If they can pull those funds from D&O insurance, I bet they would if it mean getting the plan passed, and I doubt equity would argue
GPG,
I was just thinking the same thing. Assuming that they put $250 Million on the table from D&O and started negotiating from there... maybe a combination of money from the escrow set aside and some common stock (not too much to anger the commons holders)... maybe take some from the preferred shares' pot a little.
Not to put a damper on the conversation, but the EC would probably raise 3 shades of hell if the D&O option were put on the table, period. They are relying on the D&O remaining funds to some extent as possible windfalls for the litigation trust.
Furthermore, while we don't have enough public information available to ascertain whether a D&O option is available, it is more than likely that the coverage would have to be triggered by a court's judgment, which is something that hasn't happened yet.