mew Doc 1215 Filed 08/22/17 Entered 08/22/17 21:07:52 Main Document Pg 1 of 46

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1 Pg 1 of 46 Presentment Date and Time: September 13, 2017 at 11:00 a.m. (Prevailing Eastern Time) Objection Deadline: September 6, 2017 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time (Only if Objection Filed): To be determined by the Bankruptcy Court WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Garrett A. Fail Attorneys for Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : Chapter 11 : WESTINGHOUSE ELECTRIC COMPANY : Case No (MEW) LLC, et al., : : Debtors. 1 : (Jointly Administered) : x 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania

2 Pg 2 of 46 NOTICE OF PRESENTMENT OF MOTION OF DEBTORS PURSUANT TO 11 U.S.C. 363(b) FOR ORDER AUTHORIZING TERMINATION OF DEFERRED COMPENSATION PLAN PLEASE TAKE NOTICE that on September 13, 2017 at 11:00 a.m. (Prevailing Eastern Time), the undersigned will present the annexed Motion of Debtors Pursuant to 11 U.S.C. 363(b) for Order Authorizing Termination of Deferred Compensation Plan dated August 22, 2017 (the Motion ), to the Honorable Michael E. Wiles, United States Bankruptcy Judge, in Room 617 of the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, New York (the Court ). PLEASE TAKE FURTHER NOTICE that any responses or objections ( Objections ) to the Motion shall be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules for the Southern District of New York, shall be filed with the Bankruptcy Court (i) by attorneys practicing in the Bankruptcy Court, including attorneys admitted pro hac vice, electronically in accordance with General Order M- 399 (which can be found at and (ii) by all other parties in interest, on a CD-ROM, in text-searchable portable document format (PDF) (with a hard copy delivered directly to Chambers), in accordance with the customary practices of the Bankruptcy Court and General Order M-399, to the extent applicable, and shall be served in accordance with General Order M-399 and the Order Pursuant to 11 U.S.C. 105(a) and Fed. R. Bankr. P. 1015(c), 2002(m), and 9007 Implementing Certain Notice and Case Management Procedures entered on April 4, 2017 [ECF No. 101] so as to be so filed and received no later than September 6, 2017 at 4:00 p.m. (Prevailing Eastern Time) (the Objection Deadline ). 2

3 Pg 3 of 46 PLEASE TAKE FURTHER NOTICE that if no Objections to the Motion are received by the Objection Deadline, the Bankruptcy Court may enter an order granting the relief sought without further notice. PLEASE TAKE FURTHER NOTICE if one or more Objections are received by the Objection Deadline, the Bankruptcy Court may enter an order granting the relief requested in the Motion, except for relief that impacts any party with a pending Objection, and that if a written Objection is timely filed and served, a hearing (the Hearing ) will be held to consider such Objection(s) before the Honorable Michael E. Wiles in the Bankruptcy Court, on a date and time to be determined by the Bankruptcy Court. PLEASE TAKE FURTHER NOTICE that objecting parties are required to attend the Hearing, and failure to appear may result in relief being granted upon default. Dated: August 22, 2017 New York, New York /s/ Robert J. Lemons Gary T. Holtzer Robert J. Lemons Garrett A. Fail WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Attorneys for Debtors and Debtors in Possession 3

4 Presentment Date and Time: September 13, 2017 at 11:00 a.m. (Prevailing Eastern Time) Pg 4 of 46 Objection Deadline: September 6, 2017 at 4:00 p.m. (Prevailing Eastern Time) Hearing Date and Time (Only if Objection Filed): To be determined by the Bankruptcy Court WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Gary T. Holtzer Robert J. Lemons Garrett A. Fail Attorneys for Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No (MEW) : Debtors. 1 : (Jointly Administered) x MOTION OF DEBTORS PURSUANT TO 11 U.S.C. 363(b) FOR ORDER AUTHORIZING TERMINATION OF DEFERRED COMPENSATION PLAN TO THE HONORABLE MICHAEL E. WILES, UNITED STATES BANKRUPTCY JUDGE: Westinghouse Electric Company LLC ( WEC U.S. LLC ) and certain debtor affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania

5 Pg 5 of 46 (collectively, the Debtors ), respectfully represent as follows in support of this motion (the Motion ): Preliminary Statement 1. Since filing their chapter 11 cases, the Debtors have worked tirelessly to maximize the value of the Debtors estates for the benefit of all stakeholders by stabilizing their business, shoring up the risks to the enterprise, reducing expenditures, and increasing efficiencies as part of their broader objective of reorganizing around their profitable, core businesses. 2. The Debtors are still in the early stages of implementing the restructuring and the reorganization of their businesses. The success or failure of the restructuring process will largely turn on the performance and productivity of the Debtors employees. Accordingly, the Debtors must address any circumstances that might affect the motivation of certain key employees to ensure they continue working at full capacity for the duration of the Debtors chapter 11 cases. In service of this objective, the Debtors have identified the Westinghouse Electric Company Deferred Compensation Plan, the Debtors nonqualified deferred compensation plan (the Plan ), as a potential negative drag on the morale and motivation of certain key employees. Participants in the Plan (collectively, the Participants ) realize certain tax efficiencies by electing to defer payment of a portion of their compensation until after retirement or some other date in the future. One of the key components of the Plan is the contribution to the Plan of a portion of base salary income over $300,000. The Debtors estimate that deferrals of the Participants postpetition salaries for calendar year 2017, for which Participants made irrevocable elections prior to the beginning of the year will begin occurring in the ordinary course towards the end of September 2017 as certain base salaries reach this threshold. However, because the Plan is an unfunded, unsecured obligation of the Debtors and because the Plan s assets are held in a trust whose assets are available to WEC U.S. LLC s 5

6 Pg 6 of 46 unsecured creditors, Participants would never receive their 2017 Plan contributions even though those contributions would be made from postpetition wages. Thus, rather than providing an income-enhancing tax benefit, any contributions or deferrals made on account of the Plan will inequitably lower the Participants base compensation. Terminating the future contributions, however, may subject Participants to adverse tax consequences absent compliance with Section 409A of the Internal Revenue Code of 1986, as amended, (the IRC ) and Treasury Regulations thereunder (the statute and regulations, Section 409A ), unless the Plan is terminated in accordance with Section 409A. Section 409A permits termination and liquidation of a nonqualified deferred compensation plan with the approval of a bankruptcy court. In such case, payment of plan amounts may be made without adverse tax consequences to the extent such distributions would qualify as administrative claims under section 503(b)(1)(A) of the Bankruptcy Code 3. Accordingly, the Debtors are seeking an order of this Court (a) authorizing the Debtors to terminate the Plan retroactive to August 31, 2017 and (b) deeming as an administrative claim under section 503(b) of the Bankruptcy Code any portion of a Participant s regular postpetition income, earned on account of postpetition services provided for the benefit of the Debtors, that has been deferred or contributed to the Plan, or that has been elected for contribution to the Plan for the remainder of calendar year and going forward. Background 4. On March 29, 2017 (the Petition Date ), each Debtor commenced a voluntary case under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the Southern District of New York (the Court ). 2 No portion of the Participants postpetition income has been deferred or contributed to the Plan thus far in 2017, but the Debtors seek this relief out of an abundance of caution to ensure compliance with section 409(A). 6

7 Pg 7 of 46 The Debtors are authorized to continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these chapter 11 cases. 5. The Debtors chapter 11 cases are being jointly administered for procedural purposes only pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). 6. On April 7, 2017, the United States Trustee for Region 2 appointed the Official Committee of Unsecured Creditors pursuant to section 1102 of the Bankruptcy Code. 7. Additional information regarding the Debtors businesses, capital structure, and the circumstances leading to the commencement of these chapter 11 cases is set forth in the Declaration of Lisa J. Donahue Pursuant to Rule of the Local Bankruptcy Rules for the Southern District of New York, sworn to and filed on the Petition Date. Jurisdiction 8. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before the Court pursuant to 28 U.S.C and Relief Requested 9. Pursuant to section 363(b)(1) of the Bankruptcy Code and Rule 6004 of the Bankruptcy Rules, the Debtors respectfully request entry of an order authorizing the Debtors to (a) terminate the Plan retroactive to August 31, 2017 and (b) deem as an administrative claim under section 503(b) of the Bankruptcy Code any portion of a Participant s regular postpetition income, earned on account of postpetition services provided for the benefit of the Debtors, that has been deferred or contributed to the Plan. 7

8 Pg 8 of A proposed form of order granting the relief requested herein is annexed hereto as Exhibit A (the Proposed Order ). The Plan 11. On September 1, 2014, WEC U.S. LLC established a deferred compensation plan for the benefit of the Participants. A copy of the Plan is annexed hereto as Exhibit B. Under the terms of the Plan, Participants may defer a portion of their salaries, and the payment of income tax on such compensation, until a later date. Thirty-four of the Debtors current and former employees are Participants in, or beneficiaries of, the Plan. Deferred amounts are notionally invested in designated investment funds. The aggregate Plan balance of all Participants deferred compensation as of July 19, 2017 was approximately $8,716,000. The Plan allows Participants to irrevocably elect to defer specified portions of their compensation for a calendar year, provided that such elections are made in accordance with the Plan: 70% of all base salary compensation above $300,000 earned during the calendar year; 50% of annual incentive bonuses; and 100% of cash bonuses awarded under the Debtors prepetition long-term incentive plan. 12. Additionally, certain Participants negotiated employer contributions under their individual employment agreements that would, when earned, be deferred under the Plan according to a prescribed schedule set forth in the relevant employment agreements. 13. Under the express terms of the Plan, WEC U.S. LLC may terminate the Plan at any time in its sole discretion: The Company reserves the right to terminate the Plan, in whole or in part, at any time; provided however, that any such termination 8

9 Pg 9 of 46 Plan 10.1 shall not reduce the accrued benefit of any Participant. Termination of the Plan shall not be a distribution event under the Plan unless otherwise permitted under Section 409A and Treas. Reg A-3(G)(4)(ix). 14. Additionally, the Plan is an unfunded, unsecured obligation of Debtors and provides that any payments made pursuant to the Plan must be made from assets available to the Debtors general unsecured creditors: Plan This Plan is an unfunded and unsecured plan maintained primarily to provide deferred compensation benefits for a select group of management or highly-compensated employees within the meaning of Sections 201, 301, and 401 of ERISA, and therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Participants and Beneficiaries shall have no rights or interest in any specific asset or property of the Employer. If any assets are set aside to provide for benefits payable under the Plan, such assets shall be subject to the claims of the Company's general unsecured creditors, and no person other than the Company shall, by virtue of the provisions of the Plan or any other agreement, have any interest in such assets. 15. Plan Participants make their compensation deferral elections on or before the December 31st immediately preceding the calendar year in which such compensation will be earned. Deferral elections are irrevocable once made. Plan 3.2. The Trust Agreement 16. The Plan provides for the creation of a trust to support the future payment of Participants deferred compensation claims under the Plan. Plan To assist WEC U.S. LLC in funding the liabilities accrued under the Plan, on March 15, 2015, WEC U.S. LLC established an irrevocable, grantor trust (often called a rabbi trust ) (the Trust ) pursuant to that certain trust agreement dated March 16, 2015, by and between WEC U.S. LLC and Wilmington Trust, N.A. as Trustee (the Trust Agreement ). As of June 30, 2017, the cash 9

10 Pg 10 of 46 value of the Participants pro rata share of the Trust was $4,508, Notwithstanding the establishment of the Trust, for the Plan to achieve the desired tax deferral of contributions under the IRC, the Participants interests in the Trust are expressly subject to the claims of creditors in the event of WEC U.S. LLC s insolvency. Participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the [Plan] and the Trust shall be mere unsecured contractual rights of Participants and their beneficiaries against Company. Any assets held by the Trust will be subject to the claims of Company s general creditors under federal and state law in the event of Insolvency. Trust Agreement 1(d). Insolvency under the Trust Agreement is defined as circumstances where (i) [WEC U.S. LLC] is unable to pay its debts as they become due or (ii) [WEC U.S. LLC] is subject to a pending proceeding as a Debtor under the United States Bankruptcy Code. Trust Agreement 3(a). 17. As a consequence of the Debtors chapter 11 filings, any portion of a Participants compensation that is deferred under the Plan will only be paid to such Participants on a pari passu basis with the Debtors other general unsecured creditors. In other words, Participants will not directly recover any amounts from the Trust under the Plan but instead will only be entitled to their pro rata share of distributions to the Debtors general unsecured creditors. Thus, rather than providing a tax-efficient benefit to the Debtors employees that maximizes the value of their compensation, the continued effectiveness of the Plan would cause Participants to lose a portion of their wages that would be contributed to the Plan. 18. As of the Petition Date, the Debtors do not believe any portion of any Participants postpetition base salary has been deferred pursuant to the Plan. The Debtors project 3 Certain of the Trust assets are held for the benefit of participants in the Debtors Executive Retirement Plan. 10

11 Pg 11 of 46 that deferrals of Participants postpetition salaries will begin taking place in the near-term as the aggregate of certain Participants salary dispersals for the calendar year approaches $300,000. The Participants are key members of the Debtors workforce and an effective reduction in their compensation would be inequitable and would reduce employee morale and unnecessarily impair the Debtors restructuring efforts. Accordingly, the Debtors seek to terminate the Plan effective as of August 31, Basis for Relief The Debtors Should Be Authorized to Terminate the Plan Pursuant to Section 363(b) of the Bankruptcy Code 19. Section 363(b)(1) of the Bankruptcy Code provides, in relevant part, that a debtor after notice and a hearing, may use, sell or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b)(1). For a Court to approve a debtor s use of assets outside the ordinary course of business pursuant to section 363(b), the debtor must demonstrate a sound business purpose for the intended use. See Institutional Creditors of Cont l Air Lines, Inc. v. Cont l Air Lines, Inc. (In re Cont l Air Lines, Inc.), 780 F.2d 1223, 1226 (5th Cir. 1986) ( [I]mplicit in 363(b) is the further requirement of justifying the proposed transaction. That is, for the debtor-in-possession or trustee to satisfy its fiduciary duty to the debtor, creditors and equity holders, there must be some articulated business justification for using, selling, or leasing the property outside the ordinary course of business. ) (citing In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983)); see also In re ASARCO, L.L.C., 650 F.3d 593, 601 (5th Cir. 2011) ( The business judgment standard in section 363 is flexible and encourages discretion. ); In re Montgomery Ward Holding Corp., 242 B.R. 147, 153 (D. Del. 4 The Debtors are not seeking authorization at this time to pay any amounts already deferred under the Plan prior to the Petition Date, nor to terminate the Trust or disburse or release any assets from the Trust. 11

12 Pg 12 of ) (use of assets outside the ordinary course of business permitted if sound business purpose justifies such actions ); Comm. of Asbestos-Related Litigants v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr. S.D.N.Y. 1986) ( Where the debtor articulates a reasonable basis for its business decisions (as distinct from a decision made arbitrarily or capriciously), courts will generally not entertain objections to the debtor s conduct. ). 20. Once a debtor articulates a valid business justification under section 363, a presumption arises that the debtor s decision was made on an informed basis, in good faith, and in the honest belief that the action was in the best interest of the company. See In re Integrated Resources, Inc., 147 B.R. 650, 656 (Bankr. S.D.N.Y. 1992) (quoting Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985)); see also In re Life Partners Holdings, Inc., 2015 WL , *7 (W.D. Tex. Nov. 9, 2015). The business judgment rule has vitality in chapter 11 cases and shields a debtor s management from judicial second-guessing. See In re Integrated Res., Inc., 147 B.R. at 656; In re Johns-Manville Corp., 60 B.R. at ( [T]he Code favors the continued operation of a business by a debtor and a presumption of reasonableness attaches to a debtor s management decisions. ). Thus, if a debtor s actions satisfy the business judgment rule, then the transaction in question should be approved under section 363(b)(1) of the Bankruptcy Code. Moreover, courts have held that business judgment is the appropriate standard to apply when approving the termination of a deferred compensation plan. In re Farmland Indus., Inc., 294 B.R. 903, 919 (Bankr. W.D. Mo. 2003); see also, In re Delphi Corp., No (RDD), 2009 WL (Bankr. S.D.N.Y. Mar. 10, 2009) (applying the business judgment standard under section 363 of the Bankruptcy Code to the decision to terminate certain employee benefit plans). 12

13 Pg 13 of Terminating the Plan is a sound exercise of the Debtors business judgment and is in the best interests of the Debtors estates and stakeholders. Any portion of a Participant s compensation deferred pursuant to the Plan will only be recoverable by Participants as a general unsecured claim against the Debtors estates. See, e.g., In re Silicon Graphics, Inc., 363 B.R. 690, 700 (Bankr. S.D.N.Y. 2007); In re The Colonial BancGroup, Inc., 436 B.R. 695, 712 (Bankr. M.D. Ala. 2010). Thus, if the Debtors do not terminate the Plan, rather than providing a compensation-enhancing benefit to Participants, the Plan would inequitably lower Participants effective compensation. Putting Participants compensation at risk would negatively impact the morale of key members of the Debtors workforce and have a negative effect on the administration of the Debtors chapter 11 cases, to the detriment of all stakeholders. Moreover, the express terms of the Plan permit the Debtors to terminate the Plan at any time. 22. Accordingly, the Debtors submit that the relief requested with respect to terminating the Plan is a valid exercise of the Debtors business judgment, and that terminating the Plan is in the best interests of the Debtors, their estates, and all parties in interest in these chapter 11 cases. Termination of the Plan May Have Adverse Tax Consequences Absent Bankruptcy Court Approval 23. Because the Plan provides a form of deferred compensation, it is subject to the requirements of Section 409A, which imposes a tax penalty (in addition to ordinary income tax) on participants in nonqualified deferred compensation plans, including plans that are terminated and liquidated proximate to a downturn in the financial health of the employer, unless such terminations are made pursuant to bankruptcy court order. Treas. Reg A- 3(j)(4)(ix)(C)(1). Nonqualified deferred compensation plans, can, however, be terminated with approval of a bankruptcy court. Treas. Reg A-3(j)(4)(ix)(A). Additionally, 13

14 Pg 14 of 46 distributions upon plan termination can be made with respect to a deferred compensation plan subject to IRC Section 409A, without additional penalties, if such payments are authorized by a bankruptcy court pursuant to 11 U.S.C. 503(b)(1)(A). 24. As discussed above, if the Debtors do not terminate the Plan in the nearterm, a portion of certain of the Participants postpetition salaries will be contributed to the Plan, inequitably reducing such Participants postpetition base compensation, negatively impacting the Debtors objective of consummating a value-maximizing restructuring for the benefit of all stakeholders. Accordingly, the Court should authorize termination of the Plan. 25. Although the Debtors do not believe that any Plan deferrals of postpetition salaries have occurred since the Petition Date, out of an abundance of caution and to ensure compliance with IRC section 409(A), the Debtors request authority to pay to the Participants, as an administrative expense under section 503(b)(1)(A), any postpetition deferrals or contributions of the Participants salaries, earned on account of postpetition services provided to the Debtors, including any amounts that have been elected for deferral for calendar year 2017 but that have not yet been contributed under the Plan. Section 503(b)(1)(A) of the Bankruptcy Code expressly provides that the actual, necessary costs and expenses of preserving the estate include wages, salaries, or commissions for services rendered after the commencement of the case U.S.C. 503(b)(1)(A). See also, In re Continental Airlines, Inc., 148 B.R. 207, 212 (D. Del. 1992) (wage claims which are paid to induce employees to continue to work for an employer who has filed a petition for Chapter 11 are necessary for the preservation of the estate and thus are an administrative priority). Request for Bankruptcy Rule 6004 Waivers 26. To implement the relief requested in the Motion, the Debtors request a waiver of the notice requirements under Bankruptcy Rule 6004(a) and any stay of the order 14

15 Pg 15 of 46 granting the relief requested herein pursuant to Bankruptcy Rule 6004(h). Any delay in terminating the Plan may result in deferrals of the Participants postpetition base salaries, unjustly lowering their base compensation levels. Notice 27. Notice of this Motion will be provided in accordance with the Order Pursuant to 11 U.S.C. 105(a) and Fed. R. Bankr. P. 1015(c), 2002(m), and 9007 Implementing Certain Notice and Case Management Procedures [ECF No. 101]. The Debtors submit that, in view of the facts and circumstances, such notice is sufficient and no other or further notice need be provided. 28. No previous request for the relief sought herein has been made by the Debtors to this or any other court. 15

16 Pg 16 of 46 WHEREFORE the Debtors respectfully request entry of the Proposed Order granting the relief requested herein and such other and further relief as the Court may deem just and appropriate. Dated: August 22, 2017 New York, New York /s/ Robert J. Lemons Gary T. Holtzer Robert J. Lemons Garrett A. Fail WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York Telephone: (212) Facsimile: (212) Attorneys for Debtors and Debtors in Possession 16

17 Pg 17 of 46 Exhibit A Proposed Order

18 Pg 18 of 46 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re : : Chapter 11 WESTINGHOUSE ELECTRIC : COMPANY LLC, et al., : Case No (MEW) : Debtors. 1 : (Jointly Administered) x ORDER AUTHORIZING DEBTORS TO TERMINATE DEFERRED COMPENSATION PLAN PURSUANT TO 11 U.S.C. 363(b) Upon the motion, dated August 22, 2017 (the Motion ), 2 of Westinghouse Electric Company LLC, its subsidiaries, and certain affiliates in the above-captioned chapter 11 cases, as debtors and debtors in possession (collectively, the Debtors ), for authority to terminate the Plan pursuant to section 363(b) of the Bankruptcy Code, as more fully set forth in the Motion; and the Court having jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference M-431, dated January 31, 2012 (Preska, C.J.); and consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before the Court pursuant to 28 U.S.C and 1409; and due and proper notice of the 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), PaR Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (N/A), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961). The Debtors principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.

19 Pg 19 of 46 Motion having been provided; and such notice having been adequate and appropriate under the circumstances, and it appearing that no other or further notice need be provided; and the Court having reviewed the Motion; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and it appearing that the relief requested in the Motion is in the best interests of the Debtors, their estates, creditors, and all parties in interest and represents an appropriate exercise of the Debtors reasonable business judgment; and upon all of the proceedings had before the Court and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion is granted as set forth herein. 2. Pursuant to section 363(b) of the Bankruptcy Code, the Debtors are, in the exercise of their reasonable business judgment, authorized, but not directed, to terminate the Plan, effective as of August 31, Nothing herein shall prejudice the rights of the Debtors to seek additional or further relief from the Court with respect to the Plan. 4. Amounts, if any, of Participants postpetition base salary contributed or otherwise deferred pursuant to the Plan in connection with postpetition services provided to the Debtors by the Participants constitute administrative expenses of the Debtors and shall be paid to Participants pursuant to Section 503(b)(1)(A) of the Bankruptcy Code. 5. Notwithstanding anything to the contrary contained herein, any payment to be made or relief or authorization granted hereunder shall be not be inconsistent with, and shall be subject to, the requirements imposed on the Debtors under the DIP Orders, the budget 2

20 Pg 20 of 46 approved thereunder (the Budget ), and the loan and security documents evidencing the DIP Facility (the DIP Loan Documents ). 6. To the extent there is any conflict between this Order and the DIP Orders, the DIP Loan Documents, or the Budget, the terms of the DIP Order, DIP Loan Documents, or the Budget, as applicable, shall govern. 7. Nothing contained in the Motion or this Order, nor any payment made pursuant to the authority granted by this Order is intended to be or shall be construed as (i) an admission as to the validity of any claim or lien against the Debtors, (ii) a waiver of the Debtors or any appropriate party in interest s rights to dispute the amount of, basis for, or validity of any claim against the Debtors, (iii) a waiver of any claims or causes of action which may exist against any creditor or interest holder, or (iv) an approval, assumption, adoption, or rejection of any agreement, contract, lease, program, or policy between the Debtors and any third party under section 365 of the Bankruptcy Code. 8. Notwithstanding entry of this Order, nothing herein shall create, nor is intended to create, any rights in favor of or enhance the status of any claim held by any party. 9. Under the circumstances of these chapter 11 cases, notice of the Motion is adequate under Bankruptcy Rule 6004(a). 10. Notwithstanding Bankruptcy Rule 6004(h), this Order shall be immediately effective and enforceable upon its entry. 11. The Debtors are authorized to take all action necessary to the relief granted in this Order without further order of this Court. 3

21 Pg 21 of The Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, and/or enforcement of this Order. Dated:, 2017 New York, New York THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE 4

22 Pg 22 of 46 Exhibit B Deferred Compensation Plan

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