Free Reply Brief - District Court of Delaware - Delaware

Case 1 :04-cv-01543-SLR Document 18-2 Filed 05/06/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
ONCO Investment Company, et al., Joimly Administered under
Case No.: 04-10558 (DDS)
Debtors.
MW Post Portfolio Fund Ltd., et al., Adversary Proceeding
Appellants,
_ Case N o.: 04-54122 (DDS)
- against -
Norwest Bank Minnesota, National Civil Action No.: 04-1543 (SLR) — Lead
Association (n/k/a Wells Fargo Bank, MN,
National Association), et al.
Appellees. SUPPLEMENTAL AFFH)AVIT OF
ROCHELLE F. WALK
STATE OF OHIO )
) SS.:
COUNTY OF CUYAHOGA )
Rochelle F. Walk, being duly sworn, deposes and says as follows:
1. I am Vice President, General Counsel and Secretary of the Oglebay
Norton Company, one of the reorganized debtors ("Reorganized Debtors") herein. I submit
this affidavit in further support of defendant-appellees’ motion to dismiss consolidated appeals
and in response to plaintiffs’ reply brief to the motion to dismiss the appeals. I have personal
knowledge of the facts set forth herein and in my original affidavit, submitted in support of
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defendant-appellees’ motion to dismiss consolidated appeals, sworn to on the 24th day of
February 2005 (the "Original Walk Affidavit").
2. In the Original Walk Affidavit, I described several transactions that the
Reorganized Debtors engaged in as part of the implementation of the Plan.1 I understand that,
in their answering brief to the motion to dismiss, plaintiffs have speculated as to whether all the
New Common Stock was distributed to the holders of Class 7 Claims (the Old Senior
Subordinated Claims).
3. The Plan required that, on the Effective Date, the holders of Class 7
Claims (the Old Senior Subordinated Notes Claims) would receive their Pro Rata share of
2,928,571 shares of New Common Stock. (Plan §HI.C.2). To avoid all doubt on the subject
(and as I attested to in the Original Walk Affidavit), on or about the Effective Date of the Plan,
the Debtors effected a complete distribution — through the Depository Trust Company — of
2,928,571 shares of New Common Stock (CUSIP #677007—20—5) to the holders of Old Senior
Subordinated Notes Claims in exchange for the Old Senior Subordinated Notes (CUSIP
#677007-BU-9), which were thereupon cancelled. Thus, contrary to plaintiffs' speculation, I
am informed by DTC that all of the New Common Stock has been distributed by DTC. No
New Common Stock is being held by the Reorganized Debtors or DTC for future distribution
1 Capitalized terms that are not otherwise defined herein shall have the meanings ascribed to such
tlezggg faéfgglgvit in support of defendant—appellees’ motion to dismiss consolidated appeals,
2
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to the holders of Old Senior Subordinated Note Claims.
[CQ;
Rochelle F. Walk
Swgxg to before me this
ff day of May, 2005
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