EXHIBIT 4.3
EXECUTION COPY
XXXXXXXXX XXXXX CORPORATION
10 1/4% SENIOR NOTES DUE 2004
LOCK-UP AGREEMENT
This Lock-Up Agreement (this "Agreement"), dated as of June 12, 2002, is
entered into by and among Xxxxxxxxx Xxxxx Corporation, an Illinois corporation
(the "Company"), and the undersigned holders of 10 1/4 % Senior Notes due 2004
(each a "Consenting Holder" and collectively, the "Consenting Holders").
WHEREAS, each of the Consenting Holders is a beneficial owner (and/or an
agent, advisor, affiliate, manager or other authorized representative of a
beneficial owner or owners) of the Company's 10 1/4 % Senior Notes due 2004 (the
"Notes") issued under the indenture between the Company and The Bank of New
York, as trustee (the "Indenture");
WHEREAS, the Company and the Consenting Holders have engaged in good-faith
negotiations toward a consensual restructuring of the Company's financial
affairs, including the Notes (the "Restructuring");
WHEREAS, the Company and the Consenting Holders have agreed upon the terms
and conditions of the Restructuring as set forth in the Plan of Reorganization
attached hereto as Exhibit "A" (the "Proposed Plan");
WHEREAS, to implement the Restructuring, the Company intends to commence a
voluntary case under chapter 11 (the "Chapter 11 Case") of title 11 of the
United States Code (the "Bankruptcy Code") and contemporaneously to file in the
Bankruptcy Court a plan of reorganization substantially in the form of the
Proposed Plan (such plan, as modified, unless in violation of Section 9(iii)
hereof, the "Definitive Plan");
WHEREAS, each of the Consenting Holders intends to support a plan of
reorganization substantially in the form of the Proposed Plan and to vote its
claims arising from the Notes (the "Claims") to accept such a plan;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company and
each Consenting Holder severally (and neither jointly nor jointly and severally)
hereby agree as follows:
1. SUPPORT OF PLAN. So long as no Termination Event (as defined below)
shall have occurred (or, if a Termination Event shall have occurred but been
waived in accordance herewith, until such waiver is no longer effective) (the
period from the date hereof until such date being hereinafter referred to as,
the "Lock-Up Period"), each Consenting Holder (i) will take all commercially
reasonable actions to support confirmation of the Definitive Plan, (ii) agrees
that, when solicited after receipt of a disclosure statement approved in the
Chapter 11 Case (the "Disclosure Statement'), it shall timely vote (including,
if necessary, instructing custodial agents to vote) the full amount of its
Claims to accept the Definitive Plan and not revoke or withdraw such vote except
as provided herein, (iii) shall not object to confirmation of
the Definitive Plan or support any such objection by a third party or otherwise
commence any proceeding to oppose or alter the Definitive Plan or any other
reorganization documents containing terms that are consistent with the Proposed
Plan, and (iv) shall not vote for, consent to, support or participate in the
formulation of any other plan of reorganization or liquidation proposed or filed
or to be proposed or filed in any chapter 11 case or chapter 7 case commenced in
respect to the Company, provided that the Company files and is supporting the
Definitive Plan. Nothing contained herein shall limit the ability of any
Consenting Holder to consult with the Company during the Chapter 11 Case or to
appear and be heard at any hearing related to the Chapter 11 Case, so long as
such consultation or appearance is not inconsistent with the Consenting Holder's
obligations hereunder or with the terms of the Definitive Plan.
2. RESTRICTION ON TRANSFER. Each Consenting Holder hereby agrees that,
during the Lock-Up Period, it shall not sell, transfer or assign (i) any of the
Notes or (ii) any Claims, or any option thereon or right of interest therein,
unless the transferee agrees in writing to be bound by all the terms of this
Agreement. The transferee shall execute a counterpart signature page of this
Agreement, which the Consenting Holder shall immediately deliver to the Company,
PROVIDED, HOWEVER, that if the transferee has already executed a signature page
pursuant to this Section 2, the transferee shall be deemed bound by this
Agreement as to any Notes and Claims acquired pursuant to such a transfer and
shall not be required to execute an additional signature page. If, at any time,
a Consenting Holder or other signatory to this Agreement shall have sold,
conveyed, assigned or otherwise transferred all of its interest in the Notes and
the Claims in accordance with this Section 2, such Consenting Holder or
signatory shall be relieved of any obligation hereunder. If such Consenting
Holder or other signatory shall subsequently reacquire any interest in the Notes
or the Claims, such Consenting Holder or signatory shall be deemed bound by this
Agreement.
3. FURTHER ACQUISITION OF SECURITIES. This Agreement shall in no way be
construed to preclude the Consenting Holders from acquiring any other securities
of the Company or claims against the Company whether they be Notes, Claims, or
otherwise; PROVIDED, HOWEVER, that any such additional securities or claims
shall, upon acquisition by a Consenting Holder, automatically become subject to
all the terms of this Agreement. Each Consenting Holder agrees that it will vote
(or cause to be voted) any such additional securities or claims in favor of the
Definitive Plan in accordance with the terms hereof.
4. ACKNOWLEDGMENT. This Agreement is not and shall not be deemed to be a
solicitation for consents to the Definitive Plan. The Company acknowledges and
agrees that (i) the Indenture and all instruments and documents executed in
connection therewith constitute valid and binding agreements of the Company and
(ii) the Company does not possess and will not assert any claim, counterclaim,
setoff or defense of any kind or nature (other than the filing of the Chapter 11
Case), which would in any way reduce or affect the absolute and unconditional
obligation of the Company to pay all of the obligations arising from the Notes.
5. COMPANY AGREEMENTS.
i. The Company hereby agrees (a) to negotiate with the Consenting
Holders in good faith any changes or alterations to the Proposed Plan and,
prior to filing the Definitive Plan, to submit the Definitive Plan to the
Consenting Holders for their
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approval, (b) to use commercially reasonable efforts to commence the
Chapter 11 Case on or prior to June 14, 2002, (c) to use commercially
reasonable efforts to file the Definitive Plan and Disclosure Statement no
later than June 30, 2002, (d) to use commercially reasonable efforts to
obtain an order of the Bankruptcy Court confirming the Definitive Plan no
later than August 31, 2002, and (e) to use commercially reasonable efforts
to consummate the restructuring contemplated by the Definitive Plan as
expeditiously as possible under the Bankruptcy Code and Federal Rules of
Bankruptcy Procedure, but in any event no later than September 30, 2002.
ii. The Company further agrees (a) to consult with the Consenting
Holders prior to taking any significant action in the Chapter 11 Case,
including any action likely (1) to affect the Definitive Plan or (2)
substantially to delay the confirmation or consummation thereof, including,
without limitation, to delay approval of the Disclosure Statement and (b)
to the extent practicable, to provide the Consenting Holders with all
material pleadings, motions, orders, agreements or other documents to be
filed in the Chapter 11 Case with the Bankruptcy Court having jurisdiction
in the Chapter 11 Case.
6. CONSENTING NOTEHOLDER AGREEMENT. Each of the Consenting Noteholders
agrees (i) to support, and not to object to, the assumption by the Debtors of
that certain employment agreement between the Company and Xxx X. Xxxxxxxx dated
June 5, 2002 and (ii) to execute, on or before the Effective Date of the
Definitive Plan, a release substantially in the form of Exhibit B hereto (the
"Consenting Noteholders' Release"), PROVIDED THAT, each specifically named party
released under the Consenting Noteholders' Release shall execute a release
substantially in the form of Exhibit C hereto, and PROVIDED FURTHER that no
release shall be effective until the Effective Date of the Definitive Plan.
7. DISCLOSURE OF INDIVIDUAL HOLDINGS. Unless the Company is required by
applicable law or regulation (including, without limitation, the Bankruptcy Code
and the United States securities laws and any rules or regulations of the
Securities and Exchange Commission) or court order, which law, regulation or
order may require disclosure of the following, the Company may not disclose any
Consenting Holder's individual holdings of Notes without the prior written
consent of the Consenting Holder whose individual holdings are to be disclosed.
The foregoing shall not prohibit the Company from disclosing the approximate
aggregate amount of Notes as a group, whether or not such disclosure is required
by law, regulation or court order.
8. IMPACT OF APPOINTMENT TO CREDITORS' COMMITTEE. Notwithstanding
anything herein to the contrary, in the event that any Consenting Holder is
appointed to and serves on a committee of creditors in the Chapter 11 Case, the
terms of this Agreement shall not be construed so as to limit such Consenting
Holder's exercise in its sole discretion of its fiduciary duties to any person
arising from its serving on that committee of creditors, and any such exercise
in the sole discretion of such Consenting Holder of such fiduciary duties
arising from its serving on that committee of creditors shall not be deemed to
constitute a breach of the terms of this Agreement (but the fact of such service
on such committee shall not otherwise affect the continuing validity or
enforceability of this Agreement). The foregoing shall not modify or limit the
obligations of the Consenting Holders to vote their individual holdings of Notes
and Claims and take any other actions required under this Agreement.
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9. TERMINATION. The obligations of each Consenting Holder hereunder shall
automatically terminate and have no further force and effect upon the fifth day
following the Company's receipt of written notice of such termination following
the occurrence of any one of the following events (each, a "Termination Event"):
i. the Company shall not have commenced the Chapter 11 Case on or
before June 14, 2002, or such later date as the Company and Consenting
Holders holding not less than 66 2/3% of the principal amount of the Notes
(a "Consenting Holder Threshold") have mutually agreed in writing;
ii. the Company shall not have filed the Definitive Plan and
Disclosure Statement by June 30, 2002, or such later date as the Company
and the Consenting Holder Threshold have mutually agreed in writing;
iii. the Company shall file the Definitive Plan with the Bankruptcy
Court without the approval of the Consenting Holder Threshold, or the
Definitive Plan shall have been altered to provide for terms or provisions
materially inconsistent, as determined in the sole reasonable judgment of
the Consenting Holder Threshold, with the approved Definitive Plan;
iv. the Company shall file a plan of reorganization materially
inconsistent, as determined in the sole reasonable judgment of the
Consenting Holder Threshold, with the Proposed Plan or the Definitive Plan;
v. the Bankruptcy Court shall not have confirmed the Definitive
Plan on or before August 31, 2002, or such later date as the Company and
the Consenting Holder Threshold have mutually agreed in writing;
vi. the Definitive Plan shall not have become effective on or before
September 30, 2002, or such later date as the Company and the Consenting
Holder Threshold have mutually agreed in writing;
vii. the Company shall have filed any motion or other pleading, or
otherwise shall have brought any action or proceeding, challenging or
objecting to the Claims of any Consenting Holder or otherwise seeking
recovery from, or injunctive relief against, a Consenting Holder (other
than with respect to any alleged or actual breach of this Agreement);
viii. an examiner with expanded powers or a trustee shall have been
appointed in the Chapter 11 Case, or the Chapter 11 Case shall have been
dismissed or converted to a case under chapter 7 of the Bankruptcy Code;
ix. the Company shall withdraw or revoke the Definitive Plan, or the
Company shall publicly announce its intention not to pursue the Definitive
Plan;
x. the Company shall have materially breached any of its
obligations or failed to satisfy any of the terms and conditions of this
Agreement in any material respect;
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xi. failure to obtain, by June 14, 2002, the signature to this
Lock-Up Agreement by holders of at least 66 2/3% of the outstanding
principal amount of the Notes.
If any Termination Event occurs (and has not been waived in writing) at a
time when permission of the Bankruptcy Court is required for a Consenting Holder
to change or withdraw (or to cause to change or withdraw) its votes to accept
the Definitive Plan, the Company (i) shall not oppose any attempt by a
Consenting Holder to change or withdraw, or to cause to change or withdraw, its
votes at that time and (ii) shall not assert, or support any assertion by a
third party, that any Consenting Holder shall be required to obtain relief from
the automatic stay from the Bankruptcy Court in order for such Consenting Holder
to change or withdraw, or to cause to change or withdraw, its votes at that
time.
10. RESERVATION OF RIGHTS. Except as expressly provided in this Agreement,
nothing herein is intended to, or does, in a any manner waive, limit, impair or
restrict the ability of the Consenting Holders to protect and preserve their
rights, remedies and interests, including, without limitation, the Claims and
any other claims against the Company.
11. REPRESENTATIONS.
i. Each of the Consenting Holders represents that it is the
beneficial owner (and/or agent, advisor, affiliate, manager or other
authorized representative of the beneficial owner or owners) of the
principal amount of Notes listed adjacent to its signature on this
Agreement.
ii. Each signatory to this Agreement represents that it has been
duly authorized or empowered to execute and deliver this Agreement on
behalf of the Company or a Consenting Holder.
12. AMENDMENTS. This Agreement may not be modified, amended or
supplemented, and no Termination Event may be waived, except in a writing signed
by the Company and a Consenting Holder Threshold.
13. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction under applicable law shall, as to such
jurisdiction or under such applicable law, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
14. BINDING OBLIGATION. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and each of their respective successors,
assigns, heirs, executors, administrators, and representatives.
15. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to any
conflict of laws provision that would require the application of the law of any
other jurisdiction.
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16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement.
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EXECUTION COPY
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed and delivered by its duly authorized representative as of the date
first above written.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Executive Officer
NOTEHOLDERS:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
ADDRESS: By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
MASS MUTUAL Title: Second Vice President and
C/O X.X. XXXXXX & Co. Associate General Counsel
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
MASSMUTUAL/XXXXX CBO LLC
By: MassMutual/Xxxxx CBO IM, Inc. as
LLC Manager
ADDRESS: By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Same as above Title: Vice President
MASSMUTUAL HIGH YIELD
PARTNERS II, LLC
By: HYP Management, Inc.
As Managing Member
ADDRESS: By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Same as above Title: Vice President
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SAAR HOLDINGS CDO LIMITED
By: Mass Mutual Life Insurance Co.,
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
PERSEUS CDO I, LIMITED
By: Mass Mutual Life Insurance Co. as
Portfolio Manager
By: /s/ Xxxxxx X. Xxxx
------------------------------------
ADDRESS: Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
Same as above
MASSMUTUAL GLOBAL CBO I,
LIMITED
By: Mass Mutual Life Insurance Co.
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
SIMSBURY CLO, LIMITED
By: Mass Mutual Life Insurance Co.
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
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MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By: Mass Mutual Life Insurance Co.
As Investment Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
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BARCLAYS BANK PLC
ADDRESS: By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Barclays Bank PLC Title: Director
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
-00-
XXXXXXXX XXXXXX XXXXXXX, X.X.X.
ADDRESS: By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
000 X. Xxxxxxxx Xxxxxx Title: Managing Partner
Xxxxxxx, XX 00000
Phone: (000)000-0000
Fax: (000)000-0000
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CREDIT SUISSE ASSET MANAGEMENT, LLC
AS AGENT FOR THE ATTACHED LIST OF THIRTY-THREE
BENEFICIAL OWNERS HOLDING AN AGGREGATE
$12,205,500 FACE AMOUNT XXXXXXXXX XXXXX
10.25% SENIOR NOTES.
ADDRESS: By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
15th Floor Title: Director
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
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CSAM-SYDNEY CSAM HIGH GRADE BOND FUND
POLICEMEN & FIREMEN RETIRE SYSTEM--DETROIT
DIOCESE OF BUFFALO FIXED
EXIDE CORP MASTER RETIREMENT TR--FIXED
FIARFAX CTY URS - FIXED INCOME PORTFOLIO
CREDIT SUISSE ASSET MANAGEMENT INCOME FD
PUBLIC EMPLOYEES RETIREMENT SYS OF IDAHO
MEDIOLANUM TOP MANAGERS GLOBAL HY FUND
NESTLE USA
CITY OF NEW YORK EMP RET SYS HIGH YIELD
CITY OF NEW YORK POLICE PEN FD HIGH YLD C
ITY OF NEW YORK TEACHER'S RETIREMENT SYSTEM
NORTHWESTERN UNIVERSITY
HYP--FONDS (NY)
PE CORPORATION (NY)
CREDIT SUISSE INSTITUTIONAL U.S. CORE
CREDIT SUISSE INSTITUTIONAL HIGH YIELD
NABISCO FOODS
RJR TOBACCO CO--DOMESTIC HIGH YIELD
SAKS FIFTH AVENUE PENSION PLAN
SEI GLOBAL - HIGH YIELD FIXED INCOME
UNITED PARCEL SERVICE RETIREMENT PLAN
MATSUSHITA ELECTRIC EMP. PENSION PLAN
UNIVERSITY OF MARYLAND
NORTHROP GRUMMAN CORP--HY PORTFOLIO
TOYOTA MOTOR EMPLOYEES PENSION
CREDIT SUISSE FIXED INCOME FUND
CS GLOBAL CORE PLUS FIXED INCOME MOTHER
CREDIT SUISSE HIGH YIELD BOND FUND
DIOCESE OF BUFFALO
DIOCESE OF BUFFALO
XXXXXXXXXXXX COUNTY
CS GLOBAL FIXED INCOME FUND
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CSAM HY FOCUS
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Floor Title: Authorized Signatory
Xxx Xxxx, XX 00000
BEACBO-1
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Same as above Title: Authorized Signatory
BEACBO-2
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Same as above Title: Authorized Signatory
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DEBT STRATEGIES FUND, INC.
ADDRESS: By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
800 Scudders Mill Road-Section 1B Title: Authorized Signatory
Xxxxxxxxxx, Xxx Xxxxxx 00000
MASTER U.S. HIGH YIELD TRUST
ADDRESS: By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Same as above Title: Authorized Signatory
XXXXXXX XXXXX VARIABLE SERIES
FUND, INC. - XXXXXXX XXXXX
HIGH CURRENT INCOME FUND
ADDRESS: By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Same as above Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL CURRENCY
BOND SERIES - U.S.
HIGH YIELD PORTFOLIO
ADDRESS: By: Xxxxxxx Xxxxx Investment
Managers, L.P. as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Same as above Title: Authorized Signatory
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XXXXXX XXXX XXXXX XXXXX
XXXXXX HIGH YIELD ADVANTAGE FUND
PUTNAM VARIABLE TRUST--XXXXXX VT
HIGH YIELD TRUST
XXXXXX MASTER INCOME TRUST
XXXXXX PREMIER INCOME TRUST
XXXXXX MASTER INTERMEDIATE
INCOME TRUST
XXXXXX DIVERSIFIED INCOME TRUST
XXXXXX FUNDS TRUST--XXXXXX HIGH
YIELD TRUST II
XXXXXX MANAGED HIGH YIELD TRUST
XXXXXX STRATEGIC INCOME FUND
XXXXXX VARIABLE TRUST--XXXXXX VT
DIVERSIFIED INCOME FUND
TRAVELERS SERIES FUND, INC.--XXXXXX
DIVERSIFIED INCOME PORTFOLIO
ADDRESS: By: Xxxxxx Investment Management, LLC
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX HIGH YIELD MANAGED TRUST
XXXXXX HIGH YIELD FIXED IMCOME
FUND, LLC
ADDRESS: By: Xxxxxx Fiduciary Trust Company
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
STRATEGIC GLOBAL FUND--HIGH YIELD
FIXED INCOME (XXXXXX) FUND
XXXXXX WORLD TRUST II--XXXXXX
YIELD BOND FUND
XXXXX & MCLENNAN COMPANIES, INC.
U.S. RETIREMENT FUND
ADDRESS: By: The Xxxxxx Advisory Company, LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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XXXXXXXX XXXX HUB FUND LTD.
ADDRESS:
By: /s/ Xxxx Xxx
---------------------------------
Name: Xxxx Xxx
c/o Sagamore Hill Capital Title: Managing Director
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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XXXXXXX X
XXXXXX XXXXXX BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re ) Chapter 11
)
XXXXXX MAY HOLDINGS, INC. and )
XXXXXXXXX XXXXX CORPORATION ) Case No. 02-____(____)
)
) Jointly Administered
Debtors. )
DEBTORS' JOINT PLAN OF REORGANIZATION
YOUNG XXXXXXX STARGATT & XXXXXX, LLP WINSTON & XXXXXX
Xxxxxxx X. Xxxxxx (No. 3650) Xxxxxxx X. Xxxxxx
M. Xxxxx Xxxxxx (No. 3614) Xxxxxx X. XxXxxxx
The Brandywine Xxxx. 00 Xxxx Xxxxxx Xxxxx
0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, XX 00000-0000
X.X. Xxx 000 T: 000-000-0000
Xxxxxxxxxx, XX 00000-0000 F: 000-000-0000
T: 302-571-6600
F: 000-000-0000
Co-Counsel for the Debtors and Debtors in Possession
Dated: June 12, 2002
EXHIBIT A
Xxxxxx May Holdings, Inc. ("HOLDINGS") and Xxxxxxxxx Xxxxx Corporation
("XXXXXXXXX"), the above-captioned debtors and debtors-in-possession, hereby
propose the following Joint Plan of Reorganization pursuant to section 1121 of
the Bankruptcy Code:
ARTICLE 1
DEFINITIONS
As used in this Plan, the following terms shall have the respective
meanings specified below:
1.1 "ADMINISTRATIVE CLAIM" shall mean a Claim under section 503(b)
of the Bankruptcy Code that is entitled to priority under section 507(a)(1) of
the Bankruptcy Code, for costs or expenses of administration of the Chapter 11
Cases including, without limitation, any actual and necessary expenses of
operating the business of the Debtors or preserving the Estates, and any and all
fees and expenses of Professionals to the extent allowed by the Bankruptcy Court
under sections 330, 331, or 503 of the Bankruptcy Code.
1.2 "ALLOWED CLAIM" or "ALLOWED [ ] CLAIM" shall mean: (a) any
Claim, proof of which was filed with this Court on or before the date designated
by the Bankruptcy Court as the last date(s) for filing proofs of claim with
respect to such Claim, or which has been or hereafter is scheduled by the
Debtors as liquidated in amount and not disputed or contingent and which, in
either case, is a Claim as to which no objection to the allowance thereof has
been filed within the applicable period of limitation (if any) for objection to
Claims fixed by the Court, or as to which any objection has been determined by
an order or judgment of the Court (allowing such Claim in whole or in part) that
is no longer subject to appeal or certiorari proceedings, and as to which no
appeal or certiorari proceeding is pending, or (b) a Claim that is allowed (i)
in any contract, instrument, or other agreement entered into and approved in
connection with the Plan, (ii) in a Final Order or (iii) pursuant to the terms
of the Plan. In accordance with 11 U.S.C. Section 502(d), no Claim held by any
party that is subject to a Cause of Action shall be an Allowed Claim or Claims
until such time as the avoidable transfer that is the subject of such Cause of
Action is returned or a Final Order has been entered (x) approving the
compromise and settlement of the Cause of Action or (y) determining that no
avoidable transfer exists.
1.3 "XXXXXXXXX (CANADA)" shall mean Xxxxxxxxx Xxxxx (Canada)
Corporation, guarantor of the New Subordinated Notes.
1.4 "AVOIDANCE ACTIONS" shall mean causes of action under sections
544, 545, 547, 548, 549, and 550 of the Bankruptcy Code.
1.5 "BALLOT" shall mean the form or forms that will be distributed
along with the Disclosure Statement to holders of Allowed Claims in classes that
are Impaired under the Plan and entitled to vote, which the holders of Impaired
Claims may use to vote to accept or reject the Plan.
1.6 "BANKRUPTCY CODE" shall mean the Bankruptcy Reform Act of 1978,
11 U.S.C. Secions 101-1330, as now in effect or hereafter amended to the extent
such amendment is applicable to the Chapter 11 Cases.
1.7 "BANKRUPTCY COURT" shall mean the United States Bankruptcy Court
for the District of Delaware or such other court as may hereafter be granted
primary jurisdiction over the Chapter 11 Cases.
1.8 "BANKRUPTCY RULES" shall mean the Federal Rules of Bankruptcy
Procedure effective August 1, 1996 in accordance with the provisions of 28
U.S.C. Section 2075, and the local rules of the Bankruptcy Court, as now in
effect or hereafter amended.
1.9 "BAR DATE" shall mean the date, if any, designated by the
Bankruptcy Court as the last date for filing proofs of Claim or Interest against
the Debtors.
1.10 "BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or "legal holiday" as such term is defined in Bankruptcy Rule 9006(a).
1.11 "CASH" shall mean cash and cash equivalents, including, but not
limited to, wire transfers, checks and other readily marketable direct
obligations of the United States of America and certificates of deposit issued
by banks.
1.12 "CAUSES OF ACTION" shall mean all claims and causes of action
now owned or hereafter acquired by the Debtors, whether arising under any
contract or under the Bankruptcy Code, or other federal or state law, including,
without limitation, causes of action under sections 542, 544, 545, 547, 548,
549, 550, 551, and/or 553 or other sections of the Bankruptcy Code.
1.13 "CHAPTER 11 CASES" shall mean the above-captioned Chapter 11
Cases pending for the Debtors.
1.14 "CLAIM" shall mean a claim as defined in section 101 of the
Bankruptcy Code, or any portion thereof.
1.15 "CLASS" shall mean a category of Claims or Interests which are
substantially similar in nature to each other, as classified pursuant to the
Plan.
1.16 "COMMITTEE" shall mean any statutory committee appointed in
these Cases pursuant to section 1102 of the Bankruptcy Code.
1.17 "CONFIRMATION" shall mean the entry of the Confirmation Order on
the docket of the Bankruptcy Court.
1.18 "CONFIRMATION DATE" shall mean the date of entry of the
Confirmation Order on the docket of the Bankruptcy Court.
1.19 "CONFIRMATION ORDER" shall mean the order of the Bankruptcy
Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, as
same may thereafter be modified by the Bankruptcy Court.
1.20 "CONSENTING NOTEHOLDER THRESHOLD" means Senior Secured
Noteholders holding not less than 66 2/3% in aggregate principal amount of the
Senior Secured Notes.
1.21 "CONVENIENCE CLASS CLAIMS" shall mean General Unsecured Claims
(i) in the amount of $5,000 or less or (ii) which the holder of such Claim
irrevocably elects on the Ballot to reduce to $5,000.
1.22 "CREDITOR" shall mean any Person or Entity having a Claim
against either of the Debtors, including without limitation a Claim that arose
on or before the Petition Date or a Claim against the Estates of any kind
specified in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code.
2
1.23 "DEBTORS" shall mean Xxxxxxxxx Xxxxx Corporation and Xxxxxx May
Holdings, Inc.
1.24 "DEBTORS-IN-POSSESSION" shall mean the Debtors in the capacity,
and with the status and rights, conferred by sections 1107 and 1108 of the
Bankruptcy Code.
1.25 "DIP AGENT" shall mean Foothill Capital Corporation, as
administrative agent for the DIP Lenders under the DIP Credit Agreement, and any
successor thereto.
1.26 "DIP CREDIT AGREEMENT" shall mean that certain Post-Petition
Loan and Security Agreement, dated as of June _, 2002 (as amended) by and among
Xxxxxxxxx Xxxxx Corporation, as Borrower, Holdings and Xxxxxxxxx (Canada) as
Guarantors, the DIP Agent, and the DIP Lenders.
1.27 "DIP FACILITY CLAIMS" shall mean all Claims of the DIP Lenders
arising from or under the DIP Credit Agreement and the other Post-Petition Loan
Documents (as defined therein), including Claims for fees and expenses of the
Agent (as defined therein), including reasonable fees and expenses of its
professionals.
1.28 "DIP LENDERS" shall mean the Lenders under the DIP Credit
Agreement.
1.29 "DISCLOSURE STATEMENT" shall mean the disclosure statement
respecting the Plan, as approved by the Bankruptcy Court as containing adequate
information in accordance with section 1125 of the Bankruptcy Code, all exhibits
and annexes thereto and any amendments or modifications thereof.
1.30 "DISPUTED CLAIM RESERVE" shall mean a reserve of Cash, New
Subordinated Notes or New Common Stock for the relevant Class, established
herein for, among other things, the payment or other satisfaction of Disputed
Claims that are Allowed after the Effective Date.
1.31 "DISPUTED CLAIM" or "DISPUTED [ ] CLAIM" shall mean any
Claim (i) as to which an objection has been interposed as of the Effective Date
or any later deadline fixed by the Bankruptcy Court and (ii) which has not been
allowed or disallowed pursuant to a Final Order.
1.32 "EFFECTIVE DATE" shall mean the date designated by the Debtors
in a notice filed with the Bankruptcy Court, which is at least ten Business Days
and not more than 60 days after the date on which each of the conditions set
forth in Section 9.1 of the Plan have been satisfied or waived (if waivable).
1.33 "ENTITY" shall have the meaning set forth in section 101 of the
Bankruptcy Code.
1.34 "ESTATES" shall mean the Debtors' bankruptcy estates created in
the chapter 11 cases pursuant to section 541 of the Bankruptcy Code.
1.35 "EXCHANGE AGENT" shall mean a bank, trust company or other
Entity appointed by Reorganized Xxxxxxxxx to act as the exchange agent for the
holders of Class 3 Claims and Class 5B Claims.
1.36 "EXIT FACILITY" shall mean the post confirmation financing
facility to be entered into on the Effective Date by Reorganized Xxxxxxxxx and
the lenders providing such financing, in form and substance satisfactory to the
Consenting Noteholder Threshold.
3
1.37 "EXIT FACILITY COMMITMENT LETTER" shall mean the commitment
letter for the Exit Facility.
1.38 "FEE CLAIM" shall mean a claim under sections 328, 330(a), 503
or 1103 of the Bankruptcy Code for the compensation of a Professional or other
Entity for services rendered or expenses incurred in these Chapter 11 Cases.
1.39 "FILE", "FILED" or "FILING" shall mean file, filed or filing
with the Bankruptcy Court.
1.40 "FINAL ORDER" shall mean an order entered by the Bankruptcy
Court or any other court exercising jurisdiction over the subject matter and the
parties, as to which (i) no appeal, certiorari proceeding or other review or
rehearing has been requested or is still pending, and (ii) the time for filing a
notice of appeal or petition for certiorari or further review or rehearing has
expired.
1.41 "GENERAL UNSECURED CLAIM" shall mean any Claim against the
Debtors, other than an Administrative Claim, Priority Tax Claim, Priority Claim,
DIP Facility Claim, Prepetition Lender Claim, Senior Secured Note Claim, or
Miscellaneous Secured Claim.
1.42 "IMPAIRED" shall have the meaning set forth in section 1124 of
the Bankruptcy Code.
1.43 "INDEMNIFICATION OBLIGATIONS" shall mean the obligation of any
of the Debtors to indemnify, reimburse or provide contribution (i) to any
present or former officer, director or employee, or any present or former
professionals, advisors and other agents of the Debtors, including, without
limitation, accountants, auditors, financial consultants, underwriters and
attorneys, whether pursuant to charter, bylaw, contract or statute with respect
to a post-Petition Date occurrence, and (ii) to any present or former officer or
employee of the Debtors whether pursuant to charter, bylaw, contract or statute
with respect to a pre-Petition Date occurrence, provided that the aggregate
amount of Indemnification Obligations payable by Reorganized Xxxxxxxxx pursuant
to clause (ii) shall not exceed $250,000.
1.44 "INDENTURE" shall mean that certain indenture dated July 2, 1997
(as amended, restated or otherwise modified) under which the Senior Secured
Notes were issued.
1.45 "INDENTURE TRUSTEE" shall mean The Bank of New York or any
successor serving as indenture trustee under the Indenture.
1.46 "INTERCOMPANY CLAIMS" shall mean any and all pre- and
post-petition Claims of either Debtor against the other Debtor.
1.47 "INTEREST" shall mean, as of immediately prior to the Effective
Date, any capital stock or other ownership interest in any of the Debtors and
any option, warrant, or right to purchase, sell, or subscribe for an ownership
interest in, or other equity security of, any of the Debtors, including the Old
Common Stock and the Old Preferred Stock and any and all redemption, conversion,
exchange, voting, participation or dividend rights or liquidation preferences
relating thereto.
1.48 "LIENS" shall mean valid and enforceable liens, mortgages,
security interests, pledges, charges, encumbrances, or other legally cognizable
security devices of any kind.
1.49 "MISCELLANEOUS SECURED CLAIMS" shall mean any and all Secured
Claims other than the Prepetition Lender Claims, the Senior Secured Note Claims,
and any DIP Facility Claims.
4
1.50 "NEW COMMON STOCK" shall mean the common stock of Reorganized
Xxxxxxxxx ($____ par value), having one vote per share, without preemptive
rights or cumulative voting rights.
1.51 "NEW SUBORDINATED NOTES" shall mean the secured subordinated
notes issued by Reorganized Xxxxxxxxx immediately after the Effective Date and
guaranteed by Xxxxxxxxx (Canada), in form and substance satisfactory to the
Consenting Noteholder Threshold.
1.52 "NEW SUBORDINATED NOTES INDENTURE" shall mean the indenture
under which the New Subordinated Notes are issued, in form and substance
satisfactory to the Consenting Noteholder Threshold.
1.53 "OLD COMMON STOCK" shall mean the common stock of any of the
Debtors outstanding on the Effective Date, together with any options, warrants,
or rights to purchase, sell or subscribe for an ownership interest in, or other
security of, any of the Debtors, including all rights under that certain
Securities Purchase Agreement dated as of October 30, 1991 among Xxxxxxxxx,
Holdings and the "Purchasers" party thereto, as amended prior to the date
hereof, and any and all redemption, conversion, exchange, voting, participation
or dividend rights or liquidation preferences relating thereto.
1.54 "OLD JUNIOR PREFERRED STOCK" shall mean the junior Class A and
Class B PIK preferred stock of Holdings outstanding on the Effective Date,
together with any options, warrants, or rights to purchase, sell or subscribe
for an ownership interest in, or other security of, any of the Debtors,
including all rights under that certain Securities Purchase Agreement dated as
of October 30, 1991 among Xxxxxxxxx, Holdings and the "Purchasers" party
thereto, as amended prior to the date hereof, and any and all redemption,
conversion, exchange, voting, participation or dividend rights or liquidation
preferences relating thereto.
1.55 "OLD SENIOR PREFERRED STOCK" shall mean the senior preferred
stock of Holdings outstanding on the Effective Date, together with any options,
warrants, or rights to purchase, sell or subscribe for an ownership interest in,
or other security of, any of the Debtors, including any and all redemption,
conversion, exchange, voting, participation or dividend rights or liquidation
preferences relating thereto.
1.56 "PERSON" shall mean a natural person, or any legal entity or
organization including, without limitation, any corporation, partnership
(general or limited), limited liability company, business trust, unincorporated
organization or association, joint stock company, trust, association,
governmental body (or any agency, instrumentality or political subdivision
thereof), or any other form of legal entity.
1.57 "PETITION DATE" shall mean June 6, 2002, the date upon which the
Debtors filed their petitions under chapter 11 of the Bankruptcy Code.
1.58 "PLAN" shall mean this Joint Plan of Reorganization, all
exhibits hereto, and any amendments or modifications hereof.
1.59 "POST-CONFIRMATION DEBTORS" shall mean the Debtors in their
post-Confirmation Order status.
1.60 "PREPETITION CREDIT AGREEMENT" shall mean that certain revolving
credit agreement entered into on June 28, 2001 by and between the Debtors and
Sweet Factory as borrowers and The CIT Group/Business Credit, Inc. as agent and
the lenders party thereto (as amended, restated, or otherwise modified).
5
1.61 "PRIORITY CLAIM" shall mean any Claim against the Debtors other
than an Administrative Claim or Priority Tax Claim entitled to priority in
payment under section 507(a) of the Bankruptcy Code. With respect to the Claims
of employees or former employees, such Claims shall constitute Priority Claims,
only to the extent permissible under sections 507(a)(3) and (a)(4) of the
Bankruptcy Code or prior order of the Bankruptcy Court.
1.62 "PRIORITY TAX CLAIM" shall mean any Claim for taxes against the
Debtors, including without limitation any interest and penalties due thereon,
entitled to priority in payment pursuant to section 507(a)(8) of the Bankruptcy
Code.
1.63 "PROFESSIONALS" shall mean those Persons (i) employed pursuant
to an order of the Bankruptcy Court in accordance with sections 327 and 1103 of
the Bankruptcy Code and to be compensated for services rendered prior to the
Effective Date, pursuant to sections 327, 328, 329, 330 and 331 of the
Bankruptcy Code, or (ii) for which compensation and reimbursement has been
allowed by the Bankruptcy Court in a Final Order issued pursuant to section
503(b)(4) of the Bankruptcy Code.
1.64 "PROPERTY" means all property of the Estates of any nature
whatsoever, real or personal, tangible or intangible, previously or now owned by
the Debtors, or acquired by the Debtors' estate, as defined in section 541 of
the Bankruptcy Code.
1.65 "PRO RATA" means, as of any certain date, with respect to any
Allowed Claim in any Class, the proportion that such Allowed Claim bears to the
aggregate amount of all Claims, including Disputed Claims, in such Class.
1.66 "REGISTRATION RIGHTS AGREEMENT" shall mean a registration rights
agreement in form and substance satisfactory to the Consenting Noteholder
Threshold.
1.67 "REORGANIZED XXXXXXXXX" shall mean the corporation resulting
from the merger of Xxxxxxxxx with and into Newco, a Delaware corporation.
1.68 "REORGANIZED XXXXXXXXX BYLAWS" shall have the meaning specified
in Section 6.2.2 of the Plan.
1.69 "REORGANIZED XXXXXXXXX CERTIFICATE OF INCORPORATION" shall have
the meaning specified in Section 6.2.2 of the Plan.
1.70 "SCHEDULES" shall mean the Debtors' Schedules of Assets and
Liabilities filed with the Bankruptcy Court pursuant to Bankruptcy Rule 1007 as
they may be amended from time to time.
1.71 "SECURED CLAIM" means all or that portion of a debt existing on
the Petition Date, as finally allowed and approved by the Bankruptcy Court, to
the extent that such debt is not greater than the value of the assets of the
Debtors that the Bankruptcy Court finds are valid security for such debt, in
accordance with section 506(a) of the Bankruptcy Code.
1.72 "SENIOR SECURED NOTE CLAIM" shall mean the Claim of a holder of
the Senior Secured Notes.
1.73 "SENIOR SECURED NOTEHOLDERS" shall mean the holders of the
Senior Secured Notes.
6
1.74 "SENIOR SECURED NOTES" shall mean the 10 1/4% senior secured
notes due 2004 issued by Xxxxxxxxx Xxxxx Corporation.
1.75 "SHAREHOLDER AGREEMENT" shall mean that certain agreement
governing the rights, duties and obligations of Reorganized Xxxxxxxxx, to be
dated as of the Effective Date, executed and delivered by Reorganized Xxxxxxxxx
and to which all holders of New Common Stock shall be deemed to be parties.
1.76 "SWEET FACTORY" shall mean Sweet Factory, Inc.
1.77 "UNIMPAIRED" shall mean any Claim that is not Impaired within
the meaning of section 1124 of the Bankruptcy Code.
1.78 "VOTING DEADLINE" means the deadline established by Order of the
Bankruptcy Court for receipt of Ballots voting to accept or reject the Plan.
1.79 Unless otherwise specified, all section, article, schedule or
exhibit references in the Plan are to the respective Section in, Article of,
Schedule to, or Exhibit to, the Plan. The words "herein," "hereof," "hereto,"
"hereunder" and other words of similar import refer to the Plan as a whole and
not to any particular section, subsection or clause contained in the Plan.
Whenever the context requires, such terms shall include the plural as well as
the singular number, the masculine gender shall include the feminine and the
feminine gender shall include the masculine.
1.80 All terms not expressly defined herein shall have the respective
meanings given such terms in section 101 of the Bankruptcy Code or as otherwise
defined in applicable provisions of the Bankruptcy Code.
1.81 Unless otherwise specified herein, any reference to an Entity as
a holder of a Claim includes that Entity's successors, assigns and affiliates.
1.82 The rules of construction set forth in section 102 of the
Bankruptcy Code will apply.
1.83 In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
ARTICLE 2
PROVISIONS FOR PAYMENT OF ALLOWED
ADMINISTRATIVE AND PRIORITY TAX CLAIMS AND OTHER UNCLASSIFIED CLAIMS
2.1 Administrative Claims, Priority Tax Claims, and DIP Facility
Claims are not classified in this Plan. The treatment of and consideration to be
received by holders of Allowed Administrative Claims, Allowed Priority Tax
Claims and DIP Facility Claims pursuant to this Article 2 of the Plan shall be
in full and complete satisfaction, settlement, release and discharge of such
Claims.
2.2 TREATMENT OF ADMINISTRATIVE CLAIMS. Except to the extent the
holder of an Allowed Administrative Claim agrees otherwise, each holder of an
Allowed Administrative Claim shall be paid in respect of such Allowed Claim (a)
the full amount thereof, without interest, in Cash, on the tenth (10th) Business
Day following the later of (i) the Effective Date, and (ii) the date on which
such
7
Claim becomes an Allowed Claim, (b) according to the ordinary business terms
agreed by, and in the ordinary course of business of, the Debtors, or (c) upon
other agreed terms.
2.3 TREATMENT OF PRIORITY TAX CLAIMS. Each holder of an Allowed
Priority Tax Claim shall receive, in respect of such Allowed Claim, at the
option of Reorganized Xxxxxxxxx, either (a) the full amount thereof, without
post-petition interest or penalty, in Cash, as soon as practicable after the
tenth (10th) Business Day following the later of (i) the Effective Date, and
(ii) the date on which such Claim becomes an Allowed Claim or paid upon other
agreed terms, or (b) a promissory note payable by Reorganized Xxxxxxxxx in a
principal amount equal to the amount of such Allowed Priority Tax Claim on which
interest shall accrue from and after the Effective Date at the rate of 6% or
such higher or lower rate as is determined by the Bankruptcy Court to be
appropriate under section 1129(a)(9)(C) of the Bankruptcy Code and shall be paid
semi-annually in arrears; the principal amount of the promissory note shall be
paid in full on a date or dates six (6) years after the date of assessment of
such Allowed Priority Tax Claim.
2.4 DIP FACILITY CLAIMS. Allowed DIP Facility Claims against the
Debtors shall be paid: (a) on the Effective Date in Cash in an amount equal to
the Allowed amount of such Claims; or (b) on such other terms as may be mutually
agreed upon among the holders of the DIP Facility Claims and the Debtors.
2.5 BAR DATE FOR ADMINISTRATIVE CLAIMS. Unless otherwise ordered by
the Bankruptcy Court, requests for payment of Administrative Claims, including
all applications for final allowance of compensation and reimbursement of
expenses of Professionals incurred through the Effective Date, must be filed and
served on the Debtors, no later than forty-five (45) days after the Effective
Date. Any Person that is required to file and serve a request for payment of an
Administrative Claim and fails to timely file and serve such request, shall be
forever barred, estopped and enjoined from asserting such Claim or participating
in distributions under the Plan on account thereof. Objections to a Fee Claim
must be filed and served on the Debtors and their counsel, and the requesting
party and its counsel (if any) by the later of (1) 75 days after the Effective
Date or (2) 30 days after the filing of the applicable request for payment of
the Fee Claim.
ARTICLE 3
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Administrative Claims, Priority Tax Claims, and DIP Facility
Claims are unclassified. For purposes of this Plan, all other Claims and
Interests are classified as follows:
3.2 Class 1 Claims shall consist of all Priority Claims.
3.3 Class 2 Claims shall consist of all Miscellaneous Secured
Claims.
3.4 Class 3 Claims shall consist of all Secured Claims of Senior
Secured Noteholders.
3.5 Class 4 Claims shall consist of all Convenience Class Claims.
3.6 Class 5A Claims shall consist of all General Unsecured Claims
other than Convenience Class Claims and General Unsecured Claims of Senior
Secured Noteholders.
8
3.7 Class 5B Claims shall consist of all General Unsecured Claims of
Senior Secured Noteholders and of any Class 5A Claimant who elects treatment
under Class 5B.
3.8 Class 6 Claims shall consist of all Intercompany Claims.
3.9 Class 7 Interests shall consist of all Old Senior Preferred
Stock Interests in the Debtors.
3.10 Class 8 Interests shall consist of all Old Junior Preferred
Stock Interests in the Debtors.
3.11 Class 9 Interests shall consist of all Old Common Stock
Interests in all Debtors.
ARTICLE 4
TREATMENT OF CLAIMS AND INTERESTS
4.1 The treatment of and consideration to be received by holders of
Allowed Claims and Interests pursuant to this Article 4 of the Plan shall be in
full and complete satisfaction, settlement, release and discharge of such Claims
and Interests. The Debtors' obligations in respect of such Claims and Interests
shall be satisfied in accordance with the terms of this Plan.
4.2 TREATMENT OF CLASS 1 CLAIMS - PRIORITY CLAIMS. Class 1 Claims
are Unimpaired. The legal, contractual and equitable rights of each Allowed
Class 1 Claim shall be left unaltered. Payment in full in Cash shall be made to
the holders of Allowed Class 1 Claims (a) as soon as practicable after the tenth
(10th) Business Day following the later of (i) the Effective Date, and (ii) the
date on which such Claim becomes an Allowed Claim, (b) upon other agreed terms
or (c) in the case of employee benefits not yet payable, in accordance with the
Debtors' existing employee benefits policies. Each holder of a Claim in this
Class is conclusively presumed to have accepted the Plan and is not entitled to
vote on the Plan.
4.3 TREATMENT OF CLASS 2 CLAIMS - MISCELLANEOUS SECURED CLAIMS.
Class 2 Miscellaneous Secured Claims are Unimpaired. To the extent there are any
Claims in this class, each such Claim shall be deemed to be a separate subclass.
To the extent there are any Allowed Class 2 Claims, at the option of the
Debtors, either (i) the Claim shall be reinstated and left Unimpaired in the
manner described in section 1124 of the Bankruptcy Code, (ii) the holder of such
Claim shall receive Cash in an amount equal to such Miscellaneous Secured Claim,
including any interest on such Miscellaneous Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, if any, on the Effective Date
or as soon thereafter as is practicable, (iii) the holder of such Claim shall
receive or retain the collateral securing such Claim and any interest on such
Miscellaneous Secured Claim required to be paid pursuant to section 506(b) of
the Bankruptcy Code, if any, on the Effective Date or as soon thereafter as is
practicable, or (iv) the holder of such Claim shall receive such other treatment
as may be agreed upon in writing between the holder and the Debtors. Each holder
of a Claim in this Class, if any, is conclusively presumed to have accepted the
Plan and is not entitled to vote on the Plan.
4.4 TREATMENT OF CLASS 3 CLAIMS - SECURED CLAIMS OF SENIOR SECURED
NOTEHOLDERS. Class 3 Claims are Impaired. Class 3 Claims shall be Allowed Claims
in an aggregate amount not to exceed $50,000,000. Each holder of an Allowed
Class 3 Claim shall receive its Pro Rata share of 100% of the New Subordinated
Notes on the Effective Date or as soon thereafter as practicable. The holders of
Class 3 Claims are entitled to vote on the Plan.
9
4.5 TREATMENT OF CLASS 4 CLAIMS - CONVENIENCE CLASS OF GENERAL
UNSECURED CLAIMS. Class 4 Claims are Impaired. Each holder of an Allowed Class 4
Claim shall receive Cash in an amount equal to eighty (80) % of such holder's
Allowed Claim on the Effective Date or as soon thereafter as is practicable. The
holders of Class 4 Claims are entitled to vote on the Plan.
4.6 TREATMENT OF CLASS 5A CLAIMS - GENERAL UNSECURED CLAIMS. Class
5A Claims are Impaired. Each holder of a Class 5A Claim shall receive its Pro
Rata share of $1,200,000 in Cash, in an amount not to exceed 30% of such
holder's Allowed Claim or such holder may elect on the Ballot the treatment
provided to holders of Class 5B Claims. Payments in Cash to holders of Allowed
Class 5A Claims will be made on the Effective Date or as soon thereafter as
practicable. The holders of Class 5A Claims are entitled to vote on the Plan.
4.7 TREATMENT OF CLASS 5B CLAIMS - GENERAL UNSECURED CLAIMS OF
SENIOR SECURED NOTEHOLDERS AND CLASS 5A CLAIMANTS WHO HAVE ELECTED CLASS 5B
TREATMENT. Class 5B Claims are Impaired. Each holder of a Class 5B Claim shall
receive, on account of its Allowed Claim, its Pro Rata share of 100% of the New
Common Stock of Xxxxxxxxx issued on the Effective Date or as soon thereafter as
practicable. The Senior Secured Noteholders shall have Allowed Class 5B Claims
in the aggregate amount of at least [$136 million], consisting of at least [$120
million] in principal and at least [$16 million] in interest, fees, and other
charges. The holders of Class 5B Claims are entitled to vote on the Plan.
4.8 TREATMENT OF CLASS 6 CLAIMS - INTERCOMPANY CLAIMS. Class 6
Intercompany Claims are Impaired. The holders of Class 6 Intercompany Claims
shall receive no distribution on account of such Claims. Accordingly, the
holders of Class 6 Intercompany Claims are deemed to reject the Plan and are not
entitled to vote on the Plan in accordance with section 1126(g) of the
Bankruptcy Code.
4.9 TREATMENT OF CLASS 7 SENIOR PREFERRED STOCK INTERESTS. Class 7
Senior Preferred Stock Interests are Impaired. The holders of Class 7 Senior
Preferred Stock Interests shall receive no distribution. On the Effective Date,
all Class 7 Senior Preferred Stock Interests shall be deemed canceled, null and
void and of no force and effect. Accordingly, the holders of Class 7 Senior
Preferred Stock Interests are deemed to reject the Plan and are not entitled to
vote on the Plan in accordance with section 1126(g) of the Bankruptcy Code.
4.10 TREATMENT OF CLASS 8 JUNIOR PREFERRED STOCK INTERESTS. Class 8
Junior Preferred Stock Interests are Impaired. The holders of Class 8 Junior
Preferred Stock Interests shall receive no distribution. On the Effective Date,
all Class 8 Junior Preferred Stock Interests shall be deemed canceled, null and
void and of no force and effect. Accordingly, the holders of Class 8 Junior
Preferred Stock Interests are deemed to reject the Plan and are not entitled to
vote on the Plan in accordance with section 1126(g) of the Bankruptcy Code.
4.11 TREATMENT OF CLASS 9 COMMON STOCK INTERESTS. Class 9 Common
Stock Interests are Impaired. The holders of Class 9 Common Stock Interests
shall receive no distribution. On the Effective Date, all Class 9 Common Stock
Interests shall be deemed canceled, null and void and of no force and effect.
Accordingly, the holders of Class 9 Common Stock Interests are deemed to reject
the Plan and are not entitled to vote on the Plan in accordance with section
1126(g) of the Bankruptcy Code.
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ARTICLE 5
SUBSTANTIVE CONSOLIDATION OF THE DEBTORS
5.1 The Plan contemplates and is predicated upon the substantive
consolidation of the Estates into a single entity for the purpose of
Confirmation, consummation and implementation of the Plan, including voting,
confirmation, making distributions under the Plan and Claim determination (but
only for those purposes). The substantive consolidation of the Estates for these
purposes shall have the following effects: (i) all Intercompany Claims by and
among the Debtors will be released; (ii) all assets and all proceeds thereof and
all liabilities of any and all of the Debtors will be merged or treated as
though they were merged; (iii) any obligation of any and all of the Debtors and
all guarantees thereof executed by any of the Debtors will be deemed to be a
single obligation; (iv) any Claims which are Filed or to be Filed in connection
with any such obligation and any such guarantees will be deemed a single Claim
against the Debtors; (v) each and every Claim which is Filed in the individual
Chapter 11 Case of any of the Debtors will be deemed one Claim which is Filed
against the Debtors; and (vi) all Interests, including the Old Common Stock, the
Senior Preferred Stock, and the Junior Preferred Stock, shall be deemed
automatically canceled and retired by operation of law and shall cease to exist.
Notwithstanding the foregoing, the Debtors' rights of recovery of any assets
shall not be prejudiced by such consolidation. In addition, the substantive
consolidation provided for herein shall not (other than for purposes related to
the Plan and distributions to be made hereunder) affect (1) the legal and
corporate structure of Reorganized Xxxxxxxxx, (2) any obligations under any
leases or contracts assumed in the plan or otherwise subsequent to the filing of
these Chapter 11 Cases, or (3) any obligations to pay quarterly fees to the
United States Trustee.
ARTICLE 6
MEANS FOR IMPLEMENTATION OF THE PLAN
6.1 PRIOR TO THE EFFECTIVE DATE. Except as may be otherwise ordered
by the Bankruptcy Court, the directors and executive officers of the Debtors
shall continue to serve in such capacities until the Effective Date. All
injunctions or stays, whether by operation of law or by order of the Bankruptcy
Court, provided for in the Chapter 11 Cases pursuant to section 105 or 362 of
the Code or otherwise that are in effect on the Confirmation Date shall remain
in full force and effect until the Effective Date.
6.1.1 EXIT FINANCING. Prior to the Confirmation Date, Xxxxxxxxx Xxxxx
Corporation will obtain the Exit Facility Commitment Letter, which shall contain
such terms, conditions and covenants as are usual and customary for financings
of this type and shall be on terms satisfactory to the Debtors, the Consenting
Noteholder Threshold and the lenders under such Exit Facility.
6.2 ON THE EFFECTIVE DATE.
6.2.1 MERGER OF XXXXXXXXX WITH NEWCO. On and as of the Effective Date,
Xxxxxxxxx shall merge with and into Newco, a Delaware corporation, to form
Reorganized Xxxxxxxxx.
6.2.2 VESTING OF THE ESTATES IN THE REORGANIZED DEBTORS. On and as of
the Effective Date, pursuant to section 1141(b) of the Bankruptcy Code, all
Property of the Estates of each of the Debtors shall become vested in
Reorganized Xxxxxxxxx, free and clear of all Claims, Interests, Liens and other
encumbrances, except as provided in this Plan.
6.2.3 AMENDMENT OF CERTIFICATES OF INCORPORATION AND BYLAWS. On and as
of the Effective Date, (i) the certificate of incorporation of Reorganized
Xxxxxxxxx shall become effective and
11
shall be in compliance with section 1123(a)(6) of the Code (the "Reorganized
Xxxxxxxxx Certificate of Incorporation") and (ii) the bylaws of Reorganized
Xxxxxxxxx shall be amended (the "Reorganized Xxxxxxxxx Bylaws"). The Reorganized
Xxxxxxxxx Certificate of Incorporation and the Reorganized Xxxxxxxxx Bylaws
shall be Filed at least ten (10) days prior to the Voting Deadline and shall be
in form and substance satisfactory to the Consenting Noteholder Threshold.
6.2.4 CORPORATE GOVERNANCE. Exhibit A hereto, a pleading to be Filed
prior to the Confirmation Date, shall specify the office, names and affiliations
of the individuals intended to serve as directors and officers of Reorganized
Xxxxxxxxx on and after the Effective Date. On and after the Effective Date,
Reorganized Xxxxxxxxx shall be governed in accordance with the Reorganized
Xxxxxxxxx Certificate of Incorporation, the Reorganized Xxxxxxxxx Bylaws and the
Shareholder Agreement. As provided in the Reorganized Xxxxxxxxx Certificate of
Incorporation, the boards of directors of Reorganized Xxxxxxxxx shall initially
consist of five (5) directors: four (4) directors designated by the Senior
Secured Noteholders and the Chief Executive Officer of Reorganized Xxxxxxxxx,
who shall also serve as the Chairman of the board of directors for the Initial
Term (as hereinafter defined). The term of the initial board of directors of
Reorganized Xxxxxxxxx will be 12 months (the "Initial Term").
6.2.5 CANCELLATION OF OLD COMMON STOCK, OLD SENIOR PREFERRED STOCK AND
OLD JUNIOR PREFERRED STOCK. On and as of the Effective Date, the Old Common
Stock, Old Senior Preferred Stock and Old Junior Preferred Stock and each share
of capital stock of each Debtor shall be canceled and rendered null and void.
6.2.6 CANCELLATION OF DEBT AND SECURITIES. On the Effective Date, the
Senior Secured Notes and the Indenture and all obligations of the Debtors or any
guarantor thereunder or in respect thereof shall be cancelled and discharged and
fully satisfied by confirmation of this Plan and the distributions to be made
pursuant to this Plan. Notwithstanding the cancellation of the Indenture and the
Senior Secured Notes, such cancellation shall not impair the rights of the
holders of Senior Secured Notes to receive distributions under the Plan.
6.2.7 ISSUANCE OF NEW COMMON STOCK. Reorganized Xxxxxxxxx shall be
deemed on the Effective Date to have authorized the issuance of the New Common
Stock for distribution in accordance with this Plan, consistent with the
Reorganized Xxxxxxxxx Certificate of Incorporation of Reorganized Xxxxxxxxx and
the Shareholder Agreement. All shares of New Common Stock issued pursuant to
this Plan will be, upon such issuance, validly issued, fully paid and
non-assessable.
6.2.8 ISSUANCE OF NEW SUBORDINATED NOTES. Reorganized Xxxxxxxxx shall
be deemed on the Effective Date to have authorized the issuance of the New
Subordinated Notes for distribution to the holders of Allowed Class 3 Claims.
6.2.9 RELEASE OF LIENS. Except as otherwise provided in the Plan or in
any contract, instrument or other agreement or document executed or delivered in
connection with the Plan, on the Effective Date, all mortgages, deeds of trust,
liens or other security interests against the Property of the Estates shall be
released, and all the right, title and interest of any holder of such mortgages,
deeds of trust, liens or other security interests shall revert to Reorganized
Xxxxxxxxx.
6.3 CAUSES OF ACTION. Pursuant to section 1123(b)(3)(B) of the
Bankruptcy Code, but subject to Sections 10.3 and 10.4 of this Plan, Reorganized
Xxxxxxxxx, on behalf of itself and holders of Allowed Claims and Interests,
shall retain all Causes of Action that the Debtors had or had power to assert
immediately prior to the Effective Date, including Avoidance Actions, and may
commence or continue in any appropriate court or tribunal any suit or other
proceeding for the enforcement of such Causes of Action. All Causes of Action
shall remain the property of Reorganized Xxxxxxxxx. Nothing
12
contained in this Plan shall constitute a waiver of the rights, if any, of the
Debtors or Reorganized Xxxxxxxxx to a jury trial with respect to any Causes of
Action or objection to any Claim or Interest. Reorganized Xxxxxxxxx shall
maintain reasonable records relating to the Avoidance Actions (including
proceeds generated from settlement or judgment, and expenses).
6.4 MANAGEMENT INCENTIVE PROGRAM. Not later than thirty (30) days
after the Effective Date, the Board of Directors of Reorganized Xxxxxxxxx shall
establish a stock option plan providing for the granting of Options for up to
five (5) % of the aggregate number of shares of New Common Stock issued to
holders of Class 5B Claims (including Class 5A claimants who have elected Class
5B treatment) (the "Management Incentive Plan"). The grant of such stock options
will dilute the ownership share of all shareholders receiving a distribution of
New Common Stock under the Plan.
6.5 CONTINUATION OF BUSINESS. On and after the Effective Date,
Reorganized Xxxxxxxxx shall continue to engage in business.
6.6 AUTHORIZATION OF OFFICERS. Each of the President, Chief
Financial Officer, Treasurer or any Vice President of each of the Debtors, or
such other Persons as the Bankruptcy Court may designate at the request of the
Debtors, is authorized to execute, deliver, file or record such contracts,
instruments, releases and other agreements or documents and take such actions as
may be necessary or appropriate to effectuate and implement the provisions of
this Plan. Each of the Secretary or any Assistant Secretary of each of the
Debtors or such other Persons as the Bankruptcy Court may designate at the
request of the Debtors is authorized to certify or attest to any of the
foregoing actions.
ARTICLE 7
CLAIMS AND DISTRIBUTIONS
7.1 DISTRIBUTIONS UNDER THE PLAN. As soon as practicable after the
Effective Date, Reorganized Xxxxxxxxx shall make, or shall make adequate reserve
for, the Distributions required to be made under the Plan. Cash necessary to
make the Distributions required under the Plan, shall be made from the Debtors'
Cash, if any, the Exit Facility, or any other source. All Distributions reserved
pursuant to the Plan shall be held by the Debtors or Reorganized Xxxxxxxxx in
trust for the benefit of the holders of Claims entitled to receive such
Distributions.
7.2 DELIVERY OF DISTRIBUTIONS. Subject to Bankruptcy Rule 9010 and
except as otherwise provided herein, Cash Distributions to holders of Allowed
Administrative, Priority Tax, Priority, Miscellaneous Secured Claims, Class 4
Claims and Class 5A Claims shall be made at (a) the address of each holder as
set forth in the Schedules filed with the Court unless superseded by the address
set forth on proofs of Claim filed by such holder, or (b) the last known address
of such holder if no proof of Claim is filed or if the Debtors have been
notified in writing of a change of address. With respect to Distributions of New
Common Stock and New Subordinated Notes to holders of Class 3 Claims and holders
of Class 5B Claims who are the holders of Senior Secured Notes, the Indenture
Trustee will instruct the Depository Trust Company ("DTC") to cancel the
existing positions with respect to the Senior Secured Notes (including the
global certificate held in the name of DTC's nominee (Cede & Co.) of each
financial institution that is a participant in DTC's book-entry transfer
facility system. Simultaneously therewith, DTC will execute a book-entry credit
for the benefit of each such financial institution with the number of Shares of
New Common Stock [and the amount of New Subordinated Notes] to be issued to such
holder in accordance with the Plan. In connection with the foregoing,
Reorganized Xxxxxxxxx will deliver to DTC a global certificate to be issued in
connection with the Senior Secured Noteholder Claims hereunder. With respect to
distributions of New Common Stock to the holders of Class 5B Claims who are not
holders of claims under the Senior Secured Notes, such distributions shall be
made, in accordance
13
with the Plan, to such holders at (a) the address of each holder as set forth in
the Schedules unless superseded by the address set forth on proofs of Claim
filed by such holder, or (b) the last known address of such holder if no proof
of Claim is filed or if the Debtors have been notified in writing of a change of
address. If any Distribution is returned as undeliverable, Reorganized Xxxxxxxxx
may, in its discretion, make such efforts to determine the current address of
the holder of the Claim with respect to which the Distribution was made as
Reorganized Xxxxxxxxx xxxxx appropriate, but no Distribution to any holder shall
be made unless and until Reorganized Xxxxxxxxx has determined the then-current
address of the holder, at which time the Distribution to such holder shall be
made to the holder without interest. Amounts in respect of any undeliverable
Distributions made through or by Reorganized Xxxxxxxxx shall be returned to, and
held in trust by, Reorganized Xxxxxxxxx until such Distributions are claimed or
are deemed to be unclaimed property under section 347(b) of the Bankruptcy Code
as set forth herein.
7.3 UNDELIVERABLE DISTRIBUTIONS AS UNCLAIMED PROPERTY. Except with
respect to property not distributed because such property is being held in a
Disputed Reserve, Distributions of Cash, New Subordinated Notes or New Common
Stock that are not claimed by the expiration of six months from the later of the
(a) Effective Date or (b) the date of initial distributions under section 7.2
above, shall be deemed to be unclaimed property under section 347(b) of the
Bankruptcy Code and shall revest in Reorganized Xxxxxxxxx, and the Claims with
respect to which such Distributions are made shall be automatically canceled and
extinguished by Reorganized Xxxxxxxxx. After the expiration of the six-month
period referenced in the preceding sentence, the claim of any entity to such
Distributions shall be discharged and forever barred. Nothing contained in the
Plan shall require the Debtors or Reorganized Xxxxxxxxx to attempt to locate any
holder of an Allowed Claim.
7.4 DISTRIBUTION RECORD DATE. The record date for purposes of
determining the identity of holders of Claims and Interests entitled to
distributions under the Plan shall be ___________ at 5:00 p.m.
7.5 OBJECTIONS TO CLAIMS. Objections to Claims shall be filed with
the Bankruptcy Court and served upon Creditors no later than 90 days after the
Effective Date, provided however, that this deadline may be extended by the
Bankruptcy Court upon motion of Reorganized Xxxxxxxxx, without notice or a
hearing. Notwithstanding the foregoing, unless an order of the Bankruptcy Court
specifically provides for a later date, any proof of claim filed after the
Confirmation Date shall be automatically disallowed as a late filed claim,
without any action by Reorganized Xxxxxxxxx, unless and until the party filing
such Claim obtains the written consent of Reorganized Xxxxxxxxx to file such
Claim late or obtains an order of the Bankruptcy Court upon notice to
Reorganized Xxxxxxxxx that permits the late filing of the Claim, in which event,
Reorganized Xxxxxxxxx shall have 90 days from the date of such written consent
or order to object to such Claim, which deadline may be extended by the
Bankruptcy Court upon motion of the Post-Confirmation Debtors, without notice or
a hearing. Nothing herein shall be construed to extend the Bar Date, the Bar
Date for Administrative Claims set forth in Section 2.5 of the Plan or the Bar
Date for Rejection Damages set forth in Section 8.5 of the Plan.
7.6 Subject to Bankruptcy Court approval, objections to Claims may
be litigated to judgment, settled or withdrawn.
7.7 Distributions with respect to and on account of Claims to which
objections have been filed will be made as soon as practicable after an order,
judgment, decree or settlement agreement with respect to such Claim becomes a
Final Order, and the applicable Creditor shall not receive interest on its
Allowed Claim, despite anything contained herein to the contrary.
7.8 DISPUTED CLAIM RESERVES. On and after the Effective Date,
Reorganized Xxxxxxxxx shall establish and maintain reserves for all Disputed
Claims. For purposes of establishing a
14
reserve, Cash, New Subordinated Notes or New Common Stock will be set aside
equal to the amount that would have been distributed to the holders of Disputed
Claims in such Class had their Disputed Claims been deemed Allowed Claims on the
Effective Date or such other amount as may be approved by the Bankruptcy Court
upon motion of the Debtors or Reorganized Xxxxxxxxx. If, when, and to the extent
any such Disputed Claim becomes an Allowed Claim by Final Order, the relevant
portion of the Cash, New Subordinated Notes or New Common Stock held in reserve
therefor shall be distributed by Reorganized Xxxxxxxxx to the Claimant. The
balance of such Cash, New Subordinated Notes or New Common Stock, if any
remaining after all disputed claims have been resolved, shall be distributed Pro
Rata to all holders of Claims in accordance with Article 4 of the Plan. No
payments or distributions shall be made with respect to a Claim which is a
Disputed Claim pending the resolution of the dispute by Final Order.
7.9 WITHHOLDING TAXES. Any federal, state, or local withholding
taxes or other amounts required to be withheld under applicable law shall be
deducted from distributions hereunder. All Persons holding Claims shall be
required to provide any information necessary to effect the withholding of such
taxes.
7.10 FRACTIONAL CENTS. Any other provision of this Plan to the
contrary notwithstanding, no payment of fractions of cents will be made.
Whenever any payment of a fraction of a cent would otherwise be required, the
actual Distribution made shall reflect a rounding of such fraction to the
nearest whole cent (up or down), with half cents or less being rounded down and
fractions in excess of half a cent being rounded up.
7.11 FRACTIONAL SHARES. Any other provision of this Plan to the
contrary notwithstanding, no fractional shares of New Common Stock shall be
issued pursuant to the Plan. Whenever any payment of a fraction of a share of
New Common Stock under the Plan would otherwise be required, the actual
Distribution made shall reflect a rounding down of such fractional share to the
nearest whole share, but shall not be less than one share.
7.12 SETOFFS. Except as otherwise provided for herein, Reorganized
Xxxxxxxxx may, but shall not be required to, set off against any Claim and the
payments to be made pursuant to this Plan in respect of such Claim, claims of
any nature whatsoever the Debtors or their Estates may have against the holder
of such claim, but neither the failure to do so nor the allowance of a Claim
hereunder shall constitute a waiver or release by the Debtors or their Estates
of any Claim they may have against such Creditor.
7.13 INTEREST ON CLAIMS. Except as specifically provided for in the
Plan or the Confirmation Order, interest shall not accrue on Claims and no
holder of a Claim shall be entitled to interest accruing on or after the
Petition Date on any Claim. Interest shall not accrue or be paid on any Disputed
Claim in respect of the period from the Petition Date to the date a final
Distribution is made thereon if and after such Disputed Claim becomes an Allowed
Claim. Except as expressly provided herein or in a Final Order of the Court, no
prepetition Claim shall be Allowed to the extent that it is for postpetition
interest or other similar charges.
7.14 ORDINARY COURSE LIABILITIES. Except as otherwise specifically
provided in the Plan, holders of claims against the Debtors (other than Fee
Claims) based on liabilities incurred after the Petition Date in the ordinary
course of the Debtors' businesses shall not be required to file any request for
payment of such Claims. Such Claims shall be assumed and paid by Reorganized
Xxxxxxxxx in the ordinary course of business of Reorganized Xxxxxxxxx, in
accordance with the terms and subject to the conditions of any agreements
governing, instruments evidencing, or other documents related to the
transactions underlying such Claims, without any further action by the holders
of such Claims.
15
7.15 ASSUMPTION OF OBLIGATIONS UNDER THE PLAN. On the Effective Date,
the obligations to make the Distributions required by the Plan shall be assumed
by Reorganized Xxxxxxxxx, which shall have the liability for, and obligation to
make, all Distributions of Cash, New Subordinated Notes, New Common Stock, and
other Property to be issued or distributed by Reorganized Xxxxxxxxx under the
Plan. Reorganized Xxxxxxxxx shall also assume the obligation to pay any expenses
of the Debtors in consummating the Plan and in performing their duties set forth
in the Plan.
ARTICLE 8
UNEXPIRED LEASES AND EXECUTORY CONTRACTS
8.1 REJECTION OF CERTAIN CONTRACTS AND LEASES. Ten (10) days prior
to the Voting Deadline, the Debtors shall File a schedule of the executory
contracts and unexpired leases to be rejected on the Effective Date, which
schedule shall be in form and substance reasonably satisfactory to the
Consenting Noteholder Threshold (the "Rejection Schedule"), which shall be
deemed Exhibit C to the Plan. The Rejection Schedule shall be served by the
Debtors on each party to an executory contract or unexpired lease listed
thereon. The Rejection Schedule may be amended from and after the Confirmation
Date for sixty (60) days thereafter (but in no event after the Effective Date)
by the Debtors, with notice to any party to an executory contract or unexpired
lease added to or removed from such schedule.
8.2 ASSUMPTION OF CERTAIN CONTRACTS AND LEASES.
8.2.1 EMPLOYMENT AND CONSULTING CONTRACTS. The Debtors shall not
assume or seek to assume any employment, consulting or similar contract without
the prior consent of the Consenting Noteholder Threshold, PROVIDED, HOWEVER,
that the Consenting Noteholder Threshold shall be deemed to have consented to
the assumption of the employment agreement between the Debtors and Xxx Xxxxxxxx
dated June __, 2002. Any employment, consulting or similar contract that has not
been assumed pursuant to this section prior to the Effective Date, and has not
been included in the Rejection Schedule or has not been otherwise rejected,
shall be deemed rejected on the day before the Effective Date.
8.2.2 UNEXPIRED AND UNREJECTED CONTRACTS AND LEASES. Each executory
contract or unexpired lease of the Debtors that has not expired by its own terms
prior to the Effective Date, has not been rejected during the Chapter 11 Cases
prior to the Effective Date, and is not on the Rejection Schedule, shall be
deemed assumed by Reorganized Xxxxxxxxx pursuant to sections 365 of the
Bankruptcy Code on the Effective Date and vested in Reorganized Xxxxxxxxx.
8.3 CURE PAYMENTS AND RELEASE OF LIABILITY. The Debtors shall, at
least ten (10) days prior to the Voting Deadline, File and serve on all parties
to executory contracts and unexpired leases to be assumed as of the Effective
Date, a schedule setting forth the amount of cure payments to be provided by
Reorganized Xxxxxxxxx in accordance with section 365(b)(1) of the Bankruptcy
Code (the "Assumption Schedule"). Objections to any proposed cure payment must
be made by the Voting Deadline and shall be determined, if necessary, at the
Confirmation Hearing. In the event the Debtors amend the Assumption Schedule
after the Confirmation Date, the Debtors shall, within ten (10) days after such
amendment, File and serve on all parties affected by any such schedule
amendment, a supplemental schedule setting forth the amount of cure payments to
be provided by Reorganized Xxxxxxxxx in accordance with section 365(b)(1) of the
Bankruptcy Code. Objections to any proposed cure payments set forth in the
supplemental schedule must be made within ten (10) days after service thereof. A
party to an assumed executory contract or unexpired lease that has not filed an
appropriate pleading with the Bankruptcy Court on or before the applicable
ten-day period shall be deemed to have waived its right to dispute such amount.
All unpaid cure payments under any executory contracts or unexpired leases that
16
are assumed or assumed and assigned under this Plan shall be made by Reorganized
Xxxxxxxxx as soon as practicable after the Effective Date but not later than
thirty (30) days after the Effective Date, PROVIDED, that, in the event that a
dispute regarding the amount of any cure payments, Reorganized Xxxxxxxxx shall
make such cure payments as may be required by section 365(b)(1) of the
Bankruptcy Code within ten (10) days following the entry of a Final Order
resolving such dispute.
8.4 POST-PETITION CONTRACTS AND LEASES. All contracts and leases
entered into by the Debtors after the Petition Date, excluding the DIP Credit
Agreement, shall be deemed assigned to Reorganized Xxxxxxxxx on the Effective
Date.
8.5 BAR DATE FOR REJECTION DAMAGES. All proofs of claim with respect
to claims arising from the rejection of executory contracts or leases shall,
unless another order of the Bankruptcy Court provides for an earlier date, be
filed with the Bankruptcy Court within thirty (30) days after the mailing of
notice of entry of the Confirmation Order. Any proof of claim that is not timely
filed shall be released, discharged and forever barred from assertion against
the Debtors, their Estates or Property, Reorganized Xxxxxxxxx.
ARTICLE 9
CONDITIONS PRECEDENT TO EFFECTIVENESS OF THE PLAN
9.1 CONDITIONS TO EFFECTIVE DATE OF THE PLAN. The Plan shall not
become effective unless and until each of the following conditions has been
satisfied:
(a) The Bankruptcy Court shall have entered the Confirmation Order
in form and substance reasonably satisfactory to the Consenting Noteholder
Threshold;
(b) The Confirmation Order shall have become a Final Order;
(c) The Reorganized Xxxxxxxxx Certificate of Incorporation and the
Reorganized Xxxxxxxxx Bylaws shall be in the form and substance satisfactory to
the Consenting Noteholder Threshold and shall have been duly filed with the
Secretary of State of Delaware, and shall be in full force and effect;
(d) The commitments under the DIP Credit Agreement shall have
terminated, all amounts owing under the DIP Credit Agreement (including, without
limitation, all principal, interest, fees and expenses owed thereunder) shall
have been paid in full and any outstanding letters of credit issued under and in
connection with the DIP Credit Agreement shall have been terminated (in each
case, concurrently with the closing of the Exit Facility);
(e) The New Subordinated Notes Indenture, the Shareholder Agreement,
and the Registration Rights Agreement, each in form and substance satisfactory
to the Consenting Noteholder Threshold, shall have been executed and delivered
by Reorganized Xxxxxxxxx;
(f) All conditions precedent to the Exit Facility shall have been
satisfied or waived in accordance with the terms thereof; and
(g) All other actions and documents necessary to implement the Plan
as of the Effective Date shall have been effected or duly executed and
delivered.
17
9.2 WAIVER OF CONDITIONS. The Debtors, in their discretion may at
any time with the consent of the Consenting Noteholder Threshold, without notice
or authorization of the Bankruptcy Court, waive the condition set forth in
Section 9.1(b) above. The failure of the Debtors to satisfy or waive such
condition may be asserted by the Debtors regardless of the circumstances giving
rise to the failure of such condition to be satisfied (including any action or
inaction by the Debtors). The Debtors reserve the right to assert that any
appeal from the Confirmation Order shall be moot after consummation of the Plan.
9.3 EFFECT OF FAILURE OF CONDITION. In the event that the conditions
specified in Section 9.1(b) of the Plan have not occurred or been waived on or
before sixty (60) days after the Confirmation Date, the Confirmation Order may
be vacated upon order of the Court after motion made by the Debtors or any party
in interest.
9.4 NOTICE OF EFFECTIVE DATE. On or before ten Business Days after
the occurrence of the Effective Date, the Debtors shall mail or cause to be
mailed to all holders of Claims a Notice that informs such holders of (a) entry
of the Confirmation Order; (b) the occurrence of the Effective Date; (c) the
assumption or rejection of any executory contracts of the Debtors pursuant to
this Plan, as well as the deadline for the filing of claims arising from such
rejection; and (d) such other matters as the Debtors deem to be appropriate.
ARTICLE 10
EFFECTS OF PLAN CONFIRMATION
10.1 DISCHARGE. Except as otherwise provided in the Plan or the
Confirmation Order, the rights afforded under the Plan and the treatment of
Claims and Interests under the Plan will be in exchange for and in complete
satisfaction, discharge and release of, all Claims and termination of all
Interests. Except as otherwise expressly provided in the Plan or the
Confirmation Order and in accordance with section 1141(d)(1) of the Bankruptcy
Code, entry of the Confirmation Order acts as a discharge effective as of the
Effective Date of any and all Claims against or Interests in the Debtors or any
of their assets and Properties that arose at any time before the entry of the
Confirmation Order. The discharge shall be effective as to each Claim and
Interest except as otherwise expressly provided in the Confirmation Order,
regardless whether:
(a) a proof of Claim or Interest is filed or deemed filed under
section 501 of the Bankruptcy Code;
(b) a Claim or Interest is Allowed;
(c) the holder of a Claim or Interest votes to accept or reject the
Plan; or
(d) the Claim or Interest receives any distribution under the Plan.
10.2 INJUNCTION. Except as otherwise provided in the Plan or the
Confirmation Order, on and after the Confirmation Date, all Entities who have
held, hold or may hold Claims against the Debtors or Interests in the Debtors
are, with respect to any such Claims or Interests, permanently enjoined from:
(a) commencing, conducting or continuing in any manner, directly or indirectly,
any suit, action or other proceeding of any kind (including, without limitation,
any proceeding in a judicial, arbitral, administrative or other forum) against
or affecting the Debtors, Reorganized Xxxxxxxxx or any of their Property, or any
direct or indirect transferee of any property of, or direct or indirect
successor in interest to, any of the foregoing Entities, or any property of any
such transferee or successor; (b) enforcing, levying, attaching (including,
without limitation, any pre-judgment attachment), collecting or otherwise
18
recovering by any manner or means whether directly or indirectly, of any
judgment, award, decree or order against the Debtors, Reorganized Xxxxxxxxx, any
of their Property, or any direct or indirect transferee of any property of, or
direct or indirect successor in interest to any of the foregoing Entities; (c)
creating, perfecting or otherwise enforcing in any manner, directly or
indirectly, any encumbrance of any kind against the Debtors, Reorganized
Xxxxxxxxx, any of their Property, or any direct or indirect transferee of any
property of, or direct or indirect successor in interest to any of the foregoing
Entities; (d) asserting any right of setoff, subordination, or recoupment of any
kind, directly or indirectly, against any obligation due the Debtors,
Reorganized Xxxxxxxxx, any of their Property, or any direct or indirect
transferee of any property of, or successor in interest to, any of the foregoing
Entities; and (e) taking any actions in any place and in any manner whatsoever
that do not conform to or comply with the provisions of the Plan.
10.3 EXCULPATION. Except as otherwise provided by the Plan or the
Confirmation Order, upon confirmation of the Plan, all Entities shall be
conclusively presumed to have released each of the Debtors, Reorganized
Xxxxxxxxx, the Committee, the Senior Secured Noteholders, the DIP Agent, the DIP
Lenders, and any of their respective officers, directors, employees,
representatives, counsel or other agents, successors or assigns (collectively,
the "Exculpated Persons") of and from any claims, obligations, rights, causes of
action and liabilities for any act or omission in connection with, or arising
out of, the Chapter 11 Cases, including, without limiting the generality of the
foregoing, the Plan, the negotiation, formulation and preparation of the Plan
and Disclosure Statement and the DIP Credit Agreement, the pursuit of approval
of the Disclosure Statement, the pursuit of confirmation of the Plan, the
consummation of the Plan or the administration of the Plan or the property to be
distributed under the Plan, except for acts or omissions which constitute
willful misconduct or gross negligence, and all such Persons, in all respects,
shall be entitled to rely upon the advice of counsel with respect to their
duties and responsibilities under the Plan and under the Bankruptcy Code and
Bankruptcy Rules.
10.4 RELEASES. On the Effective Date, Reorganized Xxxxxxxxx and
Holdings, on their own behalf and as representatives of the Debtors' Estates, in
consideration of services rendered in the Chapter 11 Cases and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, shall be deemed to have waived, released and discharged all
claims, obligations, rights, causes of action and liabilities, including
derivative claims, whether based in tort, fraud, contract or otherwise, known or
unknown, which they possessed, possess or may possess prior to the Effective
Date and whether arising before or after the Petition Date against the Debtors,
the Estates, Xxxxxxxxx (Canada), each of the DIP Agent, DIP Lenders, the
Committee, the Senior Secured Noteholders, holders of the Old Junior Preferred
Stock, holders of the Old Senior Preferred Stock and holders of Old Common Stock
and the directors, officers, employees, agents, affiliates, representatives,
attorneys, professional advisors, successors and assigns of any of the foregoing
who served in such capacities after the Petition Date (collectively, the "Third
Party Releasees"), provided, however, that the release of each holder of the Old
Junior Preferred Stock, each holder of the Old Senior Preferred Stock and each
holder of the Old Common Stock, and their respective directors, officers,
employees, agents, affiliates, representatives, attorneys, professional
advisors, successors and assigns shall be contingent upon the receipt by the
Company and the Senior Secured Noteholders, and their respective directors,
officers, employees, agents, affiliates, representatives, attorneys,
professional advisors, successors and assigns, of an equivalent release from
such holder of the Old Junior Preferred Stock, the Old Senior Preferred Stock or
the Old Common Stock.
10.5 SURVIVAL OF INDEMNIFICATION CLAIMS AND OBLIGATIONS.
Notwithstanding any other provisions, except as otherwise provided in the Plan,
the Indemnification Obligations shall expressly survive Confirmation of the Plan
and be binding on and enforceable against Reorganized Xxxxxxxxx, PROVIDED,
HOWEVER, that with respect to officers, directors or employees of the Debtors,
such Indemnification Obligations shall survive and be binding and enforceable
only with respect to officers, directors and employees who served in those
capacities after the Petition Date.
19
10.6 INJUNCTION OF CLAIMS AGAINST, AND COVENANT NOT TO XXX, THIRD
PARTY RELEASEES. Pursuant to section 105 of the Bankruptcy Code, each holder of
a Claim who votes in favor of this Plan or who accepts any distributions
pursuant to the Plan shall be deemed to have unconditionally released the Third
Party Releasees from and covenanted not to xxx the Third Party Releasees with
respect to, and be permanently enjoined from initiating or continuing, any
claim, action, employment of process, or any act to collect, offset, or recover
any claim against any Third Party Releasee, known or unknown, which accrued on
or prior to the Effective Date and whether arising before or after the Petition
Date, provided, that the foregoing release shall not apply to any action or
omission that constitutes actual fraud or criminal behavior, and provided
further that the release of holders of Old Junior Preferred Stock, holders of
Old Senior Preferred Stock and holders of the Old Common Stock, and their
respective directors, officers, employees, agents, affiliates, representatives,
attorneys, professional advisors, successors and assigns, shall be contingent on
such holder's delivery of a release and covenant not to xxx with respect to any
claim, action, employment of process, or any act to collect, offset or recover
any claim against the Company or the Senior Secured Noteholders, or their
respective directors, officers, employees, agents, affiliates, representatives,
attorneys, professional advisors, successors and assigns, known or unknown,
which accrued on or prior to the Effective Date and whether arising before or
after the Petition Date.
10.7 TERM OF INJUNCTIONS AND STAYS. Unless otherwise provided, all
injunctions or stays provided for in the Chapter 11 Cases pursuant to section
105 or 362 of the Bankruptcy Code or otherwise and in effect on the Confirmation
Date shall remain in full force and effect until the Effective Date.
10.8 PRESERVATION OF INSURANCE. The Debtors' discharge and release
from all Claims as provided in this Plan shall not diminish or impair the
enforceability of any insurance policy that may cover claims by or against the
Debtors (including, without limitation, their officers or directors) or any
other Person or Entity. The Debtors shall maintain, extend and/or purchase
directors and officers liability coverage on substantially the same terms and
conditions as in effect as of the Confirmation Date, on a claims made basis, for
all acts and occurrences prior and subsequent to the Effective Date, on terms
satisfactory to Reorganized Xxxxxxxxx.
ARTICLE 11
RETENTION OF JURISDICTION
11.1 Following the Confirmation Date and until such time as all
payments and distributions required to be made and all other obligations
required to be performed under this Plan have been made and performed by
Reorganized Xxxxxxxxx and all causes of action described in Section 6.3 and
initiated in the Bankruptcy Court are resolved, the Bankruptcy Court shall
retain jurisdiction as is legally permissible, including, without limitation,
for the following purposes:
(a) CLAIMS. To determine the amount, allocability, classification,
or priority of Claims against the Debtors upon rejection by Reorganized
Xxxxxxxxx or any other party in interest;
(b) INJUNCTION, ETC. To issue injunctions or take such other actions
or make such other orders as may be necessary or appropriate to restrain
interference with the Plan or its execution or implementation by any Person, to
construe and to take any other action to enforce and execute the Plan, the
Confirmation Order, or any other order of the Bankruptcy Court, to issue such
orders as may be necessary for the implementation, execution, performance and
consummation of the Plan and all matters referred to herein, and to determine
all matters that may be pending before the Bankruptcy Court in the Chapter 11
Cases on or before the Effective Date with respect to any Entity;
20
(c) PROFESSIONAL FEES. To determine any and all applications for
allowance of compensation and expense reimbursement of Professionals for periods
before the Effective Date, as provided for in the Plan;
(d) CERTAIN PRIORITY CLAIMS. To determine any Priority Tax Claims,
Priority Claims, Administrative Claims or any requests for payment of
Administrative Claims;
(e) DISPUTE RESOLUTION. To resolve any dispute arising under or
related to the implementation, execution, consummation or interpretation of the
Plan and the making of distributions thereunder, including, without limitation,
any dispute concerning payment of Professional Fees and expenses;
(f) LEASES AND EXECUTORY CONTRACTS. To determine any and all motions
for the rejection, assumption, or assignment of executory contracts or unexpired
leases, and to determine the allowance of any Claims resulting from the
rejection of executory contracts and unexpired leases or cure Claims resulting
from the assumption of executory contracts and unexpired leases;
(g) ACTIONS. To determine all applications, motions, adversary
proceedings, contested matters, actions, and any other litigated matters
instituted prior to the closing of the Chapter 11 Cases, including but not
limited to, any remands and any actions brought under Section 6.3, above;
(h) GENERAL MATTERS. To determine such other matters, and for such
other purposes, as may be provided in the Confirmation Order as may be
authorized under provisions of the Bankruptcy Code;
(i) PLAN MODIFICATION. To modify the Plan under section 1127 of the
Bankruptcy Code, remedy any defect, cure any omission, or reconcile any
inconsistency in the Plan or the Confirmation Order so as to carry out its
intent and purposes;
(j) AID CONSUMMATION. To issue such orders in aid of consummation of
the Plan and the Confirmation Order notwithstanding any otherwise applicable
non-bankruptcy law, with respect to any Entity, to the full extent authorized by
the Bankruptcy Code;
(k) IMPLEMENTATION OF CONFIRMATION ORDER. To enter and implement
such orders as may be appropriate in the event the Confirmation Order is for any
reason stayed, revoked, modified or vacated; and
(l) FINAL ORDER. To enter a Final Order closing the Chapter 11
Cases.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 PRE-CONFIRMATION MODIFICATION. The Plan may be altered, amended
or modified by the Debtors before the Confirmation Date as provided in section
1127 of the Bankruptcy Code.
12.2 POST-CONFIRMATION IMMATERIAL MODIFICATION. The Debtors or
Reorganized Xxxxxxxxx may, with the approval of the Bankruptcy Court and without
notice to all holders of Claims and Interests, insofar as it does not materially
and adversely affect the interest of holders of Claims, correct
21
any defect, omission or inconsistency in the Plan in such manner and to such
extent as may be necessary to expedite consummation of this Plan.
12.3 POST-CONFIRMATION MATERIAL MODIFICATION. The Plan may, with the
consent of the Consenting Noteholder Threshold, be altered or amended after the
Confirmation Date by the Debtors or Reorganized Xxxxxxxxx in a manner which, in
the opinion of the Bankruptcy Court, materially and adversely affects holders of
Claims, provided that such alteration or modification is made after a hearing as
provided in section 1127 of the Bankruptcy Code.
12.4 WITHDRAWAL OR REVOCATION OF THE PLAN. The Debtors reserve the
right to revoke or withdraw the Plan prior to the Effective Date. If the Debtors
revoke or withdraw the Plan, then the result shall be the same as if the
Confirmation Order had not been entered and the Effective Date had not occurred.
12.5 PAYMENT OF STATUTORY FEES. All fees payable pursuant to section
1930 of Title 28 of the United States Code shall be paid on the Effective Date
or from assets of Reorganized Xxxxxxxxx when otherwise due.
12.6 THE COMMITTEE. The Committee shall cease operating and
dissolve on the Effective Date.
12.7 SUCCESSORS AND ASSIGNS. The rights, benefits and obligations of
any Entity named or referred to in the Plan shall be binding on, and shall inure
to the benefit of, the heirs, executors, administrators, successors or assigns
of such Entities.
12.8 CRAMDOWN. To the extent any Impaired Class of Claims or
Interests Holders entitled to vote on the Plan votes to reject the Plan, the
Debtors reserve the right to request confirmation of the Plan under section
1129(b) of the Bankruptcy Code with respect to such Class(es) or Interests.
12.9 GOVERNING LAW. Except to the extent that the Bankruptcy Code is
applicable, the rights and obligations arising under this Plan shall be governed
by and construed and enforced in accordance with the laws of the State of
Delaware.
12.10 NOTICES. Any notice required or permitted to be provided under
the Plan shall be in writing and served by either (a) certified mail, return
receipt requested, postage prepaid, (b) hand delivery or (c) reputable overnight
courier service, freight prepaid, to be addressed as follows:
Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx
with a copy to:
YOUNG XXXXXXX STARGATT & XXXXXX, LLP
The Brandywine Bldg.
0000 Xxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
T: 302-571-6600
Attention: Xxxxxxx X. Xxxxxx, Esq.
00
-xxx-
XXXXXXX & XXXXXX
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
T: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
12.11 NON-VOTING EQUITY SECURITIES. To the extent applicable, the
Debtors shall comply with the provisions of section 1123(a)(6) of the Bankruptcy
Code.
12.12 RETIREE BENEFITS. From and after the Effective Date, to the
extent required by section 1129(a)(13) of the Bankruptcy Code, Reorganized
Xxxxxxxxx shall continue to pay all retiree benefits (as defined in section 1114
of the Bankruptcy Code, but not including payments under deferred compensation
agreements), if any, established or maintained by the Debtors prior to the
Effective Date.
12.13 SATURDAY, SUNDAY OR LEGAL HOLIDAY. If any payment or act under
the Plan is required to be made or performed on a date that is not a Business
Day, then the making of such payment or the performance of such act may be
completed on the next succeeding Business Day, but shall be deemed to have been
completed as of the required date.
12.14 SECTION 1145 EXEMPTION. To the fullest extent permitted under
section 1145 of the Bankruptcy Code, the offer and sale of the New Common Stock
and New Subordinated Notes shall be exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended, and any state or local law
requiring registration for offer or sale of a security registration or licensing
of an issuer of, underwriter of, or broker or dealer in, such New Common Stock
and New Subordinated Notes. The offer and sale of the New Common Stock and New
Subordinated Notes are deemed to be a public offering of the New Common Stock
and the New Subordinated Notes.
12.15 SECTION 1146 EXEMPTION. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of the New Common Stock and
the New Subordinated Notes under the Plan or the making or delivery of any
instrument of transfer pursuant to, in implementation of, or as contemplated by,
the Plan or the revesting, transfer or sale of any real or personal property of
the Debtors pursuant to, in implementation of, or as contemplated by, the Plan
shall not be taxed under any state or local law imposing a stamp tax, transfer
tax, sales tax or similar tax or fee.
12.16 SEVERABILITY. If any term or provision of the Plan is held by
the Bankruptcy Court prior to or at the time of Confirmation to be invalid, void
or unenforceable, the Bankruptcy Court shall have the power to alter and
interpret such term or provision to make it valid or enforceable to the maximum
extent practicable, consistent with the original purpose of the term or
provision held to be invalid, void or unenforceable, and such term or provision
shall then be applicable as so altered or interpreted. In the event of any such
holding, alteration, or interpretation, the remainder of the terms and
provisions of the Plan may, at the Debtors' option remain in full force and
effect and not be deemed affected. However, the Debtors reserve the right not to
proceed to Confirmation or consummation of the Plan if any such ruling occurs.
The Confirmation Order shall constitute a judicial determination and shall
provide that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
23
12.17 HEADINGS. The headings used in this Plan are inserted for
convenience only and neither constitute a portion of the Plan nor in any manner
affect the provisions of the Plan.
Xxxxxx May Holdings, Inc.
--------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
Xxxxxxxxx Xxxxx Corporation
---------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
24
EXHIBIT B
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT the
Consenting Noteholders (as defined in the Lock-Agreement dated June __, 2002),
on behalf of themselves and their respective parents, subsidiaries, affiliates,
successors and assigns (herein collectively the "RELEASORS" and each
individually a "RELEASOR"), in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration, received from TCW Special Placement
Fund III, TCW Capital 1990, TCW Capital 1989, WCT Investment Pte Ltd., Mezzanine
Capital, Jordan Industries, Inc., JZ Equity Partners PLC, Leucadia Investors,
Inc, Xxxx X. Xxxxxx XX, Xxxxxx X. Xxxxx, Xxxx X. Max, The JW/Jenn Trust, Xxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx
Xxxxxx, Xxxx Xxxxxxxx, Polytechnic Preparatory Country Day School, Xxx Xxxxxxxx
and Xxxxxx Xxxxxx Trusts [SPECIFIC NAME OF EACH TRUSTTO BE PROVIDED], the
receipt and sufficiency of which is hereby acknowledged, forever release, remise
and discharge TCW Special Placement Fund III, TCW Capital 1990, TCW Capital
1989, WCT Investment Pte Ltd., Mezzanine Capital, Jordan Industries, Inc., JZ
Equity Partners PLC, Leucadia Investors, Inc, Xxxx X. Xxxxxx XX, Xxxxxx X.
Xxxxx, Xxxx X. Max, The JW/Jenn Trust, Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx
Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Polytechnic
Preparatory Country Day School, Xxx Xxxxxxxx and Xxxxxx Xxxxxx Trusts [SPECIFIC
NAME OF EACH TRUST TO BE PROVIDED] and each of their respective shareholders,
directors, officers, partners, limited partners, trustees, beneficiaries,
employees, agents, independent contractors, attorneys, affiliates of every kind
and nature, heirs, executors,
administrators, successors and assigns (herein collectively the "RELEASEES" and
each individually a "RELEASEE") of and from any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands of any kind whatsoever whether in law, admiralty or equity, whether
known or unknown (herein "Claims"), which the RELEASOR ever had, now has or can,
shall or may, in the future have against RELEASEES, for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this RELEASE, PROVIDED HOWEVER that this RELEASE is expressly
limited in its entirety to Claims arising from the RELEASOR'S acquisition or
ownership of Senior Secured Notes of Xxxxxxxxx Xxxxx Corporation ("Senior
Notes").
Each RELEASOR expressly agrees not to xxx any RELEASEE for any action,
cause of action, suits, debt, dues, sum of money, account, reckoning, xxxx,
xxxx, specialty, covenant, contract, controversy, agreement, promise, variance,
trespass, damage, judgment, extent, execution, claim or demand of any kind
whatsoever, whether in law, admiralty or equity, whether known or unknown, which
the RELEASOR ever had, now has or can, shall or may, in the future have against
the RELEASEES, for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the day of the date of this RELEASE, and
arising from, or in any way related to the RELEASOR'S acquisition or ownership
of the Senior Notes.
Each RELEASOR shall indemnify RELEASEES with respect to all costs and
expenses of any kind incurred by any RELEASEE in the event such RELEASOR
breaches this RELEASE in any respect.
-2-
Each RELEASOR expressly acknowledges that it has been advised in
writing to consult with an attorney before executing this RELEASE.
Each RELEASOR expressly acknowledges that it has carefully read and
fully understands all of the terms, conditions, provisions and effects of this
RELEASE.
Each RELEASOR expressly acknowledges that the consideration referred
to in this RELEASE is in addition to anything of value to which RELEASOR is
entitled to receive from RELEASEE as of the date of the execution of this
RELEASE.
Each RELEASOR expressly acknowledges and agrees that if, contrary to
the covenant not to xxx contained in this RELEASE, RELEASOR sues RELEASEE and
RELEASEE is the prevailing party in any such suit, RELEASOR shall pay to
RELEASEE an amount equal to all attorneys' fees and disbursements incurred by
RELEASEE in connection with any such suit.
Whenever the text hereof requires, the use of singular number shall
include the appropriate plural number as the text of the within instrument may
require.
This RELEASE may not be modified or changed, whether orally or
otherwise.
Each RELEASOR expressly acknowledges and agrees that this RELEASE
shall be construed under the laws of the State of Illinois.
This RELEASE shall become effective on the Effective Date of that
certain Joint Debtors'Consolidated Plan of Reorganization dated June __, 2002 of
Xxxxxx May Holdings, Inc. and Xxxxxxxxx Xxxxx Corporation("Plan"), or any
amendment or modification to the Plan, PROVIDED, HOWEVER, that this RELEASE
shall not be effective with respect to any RELEASEE
-3-
who does not execute a RELEASE in favor of the RELEASORS in the form attached
hereto as EXHIBIT A, and this RELEASE shall be null and void with respect to
such RELEASEE.
This RELEASE may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same agreement, and, subject to the proviso in the preceding paragraph, shall be
binding on each RELEASOR who executes it regardless of whether it is executed by
all RELEASORS.
-4-
IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S hand and
seal on the ____ day of June, 2002.
---------------------------------
---------------------------------
---------------------------------
---------------------------------
-5-
STATE OF
ss.:
COUNTY OF ____________
On June __, 2002 before me ___________________ personally came to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and acknowledged to me that he/she executed the same in
his/her capacity as the __________ of the RELEASOR and that he/she was duly
authorized to do so.
---------------------------------------
NOTARY PUBLIC
-6-
EXHIBIT A
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT TCW
Special Placement Fund III, TCW Capital 1990, TCW Capital 1989, WCT Investment
Pte Ltd., Mezzanine Capital, Jordan Industries, Inc., JZ Equity Partners PLC,
Leucadia Investors, Inc, Xxxx X. Xxxxxx XX, Xxxxxx X. Xxxxx, Xxxx X. Max, The
JW/Jenn Trust, Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Polytechnic Preparatory Country Day
School, Xxx Xxxxxxxx and Xxxxxx Xxxxxx Trusts [SPECIFIC NAME OF EACH TRUST TO BE
PROVIDED], individually and collectively, on behalf of themselves and each of
their respective parents, subsidiaries, affiliates, successors, assigns,
partners, limited partners, heirs, spouses, beneficiaries, executors, estates,
administrators, trustees, advisors, agents, attorneys and representatives
(herein collectively the "RELEASORS" and each individually a "RELEASOR"), in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration received from the Noteholder Entities (as defined below), the
receipt and sufficiency of which is acknowledged, hereby forever release, remise
and discharge Xxxxxxxxx Xxxxx Corporation ("Xxxxxxxxx"), its parents,
subsidiaries, affiliates, estates, successors and assigns (herein the "Debtor
Entities"), all Consenting Noteholders (as defined in the Lock-Up Agreement
dated June __, 2002), their respective parents, subsidiaries, affiliates,
estates, successors and assigns (herein the "Noteholder Entities"), and each of
the Debtor Entities' and Noteholder Entities' respective shareholders,
directors, officers, partners, limited partners, trustees, beneficiaries,
employees, agents, independent contractors, attorneys, parents, subsidiaries,
affiliates of every kind and nature, heirs, executors,
-7-
administrators, estates, successors and assigns (herein collectively, and
including the Debtor Entities and Noteholder Entities, the "RELEASEES" and each
individually a "RELEASEE") of and from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands of any kind whatsoever whether in law, admiralty or equity, whether
known or unknown, which any of the RELEASORS ever had, now has or can, shall or
may, in the future have against any RELEASEE, for, upon, by reason of, arising
out of or related to the Debtor Entities from the beginning of the world to the
date of this RELEASE.
Each RELEASOR expressly agrees not to xxx any RELEASEE for any action,
cause of action, claim, suit, debt, dues, sum of money, account, reckoning,
xxxx, xxxx, specialty, covenant, contract, controversy, agreement, promise,
variance, trespass, damage, judgment, extent, execution, claim or demand of any
kind whatsoever, whether in law, admiralty or equity, whether known or unknown,
which any RELEASOR ever had, now has or can, shall or may, in the future, have
against any RELEASEE, for, upon, or by reason of, arising out of or related to
the Debtor Entities from the beginning of the world to the date of this RELEASE.
Each RELEASOR shall indemnify RELEASEES with respect to all costs and
expenses of any kind incurred by any RELEASEE in the event such RELEASOR
breaches this RELEASE in any respect.
Each RELEASOR expressly acknowledges that it has been advised in
writing to consult with an attorney before executing this RELEASE.
-8-
Each RELEASOR expressly acknowledges that it has carefully read and
fully understands all of the terms, conditions, provisions and effects of this
RELEASE.
Each RELEASOR expressly acknowledges that the consideration referred
to in this RELEASE is in addition to anything of value to which RELEASOR is
entitled to receive from RELEASEE as of the date of the execution of this
RELEASE.
Each RELEASOR expressly acknowledges and agrees that if, contrary to
the covenant not to xxx contained in this RELEASE, any RELEASOR sues any
RELEASEE and the RELEASEE is the prevailing party in any such suit, RELEASORS
shall pay to RELEASEE an amount equal to all attorneys' fees and disbursements
incurred by RELEASEE in connection with any such suit.
Whenever the text hereof requires, the use of singular number shall
include the appropriate plural number as the text of the within instrument may
require.
This RELEASE may not be modified or changed, whether orally or
otherwise.
Each RELEASOR expressly acknowledges and agrees that this RELEASE
shall be construed under the laws of the State of Illinois.
This RELEASE shall become effective on the Effective Date of that
certain Joint Debtors' Consolidated Plan of Reorganization dated June __, 2002
of Xxxxxx May Holdings, Inc. and Xxxxxxxxx Xxxxx Corporation("Plan"), or any
amendment or modification to the Plan, PROVIDED, HOWEVER, that this RELEASE
shall not be effective with respect to any RELEASEE who does not execute a
RELEASE in favor of the RELEASORS in the form attached hereto as EXHIBIT A, and
this RELEASE shall be null and void with respect to such RELEASEE.
-9-
This RELEASE may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same agreement, and, subject to the proviso in the preceding paragraph, shall be
binding on each RELEASOR who executes it regardless of whether it is executed by
all RELEASORS.
IN WITNESS WHEREOF, each RELEASOR has hereunto set RELEASOR'S hand and
seal on the ____ day of June, 2002.
------------------------------ -------------------------------------------
TCW Special Placement Fund III TCW Capital 1990
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
TCW Capital 1989 WCT Investment Pte Ltd.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Mezzanine Capital Jordan Industries, Inc.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
JZ Equity Partners PLC Leucadia Investors, Inc.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Xxxx X. Xxxxxx XX Xxxxxx X. Xxxxx
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Xxxx X. Max The JW/Jenn Trust
-10-
------------------------------ -------------------------------------------
Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx
------------------------------ -------------------------------------------
Xxxx Xxxxxx Xxxx Xxxx
------------------------------ -------------------------------------------
Xxxxx Xxxxxx Xxxxxxx Xxxxxx
------------------------------ -------------------------------------------
Xxxx Xxxxxxxx Polytechnic Preparatory Country Day School
------------------------------ -------------------------------------------
Xxx Xxxxxxxx Xxxxxx Xxxxxx Trusts
-11-
STATE OF
ss.:
COUNTY OF ____________
On June __, 2002 before me ___________________ personally came to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and acknowledged to me that he/she executed the same in
his/her capacity as the __________ of the RELEASORS and that he/she was duly
authorized to do so.
---------------------------------------
NOTARY PUBLIC
-12-
EXHIBIT C
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT TCW
Special Placement Fund III, TCW Capital 1990, TCW Capital 1989, WCT Investment
Pte Ltd., Mezzanine Capital, Jordan Industries, Inc., JZ Equity Partners PLC,
Leucadia Investors, Inc, Xxxx X. Xxxxxx XX, Xxxxxx X. Xxxxx, Xxxx X. Max, The
JW/Jenn Trust, Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Polytechnic Preparatory Country Day
School, Xxx Xxxxxxxx and Xxxxxx Xxxxxx Trusts [SPECIFIC NAME OF EACH TRUST TO BE
PROVIDED], individually and collectively, on behalf of themselves and each of
their respective parents, subsidiaries, affiliates, successors, assigns,
partners, limited partners, heirs, spouses, beneficiaries, executors, estates,
administrators, trustees, advisors, agents, attorneys and representatives
(herein collectively the "RELEASORS" and each individually a "RELEASOR"), in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration received from the Noteholder Entities (as defined below), the
receipt and sufficiency of which is acknowledged, hereby forever release, remise
and discharge Xxxxxxxxx Xxxxx Corporation ("Xxxxxxxxx"), its parents,
subsidiaries, affiliates, estates, successors and assigns (herein the "Debtor
Entities"), all Consenting Noteholders (as defined in the Lock-Up Agreement
dated June 12, 2002), their respective parents, subsidiaries, affiliates,
estates, successors and assigns (herein the "Noteholder Entities"), and each of
the Debtor Entities' and Noteholder Entities' respective shareholders,
directors, officers, partners, limited partners, trustees, beneficiaries,
employees, agents, independent contractors, attorneys, parents, subsidiaries,
affiliates of every kind and nature, heirs, executors, administrators, estates,
successors and assigns (herein collectively, and including the Debtor
Entities and Noteholder Entities, the "RELEASEES" and each individually a
"RELEASEE") of and from any and all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims, and demands of any kind whatsoever
whether in law, admiralty or equity, whether known or unknown, which any of the
RELEASORS ever had, now has or can, shall or may, in the future have against any
RELEASEE, for, upon, by reason of, arising out of or related to the Debtor
Entities from the beginning of the world to the date of this RELEASE.
Each RELEASOR expressly agrees not to xxx any RELEASEE for any action,
cause of action, claim, suit, debt, dues, sum of money, account, reckoning,
xxxx, xxxx, specialty, covenant, contract, controversy, agreement, promise,
variance, trespass, damage, judgment, extent, execution, claim or demand of any
kind whatsoever, whether in law, admiralty or equity, whether known or unknown,
which any RELEASOR ever had, now has or can, shall or may, in the future, have
against any RELEASEE, for, upon, or by reason of, arising out of or related to
the Debtor Entities from the beginning of the world to the date of this RELEASE.
Each RELEASOR shall indemnify RELEASEES with respect to all costs and
expenses of any kind incurred by any RELEASEE in the event such RELEASOR
breaches this RELEASE in any respect.
Each RELEASOR expressly acknowledges that it has been advised in
writing to consult with an attorney before executing this RELEASE.
Each RELEASOR expressly acknowledges that it has carefully read and
fully understands all of the terms, conditions, provisions and effects of this
RELEASE.
-2-
Each RELEASOR expressly acknowledges that the consideration referred
to in this RELEASE is in addition to anything of value to which RELEASOR is
entitled to receive from RELEASEE as of the date of the execution of this
RELEASE.
Each RELEASOR expressly acknowledges and agrees that if, contrary to
the covenant not to xxx contained in this RELEASE, any RELEASOR sues any
RELEASEE and the RELEASEE is the prevailing party in any such suit, RELEASORS
shall pay to RELEASEE an amount equal to all attorneys' fees and disbursements
incurred by RELEASEE in connection with any such suit.
Whenever the text hereof requires, the use of singular number shall
include the appropriate plural number as the text of the within instrument may
require.
This RELEASE may not be modified or changed, whether orally or
otherwise.
Each RELEASOR expressly acknowledges and agrees that this RELEASE
shall be construed under the laws of the State of Illinois.
This RELEASE shall become effective on the Effective Date of that
certain Debtors' Joint Plan of Reorganization dated June __, 2002 of Xxxxxx May
Holdings, Inc. and Xxxxxxxxx Xxxxx Corporation("Plan"), or any amendment or
modification to the Plan, PROVIDED, HOWEVER, that this RELEASE shall not be
effective with respect to any RELEASEE who does not execute a RELEASE in favor
of the RELEASORS in the form attached hereto as EXHIBIT A, and this RELEASE
shall be null and void with respect to such RELEASEE.
This RELEASE may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same agreement, and, subject
-3-
to the proviso in the preceding paragraph, shall be binding on each RELEASOR who
executes it regardless of whether it is executed by all RELEASORS.
IN WITNESS WHEREOF, each RELEASOR has hereunto set RELEASOR'S hand and
seal on the ____ day of June, 2002.
------------------------------ -------------------------------------------
TCW Special Placement Fund III TCW Capital 1990
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
TCW Capital 1989 WCT Investment Pte Ltd.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Mezzanine Capital Jordan Industries, Inc.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
JZ Equity Partners PLC Leucadia Investors, Inc.
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Xxxx X. Xxxxxx XX Xxxxxx X. Xxxxx
By: By:
--------------------------- ----------------------------------------
------------------------------ -------------------------------------------
Xxxx X. Max The JW/Jenn Trust
------------------------------ -------------------------------------------
Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx
-4-
------------------------------ -------------------------------------------
Xxxx Xxxxxx Xxxx Xxxx
------------------------------ -------------------------------------------
Xxxxx Xxxxxx Xxxxxxx Xxxxxx
------------------------------ -------------------------------------------
Xxxx Xxxxxxxx Polytechnic Preparatory Country Day School
------------------------------ -------------------------------------------
Xxx Xxxxxxxx Xxxxxx Xxxxxx Trusts
-5-
STATE OF
ss.:
COUNTY OF ____________
On June __, 2002 before me ___________________ personally came to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and acknowledged to me that he/she executed the same in
his/her capacity as the __________ of the RELEASORS and that he/she was duly
authorized to do so.
---------------------------------------
NOTARY PUBLIC
-6-
EXHIBIT A
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT the
Consenting Noteholders (as defined in the Lock-Agreement dated June 12, 2002),
on behalf of themselves and their respective parents, subsidiaries, affiliates,
successors and assigns (herein collectively the "RELEASORS" and each
individually a "RELEASOR"), in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration, received from TCW Special Placement
Fund III, TCW Capital 1990, TCW Capital 1989, WCT Investment Pte Ltd., Mezzanine
Capital, Jordan Industries, Inc., JZ Equity Partners PLC, Leucadia Investors,
Inc, Xxxx X. Xxxxxx XX, Xxxxxx X. Xxxxx, Xxxx X. Max, The JW/Jenn Trust, Xxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx
Xxxxxx, Xxxx Xxxxxxxx, Polytechnic Preparatory Country Day School, Xxx Xxxxxxxx
and Xxxxxx Xxxxxx Trusts [SPECIFIC NAME OF EACH TRUSTTO BE PROVIDED], the
receipt and sufficiency of which is hereby acknowledged, forever release, remise
and discharge TCW Special Placement Fund III, TCW Capital 1990, TCW Capital
1989, WCT Investment Pte Ltd., Mezzanine Capital, Jordan Industries, Inc., JZ
Equity Partners PLC, Leucadia Investors, Inc, Xxxx X. Xxxxxx XX, Xxxxxx X.
Xxxxx, Xxxx X. Max, The JW/Jenn Trust, Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx
Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Polytechnic
Preparatory Country Day School, Xxx Xxxxxxxx and Xxxxxx Xxxxxx Trusts [SPECIFIC
NAME OF EACH TRUST TO BE PROVIDED] and each of their respective shareholders,
directors, officers, partners, limited partners, trustees, beneficiaries,
employees, agents, independent contractors, attorneys, affiliates of every kind
and nature, heirs, executors,
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administrators, successors and assigns (herein collectively the "RELEASEES" and
each individually a "RELEASEE") of and from any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands of any kind whatsoever whether in law, admiralty or equity, whether
known or unknown (herein "Claims"), which the RELEASOR ever had, now has or can,
shall or may, in the future have against RELEASEES, for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this RELEASE, PROVIDED HOWEVER that this RELEASE is expressly
limited in its entirety to Claims arising from the RELEASOR'S acquisition or
ownership of Senior Secured Notes of Xxxxxxxxx Xxxxx Corporation ("Senior
Notes").
Each RELEASOR expressly agrees not to xxx any RELEASEE for any action,
cause of action, suits, debt, dues, sum of money, account, reckoning, xxxx,
xxxx, specialty, covenant, contract, controversy, agreement, promise, variance,
trespass, damage, judgment, extent, execution, claim or demand of any kind
whatsoever, whether in law, admiralty or equity, whether known or unknown, which
the RELEASOR ever had, now has or can, shall or may, in the future have against
the RELEASEES, for, upon, or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the day of the date of this RELEASE, and
arising from, or in any way related to the RELEASOR'S acquisition or ownership
of the Senior Notes.
Each RELEASOR shall indemnify RELEASEES with respect to all costs and
expenses of any kind incurred by any RELEASEE in the event such RELEASOR
breaches this RELEASE in any respect.
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Each RELEASOR expressly acknowledges that it has been advised in
writing to consult with an attorney before executing this RELEASE.
Each RELEASOR expressly acknowledges that it has carefully read and
fully understands all of the terms, conditions, provisions and effects of this
RELEASE.
Each RELEASOR expressly acknowledges that the consideration referred
to in this RELEASE is in addition to anything of value to which RELEASOR is
entitled to receive from RELEASEE as of the date of the execution of this
RELEASE.
Each RELEASOR expressly acknowledges and agrees that if, contrary to
the covenant not to xxx contained in this RELEASE, RELEASOR sues RELEASEE and
RELEASEE is the prevailing party in any such suit, RELEASOR shall pay to
RELEASEE an amount equal to all attorneys' fees and disbursements incurred by
RELEASEE in connection with any such suit.
Whenever the text hereof requires, the use of singular number shall
include the appropriate plural number as the text of the within instrument may
require.
This RELEASE may not be modified or changed, whether orally or
otherwise.
Each RELEASOR expressly acknowledges and agrees that this RELEASE
shall be construed under the laws of the State of Illinois.
This RELEASE shall become effective on the Effective Date of that
certain Debtors' Joint Plan of Reorganization dated June __, 2002 of Xxxxxx May
Holdings, Inc. and Xxxxxxxxx Xxxxx Corporation("Plan"), or any amendment or
modification to the Plan, PROVIDED, HOWEVER, that this RELEASE shall not be
effective with respect to any RELEASEE who does
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not execute a RELEASE in favor of the RELEASORS in the form attached hereto as
EXHIBIT A, and this RELEASE shall be null and void with respect to such
RELEASEE.
This RELEASE may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same agreement, and, subject to the proviso in the preceding paragraph, shall be
binding on each RELEASOR who executes it regardless of whether it is executed by
all RELEASORS.
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IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S hand and
seal on the ____ day of June, 2002.
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---------------------------------
---------------------------------
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STATE OF
ss.:
COUNTY OF ____________
On June __, 2002 before me ___________________ personally came to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and acknowledged to me that he/she executed the same in
his/her capacity as the __________ of the RELEASOR and that he/she was duly
authorized to do so.
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NOTARY PUBLIC
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