Other Notices
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: | Chapter 11 |
PROOF OF CLAIM INFORMATION |
SEA CONTAINERS LTD., et al.,1 Debtors. |
Case No. 06-11156 (KJC) (Jointly Administered) | HOTLINE: +44 20 7805 5217 |
NOTICE OF DEADLINE FOR THE FILING OF EMPLOYEE PROOFS OF CLAIM
(EMPLOYEE BAR DATE IS AUGUST 25, 2008, AT 5:30 P.M., PREVAILING NEW YORK TIME)
TO ALL EMPLOYEES WITH CLAIMS AGAINST ANY OF THE FOLLOWING DEBTOR ENTITIES:
DEBTOR (Other names, if any, used by a Debtor in the last 8 years) |
Address | Case No. | EID No. |
SEA CONTAINERS LTD |
22 Victoria Street P.O. Box HM1179 Hamilton HMEX, Bermuda |
06-11156 | 98-0038412 |
SEA CONTAINERS SERVICES, LTD. |
20 Upper Ground London, UK SE1 9PF |
06-11157 | 98-0509667 |
SEA CONTAINERS CARIBBEAN INC. |
1114 Avenue of the Americas New York, NY 10036 |
06-11155 | 59-1834881 |
On October 15, 2006 (the “Petition Date”), the above-captioned debtors and debtors in possession (the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Court”).
On May 18, 2007, the Court entered an order (the “General Bar Date Order”) establishing July 16, 2007, at 5:30 p.m. (Prevailing New York Time) (the “General Bar Date”), as the general claims bar date for filing proofs of claim in the Debtors’ chapter 11 cases. Pursuant to the General Bar Date Order, the trustees of the Sea Containers 1983 Pension Scheme and the Sea Containers 1990 Pension Scheme (respectively, the “Trustees” and the “Pension Schemes”) each filed claims on behalf of their respective Pension Schemes for amounts that they believe are due to them from the Debtors.
On July 16, 2007, the Court entered an order amending the General Bar Date Order (the “Amended Bar Date Order”), which provided that holders of claims2 for employment related benefits did not have to file a proof of claim by the General Bar Date.3 This included claims that derive directly or indirectly from employment with any of the Debtors or from membership in either the Sea Containers 1983 Pensions Scheme or the Sea Containers 1990 Pensions Scheme. Examples of such claims include claims for wages or salaries, life insurance benefits, or arrears of vacation pay or severance or healthcare benefits, claims for failure to provide promised benefits, or claims for discrimination.4
Although claims for employment related benefits were previously excluded from the General Bar Date, the Debtors have now determined to set a bar date for such claims . Accordingly, on July 9, 2008, the Court entered an order (the “Employee Bar Date Order”) establishing August 25, 2008 (the “Employee Bar Date”), as the last date for any current or former employee of the Debtors or any of their subsidiaries or affiliates (or any heir or dependant of any current or former employee in their capacity as such) (each, an “Employee”) to file proofs of claim in the Debtors’ chapter 11 cases. In other words, if you believe that the Debtors owe you money or are otherwise indebted to you on account of a claim arising out of your employment with the Debtors, and the claim arose before October 15, 2006, you are required to file a proof of claim by August 25, 2008, or you will be barred from asserting your claim against the Debtors.
However, solely with respect to any Employee residing in Great Britain that is subject to the jurisdiction of the Courts of England & Wales, the Employee Bar Date shall apply solely to the following categories of claims: (a) claims set forth under Category 5 of Schedule 6 for the United Kingdom Insolvency Act 1986, which include certain claims for remuneration and holiday remuneration; (b) claims set forth under sections 502(b)(7) and 507(a)(4) of the United States Bankruptcy Code, 11 U.S.C. § § 101, et seq., which include certain claims for damages resulting from termination of an employment contract and wages, salaries, or commissions, including vacation, severance, and sick leave pay; and (c) any other claims for remuneration, wages, salaries, commissions, bonuses, overtime pay, vacation pay, holiday pay, severance, deferred compensation, medical or sick leave pay, health benefits, insurance benefits (including life insurance, group accident insurance, and short- and long-term disability coverage), savings benefits, workers’ compensation benefits, reimbursable expenses, relocation expenses, incentive payments, withholdings, deductions, and benefits or deferred compensation relating to any retirement or pension plan (or scheme) (collectively, the “Employee Claims”).
All Employee Claims must be filed by the Employee Bar Date, except for those claims based solely on amounts which are or may be payable or contingently or prospectively payable by the Debtors or the Pension Schemes as a result of or in connection with current or former participation in either of the Pension Schemes.
If you require additional information regarding the filing of a proof of claim, the Debtors have established a hotline, which you may contact at +44 20 7805 5217 or you may email Lisa Ashe at lashe@AlixPartners.com with specific questions .
A HOLDER OF A POSSIBLE CLAIM AGAINST THE DEBTORS MAY WISH TO CONSULT AN ATTORNEY REGARDING ANY MATTERS COVERED BY THIS NOTICE, SUCH AS WHETHER THE HOLDER SHOULD FILE A PROOF OF CLAIM.
1. GENERAL OVERVIEW
In most bankruptcy cases commenced under the Bankruptcy Code, where assets are available for distribution to creditors, the Bankruptcy Court establishes a deadline for filing claims against a debtor. Such a deadline is referred to as a “bar date”.
The Bankruptcy Code defines “claims” broadly. You may assert a claim for any right to payment from the Debtors that you may have as of the date that the Debtors filed for bankruptcy (October 15, 2006). Claims that are frequently asserted by employees include, but are not limited to, claims for unpaid vacation, unpaid wages, pension benefits, severance, healthcare benefits, discrimination or other employment-related torts. In these cases, if you only have claims against the Debtors related to amounts which are or may be payable or contingently or prospectively payable by the Debtors or the Pension Schemes as a result of or in connection with current or former participation in either of the Pension Schemes, you do not need to file a proof of claim. Any holder of a claim who fails to timely file a proof of claim by the bar date will be barred from asserting his/her claim against the Debtors and will likely not receive payment on account of such claim or be entitled to vote upon a chapter 11 plan of reorganization.
All claims must be filed against the correct Debtor on the correct form or the claim will be barred. In certain instances, it may be appropriate for a particular claim to be filed against more than one Debtor, in which case you should file a separate proof of claim for each Debtor against which you wish to assert a claim.
To avoid having a claim barred, you must assert it even if the amount of such claim is not now fixed, liquidated or certain or did not mature or become fixed, liquidated or certain before the Petition Date. In other words, you must file a claim even if the amount is not yet determinable. Such claims frequently are listed as “unliquidated and/or “contingent” on the proof of claim form.
The Debtors are sending out this Notice to all Employees who may have claims against them. The fact that you have received this Notice and the enclosed proof of claim form does not necessarily mean that you have a claim against the Debtors.
Detailed instructions regarding how to file a claim and who is required to file a claim are provided below.
2. WHAT TO FILE
For your convenience, enclosed with this Notice is a proof of claim form, which identifies on its face the amount, nature and classification of your claim(s), if any, listed in the Debtors’ schedules of assets and liabilities and statements of financial affairs filed in these cases (collectively, the “Schedules”). If the Debtors have not scheduled a claim for you, it does not necessarily mean that you have no claims against the Debtors.
You will receive a different proof of claim form for each claim scheduled in your name by the Debtors. You may utilize the proof of claim form(s) provided by the Debtors to file your claim. Additional proof of claim forms may be obtained at the following websites: http://www.bmcgroup.com/scl or http://www.uscourts.gov/bkforms.
All proof of claim forms must be signed by the claimant. The proof of claim form must be written in English and may be denominated in pounds. You should attach to your completed proof of claim any documents on which the claim is based (or, if such documents are voluminous, attach a summary) or an explanation as to why the documents are not available.
Any Employee asserting claims against more than one Debtor must file a separate proof of claim with respect to each such Debtor. In addition, any Employee filing a proof of claim must identify on its proof of claim form the particular Debtor against which its claim is asserted. The names of all the Debtors, together with their respective case numbers, is listed above. Any claim filed in the jointly administered case or that otherwise fails to identify a specific Debtor and case number shall be deemed as filed only against Debtor Sea Containers Ltd. If more than one Debtor is listed on the form, the proof of claim will be treated as filed only against the first listed Debtor. In certain instances, it may be appropriate for a particular claim to be filed against more than one Debtor. In such instances you should file a separate proof of claim for each Debtor against which you wish to assert a claim.
3. WHO MUST FILE A PROOF OF CLAIM
Unless one of the exceptions described in Section 5 below applies, you MUST file a proof of claim to vote on a chapter 11 plan or to share in distributions from the Debtors’ bankruptcy estates if you have a claim that arose or is deemed to have arisen prior to the Petition Date. Claims based on acts or omissions of the Debtors that occurred before the Petition Date must be filed on or prior to the Employee Bar Date, even if such claims are not now fixed, liquidated or certain or did not mature or become fixed, liquidated or certain before the Petition Date. In other words, you must file a claim even if the amount is not yet determinable.
The following Employees must file proofs of claim on or before the Employee Bar Date:
(a) any Employee whose prepetition claim against a Debtor is not listed in the applicable Debtor’s Schedules;5
(b) any Employee whose prepetition claim against a Debtor is listed as disputed, contingent or unliquidated in the applicable Debtor’s Schedules; and
(c) any Employee who believes that his prepetition claim is improperly classified in the Schedules or is listed in an incorrect amount and who desires to have his claim allowed in a classification or amount other than that identified in the Schedules.
4. WHEN AND WHERE TO FILE
All proofs of claim must be filed so as to be received on or before August 25, 2008, at one of the following addresses:
IF SENT BY MAIL IN THE U.S.: |
IF SENT BY MESSENGER OR OVERNIGHT COURIER IN THE U.S.: |
BMC Group Attn: Sea Containers Claims Agent P.O. Box 949 El Segundo, CA 90245-0949 |
BMC Group Attn: Sea Containers Claims Agent 444 Nash Street El Segundo, CA 90245 |
UK ADDRESS:
BMC Group
31 Southampton Row
4th Floor
Holborn, London WC1 B5HJ
Proofs of claims will be collected, docketed and maintained by the Debtors’ claims agent, BMC Group (“BMC”). If you wish to receive acknowledgement of BMC’s receipt of a proof of claim, you must submit by the Employee Bar Date and concurrently with submitting your original proof of claim (a) a copy of the original proof of claim and (b) a self-addressed, postage prepaid return envelope.
Proofs of claim filed by Employees will be deemed filed only when actually received by BMC on or before the Employee Bar Date. Proofs of claim may not be delivered by facsimile or electronic mail transmission . Any facsimile or electronic mail submissions will not be accepted and will not be deemed filed until a proof of claim is submitted by one of the methods described above.
5. WHO NEED NOT FILE A PROOF OF CLAIM
The Employee Bar Date Order further provides that the following Employees, who otherwise would be subject to the Employee Bar Date, need not file proofs of claim in these cases:
(a) any Employee that already has filed a signed proof of claim against the applicable Debtor(s) with either BMC or the Clerk of the Bankruptcy Court for the District of Delaware in a form substantially similar to Official Bankruptcy Form No. 10. All claims filed in these cases may be viewed, printed or downloaded at no cost by going to www.bmcgroup.com/scl;
(b) any Employee whose claim is listed on the Schedules if: (i) the claim is not scheduled as “disputed,”“contingent,” or “unliquidated”, (ii) such Employee does not dispute the amount, nature and priority of the claim as set forth in the Schedules, and (iii) such Employee agrees that its claim is an obligation only of the specific Debtor against which the claim is listed in the Schedules;
(c) any holder of a claim that previously has been allowed by order of the Court;
(d) any holder of a claim that has been paid in full by any of the Debtors in accordance with the Bankruptcy Code or an order of the Court;
(e) any holder of a claim for which a specific deadline previously has been fixed by the Court; and
(f) any individual participant in either Pension Scheme; provided, however, that any individual participant in the Pension Schemes who wishes to assert an Employee Claim against the Debtors that is not based solely on amounts which are or may be payable or contingently or prospectively payable by the Debtors or the Pension Schemes as a result of or in connection with current or former participation in either of the Pension Schemes, must file a proof of claim on or prior to the Employee Bar Date in respect of each Employee Claim.
6. CONSEQUENCES OF FAILURE TO FILE A PROOF OF CLAIM BY THE EMPLOYEE BAR DATE
ANY EMPLOYEE THAT IS REQUIRED TO FILE A PROOF OF CLAIM IN THESE CHAPTER 11 CASES BUT FAILS TO DO SO IN A TIMELY MANNER (A) SHALL BE FOREVER BARRED, ESTOPPED AND ENJOINED FROM ASSERTING ANY CLAIM IN THESE CHAPTER 11 CASES AGAINST THE DEBTORS THAT SUCH EMPLOYEE HAS THAT (I) IS IN AN AMOUNT THAT EXCEEDS THE AMOUNT, IF ANY, THAT MAY BE SET FORTH IN THE SCHEDULES OR (II) IS OF A DIFFERENT NATURE OR IN A DIFFERENT CLASSIFICATION THAN WHAT MAY BE SET FORTH IN THE SCHEDULES (IN EITHER CASE ANY SUCH CLAIM REFERRED TO AS AN “UNSCHEDULED CLAIM”) AND (B) SHALL NOT BE TREATED AS A CREDITOR WITH RESPECT TO SUCH CLAIM FOR THE PURPOSES OF VOTING UPON, OR RECEIVING DISTRIBUTIONS UNDER ANY PLAN OR PLANS OF REORGANIZATION IN THESE CASES IN RESPECT OF SUCH UNSCHEDULED CLAIM.
7. RESERVATION OF RIGHTS
The Debtors reserve the right to: (a) dispute, or to assert offsets or defenses against, any filed claim or any claim listed or reflected in the Schedules as to nature, amount, liability, priority, classification or otherwise; (b) subsequently designate any scheduled claim as disputed, contingent or unliquidated; and (c) otherwise amend or supplement the Schedules. Nothing contained in this Notice shall preclude the Debtors from objecting to any claim, whether scheduled or filed, on any grounds.
8. ADDITIONAL INFORMATION
Copies of the Debtors’ Schedules, the Employment Bar Date Order and other information regarding the Debtors’ chapter 11 cases are available for inspection free of charge on BMC’s website at http://www.bmcgroup.com/scl. The Schedules and other filings in the Debtors’ chapter 11 cases also are available for a fee at the Court’s website at http://www.deb.uscourts.gov. A login identification and password to the Court’s Public Access to Court Electronic Records (“PACER”) are required to access this information and can be obtained through the PACER Service Center at http://www.pacer.psc.uscourts.gov. Copies of the Schedules and other documents filed in these cases also may be examined between the hours of 9:00 a.m. and 4:30 p.m., Prevailing New York Time, Monday through Friday, at the office of the Clerk of the Bankruptcy Court, United States Bankruptcy Court for the District of Delaware, 8234 Market Street, 3rd Floor, Wilmington, Delaware 19801.
If you require additional information regarding the filing of a proof of claim, you may contact the Debtors at +44 20 7805 5217 or email Lisa Ashe at lashe@AlixPartners.com.
A HOLDER OF A POSSIBLE CLAIM AGAINST THE DEBTORS MAY WISH TO CONSULT AN ATTORNEY REGARDING ANY MATTERS COVERED BY THIS NOTICE, SUCH AS WHETHER THE HOLDER SHOULD FILE A PROOF OF CLAIM.
DATED: July 10, 2008
BY ORDER OF THE COURT
Wilmington, Delaware
KIRKLAND & ELLIS LLP David L. Eaton David A. Agay Sienna R. Singer 200 East Randolph Drive Chicago, Illinois 60601 |
YOUNG CONAWAY STARGATT & TAYLOR, LLP Robert S. Brady Edmon L. Morton Sean T. Greecher The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19801 |
COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION
1 The Debtors are the following entities: Sea Containers Caribbean Inc., Sea Containers Ltd. and Sea Containers Services Ltd.
2 As used in this Notice, the term “claim” means, as to or against any of the Debtors and in accordance with Bankruptcy Code § 101(5): (a) any right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (b) any right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
3 Specifically, the Amended Bar Date Notice provided that any current and former employee of the Debtors or any of their subsidiaries or affiliates or any member of the Sea Containers 1983 Scheme or the Sea Containers 1990 Pension Scheme (including any heir, dependant or other person claiming a beneficial interest with respect to the forgoing) wishing to assert a claim in such capacity need not file a proof of claim by the General Bar Date.
4 On or about July 5, 2007, Robert Mackenzie, CEO of the Debtors, distributed a letter with an attached “Notice to Specifically Identified Individuals In Receipt of Bar Date Notices” informing recipients of such letter that he or she did not have to file any claims by the General Bar Date and that a separate bar date for such claims may be established at a later point.
5 If your claim is scheduled by the Debtors, the attached proof of claim form sets forth: (a) the amount of your claim (if any) as scheduled by the Debtors; (b) the specific Debtor against which the claim is scheduled; (c) whether your claim is scheduled as disputed, contingent or unliquidated; and (d) whether your claim is listed as a secured, unsecured priority or unsecured nonpriority claim. If this information does not appear on the attached proof of claim form, your claim was not scheduled by the Debtors.