and Samantha Rae Bewick (together, the "Petitioners"), as the joint supervisors under the

Transcription

1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: SCHEFENACKER PLC, Debtor in Foreign Proceeding. Chapter 15 Case No (SMB) ORDER, PURSUANT TO 11 U.S.C. 105(a), 1507, 1517, AND 1521, RECOGNIZING COMPANY VOLUNTARY ARRANGEMENT AS EITHER FOREIGN MAIN PROCEEDING OR FOREIGN NONMAIN PROCEEDING, ENFORCING COMPANY VOLUNTARY ARRANGEMENT IN THE UNITED STATES, AND GRANTING OTHER APPROPRIATE RELIEF Upon the verified petition, dated May 15, 2007 (the "Petition"), of Richard Heis and Samantha Rae Bewick (together, the "Petitioners"), as the joint supervisors under the Schefenacker plc ("Schefenacker") company voluntary arrangement as approved on May 2, 2007 (the "CVA"), 1 pursuant to Part I of the UK Insolvency Act 1986 (the "Insolvency Act"), seeking the entry of an order pursuant to sections 105(a), 1507, 1517, 1520, and 1521 of title 11 of the United States Code (as amended, the "Bankruptcy Code") (i) recognizing each of the Petitioners as a "foreign representative" of Schefenacker (within the meaning of section 101(24) of the Bankruptcy Code), (ii) recognizing the proceedings relating to the CVA under the Insolvency Act as a "foreign main proceeding" (within the meaning of section 101(23) of the Bankruptcy Code), (iii) giving effect to and enforcing the CVA in the United States by way of a permanent injunction, and (iv) granting other appropriate relief; and proper notice of the Petition and service of the related summons having been given in accordance with the order of the Court entered in this case approving the form of notice and manner of service thereof (the "Notice Order"), and 1 A copy of the CVA is annexed hereto as Exhibit A and includes Schefenacker's original March 9, 2007 proposal (annexed thereto as Exhibit A1) and the modified proposal dated April 5, 2007 (annexed thereto as Exhibit A2).

2 there being no objections to the Petition that have not been withdrawn, resolved or overruled, the Court finds and concludes as follows: The Petitioners have demonstrated that: a) this Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the "Standing Order of Referral of Cases to Bankruptcy Judges" of the United States District Court for the Southern District of New York (Ward, Acting C.J.), dated July 10, 1984; b) this is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(P); c) venue is proper in this district pursuant to 28 U.S.C. 1410(2) and (3); d) this chapter 15 case was properly commenced by the filing of the Petition pursuant to section 1504 and the Petition meets the requirements of section 1515 of the Bankruptcy Code; e) each of the Petitioners, as joint supervisor under the CVA is a person within the meaning of section 101(41) of the Bankruptcy Code authorized to oversee the implementation of the CVA and, therefore, a "foreign representative" under section 101(24); f) the process leading to the approval of the CVA under the Insolvency Act, which would adjust Schefenacker's debts and is subject to the supervision of the Petitioners and review of the High Court of Justice, Chancery Division, in England (the "English Court"), is a "foreign proceeding" under section 101(23) of the Bankruptcy Code; g) the process leading to the CVA is either a "foreign main proceeding" or a "foreign nonmain proceeding" within the meaning of section 1517(a)(1) of the Bankruptcy Code (and as such terms are defined in section 1502) and the Court makes no finding as to which type 2

3 of foreign proceeding this is and no such finding is required to grant the relief requested by the Petitioners in the Petition; h) the CVA was approved on May 2, 2007 by the requisite majorities of creditors and members in accordance with the Insolvency Act and no challenge has been timely filed that has not been dismissed by the English Court; i) all claims against Schefenacker in respect of any liability covered by the CVA (the "CVA Claims", and any holder of a CVA Claim, a "CVA Creditor") will be dealt with pursuant to the terms of the CVA, including, without limitation, such claims arising on account of Schefenacker's bond indebtedness; j) the requested relief is necessary to permit the expeditious and economical adjustment of Schefenacker's debts and capital structure in accordance with the terms and conditions set forth in the CVA, and is consistent with sections 1507 and 1521 of the Bankruptcy Code; k) absent the requested relief, one or more CVA Creditors may commence or continue the prosecution in the United States of judicial, arbitration, administrative or regulatory actions or proceedings against Schefenacker, its property or property that is involved in the foreign proceeding or any proceeds thereof, and/or seek to obtain or retain the assets of Schefenacker, or proceeds thereof, and, as a result, irreparable injury will befall Schefenacker to the detriment of its creditors, because the efforts of the Petitioners to implement the terms and provisions of the CVA would be hindered and Schefenacker's assets depleted, for which no adequate remedy at law exists; l) granting the relief requested will best assure the just treatment of all Schefenacker's stakeholders and its property, the protection of creditors in the United States 3

4 against prejudice, and the adjustment of Schefenacker's debts and capital structure substantially in accordance with the Bankruptcy Code, consistent with the principles of 11 U.S.C. 1507(b); m) the relief requested will not cause undue hardship or inconvenience Schefenacker's stakeholders and, to the extent that any hardship or inconvenience does result from an order granting the relief requested in the Petition, such hardship or inconvenience is outweighed by the benefits to Schefenacker and its other creditors; n) unless an order giving full force and effect in the United States to the CVA is granted by this Court, a condition precedent to the implementation of the CVA will not be satisfied and Schefenacker's creditors will suffer irreparable harm; and o) enforcement of the CVA in the United States will serve the interests of the public and further the public policy of the United States. NOW, THEREFORE, IT IS HEREBY: ORDERED that, the proceeding relating to the CVA is recognized as either a "foreign main proceeding" or a "foreign nonmain proceeding" within the meaning of sections 1517(b)(1) and (2) of the Bankruptcy Code; and it is further ORDERED that, the CVA is hereby given full force and effect in the United States and is binding on, and enforceable in accordance with its terms against, all persons subject to this Court's jurisdiction; and it is further ORDERED that, upon implementation of this Order and except as expressly provided in the CVA, all persons subject to this Court's jurisdiction are hereby permanently enjoined and restrained from taking any action inconsistent with the CVA; and it is further ORDERED that, to the extent provided in the CVA, all CVA Creditors shall be permanently enjoined and restrained from commencing or continuing any action against the 4

5 Petitioners or their advisors and shall be deemed to have released the Petitioners and their advisors from any and all liability in connection with their acts, omissions or defaults in their preparation, negotiation, and implementation of the CVA or any matter ancillary to the CVA; and it is further ORDERED that, to the extent provided in section 1510 of the Bankruptcy Code, no action taken by the Petitioners or their respective successors, agents, representatives, or their counsel, in preparing, disseminating, or applying for, implementing or otherwise acting in furtherance of the CVA, this Order, or such further orders in this chapter 15 case or any adversary proceeding in connection therewith as this Court may make, shall be deemed to constitute a waiver of the immunity afforded to the Petitioners pursuant to section 1510 of the Bankruptcy Code; and it is further ORDERED that, except as otherwise provided in the CVA, the English Court shall have exclusive jurisdiction to hear and determine any suit, action, claim or proceeding and to settle any dispute in respect of the construction or interpretation of the CVA, or in respect of any action taken or omitted to be taken by any of the Petitioners or Schefenacker in connection with the CVA; and it is further ORDERED that this Court shall retain jurisdiction with respect to the enforcement, amendment or modification of this Order, any dispute concerning the interpretation of any provision of this Order, any requests for any additional relief in this case, and any adversary proceedings in connection therewith properly commenced and within the jurisdiction of this Court; and it is further 5

6 ORDERED that notice of the entry this Order shall be served, including by publication, in accordance with the procedures in the Notice Order on or before June 25, 2007; and it is further ORDERED that service of this Order pursuant to the preceding paragraph shall be good and sufficient service and adequate notice for all purposes; and it is further ORDERED that notwithstanding Fed. R. Bankr. P. 7062, as made applicable by Fed. R. Bankr. P. 1018, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry and, upon such entry, this Order shall become final and appealable; and it is further ORDERED that, except with respect to the matters over which this Court has expressly retained jurisdiction, the above-captioned chapter 15 case is hereby closed, subject to it being reopened pursuant to Bankruptcy Code section 350(a). Dated: New York, New York June 14, 2007 /s/ STUART M. BERNSTEIN Chief United States Bankruptcy Judge 6