondholders’ Committee and the 2026 Notes Indenture Trustee arising
from or related to the No-Call Penalty. The holders of 2016 Notes
will be entitled to an Allowed Claim equal to the Make-Whole Settlement
Amount. The holders of 2026 Notes will be entitled to an Allowed
Claim equal to the No-Call Settlement Amount. The terms of the
Make-Whole Settlement and the No-Call Settlement were available to the Debtors
by the Creditors’ Committee, the Ad Hoc Bondholders’ Committee, the 2016 Notes
Indenture Trustee and the 2026 Notes Indenture Trustee only if the Debtors
settled all of the Claims and controversies as a whole on the terms as
offered. Postpetition interest will not be paid on the Make-Whole
Settlement Amount or the No-Call Settlement Amount.
5.6
|
The Settlement
Regarding the Fees of the Ad Hoc Bondholders’
Committee
|
As
discussed in detail in the Disclosure Statement, as set forth in the
Confirmation Order and as otherwise provided herein, as one element of, and in
consideration for, an overall negotiated settlement of numerous disputed claims
and issues embodied in the Plan, pursuant to Bankruptcy Rule 9019 and
section 1123 of the Bankruptcy Code and with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, notwithstanding any provision
in the Plan to the contrary, the Debtors or Reorganized Debtors shall pay in
full in Cash within five business days of the Effective Date (unless otherwise
provided herein) the reasonable, documented and necessary out-of-pocket fees and
expenses incurred by the Ad Hoc Bondholders’ Committee up to an aggregate cap of
$7 million, consistent with that certain Plan Support Agreement, dated as of
June 17, 2010, among the Debtors, the Creditors’ Committee, members of the Ad
Hoc Bondholders’ Committee and certain other holders of Notes Claims, without
the need of any party to file fee applications with the Bankruptcy
Court.
27
The Ad
Hoc Bondholders’ Committee shall provide the Debtors and the Creditors’
Committee with the invoices (or such other documentation as the Debtors and the
Creditors’ Committee may reasonably request) for services rendered on a periodic
basis, and in any event no later than fifteen days before the Effective
Date. The Debtors and the Creditors’ Committee will have ten business
days from receipt of such invoices to review and raise any objections to the
reasonableness of the fees or expense items set forth therein. All
invoiced fees shall be deemed reasonable if no notice of objection is provided
within ten business days of their receipt by the Debtors and the Creditors’
Committee, and if deemed reasonable shall be paid within five business days of
the Effective Date (other than for fees and costs incurred in the 60 days prior
to the Effective Date, which fees and costs, if not objected to, will be paid
within fifteen business days of receipt if the Debtors and the Creditors’
Committee do not object to the reasonableness of such fees). To the
extent that the Debtors or the Creditors’ Committee object to any of the fees of
the Ad Hoc Bondholders’ Committee, the Debtors shall not be required to pay any
disputed portion of such fees until a resolution of such objection is agreed to
by the Debtors, the Creditors’ Committee and the Ad Hoc Bondholders’ Committee,
or until issuance of a further order of the Bankruptcy Court upon motion by the
Ad Hoc Bondholders’ Committee.
Notwithstanding
the foregoing, the Debtors and the Creditors’ Committee acknowledge that they
have reviewed the December 19, 2009 retainer agreement between Jones Day and
Moelis & Company outlining the fees payable to Moelis & Company for its
work in this matter, and hereby agree that the Monthly Fee and the Restructuring
Fee (each as defined therein) are deemed reasonable and will be paid within five
business days of the Effective Date; provided, however, that because the Debtors
and Creditors’ Committee do not believe it will be necessary for Moelis &
Company to provide testimony in this case, any Testimony Fees (as defined in the
retainer agreement) are not deemed reasonable at this time, and will be subject
to future consideration if and when incurred by the Ad Hoc Bondholders’
Committee, and would not cause the aggregate cap to be increased from $7 million
unless specifically and subsequently agreed to by the Debtors, the Creditors’
Committee and the Ad Hoc Bondholders’ Committee.
The
Debtors, the Creditors’ Committee and the Ad Hoc Bondholders’ Committee
expressly agree and acknowledge that pursuant to Bankruptcy Rule 9019 and
section 1129(a)(4) of the Bankruptcy Code, because the payment of the Ad Hoc
Bondholders’ Committee’s fees is pursuant to the overall settlement underlying
the Plan, the sole ground for objecting to any of the Ad Hoc Bondholders’
Committees fees, whether informally or before the Bankruptcy Court or other
court of competent jurisdiction, shall be as to matters of reasonableness under
section 1129(a)(4) of the Bankruptcy Code.
5.7
|
Environmental
Matters
|
|
(a)
|
Post-Effective
Date Environmental Obligations
|
No
environmental obligation to a Governmental Unit relating to property owned or
operated by any Debtor or Reorganized Debtor on or after the Effective Date,
except those obligations to reimburse costs expended or paid by a Governmental
Unit before the Petition Date or to pay penalties owing to a Governmental Unit
for violations of environmental laws or regulations that occurred before the
Petition Date, shall be discharged, released, or precluded by the Plan or
Confirmation Order. Nothing in the Plan shall limit, diminish or otherwise alter
the Reorganized Debtors’ defenses, claims, Causes of Action, or other rights
under applicable non-bankruptcy law with respect to any environmental
obligations owing to Governmental Units at owned or operated sites.
|
(b)
|
Environmental
Adversary Proceeding
|
Nothing
in the Plan shall constitute or be construed as an adjudication or settlement of
the disputed issues in the adversary proceeding [Adv. Case. No. 09-01719]
commenced by Chemtura Corporation and the Subsidiary Debtors against certain
Governmental Units (and including any intervening parties) seeking a declaratory
judgment that certain environmental orders and obligations that are or may be
asserted against Chemtura Corporation and the Subsidiary Debtors by the
Governmental Units with respect to non-owned former sites and non-owned off-site
disposal sites are Claims that are dischargeable in the Chapter 11 Cases, which
adversary proceeding is currently pending as of the date of the Plan before the
United States District Court for the Southern District of New
York.
28
|
(c)
|
Environmental
Settlement Agreements
|
In the
event of any conflict between (i) the Plan or Confirmation Order and (ii) any
Environmental Settlement Agreement, the Environmental Settlement Agreement shall
govern.
|
(d)
|
Environmental
Consent Decree and Consent Order
|
Subject to approval by the Bankruptcy
Court of the Settlement Agreement Among the Debtors, the United States, and the
Connecticut Commissioner of Environmental Protection that was filed with the
Bankruptcy Court on August 24, 2010, including any amendments that the parties
to that agreement may make to it before approval of the agreement by the
Bankruptcy Court, the Debtors that are parties to the Laurel Park Consent Decree
(as that term is defined in the aforementioned Settlement Agreement) shall
comply with their obligations under the Laurel Park Consent Decree, including
those Debtors’ obligations under the Laurel Park Consent Decree to perform work
and reimburse costs of the United States and the Connecticut Commissioner of
Environmental Protection.
Subject to approval by the Bankruptcy
Court of the Settlement Agreement Between Chemtura Corporation and the State of
New York and the New York State Department of Environmental Conservation to be
filed with the Bankruptcy Court before the Confirmation Date, including any
amendments that the parties to that agreement may make to it before approval of
the agreement by the Bankruptcy Court, Chemtura Corporation shall comply with
its obligations under the 688 Court Street Consent Order and the 633 Court
Street Consent Order (as those terms are used in the aforementioned Settlement
Agreement), including Chemtura Corporation’s obligations under those orders to
perform work and reimburse costs of the New York State Department of
Environmental Conservation.
5.8
|
The Unsecured
Distribution Pool
|
The
Unsecured Distribution Pool shall be used to fund (a) the payments pursuant to
this Plan of all Allowed Claims in the Participating Creditor Classes, all on
the terms set forth herein with respect to each such Class and (b) the
Disputed Claims Reserve. To the extent that Class 13a for Chemtura
Corporation votes to reject the Plan, any Cash or New Common Stock available in
the Unsecured Distribution Pool following the funding described above (which
shall include, for the avoidance of doubt, payment of all Allowed Claims in the
Participating Creditor Classes in full and with interest in the full Allowed
amount), then each holder of an Interest in Class 13a for Chemtura Corporation
shall receive its Pro Rata share of such excess Cash and New Common
Stock.
To the
extent that there is insufficient value available in the Unsecured Distribution
Pool to satisfy in full all Allowed Claims in the Participating Creditor Classes
pursuant to this Plan, the resulting shortfall in distributable value shall
result in the Shortfall Adjustment. Notwithstanding the foregoing, to
the extent that additional Cash and New Common Stock become available for
distribution after the Initial Distribution Date pursuant to Section 8.5, the
resulting distributable value shall result in the Shortfall
Readjustment.
5.9
|
Election of Cash and
New Common Stock
|
Each
holder of an Allowed Claim in any Participating Creditor Class (except Classes
of Notes Claims) may, at the time of voting upon the Plan, or, with respect to
holders of Notes Claims, before the Voting Deadline, whether or not such holder
votes on the Plan, make a binding election to seek to receive its recovery in
the form of the maximum available percentage of Cash or the maximum available
percentage of New Common Stock. To the extent that a creditor makes
such an election, the Cash or New Common Stock that otherwise would be
distributable to such creditor will be aggregated in the Electing Creditors’
Pool and will be reallocated among all Electing Creditors according to their
recovery preferences (with all distributions to be made such that each Electing
Creditor receives the aggregate value of consideration it otherwise would be
entitled to, in the form of the preferred distribution to the extent
possible). Whether and to what extent any Electing Creditor receives
an increased percentage of the consideration it requested will depend upon the
elections of all holders of Allowed Claims in the Participating Creditor Classes
taken as a whole. The failure of a holder to make a binding election
to participate in the Electing Creditors’ Pool during the voting period
(including the failure to submit a validly executed ballot or other form) will
reflect an agreement that such holder will receive its recovery in the
Cash-to-New Common Stock ratio reflecting the Cash and New Common Stock in the
Unsecured Distribution Pool.
29
5.10
|
Exit
Financing/Incurrence of New
Indebtedness
|
On the
Effective Date, the Reorganized Debtors shall enter into the Exit Credit
Facility Agreement and complete the Exit Financing in order to fund
distributions under the Plan and to fund the Reorganized Debtors’ business
operations, and the Debtors shall be authorized to execute and deliver those
documents necessary or appropriate to obtain the Exit Financing, without further
notice to or order of the Bankruptcy Court, act or action under applicable law,
regulation, order or rule or vote, consent, authorization or approval of any
person. The terms of the Exit Financing, including sizing,
composition, fees, interest rates, and maturity will be reasonably acceptable to
the Creditors’ Committee and the Ad Hoc Bondholders’ Committee and will be
market-based.
5.11
|
Sources of
Consideration for Plan
Distributions
|
|
(a)
|
Cash
Consideration
|
All Cash
consideration necessary for the Reorganized Debtors to make payments or
distributions pursuant hereto shall be obtained from the Exit Financing(s) or
other Cash on hand of the Debtors, including Cash derived from business
operations. Further, the Debtors and the Reorganized Debtors will be
entitled to transfer funds between and among themselves as they determine to be
necessary or appropriate to enable 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 or otherwise be affected by the terms
of the Plan.
|
(b)
|
Issuance
of New Common Stock
|
On the
Effective Date, New Chemtura shall issue up to 100 million shares of New Common
Stock for distribution to the holders of Allowed Claims against or Interests in
Class 4a for Chemtura Corporation, Class 4b for each of the applicable
Subsidiary Debtors, Classes 5 and 6 for Chemtura Corporation and each of the
Subsidiary Debtors, Class 7 for Chemtura Corporation and Great Lakes Chemical
Corporation and Classes 8 and 13a for Chemtura Corporation pursuant to the terms
set forth herein. All of the shares of New Common Stock issued
pursuant to the Plan shall be duly authorized, validly issued, fully paid and
non-assessable. Each distribution and issuance referred to in Article VII 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. The Reorganized Debtors will use their commercially
reasonable best efforts to list the New Common Stock on a national securities
exchange, with the initial goal of listing on the New York Stock Exchange or
NASDAQ by the Effective Date.
5.12
|
The Rights
Offering
|
|
(a)
|
Use
of Rights Offering Proceeds
|
As set
forth in Section 3.3(m)(i)A), if Class 13a for
Chemtura Corporation votes to accept the Plan, each holder of an Interest in
Class 13a for Chemtura Corporation shall receive its Pro Rata share of the
Rights to participate in the Rights Offering. The proceeds of the
Rights Offering will be used to provide $100 million in Cash (or such lesser
amount of proceeds actually achieved, to the extent the Rights Offering is not
fully subscribed) funding to the Reorganized Debtors to fund distributions
pursuant to the Plan.
|
(b)
|
Rights
Offering Procedures
|
If Class
13a for Chemtura Corporation votes to accept the Plan, each holder of an
Interest in Class 13a for Chemtura Corporation will be entitled to subscribe for
and to acquire the Rights being offered pursuant to the Rights Offering in
accordance with the terms of the Rights Offering Procedures, in substantially
the form annexed hereto as Exhibit
1. The Rights Offering shall be subject to compliance with the
Securities Act of 1933, as amended, including the filing and approval of an
appropriate securities registration form with the Securities and Exchange
Commission. In the event such registration statement is not effective
at the time all conditions precedent to the Plan are satisfied or waived, the
Effective Date may be delayed until the effective date of the registration
statement. Alternatively, the Debtors will work with the Creditors’
Committee and the Ad Hoc Bondholders’ Committee to explore alternatives that
would allow the Effective Date to occur before the effective date of the
registration statement.
30
5.13
|
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 Credit
Agreement and the Indentures, and any other certificate, 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 obligations of the Debtors that are specifically reinstated
pursuant to the Plan), shall be cancelled as to the Debtors, and the Reorganized
Debtors shall not have any continuing obligations thereunder and (2) the
obligations of the Debtors pursuant, relating or pertaining to any agreements,
indentures, certificates of designation, bylaws or certificate or articles of
incorporation or similar documents governing the shares (including the CHCI
Preferred Stock), certificates, notes, bonds, purchase rights, options, warrants
or other instruments or documents evidencing or creating any indebtedness or
obligation of the Debtors (except such agreements, certificates, notes or other
instruments evidencing indebtedness or obligations of the Debtors that are
specifically reinstated pursuant to the Plan) shall be released and discharged;
provided, however, notwithstanding
Confirmation or the occurrence of the Effective Date, that any such indenture or
agreement that governs the rights of the holder of a Claim shall continue in
effect solely for purposes of (a) allowing holders of Prepetition Secured Lender
Claims, Prepetition Unsecured Lender Claims and Notes Claims (as applicable) to
receive distributions under the Plan as provided herein, (b) allowing the
Prepetition Administrative Agent and the Indenture Trustees, if applicable, to
make distributions under the Plan as provided herein, and deduct therefrom such
compensation, fees and expenses due thereunder or incurred in making such
distributions and (c) allowing the Prepetition Administrative Agent and the
Indenture Trustees to seek compensation and/or reimbursement of fees and
expenses in accordance with the terms of this 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, except to the extent set forth in or
provided for under this Plan. For the avoidance of doubt, because the
Prepetition Secured Lender Claims, Prepetition Unsecured Lender Claims and Notes
Claims are Allowed in the amounts set forth in Article III, as of the Effective
Date, all Proofs of Claim on account of Prepetition Secured Lender Claims,
Prepetition Unsecured Lender Claims and Notes Claims shall be deemed resolved
without any further action by the Bankruptcy Court or the parties. On
and after the Effective Date, all duties and responsibilities of the Prepetition
Administrative Agent under the Prepetition Credit Agreement and the Indenture
Trustees under the Indentures, as applicable, shall be discharged except to the
extent required in order to effectuate the Plan.
5.14
|
Surrender of Existing
Securities
|
As a
condition precedent to receiving any distribution on account of any Note, each
record holder of any Notes shall be deemed to have surrendered such Notes or
other documentation underlying such Notes and all such surrendered Notes and
other documentation shall be deemed to be cancelled in accordance with Section 5.13 of the
Plan.
5.15
|
Section 1145
Exemption
|
The
issuance of the New Common Stock distributed pursuant to the Plan to holders of
Claims and Interests shall be authorized under section 1145 of the
Bankruptcy Code as of the Effective Date without further act or action by any
person, unless required by provision of applicable law, regulation, order or
rule. Holders of New Common Stock issued in respect of Allowed
Unsecured Claims will be provided with reasonable and customary registration
rights, to be set forth in more detail in the Plan Supplement, solely to the
extent such New Common Stock may not be transferred without restriction pursuant
to Rule 144 or is otherwise not freely saleable under the securities laws
notwithstanding section 1145 of the Bankruptcy Code. Additionally, to
the extent Class 13a for Chemtura Corporation votes to accept the Plan and the
Rights Offering is subscribed in an amount such that the issuance of New Common
Stock pursuant to the Rights Offering does not qualify for the statutory
exemption from securities law provided under section 1145 of the Bankruptcy
Code, a registration of the New Common Stock with the U.S. Securities and
Exchange Commission will be required.
31
5.16
|
Corporate
Existence
|
Except as
otherwise provided herein, in the Corporate Governance Documents or elsewhere in
the Plan Supplement, each Debtor, as Reorganized, 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. The Corporate Governance
Documents shall be in the form filed with the Plan Supplement.
5.17
|
New Certificate of
Incorporation and New
By-Laws
|
On or
immediately before the Effective Date, New Chemtura and each of the other
Reorganized Debtors will file their respective New Certificates of Incorporation
with the applicable Secretaries of State and/or other applicable authorities in
their respective jurisdictions of incorporation in accordance with the corporate
laws of the respective jurisdictions of incorporation. After the
Effective Date, New Chemtura and each of the other Reorganized Debtors may amend
and restate their respective New Certificates of Incorporation and New By-Laws
and other constituent documents as permitted by the laws of their respective
jurisdictions of incorporation and their respective New Certificates of
Incorporation and New By-Laws. The New Certificates of Incorporation
and New By-Laws shall be included in the Plan Supplement and shall be subject to
the consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee,
which consent shall not be unreasonably withheld.
5.18
|
New Chemtura’s and
Reorganized Debtors’ Boards of
Directors
|
On the
Effective Date, the New Board will consist of 9 directors, one of which shall be
the chief executive officer. The Debtors, the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee shall establish a board selection
committee to select 8 members of the New Board of New Chemtura in addition to
the chief executive officer. The board selection committee, which
shall be advised by an independent search firm, shall be charged with working
together to try to reach consensus upon a list of the members of the New Board
of New Chemtura. In the event, however, that consensus is not reached
by the board selection committee, the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee shall, together, be entitled to designate 6 members of
the New Board of New Chemtura and the Debtors shall be entitled to designate 2
members of the New Board of New Chemtura. Each designated member of
the New Board of New Chemtura shall meet minimum eligibility requirements
consistent with service on the board of a public company of comparable size to
New Chemtura and the other Reorganized Debtors, with such minimum requirements
to be identified by the independent search firm advising the board selection
committee.
To the
extent known, the identity of the members of the New Boards of New Chemtura and
of each of the other Reorganized Debtors and the nature and compensation for any
member of a New Board who is an “insider” under section 101(31) of the
Bankruptcy Code will be identified in the Plan Supplement but, in any event,
shall be disclosed at or before the Confirmation Hearing.
5.19
|
Officers of New
Chemtura and Reorganized
Debtors
|
To the
extent known, officers of New Chemtura and each of the other Reorganized Debtors
shall be identified in the Plan Supplement but, in any event, shall be disclosed
at or before the Confirmation Hearing. Such officers shall serve in accordance
with applicable non-bankruptcy law and, to the extent applicable, the New
Employment Agreements with New Chemtura and each of the other Reorganized
Debtors.
32
5.20
|
Employee
Benefits
|
Except as
otherwise provided herein, on and after the Effective Date, the Reorganized
Debtors may honor, in the ordinary course of business, any prepetition
contracts, agreements, policies, programs and plans for, among other things,
compensation (other than prepetition equity based compensation related to
Interests, which shall receive appropriate compensation as provided for pursuant
to the Plan), health care benefits, disability benefits, deferred compensation
benefits, travel benefits, vacation benefits, savings plans, severance benefits,
welfare benefits, workers’ compensation insurance, life insurance and accidental
death and dismemberment insurance for the directors, officers and employees of
any of the Debtors who served in such capacity at any time; provided, however, that the
Debtors’ or Reorganized Debtors’ performance under any employment agreement will
not entitle any person to any benefit or alleged entitlement under any contract,
agreement, policy, program or plan that has expired or been terminated before
the Effective Date, or restore, reinstate or revive any such benefit or alleged
entitlement under any such contract, agreement, policy, program or
plan. Nothing herein 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,
including the Reorganized Debtors’ rights to modify unvested benefits pursuant
to their terms.
5.21
|
Retiree
Benefits
|
All
employment, retirement and other agreements or arrangements in place as of the
Effective Date with the Debtors’ officers, directors, or employees, who will
continue in such capacities or similar capacities after the Effective Date, or
retirement income plans and welfare benefit plans for such persons, shall remain
in place after the Effective Date, and the Reorganized Debtors will continue to
honor such agreements, arrangements, programs and plans; provided, however, that
the foregoing shall not apply to any stock-based compensation or incentive 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. For the avoidance of doubt, the
Debtors shall continue to provide certain retiree welfare benefits under certain
of its retiree welfare benefit plans to the extent required under a separate
agreement entered into with the United Steelworkers, to be approved by the
Bankruptcy Court in connection with Confirmation of the Plan, which requires the
Debtors to modify and maintain such benefits under such plans.
Pursuant
to the Plan, the Debtors or Reorganized Debtors, as applicable, shall continue
the U.S. Pension Plans. The U.S. Pension Plans shall be continued in
accordance with their terms, and the Debtors or the Reorganized Debtors, as
applicable, shall satisfy the minimum funding standards pursuant to 26 U.S.C. §§
412 and 430 and 29 U.S.C. §§ 1082 and 1083, be liable for the payment of PBGC
premiums in accordance with Title IV of ERISA, 29 U.S.C. §§ 1306 and 1307,
subject to any and all applicable rights and defenses of the Debtors, and
administer the U.S. Pension Plans in accordance with the provisions of ERISA and
the Internal Revenue Code. Notwithstanding any provision of the Plan
or the Confirmation Order to the contrary, the U.S. Pension Plans shall be
continued and administered in accordance with ERISA and the Internal Revenue
Code.
All
Non-Qualified Pension Arrangements shall be deemed assumed as of the Effective
Date to the extent they are Executory Contracts, or will be Reinstated pursuant
to Section
3.3(d)(i)(B) or Section
3.3(d)(ii)(B), as applicable. Any monetary default under the
Non-Qualified Pension Arrangements to be so assumed or Reinstated hereunder
shall be satisfied in accordance with Section 6.3 or as
otherwise may be agreed to by the Debtors (with the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent shall
not be unreasonably withheld) and the beneficiaries of the Non-Qualified Pension
Arrangements, and any postpetition interest paid on account of such Claims shall
be paid at the federal judgment rate as of the Petition
Date. Assumption or Reinstatement of any Non-Qualified Pension
Arrangement pursuant to the Plan or otherwise and payment of postpetition
interest in accordance with the preceding sentence shall be deemed to provide
full satisfaction of all prepetition Claims arising under any assumed
Non-Qualified Pension Arrangement including those set forth in Proofs of Claim
Nos. 1069, 1973, 1974, 1975, 2046, 2048, 2049, 2081, 2084, 2086, 2088, 2165,
2166, 2167, 2168, 2169, 2170, 2171, 2172, 2173, 2174, 2198, 2199, 2239, 2336,
2337, 2338, 2353, 2355, 9496 and 10234.
5.22
|
The Incentive
Plans
|
The terms
of the Incentive Plans shall be as set forth in the Plan
Supplement.
33
5.23
|
Vesting of Assets in
the Reorganized Debtors
|
Except as
otherwise provided in the Plan or any agreement, instrument or other document
incorporated therein, on the Effective Date and all property in each Estate, all
Causes of Action (except those released pursuant to the Releases by the Debtors)
shall vest in each respective Reorganized Debtor, free and clear of all Liens,
Claims, charges or other encumbrances (except for Liens, if any, granted to
secure the Exit Financing). On and after the Effective Date, except
as otherwise provided in the Plan (including, without limitation, the provisions
of Section 8.1 of
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.
5.24
|
Restructuring
Transactions
|
On the
Effective Date or as soon as reasonably practicable thereafter, the Reorganized
Debtors intend to simplify and rationalize their corporate structure by
eliminating certain entities that are deemed no longer essential to the
Reorganized Debtors and may take all actions as may be necessary or appropriate
to effect such transactions, including any transaction described in, approved
by, contemplated by or necessary to effectuate the Plan, including: (1) the
execution and delivery of appropriate agreements or other documents of merger,
consolidation, restructuring, conversion, disposition, transfer, dissolution 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 or dissolution
pursuant to applicable state 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. Prior
to the Effective Date, the Debtors shall have obtained the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent shall
not be unreasonably withheld, regarding their intentions with respect to the
restructuring transactions.
5.25
|
Corporate
Action
|
Upon the
Effective Date, all actions contemplated by the Plan (including the
simplification of the Reorganized Debtors’ corporate structure) shall be deemed
authorized and approved in all respects, including (1) entry into the New
Employment Agreements; (2) selection of the directors and officers of the
Reorganized Debtors; (3) the execution of and entry into the Exit
Financing; (4) the distribution of the New Common Stock as provided herein;
(5) the establishment of the Diacetyl Reserve and the Environmental Reserve and,
if elected by the Debtors, the Diacetyl Trust and the Environmental Trust; and
(6) all other actions contemplated by 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 directors or officers of the Debtors or the
Reorganized Debtors.
5.26
|
Effectuating
Documents; Further
Transactions
|
On and
after the Effective Date, the Reorganized Debtors and the managers, officers and
members of the boards of directors thereof are authorized to issue, execute,
deliver, file or record such contracts, securities, instruments, releases and
other agreements or documents related to the foregoing and take such actions as
may be necessary or appropriate to effectuate, implement and further evidence
the terms and conditions of the Plan (including the Exit Financing) 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. The authorizations and approvals contemplated by this Section 5.26
shall be effective notwithstanding any requirements under non-bankruptcy
law.
34
5.27
|
Section 1146
Exemption from Certain Taxes and
Fees
|
Pursuant
to section 1146(a) of the Bankruptcy Code, any transfers of property
pursuant to the Plan shall not be subject to any stamp tax or other similar tax
or governmental assessment in the United States, and the Confirmation Order
shall direct and be deemed to direct the appropriate state or local governmental
officials or agents to forgo the collection of any such tax or governmental
assessment and to accept for filing and recordation instruments or other
documents pursuant to such transfers of property without the payment of any such
tax or governmental assessment. Such exemption specifically applies,
without limitation, to (1) the creation of any mortgage, deed of trust,
lien or other security interest; (2) the making or assignment of any lease or
sublease; (3) any restructuring transaction authorized by Section 5.24
hereof; or (4) the making or delivery of any deed or other instrument of
transfer under, in furtherance of or in connection with the Plan, including: (a)
any merger agreements; (b) agreements of consolidation, restructuring,
disposition, liquidation or dissolution; (c) deeds; or (d) assignments executed
in connection with any transaction occurring under the Plan.
5.28
|
D&O Liability
Insurance Policies
|
Notwithstanding
anything herein to the contrary, as of the Effective Date, the Debtors shall
assume (and assign to the Reorganized Debtors if necessary to continue the
D&O Liability Insurance Policies in full force) all of the D&O Liability
Insurance Policies pursuant to section 365(a) of the Bankruptcy
Code. Entry of the Confirmation Order shall constitute the Bankruptcy
Court’s approval of the Debtors’ foregoing assumption of each of the D&O
Liability Insurance Policies. Notwithstanding anything to the
contrary contained herein, Confirmation of the Plan shall not discharge, impair
or otherwise modify any obligations assumed by the foregoing assumption of the
D&O Liability Insurance Policies, and each such obligation shall be deemed
and treated as an Executory Contract that has been assumed by the Debtors under
the Plan as to which no Proof of Claim need be filed. On or before
the Effective Date, the Reorganized Debtors shall obtain reasonably sufficient
tail coverage (i.e.,
D&O insurance coverage that extends beyond the end of the policy period)
under a directors and officers’ liability insurance policy for the current and
former directors, officers and managers for a period of five years, and placed
with such insurers, the terms of which shall be set forth in the Plan
Supplement.
5.29
|
Preservation of Rights
of Action
|
In
accordance with section 1123(b) of the Bankruptcy Code, and except where
such Causes of Action have been expressly released (including, for the avoidance
of doubt, pursuant to the Releases by the Debtors provided by Section 11.2 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, 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 or the Disclosure Statement to any Cause of
Action against them as any indication that the Debtors or Reorganized Debtors,
as applicable, will not pursue any and all available Causes of Action against
them. Except with respect to Causes of Action as to which the Debtors
or Reorganized Debtors have released any Person or Entity on or before the
Effective Date (including pursuant to the Releases by the Debtors or otherwise),
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.
5.30
|
Single Satisfaction of
Claims
|
Holders
of Allowed Claims may assert such Claims against each Debtor obligated with
respect to such Claim, and such Claims shall be entitled to share in the
recovery provided for the applicable Class of Claims against each obligated
Debtor based upon the full Allowed amount of the
Claim. Notwithstanding the foregoing, in no case shall the aggregate
value of all property received or retained under the Plan on account of Allowed
Claims exceed 100% of the underlying Allowed Claim plus applicable
interest.
35
ARTICLE
VI
TREATMENT
OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1
|
Assumption and
Rejection of Executory Contracts and Unexpired
Leases
|
Except as
otherwise provided herein, or in any contract, instrument, release, indenture or
other agreement or document entered into in connection with the Plan, each of
Chemtura Corporation’s and the Subsidiary Debtors’ Executory Contracts and
Unexpired Leases shall be deemed rejected as of the Effective Date, unless such
Executory Contract or Unexpired Lease: (1) was assumed or rejected
previously by the Debtors; (2) previously expired or terminated pursuant to its
own terms; (3) is the subject of a motion to assume filed on or before the
Effective Date; or (4) is identified as an Executory Contract or Unexpired Lease
to be assumed pursuant to the Plan Supplement before the Effective
Date. In the event that Chemtura Canada becomes a Debtor before the
Effective Date, each of Chemtura Canada’s Executory Contracts and Unexpired
Leases shall be deemed assumed as of the Effective Date.
Entry of
the Confirmation Order shall constitute a Bankruptcy Court order approving the
assumptions or rejections of such Executory Contracts or Unexpired Leases as set
forth in the Plan, all pursuant to sections 365(a) and 1123 of the Bankruptcy
Code. Unless otherwise indicated, all assumptions or rejections of
Executory Contracts and Unexpired Leases pursuant to the Plan are effective as
of the Effective Date. Each Executory Contract or Unexpired Lease
assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a
third party before the Effective Date shall revest in and be fully enforceable
by the applicable contracting Reorganized Debtor in accordance with its terms,
except as such terms may have been modified by such
order. Notwithstanding anything to the contrary in the Plan, the
Debtors (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld) or the
Reorganized Debtors, as applicable, reserve the right to alter, amend, modify or
supplement the list of Executory Contracts and Unexpired Leases identified in
the Plan Supplement at any time before the Effective Date. After the
Effective Date, the Reorganized Debtors shall have the right to terminate, amend
or modify any intercompany contracts, leases or other agreements without
approval of the Bankruptcy Court.
6.2
|
Claims Based on
Rejection of Executory Contracts or Unexpired Leases.
|
All
proofs of Claim with respect to Claims arising from the rejection of Executory
Contracts or Unexpired Leases, if any, must be filed with the Bankruptcy Court
within 30 days after the date of entry of an order of the Bankruptcy Court
(including the Confirmation Order) approving such rejection. Any
Claims arising from the rejection of an Executory Contract or Unexpired Lease
not filed with the Bankruptcy Court within such time will be automatically
disallowed, forever barred from assertion and shall not be enforceable against
the Debtors or the Reorganized Debtors, the Estates or their property without
the need for any objection by the Reorganized Debtors or further notice to, or
action, order or approval of the Bankruptcy Court. All Allowed Claims
arising from the rejection of the Debtors’ Executory Contracts or Unexpired
Leases shall be classified as Class 4 General Unsecured Claims against the
applicable Debtor and shall be treated in accordance with Article III of the
Plan. The deadline to object to Claims arising from the rejection of
Executory Contracts or Unexpired Leases, if any, shall be the later of (a) 90
days following the date on which such Claim was filed and (b) such other
period of limitation as may be specifically fixed by an order of the Bankruptcy
Court for objecting to such Claims.
6.3
|
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, subject to the limitations described below, or on
such other terms as the parties to such Executory Contracts or Unexpired Leases
(and the Creditors’ Committee and the Ad Hoc Bondholders’ Committee, whose
consent shall not be unreasonably withheld) 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. At least fourteen days before
the Confirmation Hearing, the Debtors shall distribute, or cause to be
distributed, notices of proposed assumption and proposed amounts of Cure Claims
to the applicable third parties, which notices shall be in a format reasonably
acceptable to the Creditors’ Committee and shall include procedures for
objecting to proposed assumptions of Executory Contracts and Unexpired Leases
and any amounts of Cure Claims to be paid in connection therewith and resolution
of disputes by the Bankruptcy Court. Any objection by a counterparty
to an Executory Contract or Unexpired Lease to a proposed assumption or related
cure amount must be filed, served and actually received by counsel to the
Debtors and the Creditors’ Committee at least three days before the Confirmation
Hearing. Any counterparty to an Executory Contract or Unexpired Lease
that fails to object timely to the proposed assumption or cure amount will be
deemed to have assented to such assumption or cure amount. A list of
the Executory Contracts and Unexpired Leases to be assumed and the notices of
proposed assumption and proposed amounts of Cure Claims shall be included in the
Plan Supplement.
36
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 before the effective date of the
assumption.
6.4
|
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.
6.5
|
Reservation of
Rights.
|
Neither
the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the
Rejected Executory Contract and Unexpired Lease List, nor anything contained in
the Plan, shall constitute an admission by the Debtors that any such contract or
lease is in fact an Executory Contract or Unexpired Lease or that any
Reorganized Debtor 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 (with the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent shall
not be unreasonably withheld) or 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.
6.6
|
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 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.
37
6.7
|
Assumption
of Insurance Policies
|
Notwithstanding
anything in the Plan or the Confirmation Order, including any provision that
purports to be preemptory or supervening, on the Effective Date, each of the
Insurance Policies shall, as applicable, be deemed assumed to the extent such
Insurance Policies are Executory Contracts of the applicable Debtor under
section 365 of the Bankruptcy Code. Regardless of whether any
Insurance Policy is or is not an Executory Contract, on and after the Effective
Date, the Insurance Policies will remain valid and enforceable in accordance
with their terms, shall not be impaired by the Plan or Confirmation Order, and
the Debtors and the Insurers will perform their respective obligations to one
another, if any, under the Insurance Policies; provided, however, that nothing
contained in this Section 6.7 shall affect any Executory Contract or Claim of
any Entity other than the Insurers.
ARTICLE
VII
PROVISIONS
GOVERNING DISTRIBUTIONS
7.1
|
Total Enterprise
Value
|
Distributions
of New Common Stock to Holders of Allowed Claims, and the establishment and
maintenance of the Disputed Claims Reserve, Diacetyl Reserve and Environmental
Reserve, as described below, shall be based upon, among other things, the New
Chemtura Total Enterprise Value. For purposes of distribution, the
New Common Stock shall be deemed to have the value assigned to it based upon,
among other things, the New Chemtura Total Enterprise Value regardless of the
date of distribution.
7.2
|
Record Date for
Distributions
|
As of the
entry of the Confirmation Order, the various transfer registers for each of the
Classes of Claims or Interests as maintained by the Debtors or their respective
agents shall be deemed closed, and there shall be no further changes made to
reflect any new record holders of any Claims or Interests. The
Debtors shall have no obligation to recognize any transfer of Claims or
Interests occurring on or after the Distribution Record Date.
7.3
|
Timing and Calculation
of Amounts to Be Distributed
|
Except as
otherwise provided in the Plan, on the Effective Date or as soon as reasonably
practicable thereafter (or if a Claim or Interest is not an Allowed Claim or
Interest on the Effective Date, on the date that such a Claim or Interest
becomes an Allowed Claim or Interest, or as soon as reasonably practicable
thereafter), each holder of an Allowed Claim or Interest against the Debtors
shall receive the full amount of the distributions that the Plan provides for
Allowed Claims or Interests in the applicable Class and in the manner provided
herein. 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, distributions on account of any such Disputed Claims shall be made
pursuant to the provisions set forth in Article VIII
hereof. Except as otherwise provided herein (including in Section 7.6(a)
with respect to Disputed Claims), holders of Claims shall not be entitled to
interest, dividends or accruals on the distributions provided for herein,
regardless of whether such distributions are delivered on or at any time after
the Effective Date.
7.4
|
Disbursing
Agent
|
Except as
otherwise provided herein, all distributions under the Plan shall be made by the
Reorganized Debtors as Disbursing Agent or such other Entity designated by the
Reorganized Debtors as a Disbursing Agent on the Effective Date. To
the extent that any Entity other than the Reorganized Debtors or any of the
Indenture Trustees is designated as a Disbursing Agent, such Entity’s
designation and service thereunder shall be conditioned upon such Entity posting
a bond satisfactory to the Bankruptcy Court.
38
7.5
|
Rights and Powers of
Disbursing Agent
|
|
(a)
|
Powers
of the Disbursing Agent
|
The
Disbursing Agent shall be empowered to: (a) affect 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.
|
(b)
|
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.
7.6
|
Distributions on
Account of Claims Allowed After the Effective
Date
|
|
(a)
|
Payments
and Distributions on Disputed Claims and
Interests
|
Notwithstanding
any other provision of the Plan, no distributions shall be made under the Plan
on account of any Disputed Claim or Interest, unless and until such Claim or
Interest becomes an Allowed Claim or Interest. Distributions made
after the Effective Date to holders of Disputed Claims and Interests that are
not Allowed Claims and Interests as of the Effective Date but which later become
Allowed Claims and Interests shall be deemed to have been made on the
Effective Date, provided, however, that to the extent
a distribution after the Effective Date to the holder of a Disputed Claim or
Interest includes New Common Stock, such New Common Stock shall be distributed
together with all post-Effective Date accruals or dividends in connection
therewith, and provided, further, that to the extent a
Disputed Claim constituting a contract or trade claim arising in the ordinary
course of the Debtors’ business becomes an Allowed Claim, such Allowed Claim
shall include interest calculated in accordance with the principles set forth in
Section 3.3(n)(i).
|
(b)
|
Special
Rules for Distributions to Holders of Disputed Claims and
Interests
|
Notwithstanding
any provision otherwise in the Plan and except as may be agreed to by the
Debtors (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld) or the
Reorganized Debtors, on the one hand, and the holder of a Disputed Claim or
Interest, on the other hand, no partial payments and no partial distributions
shall be made with respect to any Disputed Claim or Interest until all Disputed
Claims and Interests held by the holder of such Disputed Claim or Interest have
become Allowed Claims or Interests or have otherwise been resolved by settlement
or Final Order.
7.7
|
Delivery of
Distributions and Undeliverable or Unclaimed
Distributions
|
|
(a)
|
Delivery
of Distributions in General
|
Except as
otherwise provided in the Plan, distributions to holders of Allowed Claims or
Interests shall be made to holders of record as of the Distribution Record Date
by the Disbursing Agent: (a) to the signatory set forth on any of the Proof
of Claim or Interest filed by such holder or other representative identified
therein (or at the last known addresses of such holder if no Proof of Claim or
Interest is filed or if the Debtors have been notified in writing of a change of
address); (b) at the addresses set forth in any written notices of address
changes delivered to the Disbursing Agent after the date of any related Proof of
Claim or Interest; (c) at the addresses reflected in the Schedules if no
Proof of Claim or Interest has been filed and the Disbursing Agent has not
received a written notice of a change of address; or (d) on any counsel
that has appeared in the Chapter 11 Cases on the holder’s
behalf. Distributions under the Plan on account of Allowed Claims and
Interests shall not be subject to levy, garnishment, attachment or like legal
process, so that each holder of an Allowed Claim or Interest shall have and
receive the benefit of the distributions in the manner set forth in the
Plan. None of the Debtors, the Reorganized Debtors and the applicable
Disbursing Agent shall incur any liability whatsoever on account of any
distributions under the Plan except for gross negligence, willful misconduct or
fraud.
39
Except as
otherwise provided in the Plan, all distributions to holders of Prepetition
Secured Lender Claims and Prepetition Unsecured Lender Claims shall be governed
by the Prepetition Credit Agreement, and shall be deemed completed when made to
the Prepetition Administrative Agent, who shall in turn make distributions in
accordance with the Prepetition Credit Agreement.
Except as
otherwise provided in the Plan, all distributions to holders of Notes Claims
shall be governed by the Notes and Indentures, and shall be deemed completed
when made to the Indenture Trustees, who shall in turn make distributions in
accordance with the Notes and Indentures.
|
(b)
|
Fractional
Distributions
|
Whenever
any payment of New Common Stock of a fraction pursuant to the Plan would
otherwise be required, the actual payment shall reflect a rounding of such
fraction to the nearest whole share (up or down), with half or less being
rounded down. Whenever any payment of Cash of a fraction of a dollar
pursuant to the Plan would otherwise be required, the actual payment shall
reflect a rounding of such fraction to the nearest whole dollar (up or down),
with half dollars or less being rounded down.
|
(c)
|
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 as soon as practicable after such distribution has
become deliverable or has been claimed to such holder without interest; provided, however, that such
distributions shall be deemed unclaimed property under section 347(b) of
the Bankruptcy Code and forfeited at the expiration of six months from the
applicable Distribution Date. After such date, all “unclaimed
property” or interests in property shall revert to the Reorganized Debtors
(notwithstanding any applicable federal 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.
7.8
|
Compliance with Tax
Requirements and Allocations
|
In
connection with the Plan and all instruments issued in connection therewith, to
the extent applicable, the Reorganized Debtors and the Distribution Agent shall
comply with all tax withholding and reporting requirements imposed on them by
any federal, state or local taxing authority, 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 Distribution 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, in their sole discretion, to allocate all distributions made
under the Plan in compliance with all applicable wage garnishments, alimony,
child support, other spousal awards, Liens, and encumbrances.
For tax
purposes, distributions in full or partial satisfaction of Allowed Claims shall
be allocated first to the principal amount of Allowed Claims, with any excess
allocated to unpaid interest that accrued on such Claims.
40
7.9
|
Setoffs
|
The
Debtors and the Reorganized Debtors may withhold (but not set off except as set
forth below) from the distributions called for under the Plan on account of any
Allowed Claim an amount equal to any claims, equity interests, rights and Causes
of Action of any nature that the Debtors or the Reorganized Debtors may hold
against the holder of any such Allowed Claim or Interest. In the
event that any such claims, equity interests, rights and Causes of Action of any
nature that the Debtors or the Reorganized Debtors may hold against the holder
of any such Allowed Claim or Interest are adjudicated by Final Order or
otherwise resolved, the Debtors may, pursuant to section 553 of the
Bankruptcy Code or applicable non-bankruptcy law, set off against any Allowed
Claim or Interest and the distributions to be made pursuant hereto on account of
such Allowed Claim (before any distribution is made on account of such Allowed
Claim or Interest) the amount of any adjudicated or resolved claims, equity
interests, rights and Causes of Action of any nature that the Debtors or the
Reorganized Debtors may hold against the holder of any such Allowed Claim or
Interest, but only to the extent of such adjudicated or resolved
amount. Neither the failure to effect such a setoff nor the allowance
of any Claim under the Plan shall constitute a waiver or release by the Debtors
or the Reorganized Debtors of any such claims, equity interests, rights and
Causes of Action that the Debtors or the Reorganized Debtors may possess
against any such holder, except as specifically provided herein.
7.10
|
Claims Paid or Payable
by Third Parties
|
|
(a)
|
Claims
Paid by Third Parties
|
The
Debtors or the Reorganized Debtors, as applicable, shall reduce in part or in
full an Allowed Claim to the extent that the holder of such Allowed Claim
receives payment in part or in full on account of such Allowed Claim from a
party that is not a Debtor or Reorganized Debtor. To the extent a
holder of an Allowed Claim receives a distribution on account of such Allowed
Claim and receives payment from a party that is not a Debtor or a Reorganized
Debtor on account of such Allowed 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 Allowed
Claim from the third party and under the Plan exceeds the amount of such Allowed
Claim as of the date of any such distribution under the Plan.
|
(b)
|
Claims
Payable by Third Parties
|
An
Insured Claim that has been settled, in whole or in part, with the express
written consent of an Insurer, or resolved by a judgment entered after an actual
trial or by summary judgment, may be expunged or reduced 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 settled with the express
written consent of an Insurer or resolved by a judgment entered after an actual
trial or by summary judgment.
|
(c)
|
Applicability
of Insurance Policies
|
Except as
otherwise provided in the Plan, distributions to holders of Allowed Insured
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
VIII
PROCEDURES
FOR RESOLVING CONTINGENT,
UNLIQUIDATED
AND DISPUTED CLAIMS OTHER THAN DIACETYL CLAIMS
8.1
|
Prosecution of
Objections to Claims
|
The
Debtors, with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld (before
the Effective Date), or the Reorganized Debtors (on or after the Effective
Date), as applicable, shall have the exclusive authority to file, settle,
compromise, withdraw or litigate to judgment any objections to Claims as
permitted under the Plan. From and after the Effective Date, the
Reorganized Debtors may settle or compromise any Disputed Claim without
approval of the Bankruptcy Court if the Allowed amount of such Disputed Claim is
equal to or less than $100,000. If, however, the Allowed amount of
such Disputed Claim is greater than $100,000, the Reorganized Debtors shall file
a notice of the proposed settlement with the Bankruptcy
Court. Parties in interest shall have ten days from the filing of
such notice to object to the proposed settlement. If no objections
are received on or before the tenth day, the Disputed Claim shall be deemed
resolved for the amount proposed in the notice. If, however, any
objections are made in writing to the proposed settlement, a hearing shall be
held before the Bankruptcy Court to resolve such objection. Subject
to the procedures set forth herein, the Debtors reserve all rights to resolve
any Disputed Claim outside the Bankruptcy Court under applicable governing
law.
41
8.2
|
Allowance of Claims
and Interests
|
Except as
expressly provided herein or in any order entered in the Chapter 11 Cases before
the Effective Date (including the Confirmation Order), the Reorganized Debtors
after the Effective Date will have and retain any and all rights and defenses
held by the Debtors with respect to any Claim as of the Petition
Date. All claims of any Entity that owes money to the Debtors shall
be disallowed unless and until such Entity pays, in full, the amount it owes the
Debtors.
8.3
|
Disputed Claims
Reserve
|
On the
Effective Date (or as soon thereafter as is reasonably practicable), New
Chemtura shall deposit in the Disputed Claims Reserve the amount of Cash and New
Common Stock that would have been distributed to the holders of all Disputed
Unsecured Claims as if such Disputed Unsecured Claims had been Allowed Claims on
the Effective Date, with the amount of such Allowed Claims to be determined,
solely for the purposes of establishing reserves and for maximum distribution
purposes, to be (a) the lesser of (i) the asserted amount of each Disputed
Unsecured Claim filed with the Bankruptcy Court as set forth in the Proof of
Claim or as provided by the parties to the Debtors as further information with
respect to the Proof of Claim, or (if no Proof of Claim was filed) scheduled by
the Debtors, and (ii) the amount, if any, estimated by the Bankruptcy Court
pursuant to section 502(c) of the Bankruptcy Code pursuant to Section 8.7 or
ordered by other order of the Bankruptcy Court, or (b) the amount otherwise
agreed to by the Debtors, the Creditors’ Committee, the Ad Hoc Bondholders’
Committee and the holder of such Disputed Unsecured Claims for reserve
purposes. The Debtors shall establish segregated reserves within the
Disputed Claims Reserve as set forth in the Order Establishing A Distribution
Reserve Amount with Respect to Disputed Claims in Connection with Confirmation
of the Joint Chapter 11 Plan of Chemtura Corporation, et al., dated
October 29, 2010 [Docket No. 4383] (the “Disputed Claims Reserve
Order”).
8.4
|
Distributions After
Allowance
|
On the
Distribution Date following 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, except that Claims on
account of goods and services shall receive interest for the time period between
the Petition Date and the date such Claim becomes Allowed, payable at the
contract rate to the extent allowable under law, or, if no allowable contract
rate is specified, the federal judgment rate as of the Petition
Date.
8.5
|
Distribution of Excess
Amounts in the Disputed Claims
Reserve
|
|
(a)
|
Distributions
Following Resolution of All Claims.
|
When all
Disputed Claims are resolved and either become Allowed or are disallowed by
Final Order, to the extent Cash or New Common Stock remains in the Disputed
Claims Reserve after all holders of Disputed Claims that have become Allowed for
each of the Debtors have been paid the full amount they are entitled to pursuant
to the treatment set forth for the appropriate Class under the Plan, then (i) if
Class 13a for Chemtura Corporation has voted to accept the Plan, then holders of
Claims in the Participating Creditor Classes (to the extent they have not been
paid in full, plus postpetition interest as applicable pursuant to Section 3.3(n)(i))
shall receive their Pro Rata share of such remaining Cash and New Common Stock,
in accordance with the Shortfall Readjustment, until they have been paid in full
with all applicable interest, with any excess Cash returned to the Reorganized
Debtors for general corporate use and with any excess New Common Stock being
cancelled or held as treasury stock and (ii) if Class 13a for Chemtura
Corporation has voted to reject the Plan, and if all holders of Claims in the
Participating Creditor Classes have been paid in full, plus postpetition
interest as applicable pursuant to Section 3.3(n)(i),
each holder of an Interest in Class 13a for Chemtura Corporation shall receive
its Pro Rata share of such excess Cash and New Common Stock.
42
The
release of distributable value from the segregated reserves within the Disputed
Claims Reserve established pursuant to the Disputed Claims Reserve Order shall
be treated pursuant to paragraph 4 of the Disputed Claims Reserve
Order.
|
(b)
|
Periodic
Distributions from Disputed Claims
Reserve.
|
Pursuant
to the following procedures, parties in interest may periodically request, on
notice and a hearing, that the Bankruptcy Court review the remaining amount of
the Disputed Claims Reserve, in light of the estimated aggregate value of
Disputed Claims remaining to be liquidated, to determine whether any Disputed
Claims Reserve Periodic Distribution is
appropriate. Specifically:
|
(i)
|
until
all Disputed Claims are resolved and a final distribution is made pursuant
to Section
8.5(a) hereof, each quarter within 10 business days after the
Debtors file a report on Form 10-Q with the United States Securities and
Exchange Commission, the Debtors shall provide a report (each such report,
a “Quarterly Claims
Report”) to the Creditors’ Committee and the Equity Committee
regarding the remaining Disputed Claims that is generally consistent in
substance with reports provided to the Creditors’ Committee and the Equity
Committee pre-confirmation, which report shall include the Debtors’
reasonable high-end estimate of the aggregate value of the remaining
Disputed Claims subject to the Disputed Claims Reserve (the “High-End Estimate”),
prepared consistent with the methodology used
pre-confirmation;
|
|
(ii)
|
after
each Quarterly Report is provided, following a reasonable period for
consultation with the Equity Committee and the Creditors’ Committee, the
Debtors shall consider whether a reduction of the Disputed Claims Reserve
is warranted such that a Disputed Claims Reserve Periodic Distribution
would be appropriate, and there shall be a rebuttable presumption that the
Disputed Claims Reserve shall be maintained at the High-End Estimate plus
20 percent;
|
|
(iii)
|
if
the Debtors determine following review and consultation with the Equity
Committee and the Creditors Committee that a reduction is warranted, the
Debtors shall file a motion, on notice and with opportunity for a hearing,
for approval by the Bankruptcy Court of a Disputed Claims Reserve Periodic
Distribution, and if the Debtors do not file such a motion on or before 30
days following the date that the Quarterly Claims Report is distributed,
any other party interest, including the Creditors’ Committee and the
Equity Committee, may file such a motion, provided, for the avoidance of
doubt, that no party may move for an increase in the Disputed Claims
Reserve; and
|
|
(iv)
|
if
the Bankruptcy Court orders a reduction in the amount of the Disputed
Claims Reserve, and if all holders of Claims in the Participating Creditor
Classes (except holders of Claims that are Disputed Claims as of the date
any motion for approval of a Disputed Claims Reserve Periodic Distribution
is filed) have been paid in full, plus postpetition interest as applicable
pursuant to Section
3.3(n)(i), the amount of the reduction shall be distributed to
holders of Interest in Class 13a for Chemtura Corporation as a Disputed
Claims Reserve Periodic Distribution, with such distribution to occur as
soon as reasonably practicable following entry of the order approving such
reduction.
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43
8.6
|
Property Held in the
Disputed Claims Reserve
|
Each
holder of a Disputed Unsecured Claim (other than a holder of a Disputed Claim
identified as an “Objecting Creditor” in the Disputed Claims Reserve Order,
which holders shall be subject to reserves or receive distributions consistent
with such order), that ultimately becomes an Allowed Unsecured Claim will have
recourse only to the undistributed Cash and New Common Stock held in the
Disputed Claims Reserve for satisfaction of the distributions to which holders
of Allowed Unsecured Claims are entitled under the Plan, and not to any
Reorganized Debtor, their property or any assets previously distributed on
account of any Allowed Claim.
8.7
|
Estimation of
Claims
|
The
Debtors and the Creditors’ Committee, in consultation with the Ad Hoc
Bondholders’ Committee (before the Effective Date), or Reorganized Debtors (on
or after the Effective Date) may, at any time, and from time to time, request
that the Bankruptcy Court estimate any Disputed Claim pursuant to
section 502(c) of the Bankruptcy Code regardless of whether an objection
was previously filed with the Bankruptcy Court with respect to such Claim, or
whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy
Court will retain jurisdiction to estimate any Claim at any time during
litigation concerning any objection to any Claim, including during the pendency
of any appeal relating to any such objection. In the event that the
Bankruptcy Court estimates any Disputed Claim, that estimated amount will
constitute either the Allowed amount of such Claim or a maximum limitation on
such Claim against any party or Entity, as determined by the Bankruptcy
Court. If the estimated amount constitutes a maximum limitation on
such Claim, the Debtors and the Creditors’ Committee (before the Effective Date)
or the Reorganized Debtors (after the Effective Date), may elect to pursue any
supplemental proceedings to object to any ultimate distribution on such
Claim. All of the objection, estimation, settlement and resolution
procedures set forth in the Plan are cumulative and not necessarily exclusive of
one another. Claims may be estimated and subsequently compromised,
objected to, settled, withdrawn or resolved by any mechanism approved by the
Bankruptcy Court.
8.8
|
Deadline to File
Objections to Claims
|
Any
objections to Claims shall be filed no later than the Claims Objection Bar Date,
provided, however, that to the extent an Objection to a Disputed Claim is
withdrawn, settled or compromised without approval of the Bankruptcy Court,
deemed resolved subject to the procedures set forth in Section 8.1 or
adjudicated by the Bankruptcy Court, the Debtors shall have 30 days from the
date of withdrawal, settlement, compromise, resolution or adjudication to object
to the Claim on any additional grounds.
ARTICLE
IX
PROCEDURES
FOR RESERVING FOR ENVIRONMENTAL CLAIMS
9.1
|
Formation of
Environmental Trust
|
The
Debtors, with the consent of the Creditors’ Committee and Ad Hoc Bondholders’
Committee, which consent shall not be unreasonably withheld (before the
Effective Date), or the Reorganized Debtors (on or after the Effective Date), as
applicable, shall have the authority to establish an Environmental Trust, and
shall be authorized to contribute to such Environmental Trust the Cash that
constitutes the Environmental Reserve. To the extent deemed
appropriate and helpful by the Reorganized Debtors, the Debtors shall treat and
designate such Environmental Trust as a qualified settlement fund pursuant to
Treasury Regulation Section 1.468-1B.
9.2
|
Environmental
Reserve
|
On the
Effective Date (or as soon thereafter as is reasonably practicable), and solely
to the extent that the Debtors do not reach a negotiated settlement pursuant to
Bankruptcy Rule 9019 and section 1123 of the Bankruptcy Code and approved by
order of the Bankruptcy Court and that a Disputed Environmental Claim is not
Reinstated (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld) based
upon the applicable Debtor’s election pursuant to Section 3.3(k) of the
Plan, Chemtura Corporation and the Subsidiary Debtors shall fully fund the
Environmental Reserve with Cash based upon the amount determined by the
Bankruptcy Court or agreed to by the Debtors (with the consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee, which consent shall not be
unreasonably withheld) and the holders of Disputed Environmental
Claims.
44
On the
Effective Date (or as soon thereafter as is reasonably practicable), and to the
extent that Chemtura Corporation and the Subsidiary Debtors fund the
Environmental Reserve pursuant to the preceding paragraph, and to the extent
that Chemtura Corporation or the Subsidiary Debtors have entered into any
negotiated settlements that are the subject of motions pursuant to Bankruptcy
Rule 9019 and section 1123 of the Bankruptcy Code filed with the Bankruptcy
Court and pending approval as of the Effective Date, Chemtura Corporation and
the Subsidiary Debtors shall provide for segregated reserves within the
Environmental Reserve, each in the amount of the negotiated settlement as set
forth in the corresponding pending motion. The Debtors may establish additional
segregated reserves within the Environmental Reserve as authorized by the
Bankruptcy Court.
9.3
|
Distributions from the
Environmental Reserve
|
To the
extent that Chemtura Corporation and the Subsidiary Debtors fund the
Environmental Reserve pursuant to Section 9.2, and to
the extent that a Disputed Environmental Claim ultimately becomes an Allowed
Environmental Claim, distributions (if any) shall be made to the holder of such
Allowed Environmental Claim in accordance with the terms of this
Plan. On the Initial Distribution Date, the Disbursing Agent shall
provide to each holder an of Allowed Environmental Claim a distribution (if any)
from the Environmental Reserve equal to its Allowed Environmental Claim, without
any interest to be paid on account of such Claim.
9.4
|
Distribution of Excess
Amounts in the Environmental
Reserve
|
When all
Environmental Claims are resolved and either become Allowed or are disallowed by
Final Order, to the extent Cash remains in the Environmental Reserve after all
holders of Environmental Claims that have become Allowed for Chemtura
Corporation and each of the Subsidiary Debtors have been paid in full, then (a)
if Class 13a for Chemtura Corporation has voted to accept the Plan, then such
remaining Cash shall be divided on a Pro Rata basis among holders of Claims in
the Participating Creditor Classes (to the extent they have not been paid in
full, plus postpetition interest as applicable pursuant to Section 3.3(n)(i))
and the Disputed Claims Reserve, until all holders of Claims in the
Participating Creditor Classes have been paid in full, plus postpetition
interest as applicable pursuant to Section 3.3(n)(i)),
with any excess to be transferred to, and become a part of, the Disputed Claims
Reserve for ultimate distribution pursuant to Article VIII, and (b)
if Class 13a for Chemtura Corporation has voted to reject the Plan, any Cash
remaining in the Environmental Reserve shall be transferred to, and shall become
a part of, the Disputed Claims Reserve for ultimate distribution pursuant to
Article VIII,
and if all holders of Claims in the Participating Creditor Classes have been
paid in full, plus postpetition interest as applicable pursuant to Section 3.3(n)(i),
each holder of an Interest in Class 13a for Chemtura Corporation shall receive
its Pro Rata share of such excess Cash.
9.5
|
Property Held in the
Environmental Reserve
|
Each
holder of a Disputed Environmental Claim that ultimately becomes an Allowed
Environmental Claim will have recourse only to the Environmental Reserve for
satisfaction of the distributions to which holders of Allowed Environmental
Claims are entitled under the Plan, and not to any Reorganized Debtor, their
property or any assets previously distributed on account of any Allowed
Claim.
ARTICLE
X
PROCEDURES
FOR RESERVING FOR AND RESOLVING DIACETYL CLAIMS
10.1
|
Formation of Diacetyl
Trust
|
The
Debtors, with the consent of the Creditors’ Committee and Ad Hoc Bondholders’
Committee, which consent shall not be unreasonably withheld (before the
Effective Date), or the Reorganized Debtors (on or after the Effective Date), as
applicable, shall have the authority to establish a Diacetyl Trust, and shall be
authorized to contribute to such Diacetyl Trust the Cash that constitutes the
Diacetyl Reserve. To the extent deemed appropriate and helpful by the
Reorganized Debtors, the Debtors shall treat and designate such Diacetyl Trust
as a qualified settlement fund pursuant to Treasury Regulation
Section 1.468-1B.
45
10.2
|
Objections to Diacetyl
Claims
|
The
Debtors, with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld (before
the Effective Date), or the Reorganized Debtors (on or after the Effective
Date), as applicable, shall have the exclusive authority to file, settle,
compromise, withdraw, or litigate to judgment any objections to Diacetyl Claims
as permitted under the Plan. From and after the Effective Date, the
Reorganized Debtors may settle or compromise any Disputed Diacetyl Claim
without approval of the Bankruptcy Court if the Allowed amount of such Disputed
Diacetyl Claim is equal to or less than $100,000. If, however, the
Allowed amount of such Disputed Diacetyl Claim is greater than $100,000, the
Reorganized Debtors shall file a notice of the proposed settlement with the
Bankruptcy Court. Parties in interest shall have ten days from the
filing of such notice to object to the proposed settlement. If no
objections are received on or before the tenth day, the Disputed Diacetyl Claim
shall be deemed resolved for the amount proposed in the notice. If,
however, any objections are made in writing to the proposed settlement, a
hearing shall be held before the Bankruptcy Court to resolve such
objection. Subject to the procedures set forth herein, the Debtors
reserve all rights to resolve any Disputed Diacetyl Claim outside the Bankruptcy
Court under applicable governing law.
10.3
|
Diacetyl
Reserve
|
On the
Effective Date (or as soon thereafter as is reasonably practicable), New
Chemtura and Chemtura Canada shall fully fund the Diacetyl Reserve with Cash
based upon the Diacetyl Claim Value. The Diacetyl Reserve shall be
comprised of segregated reserves for any negotiated settlements that are the
subject of motions pursuant to Bankruptcy Rule 9019 and section 1123 of the
Bankruptcy Code filed with the Bankruptcy Court and pending approval as of the
Effective Date and any Disputed Diacetyl Claims accounted for in the Bankruptcy
Court’s order determining the Diacetyl Claim Value. The segregated
reserves may be established by the categories of the Diacetyl Claims set forth
in the Bankruptcy Court’s order determining the Diacetyl Claim Value and need
not be established on an individual Claim basis.
10.4
|
Distributions from the
Diacetyl Reserve
|
To the
extent that a Disputed Diacetyl Claim ultimately becomes an Allowed Diacetyl
Claim, distributions (if any) shall be made to the holder of such Allowed
Diacetyl Claim in accordance with the terms of this Plan. On the
Distribution Date following the date that the order or judgment of the
Bankruptcy Court allowing any Disputed Diacetyl Claim becomes a Final Order, the
Disbursing Agent shall provide to the holder of such Allowed Diacetyl Claim a
distribution (if any) from the applicable segregated reserve within the Diacetyl
Reserve equal to (a) its Allowed Insured Deficiency Claim, if such Diacetyl
Claim is an Insured Claim, or (b) its Allowed Diacetyl Claim, if such Diacetyl
Claim is not an Insured Claim. In no event shall any interest be paid
on account of any such Claim. For the avoidance of doubt, no holder
of an Allowed Diacetyl Claim shall receive more than 100% of such Allowed Claim
through payments under Insurance Policies or distributions pursuant to this Plan
or any combination thereof.
10.5
|
Distribution of Excess
Amounts in the Diacetyl
Reserve
|
When
Diacetyl Claims that are subject to segregated reserves within the Diacetyl
Reserve are resolved and either become Allowed or are disallowed by Final Order,
to the extent Cash remains in the segregated reserves within the Diacetyl
Reserve after the applicable holders of Diacetyl Claims that have become Allowed
for Chemtura Corporation and Chemtura Canada have been paid in full, then (a) if
Class 13a for Chemtura Corporation has voted to accept the Plan, then such
remaining Cash shall be divided on a Pro Rata basis among holders of Claims in
the Participating Creditor Classes (to the extent they have not been paid in
full, plus postpetition interest as applicable pursuant to Section 3.3(n)(i))
and the Disputed Claims Reserve, until all holders of Claims in the
Participating Creditor Classes have been paid in full, plus postpetition
interest as applicable pursuant to Section 3.3(n)(i)), with any excess to be
transferred to, and become a part of, the Disputed Claims Reserve for ultimate
distribution pursuant to Article VIII, and (b) if Class 13a for Chemtura
Corporation has voted to reject the Plan, any Cash remaining in the Diacetyl
Reserve shall be transferred to, and shall become a part of, the Disputed Claims
Reserve for ultimate distribution pursuant to Article VIII, and if all holders
of Claims in the Participating Creditor Classes have been paid in full, plus
postpetition interest as applicable pursuant to Section 3.3(n)(i), each holder
of an Interest in Class 13a for Chemtura Corporation shall receive its Pro Rata
share of such excess Cash.
46
10.6
|
Property Held in the
Diacetyl Reserve
|
Each
holder of a Disputed Diacetyl Claim that ultimately becomes an Allowed Diacetyl
Claim will have recourse only to the Diacetyl Reserve and any available
Insurance Proceeds for satisfaction of the distributions to which holders of
Allowed Diacetyl Claims are entitled under the Plan, and not to any Reorganized
Debtor, their property or any assets previously distributed on account of any
Allowed Claim.
ARTICLE
XI
SETTLEMENT,
RELEASE, INJUNCTION AND RELATED PROVISIONS
11.1
|
Compromise and
Settlement of Claims, Interests and
Controversies
|
Pursuant
to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019 and in
consideration for the distributions and other benefits provided pursuant to the
Plan, the provisions of the Plan shall constitute a good faith compromise of all
Claims, Interests and controversies relating to the contractual, legal and
subordination rights that a holder of a Claim may have with respect to any
Allowed Claim or Interest, or any distribution to be made on account of such
Allowed Claim or Interest. The entry of the Confirmation Order shall
constitute the Bankruptcy Court’s approval of the compromise or settlement
of all such Claims, Interests and controversies, as well as a finding by the
Bankruptcy Court that such compromise or settlement is in the best interests of
the Debtors, their Estates and holders of Claims and Interests and is fair,
equitable and reasonable. In accordance with the provisions of the
Plan, pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule
9019(a), without any further notice to or action, order or approval of the
Bankruptcy Court, after the Effective Date, the Reorganized Debtors may
compromise and settle Claims against them and Causes of Action against other
Entities.
11.2
|
Releases by the
Debtors
|
Pursuant
to section 1123(b) of the Bankruptcy Code, and except as otherwise
specifically provided in the Plan or the Plan Supplement, for good and valuable
consideration, including the service of the Released Parties to facilitate
the reorganization of the Debtors and the implementation of the restructuring
contemplated by the Plan, on and after the Effective Date, the Released Parties
are deemed released and discharged by the Debtors, New Chemtura, the Reorganized
Debtors and the Estates from any and all Claims, obligations, rights, suits,
damages, Causes of Action, remedies and liabilities whatsoever, including any
derivative claims, asserted or assertable on behalf of the Debtors, whether
known or unknown, foreseen or unforeseen, existing or hereinafter arising, in
law, equity or otherwise, that the Debtors, New Chemtura, 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, 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 before or during the
Chapter 11 Cases, the negotiation, formulation or preparation of the Plan and
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 Effective Date, other than Claims
or liabilities arising out of or relating to any act or omission of a Released
Party that constitutes willful misconduct (including fraud) or gross
negligence. Notwithstanding anything to the contrary in the
foregoing, the release set forth above does not release any post-Effective Date
obligations of any Released Party under the Plan or any document, instrument or
agreement (including those set forth in the Plan Supplement) executed to
implement the Plan, nor does it release any Cause of Action, obligation or
liability expressly set forth in or preserved by the Plan or the Plan
Supplement. Additionally, nothing in the Chapter 11 Cases, the
Confirmation Order, the Plan, the Bankruptcy Code (including section 1141
thereof) or any other document filed in the Chapter 11 Cases shall in any way be
construed to discharge, release, limit, or relieve the Debtors, the Reorganized
Debtors, or any other party, in any capacity, from any liability or
responsibility with respect to the U.S. Pension Plans or any other defined
benefit plan under any law, governmental policy, or regulatory
provision. PBGC and the U.S. Pension Plans shall not be enjoined or
precluded from enforcing such liability or responsibility by any of the
provisions of the Plan, Confirmation Order, Bankruptcy Code, or any other
document filed in the Chapter 11 Cases.
47
11.3
|
Releases by Holders of
Claims and Interests
|
As
of the Effective Date, to the extent permitted by applicable law, each holder of
a Claim or an Interest shall be deemed to have conclusively, absolutely,
unconditionally, irrevocably and forever, released and discharged the Debtors,
New Chemtura, the Reorganized Debtors and the Released Parties from any and all
Claims, Interests, obligations, rights, suits, damages, Causes of Action,
remedies and liabilities whatsoever, 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 relating to, or in any manner arising from, in whole or in part, the Debtors,
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 before or during the Chapter 11 Cases, the
negotiation, formulation or preparation of the Plan, the Disclosure Statement,
the 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, other than Claims or liabilities
arising out of or relating to any act or omission of a Released Party that
constitutes willful misconduct (including fraud) or gross
negligence. 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.
11.4
|
Releases by Holders of
Diacetyl Claims
|
As
of the Effective Date, each holder of a Claim in Class 10 shall be deemed to
have conclusively, absolutely, unconditionally, irrevocably and forever,
released and discharged Chemtura Canada from any and all Claims, Interests,
obligations, rights, suits, damages, Causes of Action, remedies and liabilities
whatsoever, 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), consisting of, based on or
relating to, or in any manner arising from, in whole or in part, any Diacetyl
Claim.
11.5
|
Liabilities to, and
Rights of, Governmental
Units
|
Nothing in the Plan or Confirmation
Order, including, but not limited to, Article XI of the Plan, shall discharge,
release, or preclude: (i) any liability to a Governmental Unit that
is not a Claim; (ii) any Claim of a Governmental Unit arising on or after the
Confirmation Date; (iii) any liability to a Governmental Unit on the part of any
Person or Entity other than the Debtors or Reorganized Debtors; (iv) any valid
right of setoff or recoupment by a Governmental Unit; or (v) any criminal
liability. Nothing in the Plan or Confirmation Order shall enjoin or
otherwise bar any Governmental Unit from asserting or enforcing, outside the
Bankruptcy Court, any liability described in the preceding
sentence.
The discharge and injunction provisions
contained in the Plan and Confirmation Order are not intended and shall not be
construed to bar any Governmental Unit from, after the Confirmation Date,
pursuing any police or regulatory action, except to the extent those discharge
and injunction provisions bar a Governmental Unit from pursuing Claims or
obligations that are liquidated and settled in an Environmental Settlement
Agreement to which the Governmental Unit is a party (provided, however, that the
Governmental Unit may take any action to enforce such an Environmental
Settlement Agreement and may take any action subject to a reservation in such an
Environmental Settlement Agreement).
48
11.6
|
Exculpation
|
Except
as otherwise specifically provided in the Plan or Plan Supplement, no Exculpated
Party shall have or incur, and each Exculpated Party is hereby released and
exculpated from, any Exculpated Claim, obligation, Cause of Action or liability
for any Exculpated Claim, except for gross negligence or willful misconduct
(including fraud), but 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 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 Plan 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.
11.7
|
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, the distributions, rights and treatment that
are provided in the Plan shall be in full and final satisfaction, settlement,
release and discharge, effective as of the Effective Date, of all Claims,
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, in each case whether or
not: (1) a Proof of Claim or Interest based upon such Claim, debt,
right or Interest is filed or deemed filed pursuant to section 501 of the
Bankruptcy Code; (2) a Claim or Interest based upon such Claim, debt, right or
Interest is Allowed pursuant to section 502 of the Bankruptcy Code; or (3)
the holder of such a Claim or Interest has accepted the Plan. Except
as otherwise provided herein, any default by the Debtors or their Affiliates
with respect to any Claim or Interest that existed before 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,
except as otherwise expressly provided in the Plan.
11.8
|
Injunction
|
FROM AND
AFTER THE EFFECTIVE DATE, ALL ENTITIES ARE PERMANENTLY ENJOINED FROM COMMENCING
OR CONTINUING IN ANY MANNER, ANY CAUSE OF ACTION RELEASED OR TO BE RELEASED
PURSUANT TO THE PLAN OR THE CONFIRMATION ORDER.
FROM AND
AFTER THE EFFECTIVE DATE, TO THE EXTENT OF THE RELEASES AND EXCULPATION GRANTED
IN ARTICLE XI
HEREOF, THE RELEASING PARTIES SHALL BE PERMANENTLY ENJOINED FROM COMMENCING OR
CONTINUING IN ANY MANNER AGAINST THE RELEASED PARTIES AND THE EXCULPATED PARTIES
AND THEIR ASSETS AND PROPERTIES, AS THE CASE MAY BE, ANY SUIT, ACTION OR OTHER
PROCEEDING, ON ACCOUNT OF OR RESPECTING ANY CLAIM, DEMAND, LIABILITY,
OBLIGATION, DEBT, RIGHT, CAUSE OF ACTION, INTEREST OR REMEDY RELEASED OR TO BE
RELEASED PURSUANT TO ARTICLE XI
HEREOF.
49
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THE PLAN, THE PLAN SUPPLEMENT OR RELATED
DOCUMENTS, 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
SECTIONS 11.2,
11.3 OR 11.4, OR DISCHARGED
PURSUANT TO SECTION 11.7 OR
ARE SUBJECT TO EXCULPATION PURSUANT TO SECTION 11.6,
ARE PERMANENTLY ENJOINED, FROM AND AFTER THE EFFECTIVE DATE, FROM TAKING ANY OF
THE FOLLOWING ACTIONS: (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
ESTATE OF SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO
ANY SUCH CLAIMS OR INTERESTS; AND (4) 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, SETTLED OR
DISCHARGED PURSUANT TO THE PLAN.
THE
RIGHTS AFFORDED IN THE PLAN AND THE TREATMENT OF ALL CLAIMS AND INTERESTS HEREIN
SHALL BE IN EXCHANGE FOR AND IN COMPLETE SATISFACTION OF ALL CLAIMS AND
INTERESTS OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON CLAIMS
FROM AND AFTER THE PETITION DATE, AGAINST THE DEBTORS OR ANY OF THEIR ASSETS,
PROPERTY OR ESTATES. ON THE EFFECTIVE DATE, ALL SUCH CLAIMS AGAINST
THE DEBTORS SHALL BE FULLY RELEASED AND DISCHARGED, AND THE INTERESTS SHALL BE
CANCELLED.
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED FOR HEREIN OR IN OBLIGATIONS ISSUED PURSUANT HERETO
FROM AND AFTER THE EFFECTIVE DATE, ALL CLAIMS AGAINST THE DEBTORS SHALL BE FULLY
RELEASED AND DISCHARGED, AND ALL INTERESTS SHALL BE CANCELLED, AND THE DEBTORS’
LIABILITY WITH RESPECT THERETO SHALL BE EXTINGUISHED COMPLETELY, INCLUDING ANY
LIABILITY OF THE KIND SPECIFIED UNDER SECTION 502(G) OF THE BANKRUPTCY
CODE.
ALL
ENTITIES SHALL BE PRECLUDED FROM ASSERTING AGAINST THE DEBTORS, THE DEBTORS’
ESTATES, THE REORGANIZED DEBTORS, EACH OF THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, AND EACH OF THEIR ASSETS AND PROPERTIES, ANY OTHER CLAIMS OR INTERESTS
BASED UPON ANY DOCUMENTS, INSTRUMENTS OR ANY ACT OR OMISSION, TRANSACTION OR
OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED BEFORE THE EFFECTIVE
DATE.
11.9
|
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.
11.10
|
Protection Against
Discriminatory Treatment
|
Consistent
with section 525 of the Bankruptcy Code and the Supremacy Clause of the
U.S. Constitution, all Entities, including Governmental Units, shall not
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 such Reorganized Debtors
have been associated, solely because one of the Debtors has been a debtor under
chapter 11, has been insolvent before the commencement of the Chapter 11 Cases
(or during the Chapter 11 Cases but before the Debtor is granted or denied a
discharge) or has not paid a debt that is dischargeable in the Chapter 11
Cases.
50
11.11
|
Release of
Liens
|
Except as
otherwise provided herein 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 Debtor and its successors and
assigns.
ARTICLE
XII
CONDITIONS
PRECEDENT TO CONFIRMATION OF THE PLAN AND THE EFFECTIVE DATE
12.1
|
Conditions Precedent
to Confirmation
|
It shall
be a condition to Confirmation hereof that the following provisions, terms and
conditions shall have been satisfied or waived pursuant to the provisions of
Section 12.5.
1. The
Bankruptcy Court shall have entered a Final Order, in form and substance
acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee, approving the Disclosure Statement with
respect to the Plan as containing adequate information within the meaning of
section 1125 of the Bankruptcy Code.
2. The
Confirmation Order (a) shall be a Final Order in form and substance acceptable
to the Debtors and reasonably acceptable to the Creditors’ Committee and the Ad
Hoc Bondholders’ Committee and (b) shall include a finding by the Bankruptcy
Court that the New Common Stock to be issued on the Effective Date will be
authorized and exempt from registration under applicable securities law pursuant
to section 1145 of the Bankruptcy Code.
3. The
Plan and the Plan Supplement, including any schedules, documents, supplements
and exhibits thereto (in each case in form and substance) shall be reasonably
acceptable to the Debtors, the Creditors’ Committee and the Ad Hoc Bondholders’
Committee.
12.2
|
Additional Condition
Precedent to Confirmation
|
In the event Chemtura Canada becomes a
Debtor before the Confirmation Date, it shall also be a condition to
Confirmation hereof that the following provision, term and condition shall have
been satisfied or waived pursuant to the provisions of Section
12.4: The Canadian Recognition Order shall be a Final Order in
form and substance acceptable to the Debtors and reasonably acceptable to the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee.
12.3
|
Conditions Precedent
to the Effective Date
|
It shall
be a condition to the Effective Date that the following provisions, terms and
conditions shall have been satisfied or waived pursuant to the provisions of
Section 12.4.
1. The
Bankruptcy Court shall have entered one or more Final Orders (which may include
the Confirmation Order) authorizing the assumption and rejection of executory
contracts and unexpired leases by the Debtors as contemplated
herein.
2. The
Exit Financing shall have been executed and delivered by all of the Entities
that are parties thereto, and all conditions precedent to the consummation
thereof shall have been waived by the Debtors, with the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent shall
not be unreasonably withheld, or satisfied in accordance with the terms thereof,
and funding pursuant to the Exit Financing shall have occurred.
51
3. The
Confirmation Order shall have become a Final Order in form and substance
acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee.
4. All
of the schedules, documents, supplements and exhibits to the Plan shall have
been filed in form and substance reasonably acceptable to the Debtors, the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee.
5. The
Effective Date shall occur no later than November 15, 2010.
12.4
|
Additional Conditions
Precedent to the Effective
Date
|
In the event Chemtura Canada becomes a
Debtor before the Confirmation Date, it shall also be a condition to the
Effective Date that the following provisions, terms and conditions shall have
been satisfied or waived pursuant to the provisions of Section 12.5:
1. The
Canadian Recognition Order shall be a Final Order in form and substance
acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee.
2. The
Canadian Confirmation Order shall be a Final Order in form and substance
acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee
and the Ad Hoc Bondholders’ Committee.
12.5
|
Waiver of
Conditions
|
The
conditions to Confirmation of the Plan and to Consummation of the Plan set forth
in this Article
XII may be waived at any time by the Debtors, with the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent shall
not be unreasonably withheld; provided, however, that the
Debtors may not waive entry of the Order approving the Disclosure Statement and
the Confirmation Order, and, to the extent Sections 12.2
and 12.4 apply,
the Canadian Recognition Order and the Canadian Confirmation Order.
12.6
|
Effect of Failure of
Conditions
|
If the
Consummation of the Plan 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 or
Claims against or Interests in the Debtors; (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 or any other Entity in any respect.
ARTICLE
XIII
MODIFICATION,
REVOCATION OR WITHDRAWAL OF THE PLAN
13.1
|
Modification and
Amendments
|
Except as
otherwise specifically provided herein, the Debtors, with the consent of the
Creditors’ Committee and the Ad Hoc Bondholders’ Committee reserve the right to
modify the Plan as to material terms and seek Confirmation consistent with the
Bankruptcy Code and, as appropriate, not re-solicit votes on such modified
Plan. 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, the Debtors, with the
consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee
expressly reserve their rights to alter, amend or modify materially the Plan
with respect to any or all Debtors, 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
XIII.
52
13.2
|
Effect of Confirmation
on Modifications
|
Entry of
a Confirmation Order shall mean that all modifications or amendments to the Plan
occurring after 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.
13.3
|
Revocation or
Withdrawal of the Plan
|
The
Debtors reserve the right to revoke or withdraw the Plan before the Confirmation
Date. 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 by 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; or (c) constitute an admission, acknowledgement, offer or
undertaking of any sort by such Debtor or any other Entity.
ARTICLE
XIV
RETENTION
OF JURISDICTION
14.1
|
Jurisdiction of the
Bankruptcy Court
|
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 such
jurisdiction over the Chapter 11 Cases and all matters, arising out of or
related to, the Chapter 11 Cases and the Plan 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 the
resolution of any request for payment of any Administrative Claim and the
resolution of any and all objections to the Secured or Unsecured status,
priority, amount or allowance of Claims;
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, assumption and assignment
or rejection of any Executory Contract or Unexpired Lease to which a Debtor is
party or with respect to which a Debtor may be liable in any manner and to hear,
determine and, if necessary, liquidate, any Claims arising therefrom, including
Rejection Claims, Cure Claims pursuant to section 365 of the Bankruptcy
Code or any other matter related to such Executory Contract or Unexpired Lease;
(b) any potential contractual obligation under any Executory Contract or
Unexpired Lease that is assumed; (c) the Reorganized Debtors amending, modifying
or supplementing, after the Effective Date, pursuant to Article VI, any
Executory Contracts or Unexpired Leases to the list of Executory Contracts and
Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute
regarding whether a contract or lease is or was executory or
expired.
4. ensure
that distributions to holders of Allowed Claims 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 any Cause of
Action;
53
7. adjudicate,
decide or resolve any and all matters related to section 1141 of the
Bankruptcy Code;
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 avoidance or recovery actions under sections 105, 502(d), 542 through 551
and 553 of the Bankruptcy Code;
10. 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;
11. resolve
any cases, controversies, suits, disputes or Causes of Action that may arise in
connection with or under the Prepetition Security Agreement and related
intercreditor agreement;
12. resolve
any cases, controversies, suits, disputes or Causes of Action that may arise in
connection with or under the DIP Loan Agreement;
13. resolve
any cases, controversies, suits, disputes or Causes of Action that may arise in
connection with or under the Notes;
14. 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;
15. resolve
any cases, controversies, suits, disputes or Causes of Action with respect to
the discharge, releases, injunctions, exculpations, indemnifications and other
provisions contained in Article XI and enter
such orders as may be necessary or appropriate to implement such releases,
injunctions and other provisions;
16. 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 for amounts not timely repaid pursuant to Section 7.10(a);
17. enter
and implement such orders as are necessary or appropriate if the Confirmation
Order is for any reason modified, stayed, reversed, revoked or
vacated;
18. 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;
19. adjudicate
any and all disputes arising from or relating to distributions under the
Plan;
20. consider
any modifications of the Plan, cure any defect or omission or reconcile any
inconsistency in any Bankruptcy Court order, including the Confirmation
Order;
21. determine
requests for the payment of Claims and Interests entitled to priority pursuant
to section 507 of the Bankruptcy Code;
22. 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;
23. hear
and determine matters concerning state, local and federal taxes in accordance
with sections 346, 505 and 1146 of the Bankruptcy Code;
54
24. hear
and determine all disputes involving the existence, nature or scope of the
Debtors’ discharge, including any dispute relating to any liability arising out
of the termination of employment or the termination of any employee or retiree
benefit program, regardless of whether such termination occurred before or after
the Effective Date;
25. enforce
all orders previously entered by the Bankruptcy Court;
26. hear
any other matter not inconsistent with the Bankruptcy Code; and
27. enter
an order concluding or closing the Chapter 11 Cases.
14.2
|
Jurisdiction of the
Bankruptcy Court in the Event Chemtura Canada Becomes a
Debtor
|
In the event Chemtura Canada becomes a
Debtor before the Confirmation Date, all disputes involving the rights of a
Canadian Entity that is (a) the holder of a Claim against or an Interest in
Chemtura Canada, in the event it becomes a Debtor before the Confirmation Date,
and (b) not subject to the jurisdiction of the Bankruptcy Court, will be
determined by the Bankruptcy Court without prejudice to such Entity’s right to
seek to have such dispute heard instead by the Canadian
Court. Notwithstanding the foregoing, all such Canadian Entities will
be bound by the terms and provisions of this Plan.
ARTICLE
XV
MISCELLANEOUS
PROVISIONS
15.1
|
Immediate Binding
Effect
|
Subject
to Section 12.3 and
Section 12.4
(if applicable), 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.
15.2
|
Additional
Documents
|
On or
before the Effective Date, the Debtors may file with the Bankruptcy Court 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 Reorganized Debtors, as applicable, and all holders of Claims or
Interests receiving distributions pursuant to the Plan and all other parties in
interest shall, 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.
15.3
|
Dissolution of
Creditors’ Committee and Equity
Committee
|
On the
Effective Date, the Creditors’ Committee and the Equity Committee shall
dissolve, except: (a) the Creditors’ Committee will remain intact with respect
to any pending litigation or contested matter to which the Creditors’ Committee
is a party, any appeals filed regarding Confirmation, the resolution of any
substantial contribution applications, the resolution of applications for
Accrued Professional Compensation and all disputes regarding allowance of
Disputed Claims; (b) the Equity Committee will remain intact (i) to the extent
that Class 13a for Chemtura Corporation has voted to reject the Plan, with
respect to the resolution of applications for Accrued Professional Compensation
and all disputes regarding allowance of Disputed Claims, (ii) to the extent that
Class 13a for Chemtura Corporation has voted to accept the Plan, with respect to
the resolution of any substantial contribution applications and the resolution
of applications for Accrued Professional Compensation, and (iii) notwithstanding
any provisions in the Plan or Confirmation Order providing for the termination
of the Equity Committee, the Equity Committee shall remain in existence to the
extent necessary for the prosecution of any appeal of the Confirmation Order,
provided that nothing
in the Plan or Confirmation Order (including the preceding proviso) shall
obligate the Debtors, the Reorganized Debtors or any other party in interest to
pay any legal fees or expenses incurred by the Equity Committee in connection
with such prosecution of such appeal; and (c) both the Equity Committee and the
Creditors’ Committee will remain intact with respect to the procedures for
Disputed Claims Reserve Periodic Distributions as set forth in Section
8.5(b). On the Effective Date, subject to the proviso above, the
members of the Creditors’ Committee and the Equity Committee shall be released
and discharged from all rights and duties from or related to the Chapter 11
Cases. The Reorganized Debtors shall continue to compensate the
Creditors’ Committee’s and the Equity Committee’s Professionals for reasonable
services provided in connection with any of the foregoing post-Effective Date
activities.
55
15.4 Payment of Fees and Expenses
of the Creditors’ Committee, the Equity Committee, the Prepetition
Administrative Agent and the Indenture Trustees
Notwithstanding
any provision in the Plan to the contrary, the Debtors or Reorganized Debtors
shall promptly pay in Cash in full reasonable, documented and
necessary out-of-pocket fees and expenses incurred by the members of
the Creditors’ Committee, the members of the Equity Committee, the Prepetition
Administrative Agent and the Indenture Trustees without the need of such parties
to file fee applications with the Bankruptcy Court; provided that each party and
its counsel shall provide the Debtors, the Creditors’ Committee and the Equity
Committee with the invoices (or such other documentation as the Debtors or
another of such parties may reasonably request) for which it seeks payment on or
before the Effective Date and provided that the Debtors and the other parties
have no objection to such fees, such fees shall be paid within five business
days of the Effective Date. To the extent that the Debtors or any of
the other parties object to any of the fees and expenses of the members of the
Creditors’ Committee, the members of the Equity Committee, the Prepetition
Administrative Agent or the Indenture Trustees or their counsel or advisors, the
Debtors shall not be required to pay any disputed portion of such fees until a
resolution of such objection is agreed to by the Debtors and such party and/or
their counsel or a further order of the Bankruptcy Court upon a motion by such
party.
15.5
|
Reservation of
Rights
|
Except as
expressly set forth in the Plan, the Plan shall have no force or effect unless
the Bankruptcy Court shall enter the Confirmation Order. None of the
Plan, any statement or provision contained in the Plan or any action taken or
not taken 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
before the Effective Date.
15.6
|
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, manager,
agent, representative, attorney, beneficiaries or guardian, if any, of each
Entity.
15.7
|
Service of
Documents
|
After the
Effective Date, any pleading, notice or other document required by the Plan to
be served on or delivered to the Reorganized Debtors shall be served
on:
Chemtura
Corporation
199
Benson Road
Middlebury,
Connecticut 06749
Attn: General
Counsel
56
with
copies to:
Kirkland
& Ellis LLP
601
Lexington Avenue
New York,
New York 10022
Attn: M.
Natasha Labovitz
After the
Effective Date, the Debtors may, in their sole discretion, notify Entities that,
in order to continue receiving documents pursuant to Bankruptcy Rule 2002, such
Entities 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.
15.8
|
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.
15.9
|
Severability of Plan
Provisions
|
If,
before Confirmation of the Plan, any term or provision of the Plan is held by
the Bankruptcy Court or any other court exercising jurisdiction to be invalid,
void or unenforceable, the Bankruptcy Court or other court exercising
jurisdiction 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 consent of the Debtors’ and consent of the Creditors’
Committee and the Ad Hoc Bondholders’ Committee (which consent shall not be
unreasonably withheld); and (3) nonseverable and mutually
dependent.
15.10
|
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 request to the Debtors’ counsel, by contacting Anna del Rosario,
Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, Telephone:
(212) 446-3487, email: anna.delrosario@kirkland.com, at the Bankruptcy Court’s
web site at http://ecf.nysb.uscourts.gov
or at the website of the Notice and Claims Agent, at www.kccllc.net/chemtura. 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.
15.11
|
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
any applicable non-bankruptcy law, and pursuant to section 1125(e) of the
Bankruptcy Code, the Debtors and 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 Plan securities offered and sold under the Plan, and, therefore,
will have no 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 New Common Stock offered and sold under the
Plan.
57
15.12
|
Closing of Chapter 11
Cases
|
The
Reorganized Debtors shall, promptly after the full administration of the Chapter
11 Case, 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.
15.13
|
Conflicts
|
Except as
set forth in the Plan, to the extent that any provision of the Disclosure
Statement 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; provided, however, that if
there is a conflict between this Plan and a Plan Supplement document, the
Plan Supplement document shall govern and control.
15.14
|
Insurance
Neutrality
|
Unless
otherwise expressly agreed to by an Insurer in writing, notwithstanding any
provision in the Plan or the Confirmation Order, including any provision that
purports to be preemptory or supervening, nothing contained in any such
documents or in this paragraph shall (a) impose, or be deemed or construed to
impose, any obligation on any Insurer to provide a defense for, pay defense
costs, settle, or pay any settlement or judgment with respect to, any Claim,
including any Insured Claim or (b) have the effect of impairing the Insurers’
legal, equitable, or contractual rights in any respect; rather, an Insurer’s
obligations, if any, with respect to any Claim, including any Insured Claim,
shall be determined solely by and in accordance with the allegedly applicable
Insurance Policies.
Unless
otherwise expressly agreed to by an Insurer in writing, nothing in the Plan or
the Confirmation Order, including any provision that purports to be preemptory
or supervening, shall diminish or impair, or be deemed to diminish or impair,
the rights of any Insurer to assert: any defense, right, or claim,
including but not limited to, any claim for deductibles, self-insured
retentions, retrospective premiums, or any other premium or similar obligation
of any kind; any claim for contribution, indemnification, or subrogation; or any
setoff, recoupment, or counterclaim arising out of or relating to any of the
Insurance Policies. Without limiting the generality of the foregoing,
unless otherwise expressly agreed to by an Insurer in writing, nothing in the
Plan or the Confirmation Order, including any provision that purports to be
preemptory or supervening, shall, under any theory:
|
(a)
|
constitute,
or be deemed to constitute, a trial, adjudication, judgment, hearing on
the merits, finding, conclusion, other determination, evidence, or
suggestion of any determination establishing the liability of any Insurer
(in the aggregate or otherwise) or establishing a coverage obligation in
subsequent litigation relating to any Claim, including any Insured Claim,
or under any of the Insurance
Policies;
|
|
(b)
|
establish
the liability or obligation of the Debtors with respect to any Claim that
binds any Insurer, individually or with another Insurer(s), including
whether the Debtors are or were liable on account of such claim or have
suffered an insured loss;
|
|
(c)
|
establish
that it is reasonable, appropriate, in good faith, or consistent with the
terms and conditions of any Insurance Policy for the Debtors to settle,
allow, assign any value to, liquidate, and/or pay (or present to any
Insurer for payment) any Claim on any terms or conditions contemplated by
the Plan, the Confirmation Order or any other
agreement;
|
|
(d)
|
establish
with respect to any Insured Claim or cause of action against any Insurer
that the Plan, the Confirmation Order, or any other agreement (including
any procedures, matrices, or criteria used or considered in valuing,
estimating, or allowing Claims thereunder) are reasonable, appropriate, or
entered into in good faith, or consistent with any procedures that were
used to evaluate, settle, or pay Claims against the Debtors before the
Chapter 11 Cases or under the terms and conditions of any Insurance
Policy;
|
58
|
(e)
|
establish
with respect to any Insured Claim or cause of action against any Insurer
that the conduct of the Debtors and the holders of Claims in connection
with the negotiation, development, settlement, or implementation of the
Plan, the Confirmation Order, or any other agreement was, is, or will be
reasonable, appropriate, in good faith, or consistent with the terms and
conditions of any Insurance Policy;
|
|
(f)
|
establish
that any Insurer was invited to participate in, participated in, consulted
on, and/or consented to the negotiation, proposal, solicitation, or
approval of the Plan;
|
|
(g)
|
constitute,
or be deemed to constitute, a determination of the reasonableness of the
amount of any Claim, including any Insured Claim, either individually or
in the aggregate with other Claims;
|
|
(h)
|
grant,
or be deemed to grant, to any Entity any right to sue any Insurer directly
in connection with a Claim, including any Insured Claim, or in connection
with or under any of the Insurance
Policies;
|
|
(i)
|
constitute,
or be deemed to constitute, a finding or determination that any Debtor is
a named insured, additional insured, or insured in any other way under any
of the Insurance Policies; or
|
|
(j)
|
constitute,
or be deemed to constitute, a determination that any Insurer has any
defense or indemnity obligation with respect to any Claim or Insured
Claim. The Insurers shall retain, and be permitted to assert,
(i) all of their rights and defenses with respect to coverage of any
Claim, including any Insured Claim, notwithstanding any provision of the
Plan or the Confirmation Order, including any provision that purports to
be preemptory or supervening, and (ii) all of the Debtors’ defenses to
liability in connection with any Claim, including any Insured Claim, and
that the Insurers’ rights to assert all such underlying defenses to
liability and all such defenses to coverage of any Claim, including any
Insured Claim, will not be impaired in any way by the Plan or the
Confirmation Order.
|
Except as
expressly set forth therein, nothing in the Plan or the Confirmation Order shall
diminish or impair any of the rights and defenses of the Debtors or the
Reorganized Debtors, if any, both legal and equitable, arising out of or
relating to any of the Insurance Policies.
Without
limiting the foregoing, in considering whether to confirm the Plan, the
Bankruptcy Court or any other court exercising jurisdiction over the Chapter 11
Cases is not considering, and is not deciding, any matter at issue or which may
be raised as an issue in any Insurance Coverage Action.
Under the
Plan, the Reorganized Debtors retain the Debtors’ rights and obligations under
each of the Insurance Policies, subject to the terms and conditions of each
Insurance Policy. All of the parties’ rights and arguments with
respect to any purported assignment of any Insurance Policy are expressly
preserved, and are not impaired, increased, or otherwise altered by the Plan,
the Confirmation Order, or any other Plan Document.
No
Insurer shall be bound in any current or future litigation concerning any Claim
or any Insurance Policy by any orders, including the Confirmation Order, factual
findings, or conclusions of law issued in connection with confirmation of the
Plan (including on appeal or in any subsequent proceeding necessary to
effectuate the Plan), and no such order, including the Confirmation Order,
findings of fact, or conclusions of law shall:
|
(a)
|
be
admissible, used as evidence, referenced, or argued as persuasive to the
case of the Debtors, any trust formed under this Plan, or any claimant in
any Insurance Coverage Action; or
|
|
(b)
|
have
any res judicata, collateral estoppel, or other preclusive effect on any
claim, defense, right, or counterclaim of such Insurer that has been
asserted or that may be asserted in any current or subsequent litigation
concerning any Claim or any Insurance Policy; provided, however, that to
the extent an Insurer is or may be a holder of a Class 4a or Class 4b
Claim, the portions of the Plan and Confirmation Order addressing holders
of Class 4a or Class 4b Claims shall be binding on such Insurer only in
its capacity as a holder of a Class 4a or Class 4b
Claim.
|
59
Nothing
in the Plan or Confirmation Order, including Article XI of the Plan, shall
discharge, release, or preclude any liability of the Debtors’ Non-Debtor
affiliates to any Insurer on account of any Insured Claim or pursuant to any
insurance policies, settlement agreements, coverage-in-place agreements or other
agreements related to the provision of insurance entered into by or issued to
any of the Non-Debtor affiliates.
[Remainder
of page intentionally left blank.]
60
Dated: October
29, 2010
Respectfully
submitted,
|
|||
Chemtura
Corporation
|
|||
By:
|
/s/
Stephen C. Forsyth
|
||
Stephen
C. Forsyth
Executive
Vice President and
Chief
Financial Officer
|
|||
BioLab
Company Store, LLC
BioLab
Franchise Company LLC
|
|||
By:
|
/s/
Stephen C. Forsyth
|
||
Stephen
C. Forsyth
Manager
|
|||
GLCC
Laurel, LLC
|
|||
By:
|
/s/
Billie S. Flaherty
|
||
Billie
S. Flaherty
Vice
President
|
|||
A&M
Cleaning Products, LLC
Aqua
Clear Industries, LLC
ASCK,
Inc.
ASEPSIS,
Inc.
BioLab
Textile Additives, LLC
Bio-Lab
Inc.
CNK
Chemical Realty Corp.
Crompton
Colors Incorporated
Crompton
Holding Corporation
Crompton
Monochem, Inc.
Great
Lakes Chemical Corporation
Great
Lakes Chemical Global, Inc.
GT
Seed Treatment, Inc.
HomeCare
Labs, Inc.
ISCI,
Inc.
Kem
Manufacturing Corporation
Laurel
Industries Holdings, Inc.
Monochem,
Inc.
Naugatuck
Treatment Company
Recreational
Water Products, Inc.
Uniroyal
Chemical Company Limited (Delaware)
Weber
City Road LLC
WRL
of Indiana, Inc.
|
|||
By:
|
/s/
Robert J. Cicero
|
||
Robert
J. Cicero
Secretary
|
61
Chemtura
Canada Co./Cie
|
||
By:
|
/s/
Noel C. Blake
|
|
Noel
C. Blake
Regional
Comptroller
Canada
and Latin America
|
Prepared
by:
Richard
M. Cieri
M.
Natasha Labovitz
Craig A.
Bruens
Dana
Yankowitz
KIRKLAND &
ELLIS LLP
601
Lexington Avenue
New York,
New York 10022-4611
Telephone:
|
(212)
446-4800
|
Facsimile:
|
(212)
446-4900
|
Counsel
to the Debtors and Debtors in Possession
62
Exhibit
1
Rights
Offering Procedures
Rights
Offering Procedures1
1.
|
Introduction
|
As set
forth in Section
3.3(m)(i)A) of the Plan, to the extent that Class 13a for Chemtura
Corporation votes to accept the Plan, each holder of a share of common stock or
equivalent Interest in Chemtura Corporation (each, an “Eligible Holder”) as of the
Rights Offering Record Date shall receive the right, but not the obligation, to
purchase its Pro Rata share of 7.38 million shares of New Common Stock (the
“Rights Offering”)
exercisable pursuant to the rights offering subscription exercise form,
substantially in the form attached as Exhibit 17 to the Order (A) Fixing Dates and Deadlines
Related to Confirmation of the Plan; (B) Approving Procedures for Soliciting And
Tabulating the Votes on, and for Objecting to, the Plan; (C) Approving Rights
Offering Procedures; and (D) Approving the Manner and Form of Notices and
Documents Relating to the Plan (Docket No. [XX]) (the “Rights Exercise
Form”). The Rights Exercise Form will be sent to each Eligible
Holder 30 days before the deadline established by the Debtors for expiration of
the rights offering (the “Rights Offering
Deadline”). Such Rights Exercise Form will indicate the price
per share of New Common Stock (the “Rights Exercise Price”) payable in
connection with the Rights Offering.
Each
Eligible Holder shall have the right to purchase up to its Pro Rata share of New
Common Stock (the “Initial
Rights”) subject to the Rights Offering. Each Eligible
Holder’s Pro Rata share will be based upon the following equation:
(Shares
of common stock or
equivalent
Interest held as of the
Rights
Offering Record Date)
|
x
|
0.030359762
|
=
|
(Maximum
Number of Initial Rights -
Round
Down to the Nearest Whole
Number)
|
In
addition, the Rights Exercise Form will provide that Eligible Holders that have
exercised their full Pro Rata share of Initial Rights may indicate the amount of
additional Rights (the “Additional Rights,” and,
together with the Initial Rights, the “Rights”) that they commit to
exercise in the event that the Eligible Holders do not exercise their Initial
Rights to purchase all of the New Common Stock available pursuant to the Rights
Offering (an “Under-Subscription”) as of the
Rights Offering Deadline. In the event of an Under-Subscription,
Eligible Holders that elected to exercise Additional Rights will be entitled to
purchase a number of additional shares of New Common Stock in an amount equal to
the number of Additional Rights specified on each Eligible Holder’s Rights
Exercise Form; provided, however, that in the event
that Eligible Holders, in the aggregate, attempt to exercise more Additional
Rights than are available for all Eligible Holders electing to exercise
Additional Rights, Eligible Holders will only be able to exercise their Pro Rata
share of Additional Rights (as determined by the Rights Participation Amounts of
all such properly exercising Eligible Holders).
After the
Rights Offering Record Date, each Eligible Holder that is a registered holder
will be sent a Rights Exercise Form and each nominee (a “Nominee”) representing
beneficial owners will be sent Rights Exercise Forms for the beneficial owners
the Nominee represents, which shall enable such Eligible Holder or Nominee (on
behalf of beneficial owners that are Eligible Holders) to elect to purchase New
Common Stock. The Rights Exercise Form shall contain related
instructions for the proper completion, due execution, and timely delivery of
the Rights Exercise Form along with payment by an Eligible Holder or a Nominee
(who is responding on behalf of beneficial owners) to the Subscription
Agent. An Eligible
Holder’s election to exercise Rights will be binding upon such Eligible Holder
and irrevocable.
1
|
Capitalized
terms not otherwise defined herein shall have the meanings set forth in
the Disclosure Statement.
|
2
|
Amount
calculated by dividing the number of shares of New Common Stock subject to
the Rights Offering by the total of all Eligible Holders’ Rights
Participation Amounts.
|
Each
Right can be exercised for one share of New Common Stock. No Eligible
Holder will be granted or allowed to exercise any fractional
Rights.
“Disclosure Statement” means
the Disclosure Statement for
the Joint Chapter 11 Plan of Chemtura Corporation et al., dated June 17,
2010, as may be modified, amended or supplemented from time to time, including
all exhibits and schedules thereto and references therein that relate to the
Plan that is prepared, approved by order of the Bankruptcy Court and distributed
in accordance with such order of approval.
“Subscription Agent” means Epiq
Bankruptcy Solutions, in its capacity as such.
“Rights Offering Record Date”
means approximately six business days before the date on which the Debtors first
send the Rights Exercise Forms to Eligible Holders pursuant to the terms of the
Plan and these Rights Offering Procedures.
“Rights Participation Amount”
means, for each Eligible Holder, the amount of the shares of common stock or
equivalent Interest listed on the Rights Exercise Form sent to such Eligible
Holder, which shall reflect the amount of the Eligible Holder’s shares of common
stock or equivalent Interest for voting purposes, or the amount adjudicated in
an order of the Bankruptcy Court obtained by the Eligible Holder of the shares
of common stock or equivalent Interest at least five days before the Rights
Offering Deadline.
Notwithstanding
anything contained in the Plan to the contrary, under no circumstances shall any
holder of shares of common stock or equivalent Interest that is not entitled to
vote on the Plan have any Rights with respect to such shares of common stock or
equivalent Interest. Notwithstanding anything contained in the Plan
to the contrary, in the event that Class 13a for Chemtura Corporation votes to
reject the Plan, under no circumstances shall any holder of shares of common
stock or equivalent Interest in Chemtura Corporation have any Rights with
respect to such shares of common stock or equivalent Interest, all Rights
Exercise Forms received by the Subscription Agent shall be null and void and any
payments received by the Subscription Agent will be refunded, without interest,
to the Eligible Holders as soon as reasonably practicable after the Effective
Date.
Before
exercising any Rights, Eligible Holders should read the Disclosure Statement,
including the section entitled “Risks Related to the Debtors' Businesses” and
the New Chemtura Total Enterprise Value contained therein.
The
issuance of the New Common Stock will be registered under the Securities Act of
1933, as amended, and applicable state, local or foreign laws, or issued without
registration in reliance on the exemption set forth in section 1145 of the
Bankruptcy Code.
2.
|
Commencement/Expiration
of the Rights Offering
|
The
Rights Offering shall commence on the day upon which the Rights Exercise Forms
are mailed to Eligible Holders. The Rights Offering shall expire on
the Rights Offering Deadline. Each Eligible Holder intending to
participate in the Rights Offering must affirmatively elect to exercise its
Rights on or prior to the Rights Offering Deadline in accordance with the
procedures set forth herein.
3.
|
Exercise
of Rights
|
Exercise
of and Payment for Initial Rights
Each
Eligible Holder may designate on its Rights Exercise Form whether it wishes to
exercise its Initial Rights. For those Eligible Holders holding
shares through a Nominee, to exercise its Rights, such Eligible Holder must
provide instructions to its bank, broker, or other nominee or
agent. The bank, broker, or other nominee or agent, in turn, must
then convey the instruction to the Subscription Agent on or before the Rights
Offering Deadline through the Automated Subscription Offer Program of The
Depository Trust Company (“DTC”).
2
To
exercise its Initial Rights, each Eligible Holder or Nominee on behalf of an
Eligible Holder must pay or arrange for payment of the total exercise price to
be paid based upon the Rights Exercise Price (the “Initial Rights Total Exercise
Price”) to the Subscription Agent on or before the Rights Offering
Deadline, or payment by DTC to the Subscription Agent.
If the
Subscription Agent for any reason does not timely receive from or on behalf of
the participating Eligible Holder a duly completed Rights Exercise Form and
immediately available funds by wire transfer in an amount equal to the Initial
Rights Total Exercise Price for such Eligible Holder, or payment by DTC, such
Eligible Holder shall be deemed to have relinquished and waived its Initial
Rights.
Exercise
of and Payment for Additional Rights
Any Eligible Holder (whether a
registered holder or through a Nominee) that exercises all of its Initial Rights
may indicate on its Rights Exercise Form how many additional shares of New
Common Stock such Eligible Holder wishes to purchase through the exercise of
Additional Rights, provided, however, that an Eligible
Holder shall only be entitled to Additional Rights to the extent that the Rights
Offering is Under-Subscribed. Election and payment for Additional
Rights must be made at the same time and under the same terms and conditions as
the election and payment for Initial Rights.
Disputes,
Waivers and Extensions
Any and all disputes concerning the
timeliness, viability, form and eligibility of any exercise of Rights shall be
addressed in good faith by the Debtors (in consultation with the Creditors’
Committee and the Ad Hoc Bondholders’ Committee), subject to a final and binding
determination by the Bankruptcy Court. The Debtors (with the consent
of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which consent
shall not be unreasonably withheld), subject to Bankruptcy Court approval, may
seek to waive any defect or irregularity, or permit a defect or irregularity to
be corrected within such times as they may determine in good faith to be
appropriate, or reject the purported exercise of any Rights. The
Debtors (with the consent of the Creditors’ Committee and the Ad Hoc
Bondholders’ Committee, which consent shall not be unreasonably withheld)
reserve the right, but are under no obligation, to give notice to any Eligible
Holder or Nominee regarding any defect or irregularity in connection with any
purported exercise of Rights by such Eligible Holder and the Debtors (with the
consent of the Creditors’ Committee and the Ad Hoc Bondholders’ Committee, which
consent shall not be unreasonably withheld) may, but are under no obligation,
permit such defect or irregularity to be cured within such time as they may
determine in good faith, subject to Bankruptcy Court approval, to be
appropriate; provided, however, that none of the
Debtors, the Creditors’ Committee, the Ad Hoc Bondholders’ Committee or the
Subscription Agent shall incur any liability for failure to give such
notification.
The Debtors, with the approval of the
Bankruptcy Court, may extend the duration of the Rights Offering or adopt
additional detailed procedures to more efficiently administer the distribution
and exercise of the Rights.
Funds
The proceeds of the Rights Offering
(the “Rights Offering
Funds”) will be used to provide $100 million in Cash (or such lesser
amount of proceeds actually achieved, in the event of an Under-Subscription)
funding to the Reorganized Debtors to fund distributions pursuant to the
Plan.
The Rights Offering Funds shall be
deposited and held by the Subscription Agent in escrow pending the Effective
Date in an account or accounts (a) which shall be separate and apart from the
Subscription Agent’s general operating funds and any other funds subject to any
lien or any cash collateral arrangements and (b) which segregated account or
accounts will be maintained for the purpose of holding the money for
administration of the Rights Offering until the Effective Date. The
Subscription Agent shall not use the Rights Offering Funds for any other purpose
before the Rights Offering Deadline and shall not encumber or permit the Rights
Offering Funds to be encumbered by any lien or similar
encumbrance.
3
Waiver
Each Eligible Holder that participates
in the Rights Offering shall be deemed by virtue of such participation, to have
waived and released, to the fullest extent permitted under applicable law, all
rights, claims or causes of action against the Debtors, the Reorganized Debtors
and the Subscription Agent and each of their subsidiaries, affiliates, members,
officers, directors, agents, financial advisors, accountants, investment
bankers, consultants, attorneys, employees, partners and representatives arising
out of or related to the receipt, delivery, disbursements, calculations,
transmission or segregation of Cash, Rights and shares of New Common Stock in
connection with the Rights Offering.
4.
|
Transfer
Restriction; Revocation
|
Pursuant
to the Plan, the Rights are not transferable independently of the underlying
shares of common stock or equivalent Interests from which such Rights
arise. Rights may only be exercised by or through the Eligible Holder
entitled to exercise such Rights on the Rights Offering Record
Date. Any such independent transfer or attempted transfer of the
Rights will be null and void and the Debtors will not treat any purported
transferee as the holder of any Rights. Once the Eligible Holder has
properly exercised its Rights, such exercise will not be permitted to be revoked
by such Eligible Holder.
5.
|
Subsequent
Adjustments of Additional Rights
|
If, as of
the Rights Offering Deadline, Eligible Holders, in the aggregate, attempt to
exercise more Additional Rights than are available for all Eligible Holders
electing to exercise Additional Rights, Eligible Holders will only be able to
exercise their Pro Rata share of Additional Rights (as determined by the Rights
Participation Amounts of all such properly exercising Eligible Holders), and
each properly exercising Eligible Holder shall have the Additional Rights which
it may exercise reduced on a Pro Rata basis. The difference between
the price actually paid by such exercising Eligible Holder and the Eligible
Holder’s Rights Exercise Price of New Common Stock that such Eligible Holder is
entitled to acquire after giving effect to the reduction, if any, shall be
refunded, without interest, as soon as reasonably practicable after the
Effective Date.
6.
|
Inquiries
and Transmittal of Documents; Subscription
Agent
|
The
exercise instructions contained in the Rights Exercise Form should be carefully
read and strictly followed.
Questions
relating to the Rights Offering should be directed to the Subscription Agent at
the following address and phone number:
Epiq Bankruptcy Solutions
757 Third Avenue, 3rd
Floor
New York, New York 10017
The risk
of delivery of all documents and payments is on the Eligible Holders electing to
exercise their Rights, not the Debtors or the Subscription Agent. If
mail is used, it is recommended that a reputable overnight courier or insured
registered mail be used and that a sufficient number of days be allowed to
ensure delivery to the Subscription Agent before the Rights Offering
Deadline.
7.
|
Rights
Offering Conditioned Upon Confirmation of the Plan; Reservation of
Rights
|
All
exercises of Rights are subject to and conditioned upon the confirmation of the
Plan and the occurrence of the Effective Date of the Plan. All
exercises of Rights are subject to and conditioned upon Class 13a for Chemtura
Corporation voting to accept the Plan.
4