Document Page 1 of 6 JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 David G. Heiman (admitted pro hac vice) Carl E. Black (admitted pro hac vice) Thomas A. Wilson (admitted pro hac vice) Attorneys for the Reorganized Debtors HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-8200 Facsimile: (804) 788-8218 Tyler P. Brown (VSB No. 28072) J.R. Smith (VSB No. 41913) Henry P. (Toby) Long, III (VSB No. 75134) Justin F. Paget (VSB No. 77949) IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION In re: Alpha Natural Resources, Inc., et al., Reorganized Debtors. Chapter 11 Case No. 15-33896 (KRH) (Jointly Administered) Matras, et al., v. Appellants, Alpha Natural Resources, Inc., et al., Case No. 3:16-cv-00581-JAG Hon. John A. Gibney, Jr. Appellees. APPELLEES' AMENDED COUNTER-STATEMENT OF ISSUE PRESENTED ON APPEAL AND COUNTER-DESIGNATION OF THE RECORD Alpha Natural Resources, Inc. and certain of its direct and indirect subsidiaries, as reorganized debtors (collectively, as applicable, the "Debtors" or the "Reorganized Debtors") in the above-captioned cases under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") hereby submit their amended counter-statement of the issue to be presented on appeal and counter-designation of items to be included in the record on appeal NAI-1501657612v5-1-
Document Page 2 of 6 (the "Amended Counter-Designation") pursuant to Rule 8009 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). 1 I. COUNTER-STATEMENT OF ISSUE PRESENTED ON APPEAL Whether the Bankruptcy Court was authorized to order the release of certain rabbi trust assets in connection with its order granting the Debtors' motion for authority to terminate certain deferred compensation plans, in accordance with the terms of the underlying plans and trust agreement. II. COUNTER-DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD The Reorganized Debtors counter-designate the following items from Case No. 15-33896 (KRH) for inclusion in the record on appeal. 2 Such counter-designation of pleadings and matters of record includes all exhibits attached or referred to in such pleadings or matters of record. 13 August 3, 2015 33 August 3, 2015 Motion of Debtors for Interim and Final Orders Authorizing Them to: (A) Pay Prepetition Employee Compensation and Business Expenses; (B) Pay and Honor Employee Medical and Other Benefits; (C) Make Employee Payroll Deductions and Pay Payroll Taxes; (D) Continue Employee Wage and Benefits Programs; and (E) Pay All Costs and Expenses Incident to Any of the Foregoing Notice of Chapter 11 Filing and of Hearing on First Day Motions 1 2 This Amended Counter-Designation amends and supersedes the Appellees' Counter-Statement of Issue Presented on Appeal and Counter-Designation of the Record (Docket No. 3219). The Reorganized Debtors are filing this Amended Counter-Designation out of an abundance of caution to designate into the appellate record, to the extent not otherwise designated by the Court pursuant to Bankruptcy Rule 8009(e)(2)(B), the Memorandum Opinion re: Order (A) Approving Termination of Supplemental Benefit Plans, (B) Directing Return of Trust Funds to the Estates, (C) Rejecting Trust Agreements and (D) Granting Certain (Docket No. 3221), which was entered by the Court on the date hereof. The counter-designated items include all exhibits, appendices and other attachments thereto. The Appellees hereby redesignate each of the items identified by the Appellants in their designation of record (Bankruptcy Court Docket No. 3121) to include any such exhibits, appendices and other attachments. NAI-1501657612v5-2-
Document Page 3 of 6 48 August 4, 2015 Affidavit of Service 84 August 4, 2015 118 August 5, 2015 Interim Order Authorizing the Debtors to: (A) Pay Prepetition Employee Compensation and Business Expenses; (B) Pay and Honor Employee Medical and Other Benefits; (C) Make Employee Payroll Deductions and Pay Payroll Taxes; (D) Continue Employee Wage and Benefits Programs; and (E) Pay All Costs and Expenses Incident to Any of the Foregoing Interim Order Authorizing the Debtors to: (A) Pay Prepetition Employee Compensation and Business Expenses; (B) Pay and Honor Employee Medical and Other Benefits; (C) Make Employee Payroll Deductions and Pay Payroll Taxes; (D) Continue Employee Wage and Benefits Programs; and (E) Pay All Costs and Expenses Incident to Any of the Foregoing 144 August 11, 2015 Affidavit of Service 145 August 11, 2015 Affidavit of Service 356 392 September 3, 2015 September 9, 2015 Final Order Authorizing the Debtors to: (A) Pay Prepetition Employee Compensation and Business Expenses; (B) Pay and Honor Employee Medical and Other Benefits; (C) Make Employee Payroll Deductions and Pay Payroll Taxes; (D) Continue Employee Wage and Benefits Programs; and (E) Pay all Costs and Expenses Incident to Any of the Foregoing Affidavit of Service 2417 May 13, 2016 Motion of the Debtors for an Order (A) Approving Termination of Supplemental Benefit Plans, (B) Directing Return of Trust Funds to the Estates, (C) Rejecting Trust Agreements and (D) Granting Certain 2418 May 13, 2016 Notice of Motion and Related Hearing 2520 May 25, 2016 Affidavit of Service 2560 May 27, 2016 Objection to Motion of the Debtors for an Order Plans, (B) Directing Return of Trust Funds to the Estate, NAI-1501657612v5-3-
Document Page 4 of 6 2565 May 30, 2016 Reply in Support of Motion of the Debtors for an Order Plans, (B) Directing Return of Trust Funds to the Estates, 2580 May 31, 2016 Supplemental Affidavit of Service 2585 June 1, 2016 Transcript of May 31, 2016 Hearing 2587 June 1, 2016 2593 May 31, 2016 2629 June 9, 2016 2651 June 13, 2016 Affidavit of Service 2652 June 13, 2016 Affidavit of Service Order (A) Approving Termination of Supplemental Benefit Plans, (B) Directing Return of Trust Funds to the Estates, (C) Rejecting Trust Agreements and (D) Granting Certain Receipt of Exhibits 1 & 2 from Daniel Merrett on Behalf of the Debtors Motion to Reconsider Order (A) Approving Termination of Supplemental Benefit Plans, (B) Directing Return of Trust Funds to the Estates, (C) Rejecting Trust Agreements and (D) Granting Certain 2765 June 24, 2016 Supplemental Affidavit of Service 2771 June 24, 2016 Debtors' Objection to Motion to Reconsider Order Plans, (B) Directing Return of Trust Funds to the Estates, 2834 June 29, 2016 Transcript of June 28, 2016 Hearing 2844 June 29, 2016 2904 July 1, 2016 Affidavit of Service 3006 July 8, 2016 Notice of Appeal Order Denying Motion to Reconsider Order Plans, (B) Directing Return of Trust Funds to the Estates, 3029 July 12, 2016 Clerk's Certificate of Mailing 3030 July 12, 2016 Transmittal of Notice of Appeal and, if Applicable, Motion for Leave to Appeal to District Court NAI-1501657612v5-4-
Document Page 5 of 6 3038 July 12, 2016 3058 July 14, 2016 3108 July 21, 2016 3152 July 26, 2016 3221 August 5, 2016 Order Confirming Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as Modified Transmittal of Notice of Appeal and, if Applicable, Motion for Leave to Appeal to District Court Amended Transmittal of Notice of Appeal and, if Applicable, Motion for Leave to Appeal to District Court Notice of (I) Entry of Order Confirming the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession and (II) Occurrence of the Effective Date of the Plan Memorandum Opinion re: Order (A) Approving Termination of Supplemental Benefit Plans, (B) Directing Return of Trust Funds to the Estates, (C) Rejecting Trust Agreements and (D) Granting Certain NAI-1501657612v5-5-
Document Page 6 of 6 Dated: August 5, 2016 Richmond, Virginia Respectfully submitted, /s/ Henry P. (Toby) Long, III Tyler P. Brown (VSB No. 28072) J.R. Smith (VSB No. 41913) Henry P. (Toby) Long, III (VSB No. 75134) Justin F. Paget (VSB No. 77979) HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-8200 Facsimile: (804) 788-8218 David G. Heiman (admitted pro hac vice) Carl E. Black (admitted pro hac vice) Thomas A. Wilson (admitted pro hac vice) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 ATTORNEYS FOR THE REORGANIZED DEBTORS NAI-1501657612v5-6-