UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
December 1, 1994
(Date of Report)
Bucyrus-Erie Company
(Exact name of registrant as specified in its charter)
Delaware 1-871 39-0188050
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) ID Number)
P.O. Box 500
1100 Milwaukee Avenue
South Milwaukee, Wisconsin 53172
(Address of principal executive offices)
(414) 768-4000
(Registrant's telephone number, including area code)
<PAGE>
Item 3. Bankruptcy or Receivership
(b) On December 1, 1994 (the "Confirmation Date"), the
United States Bankruptcy Court, Eastern District of Wisconsin
(the "Bankruptcy Court") entered an order confirming the Second
Amended Joint Plan of Reorganization of B-E Holdings, Inc.
("Holdings") and Bucyrus-Erie Company ("Bucyrus") under chapter
11 of the United States Bankruptcy Code (the "Bankruptcy Code")
as modified December 1, 1994 (the "Amended Plan"), in respect of
Case Nos. 94-20786-RAE and 94-20787-RAE. The effective date of
the Amended Plan (the "Effective Date") is scheduled for
December 14, 1994 at which time the transactions contemplated by
the Amended Plan described below are to be consummated and the
Amended Plan shall became effective.
1. Merger
Pursuant to the Amended Plan on the Effective Date, Holdings
and Bucyrus shall enter into an Agreement and Plan of Merger (the
"Merger Agreement") and, pursuant to the Merger Agreement,
Bucyrus shall file a certificate of merger (the "Certificate of
Merger") with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Merger, Holdings will be
merged with and into Bucyrus (the survivor of such merger is
referred to as the "Reorganized Company").
2. Restructuring of Holdings' and Bucyrus' Unsecured Debt
Securities and Holdings' Equity Securities
The Amended Plan provides for the Reorganized Company to
issue on the Effective Date 10,170,413 shares of its common
stock, par value $.01 per share ("New Common Stock"), of which
10,000,000 shares will, except as otherwise provided in the Plan,
be issued to holders of Holdings' and Bucyrus' unsecured debt
securities and Holdings' equity securities in exchange for their
unsecured debt securities and equity securities (the "Exchange")
as described below:
For each $1,000
Principal Amount of: The Holder Will Receive:
10% Senior Notes (interest
rate reset to 16% as of
1/1/93) due 1996 of
Bucyrus . . . . . . . . . 67.1374 shares of New Common Stock
Resettable Senior Notes
due 1996 of Bucyrus . . . 67.62005 shares of New Common Stock
9% Sinking Fund Debentures
due 1999 of Bucyrus . . . 63.0427 shares of New Common Stock
Series A 12-1/2% Senior
Debentures due 2002
of Holdings . . . . . . . 17.4228 shares of New Common Stock
For each Share of: The Holder Will Receive:
Series A 12-1/2% Cumulative
Exchangeable Preferred
Stock, par value $.01 per
share, of Holdings. . . . 0.066477 shares of New Common Stock
Series B Convertible
Preferred Stock, par
value $.01 per share,
of Holdings . . . . . . . 0.005153 shares of New Common Stock
Class C Common Stock, par
value $.01 per share,
of Holdings . . . . . . . 0.005153 shares of New Common Stock
Class D Common Stock, par
value $.01 per share,
of Holdings . . . . . . . 0.005153 shares of New Common Stock
Fractional shares of New Common Stock resulting from the Exchange
will not be issued. Pursuant to the Amended Plan, the exchange
agent performing the Exchange will on or as soon as practicable
after the Effective Date aggregate and sell all fractional shares
of New Common Stock and pay the net proceeds from such sale pro
rata to each holder otherwise entitled to receive fractional
shares of New Common Stock.
The holders of Holdings' and Bucyrus' unsecured debt
securities and Holdings' equity securities may exchange such
securities for shares of New Common Stock pursuant to the
provisions of the Amended Plan at any time prior to December 14,
1999.
On the Effective Date all outstanding stock options granted
by Holdings under the B-E Holdings, Inc. 1988 Stock Option Plan
that had not been exercised on or prior to the Effective Date
shall be cancelled pursuant to the Amended Plan and the Merger
Agreement.
On the Effective Date, the Reorganized Company shall also
issue 170,413 shares of New Common Stock and pay $350,000 in cash
to Bell Helicopter Textron Inc. ("Bell Helicopter") in settlement
of Bell Helicopter's claims against Bucyrus and an inactive
subsidiary of Bucyrus asserted in a civil action in the District
Court of Tarrant County, Texas.
Following consummation of the transactions contemplated by
the Amended Plan, it is anticipated that Jackson National Life
Insurance Company ("JNL") shall beneficially own 4,057,203 shares
of New Common Stock, representing approximately 39.9% of the
shares of New Common Stock to be issued pursuant to the Amended
Plan.
3. Description of the New Common Stock
There is currently no existing market for the New Common
Stock, and there can be no assurance that a trading market for
the New Common Stock will develop. Accordingly, no assurance can
be given as to the liquidity of the market for such shares or the
price at which any sales may occur. Following the Effective
Date, the Reorganized Company intends to seek to list the New
Common Stock on the National Association of Securities Dealers
Automated Quotations SmallCap Market. Although the Reorganized
Company will use its best efforts to have the New Common Stock so
listed, there can be no assurance that such listing will be
obtained or, if such listing is obtained, as to the liquidity of
the market for the New Common Stock, as to whether an active
trading market will develop or as to the prices at which any
sales thereof may occur.
The Reorganized Company shall be authorized by the Restated
Charter (as defined below) to issue 20,000,000 shares of New
Common Stock. The Restated Charter shall prohibit the issuance
of nonvoting equity securities to the extent required by Section
1123(a)(6) of the Bankruptcy Code.
Holders of New Common Stock are entitled to receive
dividends as, when and if declared by the board of directors of
the Reorganized Company (the "Board of Directors") from funds
available therefor. As of the Effective Date, however, the terms
and conditions of the Bank One Credit Agreement (as defined
below), shall restrict the payment of dividends to stockholders.
In the event of a liquidation, dissolution or winding up of the
Reorganized Company, the holders of New Common Stock are entitled
to share ratably in all of the assets of the Reorganized Company
available for distribution to its stockholders.
Holders of New Common Stock are entitled to one vote per
share on each matter submitted to a vote at any meeting of
stockholders, including elections of directors, and, except as
required by law, the holders of New Common Stock exclusively
possess all voting power. Because holders of New Common Stock do
not have cumulative voting rights, the holders of a simple
majority of the voting power at a meeting for the election of
directors may elect all of the directors being elected at such
meeting (and the remaining stockholders will be unable to elect
any directors). The members of the initial Board of Directors as
of the Effective Date have been selected pursuant to the Amended
Plan (see "Description of Certain Provisions of the Amended Plan
and the Reorganized Company's Organizational Documents" below).
All certificates for shares of New Common Stock issued prior
to the annual meeting of the stockholders of the Reorganized
Company to be held in 1996 (the "1996 Annual Meeting"), including
all certificates for shares of New Common Stock issued or to be
issued pursuant to the Amended Plan, shall bear the following
statement:
"The shares of Common Stock represented by this stock
certificate are issued pursuant to the Second Amended
Joint Plan of Reorganization of B-E Holdings, Inc. and
Bucyrus-Erie Company, as modified December 1, 1994, and
as confirmed by the United States Bankruptcy Court,
Eastern District of Wisconsin (the "Plan"). Pursuant
to the Plan all holders of shares of Common Stock and
their Transferees (as defined in the Plan) have
irrevocably agreed to cause the shares of Common Stock
beneficially owned by such holder or Transferee to be
voted for the election of each of the Original
Directors (as defined in the Plan), as directors of the
Corporation at the annual meeting of stockholders of
the Corporation to be held in 1996 (the "1996 Annual
Meeting") for a one-year term ending on the date of the
annual meeting of stockholders of the Corporation to be
held in 1997 and until their successors have been duly
elected or appointed and qualified. In addition, any
Transfer (as defined in the Plan) of any shares of
Common Stock at any time prior to the 1996 Annual
Meeting shall be made subject to the above-described
irrevocable agreement to vote such shares of Common
Stock for the election of each of the Original
Directors at the 1996 Annual Meeting."
See "Description of Certain Provisions of the Amended Plan and
the Reorganized Company's Organizational Documents" below.
4. New South Street Notes
Pursuant to the Amended Plan, the Reorganized Company shall
on the Effective Date exchange its Secured Notes due 1999 (the
"New South Street Notes") for the Series A 10.65% Senior Secured
Notes due July 1, 1995 of Bucyrus, Series B 16.5% Senior Secured
Notes due January 1, 1996 of Bucyrus and obligations of Bucyrus
under its sale and leaseback financing arrangement. Interest
shall accrue on the New South Street Notes from the Effective
Date until the first anniversary of the Effective Date at a rate
of 10.5% per annum payable in cash or in kind, and thereafter
interest shall accrue at 10.5% per annum, if interest is paid in
cash, or 13.0% per annum, if interest is paid in kind; provided
that the Reorganized Company is generally permitted to make
payments of accrued interest on the New South Street Notes in
kind rather than in cash at the discretion of the Reorganized
Company during the entire five-year term of the New South Street
Notes. The New South Street Notes shall be secured by a second
priority lien and security interest on substantially all of the
Reorganized Company's property (other than real estate), subject
only to the security interest to be granted to Bank One (as
defined below) which shall secure extensions of credit in an
amount not to exceed $15,000,000.
5. Bank One Credit Agreement
Pursuant to the Amended Plan, the Reorganized Company shall
on the Effective Date enter into a Credit Agreement (the "Bank
One Credit Agreement"), with Bank One, Milwaukee, National
Association ("Bank One"). Under the Bank One Credit Agreement,
Bank One will extend to the Reorganized Company a credit facility
for working capital and general corporate purposes and a letter
of credit facility in an aggregate principal amount not to exceed
$15,000,000. The Reorganized Company's payment obligations under
the Bank One Credit Agreement will be secured by a first priority
lien and security interest on substantially all of the
Reorganized Company's property (other than real estate).
6. Description of Certain Provisions of the Amended Plan and the
Reorganized Company's Organizational Documents
Pursuant to the Amended Plan and the Merger Agreement, the
Reorganized Company shall on the Effective Date amend and restate
its certificate of incorporation (the "Restated Charter") and its
bylaws (the "Restated Bylaws"). Among other things, the Restated
Charter and Restated Bylaws provide for an initial board of
directors consisting of seven directors (hereinafter referred to,
together with their respective successors, if any, elected in the
manner specified in Section 4.7(B) of the Restated Bylaws
described below, the "Original Directors"). Pursuant to the
Amended Plan, the persons listed below were selected to serve as
members of the Board of Directors commencing as of the Effective
Date: Phillip W. Mork, the President of Bucyrus, was selected by
Bucyrus' current board of directors (the "Bucyrus Director");
C. Scott Bartlett, Jr., George A. Poole, Jr. and Skip Victor (the
"Committee Directors") were selected by the statutory creditors
committee of unsecured creditors appointed pursuant to Section
1102 of the Bankruptcy Code (the "Creditors Committee"); and
Joseph J. Radecki, Jr., F. John Stark, III and Russell W. Swansen
were selected by JNL (the "JNL Directors"). The Restated Charter
and Restated Bylaws further provide that each Original Director
shall serve from and after the Effective Date until the 1996
Annual Meeting and, pursuant to the provisions of Section 5.04(c)
of the Amended Plan described below, from and after the 1996
Annual Meeting until the Reorganized Company's annual meeting of
stockholders to be held in 1997 (the "1997 Annual Meeting"), and
until their successors have been duly elected and qualified. The
first annual meeting of stockholders of the Reorganized Company
following the Effective Date shall be held in 1996 following
completion of the Reorganized Company's 1995 fiscal year.
Pursuant to Section 5.04(c) of the Amended Plan, all
holders of Holdings' and Bucyrus' unsecured debt securities and
Holdings' equity securities who have accepted the Amended Plan by
ballot or master ballot and all holders of Holdings' and Bucyrus'
unsecured debt securities and Holdings' equity securities who are
entitled to receive shares of New Common Stock pursuant to the
Amended Plan shall be deemed as of the Effective Date to have
irrevocably agreed without any further action:
(i) to cause the shares of New Common Stock received
pursuant to the Amended Plan and all other shares of New
Common Stock beneficially owned by any such holder following
the Effective Date to be voted for the election of each of
the Original Directors as directors of the Reorganized
Company at the 1996 Annual Meeting for a one-year term
ending on the date of the 1997 Annual Meeting and until
their successors have been duly elected and qualified; and
(ii) that any sale, transfer or other disposition,
whether voluntary or involuntary, by operation of law or
otherwise of any shares of New Common Stock at any time
prior to the 1996 Annual Meeting (a "Transfer"; and any
person to whom any shares of New Common Stock are
Transferred is referred to as a "Transferee") shall be made
subject to the irrevocable agreement to vote such shares of
New Common Stock for the election of each of the Original
Directors at the 1996 Annual Meeting.
Under Section 5.04(c) of the Amended Plan, the irrevocable voting
agreement described in (i) above is binding upon all Transferees.
Any amendment or modification of Section 5.04 at any time prior
to the 1997 Annual Meeting is prohibited. In accordance with
Section 5.04 of the Amended Plan, certain provisions of the
Restated Charter (Articles V(A), VII(A), VII(C) and IX) and the
Restated Bylaws (Sections 3.9, 4.2, 4.7(B) and 4.9) relating to
the election, number, tenure, qualifications and removal of and
vacancies with respect to the Board of Directors shall not be
amended or modified at any time prior to the 1997 Annual Meeting.
Section 4.7(B) of the Restated Bylaws provides that if prior
to the 1997 Annual Meeting, a vacancy in the Board of Directors
resulting from the death, resignation, retirement or removal for
cause (an "Original Director Vacancy Event") of an Original
Director occurs, then if such Original Director is (i) the
Bucyrus Director, the Board of Directors shall appoint an officer
of the Reorganized Company who served in such capacity prior to
the Effective Date or, in the absence of any such person, an
officer of the Reorganized Company then serving in such capacity;
(ii) a JNL Director, the remaining JNL Directors (or their
successors) shall appoint the successor to such JNL Director,
provided, however, if an Original Director Vacancy Event occurs
in respect of (x) all JNL Directors or (y) the remaining JNL
Director prior to the appointment of a successor to the other JNL
Director, then, if at the time the Original Director Vacancy
Event described in (x) or (y) occurs, JNL owns (1) 30% or more of
the then issued and outstanding shares of New Common Stock, the
President of JNL shall appoint successors to such JNL Directors
or (2) less than 30% of the then issued and outstanding shares of
New Common Stock, a majority of the remaining Original Directors
shall appoint successors to such JNL Directors; or (iii) a
Committee Director, the remaining Committee Directors (or their
successors) shall appoint the successor to such Committee
Director, provided, however, if an Original Director Vacancy
Event occurs in respect of (x) all Committee Directors or (y) the
remaining Committee Director prior to the appointment of a
successor to the other Committee Director, a majority of the
remaining Original Directors shall appoint successors to such
Committee Directors.
Article VII(A) of the Restated Charter provides that except
as provided in the Restated Bylaws in effect immediately after
the Effective Date, the size of the Board of Directors, which
shall be fixed at seven members, shall not be increased or
decreased prior to the 1997 Annual Meeting. Section 4.2 of the
Restated Bylaws provides that prior to the 1997 Annual Meeting
the Board of Directors may be increased to more than seven
members if a resolution authorizing such increase is passed at a
meeting of the Reorganized Company's Board of Directors by a
resolution adopted by (i) not less than two-thirds of the number
of directors fixed from time to time by the Restated Bylaws or
(ii) a majority of the Board of Directors in connection with any
transaction involving the Reorganized Company that requires
approval of the stockholders of the Reorganized Company under the
General Corporation Law of the State of Delaware (the "DGCL") and
that is approved at such meeting, provided that in either case
notice of the proposed change was given in a notice provided no
less than 24 hours prior to the meeting of the Board of
Directors.
Section 5.04(f) of the Amended Plan prohibits JNL from
taking any action, or causing any Affiliate (as defined in the
Bankruptcy Code) thereof to take any action, to remove any
Original Director other than a JNL Director (or any successor to
a JNL Director) prior to the 1997 Annual Meeting, provided that
such prohibition shall not apply to any action by JNL or any
Affiliate thereof to remove any director of the Reorganized
Company (i) for any reason at any time when JNL or any Affiliates
thereof in the aggregate (x) beneficially own less than 25% of
all of the outstanding shares of New Common Stock or (y) do not
constitute the largest beneficial owner of New Common Stock or
(ii) for cause.
7. Anti-Takeover Effects of Provisions of the Restated Bylaws
Stockholder Action. The Restated Bylaws provide that
stockholder action may be taken only at an annual meeting or at a
special meeting of stockholders called by (i) the Chairman of the
Board (the "Chairman"), (ii) the Board of Directors pursuant to a
written request signed by not less than three directors and
delivered to the Secretary or (iii) the President or the
Secretary upon the written request of stockholders who together
own of record a majority of the outstanding stock of all classes
entitled to vote at such meeting. Stockholders are not otherwise
permitted to call a special meeting of stockholders or to require
that the Board of Directors call such a special meeting. This
may have the effect of delaying consideration of a stockholder
proposal until the next annual meeting unless a special meeting
is called in the manner described in (i), (ii) or (iii) above.
Advance Notice Proceedings. The Restated Bylaws establish
an advance notice procedure for stockholders to make nominations
of candidates for election as directors or to bring other
business before an annual meeting of stockholders of the
Reorganized Company (the "Stockholder Notice Procedure"). The
Stockholder Notice Procedure provides that only persons who are
nominated (i) pursuant to the Reorganized Company's notice of
meeting delivered pursuant to the Restated Bylaws, (ii) by or at
the direction of the Chairman, (iii) pursuant to a written
request signed by not less than three directors and delivered to
the Secretary or (iv) by a stockholder who has given timely
written notice to the Secretary at the principal executive
offices of the Reorganized Company prior to the meeting at which
directors are to be elected, will be eligible for election as
directors of the Reorganized Company. The Stockholder Notice
Procedure also provides that at an annual meeting only such
business may be conducted as has been brought before the meeting
(i) pursuant to the Reorganized Company's notice of meeting
delivered pursuant to the Restated Bylaws, (ii) by or at the
direction of the Chairman, (iii) pursuant to a written request
signed by not less than three directors and delivered to the
Secretary or (iv) by a stockholder who has given timely written
notice to the Reorganized Company of such stockholder's intention
to bring such business before such meeting. Under the
Stockholder Notice Procedure, for notice of stockholder
nominations to be made at an annual meeting to be timely, such
notice must be received by the Reorganized Company not less than
70 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting (or if the date of the annual
meeting is advanced by more than 20 days or delayed by more than
70 days from such anniversary date, not earlier than the 90th day
prior to such meeting and not later than the close of business on
the later of (x) the 70th day prior to such meeting or (y) the
10th day after public announcement of the date of such meeting is
first made). Notwithstanding the foregoing, in the event that the
number of directors to be elected is increased and there is no
public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by
the Reorganized Company at least 80 days prior the first
anniversary of the preceding year's annual meeting, a
stockholder's notice will be considered timely, but only with
respect to nominees for any new positions created by such
increase, if it is received by the Reorganized Company not later
than the close of business on the 10th day after such public
announcement is first made by the Reorganized Company. Under the
Stockholder Notice Procedure, for notice of a stockholder
nomination to be made at a special meeting at which directors are
to be elected to be timely, such notice must be received by the
Reorganized Company not earlier than the 90th day before such
meeting and not later than the close of business on the later of
(x) the 70th day prior to such meeting or (y) the 10th day after
the public announcement of the date of such meeting is first
made. In addition, under the Stockholder Notice Procedure, a
stockholder's notice to the Reorganized Company proposing to
nominate a person for election as a director or relating to the
conduct of business other than the nomination of directors must
contain certain specified information. If the chairman of a
meeting determines that a person was not nominated, or other
business was not brought before the meeting, in accordance with
the Stockholder Notice Procedure, such person will not be
eligible for election as a director, or such business will not be
conducted at such meeting, as the case may be.
See also "Description of Certain Provisions of the Amended
Plan and the Reorganized Company's Organizational Documents"
above.
8. Delaware Anti-Takeover Law
The Reorganized Company is subject to the provisions of
section 203 (the "Delaware anti-takeover law") of the DGCL.
Under the Delaware anti-takeover law, certain "business
combinations" between a Delaware corporation, whose stock
generally is publicly traded or held of record by more than 2,000
stockholders, and an "interested stockholder" are prohibited for
a three-year period following the date that such stockholder
became an interested stockholder, unless, among other conditions,
(i) the corporation has expressly elected in its certificate of
incorporation not to be governed by the Delaware anti-takeover
law, (ii) the business combination was approved by the board of
directors of the corporation before the other party to the
business combination became an interested stockholder, (iii) upon
consummation of the transaction that made it an interested
stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the commencement
of the transaction (excluding voting stock owned by directors who
are also officers or held in employee benefit plans in which the
employees do not have a confidential right to tender stock held
by the plan) or (iv) the business combination was approved by the
board of directors of the corporation and ratified by 66-2/3% of
the voting stock which the interested stockholder did not own.
The three-year prohibition also does not apply to certain
business combinations proposed by an interested stockholder
following the announcement or notification of certain
extraordinary transactions involving the corporation and a person
who had not been an interested stockholder during the previous
three years or who became an interested stockholder with the
approval of a majority of the corporation's directors. The term
"business combination" is defined broadly to include mergers or
consolidations between a Delaware corporation and an "interested
stockholder", transactions with an "interested stockholder"
involving the assets or stock of the corporation or its
majority-owned subsidiaries and transactions which increase an
interested stockholder's percentage ownership of stock. The term
"interested stockholder" is defined generally as any person who
becomes the beneficial owner of 15% or more of a Delaware
corporation's voting stock. Under certain circumstances, the
Delaware anti-takeover law makes it more difficult for a person
who would be an "interested stockholder" to effect various
business combinations with a corporation for a three-year period,
although the stockholders may elect to exclude a corporation from
the restrictions imposed thereunder. The Restated Charter does
not exclude the Reorganized Company from the restrictions imposed
under the Delaware anti-takeover law. The provisions of the
Delaware anti-takeover law may encourage companies interested in
acquiring the Reorganized Company to negotiate in advance with
the Board of Directors, since the stockholder approval
requirement would be avoided if a majority of the directors then
in office approve either the business combination or the
transaction which results in the stockholder becoming an
interested stockholder. Such provisions also may have the effect
of preventing changes in the management of the Reorganized
Company. It is possible that such provisions could make it more
difficult to accomplish transactions which stockholders may
otherwise deem to be in their best interests and could prohibit
or delay the accomplishment of mergers or other takeover or
change in control attempts with respect to the Reorganized
Company and, accordingly, may discourage attempts to acquire the
Reorganized Company.
Pursuant to Section 203 of the DGCL, together with Section
303 of the DGCL, JNL shall be deemed not to be an "interested
stockholder" under the Delaware anti-takeover law.
9. Releases under the Amended Plan
The releases contained in the Amended Plan do not release
any claim (as defined in Section 101(5) of the Bankruptcy Code),
action, cause of action, suit, debt, due, sum of money, account,
reckoning, board, bill, specialty, covenant, contract,
controversy, agreement, promise, variance, trespass, damage or
judgment, whether known or unknown and whether asserted or
unasserted ("Cause of Action") which Holdings, Bucyrus or the
Reorganized Company may have against Goldman, Sachs & Co., its
affiliate, Broad Street Investment Fund I, L.P., South Street
Corporate Recovery Fund I, L.P., South Street Leveraged Corporate
Recovery Fund, L.P., South Street Corporate Recovery Fund I
(International), L.P., Greycliff Partners, Ltd. or any of their
respective successors, predecessors and other related parties
(the "Non-Released Parties"). Pursuant to Section 9.06 of the
Amended Plan, JNL, by having entered into an Indemnification
Agreement, dated as of November 30, 1994, with Holdings and
Bucyrus, with the consent of the Creditors Committee, has the
exclusive right and authority, in its sole discretion, to pursue
as a representative of Holdings' and Bucyrus' bankruptcy estates
any claims, rights or Causes of Action of Holdings or Bucyrus
against a Non-Released Party. Any recovery of cash or property
obtained by or on behalf of the Reorganized Company with respect
to any Cause of Action against a Non-Released Party which arose
prior to February 18, 1994 shall constitute a distribution on
JNL's claim as the holder of the Resettable Senior Notes due 1996
of Bucyrus. JNL is required to pay all the costs and expenses of
pursuing such matters.
10. Additional Information
Additional information regarding the terms of the Amended
Plan has been previously reported in Bucyrus' Quarterly Report on
Form 10-Q for the quarter ended September 30, 1994.
Item 7. Financial Statements and Exhibits
(c) Exhibits:
2.1 Second Amended Joint Plan of Reorganization of B-E
Holdings, Inc. and Bucyrus-Erie Company under
chapter 11 of the Bankruptcy Code, as modified
December 1, 1994, including Exhibits.
2.2 Order dated December 1, 1994 of the U.S.
Bankruptcy Court, Eastern District of Wisconsin,
confirming the Second Amended Joint Plan of
Reorganization of B-E Holdings, Inc. and Bucyrus-
Erie Company under chapter 11 of the Bankruptcy
Code as modified December 1, 1994.
99.1 Press Release, dated December 2, 1994, of B-E
Holdings, Inc. and Bucyrus-Erie Company announcing
confirmation of the Second Amended Joint Plan of
Reorganization.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
BUCYRUS-ERIE COMPANY
(Registrant)
By: /s/ WILLIAM B. WINTER
Name: William B. Winter
Title: Chairman
Date: December 13, 1994
<PAGE>
BUCYRUS-ERIE COMPANY
EXHIBIT INDEX
TO
CURRENT REPORT ON FORM 8-K
Incorporated Sequential
Exhibit Herein By Filed Page
Number Description Reference Herewith Number
2.1 Second Amended Joint X
Plan of Reorganization
of B-E Holdings, Inc.
and Bucyrus-Erie Company
under chapter 11 of the
Bankruptcy Code, as
modified December 1,
1994, including Exhibits.
2.2 Order dated December 1, X
1994 of the U.S. Bankruptcy
Court, Eastern District
of Wisconsin, confirming
the Second Amended Joint
Plan of Reorganization of
B-E Holdings, Inc. and
Bucyrus-Erie Company under
chapter 11 of the Bankruptcy
Code as modified December 1,
1994.
99.1 Press Release, dated X
December 2, 1994, of B-E
Holdings, Inc. and Bucyrus-
Erie Company announcing
confirmation of the Second
Amended Joint Plan of
Reorganization.
<PAGE>
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- - ------------------------------x
In re : Chapter 11 Case
Nos. 94-20786-RAE
B-E HOLDINGS, INC. and : 94-20787-RAE
BUCYRUS-ERIE COMPANY,
: Jointly Administered
Debtors.
:
- - ------------------------------x
SECOND AMENDED JOINT PLAN OF REORGANIZATION
OF B-E HOLDINGS, INC. AND BUCYRUS-ERIE COMPANY
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS MODIFIED DECEMBER 1, 1994
MILBANK, TWEED, HADLEY & McCLOY
John G. Gellene
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
HOWARD, SOLOCHEK & WEBER, S.C.
Albert Solochek
324 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 272-0760
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS . . . . . 10
A. Administrative Claims . . . . . . . . . . . . . . . . . 10
B. Priority Tax Claims . . . . . . . . . . . . . . . . . . 10
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY
INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Summary . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Classification and Treatment. . . . . . . . . . . . . . 11
C. Rights of Debtors Concerning Unimpaired Claims. . . . . 17
D. Automatic Amendment to Plan Upon Rejection
of Plan by Class 9. . . . . . . . . . . . . . . . . . 17
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN . . . . . . . . . . . . . 17
A. Voting Classes. . . . . . . . . . . . . . . . . . . . . 17
B. Acceptance by Impaired Classes. . . . . . . . . . . . . 18
C. Presumed Acceptance of Plan . . . . . . . . . . . . . . 18
D. Confirmation Without Acceptance by All Impaired
Classes . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN. . . . . . . . . . . . . 18
A. Continued Corporate Existence and Vesting of Assets
in the Reorganized Debtor . . . . . . . . . . . . . . 18
B. Transactions on the Effective Date. . . . . . . . . . . 18
C. Corporate Governance, Directors and Officers
and Corporate Action. . . . . . . . . . . . . . . . . 19
D. Professional Fee Claims . . . . . . . . . . . . . . . . 21
E. Sources of Cash for Plan Distribution . . . . . . . . . 21
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES . . . . 22
A. Assumption of Executory Contracts and Unexpired
Leases. . . . . . . . . . . . . . . . . . . . . . . . 22
B. Claims Based on Rejection of Executory Contracts or
Unexpired Leases. . . . . . . . . . . . . . . . . . . 22
C. Cure of Defaults for Executory Contracts and
Unexpired Leases Assumed. . . . . . . . . . . . . . . 22
D. Indemnification of Directors, Officers and Employees. . 22
E. Compensation and Benefit Programs . . . . . . . . . . . 23
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ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS. . . . . . . . . . . . . . 23
A. Distributions for Claims Allowed as of the
Effective Date. . . . . . . . . . . . . . . . . . . . 23
B. Distributions by Disbursing Agents. . . . . . . . . . . 23
C. Delivery and Distributions and Undeliverable or
Unclaimed Distributions . . . . . . . . . . . . . . . 24
D. Distribution Record Date. . . . . . . . . . . . . . . . 24
E. Timing and Calculation of Amounts to be Distributed . . 25
F. Distribution and Fractional Securities. . . . . . . . . 25
G. Setoffs . . . . . . . . . . . . . . . . . . . . . . . . 25
H. Surrender of Canceled Instruments or Securities . . . . 25
I. Impaired Debt Securities. . . . . . . . . . . . . . . . 25
J. Holdings Stock Certificates . . . . . . . . . . . . . . 26
K. Failure to Surrender Canceled Impaired Debt Securities
or Canceled Holdings Stock Certificates . . . . . . . 26
L. Lost, Stolen, Mutilated or Destroyed Impaired Debt
Securities or Stock Certificates. . . . . . . . . . . 26
M. Cancellation of Existing Indentures and Bucyrus
South Street Lease. . . . . . . . . . . . . . . . . . 26
N. Release of Indenture Trustee Charging Liens . . . . . . 27
O. Allocation of Distributions to Holders of Allowed
Claims. . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS. . . . . . . . . . . 27
A. Prosecution of Objections to Claims . . . . . . . . . . 27
B. Estimation of Claims. . . . . . . . . . . . . . . . . . 27
C. Payments and Distributions on Disputed Claims . . . . . 28
ARTICLE IX
RELEASE AND RELATED PROVISIONS. . . . . . . . . . . . . . . . 28
A. Subordination . . . . . . . . . . . . . . . . . . . . . 28
B. Limited Release of Directors, Officers and Employees. . 28
C. Release in Respect of Becor Transactions and Certain
Other Matters . . . . . . . . . . . . . . . . . . . . 29
D. Preservation of Rights of Action. . . . . . . . . . . . 29
ARTICLE X
REGISTRATION AND RELATED RIGHTS . . . . . . . . . . . . . . . 30
ARTICLE XI
CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION
OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . 31
A. Conditions Precedent to Confirmation. . . . . . . . . . 31
B. Conditions Precedent to Consummation. . . . . . . . . . 31
C. Waiver of Conditions. . . . . . . . . . . . . . . . . . 31
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ARTICLE XII
RETENTION OF JURISDICTION . . . . . . . . . . . . . . . . . . 31
ARTICLE XIII
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . 32
A. Dissolution of Committee. . . . . . . . . . . . . . . . 32
B. Payment of Statutory Fees . . . . . . . . . . . . . . . 32
C. No Interest . . . . . . . . . . . . . . . . . . . . . . 32
D. Discharge of Debtors. . . . . . . . . . . . . . . . . . 32
E. Injunction. . . . . . . . . . . . . . . . . . . . . . . 33
F. Modification of Plan. . . . . . . . . . . . . . . . . . 34
G. Revocation of Plan. . . . . . . . . . . . . . . . . . . 34
H. Rules of Interpretation . . . . . . . . . . . . . . . . 34
I. Computation of Time . . . . . . . . . . . . . . . . . . 34
J. Governing Law . . . . . . . . . . . . . . . . . . . . . 34
K. Severability. . . . . . . . . . . . . . . . . . . . . . 34
L. Successors and Assigns. . . . . . . . . . . . . . . . . 36
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EXHIBITS
A - Amended Bylaws
B - Amended Certificate of Incorporation
C - Summary of New Bucyrus Registration Rights Agreement
D - New South Street Term Sheet
E - Merger Agreement
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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- - ------------------------------x
In re : Chapter 11 Case
Nos. 94-20786-RAE
B-E HOLDINGS, INC. and : 94-20787-RAE
BUCYRUS-ERIE COMPANY,
: Jointly Administered
Debtors.
:
- - ------------------------------x
SECOND AMENDED JOINT PLAN OF REORGANIZATION
OF B-E HOLDINGS, INC. AND BUCYRUS-ERIE COMPANY
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS MODIFIED DECEMBER 1, 1994
B-E Holdings, Inc. and Bucyrus-Erie Company hereby propose
the following Second Amended Joint Plan of Reorganization
pursuant to section 1121(a) of the Bankruptcy Code.
ARTICLE I
DEFINITIONS
As used in the Plan the following terms shall have the
meanings specified below:
1.001. "Administrative Claim" means a Claim for costs and
expenses of administration allowed under section 503(b), 507(b)
or 1114(e)(2) of the Bankruptcy Code, including:
(a) the actual and necessary costs and expenses
incurred after the Petition Date of preserving the Estate
and operating the business of a Debtor (such as wages,
salaries or commissions for services and payments for goods
and other services and leased premises), any indebtedness or
obligations incurred or assumed by the Debtors or the
Debtors in Possession in connection with the conduct of
their businesses or for the acquisition or lease of property
or for the procurement of services, including, without
limitation, obligations for borrowings under the
Post-Petition Financing Agreement, any costs and expenses of
the Debtors for the management, preservation, sale or other
disposition of any assets, the administration, prosecution
or defense of claims by or against the Debtors and for
distributions under the Plan, and shall also include the
Claims for Indenture Trustees for fees and expenses to the
extent contemplated by Section 7.19 of the Plan;
(b) compensation for legal, financial advisory,
accounting and other services and reimbursement of expenses
awarded or allowed under section 330(a) or 331 of the
Bankruptcy Code; and
(c) all fees and charges assessed against the
Estate of a Debtor under chapter 123 of title 28, United
States Code, 28 U.S.C. Sections 1911-1930.
1.002. "Allowed Claim" or "Allowed Unsecured Claim" means
for the purpose of receiving distributions or other treatment
pursuant to the Plan, but subject in all events to the provisions
of Section 3.22:
(a) a Claim that has been scheduled by a Debtor in
its schedule of liabilities as other than disputed,
contingent or unliquidated and as to which a Debtor or other
party in interest has not Filed an objection by the
Effective Date;
(b) a Claim that either is not a Disputed Claim or
has been allowed by a Final Order;
(c) a Claim that is allowed: (i) in any stipulation
of amount and nature of Claim executed prior to the
Confirmation Date and approved by the Bankruptcy Court; (ii)
in any stipulation with a Debtor of amount and nature of
Claim executed on or after the Confirmation Date; or (iii)
in any contract, instrument, indenture or other agreement
entered into or assumed in connection with the Plan;
(d) a Claim relating to a rejected executory
contract or unexpired lease that either (i) is not a
Disputed Claim or (ii) has been allowed by a Final Order, in
either case only if a proof of Claim has been Filed by the
Bar Date or has otherwise been deemed timely Filed under
applicable law; or
(e) a Claim that is allowed pursuant to the terms
of this Plan.
1.003. "Allowed Equity Interest" means an Equity Interest
in Holdings Stock: (a) as of the Distribution Record Date as
registered in the stock register that is maintained by or on
behalf of Holdings and (b) (i) is not a Disputed Equity Interest
or (ii) has been allowed by a Final Order.
1.004. "Allowed . . . Claim" means an Allowed Claim in
the particular Class or category described.
1.005. "Amended Bylaws" means the Restated Bylaws of the
Reorganized Debtor, which shall be substantially in the form set
forth in Exhibit A.
1.006. "Amended Certificate of Incorporation" means the
Restated Certificate of Incorporation of the Reorganized Debtor,
to be filed pursuant to the Merger Agreement as described in
Section 5.03 of the Plan, which shall be substantially in the
form of Exhibit B.
1.007. "Ballots" means the ballots accompanying the
Disclosure Statement upon which Holders of Impaired Claims and
Impaired Equity Interests shall indicate their acceptance or
rejection of the Plan in accordance with the Voting Instructions.
1.008. "Bankruptcy Code" means title 11 of the United
States Code, as now in effect or hereafter amended.
1.009. "Bankruptcy Court" means the United States
Bankruptcy Court having jurisdiction over the Chapter 11 Cases.
1.010. "Bankruptcy Rules" means the Federal Rules of
Bankruptcy Procedure, as amended from time to time, as applicable
to the Chapter 11 Cases, promulgated under 28 U.S.C. Section 2075
and the General and Local Rules, if any, of the Bankruptcy Court.
1.011. "Bar Date" means the bar date for Filing of proofs
of claim with respect to executory contracts and unexpired leases
which are rejected pursuant to this Plan or otherwise pursuant to
section 365 of the Bankruptcy Code.
1.012. "Becor Transactions" means the acquisition by
Holdings of Becor Western, Inc. pursuant to the Agreement and
Plan of Merger dated as of July 28, 1987, as amended, the
exchange offer of Bucyrus 10% Senior Notes consummated on
January 28, 1989, the issuance of Bucyrus Resettable Senior
Notes, the issuance of Bucyrus South Street Notes, consummation
of the Bucyrus South Street Lease and certain other related
transactions.
1.013. "Bell Helicopter" means Bell Helicopter Textron
Inc.
1.014. "Bell Helicopter Claim" means the claims of Bell
Helicopter asserted in or related to the civil action captioned
Bell Helicopter Textron Inc. v. Brad Foote Gear Works, Inc., BWC
Gear, Inc., and Bucyrus-Erie Company pending in the District
Court of Tarrant County, Texas, 348th Judicial District.
1.015. "Beneficial Holder" means the entity holding the
beneficial interest in a Claim or Equity Interest.
1.016. "Broad Street Fund" means Broad Street Investment
Fund I, L.P.
1.017. "Bucyrus" means Bucyrus-Erie Company, a Delaware
corporation.
1.018. "Bucyrus 10% Senior Notes" means the 10% Senior
Notes due 1996 of Bucyrus issued under the Bucyrus 10% Senior
Note Indenture.
1.019. "Bucyrus 10% Senior Note Indenture" means the
Indenture dated as of January 28, 1989, between Bucyrus and First
Wisconsin Trust Company, now known as Firstar Trust Company, as
trustee.
1.020. "Bucyrus Common Stock" means the common stock, par
value $.01 per share, of Bucyrus.
1.021. "Bucyrus General Unsecured Claims" means,
collectively, all unsecured Claims against Bucyrus, including
Trade Claims, but excluding claims of Holders of Bucyrus 10%
Senior Notes, Bucyrus Sinking Fund Debentures, Bucyrus Resettable
Senior Notes, Bucyrus South Street Notes and Bucyrus South Street
Lease Claims.
1.022. "Bucyrus Lease Trustee" means State Street Bank and
Trust Company of Connecticut, National Association, as trustee
under the Trust Agreement dated as of July 24, 1992 establishing
the SS Equipment Trust No. 1.
1.023. "Bucyrus Priority Claims" means any Claims against
Bucyrus accorded the priority and right of payment under section
507(a) of the Bankruptcy Code, other than a Priority Tax Claim or
on Administrative Claim.
1.024. "Bucyrus Resettable Senior Notes" means the
Resettable Senior Notes due January 1, 1996 of Bucyrus issued
under the Bucyrus Resettable Senior Note Indenture.
1.025. "Bucyrus Resettable Senior Note Indenture" means
the Indenture dated as of June 25, 1990, between Bucyrus and
First Wisconsin Trust Company, as trustee, under which First
Trust, National Association acts as successor trustee.
1.026. "Bucyrus Secured Claims" means, collectively, all
Allowed Secured Claims against Bucyrus held by any entity other
than the South Street Claims.
1.027. "Bucyrus Sinking Fund Debentures" means the 9%
Sinking Fund Debentures due 1999 of Bucyrus issued under the
Bucyrus Sinking Fund Debenture Indenture.
1.028. "Bucyrus Sinking Fund Debenture Indenture" means
the Indenture dated as of June 1, 1974 between Bucyrus and
Chemical Bank as successor by merger to Manufacturers Hanover
Trust Company, as trustee.
1.029. "Bucyrus South Street Lease" means, collectively,
(i) the Participation Agreement dated as of July 24, 1992 among
Bucyrus, Holdings, the South Street Funds and the Bucyrus Lease
Trustee, (ii) the Purchase Agreement and Assignment dated as of
July 24, 1992 between Bucyrus and the Bucyrus Lease Trustee,
(iii) the Bill of Sale between Bucyrus and the Bucyrus Lease
Trustee dated July 24, 1992, and (iv) the Lease and Agreement
dated as of July 24, 1992 between Bucyrus and the Bucyrus Lease
Trustee.
1.030. "Bucyrus South Street Lease Claims" means the
Claims of the lessor and the owner participants under the Bucyrus
South Street Lease.
1.031. "Bucyrus South Street Notes" means the Series A
10.65% Senior Secured Notes due July 1, 1995 of Bucyrus and the
Series B 16.5% Senior Secured Notes due January 1, 1996 of
Bucyrus issued under the Bucyrus South Street Note Indenture.
1.032. "Bucyrus South Street Note Claims" means the Claims
of Holders of Bucyrus South Street Notes under (i) the Securities
Purchase Agreement dated as of July 24, 1992 among Bucyrus,
Holdings and the South Street Funds, (ii) the Indenture dated as
of July 24, 1992 among Bucyrus, Holdings and the South Street
Note Trustee and (iii) the Bucyrus South Street Notes.
1.033. "Bucyrus South Street Note Indenture" means the
Indenture dated as of July 24, 1992 between Bucyrus, Holdings and
the South Street Note Trustee.
1.034. "Business Day" means any day, other than a
Saturday, Sunday or "legal holiday" (as defined in Bankruptcy
Rule 9006(a)).
1.035. "Cash" means cash and cash equivalents.
1.036. "Causes of Action" means all claims (as defined in
section 101(5) of the Bankruptcy Code), actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages or
judgments, whether known or unknown and whether asserted or
unasserted.
1.037. "Chapter 11 Cases" means the cases under chapter 11
of the Bankruptcy Code, commenced by the Debtors in the
Bankruptcy Court.
1.038. "Claim" means a claim (as defined in section 101(5)
of the Bankruptcy Code) against a Debtor.
1.039. "Class" means a category of Holders of Claims or
Equity Interests as set forth in Article III of the Plan pursuant
to section 1123(a)(1) of the Bankruptcy Code.
1.040. "Confirmation" means the entry of the Confirmation
Order by the Bankruptcy Court in its docket, within the meaning
of Bankruptcy Rules 5003 and 9021.
1.041. "Confirmation Date" means the date upon which
Confirmation occurs.
1.042. "Confirmation Order" means the order of the
Bankruptcy Court confirming the Plan pursuant to section 1129 of
the Bankruptcy Code.
1.043. "Consummation" means the occurrence of the
Effective Date.
1.044. "Creditor" means any Holder of a Claim.
1.045. "Creditors Committee" means the statutory committee
of unsecured creditors appointed in the Chapter 11 Case of
Bucyrus pursuant to section 1102 of the Bankruptcy Code.
1.046. "Debt Securities Indentures" means the Bucyrus 10%
Senior Note Indenture, the Bucyrus Sinking Fund Debenture
Indenture, the Bucyrus Resettable Senior Note Indenture, and the
Holdings Senior Debenture Indenture, and the Bucyrus South Street
Note Indenture.
1.047. "Debtors" means Bucyrus and Holdings, debtors in
the Chapter 11 Cases.
1.048. "Debtors in Possession" means Bucyrus and Holdings,
as debtors in possession in the Chapter 11 Cases.
1.049. "Delaware General Corporation Law" means title 8 of
the Delaware Code, as now in effect or hereafter amended.
1.050. "Disbursing Agent" means Bucyrus and/or the
Indenture Trustees and/or any third party disbursing agent as
Bucyrus and Holdings may employ in their sole discretion.
1.051. "Disclosure Statement" means the Disclosure
Statement And Proxy Statement-Prospectus dated January 12, 1994,
as supplemented by the Disclosure Supplement and as further
amended, supplemented or modified from time to time, that is
prepared and distributed in accordance with sections 1125,
1126(b) and/or 1145 of the Bankruptcy Code and Bankruptcy Rule
3018.
1.052. "Disclosure Supplement" means the Supplement to the
Disclosure Statement dated September 19, 1994, as approved by the
Bankruptcy Court by order dated September 19, 1994.
1.053. "Disputed Administrative Claim", "Disputed Claim",
"Disputed Priority Tax Claim" and "Disputed Equity Interest" mean
any Administrative Claim, Claim, Priority Tax Claim or Equity
Interest, as the case may be:
(a) listed on the Schedules as unliquidated,
disputed or contingent; or
(b) as to which a Debtor or any party in interest
has interposed a timely objection or request for estimation
in accordance with the Bankruptcy Code and the Bankruptcy
Rules or is otherwise disputed by the Debtor in accordance
with applicable law, which objection, request for estimation
or dispute has not been withdrawn or determined by a Final
Order.
1.054. "Distribution Record Date" means the close of
business on the Business Day immediately preceding the Effective
Date.
1.055. "Effective Date" means the date selected by the
Debtors which is after the Confirmation Date and within 45 days
after the Confirmation Date, subject to extension for reasonable
cause shown, after such notice and hearing as may be required by
the Bankruptcy Court, and on which: (a) no stay of the
Confirmation Order is in effect, and (b) all conditions specified
in Article XI.B of the Plan have been (i) satisfied or (ii)
waived pursuant to Section 11.04.
1.056. "Equity Holder" means the Holder of an Equity
Interest.
1.057. "Equity Interest" means any equity interest in a
Debtor including, but not limited to, the Bucyrus Common Stock,
the Holdings Stock, the Holdings Stock Options, and the Holdings
Old Warrants.
1.058. "Estate" means the estate of a Debtor created by
section 541 of the Bankruptcy Code upon the commencement of the
Chapter 11 Cases.
1.059. "File" or "Filed" means file or filed with the
Bankruptcy Court in the Chapter 11 Cases.
1.060. "Final Decree" means the decree contemplated under
Bankruptcy Rule 3022.
1.061. "Final Order" means an order or judgment of the
Bankruptcy Court, or other court of competent jurisdiction with
respect to the 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 was appealed or from which certiorari was
sought.
1.062. "Goldman" means Goldman, Sachs & Co.
1.063. "Holder" means an entity holding an Equity Interest
or Claim, and with respect to a vote on the Plan, means the
Beneficial Holder as of the Voting Record Date or any authorized
signatory who has completed and executed a Ballot or on whose
behalf a Master Ballot has been completed and executed in
accordance with the Voting Instructions.
1.064. "Holdings" means B-E Holdings, Inc., a Delaware
corporation.
1.065. "Holdings Class C Stock" means the Class C Common
Stock, par value $.01 per share, of Holdings.
1.066. "Holdings Class D Stock" means the Class D Common
Stock, par value $.01 per share, of Holdings.
1.067. "Holdings Class E Stock" means the Class E Common
Stock of Holdings authorized pursuant to the Amended Certificate
of Incorporation which shall be deemed to be issued on the
Effective Date.
1.068. "Holdings General Unsecured Claims" means,
collectively, all unsecured Claims against Holdings, including
Trade Claims, but excluding claims of Holders of Holdings Senior
Debentures.
1.069. "Holdings Old Warrants" means the 6,392 warrants,
each exercisable for one share of Class A common stock, par value
$.01 per share, of Holdings (i) which were validly exercised by
the Holders thereof in accordance with their terms and (ii) in
respect of which Holdings did not issue shares of Holdings
Class C Stock to the Holders thereof because such Holders on the
respective exercise dates resided in states where registration or
exemption permitting the sale of such stock under state
securities law was pending on or prior to the Voting Record Date.
1.070. "Holdings Priority Claims" means any Claims against
Holdings accorded the priority and right of payment under section
507(a) of the Bankruptcy Code, other than a Priority Tax Claim or
an Administrative Claim.
1.071. "Holdings Secured Claims" means, collectively, all
Allowed Secured Claims against Holdings held by any entity other
than the South Street Claims.
1.072. "Holdings Senior Debentures" means the Series A
12-1/2% Senior Debentures due September 15, 2002 of Holdings
issued under the Holdings Senior Debenture Indenture.
1.073. "Holdings Senior Debenture Indenture" means the
Indenture dated as of December 1, 1987, as amended, between
Holdings and Firstar Trust Company, as trustee.
1.074. "Holdings Series A Preferred Stock" means the
Series A 12-1/2% Cumulative Exchangeable Preferred Stock, par
value $.01 per share, of Holdings.
1.075. "Holdings Series B Preferred Stock" means the
Series B Convertible Preferred Stock, par value $.01 per share,
of Holdings.
1.076. "Holdings Stock" means the Holdings Series A
Preferred Stock, the Holdings Series B Preferred Stock, the
Holdings Class C Stock, the Holdings Class D Stock and the
Holdings Old Warrants.
1.077. "Holdings Stock Options" means the options to
purchase shares of Holdings Class C Stock granted pursuant to the
B-E Holdings, Inc. 1988 Stock Option Plan.
1.078. "Impaired" means, with respect to any Claim,
Interest or Class, the condition or effects described in Section
1124 of the Bankruptcy Code.
1.079. "Impaired Claim" means a Claim classified in an
Impaired Class.
1.080. "Impaired Class" means Classes 2A, 2B, 4A, 4B, 4C,
4D, 5, 6, 8, 9, 10, 11, 12 and 13 as set forth in Article III.B.
of the Plan.
1.081. "Impaired Debt Securities" means the Bucyrus 10%
Senior Notes, the Bucyrus Sinking Fund Debentures, the Bucyrus
Resettable Senior Notes, the Holdings Senior Debentures, the
Bucyrus South Street Notes and the Bucyrus South Street Lease
Claims.
1.082. "Impaired Debt Securities Claims" means Claims
classified in Classes 2A, 2B, 4A, 4B, 4C and 6.
1.083. "Impaired Equity Interest" means an Equity Interest
classified in an Impaired Class.
1.084. "Indenture Trustees" means the trustees and
successor trustees (if any) under the Debt Securities Indentures
and the Bucyrus Lease Trustee.
1.085. "Indenture Trustee Charging Liens" means any lien
or other priority in payment available to an Indenture Trustee
pursuant to an indenture against distributions made to Holders of
Allowed Impaired Debt Securities Claims for payment of any fees,
costs or disbursements incurred by such Indenture Trustee.
1.086. "Intercompany Claim" means any Claim held by
Bucyrus against Holdings net of any Claims held by Holdings
against Bucyrus.
1.087. "Internal Revenue Code" means title 26 of the
United States Code, as now in effect or hereafter amended.
1.088. "Lien" means a lien as defined in section 101(37)
of the Bankruptcy Code.
1.089. "Master Ballots" means the master ballots
accompanying the Disclosure Statement upon which Holders of
Impaired Claims and Impaired Equity Interests shall indicate the
acceptance or rejection of the Plan in accordance with the Voting
Instructions.
1.090. "Merger Agreement" means the agreement and plan of
merger to be entered into by or on the Effective Date between
Holdings and Bucyrus providing for the merger contemplated by
Section 5.02(c) of the Plan, which shall be substantially in the
form set forth in Exhibit E.
1.091. "New Bank One Credit Agreement" means the Credit
Agreement to be entered into as of the Effective Date between the
Reorganized Debtor and Bank One, Milwaukee, N.A.
1.092. "New Bucyrus Common Stock" means the 20,000,000
shares of Bucyrus Common Stock authorized pursuant to the Amended
Certificate of Incorporation.
1.093. "New Bucyrus Notes" means the secured senior notes
of New Bucyrus, due on the fifth anniversary of the Effective
Date, which shall be issued by New Bucyrus on the Effective Date
under the New South Street Credit Agreement and this Plan.
1.094. "New Bucyrus Registration Rights Agreement" means
an agreement regarding the registration and related rights of the
holders of the New Bucyrus Common Stock, the terms and conditions
of which agreement are summarized in Exhibit C to this Plan,
which agreement shall be substantially in the form set forth in
the Reorganization Documents.
1.095. "New South Street Credit Agreement" means the
credit agreement that shall be entered into on the Effective Date
between the Reorganized Debtor and the South Street Funds with
respect to the New Bucyrus Notes.
1.096. "New South Street Term Sheet" means the term sheet
for the New South Street Credit Agreement, a copy of which is
attached hereto as Exhibit D.
1.097. "Non-Released Persons" is defined in Section 9.04.
1.098. "Old Bucyrus Common Stock" means the 100 shares of
Bucyrus Common Stock held by Holdings on the Petition Date, being
all of the authorized and outstanding shares of Bucyrus Common
Stock on that date.
1.099. "Original Directors" means the initial members of
the Board of Directors of the Reorganized Debtor selected
pursuant to Section 5.04(b) and their respective successors, if
any, elected in the manner specified in Section 4.7(B) of the
Amended Bylaws.
1.100. "Person" means any individual, firm, corporation,
association, partnership, joint venture, trust, or other entity.
1.101. "Petition Date" means the date on which the Debtors
filed their petitions for relief commencing the Chapter 11
Cases.
1.102. "Plan" means this Second Amended Joint Plan of
Reorganization, either in its present form or as it may be
altered, amended, modified or supplemented from time to time in
accordance with the Plan, the Bankruptcy Code and the Bankruptcy
Rules.
1.103. "Pre-Petition Secured Lease Claims" means the
outstanding principal amount of the Bucyrus South Street Lease
Claims plus the amount of accrued and unpaid interest thereon as
of the Petition Date.
1.104. "Pre-Petition Secured Note Claims" means the
outstanding principal amount of the Bucyrus South Street Note
Claims plus the amount of accrued and unpaid interest thereon as
of the Petition Date.
1.105. "Priority Tax Claim" means a Claim of a
governmental unit of the kind specified in section 507(a)(7) of
the Bankruptcy Code.
1.106. "Pro Rata" means proportionately so that with
respect to an Allowed Claim or Equity Interest, the ratio of (i)
(I) the amount of property distributed on account of a particular
Allowed Claim or Equity Interest to (II) the amount of the
Allowed Claim or Equity Interest, is the same as the ratio of
(ii) (I) the amount of property distributed on account of all
Allowed Claims or Equity Interests of the Class in which the
particular Allowed Claim or Equity Interest is included to (II)
the amount of Allowed Claims or Equity Interests in that Class.
1.107. "Professionals" means all professionals employed in
the Chapter 11 Cases pursuant to section 327 or 1103 of the
Bankruptcy Code, all professionals seeking compensation or
reimbursement of expenses from the Debtors, pursuant to section
503(b)(4) or otherwise, and the Examiner appointed in Bucyrus'
Chapter 11 Case.
1.108. "Professional Fee Claims" means Claims against the
Debtors for compensation or reimbursement of expenses of
Professionals which were unpaid as of the Petition Date or which
were incurred on or after the Petition Date and prior to the
Effective Date, including claims by any Person for reimbursement
of amounts paid or owing to Professionals.
1.109. "Released Matters", "Released Persons" and
"Releasors" are defined in Section 9.03.
1.110. "Reorganization Documents" means the New Bank One
Credit Agreement, the New South Street Credit Agreement, the New
Bucyrus Registration Rights Agreement and all other documents
necessary to effectuate this Plan, which documents shall be filed
by the Debtors with the Bankruptcy Court not later than the
commencement of the hearing on Confirmation.
1.111. "Reorganized Debtor" means Bucyrus as Debtor and
Debtor in Possession, or any successor thereto, by merger,
consolidation or otherwise, on and after the Effective Date.
1.112. "Retirement Plans" means the Bucyrus-Erie Salaried
Employees' Retirement Plan, the Supplementary Retirement Benefit
Plan, Bucyrus-Erie Salaried Employees' Savings Plan and
Bucyrus-Erie Hourly Employees' Savings Plan.
1.113. "Schedules" means the schedules of assets and
liabilities, schedules of executory contracts and the statement
of financial affairs that the Debtors are required to File
pursuant to section 521 of the Bankruptcy Code, the Official
Bankruptcy Forms and the Bankruptcy Rules.
1.114. "Secured Claim" means a Claim that is secured by a
lien on property in which an Estate has an interest or that is
subject to set off under section 553 of the Bankruptcy Code, to
the extent of the value of the Claim Holder's interest in the
Estate's interest in such property or to the extent of the amount
subject to setoff, as applicable, as determined pursuant to
section 506(a) of the Bankruptcy Code.
1.115. "Securities Act" means the Securities Act of 1933,
15 U.S.C. Sections 77a-77aa, as now in effect or hereafter
amended.
1.116. "South Street Funds" means South Street Corporate
Recovery Fund I, L.P., South Street Leveraged Corporate Recovery
Fund, L.P., and South Street Corporate Recovery Fund I
(International), L.P.
1.117. "South Street Claims" means the Claims of the
Holders of the Bucyrus South Street Note Claims and the Claims of
the Holders of the Bucyrus South Street Lease Claims.
1.118. "South Street Note Trustee" means Norwest Bank
Wisconsin, National Association, as trustee under the Bucyrus
South Street Note Indenture.
1.119. "Trade Claim" means any Unsecured Claim against a
Debtor arising from or with respect to the delivery of goods or
services to such Debtor in the ordinary course of the Debtor's
business, prior to the Petition Date.
1.120. "Transfer" and "Transferee" are defined in Section
5.04(c)(ii).
1.121. "Unimpaired Claim" means an unimpaired Claim within
the meaning of section 1124 of the Bankruptcy Code.
1.122. "Unimpaired Class" means an unimpaired Class within
the meaning of section 1124 of the Bankruptcy Code.
1.123. "Unofficial Bondholder Committee" means the ad hoc
committee of holders of the Bucyrus 10% Senior Notes and the
Holdings Senior Debentures.
1.124. "Unsecured Claim" means any Claim against a Debtor
that is not a Secured Claim, Administrative Claim, Priority Tax
Claim or Other Priority Claim.
1.125. "Voting Agent" means D.F. King & Co., Inc.
1.126. "Voting Instructions" means the instructions for
voting on the Plan contained in the section of the Disclosure
Supplement entitled "SOLICITATION; VOTING PROCEDURES" and in the
Ballots and the Master Ballots.
1.127. "Voting Receipt Date" means the date established by
Final Order of the Bankruptcy Court for the receipt by the Voting
Agent of Ballots and Master Ballots from Holders of Impaired
Claims and Impaired Equity Interests.
1.128. "Voting Record Date" means September 1, 1994.
1.129. "1996 Annual Meeting" and "1997 Annual Meeting"
mean the annual meetings of the stockholders of the Reorganized
Debtor to be held in 1996 and 1997, respectively.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
AND PRIORITY TAX CLAIMS
A. Administrative Claims.
2.01. Subject to the provisions of sections 330(a) and 331
of the Bankruptcy Code, each Holder of an Allowed Administrative
Claim will be paid the full unpaid amount of such Allowed
Administrative Claim in Cash on the Effective Date, or upon such
other terms as may be agreed upon by such Holder and the
Reorganized Debtor or otherwise upon order of the Bankruptcy
Court; provided, however, that Allowed Administrative Claims
representing obligations incurred in the ordinary course of
business or otherwise assumed by the Debtors pursuant to the Plan
will be assumed on the Effective Date and paid or performed by
the Reorganized Debtor when due in accordance with the terms and
conditions of the particular agreements governing such
obligations.
B. Priority Tax Claims.
2.02. On the Effective Date, each Holder of a Priority Tax
Claim due and payable on or prior to the Effective Date shall be
paid Cash in an amount equal to the amount of such Allowed Claim
on such terms as have been or may be agreed upon by such Holder
and the Debtor liable on the Allowed Claim. In accordance with
section 1124 of the Bankruptcy Code, the Plan shall leave
unaltered the legal, equitable and contractual rights of each
Holder of a Priority Tax Claim.
ARTICLE III
CLASSIFICATION AND TREATMENT
OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
A. Summary.
3.01. The following classification of Claims and Equity
Interests is made for purposes of voting on the Plan, making
Distributions under the Plan and for ease of administration:
Class Status
Class 1A - Holdings Priority Unimpaired - not entitled
Claims to vote
Class 1B - Bucyrus Priority Unimpaired - not entitled
Claims to vote
Class 2A - Bucyrus South Street Impaired - entitled to vote
Note Claims
Class 2B - Bucyrus South Street Impaired - entitled to vote
Lease Claims
Class 3A - Holdings Secured Unimpaired - not entitled to
Claims vote
Class 3B - Bucyrus Secured Unimpaired - not entitled to
Claims vote
Class 4A - Claims of Holders Impaired - entitled to vote
of Bucyrus 10%
Senior Notes
Class 4B - Claims of Holders Impaired - entitled to vote
of Bucyrus Resettable
Senior Note
Class 4C - Claims of Holders Impaired - entitled to vote
of Bucyrus Sinking
Fund Debentures
Class 4D - Bell Helicopter Claim Impaired - entitled to vote
Class 5 - Intercompany Claim Impaired - entitled to vote
Class 6 - Claims of Holders Impaired - entitled to vote
of Holdings Senior
Debentures
Class 7A - Holdings General Unimpaired - not entitled to
Unsecured Claims vote
Class 7B - Bucyrus General Unimpaired - not entitled to
Unsecured Claims vote
Class 8 - Equity Interests of Impaired - deemed to have
Holder of Old voted against the Plan
Bucyrus Common Stock
Class 9 - Equity Interests of Impaired - entitled to vote
Holders of Holdings
Series A Preferred
Stock
Class 10 - Equity Interests of Impaired - entitled to vote
Holders of Holdings
Series B Preferred
Stock
Class 11 - Equity Interests of Impaired - entitled to vote
Holders of Holdings
Class C Stock
(including Equity
Interests of Holders
of Holdings Old
Warrants)
Class 12 - Equity Interests of Impaired - entitled to vote
Holders of Holdings
Class D Stock
Class 13 - Equity Interests of Impaired - entitled to vote
Holders of Holdings
Stock Options
B. Classification and Treatment.
3.02. Class 1A Holdings Priority Claims.
(a) Classification: Class 1A consists of all Holdings
Priority Claims.
(b) Treatment: On the Effective Date, all Allowed
Holdings Priority Claims to the extent then due and owing
will be paid in full in Cash by the Reorganized Debtor,
unless the Holder of such Claim and the Reorganized Debtor
agree to a different treatment. Any Allowed Holdings
Priority Claim not due and owing on the Effective Date
will be paid in full in Cash by the Reorganized Debtor
when such Claim becomes due and owing.
(c) Voting: Class 1A is unimpaired and the Holders of
Claims in Class 1A are not entitled to vote to accept or
reject the Plan.
3.03. Class 1B Bucyrus Priority Claims.
(a) Classification: Class 1B consists of all Bucyrus
Priority Claims.
(b) Treatment: On the Effective Date, all Allowed
Bucyrus Priority Claims to the extent then due and owing
will be paid in full in Cash by the Reorganized Debtor,
unless the Holder of such Claim and the Reorganized Debtor
agree to a different treatment. Any Allowed Bucyrus
Priority Claim not due and owing on the Effective Date
will be paid in full in Cash by the Reorganized Debtor
when such Claim becomes due and owing.
(c) Voting: Class 1B is unimpaired and the Holders of
Claims in Class 1B are not entitled to vote to accept or
reject the Plan.
3.04. Class 2A Bucyrus South Street Note Claims.
(a) Classification: Class 2A consists of all Bucyrus
South Street Note Claims.
(b) Treatment: On the Effective Date, each Holder of
an Allowed Class 2A Claim will receive, in full and final
satisfaction of such Claim, New Bucyrus Notes in the
principal amount equal to the aggregate outstanding
principal of and accrued unpaid interest to and including
the Effective Date on the Bucyrus South Street Notes held
by such Holder as of the Confirmation Date. For purposes
of this Section 3.04(b), the amount of accrued interest on
the Bucyrus South Street Notes shall be calculated without
regard to the pendency of the Chapter 11 Cases and without
regard to any penalty, premium, cost of collection or
related expense which may be claimed to be owing with
respect to the Bucyrus South Street Notes.
(c) Voting: Class 2A is Impaired and the Holders of
Allowed Class 2A Claims are entitled to vote to accept or
reject the Plan.
3.05. Class 2B Bucyrus South Street Lease Claims.
(a) Classification: Class 2B consists of all Bucyrus
South Street Lease Claims.
(b) Treatment: On the Effective Date, each Holder of
an Allowed Class 2B Claim will receive, in full and final
satisfaction of such Claim, such Holder's Pro Rata share
of New Bucyrus Notes in a principal amount equal to the
outstanding unpaid amount owing with respect to the
Bucyrus South Street Lease as of the Effective Date, less
$2,500,000. For purposes of this Section 3.05(b), the
outstanding unpaid amount owing with respect to the
Bucyrus South Street Lease shall be calculated without
regard to the pendency of the Chapter 11 Cases and without
regard to any penalty, premium, cost of collection or
other expense which may be claimed to be owing with
respect to the Bucyrus South Street Lease.
(c) Voting: Class 2B is Impaired and the Holders of
Allowed Class 2B Claims are entitled to vote to accept or
reject the Plan.
3.06. Class 3A Holdings Secured Claims.
(a) Classification: Class 3A consists of all Holdings
Secured Claims.
(b) Treatment: The legal, equitable and contractual
rights of Holders of Holdings Secured Claims are unaltered
by the Plan or, at the option of the Debtors, will be
treated in any other manner so that such Claims shall
otherwise be rendered unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 3A is unimpaired and the Holders of
Claims in Class 3A are not entitled to vote to accept or
reject the Plan.
3.07. Class 3B Bucyrus Secured Claims.
(a) Classification: Class 3B consists of all Bucyrus
Secured Claims.
(b) Treatment: The legal, equitable and contractual
rights of Holders of Bucyrus Secured Claims are unaltered
by the Plan or, at the option of the Debtors, will be
treated in any other manner so that such Claims shall
otherwise be rendered unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 3B is unimpaired and the Holders of
Claims in Class 3B are not entitled to vote to accept or
reject the Plan.
3.08. Class 4A Claims of Holders of Bucyrus 10% Senior
Notes.
(a) Classification: Class 4A consists of the Claims
of Holders of Bucyrus 10% Senior Notes arising from or
related to the Bucyrus 10% Senior Notes.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4A Claim
shall receive, in full and final satisfaction of such
Claim, such Holder's Pro Rata share of 5,010,329 shares of
New Bucyrus Common Stock. In the event that Class 9 votes
to reject the Plan, on or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4A Claim
shall receive such Holder's Pro Rata share of an
additional 44,287 shares of New Bucyrus Common Stock.
(c) Voting: Class 4A is Impaired and the Holders of
Allowed Class 4A Claims are entitled to vote to accept or
reject the Plan.
3.09. Class 4B Claim of Holder of Bucyrus Resettable
Senior Notes.
(a) Classification: Class 4B consists of the Claim of
the Holder of Bucyrus Resettable Senior Notes arising from
or related to the Bucyrus Resettable Senior Notes.
(b) Treatment: On or as soon as practicable after the
Effective Date, the Holder of the Allowed Class 4B Claim
shall receive, in full and final satisfaction of such
Claim, (i) 4,057,203 shares of New Bucyrus Common Stock
and (ii) if the Holder votes to accept the Plan on or
prior to the Voting Receipt Date and executes and delivers
the undertaking described in Section 9.06, (x) any
recovery of cash or property obtained by or on behalf of
the Reorganized Debtor with respect to any Cause of Action
against a Non-Released Person which arose prior to the
Petition Date, and (y) in the event and to the extent that
a Claim or Equity Interest held by a Non-Released Person
is not Allowed by Final Order by reason of the acts or
omissions of such Non-Released Person prior to the
Petition Date, the property that would otherwise have been
distributed under the Plan to such Non-Released Person if
such Claim or Equity Interest had been Allowed in full.
In the event that Class 9 votes to reject the Plan, on or
as soon as practicable after the Effective Date, the
Holder of the Allowed Class 4B Claim shall receive an
additional 35,862 shares of New Bucyrus Common Stock.
(c) Voting: Class 4B is Impaired and the Holder of
the Allowed Class 4B Claim is entitled to vote to accept
or reject the Plan.
3.10. Class 4C Claims of Holders of Bucyrus Sinking Fund
Debentures.
(a) Classification: Class 4C consists of the Claims
of Holders of Bucyrus Sinking Fund Debentures arising from
or related to the Bucyrus Sinking Fund Debentures.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4C Claim
shall receive, in full and final satisfaction of such
Claim, such Holder's Pro Rata share of 50,686 shares of
New Bucyrus Common Stock. In the event that Class 9 votes
to reject the Plan, on or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4C Claim
shall receive such Holder's Pro Rata share of an
additional 448 shares of New Bucyrus Common Stock.
(c) Voting: Class 4C is Impaired and the Holders of
Allowed Class 4C Claims are entitled to vote to accept or
reject the Plan.
3.11. Class 4D Bell Helicopter Claim.
(a) Classification: Class 4D consists of the Bell
Helicopter Claim. The Holder of the Bell Helicopter Claim
shall be deemed to have an Allowed Claim in the amount of
$3,350,000.
(b) Treatment: On or as soon as practicable after the
Effective Date, the Holder of the Allowed Class 4D Claim
shall receive, in full and final satisfaction of such
Claim, $350,000 in Cash and 170,413 shares of New Bucyrus
Common Stock. In the event that Class 9 votes to reject
the Plan, on or as soon as practicable after the Effective
Date, the Holder of the Allowed Class 4D Claim shall
receive an additional 1,507 shares of New Bucyrus Common
Stock.
(c) Voting: Class 4D is Impaired and the Holder of
the Allowed Class 4D Claim is entitled to vote to accept
or reject the Plan.
3.12. Class 5 Intercompany Claim.
(a) Classification: Class 5 consists of the
Intercompany Claim.
(b) Treatment: On or as soon as practicable after the
Effective Date, the Holder of an Allowed Class 5 Claim
shall receive, in full and final satisfaction of such
Claim, 572,800 shares of Holdings Class E Stock, which
shall be converted pursuant to the Merger Agreement into
572,800 shares of New Bucyrus Common Stock, which shall be
allocated ratably among Holders of Class 4A, 4B, 4C and 4D
Claims pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of
the Plan. In the event that Class 9 votes to reject the
Plan, on or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 5 Claim shall
receive such Holder's Pro Rata share of an additional
71,285 shares of Holdings Class E Stock, which shall be
converted pursuant to the Merger Agreement into 71,285
shares of New Bucyrus Common Stock. The shares of New
Bucyrus Stock so converted shall be allocated ratably
among Holders of Class 4A, 4B, 4C and 4D Claims pursuant
to Sections 3.08, 3.09, 3.10 and 3.11 of the Plan.
(c) Voting: Class 5 is Impaired and the Holder of an
Allowed Class 5 Claim is entitled to vote to accept or
reject the Plan.
3.13. Class 6 Claims of Holders of Holdings Senior
Debentures.
(a) Classification: Class 6 consists of the Claims of
Holders of Holdings Senior Debentures arising from or
related to the Holdings Senior Debentures.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 6 Claim
shall receive, in full and final satisfaction of such
Claim, such Holder's Pro Rata share of 716,021 shares of
Holdings Class E Stock, which shall be converted pursuant
to the Merger Agreement into such Holder's Pro Rata share
of 716,021 shares of New Bucyrus Common Stock. In the
event that Class 9 votes to reject the Plan, on or as soon
as practicable after the Effective Date, each Holder of an
Allowed Class 6 Claim shall receive such Holder's Pro Rata
share of an additional 89,109 shares of Holdings Class E
Stock, which shall be converted pursuant to the Merger
Agreement into such Holder's Pro Rata share of 89,109
shares of New Bucyrus Common Stock. Prior to the
effectiveness of the Merger Agreement, the Holdings
Class E Stock that would otherwise be distributed to
Bucyrus as a Holder of Class 9 Claims shall be allocated
ratably among Holders of Class 4A, 4B, 4C and 4D Claims
pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of the
Plan.
(c) Voting: Class 6 is Impaired and the Holders of
Allowed Class 6 Claims are entitled to vote to accept or
reject the Plan.
3.14. Class 7A Holdings General Unsecured Claims.
(a) Classification: Class 7A consists of all Holdings
General Unsecured Claims.
(b) Treatment: All Holdings General Unsecured Claims
shall be unimpaired by the Plan. At the option of the
Reorganized Debtor, the Plan shall (i) leave unaltered the
legal, equitable and contractual rights of the Holder of
an Holdings General Unsecured Claim, (ii) provide for the
payment of an Holdings General Unsecured Claim in full in
Cash on the Effective Date, (iii) provide for the payment
of an Holdings General Unsecured Claim in any manner
agreed to by the Holder of such Claim and the Reorganized
Debtor, or (iv) provide for such other treatment as will
render such Holdings General Unsecured Claim unimpaired in
accordance with section 1124 of the Bankruptcy Code.
(c) Voting: Class 7A is unimpaired and the Holders of
Claims in Class 7A are not entitled to vote to accept or
reject the Plan.
3.15. Class 7B Bucyrus General Unsecured Claims.
(a) Classification: Class 7B consists of all Bucyrus
General Unsecured Claims.
(b) Treatment: All Bucyrus General Unsecured Claims
shall be unimpaired by the Plan. At the option of the
Reorganized Debtor, the Plan shall (i) leave unaltered the
legal, equitable and contractual rights of the Holder of
an Bucyrus General Unsecured Claim, (ii) provide for the
payment of an Bucyrus General Unsecured Claim in full in
Cash on the Effective Date, (iii) provide for the payment
of an Bucyrus General Unsecured Claim in any manner agreed
to by the Holder of such Claim and the Reorganized Debtor,
or (iv) provide such other treatment as will render such
Bucyrus General Unsecured Claim unimpaired in accordance
with section 1124 of the Bankruptcy Code.
(c) Voting: Class 7B is unimpaired and the Holders of
Claims in Class 7B are not entitled to vote to accept or
reject the Plan.
3.16. Class 8 Equity Interest of Holder of Old Bucyrus
Common Stock.
(a) Classification: Class 8 consists of the Equity
Interest of Holdings as the Holder of Old Bucyrus Common
Stock.
(b) Treatment: The Holder of the Class 8 Equity
Interest shall receive no distribution nor retain any
property on account of such Equity Interest under the
Plan.
(c) Voting: Class 8 is Impaired and because no
distribution will be made to the Holder of the Class 8
Equity Interest nor will such Holder retain any property
on account of such Equity Interest, the Holder of the
Class 8 Equity Interest is deemed to reject the Plan.
3.17. Class 9 Equity Interests of Holders of Holdings
Series A Preferred Stock.
(a) Classification: Class 9 consists of the Equity
Interests of Holders of Holdings Series A Preferred Stock.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 9 Equity
Interest shall receive, in full and final satisfaction of
such Equity Interest, such Holder's Pro Rata share of
160,394 shares of Holdings Class E Stock, which shall be
converted pursuant to the Merger Agreement into 160,394
shares of New Bucyrus Common Stock. In the event that
Class 9 votes to reject the Plan, on or as soon as
practicable after the Effective Date, each Holder of an
Allowed Class 9 Equity Interest shall receive, in full and
final satisfaction of such Equity Interest, such Holder's
Pro Rata share of 80,197 shares of Holdings Class E Stock,
which shall be converted pursuant to the Merger Agreement
into 80,197 shares of New Bucyrus Common Stock.
(c) Voting: Class 9 is Impaired and the Holders of
Allowed Class 9 Equity Interests are entitled to vote to
accept or reject the Plan.
3.18. Class 10 Equity Interests of Holders of Holdings
Series B Preferred Stock.
(a) Classification: Class 10 consists of the Equity
Interests of Holders of Holdings Series B Preferred Stock.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 10 Equity
Interest shall receive, in full and final satisfaction of
such Equity Interest, such Holder's Pro Rata share of
32,423 shares of Holdings Class E Stock, which shall be
converted pursuant to the Merger Agreement into 32,423
shares of New Bucyrus Common Stock. In the event that
Class 9 votes to reject the Plan, the Holders of Class 10
Equity Interests shall receive no distribution nor retain
any property on account of such Equity Interests under the
Plan.
(c) Voting: Class 10 is Impaired and the Holders of
Allowed Class 10 Equity Interests are entitled to vote to
accept or reject the Plan. In the event that Class 9
votes to reject the Plan, Holders of Class 10 Equity
Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 10
Equity Interests nor will such Holders retain any property
on account of such Equity Interests.
3.19. Class 11 Equity Interests of Holders of Holdings
Class C Stock (including Equity Interests of Holders of Holdings
Old Warrants).
(a) Classification: Class 11 consists of the Equity
Interests of Holders of Holdings Class C Stock and the
Equity Interests of Holders of Holdings Old Warrants.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 11 Equity
Interest shall receive, in full and final satisfaction of
such Equity Interest, such Holder's Pro Rata share of
47,276 shares of Holdings Class E Stock, which shall be
converted pursuant to the Merger Agreement into 47,276
shares of New Bucyrus Common Stock. In the event that
Class 9 votes to reject the Plan, the Holders of Class 11
Equity Interests shall receive no distribution nor retain
any property on account of such Equity Interests under the
Plan.
(c) Voting: Class 11 is Impaired and the Holders of
Allowed Class 11 Equity Interests are entitled to vote to
accept or reject the Plan. In the event that Class 9
votes to reject the Plan, Holders of Class 11 Equity
Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 11
Equity Interests nor will such Holders retain any property
on account of such Equity Interests.
3.20. Class 12 Equity Interests of Holders of Holdings
Class D Stock.
(a) Classification: Class 12 consists of the Equity
Interests of Holders of Holdings Class D Stock.
(b) Treatment: On or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 12 Equity
Interest shall receive, in full and final satisfaction of
such Equity Interest, such Holder's Pro Rata share of 499
shares of Holdings Class E Stock, which shall be converted
pursuant to the Merger Agreement into 499 shares of New
Bucyrus Common Stock. In the event that Class 9 votes to
reject the Plan, the Holders of Class 12 Equity Interests
shall receive no distribution nor retain any property on
account of such Equity Interests under the Plan.
(c) Voting: Class 12 is impaired and the Holders of
Allowed Class 12 Equity Interests are entitled to vote to
accept or reject the Plan. In the event that Class 9
votes to reject the Plan, Holders of Class 12 Equity
Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 12
Equity Interests nor will such Holders retain any property
on account of such Equity Interests.
3.21. Class 13 Equity Interests of Holders of Holdings
Stock Options.
(a) Classification: Class 13 consists of the Equity
Interests of Holders of Holdings Stock Options.
(b) Treatment: The Holders of Class 13 Equity
Interests who have exercised Holdings Stock Options prior
to the Effective Date shall be treated as Holders of Class
11 Equity Interests for purposes of distributions under
the Plan. The Holders of Class 13 Equity Interests who
have not exercised Holdings Stock Options prior to the
Effective Date shall receive no distribution nor retain
any property on account of such Equity Interests under the
Plan.
(c) Voting: Class 13 is Impaired and the Holders of
Allowed Class 13 Equity Interests are entitled to vote to
accept or reject the Plan. In the event that Class 9
votes to reject the Plan, Holders of Class 13 Equity
Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 13
Equity Interests nor will such Holders retain any property
on account of such Equity Interests.
C. Rights of Debtors Concerning Unimpaired Claims.
3.22. Except as otherwise provided in the Plan, including
as provided in Article IX, nothing under the Plan shall affect
the Debtors' or the Reorganized Debtor's rights in respect of any
Unimpaired Claims, including, but not limited to, all rights in
respect of legal and equitable defenses to or setoffs,
recoupments or counterclaims against such Unimpaired Claims.
D. Automatic Amendment to Plan Upon Rejection of Plan by
Class 9.
3.23. In the event that Class 9 votes to reject the Plan,
then (a) the Plan shall be deemed automatically amended without
further action by the Debtor such that (i) each Holder of an
Allowed Class 9 Equity Interest shall receive, in full and final
satisfaction of such Equity Interest, its Pro Rata share of
80,197 shares of Holdings Class E Stock, which shall be converted
pursuant to the Merger Agreement into 80,197 shares of New
Bucyrus Common Stock, (ii) the Holders of Class 10, 11 and 12
Equity Interests and the Holders of Class 13 Equity Interests who
have exercised Holdings Stock Options prior to the Effective Date
shall receive no distributions nor retain any property under the
Plan on account of such Equity Interests, and the existing shares
of Holdings Series B Preferred Stock, Holdings Class C Stock and
Holdings Class D Stock shall be canceled as provided by Section
5.02(a) of this Plan, prior to the merger contemplated by Section
5.02(c) of the Plan, (iii) the Holder of the Class 5 Claim shall
receive an additional 71,285 shares of Holdings Class E Stock,
which will be converted pursuant to the Merger Agreement into
71,285 shares of New Bucyrus Common Stock, which shall be
allocated ratably among Holders of Class 4A, 4B, 4C and 4D Claims
pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of the Plan and
(iv) each Holder of an Allowed Class 6 Claim shall receive, in
full and final satisfaction of such Claim, such Holder's Pro Rata
share of 89,109 shares of Holdings Class E Stock, which shall be
converted pursuant to the Merger Agreement into such Holder's Pro
Rata share of 89,109 shares of New Bucyrus Common Stock.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes.
4.01. Each Holder of an Allowed Class 2A, 2B, 4A, 4B, 4C,
4D, 5 or 6 Claim or an Allowed Class 9, 10, 11, 12 or 13 Equity
Interest shall be entitled to vote to accept or reject the Plan.
B. Acceptance by Impaired Classes.
4.02. An Impaired Class of Claims shall have accepted the
Plan if (i) the Holders (other than any Holder designated under
section 1126(e) of the Bankruptcy Code) of at least two-thirds in
amount of the Allowed Claims actually voting in such Class have
voted to accept the Plan and (ii) the Holders (other than any
Holder designated under section 1126(e) of the Bankruptcy Code)
of more than one-half in number of the Allowed Claims actually
voting in such Class have voted to accept the Plan. An Impaired
Class of Equity Interests shall have accepted the Plan if the
Holders (other than any Holder designated under section 1126(e)
of the Bankruptcy Code) of at least two-thirds in amount of the
Allowed Equity Interests actually voting in such Class have voted
to accept the Plan.
C. Presumed Acceptance of Plan.
4.03. Classes 1A, 1B, 3A, 3B, 7A and 7B are unimpaired
under the Plan, and therefore are presumed conclusively to have
accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code.
D. Confirmation Without Acceptance by All Impaired Classes.
4.04. The Debtors will request that the Bankruptcy Court
confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code in view of the deemed rejection of the Plan by
Class 8. In the event that Class 4B or Class 9 fails to accept
the Plan, the Debtors intend to seek Confirmation of the Plan
under section 1129(b) of the Bankruptcy Code notwithstanding such
rejection. In the event that any of Classes 2A, 2B, 4A, 4C, 4D,
10, 11, 12 or 13 fails to accept the Plan, the Debtors reserve
their right (i) to modify the Plan in accordance with Article
XIII.F of the Plan and (ii) to request that the Bankruptcy Court
confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code notwithstanding such failures.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Continued Corporate Existence and Vesting of Assets in the
Reorganized Debtor.
5.01. Bucyrus shall, as the Reorganized Debtor, continue
to exist after the Effective Date as a separate corporate entity,
with all the powers of a corporation under the laws of the State
of Delaware and without prejudice to any right to alter or
terminate such existence (whether by merger or otherwise) under
such applicable state law. Except as otherwise provided in the
Plan, on or after the Effective Date, all property of the
Estates, and any property acquired by the Debtors or the
Reorganized Debtor under the Plan, shall vest in the Reorganized
Debtor, free and clear of all Claims, liens, charges, or other
encumbrances and Equity Interests. On and after the Effective
Date, the Reorganized Debtor may operate its business and may
use, acquire or dispose of property and compromise or settle any
Claims or Equity Interests, without supervision or approval by
the Bankruptcy Court and free of any restrictions of the
Bankruptcy Code or Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan and the Confirmation
Order. In accordance with section 1109(b) of the Bankruptcy
Code, nothing in this Article V shall preclude any party in
interest from appearing and being heard on any issue in the
Chapter 11 Cases.
B. Transactions on the Effective Date.
5.02. On the Effective Date, unless otherwise provided,
the following shall occur and shall be deemed to have occurred
simultaneously (except as specified in clauses (a) and (b)
below):
(a) prior to the merger described in Section 5.02(c),
Holdings' certificate of incorporation shall be amended to cancel
the Holdings Stock and create and authorize two million shares of
Holdings Class E Stock;
(b) prior to the merger described in Section 5.02(c),
each Holder of an Allowed Class 6 Claim (Holdings Senior
Debentures), the Holder of an Allowed Class 5 Claim (Intercompany
Claim) and each Holder of an Allowed Equity Interest, other than
the Class 8 Equity Interest, shall be deemed to have exchanged
such Claim or Equity Interest for shares of Holdings Class E
Stock, as provided for in the Plan;
(c) Bucyrus and Holdings shall enter into the Merger
Agreement and pursuant to the Merger Agreement and subject to
filing by Bucyrus of a certificate of merger with the Secretary
of State of the State of Delaware, Holdings shall merge with and
into Bucyrus, the separate corporate existence of Holdings shall
cease and the Old Bucyrus Common Stock, the Holdings Class E
Stock shall be canceled and the Holders of Old Bucyrus Common
Stock and Holdings Stock shall surrender such stock certificates
to the applicable Disbursing Agent as set forth in Section 7.12;
(d) the Holdings Stock Options shall be canceled;
(e) the Bucyrus 10% Senior Notes, the Bucyrus Resettable
Senior Notes, the Bucyrus South Street Notes, the Bucyrus Sinking
Fund Debentures and the Holdings Senior Debentures shall be
deemed to be canceled and the Holders thereof shall surrender
such Notes and Debentures to the applicable Disbursing Agent as
set forth in Section 7.12;
(f) the Reorganized Debtor shall be deemed to have
exercised Bucyrus' option under the Bucyrus South Street Lease to
repurchase all property leased to Bucyrus thereunder;
(g) the Debt Securities Indentures and the Bucyrus South
Street Lease shall be deemed canceled, terminated and of no
further force and effect, as permitted by section 1123(a)(5)(F)
of the Bankruptcy Code, except as provided in the Plan and the
Indenture Trustees shall be released and discharged from any
further duties with respect to their respective Debt Securities
Indentures.
(h) the Reorganized Debtor shall issue to the Disbursing
Agent the number of shares of New Bucyrus Common Stock which
shall be distributed pursuant to the Plan on the Effective Date;
(i) the Reorganized Debtor shall enter into the New Bank
One Credit Agreement and the New South Street Credit Agreement;
and
(j) the Reorganized Debtor shall enter into the New
Bucyrus Registration Rights Agreement.
C. Corporate Governance, Directors and Officers and Corporate
Action.
5.03. Merger Agreement and Amended Certificate of
Incorporation. On the Effective Date, pursuant to the Merger
Agreement the Reorganized Debtor will file a certificate of
merger, which will have attached thereto the Amended Certificate
of Incorporation, with the Secretary of State of the State of
Delaware in accordance with sections 103, 251 and 303 of the
Delaware General Corporation Law. The Amended Certificate of
Incorporation will, among other things, prohibit the issuance of
nonvoting equity securities to the extent required by section
1123(a)(6) of the Bankruptcy Code, and create and authorize
20,000,000 shares of New Bucyrus Common Stock. After the
Effective Date, the Reorganized Debtor may amend and restate its
Amended Certificate of Incorporation and other constituent
documents as permitted by the Delaware General Corporation Law.
5.04. Directors and Officers of the Reorganized Debtor.
(a) Subject to any requirement of Bankruptcy Court
approval pursuant to section 1129(a)(5) of the Bankruptcy Code,
as of the Effective Date, the initial officers of the Reorganized
Debtor shall be the officers of Bucyrus immediately prior to the
Effective Date. Each such officer shall serve from and after the
Effective Date pursuant to the terms of the Amended Certificate
of Incorporation, the Amended Bylaws and the Delaware General
Corporation Law.
(b) The board of directors of the Reorganized Debtor shall
consist of a single class of directors. The initial board of
directors of the Reorganized Debtor shall consist of seven
directors who shall be selected as follows: one of the directors
serving on the initial Board of Directors following the Effective
Date will be an officer of Bucyrus nominated by the Board of
Directors of Bucyrus; three of the directors serving on the
initial board of directors following the Effective Date will be
persons who will be nominated by the Creditors Committee; and the
remaining three of the directors serving on the initial board of
directors following the Effective Date will be persons who will
be nominated by the Holder of the Allowed Class 4B Claim. Each
such initial director shall serve from and after the Effective
Date until the 1996 Annual Meeting, and, pursuant to Section
5.04(c), from and after the 1996 Annual Meeting until the 1997
Annual Meeting, and otherwise pursuant to the terms of the Plan,
the Amended Certificate of Incorporation, the Amended Bylaws and
the Delaware General Corporation Law, and until their successors
have been duly elected or appointed and qualified. The first
annual meeting of stockholders of the Reorganized Debtor
following the Effective Date will be held in 1996 following
completion of the Reorganized Debtor's 1995 fiscal year.
(c) All Holders of Impaired Claims and Equity Interests
who have accepted the Plan by Ballot or Master Ballot and all
Holders of Impaired Claims and Equity Interests who shall receive
shares of New Bucyrus Common Stock pursuant to the Plan shall be
deemed as of the Effective Date to have irrevocably agreed
without any further action on the part of any such Person:
(i) to cause the shares of New Bucyrus Common Stock
received pursuant to the Plan and all other shares of New
Bucyrus Common Stock beneficially owned by any such Holder
following the Effective Date to be voted for the election of
each of the Original Directors as directors of the
Reorganized Debtor at the 1996 Annual Meeting for a one-year
term ending on the date of the 1997 Annual Meeting and until
their successors have been duly elected or appointed and
qualified, and
(ii) that any sale, transfer or other disposition,
whether voluntary or involuntary, by operation of law or
otherwise of any shares of New Bucyrus Common Stock at any
time prior to the 1996 Annual Meeting (a "Transfer"; and any
Person to whom any shares of New Bucyrus Common Stock are
Transferred is hereinafter referred to as a "Transferee")
shall be made subject to the irrevocable agreement to vote
such shares of New Bucyrus Common Stock for the election of
each of the Original Directors at the 1996 Annual Meeting.
The irrevocable voting agreement provided for in the first
sentence of this Section 5.04(c) shall be binding upon all
Transferees.
(d) All certificates for shares for New Bucyrus Common
Stock issued by the Reorganized Debtor prior to the 1996 Annual
Meeting shall conspicuously bear the following legend:
"The shares of Common Stock represented by this stock
certificate are issued pursuant to the Second Amended
Joint Plan of Reorganization of B-E Holdings, Inc. and
Bucyrus-Erie Company, as modified December 1, 1994, and as
confirmed by the United States Bankruptcy Court, Eastern
District of Wisconsin (the "Plan"). Pursuant to the Plan
all holders of shares of Common Stock and their
Transferees (as defined in the Plan) have irrevocably
agreed to cause the shares of Common Stock beneficially
owned by such holder or Transferee to be voted for the
election of each of the Original Directors (as defined in
the Plan), as directors of the Corporation at the annual
meeting of stockholders of the Corporation to be held in
1996 (the "1996 Annual Meeting") for a one-year term
ending on the date of the annual meeting of stockholders
of the Corporation to be held in 1997 and until their
successors have been duly elected or appointed and
qualified. In addition, any Transfer (as defined in the
Plan) of any shares of Common Stock at any time prior to
the 1996 Annual Meeting shall be made subject to the
above-described irrevocable agreement to vote such shares
of Common Stock for the election of each of the Original
Directors at the 1996 Annual Meeting.
(e) The provisions of this Section 5.04 shall not be
amended or modified at any time prior to the 1997 Annual Meeting.
Articles V(A), VII(A), VII(C) and IX of the Amended Certificate
of Incorporation and Sections 3.9, 4.2, 4.7(B) and 4.9 of the
Amended Bylaws shall not be amended or modified at any time prior
to the 1997 Annual Meeting except as may be provided in the
Amended Certificate of Incorporation and the Amended Bylaws,
respectively, as in effect immediately after the Effective Date.
(f) JNL shall take no action, and shall cause any
Affiliate thereof to take no action, to remove any Original
Director other than an Original Director nominated by JNL (or any
successor of such Original Director) prior to the 1997 Annual
Meeting, provided that the prohibition provided by this Section
5.04(f) shall not apply to any action by JNL or any Affiliate
thereof to remove any director of the Reorganized Debtor (i) for
any reason at any time when JNL and any Affiliates thereof in the
aggregate (x) beneficially own less than twenty-five percent
(25%) of all of the outstanding shares of New Bucyrus Common
Stock or (y) do not constitute the largest beneficial owner of
New Bucyrus Common Stock, or (ii) for cause.
5.05. Corporate Action. The adoption of the Amended
Certificate of Incorporation and the Amended Bylaws, the
selection of directors and officers for the Reorganized Debtor,
the distribution of Cash, issuance and distribution of New
Bucyrus Common Stock and the adoption, execution and
implementation of employment, retirement and indemnification
agreements, incentive compensation programs, retirement income
plans, welfare benefit plans and other employee plans and related
agreements; and the other matters provided for under the Plan
involving the corporate action to be taken by or required of the
Reorganized Debtor shall be deemed to have occurred and be
effective as provided herein, and shall be authorized and
approved in all respects without any requirement of further
action by stockholders or directors of the Debtors or the
Reorganized Debtor.
D. Professional Fee Claims.
5.06. Unless a different time is set by Final Order of
the Bankruptcy Court, all applications for allowance of
Administrative Claims under section 503(b)(3) of the Bankruptcy
Code, and all applications for awards or allowance of
Professional Fee Claims, shall be Filed not later than sixty (60)
days after the Confirmation Date or be forever barred.
Objections to such applications shall be Filed not later than
ninety (90) days after the Confirmation Date.
E. Sources of Cash for Plan Distribution.
5.07. All Cash necessary for the Reorganized Debtor to
make payments pursuant to the Plan shall be obtained from
existing Cash balances, the operations of the Debtors or the
Reorganized Debtor, or post-confirmation borrowings under the New
Bank One Credit Agreement. The Reorganized Debtor may also make
such payments using Cash received from advances or dividends from
the subsidiaries of the Reorganized Debtor in the ordinary
course.
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumption of Executory Contracts and Unexpired Leases.
6.01. Immediately prior to the Effective Date, all
executory contracts or unexpired leases of the Debtors will be
deemed assumed in accordance with the provisions and requirements
of section 365 and 1123 of the Bankruptcy Code except those
executory contracts and unexpired leases that (i) have been
rejected by order of the Bankruptcy Court, (ii) are the subject
of a motion to reject pending on the Effective Date, (iii) are
identified on a list to be Filed on or before the Confirmation
Date as to be rejected, or (iv) are rejected pursuant to the
terms of the Plan. Entry of the Confirmation Order by the
Bankruptcy Court shall constitute approval of such assumptions
and rejections pursuant to sections 365(a) and 1123 of the
Bankruptcy Code.
B. Claims Based on Rejection of Executory Contracts or
Unexpired Leases.
6.02. All proofs of claims with respect to Claims arising
from the rejection of executory contracts or unexpired leases, if
any, must be Filed within sixty (60) days after the date of entry
of an order of the Bankruptcy Court approving such rejection.
Any Claims not Filed within such times will be forever barred
from assertion against the Debtors or Reorganized Debtor, their
Estates and property. Unless otherwise ordered by the Bankruptcy
Court or provided in this Plan, all such Claims for which proofs
of claim are required to be Filed will be, and will be treated
as, General Unsecured Claims subject to the provisions of Article
VII hereof.
C. Cure of Defaults for Executory Contracts and Unexpired
Leases Assumed.
6.03. Any monetary amounts by which each executory
contract and unexpired lease to be assumed pursuant to the Plan
is in default shall be satisfied, pursuant to section 365(b)(1)
of the Bankruptcy Code by payment of the default amount in Cash
on the Effective Date or on such other terms as the parties to
such executory contracts or unexpired leases may otherwise agree.
In the event of a dispute regarding: (i) the amount of any cure
payments, (ii) the ability of the Reorganized Debtor or any
assignee to provide adequate assurance of future performance
(within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed or (iii) any other matter
pertaining to assumption or the cure payments required by section
365(b)(1) of the Bankruptcy Code shall be made following the
entry of a Final Order resolving the dispute and approving the
assumption.
D. Indemnification of Directors, Officers and Employees.
6.04. The obligations of the Debtors to indemnify any
person serving at any time on or prior to the Effective Date as
one of its directors, officers or employees by reason of such
person's service in such capacity, or as a director, officer or
employee of any other corporation or legal entity, to the extent
provided in a Debtor's constituent documents or by a written
agreement with the Debtor or the Delaware General Corporation Law
are classified as Class 7A (with respect to obligations of
Holdings) and Class 7B (with respect to obligations of Bucyrus)
Claims to the extent they arise prior to the Petition Date, and
are Administrative Claims to the extent they arise on or after
the Petition Date. The legal, equitable and contractual rights
to which such directors, officers or employees are entitled by
reason of the Debtor's indemnification obligations shall be
unaltered and unimpaired within the meaning of section 1124(1) of
the Bankruptcy Code. Such indemnification obligations shall
survive unaffected by entry of the Confirmation Order,
irrespective of whether such indemnification is owed for an act
or event occurring before or after the Petition Date.
E. Compensation and Benefit Programs.
6.05. Except as otherwise expressly provided hereunder,
all employment and severance policies, and all compensation and
benefit plans, policies, and programs of the Debtors applicable
to their employees and retirees and the employees and retirees of
their subsidiaries, including, without limitation, all savings
plans, retirement plans, consultant service agreements and
consultant optional payment agreements entered into between
Bucyrus and certain of its retired employees or directors, health
care plans, disability plans, severance benefit plans, incentive
plans, and life, accidental death, and dismemberment insurance
plans are treated as executory contracts under the Plan and on
the Effective Date will be assumed pursuant to the provisions of
sections 365 and 1123 of the Bankruptcy Code.
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date.
7.01. Except as otherwise provided in this Article VII or
as may be ordered by the Bankruptcy Court, distributions to be
made on the Effective Date on account of Claims or Equity
Interests that are Allowed as of the Effective Date and are
entitled to receive distributions under the Plan shall be made on
the Effective Date. Distributions to Holders of the Impaired
Debt Securities and Holdings Stock shall be deemed made on the
Effective Date if made on the Effective Date or as promptly
thereafter as practicable, but in any event no later than thirty
(30) calendar days after the Effective Date or such later date
when the applicable conditions of Section 7.07 (regarding
undeliverable distributions) or Section 7.12 (regarding surrender
of canceled instruments and securities) are satisfied.
Distributions on account of Claims or Equity Interests that
become Allowed Claims or Allowed Equity Interests after the
Effective Date shall be made pursuant to Section 8.04 below.
7.02. For purposes of determining the accrual of interest
or rights in respect of any other payment from and after the
Effective Date, New Bucyrus Common Stock to be issued shall be
deemed issued as of the Effective Date regardless of the date on
which it is actually dated, authenticated or distributed;
provided, however, that the Reorganized Debtor shall withhold any
actual payment until such distribution is made and no interest
shall accrue or otherwise be payable on any such withheld
amounts.
B. Distributions by Disbursing Agents.
7.03. General. The Disbursing Agents shall make all
distributions required under the Plan.
7.04. Distributions with Respect to Impaired Debt
Securities and Holdings Stock. Notwithstanding the provisions of
Sections 5.02(c) and 5.02(g) regarding the cancellation of
Holdings Stock, the Debt Securities Indentures and the Bucyrus
South Street Lease, each of Holdings Stock, the Debt Securities
Indentures and the Bucyrus South Street Lease shall continue in
effect to the extent necessary to allow the Disbursing Agents to
receive and make distributions pursuant to the Plan on account of
Allowed Equity Interests and Allowed Impaired Debt Securities
Claims and to maintain the validity of Indenture Trustee Charging
Liens subject, however, to the provision of Section 7.17.
7.05. Compensation to Indenture Trustees. Each Indenture
Trustee providing services related to distributions as a
Disbursing Agent pursuant to the Plan to Holders of Allowed
Impaired Debt Securities Claims in Classes 2A, 2B, 4A, 4B, 4C and
6 shall receive, from the Reorganized Debtor, with such approval
as the Bankruptcy Court may require, reasonable compensation for
such services and reimbursement of reasonable out-of-pocket
expenses incurred in connection with such services. These
payments shall be made on terms agreed to with the Reorganized
Debtor, and shall be in addition to any distributions made to any
Indenture Trustee on account of any Allowed Impaired Debt
Securities Claims.
C. Delivery and Distributions and Undeliverable or Unclaimed
Distributions.
7.06. Delivery of Distributions in General.
Distributions to Holders of Allowed Claims or Allowed Equity
Interests shall be made at the address of the Holder of such
Claim or Equity Interest as indicated on records of the Debtors.
Except as otherwise provided by the Plan or the Bankruptcy Code
with respect to undeliverable distributions, distributions to
Holders of Allowed Impaired Debt Securities Claims in Classes 2A
2B, 4A, 4B, 4C and 6 by Disbursing Agents shall be made in
accordance with the provisions of the applicable Debt Securities
Indenture and the Bucyrus South Street Lease and distributions
will be made to Holders of record as of the Distribution Record
Date.
7.07. Undeliverable Distributions.
(a) Holding of Undeliverable Distributions. If any
Allowed Claim or Equity Interest Holder's distribution is
returned to the applicable Disbursing Agent as undeliverable, no
further distributions shall be made to such Holder unless and
until the Disbursing Agent is notified in writing of such
Holder's then-current address. Undeliverable distributions shall
remain in the possession of the applicable Disbursing Agent
pursuant to this Article VII until such time as a distribution
becomes deliverable. Upon request of the Reorganized Debtor,
undeliverable cash (including dividends on the New Bucyrus Common
Stock) shall not be entitled to any interest, dividends or other
accruals of any kind.
(b) After Distributions Become Deliverable. Within 20
days after the end of each calendar quarter following the
Effective Date, the applicable Disbursing Agent shall make all
distributions that become deliverable during the preceding
calendar quarter.
(c) Failure to Claim Undeliverable Distributions. Any
Holder of an Allowed Claim that does not assert a Claim or Equity
Interest pursuant to the Plan for an undeliverable distribution
within five years after the Effective Date shall have its Claim
for such undeliverable distribution discharged and shall be
forever barred from asserting any such Claim or Equity Interest
against the Reorganized Debtor or its respective property. In
such cases, (i) any Cash held for distribution on account of such
Claims or Equity Interests shall be property of the Reorganized
Debtor, free of any restrictions thereon; and (II) any New
Bucyrus Common Stock held for distribution on account of such
Claims or Equity Interests shall be returned by the Disbursing
Agent to the Reorganized Debtor and shall be canceled and of no
further force or effect. Nothing contained in the Plan shall
require the Disbursing Agents to attempt to locate any Holder of
an Allowed Claim or an Allowed Equity Interest.
(d) Compliance with Tax Requirements. In connection
with the Plan, to the extent applicable, each Disbursing Agent
shall comply with all tax withholding and reporting requirements
imposed on it by any governmental unit, and all distributions
pursuant to the Plan shall be subject to such withholding and
reporting requirements.
D. Distribution Record Date.
7.08. As of the close of business on the Distribution
Record Date, the respective transfer registers for each of the
Impaired Debt Securities in Classes 2A, 2B, 4A, 4B, 4C and 6 as
maintained by the Debtors, the respective Indenture Trustee or
their respective agents, shall be closed and the transfer of
Impaired Debt Securities, or any interest therein, will be
prohibited. Moreover, the Disbursing Agents shall have no
obligation to recognize the transfer of any Impaired Debt
Securities in such Classes occurring after the Distribution
Record Date, and shall be entitled for all purposes herein to
recognize and deal only with those Holders of record as of the
close of business on the Distribution Record Date.
E. Timing and Calculation of Amounts to be Distributed.
7.09. On the Effective Date, each Holder of an Allowed
Claim or Allowed Equity Interest against the Debtors shall
receive the full amount of the distributions that the Plan
provides for Allowed Claims or Allowed Equity Interests in the
applicable Class. Beginning on the date that is twenty (20)
calendar days after the end of the calendar quarter following the
Effective Date and twenty (20) calendar days after the end of
each calendar quarter thereafter, distributions shall also be
made, pursuant to Section 8.03 below, to Holders of Disputed
Claims or Disputed Equity Interests in any such Class whose
Claims or Equity Interests were Allowed during the preceding
calendar quarter. Such quarterly distributions shall also be in
the full amount that the Plan provides for Allowed Claims or
Allowed Equity Interests in the applicable Class.
F. Distribution and Fractional Securities.
7.10. Notwithstanding any other provisions of the Plan,
only whole numbers of shares of New Bucyrus Common Stock shall be
issued. When any distribution on account of an Allowed Claim or
Allowed Equity Interest would otherwise result in the issuance of
a number of shares of New Bucyrus Common Stock that is not a
whole number, the Disbursing Agents shall aggregate and sell all
fractional shares of New Bucyrus Common Stock otherwise
distributable in accordance with the Plan at then prevailing
prices and distribute the net proceeds to Holders of Claims or
Interests otherwise entitled thereto.
G. Setoffs.
7.11. The Reorganized Debtor may, pursuant to section 553
of the Bankruptcy Code or other applicable law, set off against
any Allowed Claim and the distributions to be made pursuant to
the Plan on account of such Claim, other than any distributions
to the Holder of the Allowed Class 4B Claim pursuant to Section
3.09(b)(y), the claims, rights and Causes of Action of any nature
that the Debtors or Reorganized Debtor may hold against the
Holder of such Allowed Claim; provided, however, that neither the
failure to effect such a setoff nor the allowance of any Claim
hereunder shall constitute a waiver or release by the Debtors or
Reorganized Debtor of any such claims, rights and Causes of
Action that the Debtors or Reorganized Debtor may possess against
such Holder.
H. Surrender of Canceled Instruments or Securities.
7.12. As a condition precedent to receiving any
distribution pursuant to the Plan on account of any Allowed Claim
or Allowed Equity Interest evidenced by the instruments,
securities, stock certificates or other documentation canceled
pursuant to Article V above, the Holder of such Claim or Equity
Interest shall tender the applicable instruments, securities,
stock certificates or other documentation evidencing such Claim
or Equity Interest to the applicable Disbursing Agent. Any New
Bucyrus Common Stock to be distributed pursuant to the Plan on
account of any such Claim or Equity Interest shall, pending such
surrender, be treated as an undeliverable distribution pursuant
to Section 7.07.
I. Impaired Debt Securities.
7.13. Each Holder of an Allowed Claim evidenced by an
Impaired Debt Security shall tender such notes or debentures to
the applicable Disbursing Agent in accordance with written
instructions to be provided to such Holders by the applicable
Disbursing Agent as promptly as practicable following the
Effective Date. Such instructions shall specify that delivery of
such notes or debentures will be effected, and risk of loss and
title thereto will pass, only upon the proper delivery of such
notes or debentures with a letter of transmittal in accordance
with such instructions. All surrendered Impaired Debt Securities
shall be marked as canceled and delivered by the Disbursing Agent
to the Reorganized Debtor.
J. Holdings Stock Certificates.
7.14. Each Holder of an Allowed Equity Interest evidenced
by a stock certificate shall tender such stock certificate to the
applicable Disbursing agent in accordance with written
instructions to be provided to such Holders by the applicable
Disbursing Agent as promptly as practicable following the
Effective Date. Such instructions shall specify that delivery of
such stock certificates will be effected, and risk of loss and
title thereto will pass, only upon the proper delivery of such
stock certificates with a letter of transmittal in accordance
with such instructions. All surrendered stock certificates shall
be marked as canceled and delivered by the Disbursing Agent to
the Reorganized Debtor.
K. Failure to Surrender Canceled Impaired Debt Securities or
Canceled Holdings Stock Certificates.
7.15. Any Holder of Impaired Debt Securities or Holdings
Stock certificates that fails to surrender or is deemed to have
failed to surrender the applicable notes, debentures or stock
certificates required to be tendered hereunder within five (5)
years after the Effective Date shall have its Claim or Equity
Interest for a distribution pursuant to the Plan on account of
such Impaired Debt Securities or Holdings Stock discharged and
shall be forever barred from asserting any such Claim against the
Reorganized Debtor or its property. In such cases, any Cash, New
Bucyrus Common Stock held for distribution on account of such
Claim or Equity Interest shall be disposed of pursuant to Section
7.07(c).
L. Lost, Stolen, Mutilated or Destroyed Impaired Debt
Securities or Stock Certificates.
7.16. In addition to any requirements under the
applicable Debt Securities Indenture, any Holder of a Claim
evidenced by an Impaired Debt Security that has been lost,
stolen, mutilated or destroyed shall, in lieu of surrendering
such Impaired Debt Security, deliver to the Disbursing Agent: (a)
evidence satisfactory to the Disbursing Agent of the loss, theft,
mutilation or destruction; and (b) such security or indemnity as
may be required by the Disbursing Agent to hold the Disbursing
Agent harmless from any damages, liabilities or costs incurred in
treating such individual as a Holder of an Impaired Debt
Security. Upon compliance with this Section 7.16 by a Holder of
a Claim evidenced by an Impaired Debt Security, such Holder
shall, for all purposes under the Plan, be deemed to have
surrendered an Impaired Debt Security.
7.17. In addition to any requirements under applicable
law, any Holder of Holdings Stock evidenced by a stock
certificate that has been lost, stolen, mutilated or destroyed
must, in lieu of surrendering such stock certificate, deliver to
the Disbursing Agent: (a) evidence satisfactory to the Disbursing
Agent of the loss, theft, mutilation or destruction; and (b) such
security or indemnity as may be required by the Disbursing Agent
to hold the Disbursing Agent harmless from any damages,
liabilities or costs incurred in treating such individual as a
Holder of a stock certificate evidencing Holdings Stock. Upon
compliance with these requirements, a Holder of Holdings Stock
evidenced by a stock certificate will, for all purposes under the
Plan, be deemed to have surrendered a stock certificate.
M. Cancellation of Existing Indentures and Bucyrus South
Street Lease.
7.18. The cancellation of the Debt Securities Indentures
under Section 5.02(g) shall not impair the rights of Holders of
Impaired Debt Securities to receive distributions on account of
such Claims under the Plan, nor shall such cancellation impair
the rights of the Indenture Trustees to enforce their Indenture
Trustee Charging Liens, if any, under the Debt Securities
Indentures and the Bucyrus South Street Lease. The Impaired Debt
Securities shall not be canceled other than under Section 5.02(g)
of the Plan.
N. Release of Indenture Trustee Charging Liens.
7.19. On or as soon as practicable after the Effective
Date, in full satisfaction of the Allowed Claims secured by
Indenture Trustee Charging Liens in Classes 2A, 2B, 4A, 4B, 4C
and 6, the respective Indenture Trustee shall receive Cash in an
amount equal to the amount of such Claims, and any Indenture
Trustee Charging Liens shall be released. Distributions received
by Holders of Allowed Impaired Debt Securities Claims pursuant to
the Plan shall not be reduced on account of such payment of
Allowed Claims secured by Indenture Trustee Charging Liens.
O. Allocation of Distributions to Holders of Allowed Claims.
7.20. All payments made pursuant to the Plan to a Holder
of an Allowed Claim which includes accrued but unpaid interest
shall be allocated first to the principal amount of the Allowed
Claim and then to such accrued but unpaid interest to the extent
that the amount of the payments made under the Plan to such
Holder exceed the principal amount of such Claim.
ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. Prosecution of Objections to Claims.
8.01. Except as provided by Section 8.02, (a) after the
Confirmation Date, only the Debtors and the Reorganized Debtor
shall have the authority to File objections, settle, compromise,
withdraw or litigate to judgment objections to Claims or Equity
Interests, and (b) the Debtors and the Reorganized Debtor may
settle or compromise any Disputed Claim or Equity Interest
without approval of the Bankruptcy Court.
8.02. If the Holder of the Allowed Class 4B Claim votes
to accept the Plan on or prior to the Voting Receipt Date and
executes and delivers the undertaking described in Section 9.06
of the Plan, after the Confirmation Date, (a) the Holder of the
Allowed Class 4B Claim shall have the exclusive right and
authority as a representative of the Debtors' Estates to file
objections, request estimation of, settle, compromise, withdraw
or litigate to judgment objections to Claims or Equity Interests
of Non-Released Persons, and to consent to the allowance of such
Claims or Equity Interests, (b) the Holder of the Allowed Class
4B Claim may settle or compromise any Disputed Claim or Equity
Interest of a Non-Released Person without approval of the
Bankruptcy Court, and (c) Confirmation will constitute
appointment of the Holder of the Allowed Class 4B Claim as the
representative of the Debtors' Estates for the purposes described
in clauses (a) and (b) pursuant to section 1123(b)(3)(B) of the
Bankruptcy Code.
B. Estimation of Claims.
8.03. Except as provided by Section 8.02, the Debtors or
the Reorganized Debtor may, at any time, request that the
Bankruptcy Court estimate any contingent or unliquidated Claim
pursuant to section 502(c) of the Bankruptcy Code regardless of
whether the Debtors or the Reorganized Debtor has previously
objected 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 estimated any contingent or
unliquidated Claim, that estimated amount will constitute either
the allowed amount of such Claims or a maximum limitation on such
Claim, as determined by the Bankruptcy Court. If the estimated
amount constitutes a maximum limitation on such Claim, the
Debtors or the Reorganized Debtor may elect to pursue any
supplemental proceedings to object to any ultimate payment on
such Claim. All of the aforementioned Claims objection,
estimation and resolution procedures are cumulative and not
necessarily exclusive of one another. Claims may be estimated
and subsequently compromised, settled, withdrawn or resolved by
any mechanism approved by the Bankruptcy Court.
C. Payments and Distributions on Disputed Claims.
8.04. Notwithstanding any provision in the Plan to the
contrary, no partial payments and no partial distributions will
be made with respect to a Disputed Claim or Disputed Equity
Interest until the resolution of such disputes by settlement or
Final Order. Subject to the provisions of this Section 8.04, as
soon as practicable after a Disputed Claim or Disputed Equity
Interest becomes an Allowed Claim or Allowed Equity Interest, the
Holder of such Allowed Claim or Allowed Equity Interest will
receive all payments and distributions to which such Holder is
then entitled under the Plan. Notwithstanding the foregoing, any
Person who holds both an Allowed Claim(s) or Allowed Equity
Interest(s) and a Disputed Claims(s) or Disputed Equity
Interest(s) will receive the appropriate payment or distribution
on the Allowed Claims(s) or Allowed Equity Interest(s), although
no payment or distribution will be made on the Disputed Claim(s)
or Disputed Equity Interest(s) until such dispute is resolved by
settlement or Final Order.
ARTICLE IX
RELEASE AND RELATED PROVISIONS
A. Subordination.
9.01. The classification and manner of satisfying all
Claims and Equity Interests and the respective distributions and
treatments under the Plan take into account and/or conform to the
relative priority and rights of the Claims and Equity Interests
in each Class in connection with any contractual, legal and
equitable subordination rights relating thereto, whether arising
under general principles of equitable subordination, section
510(b) of the Bankruptcy Code or otherwise, and any and all such
rights are settled, compromised and released pursuant to the
Plan. The Confirmation Order shall permanently enjoin, effective
as of the Effective Date, all Persons and entities from enforcing
or attempting to enforce any such contractual, legal and
equitable subordination rights satisfied, compromised and settled
pursuant to this Section 9.01.
B. Limited Release of Directors, Officers and Employees.
9.02. As of the Effective Date, the Debtors shall be
deemed to have waived and released their present and former
directors, officers and employees from any and all Causes of
Action of the Debtors (including claims which the Debtors or
Debtors in Possession otherwise have legal power to assert,
compromise or settle in connection with the Chapter 11 Cases)
arising on or prior to the Effective Date; provided, however,
that this provision shall not operate as a waiver or release of
any Cause of Action (i) in respect to any loan, advance or
similar payment by the Debtors to any such person or (ii) in
respect of any contractual obligation owed by such person to the
Debtors.
C. Release in Respect of Becor Transactions and Certain Other
Matters.
9.03. All payments and distributions received hereunder
by Holders of Allowed Claims against and Allowed Equity Interests
in the Debtors or the Reorganized Debtor shall be final and shall
not be subject to avoidance, disgorgement, reallocation or
challenge in respect of all Causes of Action by reason of,
arising from, or in connection with or related in any way to the
Released Matters (as defined below). Except as provided in
Sections 9.04 and 9.05, as of the Effective Date, the Debtors and
the Reorganized Debtor (collectively, the "Releasors") shall be
deemed, for good and valuable consideration, to have released and
discharged all holders of Allowed Claims against and all holders
of Allowed Equity Interests in the Debtors or the Reorganized
Debtor, and any and all of their respective successors,
predecessors, assignors, assignees, parent, subsidiaries,
stockholders, affiliates, present and former directors, trustees,
officers, employees, agents, attorneys, accountants, investment
bankers and financial advisors, and in the case of a partnership,
its present and former partners, and in the case of individuals,
their respective heirs, receivers, conservators, beneficiaries,
executors and administrators (and any other person who, within
the meaning of Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended, "controls," is "controlled by"
or is under "common control" with, any of such persons), past or
present, (collectively, the "Released Persons") from any and all
Causes of Action (including claims which the Debtors or Debtors
in Possession have legal power to assert, compromise or settle in
connection with the Chapter 11 Cases) any of the Releasors ever
had, now has, hereafter can, shall or may have against any of the
Released Persons by reason of, arising from or in connection with
or related in any way to (i) the Becor Transactions, (ii) the
administration, collection or renegotiation of the Impaired Debt
Securities, (iii) the acquisition or disposition by any Released
Person of, or any other action taken or not taken by any Released
Person in connection with, or the status of any Released Person
as a holder of, any indebtedness or equity or debt securities of,
the Debtors or the Reorganized Debtor or (iv) the restructuring
of the Claims and Equity Interests which are the subject of this
Plan and the negotiation, formulation or preparation of the Plan
(items (i) through (iv) are collectively referred to as the
"Released Matters").
9.04 The release contained in Section 9.03 shall not
apply to or otherwise release any Cause of Action which a
Releasor may have against the Broad Street Fund, Goldman, the
South Street Funds, Greycliff Partners, Ltd. or any of their
respective successors, predecessors, assignors, assignees,
parent, subsidiaries, stockholders, affiliates, present and
former directors, trustees, officers, employees, agents,
attorneys, accountants, investment bankers and financial
advisors, and in the case of a partnership, its present and
former partners, and in the case of individuals, their respective
heirs, receivers, conservators, beneficiaries, executors and
administrators (and any other person who, within the meaning of
Rule 12b-2 promulgated under the Securities Exchange Act of 1934,
as amended, "controls," is "controlled by" or is under "common
control" with, any of such persons), past or present, in each
case acting in such capacity (collectively, the "Non-Released
Persons"), other than a Cause of Action relating to an Allowed
Claim or Allowed Equity Interest.
9.05. The release contained in Section 9.03 shall not
extend to, affect, release, modify or discharge any obligation
under this Plan or under any contract, instrument, release,
indenture or other agreement entered into or assumed in
connection with this Plan.
D. Preservation of Rights of Action.
9.06. Except as otherwise provided in the Plan or in any
contract, instrument, release, indenture or other agreement
entered into in connection with the Plan, in accordance with
section 1123(b) of the Bankruptcy Code, the Reorganized Debtor
shall retain and may enforce any claims, rights and Causes of
Action that the Debtors or the Estates may hold against any
entity. If the Holder of the Allowed Class 4B Claim votes to
accept the Plan on or prior to the Voting Receipt Date, then
after the Effective Date such Holder shall have the exclusive
right and authority, in its sole discretion, to do the following,
conditioned upon the execution and delivery by such Holder prior
to the Confirmation Date of an undertaking, in form and substance
satisfactory to the Debtors and the Creditors Committee,
indemnifying and holding harmless the Debtors and the Reorganized
Debtor with respect to all claims, losses, expenses and other
liabilities arising from or related to such Holder's exercise of
its exclusive right and authority under Sections 8.02, 9.06 and
9.07:
(a) to exercise as a representative of the Debtors in
Possession any powers of the Debtors in Possession under
section 544, 547 and 548 of the Bankruptcy Code with respect
to Non-Released Persons; and
(b) to pursue as a representative of the Debtors' Estates
any claims, rights or Causes of Action of the Debtors or the
Debtors in Possession existing on the Confirmation Date
against Non-Released Persons, including without limitation
any Causes of Action against a Non-Released Person arising
from the exercise of the powers of the Debtors in Possession
under sections 544, 547 and 548 of the Bankruptcy Code.
The Reorganized Debtor may pursue as appropriate any other
retained claims, rights or Causes of Action (including claims,
rights or Causes of Action that the Holder of the Allowed Class
4B Claim does not have the right to pursue pursuant to clauses
(a) and (b) of this Section 9.06), in accordance with the best
interests of the Reorganized Debtor.
9.07. If the Holder of the Allowed Class 4B Claim votes
to accept the Plan on or prior to the Voting Receipt Date and
executes and delivers the undertaking described in Section 9.06,
Confirmation will constitute appointment of the Holder of the
Allowed Class 4B Claim as the representative of the Debtors'
Estates for the purposes described in Section 9.06 pursuant to
section 1123(b)(3)(B) of the Bankruptcy Code.
9.08. From and after the Confirmation Date, neither the
Debtors nor the Reorganized Debtor shall enter into or assume any
contract, instrument, release, indenture or other agreement in
connection with the Plan or otherwise which provides for the
indemnification or holding harmless of any Non-Released Person
with respect to an objection to a Claim or Equity Interest or a
Cause of Action that the Holder of the Allowed Class 4B Claim has
the exclusive right and authority to pursue pursuant to Sections
8.02, 9.06 and 9.07.
9.09. Nothing in this Article IX shall affect any right
of a Person to assert allegations, seek discovery or offer
evidence concerning the acts or omissions of any Person occurring
prior to the Petition Date in an action or proceeding relating to
a Cause of Action that is not released, satisfied, compromised or
settled pursuant to this Article IX.
ARTICLE X
REGISTRATION AND RELATED RIGHTS
10.01. Each recipient of ten percent (10%) or more of the
New Bucyrus Common Stock pursuant to this Plan shall have the
benefit of the registration and related rights set forth in the
New Bucyrus Registration Rights Agreement, subject to the
restrictions and limitations set forth therein.
ARTICLE XI
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Conditions Precedent to Confirmation.
11.01. It is a condition to Confirmation that the
Bankruptcy Court shall have entered an order or orders, which may
be the Confirmation Order, approving the Reorganization
Documents, authorizing the Debtors and the Reorganized Debtor to
enter into the Reorganization Documents and the transactions
contemplated thereby.
11.02. It is a condition to Confirmation that, at the
Debtors' option, the New South Street Credit Agreement shall
provide the Reorganized Debtor with a term loan credit facility
substantially in the amounts and on the terms and conditions as
set forth in the South Street Term Sheet.
B. Conditions Precedent to Consummation.
11.03. It is a condition to Consummation of the Plan that
the Confirmation Order shall have been entered.
C. Waiver of Conditions.
11.04. The Debtors may waive the condition set forth in
Section 11.01 in a writing executed by each of them.
ARTICLE XII
RETENTION OF JURISDICTION
12.01. Notwithstanding the entry of the Confirmation
Order and the occurrence of the Effective Date, the Bankruptcy
Court shall retain such jurisdiction over the Chapter 11 Cases
after the Effective Date as legally permissible, including such
jurisdiction as the Bankruptcy Court had prior to entry of the
Confirmation Order, to:
(a) Allow, disallow, determine, liquidate, classify,
estimate or establish the priority of secured or unsecured status
of any Claim, including the resolution of any request for payment
of any Administrative Claim and the resolution of any and all
objections to the allowance or priority of Claims;
(b) Grant or deny any applications for allowance of
compensation or reimbursement of expenses authorized pursuant to
the Bankruptcy Code or the Plan, for periods ending on or before
the Effective Date;
(c) Resolve any matters related to the assumption,
assumption and assignment or rejection of any executory contract
or unexpired lease to which a Debtor is a party or with respect
to which a Debtor may be liable and to hear, determine and, if
necessary, liquidate, any Claims arising therefrom, including
those matters related to the amendment after the Effective Date
pursuant to Article VI above to add any executory contracts or
unexpired leases to the list of executory contracts and unexpired
leases to be rejected;
(d) Ensure that distributions to Holders of Allowed
Claims and Allowed Equity Interests are accomplished pursuant to
the provisions of the Plan, including ruling on any motion Filed
pursuant to Article VIII;
(e) Decide or resolve any motions, adversary
proceedings, contested or litigated matters and any other matters
and grant or deny any applications involving the Debtors that may
be pending on the Effective Date;
(f) Enter such orders as may be necessary or appropriate
to implement or consummate the provisions of the Plan and all
contracts, instruments, releases, indentures and other agreements
or documents created in connection with the Plan or the
Disclosure Statement, including to correct any defect, cure any
omission or reconcile any inconsistency, except as provided in
Section 12.01(g) or elsewhere herein;
(g) Resolve any cases, controversies, suits, or disputes
that may arise in connection with the Consummation,
interpretation or enforcement of the Plan or any Person s
obligations incurred in connection with the Plan, except that
such retention of jurisdiction shall not apply to any cases,
controversies, suits or disputes that may arise in connection
with the rights or obligations of the Reorganized Debtor or any
other Person as the issuer or a Holder, respectively, of New
Bucyrus Common Stock (other than the rights and obligations
provided in Section 5.04), or any other agreements governing,
instruments evidencing or documents relating to any of the
foregoing, including the interpretation or enforcement of any
rights, remedies or obligations under any of the foregoing;
(h) 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, except as otherwise provided herein;
(i) Enter and implement such orders as are necessary or
appropriate if the Confirmation Order is for any reason modified,
stayed, reversed, revoked or vacated;
(j) 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, except as provided in
Section 12.01(g) or elsewhere herein; and
(k) Enter a Final Decree.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
A. Dissolution of Committee.
13.01. Upon completion of all distributions contemplated
by the Plan, the Creditors Committee shall dissolve and its
members shall be released and discharged from all rights and
duties arising from, or related to, the Chapter 11 Cases.
B. Payment of Statutory Fees.
13.02. All fees payable pursuant to section 1930 of title
28 of the United States Code, as determined by the Bankruptcy
Court at the hearing pursuant to section 1128 of the Bankruptcy
Code, shall be paid on or before the Effective Date.
C. No Interest.
13.03. Except as expressly stated in the Plan, or as
allowed by the Bankruptcy Court, no interest, penalty or late
charge is to be allowed on any Claim subsequent to the Petition
Date.
D. Discharge of Debtors.
13.04. Except as otherwise provided in the Plan or the
Confirmation Order, Confirmation shall (a) operate as a
discharge, in accordance with section 1141(d)(1) of the
Bankruptcy Code, effective as of the Effective Date, of any and
all debts (as such term is defined in section 101(12) of the
Bankruptcy Code) or Claims against the Debtors and the
Reorganized Debtor that arose at any time before the Effective
Date, including, but not limited to, all principal and interest,
whether accrued before, on, or after the Petition Date and (b)
terminate all rights and interests of Holders of Old Bucyrus
Common Stock, Holdings Stock and Holdings Stock Options. On the
Effective Date, as to every discharged debt and Claim, the Holder
of such debt or Claim shall be permanently precluded from
asserting against any of the Debtors, the Reorganized Debtor, or
against any of their respective assets or property, any other and
further Claim based upon any document, instrument or act,
omission, transaction or other activity of any kind or nature
that occurred prior to the Effective Date. Without limiting the
generality of the foregoing, upon the Effective Date, the Debtors
and the Reorganized Debtor shall be discharged from any debt that
arose before the Effective Date, and any debt of a kind specified
in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, to
the full extent permitted by section 1141(d)(1)(A) of the
Bankruptcy Code. Except as otherwise specifically provided
herein, nothing in the Plan shall be deemed to waive, limit or
restrict in any way the discharge granted upon Confirmation under
section 1141 of the Bankruptcy Code and effective as of the
Effective Date.
E. Injunction.
13.05. On the Effective Date, all entities who have been,
are, or may be Holders of Allowed Claims or Allowed Equity
Interests shall be enjoined from taking any of the following
actions against or affecting the Debtors, the Reorganized Debtor
or their respective Estates and property with respect to such
Allowed Claims or Allowed Equity Interests (other than actions
brought to enforce any rights or obligations under the Plan and
appeals, if any, from the Confirmation Order):
(a) commencing, conducting or continuing in any
manner, directly or indirectly, any suit, action or other
proceeding of any kind against the Debtors, the
Reorganized Debtor or their respective Estates and
property, or any direct or indirect successor in interest
to any of the Debtors or the Reorganized Debtor, or any
assets or property of such transferee or successor;
(b) enforcing, levying, attaching, collecting or
otherwise recovering by any manner or means whether
directly or indirectly any judgment, award, decree or
order against the Debtor, the Reorganized Debtor or their
respective Estates and property, or any direct or indirect
successor in interest to any of the Debtors or the
Reorganized Debtor, or any assets or property of such
transferee or successor;
(c) creating, perfecting or otherwise enforcing in
any manner, directly or indirectly, any Lien against the
Debtors, the Reorganized Debtors or their respective
Estates and property, or any direct or indirect successor
in interest to any of the Debtors or the Reorganized
Debtor, or any assets or property of such transferee or
successor other than as contemplated by the Plan;
(d) asserting any set-off, right of subrogation or
recoupment of any kind, directly or indirectly against any
obligation due the Debtors, the Reorganized Debtor or
their respective Estates and property, or any direct or
indirect successor in interest to any of the Debtors or
the Reorganized Debtor, or any assets or property of such
transferee or successor; and
(e) proceeding in any manner in any place whatsoever
that does not conform to or comply with the provisions of
the Plan.
13.06. Except as provided herein, as of the Effective
Date, all non-Debtor entities are permanently enjoined from
commencing or continuing in any manner, any action or proceeding,
whether directly, derivatively, on account of or respecting any
Claim, debt, right, Cause of Action or liability released or to
be released pursuant to Article IX.
F. Modification of Plan.
13.07. The Debtors reserve the right, in accordance with
the Bankruptcy Code and the Bankruptcy Rules, to amend or modify
the Plan prior to the entry of the Confirmation Order. Without
limiting the foregoing sentence, the Debtors reserve the right to
amend the Plan to eliminate any distribution under the Plan to
all Holders of Holdings Stock. Except as limited by Section
5.04(e), after the entry of the Confirmation Order, the Debtors
or the Reorganized Debtor, as the case may be, may, upon order of
the Bankruptcy Court, amend or modify the Plan, in accordance
with section 1127(b) of the Bankruptcy Code, or remedy any defect
or omission or reconcile any inconsistency in the Plan in such
manner as may be necessary to carry out the purpose and intent of
the Plan.
G. Revocation of Plan.
13.08. The Debtors reserve the right, at any time prior
to the entry of the Confirmation Order, to revoke or withdraw the
Plan. If the Debtors revoke or withdraw the Plan, it shall be
null and void and, in such event, nothing contained herein shall
be deemed to constitute a waiver or release of any Causes of
Action or Claims by or against the Debtors or any other entity or
to prejudice in any manner the rights of either of the Debtors or
any entity in any further proceeding involving a Debtor.
H. Rules of Interpretation.
13.09. For purposes of the Plan: (a) whenever from the
context it is appropriate, each term, whether defined in the
singular or the plural, shall include both the singular and the
plural; (b) any reference in the Plan to a contract, instrument,
release, indenture or other agreement or document being in a
particular form or on particular terms and conditions means that
such document shall be substantially in such form or
substantially on such terms and conditions; (c) any reference in
the Plan to an existing document or exhibit Filed, or to be
Filed, means such document or exhibit, as it may have been or may
be amended, modified or supplemented; (d) unless otherwise
specified, all references in the Plan to Sections, Articles and
Exhibits are references to Sections, Articles and Exhibits of or
to the Plan; (f) captions and headings to Articles and Sections
are inserted for convenience of reference only and are not
intended to be a part of or affect the interpretation of the
Plan; and (g) the rules of construction set forth in section 102
of the Bankruptcy Code shall apply.
I. Computation of Time.
13.10. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule 9006(a)
shall apply.
J. Governing Law.
13.11. Except to the extent that the Bankruptcy Code or
the Bankruptcy Rules are applicable, and subject to the
provisions of any contract, instrument, release, indenture or
other agreement or documents entered into in connection with the
Plan, the rights and obligations arising under the Plan shall be
governed by, and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
K. Severability.
13.12. Should the Bankruptcy Court determine, prior to
the Confirmation Date, that any provision of the Plan is illegal
on its face or illegal as applied to any Claim or Equity
Interest, such provision shall be unenforceable either as to all
Holders of Claims or Equity Interests or as to the Holder of such
Claim or Equity Interest as to which such provision is
unenforceable, respectively. Such a determination of
unenforceability shall in no way limit or affect the
enforceability or operative effect of any other provision of the
Plan.
L. Successors and Assigns.
13.13. The rights, benefits and obligations of any entity
named or referred to in the Plan shall be binding on, and shall
inure to the benefit of any heir, executor, administrator,
successor or assign of such entity.
Dated: September 19, 1994,
as modified December 1, 1994
B-E HOLDINGS, INC.
By: /s/ William B. Winter
Title: Chairman and Chief Executive Officer
BUCYRUS-ERIE COMPANY
By:/s/ William B. Winter
Title: Chairman and Chief Executive Officer
MILBANK, TWEED, HADLEY & McCLOY
By:/s/ John G. Gellene
(A Member of the Firm)
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Reorganization Counsel for Bucyrus-Erie
Company
HOWARD, SOLOCHEK & WEBER S.C.
By:/s/ Albert Solochek
(A Member of the Firm)
324 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 272-0760
Reorganization Counsel for
B-E Holdings, Inc.
<PAGE>
EXHIBIT A TO THE
SECOND AMENDED JOINT
PLAN OF REORGANIZATION
RESTATED BYLAWS
OF
BUCYRUS-ERIE COMPANY
Incorporated under the Laws of the State of Delaware
ARTICLE I
GENERAL
Section 1.1. Effectiveness of Bylaws. These Bylaws have
been adopted in accordance with the provisions of the Second
Amended Joint Plan of Reorganization of B-E Holdings, Inc. and
Bucyrus-Erie Company (as amended, modified or supplemented from
time to time, the "Plan") under chapter 11 of title 11, United
States Code (the "Bankruptcy Code") in proceedings under chapter
11 of the Bankruptcy Code in the United States Bankruptcy Court
for the Eastern District of Wisconsin. These Bylaws shall
constitute the Bylaws of the Corporation and shall be effective
for all purposes as of the Effective Date (as defined in the
Plan) of the Plan.
ARTICLE II
OFFICE AND RECORDS
Section 2.1. Delaware Office. The principal office of the
Corporation in the State of Delaware shall be located in the City
of Wilmington, County of New Castle, and the name and address of
its registered agent is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware 19801.
Section 2.2. Other Offices. The Corporation may have such
other offices, either within or without the State of Delaware, as
the Board of Directors may designate or as the business of the
Corporation may from time to time require.
Section 2.3. Books and Records. The books and records of
the Corporation may be kept at the Corporation's principal
executive offices in South Milwaukee, Wisconsin or at such other
locations outside the State of Delaware as may from time to time
be designated by the Board of Directors.
ARTICLE III
STOCKHOLDERS
Section 3.1. Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held on the last
Wednesday in April of each year, if not a legal holiday, and if a
legal holiday then on the next succeeding business day, at 1:00
p.m., local time, at the principal executive offices of the
Corporation, or at such other date, place and/or time as may be
fixed by resolution of the Board of Directors. The first annual
meeting of stockholders following the Effective Date will take
place in 1996 following completion of the Corporation's fiscal
year ending December 31, 1995 at such time and place determined
in accordance with the immediately preceding sentence (the "1996
Annual Meeting").
Section 3.2. Special Meeting. Subject to the rights of
the holders of any series or class of stock as set forth in the
Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") to elect additional directors
under specified circumstances, special meetings of the
stockholders may be called only by the Chairman of the Board, by
the Board of Directors pursuant to a written request signed by
not less than three directors and delivered to the Secretary or
by the President or the Secretary upon the written request,
stating the time, place, and the purpose or purposes of the
meeting, of stockholders who together own of record a majority of
the outstanding stock of all classes entitled to vote at such
meeting.
Section 3.3. Place of Meeting. The Board of Directors may
designate the place of meeting for any meeting of the
stockholders. If no designation is made by the Board of
Directors, the place of meeting shall be the principal executive
offices of the Corporation.
Section 3.4. Notice of Meeting. Written or printed
notice, stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be
prepared and delivered by the Corporation not less than ten days
nor more than sixty days before the date of the meeting, either
personally, or by mail, to each stockholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the stockholder at his or
her address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be
required by law. Meetings may be held without notice if all
stockholders entitled to vote are present, or if notice is waived
as provided in Section 7.2 of these Bylaws. Any previously
scheduled meeting of the stockholders may be postponed by
resolution of the Board of Directors upon public notice given
prior to the time previously scheduled for such meeting of
stockholders.
Section 3.5. List of Stockholders. A complete list of the
stockholders entitled to vote at the ensuing election, arranged
in alphabetical order, with the address of each, and the number
of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, at the Corporation's principal executive offices.
The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
Section 3.6. Quorum and Adjournment. Except as otherwise
provided by law or by the Certificate of Incorporation, the
holders of a majority of the outstanding shares of the
Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class
or series voting as a class, the holders of a majority of the
shares of such class or series shall constitute a quorum for the
transaction of such business. The chairman of the meeting or a
majority of the voting power of the shares of Voting Stock so
represented may adjourn the meeting from time to time, whether or
not there is such a quorum (or in the case of specified business
to be voted on as a class or series, the chairman or a majority
of the shares of such class or series so represented may adjourn
the meeting with respect to such specified business). No notice
of the time and place of adjourned meetings need be given except
as required by law. The stockholders present at a duly organized
meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave
less than a quorum.
Section 3.7. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing by the
stockholder or as otherwise permitted by law, or by his or her
duly authorized attorney-in-fact. Such proxy must be filed with
the Secretary of the Corporation or his or her representative at
or before the time of the meeting.
Section 3.8. Notice of Stockholder Business and
Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a)
pursuant to the Corporation's notice of meeting delivered
pursuant to Section 3.4 of these Bylaws, (b) by or at the
direction of the Chairman of the Board or pursuant to a written
request signed by not less than three directors and delivered to
the Secretary or (c) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complied with the notice
procedures set forth in clauses (2) and (3) of paragraph (A) of
this Bylaw and who was a stockholder of record at the time such
notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
clause (c) of paragraph (A)(1) of this Bylaw, the stockholder
must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices
of the Corporation not less than seventy days nor more than
ninety days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than twenty
days, or delayed by more than seventy days, from such anniversary
date, notice by the stockholder to be timely must be so delivered
not earlier than the ninetieth day prior to such annual meeting
and not later than the close of business on the later of the
seventieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of
such meeting is first made. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if
elected; (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons
for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Bylaw to the contrary, in the event that
the number of directors to be elected to the Board of Directors
is increased and there is no public announcement naming all of
the nominees for director or specifying the size of the increased
Board of Directors made by the Corporation at least eighty days
prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Bylaw shall also
be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered
to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made
by the Corporation.
(B) Special Meeting of Stockholders. Only such
business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting pursuant to Section 3.4 of these
Bylaws. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporation's
notice of meeting (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complies with the notice
procedures set forth in this Bylaw and who is a stockholder of
record at the time such notice is delivered to the Secretary of
the Corporation. Nominations by stockholders of persons for
election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder's notice as required
by paragraph (A)(2) of this Bylaw shall be delivered to the
Secretary at the principal executive offices of the Corporation
not earlier than the ninetieth day prior to such special meeting
and not later than the close of business on the later of the
seventieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in
this Bylaw. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the chairman of the meeting
shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this Bylaw
and, if any proposed nomination or business is not in compliance
with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement"
shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Bylaw, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw.
Nothing in this Bylaw shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of Preferred
Stock to elect directors under specified circumstances.
Section 3.9. Procedure for Election of Directors; Required
Vote. Other than the election of directors at any meeting of
stockholders of the Corporation held prior to the annual meeting
of stockholders to be held in 1997 (the "1997 Annual Meeting"),
which shall occur as provided in Section 5.04 of the Plan,
election of directors at all meetings of the stockholders at
which directors are to be elected shall be by written ballot, and
except as otherwise set forth in the Certificate of Incorporation
with respect to the right of the holders of any series or class
of stock to elect additional directors under specified
circumstances, a plurality of the votes cast thereat shall elect
the directors. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, all matters other
than the election of directors submitted to the stockholders at
any meeting shall be decided by a majority of the votes cast with
respect thereto. Prior to the 1997 Annual Meeting, this Section
3.9 of these Bylaws shall not be amended, added to, rescinded or
repealed.
Section 3.10. Inspectors of Elections; Opening and
Closing the Polls.
(A) The Board of Directors by resolution shall appoint
one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives of the Corporation, to act at the meeting and
make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate has been appointed to
act, or if all inspectors or alternates who have been appointed
are unable to act, at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall have the duties
prescribed by the General Corporation Law of the State of
Delaware (the "GCL").
(B) The chairman of the meeting shall fix and announce
at the meeting the time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a
meeting.
Section 3.11. No Stockholder Action by Written Consent.
Subject to the rights of the holders of any series or class of
stock as set forth in the Certificate of Incorporation to elect
additional directors under specific circumstances or to consent
to specific actions taken by the Corporation, any action required
or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.1. General Powers. The business and affairs of
the Corporation shall be managed by or under the direction of its
Board of Directors. In addition to the powers and authorities by
these Bylaws expressly conferred upon them, the Board of
Directors may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these Bylaws required to be
exercised or done by the stockholders.
Section 4.2. Number, Tenure and Qualifications. Subject
to the rights of the holders of any series or class of stock as
set forth in the Certificate of Incorporation to elect directors
under specified circumstances, as provided in Section 5.04(b) of
the Plan from the Effective Date (as defined in the Plan) until
the 1997 Annual Meeting, the Board of Directors shall consist of
seven members, and thereafter the number of directors shall be
fixed from time to time by the Board of Directors, but shall
consist of not more than fifteen nor less than three directors.
Upon the Effective Date, the Board of Directors shall consist of
those directors selected as provided in Section 5.04 of the Plan
(the "Original Directors"). Each Original Director shall hold
office from and after the Effective Date until the 1996 Annual
Meeting, and from and after the 1996 Annual Meeting until the
1997 Annual Meeting as provided in Section 5.04 of the Plan, and
otherwise pursuant to the terms of the Certificate of
Incorporation, the Plan, these By-Laws and the GCL, and until
their successors have been duly elected, or appointed pursuant to
Section 4.7(B) of these Bylaws and qualified. Directors shall be
elected annually and shall hold office from the time of such
director's election and qualification until their successors
shall have been duly elected and qualified. At each succeeding
annual meeting of stockholders of the Corporation beginning with
the 1997 Annual Meeting, if authorized by a resolution of the
Board of Directors, directors may be elected to fill any vacancy
on the Board of Directors, regardless of how such vacancy shall
have been created. Prior to the 1997 Annual Meeting, this
Section 4.2 of these Bylaws shall not be amended, added to,
rescinded or repealed except (x) by resolution of the Board of
Directors increasing the number of directors passed at a meeting
thereof by not less than two-thirds of the number of directors
fixed from time to time by these Bylaws, or (y) by resolution of
the Board of Directors increasing the number of directors passed
at a meeting thereof in connection with any transaction involving
the Corporaiton that requires approval of the stockholders of the
Corporation under the GCL and that is approved at such meeting,
provided that in either case notice of the proposed change was
given in a notice given no less than twenty-four hours prior to
the meeting.
Section 4.3. Regular Meetings. A regular meeting of the
Board of Directors shall be held without notice other than this
Bylaw immediately after the Annual Meeting of Stockholders at the
principal executive offices of the Corporation or at such other
place as may be fixed by resolution of the Board of Directors.
The Board of Directors may, by resolution, provide the time and
place for the holding of additional regular meetings without
notice other than such resolution.
Section 4.4. Special Meetings. Special meetings of the
Board of Directors shall be called at the request of the Chairman
of the Board, the President or not less than three directors.
The person or persons authorized to call special meetings of the
Board of Directors may fix the place and time of the meetings.
Section 4.5. Notice. Notice of any special meeting shall
be given to each director at his or her business or residence in
writing by hand delivery, overnight mail, courier service,
telegram or facsimile transmission or orally by telephone
communication. If by telegram, overnight mail, or courier
service such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or its notice is
delivered to the overnight mail or courier service company at
least twenty-four hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least twenty-four hours before
such meeting. If by telephone or by hand delivery, the notice
shall be given at least twelve hours prior to the time set for
the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of
Directors need be specified in the notice of such meeting, except
for amendments to these Bylaws as provided under Section 9.1 of
these Bylaws. A meeting may be held at any time without notice
if all the directors are present or if those not present waive
notice of the meeting as provided in Section 7.4 of these Bylaws.
Section 4.6. Quorum. A majority of the Board of
Directors shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of the directors
present may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors. The directors present at a duly organized
meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less
than a quorum.
Section 4.7. Vacancies; Vacancies Prior to the 1997
Annual Meeting.
(A) Subject to the rights of the holders of any series or
class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specified circumstances, and
unless the Board of Directors otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created
directorships resulting from any increase in the authorized
number of directors, may be filled only by the affirmative vote
of a majority of the remaining directors, though less than a
quorum of the Board of Directors, and directors so chosen shall
hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which
they have been elected expires and until such director's
successor shall have been duly elected and qualified. No
decrease in the number of authorized directors shall shorten the
term of any incumbent director.
(B) Notwithstanding the provisions of Section 4.7(A) of
these Bylaws, if prior to the 1997 Annual Meeting, there shall be
a vacancy in the Board of Directors resulting from the death,
resignation, retirement or removal for cause (an "Original
Director Vacancy Event") of any Original Director, the provisions
of this Section 4.7(B) of these Bylaws shall govern the
appointment of a successor to fill the remainder of the original
unexpired term of office of such Original Director. If an
Original Director Vacancy Event shall occur in respect of an
Original Director (or any successor thereto) prior to the 1997
Annual Meeting who is: (i) a director nominated by the Board of
Directors of the Corporation prior to the Effective Date of the
Plan, the Board of Directors shall appoint an officer of the
Corporation who served in such capacity prior to the Effective
Date of the Plan, or, in the absence of any such person, an
officer of the Corporation then serving in such capacity; (ii) a
director selected by the Holder of the Allowed Class 4B Claim (as
defined in the Plan) (a "Class 4B Director") the remaining Class
4B Directors (or their successors) shall appoint the successor to
such Class 4B Director, provided, however, if an Original
Director Vacancy Event occurs in respect of (x) both Class 4B
Directors or (y) the remaining Class 4B Director prior to the
appointment of a successor to the other Class 4B Director, then,
if at the time the Original Director Vacancy Event described in
sub-clause (x) or (y) occurs, Jackson National Life Insurance
Company owns (1) 30% or more of the then issued and outstanding
shares of Common Stock, the President of Jackson National Life
Insurance Company shall appoint successors to such Class 4B
Directors or (2) less than 30% of the then issued and outstanding
shares of Common Stock, a majority of the remaining Original
Directors shall appoint successors to such Class 4B Directors; or
(iii) a director selected by the Creditors Committee (as defined
in the Plan) (a "Committee Director") the remaining Committee
Directors (or successors) shall appoint the successor to such
Committee Director, provided, however, if an Original Director
Vacancy Event occurs in respect of (x) all Committee Directors or
(y) the remaining Committee Director prior to the appointment of
a successor to the other Committee Director, a majority of the
remaining Original Directors shall appoint successors to such
Committee Directors. Prior to the 1997 Annual Meeting, this
Section 4.7(B) of these Bylaws shall not be amended, added to,
rescinded or repealed.
Section 4.8. Committees of the Board of Directors. The
Board of Directors may from time to time, by resolution passed by
a majority of the Board of Directors, designate one or more
committees, each committee to consist of one or more directors of
the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise
such powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation as
provided in such resolution, and may authorize the seal of the
Corporation to be affixed to all papers which may require it,
except as otherwise provided by law. Unless the resolution of
the Board of Directors expressly so provides, no such committee
shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such committee may adopt
rules governing the method of calling and time and place of
holding its meetings. Unless otherwise provided by the Board of
Directors, a majority of any such committee (or the member
thereof, if only one) shall constitute a quorum for the
transaction of business, and the vote of a majority of the
members of such committee present at a meeting at which a quorum
is present shall be the act of such committee. Each such
committee shall keep a record of its acts and proceedings and
shall report thereon to the Board of Directors whenever requested
so to do. Any or all members of any such committee may be
removed, with or without cause, by resolution of the Board of
Directors, passed by a majority of the Board of Directors.
Section 4.9. Removal. Any director may be removed from
office at any time, but only for cause or otherwise pursuant to
the GCL. Prior to the 1997 Annual Meeting, this Section 4.9 of
these Bylaws shall not be amended, added to, rescinded or
repealed.
Section 4.10. Action by Consent of Board of Directors.
Any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 4.11. Conference Telephone Meetings. Members of
the Board of Directors, or any committee thereof, may participate
in a meeting of the Board of Directors or such committee by means
of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute
presence in person at such meeting.
Section 4.12. Records. The Board of Directors shall
cause to be kept a record containing the minutes of the
proceedings of the meetings of the Board of Directors and of the
stockholders, appropriate stock books and registers and such
books of records and accounts as may be necessary for the proper
conduct of the business of the Corporation.
ARTICLE V
OFFICERS
Section 5.1. Elected Officers. The elected officers of
the Corporation shall be a Chairman of the Board, a President,
one or more Vice Presidents, a Secretary, a Treasurer and a
Controller, and such other officers, as the Board of Directors
from time to time may deem proper. The Chairman of the Board
shall be chosen from the directors. All officers chosen by the
Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the
specific provisions of this Article V. Such officers shall also
have such powers and duties as from time to time may be conferred
by the Board of Directors. The Board of Directors may from time
to time elect, or the Chairman of the Board or the President may
appoint, such other officers (including one or more Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers, and
Assistant Controllers) and such agents, as may be necessary.
Section 5.2. Election and Term of Office. The elected
officers of the Corporation shall be elected annually by the
Board of Directors at the regular meeting of the Board of
Directors held after each annual meeting of the stockholders. If
the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as convenient. Subject
to Section 5.13 of these Bylaws, each officer shall hold office
until his or her successor shall have been duly elected and shall
have qualified or until his or her death or until such officer
shall resign.
Section 5.3. Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the stockholders and of
the Board of Directors and shall be the Chief Executive Officer.
The Chairman of the Board shall be responsible for the general
management of the affairs of the Corporation, shall make reports
to the Board of Directors and the stockholders and shall perform
all duties incidental to such office which may be required by law
and all such other duties as are properly required by the Board
of Directors. The Chairman of the Board may employ and discharge
employees and agents of the Corporation, except such as shall be
elected or appointed by the Board of Directors, and he may
delegate these powers. The Chairman of the Board shall also have
such other powers and duties as may be delegated to him by the
Board of Directors. The Chairman of the Board shall see that all
orders and resolutions of the Board of Directors and of any
committee thereof are carried into effect. The Chairman of the
Board may sign, alone or with the Secretary or any other proper
officer of the Corporation authorized by the Board of Directors,
certificates, contracts, and other instruments of the Corporation
as authorized by the Board of Directors.
Section 5.4. President. The President shall act in a
general executive capacity and shall assist the Chairman of the
Board in the administration and operation of the Corporation's
business and general supervision of its policies and affairs and
shall have such other powers and duties as may from time to time
be prescribed by the Bylaws, by Resolution of the Board of
Directors or by the Chairman of the Board. The President shall,
in the absence of or because of the inability to act of the
Chairman of the Board, perform all of the duties and may exercise
all of the powers of the Chairman of the Board and shall preside
at all meetings of stockholders and of the Board of Directors.
The President may sign, alone or with the Secretary or any other
proper officer of the Corporation authorized by the Board of
Directors, certificates, contracts, and other instruments of the
Corporation as authorized by the Board of Directors.
Section 5.5. Vice President. Each Vice President shall
have such powers and perform such duties as may be prescribed by
the Bylaws, by Resolution of the Board of Directors or by the
Chairman of the Board. The performance of any duty by a Vice
President shall, in respect of any other person dealing with the
Corporation, be conclusive evidence of his power to act. Any
Vice President may, by Resolution of the Board of Directors, be
designated an Executive Vice President or a Senior Vice
President.
Section 5.6. Secretary. The Secretary shall give, or
cause to be given, notice of all meetings of stockholders and
directors and all other notices required by law or by these
Bylaws, and in case of absence or refusal or neglect so to do,
any such notice may be given by any person thereunto directed by
the Chairman of the Board, the President, or the Board of
Directors, upon whose request the meeting is called as provided
in these Bylaws. The Secretary shall record or cause to be
recorded all the proceedings of the meetings of the Board of
Directors, any committees thereof and the stockholders of the
Corporation in a book to be kept for that purpose, and shall
perform such other duties as may be assigned by the Board of
Directors, the Chairman of the Board or the President. The
Secretary shall have the custody of the seal of the Corporation
and shall affix the same to all instruments requiring it, when
authorized by the Board of Directors, the Chairman of the Board
or the President, and attest to the same. The Secretary shall
have charge of the stock ledger and such other books and papers
as the Board of Directors may direct. The Secretary shall have
all such further powers and duties as generally are incident to
the office of Secretary or as may be prescribed by the Bylaws, by
Resolution of the Board of Directors or by the Chairman of the
Board.
Section 5.7. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate account of receipts and disbursements in books
belonging to the Corporation. The Treasurer shall deposit all
moneys and other valuables in the name and to the credit of the
Corporation in such depositaries as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, the
Chairman of the Board or the President, taking proper vouchers
for such disbursements. The Treasurer shall render to the
Chairman of the Board, the President and the Board of Directors,
whenever requested, an account of all transactions engaged in as
Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the
Corporation a bond for the faithful discharge of duties in such
amount and with such surety as the Board of Directors shall
prescribe. The Treasurer shall have all such further powers and
duties as generally are incident to the office of Treasurer or as
may be prescribed by the Bylaws, by Resolution of the Board of
Directors, or by the Chairman of the Board.
Section 5.8. Controller. The Controller shall be the
principal officer in charge of the accounts of the Corporation.
The Controller shall render to the Board of Directors and the
Chairman of the Board regularly and whenever otherwise required
an account of the operation and financial condition of the
Corporation. The Controller shall perform all the duties
incidental to the office of Controller, and shall have such other
powers and duties as may be prescribed by the Bylaws, by
Resolution of the Board of Directors, or by the Chairman of the
Board.
Section 5.9. Assistant Treasurer. In the absence or
inability to act of the Treasurer, any duly appointed Assistant
Treasurer may perform all the duties and exercise all the powers
of the Treasurer. The performance of any such duty shall, in
respect of any other person dealing with the Corporation, be
conclusive evidence of his power to act. An Assistant Treasurer
shall also perform such other duties as the Treasurer or the
Chairman of the Board may assign to him.
Section 5.10. Assistant Controllers. In the absence or
inability to act of the Controller, any duly appointed Assistant
Controller may perform all of the duties and exercise all the
powers of the Controller. The performance of any such duty
shall, in respect of any other person dealing with the
Corporation, be conclusive evidence of his power to act. An
Assistant Controller shall perform such other duties as the
Controller or the Chairman of the Board may assign to him.
Section 5.11. Assistant Secretaries. In the absence or
inability to act of the Secretary, any duly appointed Assistant
Secretary may perform all the duties and exercise all the powers
of the Secretary. The performance of any such duty shall, in
respect of any other person dealing with the Corporation, be
conclusive evidence of his power to act. An Assistant Secretary
shall also perform such other duties as the Secretary or the
Chairman of the Board may assign to him.
Section 5.12. Removal. Any officer elected by the Board
of Directors may be removed by a majority of the members of the
Board of Directors whenever, in their judgment, the best
interests of the Corporation would be served thereby. Any
officer or agent appointed by the Chairman of the Board or the
President may be removed by him whenever, in his judgment, the
best interests of the Corporation would be served thereby. No
elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond
the date of such officer's death, resignation, removal or the
election of such officer's successor, whichever event shall first
occur, except as otherwise provided in an employment contract or
an employee plan.
Section 5.13. Vacancies. A newly created office and a
vacancy in any office because of death, resignation or removal
may be filled by the Board of Directors for the unexpired portion
of the term at any meeting of the Board of Directors. Any
vacancy in an office appointed by the Chairman of the Board or
the President because of death, resignation or removal may be
filled by the Chairman of the Board or the President.
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS
Section 6.1. Stock Certificates and Transfers.
(A) The interest of each stockholder of the Corporation
shall be evidenced by certificates for shares of stock in such
form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation
shall be transferred on the books of the Corporation by the
holder thereof in person or by the holder's attorney, upon
surrender for cancellation of certificates for the same number of
shares, with an assignment and power of transfer endorsed thereon
or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents
may reasonably require.
(B) The certificates of stock shall be signed,
countersigned and registered in such manner as the Board of
Directors may by resolution prescribe, which resolution may
permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if such officer, transfer
agent or registrar were such officer, transfer agent or registrar
at the date of issue.
Section 6.2. Lost, Stolen or Destroyed Certificates. No
certificate for shares of stock in the Corporation shall be
issued in place of any certificate alleged to have been lost,
destroyed or stolen, except on production of such evidence of
such loss, destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount, upon such
terms and secured by such surety, as the Board of Directors or
any authorized officer may in its or his discretion require.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the
Corporation shall begin on the first day of January and end on
the thirty-first day of December of each year.
Section 7.2. Dividends. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends on
its outstanding shares in the manner and upon the terms and
conditions provided by law and the Certificate of Incorporation.
Section 7.3. Seal. The seal of the Corporation shall be
circular in form and shall bear, in addition to any other emblem
or device approved by the Board of Directors, the name of the
Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware". The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 7.4. Waiver of Notice. Whenever any notice is
required to be given to any stockholder or director of the
Corporation under the provisions of the GCL, a waiver thereof in
writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to
be transacted at, nor the purpose of, any annual or special
meeting of the stockholders of the Board of Directors need be
specified in any waiver of notice of such meeting.
Section 7.5. Audits. The accounts, books and records of
the Corporation shall be audited upon the conclusion of each
fiscal year by an independent certified public accountant
selected by the Board of Directors, and it shall be the duty of
the Board of Directors to cause such audit to be made annually.
Section 7.6. Resignations. Any Director or any officer,
whether elected or appointed, may resign at any time by serving
written notice of such resignation on the Chairman of the Board,
the President or the Secretary, and such resignation shall be
deemed to be effective when said notice is received by the
Chairman of the Board, the President or the Secretary or at such
later date as is stated therein. No formal action shall be
required of the Board of Directors or the stockholders to make
any resignation effective.
Section 7.7. Indemnification and Insurance. (A) Each
person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other corporation or
of a partnership, joint venture, trust or other enterprise,
including service with respect to any employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by the GCL as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all
expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, excise taxes or penalties
under the Employee Retirement Income Security Act of 1974, as
amended, and amounts paid or to be paid in settlement) reasonably
incurred by such indemnitee in connection therewith; provided,
however, that, except as provided in paragraph (C) of this Bylaw
with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such
indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board of
Directors.
(B) The right to indemnification conferred in paragraph (A)
of this Bylaw shall include the right to be paid by the
Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however,
that, if the GCL requires, an advancement of expenses incurred by
an indemnitee in his or her capacity as a director or officer
(and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal
(hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this paragraph
(B) or otherwise.
(C) If a claim under paragraphs (A) or (B) of this Bylaw is
not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in
any such suit, the indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In (i) any
suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right of an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for
indemnification set forth in the GCL. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to
the commencement of such action that indemnification of the
indemnitee is proper in the circumstances because the indemnitee
has met the applicable standard of conduct set forth in the GCL,
nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders)
that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not
met the applicable standard of conduct or, in the case of such a
suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or
brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving
that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Bylaw or otherwise shall be
on the Corporation.
(D) The right to indemnification and the advancement of
expenses conferred in this Bylaw shall not be exclusive of any
other right which any person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
provision of these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(E) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss
under the GCL.
(F) The Corporation may, to the extent authorized from time
to time by the Board of Directors, grant rights to
indemnification, and rights to the advancement of expenses, to
any employee or agent of the Corporation to the fullest extent of
the provisions of this Bylaw with respect to the indemnification
and advancement of expenses of directors and officers of the
Corporation.
(G) The rights to indemnification and to the advancement of
expenses conferred in paragraphs (A) and (B) of this Bylaw shall
be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
ARTICLE VIII
CONTRACTS, PROXIES, ETC.
Section 8.1. Contracts. Except as otherwise required by
law, the Certificate of Incorporation or these By-Laws, any
contracts or other instruments may be executed and delivered in
the name and on the behalf of the Corporation by such officer or
officers of the Corporation as the Board of Directors may from
time to time direct. Such authority may be general or confined
to specific instances as the Board may determine. The Chairman
of the Board, the President or any Vice President may execute
bonds, contracts, deeds, leases and other instruments to be made
or executed for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board of Directors, the Chairman of
the Board or the President may delegate contractual powers to
others under such officer's jurisdiction, it being understood,
however, that any such delegation of power shall not relieve such
officer of responsibility with respect to the exercise of such
delegated power.
Section 8.2. Proxies. Unless otherwise provided by
resolution adopted by the Board of Directors, the Chairman of the
Board, the President or the Vice President-Finance may from time
to time appoint an attorney or attorneys or agent or agents of
the Corporation, to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in
any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such
holder, to any action by such other corporation, and may instruct
the person or persons so appointed as to the manner of casting
such votes or giving such consent, and may execute or cause to be
executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or
other instruments as he may deem necessary or proper in the
premises.
ARTICLE IX
AMENDMENTS
Section 9.1. Amendments. Except as these Bylaws may
expressly provide to the contrary, these Bylaws may be amended,
added to, rescinded or repealed at any meeting of the Board of
Directors or of the stockholders, provided notice of the proposed
change was given in the notice of the meeting and, in the case of
the Board of Directors, in a notice given no less than twenty-
four hours prior to the meeting.
<PAGE>
EXHIBIT B TO THE
SECOND AMENDED JOINT
PLAN OF REORGANIZATION
RESTATED CERTIFICATE OF INCORPORATION
OF
BUCYRUS-ERIE COMPANY
1. The name of the corporation (which is hereinafter
referred to as the "Corporation") is "Bucyrus-Erie Company".
2. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of
Delaware on November 3, 1927 under the name Bucyrus-Erie Company.
On April 30, 1985 the Certificate of Incorporation, as amended,
was further amended to change the name of the Corporation to
Becor Western Inc. and on February 4, 1988, in connection with
the merger of B-E Merger Sub, Inc. into the Corporation, the
Corporation's name was again changed to Bucyrus-Erie Company.
3. Provision for the making and filing of this Restated
Certificate of Incorporation is contained in an order dated
December 1, 1994 of the United States Bankruptcy Court, Eastern
District of Wisconsin (the "Bankruptcy Court") in In re B-E
Holdings, Inc. and Bucyrus-Erie Company, Case Nos. 94-20786-RAE
and 94-20787-RAE attached as Exhibit A to this Restated
Certificate of Incorporation, confirming the Second Amended Joint
Plan of Reorganization of B-E Holdings, Inc. and Bucyrus-Erie
Company under chapter 11 of title 11, United States Code dated
September 19, 1994, as modified December 1, 1994 (the "Plan").
4. This Restated Certificate of Incorporation has been
duly executed by the officers of the Corporation so designated in
the Bankruptcy Court order in accordance with the applicable
provisions of Sections 242, 245 and 303 of the General
Corporation Law of the State of Delaware and, upon filing with
the Secretary of State in accordance with Section 103 of the
General Corporation Law of the State of Delaware (the "GCL"),
shall thenceforth supersede the original Certificate of
Incorporation and shall, as it may thereafter be amended in
accordance with its terms and by law, be the Certificate of
Incorporation of the Corporation.
5. The text of the Certificate of Incorporation of the
Corporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE I - NAME
The name of the corporation (which is hereinafter referred
to as the "Corporation") is:
Bucyrus-Erie Company
ARTICLE II - REGISTERED OFFICE
The address of the Corporation's registered office in the
State of Delaware is The Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801, County of New Castle. The
name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III - PURPOSE
The purpose of the Corporation shall be to engage in any
lawful act or activity for which corporations may be organized
and incorporated under the General Corporation Law of the State
of Delaware.
ARTICLE IV - STOCK
(A) Authorized Stock. The total number of shares of
stock which the Corporation shall have authority to issue is
Twenty Million (20,000,000) shares of Common Stock, par value
$.01 per share (hereinafter referred to as "Common Stock").
(B) Restriction on Issuance of Non-Voting Shares of
Capital Stock. The Corporation shall not issue any non-voting
equity securities; provided, however, that this provision
included in this Restated Certificate of Incorporation in
compliance with Section 1123(a)(6) of Title 11, United States
Code (the "Bankruptcy Code") shall have no force and effect
beyond that required by Section 1123(a)(6) of the Bankruptcy Code
and shall be effective only for so long as Section 1123(a)(6) of
the Bankruptcy Code is in effect and applicable to the
Corporation.
(C) Record Holders. The Corporation shall be entitled to
treat the person in whose name any share of its stock is
registered as the owner thereof for all purposes and shall not be
bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not
the Corporation shall have notice thereof, except as may be
required by law.
ARTICLE V - BYLAWS
(A) In furtherance of, and not in limitation of, the
powers conferred by law, the Board of Directors is expressly
authorized and empowered to adopt, amend or repeal the Bylaws of
the Corporation, provided, however, that (i) Sections 3.9, 4.2,
4.7(B) and 4.9 of the Bylaws shall not be amended, altered,
changed or repealed prior to the annual meeting of the
stockholders of the Corporation to be held in 1997 except as
provided in the Bylaws as in effect immediately after the
"Effective Date" of the Plan (as defined in the Plan) and (ii)
the Bylaws adopted by the Board of Directors under the powers
hereby conferred may be altered, amended or repealed by the Board
of Directors or by the stockholders having voting power with
respect thereto.
(B) The Corporation may in its Bylaws confer powers upon
the Board of Directors in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon
the Board of Directors by law.
ARTICLE VI - MEETINGS OF STOCKHOLDERS
Subject to the rights of the holders of any series or
class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specific circumstances or to
consent to specific actions taken by the Corporation, any action
required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be
effected by any consent in writing in lieu of a meeting of such
stockholders.
ARTICLE VII - DIRECTORS
(A) Subject to the rights of the holders of any series or
class of stock to elect additional directors under specific
circumstances, the number of directors of the Corporation shall
be fixed by the Bylaws of the Corporation and may be increased or
decreased from time to time in such a manner as may be prescribed
by the Bylaws; provided, however, that, except as provided in the
Bylaws of the Corporation in effect immediately after the
"Effective Date" of the Plan (as defined in the Plan), the number
of directors shall not be increased or decreased prior to the
annual meeting of the stockholders of the Corporation to be held
in 1997.
(B) Unless and except to the extent that the Bylaws of
the Corporation shall so require, the election of directors of
the Corporation need not be by written ballot.
(C) Subject to the rights of the holders of any series or
class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specific circumstances, any
director may be removed from office at any time, but only for
cause or otherwise to the extent required by the GCL.
ARTICLE VIII - LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable
to the Corporation or any stockholder for monetary damages for
breach of fiduciary duty as a director, except for any matter in
respect of which such director (a) shall be liable under Section
174 of the GCL or any amendment or successor provisions thereto
or (b) shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached
his duty of loyalty to the Corporation or its stockholders, (ii)
shall not have acted in good faith or, in failing to act, shall
not have acted in good faith, (iii) shall have acted in a manner
involving intentional misconduct or a knowing violation of law,
or, in failing to act, shall have acted in a manner involving
intentional misconduct or a knowing violation of law, or
(iv) shall have derived from any transaction an improper personal
benefit. Neither the amendment nor repeal of this Article VIII,
nor the adoption of any provision of the Certificate of
Incorporation, shall eliminate or otherwise adversely affect the
rights and protections of a director under this Article VIII in
respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article VIII, would accrue or arise
prior to such amendment, repeal or adoption.
ARTICLE IX - AMENDMENTS
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and
from time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, and any other
provisions authorized by the laws of the State of Delaware at the
time in force may be added or inserted, in the manner now or
hereafter prescribed herein or by law, and all powers,
preferences and rights of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form
or as hereafter amended are granted subject to the right reserved
in this Article IX. Article V(A), Article VII(A), Article VII(C)
and this Article IX shall not be amended, altered, changed or
repealed prior to the annual meeting of the stockholders of the
Corporation to be held in 1997.
IN WITNESS WHEREOF, the President and Secretary of the
Corporation, the officers of the Corporation designated by order
of the Bankruptcy Court to execute this Restated Certificate of
Incorporation, do hereby execute this Restated Certificate of
Incorporation on behalf of the Corporation this ____ day of
____________, 1994.
BUCYRUS-ERIE COMPANY
By____________________________
President
Attest: _____________________________
Secretary
<PAGE>
EXHIBIT C TO THE
SECOND AMENDED JOINT
PLAN OF REORGANIZATION
SUMMARY OF NEW BUCYRUS REGISTRATION RIGHTS AGREEMENT
Term: Five years from the Effective Date
(the "Term").
Issuer: Bucyrus-Erie Company on and after
the Effective Date ("New Bucyrus").
Registrable Securities: New Bucyrus Common Stock.
Beneficiaries: Any Beneficial Holder of Claims
and/or Equity Interests to whom an
aggregate of 1,000,000 or more
shares of New Bucyrus Common Stock
are distributable pursuant to the
Plan ("Relevant Holders").
Piggyback Registration Relevant Holders shall be entitled
Rights: to participate in any registered
offering of New Bucyrus Common
Stock at any time during the Term
(other than registered offerings in
respect of a dividend reinvestment
or similar plan for shareholders or
on Form S-4, Form S-8 or any
successor form). If the managing
underwriters of any such
underwritten offering determine in
their opinion that the total number
of shares of New Bucyrus Common
Stock proposed to be included in
such registration is such as to
materially and adversely affect the
success of such offering (whether
by a reduction in the anticipated
selling price or otherwise), then
the shares so requested to be
registered by Relevant Holders may
be excluded.
Demand Registration: One or more Relevant Holders
holding 15% or more of the shares
of New Bucyrus Common Stock then
entitled to the benefits of the New
Bucyrus Registration Rights
Agreement may at any time during
the Term require New Bucyrus to use
its best efforts to register such
shares so as to permit the sale of
such shares and the shares of New
Bucyrus Common Stock of other
Relevant Holders electing to
participate in such registered
offering. If requested by Relevant
Holders holding a majority of the
shares requesting participation in
such registered offering, such
registered offering shall be an
underwritten offering. New Bucyrus
shall be under no obligation to
find or furnish the underwriter for
any such offering. New Bucyrus
shall not be obligated to effect
any requested offering if
(i) within the 180-day period
preceding such request, New Bucyrus
shall have effected a registered
offering at the request of one or
more Relevant Holders or (ii) such
request is made during a period
commencing 30 days before the
effective date of a registered
offering of New Bucyrus Common
Stock or ending 60 days after the
closing date of such offering
provided that the Holder or Holders
of Registrable Securities
requesting such registration were
afforded the opportunity to
participate in such underwritten
offering. New Bucyrus shall not be
required to effect more than three
such requests for registration of
New Bucyrus Common Stock, provided
that no Relevant Holder may
initiate more than two Demand
Registrations unless at the time of
such request such Relevant Holder
is the sole holder of Registrable
Securities. If the managing
underwriters of any such
underwritten offering determine in
their opinion that the total number
of shares of New Bucyrus Common
Stock proposed to be included in
such registration is such as to
materially and adversely affect the
success of such offering (whether
by a reduction in the anticipated
selling price or otherwise), then
New Bucyrus shall be required to
register only such number of shares
of New Bucyrus Common Stock that in
the opinion of such managing
underwriters can be sold without
materially and adversely affecting
such offering. New Bucyrus may
postpone for a reasonable period of
time (but not exceeding 120 days)
the requested filing of a
registration statement if New
Bucyrus determines that such
registration would in the good
faith judgment of the Board of
Directors of the Company materially
interfere with any material
corporate transaction or
development or would require
premature disclosure of non-public
information which could materially
adversely affect New Bucyrus.
Listing Requirement: New Bucyrus shall use its best
efforts to have the New Bucyrus
Common Stock subject to
registration (i) listed on each
securities exchange, if any, on
which such securities are then
listed or (ii) authorized to be
quoted on NASDAQ or such other
national quotation system, if any,
on which such securities are then
quoted.
Expenses: New Bucyrus will be required to pay
all reasonable expenses, other than
fees and commissions of
underwriters, incident to the
registration and sale of shares of
Relevant Holders described herein.
<PAGE>
EXHIBIT D TO THE
SECOND AMENDED JOINT
PLAN OF REORGANIZATION
Bucyrus-Erie Company
Confirmation Financing Proposal
August 17, 1994
Borrower: Reorganized Bucyrus-Erie
Lender: South Street Funds
Amount(1): Principal plus accrued interest, less $2.5
million
Rate: Year 1: 10.5% Cash or PIK;
Thereafter 10.5% Cash or 13% PIK
Term: Five years from effective date
Amortization: Bullet
Security/ As per existing collateral agreement
Subordination Subordinated to a $15 million letter of
credit/facility with a sub-limit for direct
borrowings as follows(2):
$5 million in year 1;
$2.5 million in year 2.
Subordinated also to Project financing
collateral for entire term
Optional Callable at any time at par plus accrued
Redemption: interest if any
Fees: None
Covenants: As per existing agreement
Contingencies: Contingent upon confirmation of plan of
reorganization on or before December 31, 1994.
___________________________
(1) In the event the Company obtains alternative confirmation
financing to South Street, South Street agrees to reduce its
contract claim by $3.5 million.
(2) Covenant to prohibit Company from utilizing proceeds from
direct borrowings to pay South Street interest.
<PAGE>
EXHIBIT E TO THE
SECOND AMENDED JOINT
PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of _____________, 1994, by and between B-E
Holdings, Inc., a Delaware corporation ("Holdings"), and Bucyrus-
Erie Company, a Delaware corporation ("Bucyrus") and wholly owned
subsidiary of Holdings.
RECITALS
WHEREAS, the boards of directors of both Holdings and
Bucyrus have proposed a plan of reorganization (the
"Restructuring"), consisting of the Second Amended Joint Plan of
Reorganization (attached hereto as Exhibit A) (the "Plan") under
chapter 11 of the United States Bankruptcy Code of 1978, as
amended (the "Bankruptcy Code"), as modified December 1, 1994;
WHEREAS, the Plan was confirmed under chapter 11 of the
Bankruptcy Code pursuant to an order (the "Confirmation Order")
dated December __, 1994 of the United States Bankruptcy Court,
Eastern District of Wisconsin (the "Bankruptcy Court") in In re
B-E Holdings, Inc. and Bucyrus-Erie Company, Case Nos. 94-20786-
RAE and 94-20787-RAE;
WHEREAS, the Plan as confirmed by the Bankruptcy Court
provides for Holdings to merge with and into Bucyrus and further
provides that the surviving corporation shall issue: a total of
10,170,413 shares of its common stock, par value $.01 per share
(the "New Bucyrus Common Stock"), to holders of 10% Senior Notes
(interest rate reset to 16% as of January 1, 1993) due 1996 of
Bucyrus (the "10% Senior Notes"), holders of Resettable Senior
Notes due 1996 of Bucyrus (the "Resettable Senior Notes"),
holders of 9% Sinking Fund Debentures due 1999 of Bucyrus (the
"9% Sinking Fund Debentures"), holders of Class E Common Stock,
par value $.01 per share, of Holdings (the "Holdings Class E
Common Stock") and Bell Helicopter Textron Inc.; and
WHEREAS, pursuant to the Plan, Holdings and Bucyrus desire
to make certain covenants and agreements in connection with this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants
and agreements set forth herein, Holdings and Bucyrus hereby
agree as follows:
ARTICLE I
THE MERGER; CLOSING; EFFECTIVE TIME
1.1 The Merger
Subject to the terms and conditions of this Agreement, at
the Effective Time (as defined in Section 1.2) Holdings and
Bucyrus shall consummate a merger (the "Merger") in which
Holdings shall be merged with and into Bucyrus and the separate
corporate existence of Holdings shall thereupon cease. Bucyrus
shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation"). The
Surviving Corporation shall continue to be governed by the laws
of the State of Delaware and the separate corporate existence of
Bucyrus with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Merger. The Merger
shall have the effects specified in the General Corporation Law
of the State of Delaware ("the DGCL").
1.2 Closing
The closing of the Merger (the "Closing") shall take place
(i) at the offices of Milbank, Tweed, Hadley & McCloy, 1 Chase
Manhattan Plaza, New York, NY 10005, at 10:00 A.M. on the
Effective Date (as defined in the Plan) or (ii) at such other
place and time and/or on such other date after the Effective Date
as Holdings and Bucyrus may agree. In connection therewith, once
all the conditions to Consummation (as defined in the Plan) of
the Plan specified in Article XI.B of the Plan have been
satisfied and so long as no stay of the Confirmation Order is in
effect, Holdings and Bucyrus shall cause a Certificate of Merger
(the "Certificate of Merger") to be executed and filed with the
Secretary of State of the State of Delaware as provided in
Sections 251 and 303 of the DGCL. The Merger shall become
effective upon due filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with
Section 103 of the DGCL (or such later time as specified
therein), such time is hereinafter referred to as the "Effective
Time."
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1 The Charter
The Restated Certificate of Incorporation of Bucyrus,
attached hereto as Exhibit B, shall be the Certificate of
Incorporation of the Surviving Corporation, until duly amended in
accordance with the terms thereof and of the DGCL.
2.2 The Bylaws
The Restated Bylaws of Bucyrus, attached hereto as Exhibit
C, shall be the Bylaws of the Surviving Corporation until duly
amended in accordance with the terms thereof and of the DGCL.
ARTICLE III
DIRECTORS AND OFFICERS OF THE
SURVIVING CORPORATION
3.1 Directors and Officers
The directors of the Surviving Corporation at the
Effective Time shall, from and after the Effective Time, be the
directors specified in the Plan and the Confirmation Order. The
officers of the Surviving Corporation at the Effective Time
shall, from and after the Effective Time, be the officers of
Bucyrus immediately prior to the Effective Time. Such directors
and officers shall serve until their successors have been duly
elected or appointed and qualified or until their earlier death,
resignation, retirement or removal in accordance with the Plan
and the Surviving Corporation's Certificate of Incorporation and
Bylaws.
ARTICLE IV
CONVERSION OR CANCELLATION OF SECURITIES IN THE MERGER
4.1 Conversion or Cancellation
The manner of converting or canceling securities of
Holdings and Bucyrus in the Merger shall be as follows:
(a) At the Effective Time, each $1,000 principal amount
of 10% Senior Notes issued and outstanding immediately prior
to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be
automatically converted into 67.1374 shares of New Bucyrus
Common Stock. All such issued and outstanding 10% Senior
Notes shall thereby be converted into an aggregate of
5,010,329 shares of New Bucyrus Common Stock. All such 10%
Senior Notes, by virtue of the Merger and without any action
on the part of the holders thereof, shall cease to be
outstanding, be cancelled and cease to exist, and each holder
of an instrument formerly representing any such 10% Senior
Notes shall thereafter cease to have any rights with respect
to such instrument other than the right to exchange such
instrument for certificates representing shares of New
Bucyrus Common Stock pursuant to the terms of the Plan.
(b) At the Effective Time, each $1,000 principal amount
of Resettable Senior Notes issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger
and without any action on the part of the holder thereof, be
automatically converted into 67.6201 shares of New Bucyrus
Common Stock. All such issued and outstanding Resettable
Senior Notes shall be converted into an aggregate of
4,057,203 shares of New Bucyrus Common Stock. All such
Resettable Senior Notes, by virtue of the Merger and without
any action on the part of the holders thereof, shall cease to
be outstanding, be cancelled and cease to exist, and each
holder of an instrument formerly representing any such
Resettable Senior Notes shall thereafter cease to have any
rights with respect to such instrument other than the right
to exchange such instrument for certificates representing
shares of New Bucyrus Common Stock pursuant to the terms of
the Plan.
(c) At the Effective Time, each $1,000 principal amount
of 9% Sinking Fund Debentures issued and outstanding
immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be automatically converted into 63.0427 shares of
New Bucyrus Common Stock. All such issued and outstanding 9%
Sinking Fund Debentures shall be converted into an aggregate
of 50,686 shares of New Bucyrus Common Stock. All such 9%
Sinking Fund Debentures, by virtue of the Merger and without
any action on the part of the holders thereof, shall cease to
be outstanding, be cancelled and cease to exist, and each
holder of an instrument formerly representing any such 9%
Sinking Fund Debentures shall thereafter cease to have any
rights with respect to such instrument other than the right
to exchange such instrument for certificates representing
shares of New Bucyrus Common Stock pursuant to the terms of
the Plan.
(d) At the Effective Time, each share of Holdings
Class E Common Stock issued immediately prior to the
Effective Time pursuant to the Plan to the former holders of
Series A 12-1/2% Senior Debentures due 2002 of Holdings (the
"Holdings Senior Debentures"), the former holders of Series A
12-1/2% Cumulative Exchangeable Preferred Stock, par value
$.01 per share, of Holdings (the "Holdings Series A Preferred
Stock"), the former holders of Series B Convertible Preferred
Stock, par value $.01 per share, of Holdings (the "Holdings
Series B Preferred Stock"), the former holders of Class C
Common Stock, par value $.01 per share, of Holdings (the
"Holdings Class C Stock"), the former holders of Class D
Common Stock, par value $.01 per share, of Holdings (the
"Holdings Class D Stock") and the former holders of stock
options granted by Holdings under the B-E Holdings, Inc. 1988
Stock Option Plan that are exercisable on or prior to the
Voting Record Date (as defined in the Plan) and that are
exercised on or prior to the Effective Date (the "Exercised
Stock Options") shall, by virtue of the Merger and without
any action on the part of the holders thereof, be
automatically converted into one share of New Bucyrus Common
Stock. All such issued Holdings Senior Debentures, Holdings
Series A Preferred Stock, Holdings Series B Preferred Stock,
Holdings Class C Stock, Holdings Class D Stock and Exercised
Stock Options shall be converted into an aggregate of 881,782
shares of New Bucyrus Common Stock. All such shares of
Holdings Class E Common Stock, by virtue of the Merger and
without any action on the part of the holders thereof, shall
cease to be outstanding, be cancelled and cease to exist, and
each holder of shares of Holdings Class E Common Stock issued
pursuant to the Plan shall cease to have any rights with
respect to such shares other than the right to exchange an
instrument formerly representing Holdings Senior Debentures
or a certificate formerly representing shares of Holdings
Series A Preferred Stock, Holdings Series B Preferred Stock,
Holdings Class C Stock or Holdings Class D Stock or a
certificate or other document, if any, representing Exercised
Stock Options, as the case may be, for certificates
representing shares of New Bucyrus Common Stock pursuant to
the terms of the Plan. Holders of Class E Common Stock shall
not be required to submit certificates formerly representing
Holdings Class E Common Stock in exchange for certificates
representing shares of New Bucyrus Common Stock pursuant to
the terms of the Plan.
(e) At the Effective Time, all stock options granted by
Holdings under the B-E Holdings, Inc. 1988 Stock Option Plan
that are not exercised on or prior to the Effective Date (the
"Unexercised Stock Options") shall, by virtue of the Merger
and without any action on the part of Holdings or Bucyrus,
cease to be outstanding, and be cancelled without payment of
any consideration therefor and cease to exist, and the holder
of a certificate or other document, if any, representing
Unexercised Stock Options, shall thereafter cease to have any
rights with respect to such Unexercised Stock Options.
(f) At the Effective Time, each share of common stock,
par value $.01 per share, of Bucyrus (the "Old Bucyrus Common
Stock") issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of Holdings or Bucyrus, cease to be
outstanding, be cancelled without payment of any
consideration therefor and cease to exist, and the holder of
a certificate formerly representing any such Old Bucyrus
Common Stock shall thereafter cease to have any rights with
respect to such Old Bucyrus Common Stock.
4.2 Fractional Shares
Notwithstanding Section 4.1, no fractional shares of New
Bucyrus Common Stock shall be issued. Any holder of 10% Senior
Notes, Resettable Senior Notes, 9% Sinking Fund Debentures or
Holdings Class E Common Stock entitled hereunder to receive a
fractional share of New Bucyrus Common Stock shall be entitled to
receive, in lieu of such fractional share, an amount in cash as
set forth in the immediately succeeding sentence. Pursuant to
Section 7.10 of the Plan, as promptly as practicable following
the Effective Time, one or more of the Disbursing Agents (as
defined in the Plan) chosen by the Surviving Corporation shall
aggregate and sell, at then prevailing prices, all fractional
shares of New Bucyrus Common Stock which would otherwise have
been issuable hereunder and distribute the net proceeds from such
sale pro rata to each of the holders entitled thereto.
ARTICLE V
MISCELLANEOUS AND GENERAL
5.1 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
5.2 Assignment
This Agreement shall not be assignable by operation of law
or otherwise and is not intended to create any obligations to, or
rights in respect of, any persons other than the parties hereto.
5.3 Captions
The Article, Section and paragraph captions herein are for
convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect
any of the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the officers of Holdings and Bucyrus
designated by order of the Bankruptcy Court to execute this
Agreement, have hereby executed this Agreement on behalf of
Holdings and Bucyrus on the date first hereinabove written.
B-E HOLDINGS, INC.
By:________________________________
President
Attest:
By:________________________
Secretary
BUCYRUS-ERIE COMPANY
By:_______________________________
President
Attest:
By:_______________________
Secretary
<PAGE>
EXHIBIT 2.2
8-K - 1994
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
In re
Chapter 11
B-E HOLDINGS, INC. and Case Nos. 94-20786-RAE
94-20787-RAE
BUCYRUS-ERIE COMPANY,
Jointly administered
Debtors.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ORDER CONFIRMING DEBTORS' SECOND
AMENDED JOINT PLAN OF REORGANIZATION
AS MODIFIED DECEMBER 1, 1994
The Debtors' Second Amended Joint Plan of Reorganization
filed by B-E Holdings, Inc. and Bucyrus-Erie Company dated
September 19, 1994 and as modified December 1, 1994 (the "Amended
Plan"); have been transmitted to creditors and equity interest
holders holding impaired claims and equity interests; and
It having been determined after hearing on notice that
the requirements for confirmation of the Amended Plan set forth
in 11 U.S.C. Section 1129(b) have been satisfied;
IT IS ORDERED that the Amended Plan is confirmed.
A copy of the confirmed Amended Plan is attached.
Dated: Milwaukee, Wisconsin
December 2, 1994
/s/ Russell A. Eisenberg
United States Bankruptcy Judge
John G. Gellene
Frederick D. Hyman
Milbank, Tweed, Hadley, & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Telephone: (212) 530-5000
Telecopier: (212) 530-5219
Albert Solochek
C. Scott Pryor
Howard, Solochek & Weber, S.C.
324 E. Wisconsin Avenue, Suite 1100
Milwaukee, Wisconsin 53202
Telephone: (414) 272-0760
Telecopier: (414) 272-7265
<PAGE>
EXHIBIT 99.1
8-K - 1994
December 2, 1994 -- Bucyrus-Erie Company (the "Company") and
B-E Holdings, Inc. ("Holdings") announced today that their plan
of reorganization had been approved by the United States
Bankruptcy Court in Milwaukee, Wisconsin. The Court's order
confirming the reorganization plan will permit the completion of
the companies' financial restructuring and, following a merger of
Holdings into Bucyrus, the emergence of reorganized Bucyrus (the
"Reorganized Company") from Chapter 11 proceedings prior to the
end of 1994.
In approving the plan, the Bankruptcy Court also approved
modifications of the Reorganized Company's certificate of
incorporation and bylaws which fix the composition of the
Reorganized Company's board of directors through the annual
stockholders' meeting in 1997. The modifications provide for a
seven-member board of directors, consisting of three members
selected by Jackson National Life Insurance Company ("JNL"), the
Company's largest creditor, three members selected by the
official committee of creditors appointed in the Company's
reorganization proceedings, and one member selected from the
Company's current management. The composition of the board will
thus reflect a balance between JNL and other stockholder
interests over the next two years, and is subject to change only
in certain limited circumstances. The arrangement regarding the
composition and tenure of the board was agreed to in substance by
representatives of the Company, JNL and the creditors committee
in September, 1994 and approved by the Bankruptcy Court at a
hearing held on December 1, 1994.
The Company announced that the initial board of directors
would consist of the following individuals selected by JNL, the
creditors committee and Company management:
Mr. Phillip W. Mork, President of the Company
Mr. C. Scott Bartlett, Jr.
Mr. George A. Poole, Jr.
Mr. Joseph J. Radecki, Jr., Executive Vice President,
Jefferies & Company, Inc.
Mr. F. John Stark, III, Senior Vice President and
Counsel, PPM America, Inc.
Mr. Russell Swansen, President, PPM America, Inc.
Mr. Skip Victor, Senior Vice President and Principal,
Chanin and Company
The Company's plan of reorganization provides for the
exchange of approximately $260 million in debt obligations for
newly issued common stock of the Reorganized Company. JNL will
receive approximately 43% of the outstanding common stock; other
bondholders and Bell Helicopter Textron Inc., a claimant in
litigation against the Company pending in Texas state court, will
receive approximately 55% of the stock, and existing stockholders
will retain in the aggregate approximately 2% of the stock in the
Reorganized Company.
Under the plan of reorganization, the Company's existing
secured debt obligations with three investment funds managed by
Greycliff Partners, Ltd. will be refinanced on advantageous terms
for five years. The Company's existing bank credit facility with
Bank One, Milwaukee N.A. will be superseded by a new $15 million
secured credit facility to be provided by Bank One. The new
facility will provide a revolving line of credit as well as for
the issuance of letters of credit to support the Reorganized
Company's business.
All allowed claims of vendors, customers, suppliers and
employees of the Company will be paid in full under the
reorganization plan. Employees and retired employees will
continue to receive full benefits under existing pension and
welfare plans. In addition, the plan of reorganization does not
affect the existing collective bargaining agreement between the
Company and Local 1343 of the United Steelworkers of America.
All tax and other allowed claims entitled to priority under
bankruptcy law will also be paid in full.
William B. Winter, Chairman of the Company, and Phillip W.
Mork, President and the management representative on the board of
directors of the Reorganized Company, hailed the approval of the
reorganization plan as a milestone for the Company. "We are
ecstatic that the Court has confirmed our reorganization plan and
paved the way for emergence from Chapter 11 in 1994," said Mr.
Mork. "Everyone at the Company is excited about the prospects
for progress and growth in our business worldwide. Our new, lean
capital structure will give us the muscle to compete even more
aggressively for business and maintain our world-class standards
for quality and service."
Mr. Winter expressed the Company's appreciation to all of the
employees, customers and vendors who have supported the Company
during the reorganization process. "Our goal has been to
complete the reorganization process during 1994, both to preserve
valuable tax benefits and to maintain stability and growth in our
business. We could not have achieved that goal without the
support and encouragement of our customers and vendors and the
loyal, tireless efforts of our 1,000 employees around the world.
We now look forward to continuing our 114-year tradition of
manufacturing and servicing the finest surface mining equipment
in the world in 1995 and beyond."
In a related development, Mr. Winter announced his retirement
from the Company effective December 31, 1994. "Now that we have
successfully completed our financial restructuring and are well
positioned for the future, I am happy to retire," said Mr.
Winter, who reached age 65 in July, 1993. "I have been with
Bucyrus-Erie for forty-one wonderful years, and now I am very
comfortable leaving the Company under Phil Mork's capable
leadership. I am sure that in the coming years the Company will
see significant growth and prosperity, and I wish our customers,
suppliers, employees and stockholders the very best."
Bucyrus-Erie Company is a leading manufacturer and worldwide
marketer of mining machinery (principally walking draglines,
electric mining shovels and blast hole drills).
