<PAGE> 1
EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------X
IN RE :
: CHAPTER 11
WAXMAN INDUSTRIES, INC., : CASE NO. 00-3815
: ---------
:
DEBTOR IN POSSESSION :
------------------------------------------------------X
JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE OF WAXMAN INDUSTRIES, INC.
AND THE UNOFFICIAL BONDHOLDERS' COMMITTEE
-----------------------------------------
SCOTT M. ZIMMERMAN PAUL S. ARONZON
SHALOM JACOB DAVID ZOLKIN
DEBRA KRAMER SCOTT GAUTIER
SWIDLER BERLIN SHEREFF MILBANK, TWEED, HADLEY
FRIEDMAN, LLP & MCCLOY LLP
405 LEXINGTON AVENUE 601 SOUTH FIGUEROA STREET - 30TH FL.
NEW YORK, NY 10174 LOS ANGELES, CA 90017
(212) 973-0111 (213) 892-4000
RICHARD H. WYRON ATTORNEYS FOR THE
SWIDLER BERLIN SHEREFF UNOFFICIAL BONDHOLDERS' COMMITTEE
FRIEDMAN, LLP
3000 K STREET, N.W. , SUITE 300
WASHINGTON, D.C. 20007
(202) 424-7500
ROBERT J. DEHNEY
ERIC SCHWARTZ
MORRIS, NICHOLS, ARSHT & TUNNELL
1201 NORTH MARKET STREET
WILMINGTON, DE 19801
(302) 575-7353
ATTORNEYS FOR WAXMAN INDUSTRIES, INC.
DATED: AUGUST 31, 2000
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I - DEFINITION OF TERMS AND RULES OF INTERPRETATION.................2
1.1 DEFINITION OF TERMS...............................2
1.2 RULES OF INTERPRETATION. ........................16
ARTICLE II - TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS
AND PRIORITY TAX CLAIMS..........................16
2.1 ADMINISTRATIVE EXPENSE CLAIMS....................16
2.2 PRIORITY TAX CLAIMS..............................18
ARTICLE III - CLASSIFICATION OF CLAIMS AND INTERESTS......................18
ARTICLE IV - TREATMENT OF CLAIMS AND EQUITY INTERESTS......................19
4.1 CLASS 1 - PRIORITY CLAIMS........................19
4.2 CLASS 2 - SECURED CLAIMS
(EXCEPT FOR DEFERRED COUPON NOTE CLAIMS).........19
4.3 CLASS 3 - DEFERRED COUPON NOTE CLAIMS............20
4.4 CLASS 4 - UNSECURED CLAIMS.......................22
4.5 CLASS 5 - INTERCOMPANY CLAIMS....................22
4.6 CLASS 6 - COMMON STOCK...........................22
4.7 CLASS 7 - COMMON STOCK...........................23
4.8 CLASS 8 - STOCK OPTIONS..........................23
ARTICLE V - IMPLEMENTATION OF THE PLAN AND SPECIAL
RULES GOVERNING TREATMENT OF DEFERRED
COUPON NOTE CLAIMS...............................24
ARTICLE VI - METHOD OF DISTRIBUTIONS UNDER THE PLAN........................26
6.1 IN GENERAL.......................................26
6.2 DISTRIBUTIONS OF CASH............................27
6.3 TIMING OF DISTRIBUTIONS. ........................27
6.4 UNCLAIMED DISTRIBUTIONS..........................27
6.5 DISTRIBUTIONS MADE ONLY TO RECORD HOLDERS........28
i
<PAGE> 3
6.6 SURRENDER OF EXISTING SECURITIES AND AGREEMENTS..29
ARTICLE VII - PROCEDURES FOR THE TREATMENT OF DISPUTED CLAIMS..............29
7.1 DISALLOWANCE OF IMPROPERLY FILED CLAIMS..........29
7.2 PROSECUTION OF OBJECTIONS TO CLAIMS..............30
7.3 NO DISTRIBUTIONS PENDING ALLOWANCE. .............30
7.4 DISTRIBUTIONS AFTER ALLOWANCE....................30
ARTICLE VIII - EXECUTORY CONTRACTS AND UNEXPIRED LEASES....................30
8.1 ASSUMPTION OR REJECTION OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES...................30
8.2 APPROVAL OF ASSUMPTION OR REJECTION OF
EXECUTORY CONTRACTS AND UNEXPIRED LEASES.........31
8.3 CURE OF DEFAULTS.................................31
8.4 BAR DATE FOR FILING PROOFS OF CLAIM RELATING
TO ANY REJECTED EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.................................31
8.5 INSURANCE POLICIES...............................32
8.6 INDEMNIFICATION OBLIGATIONS......................32
8.7 COMPENSATION AND BENEFIT PROGRAMS. ..............32
8.8 RETIREE BENEFITS.................................33
ARTICLE IX - RELEASES, WAIVERS AND EXCULPATION.............................33
9.4 NO LIABILITY FOR SOLICITATION OR PARTICIPATION. .34
9.5 BINDING EFFECT OF RELEASES.......................35
ARTICLE X - GOVERNANCE AND MANAGEMENT OF REORGANIZED WAXMAN................35
10.1 GENERAL..........................................35
10.2 DIRECTORS AND OFFICERS OF REORGANIZED WAXMAN.....35
10.3 EMPLOYEE RETENTION INCENTIVE PLAN................36
ARTICLE XI - CONDITIONS TO CONFIRMATION AND
EFFECTIVENESS OF THE PLAN........................36
11.1 CONSUMMATION OF THE PLAN.........................36
11.2 CONDITIONS TO THE EFFECTIVE DATE OF THE PLAN.....36
11.3 EFFECT OF FAILURE OF CONDITIONS..................37
11.4 WAIVER OF CONDITIONS.............................38
ARTICLE XII - EFFECT OF CONFIRMATION OF PLAN...............................38
12.1 TERM OF BANKRUPTCY INJUNCTION OR STAYS...........38
12.2 REVESTING OF ASSETS..............................38
12.3 DISCHARGE OF DEBTOR..............................38
12.4 PERMANENT INJUNCTION.............................39
ii
<PAGE> 4
12.5 SETOFFS..........................................39
12.6 SECTION 346 INJUNCTION...........................39
12.7 COMPLIANCE WITH TAX REQUIREMENTS.................40
12.8 DISCHARGE OF INDENTURE TRUSTEE...................40
ARTICLE XIII - RETENTION OF JURISDICTION...................................40
ARTICLE XIV - MISCELLANEOUS PROVISIONS....................................40
14.1 NON-IMPAIRMENT OF NON-WAXMAN CLAIMS..............41
14.2 EXEMPTION FROM TRANSFER TAXES....................42
14.3 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS..43
14.4 TERMINATION OF CREDITORS' COMMITTEE AND
BONDHOLDERS' COMMITTEE...........................42
14.5 AMENDMENT OR MODIFICATION OF THE PLAN............42
14.6 REVOCATION OR WITHDRAWAL OF THE PLAN. ...........42
14.7 BINDING EFFECT...................................43
14.8 NO ADMISSION.....................................43
14.9 NOTICES..........................................43
14.10 GOVERNING LAW....................................45
14.11 PLAN SUPPLEMENT..................................45
14.12 HEADINGS.........................................45
14.13 EXHIBITS AND SCHEDULES...........................45
iii
<PAGE> 5
INDEX OF EXHIBITS AND SCHEDULE
EXHIBITS
--------
Exhibit A..................Recapitalization Agreement dated December 8, 1999
(including exhibits);(1) Amendment, Consent and
Waiver Agreement dated July 9, 2000.(2)
Exhibit B..................Waxman Industries, Inc. Employee Retention Incentive
Plan (3)
SCHEDULE
--------
Schedule 8.1...............Executory Contracts and Unexpired Leases to be
Rejected
--------
(1) Exhibit 10.1 to the Company's Form 8-K filed December 14, 1999,
File No. 001-10273, incorporated herein by reference.
(2) Exhibit 10.5 to the Company's Form 8-K filed July 17, 2000, File
No. 0-5888, incorporated herein by reference.
(3) Omitted exhibit to be furnished to the Securities and Exchange
Commission upon request.
<PAGE> 6
JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE OF WAXMAN INDUSTRIES, INC.
AND THE UNOFFICIAL BONDHOLDERS' COMMITTEE
-----------------------------------------
Waxman Industries, Inc. and the Unofficial Bondholders' Committee
hereby propose the following joint plan of reorganization under Section 1121(a)
of Title 11 of the United States Code:
ARTICLE I - DEFINITION OF TERMS AND RULES OF INTERPRETATION
1.1 DEFINITION OF TERMS.
-------------------
Administrative Expense
Claim means any right to payment constituting a
cost or an expense of administration of the
Chapter 11 Case under Sections 503(b) and
507(a)(1) of the Bankruptcy Code, including,
without limitation, (i) any actual and
necessary costs and expenses of preserving
the estate of the Debtor In Possession, of
administering the Chapter 11 Case as
authorized and approved by a Final Order, or
of operating the business of the Debtor In
Possession, (ii) any indebtedness or
obligations incurred or assumed by the
Debtor In Possession in connection with the
conduct of its business, including, without
limitation, for the acquisition or lease of
property or an interest in property or the
rendition of services, (iii) all
compensation and reimbursement of expenses
to the extent allowed and/or authorized by
Final Order under Sections 330, 331 or
503(b) of the Bankruptcy Code, and (iv) any
fees or charges assessed against the estate
of the Debtor In Possession under Section
1930 of Chapter 123 of Title 28 of the
United States Code.
Allowed means:
Claim
(a) with respect to an Administrative
Expense Claim, an Administrative Expense
Claim, or any portion thereof, that (i) is
allowed by a Final Order or that is deemed
allowed pursuant to Sections 102 and 503(b)
of the Bankruptcy Code or (ii) is a Claim
incurred by the Debtor In Possession in the
ordinary course of its business AND that (A)
has been expressly acknowledged by the
Debtor In Possession as due and owing
pursuant to a written agreement executed by
the Debtor In Possession after the Petition
Date, or (B) for which (and to the extent
that) the Debtor In Possession has tendered
or delivered payment by check, money order,
or wire transfer, or otherwise;
2
<PAGE> 7
(b) with respect to a Claim (other than an
Administrative Expense Claim), a Claim
arising prior to the Petition Date, or any
portion thereof (i) that has been expressly
acknowledged by the Debtor In Possession as
due and owing pursuant to a written
agreement executed by the Debtor In
Possession after the Petition Date (ii) that
has been allowed by a Final Order (iii) for
which a Bar Date has been established and a
proof of Claim has been timely filed with
the Bankruptcy Court pursuant to the
Bankruptcy Rules or any Final Order of the
Bankruptcy Court, and as to which either (A)
no objection thereto, or application to
estimate, equitably subordinate or otherwise
limit recovery, has been filed within the
periods of limitation fixed by the
Bankruptcy Code, Bankruptcy Rules, the Plan,
or any Final Order, or (B) any objection to
its allowance or application to estimate,
equitably subordinate or otherwise limit
recovery has been settled, withdrawn, or has
been denied by a Final Order, (iv) that is
expressly allowed in the Plan, (v) from the
recovery of property under Section 550 or
553 of the Bankruptcy Code and allowed in
accordance with Section 502(h) of the
Bankruptcy Code or (vi) that has been listed
in the Schedules (which have not been
amended) and (A) is not disputed, contingent
or unliquidated, and (B) for which a proof
of Claim has not been filed; and
(c) with respect to an Equity Interest, an
Equity Interest, or any portion thereof, (i)
that has been allowed by a Final Order, (ii)
for which a Bar Date has been established
and a proof of Equity Interest has been
timely filed with the Bankruptcy Court
pursuant to the Bankruptcy Rules or any
Final Order of the Bankruptcy Court, and as
to which either (A) no objection has been
filed within the periods of limitation fixed
by the Bankruptcy Code, Bankruptcy Rules,
the Plan, or any Final Order, or (B) any
objection to its allowance has been settled,
withdrawn, or has been denied by a Final
Order, (iii) that is expressly allowed in
the Plan, or (iv) that has been listed in
the Schedules (which have not been amended)
and (A) is not listed as disputed,
contingent or unliquidated, and (B) is not
an Equity Interest as to which a proof of
Equity Interest has been filed.
Asset Sale means any sale of all or a substantial part
of the assets of Waxman and/or any of the
Subsidiaries, provided, however, that any
sale, liquidation or transfer of any
inventory or receivables in the ordinary
course of such entity's business or of any
obsolete or unused equipment or inventory,
shall not constitute an Asset Sale and
provided further that (i) any stock or other
equity-based consideration sold, granted or
issued by Waxman and/or any of the
Subsidiaries in
3
<PAGE> 8
connection with any acquisition, (ii) the
issuance or grant by Waxman and/or any of
the Subsidiaries, or the exercise by any
holder of any Stock Options or other equity
based awards, and/or (iii) any compensation
programs involving the grant, sale or
transfer of stock, Stock Options or other
equity-based awards by Waxman and/or any of
the Subsidiaries (including the Employee
Retention Incentive Plan), shall not
constitute an Asset Sale.
Asset Sale Proceeds means the net proceeds of any Asset Sale
received by Waxman and/or any Subsidiary,
after deducting all of the costs, fees,
expenses and commissions of, or related to,
the Asset Sale including (x) provisions for
taxes payable within one year as a result of
such Asset Sale, (y) payments made to retire
indebtedness secured by the assets subject
to such Asset Sale and (z) appropriate
amounts to be provided by such Subsidiary,
as the case may be, as a reserve required,
in accordance with GAAP, against any
liabilities associated with such Asset Sale
and retained by such Subsidiary, as the case
may be, after such Asset Sale, including,
without limitation, pension and other post-
employment benefit liabilities, and such
liabilities under any indemnification
obligations associated with such Asset Sale.
Avoidance Action means all rights, remedies, claims or causes
of action against all Persons, whether at
law or at equity, of or on behalf of the
Debtor In Possession and/or the Bankruptcy
Estate (and/or any Person acting on their
behalf) arising under Sections 544, 545,
546, 547, 548, 549, 550, 553 or 558 of the
Bankruptcy Code, or any other similar state
or federal law.
Bankruptcy Code means Title 11 of the United States
Code, as amended from time to time, as
applicable to the Chapter 11 Case.
Bankruptcy Court means the United States District Court
for the District of Delaware having
jurisdiction over the Chapter 11 Case and,
to the extent of any reference under 28
U.S.C ss.157, the unit of such District
Court under 28 U.S.C. ss.151.
Bankruptcy Estate means the estate of the Debtor In
Possession created in the Chapter 11 Case
pursuant to Section 541 of the Bankruptcy
Code.
Bankruptcy Professional means any Person (a) employed pursuant to an
order of the Bankruptcy Court in accordance
with Section 327 or 1103 of the Bankruptcy
Code and to be compensated for services
pursuant to Sections 327, 328, 329, 330
and/or 331 of the Bankruptcy Code, or
4
<PAGE> 9
(b) who wishes to apply to the Bankruptcy
Court for compensation and reimbursement of
expenses pursuant to Section 503(b) of the
Bankruptcy Code.
Bankruptcy Rules means the Federal Rules of Bankruptcy
Procedure, as amended from time to time,
promulgated by the United States Supreme
Court under Section 2075 of Title 28 of the
United States Code, and any applicable local
rules of the Bankruptcy Court.
Bar Date means the date fixed by order of the
Bankruptcy Court by which Persons asserting
a Claim against the Debtor must file a proof
of Claim or be forever barred from asserting
such Claim against the Debtor or its
property and from voting on the Plan and/or
sharing in distributions hereunder.
Barnett means Barnett Inc., a Delaware corporation.
Barnett Common Stock means the 7,186,530 shares of
outstanding common stock of Barnett, $.01
par value per share, currently owned by
Waxman USA, less any shares sold to fund the
September 1, 2000 interest payment on the
Senior Notes in accordance with the Voting
Trust Agreement.
Barnett Stock Proceeds means the aggregate amount of the proceeds
of the Barnett Stock Sale (including the
difference, if any, between the Merger
Consideration and the net proceeds per share
received by Waxman USA for shares sold to
fund the September 1, 2000 interest payment
on the Senior Notes pursuant to the Voting
Trust Agreement) received by Waxman USA less
payment of the following: (i) the Barnett
Stock Sale Taxes; (ii) $10.05 million
payable to Congress on account of amounts
due under the Congress Credit Facility;
(iii) such amount as is necessary to satisfy
all of the Senior Note Indebtedness; and
(iv) the amount of the accrued interest due
and payable on June 1, 2000 under the
Indenture on the Deferred Coupon Notes.
Barnett Stock Purchaser means Wilmar Industries, Inc., a New
Jersey corporation and BW Acquisition, Inc.,
a Delaware corporation and a wholly-owned
subsidiary of Wilmar, or any other purchaser
or purchasers which have agreed to purchase
all of the outstanding shares of the Barnett
Common Stock pursuant to the Merger Purchase
Agreement or any other similar agreement.
Barnett Stock Sale means the purchase by the Barnett Stock
Purchaser of the Barnett Common Stock.
5
<PAGE> 10
Barnett Stock Sale Taxes shall have the same meaning as the
term "Taxes," which is defined in Section
I.C of the Term Sheet.
Board of Directors means the board of directors of
Reorganized Waxman after the Effective Date.
Bondholders'
Committee means the unofficial committee formed and
existing prior to the Petition Date
comprised of the Consenting Bondholders.
Business Day means any day other than a Saturday,
Sunday or legal holiday, as such term is
defined in Bankruptcy Rule 9006.
By-Laws means the By-Laws of Reorganized Waxman, as
amended from time to time.
Cash means any legal tender of the United States
of America and equivalents (including
personal checks drawn on a bank insured by
the Federal Deposit Insurance Corporation,
certified checks and money orders and other
readily marketable direct obligations of the
United States of America and certificates of
deposit issued by banks).
Causes of Action means, without limitation, any and all
rights, remedies, claims, causes of action,
liabilities, obligations, rights, suits,
debts, sums of money, damages, judgments,
Claims and demands whatsoever, whether known
or unknown, in law, equity, or otherwise
which may be brought by or on behalf of the
Debtor In Possession and/or the Bankruptcy
Estate arising under any provision of the
Bankruptcy Code or other applicable law,
including, but not limited to, any Avoidance
Action.
Certificate
of Incorporation means the Certificate of Incorporation of
Reorganized Waxman, as amended from time to
time.
Chapter 11 Case means the Debtor's case under Chapter 11 of
the Bankruptcy Code administered in the
Bankruptcy Court.
Claim means a claim against a Person or its
property as defined in Section 101(5) of the
Bankruptcy Code, including without
limitation, (a) any right to payment,
whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or
unsecured or (b) any right to an equitable
remedy for breach of performance if such
breach
6
<PAGE> 11
gives rise to a right to payment, whether or
not such right to an equitable remedy is
reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed,
secured or unsecured.
Class means a category of Person or Persons
holding Claims or Equity Interests as set
forth in Article III of the Plan.
Class B Common
Stock means the authorized Class B common stock,
par value $.01 per share, issued by Waxman.
Collateral means any property or interest in property
of the Bankruptcy Estate subject to a Lien
to secure the payment or performance of a
Claim, which Lien is not subject to
avoidance, setoff or subordination under the
Bankruptcy Code or otherwise invalid under
the Bankruptcy Code or applicable state law.
Common Stock means the authorized common stock, par value
$.01 per share, issued by Waxman.
Confirmation Date means the date on which the Confirmation
Order is entered by the Bankruptcy Court.
Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan
pursuant to Section 1129 of the Bankruptcy
Code, as such hearing may be adjourned or
continued from time to time.
Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to Section 1129
of the Bankruptcy Code.
Congress means Congress Financial Corporation, a
Delaware corporation.
Congress Credit
Facility means the working capital credit facility
made available by Congress under the Loan
and Security Agreement.
Congress Consent Letter means the consent and waiver agreement,
dated July 10, 2000, executed by Congress,
Waxman, Waxman USA, TWI, Consumers Products,
Medal, WAMI and WAMI Sales.
Consenting Bondholder means each holder of a Deferred Coupon
Note that has signed the Recapitalization
Agreement.
7
<PAGE> 12
Consumer Products means Waxman Consumer Products Group Inc., a
Delaware corporation and a wholly-owned
subsidiary of Waxman USA.
Creditor means a Person holding a Claim against
Waxman.
Creditors' Committee means any official statutory committee of
Creditors appointed in the Chapter 11 Case
pursuant to Section 1102 of the Bankruptcy
Code, whose members may be identical, in
whole or in part, to the members of the
Bondholders' Committee.
CWI means CWI International China, Ltd., a
wholly owned Subsidiary of TWI.
Debtor means Waxman.
Debtor In Possession means the Debtor in its capacity as debtor
in possession in the Chapter 11 Case
pursuant to Sections 1101, 1107(a) and 1108
of the Bankruptcy Code.
Deferred Coupon Notes means the 12 3/4% Senior Secured Deferred
Coupon Notes Due 2004, Series A and the 12
3/4% Senior Secured Deferred Coupon Notes
Due 2004, Series B, issued pursuant to that
certain Indenture, dated May 20, 1994, as
amended and/or supplemented to date, among
Waxman Industries, Inc., as Issuer, and The
Huntington National Bank, as Trustee, as
amended and/or supplemented to the date
hereof.
Deferred Coupon Note
Claim means any unpaid Claim arising from, and/or
relating to, the Deferred Coupon Notes
and/or the Indenture, including, but not
limited to, any Claim for (i) the principal
amount of the Deferred Coupon Notes, (ii)
any interest accrued or accreted on the
Deferred Coupon Notes to the extent such
interest constitutes an Allowed Claim under
applicable law, (iii) the reasonable fees,
expenses and any other Claims of the
Indenture Trustee for which Waxman is liable
under the terms of the Indenture, and (iv)
any other amounts that may be claimed by any
Person to be due under, or on account of,
the Deferred Coupon Notes and/or the
Indenture.
8
<PAGE> 13
Deferred Coupon Note
Collateral means any Lien, security interest and/or
similar rights held by the Indenture Trustee
and/or holders of the Deferred Coupon Notes
pursuant to, or in connection with, the
Indenture and/or the Deferred Coupon Notes.
Deferred Coupon Note
Payment Fund means an interest bearing account
established solely in the name of Waxman USA
pursuant to the Recapitalization Agreement
and containing the Barnett Stock Proceeds
and any and all interest that accrues on the
funds in such account through the Effective
Date, which funds shall be used to make
distributions on account of the Deferred
Coupon Note Claims in accordance with
Article IV.3 of the Plan.
Deferred Coupon Note
Record Date means August 28, 2000, the date on which a
holder of record of a Deferred Coupon Note
Claim is determined.
Deferred Coupon Note
Record Holder means a holder of a Deferred Coupon Note as
of the Deferred Coupon Note Record Date.
Disbursing Agent means the Indenture Trustee or such
other entity designated by Waxman to make
the distributions provided for under Article
III of the Plan to holders of the Deferred
Coupon Notes.
Disclosure Statement means the disclosure statement
relating to the Plan, including, without
limitation, all exhibits and schedules
thereto filed with the Bankruptcy Court in
connection with the Plan pursuant to Section
1125 of the Bankruptcy Code.
Disputed means, with respect to Administrative
Expense Claims, Claims or Equity Interests,
any such Claim or Equity Interest:
(a) that is listed in the Schedules
as unliquidated, disputed or contingent; or
(b) as to which the Debtor or any
other party-in-interest has interposed a
timely objection or request for estimation,
or have sought to equitably subordinate or
otherwise limit recovery in accordance with
the Bankruptcy Code and Bankruptcy Rules, or
which is otherwise disputed by the Debtor in
accordance with applicable law,
9
<PAGE> 14
which objection, request for estimation,
action to limit recovery or dispute has not
been withdrawn or determined by Final Order.
Distribution Record
Date means the Confirmation Date or, with respect
to a specific Administrative Expense Claim,
such other date that is expressly agreed to
in writing by Waxman after the Petition
Date.
Effective Date means no later than the first Business
Day at least ten days after the Confirmation
Date and at least one Business Day after all
of the conditions specified in Section 11.2
of the Plan have been satisfied or waived in
accordance with the terms of the Plan.
Employee Retention
Incentive Plan means the Waxman Industries, Inc. Employee
Retention Incentive Plan, the terms of which
are set forth in Exhibit B to the Plan.
Equity Interest means any equity interest in the Debtor
evidenced by a certificate or instrument
evidencing an ownership interest in Waxman,
whether or not transferable and includes the
Common Stock, Class B Common Stock and Stock
Options.
Equity Sale means the issuance or sale by Waxman or
Waxman USA of any preferred or common shares
(but not options or warrants) of Waxman or
Waxman USA, respectively, provided, however,
that the issuance, grant and/or sale of
stock, Stock Options or other equity-based
awards in connection with (i) any
acquisition by Waxman or any Subsidiaries,
or (ii) any compensation program or employee
retention incentive program approved and/or
implemented by, or for the benefit of,
Waxman and/or any of the Subsidiaries
(including the Employee Retention Incentive
Plan), shall not constitute an Equity Sale.
Equity Sale Proceeds means the net proceeds of any Equity Sale
received by Waxman or Waxman USA, after
deducting all of the costs, fees, expenses
and commissions of, and/or related to, the
Equity Sale including (x) provisions for
taxes payable within one year as a result of
such Equity Sale, (y) payments made to
retire indebtedness secured by the Equity
Interests subject to such Equity Sale and
(z) appropriate amounts to be provided by
Waxman or Waxman USA, as the case may be, as
a reserve required, in accordance with GAAP,
against any liabilities associated with such
Equity Sale and retained by either Waxman or
Waxman USA, as the case may be, after such
Equity Sale, including, without limitation,
pensions and other post-employment benefit
10
<PAGE> 15
liabilities, and such liabilities under any
indemnification obligations associated with
such Equity Sale.
Exculpated Persons means (i) all present and former employees,
officers, directors, shareholders,
affiliates and Subsidiaries of the Debtor,
the Debtor In Possession, Reorganized Waxman
and any other Persons who serve or have
served as members of management of the
Debtor, the Debtor In Possession,
Reorganized Waxman and all of their
successors and assigns, (ii) all members of
the Bondholders' Committee, and all present
and former employees, members, officers and
directors and other Persons who serve or
served as members of the management of any
member of the Bondholders' Committee, (iii)
Congress and all of its present and former
employees, members, officers, directors and
shareholders, (iv) Barnett and all of its
present and former employees, officers,
directors, shareholders and agents, (v) the
Barnett Stock Purchaser and all of its
attorneys, advisors, accountants, officers,
directors, shareholders and agents, and (vi)
all attorneys, advisors, accountants,
financial advisors, agents and consultants
of, or to, the Debtor, the Debtor In
Possession, Reorganized Waxman, the
Subsidiaries, the Bondholders' Committee,
the Creditors' Committee (if any is
appointed), Barnett, Congress, and Ordinary
Course Professionals.
Executory Contracts means all contracts to which the Debtor In
Possession is a party and which are
executory within the meaning of Section 365
of the Bankruptcy Code, including unexpired
leases.
Final Order means an order or judgment of the Bankruptcy
Court (entered before or after the Effective
Date) as to which the time to appeal,
petition for certiorari or move for
reargument or rehearing has expired and as
to which no appeal, petition for certiorari,
or other proceedings for reargument or
rehearing shall then be pending or as to
which any right to appeal, petition for
certiorari, reargue, or rehear shall have
been waived in writing in form and substance
satisfactory to the Debtor In Possession or
Reorganized Waxman or, in the event that an
appeal, writ of certiorari, or reargument or
rehearing thereof has been sought, such
order or judgment of the Bankruptcy Court
shall have been determined by the highest
court to which such order was appealed, or
certiorari, reargument or rehearing shall
have been denied and the time to take any
further appeal, petition for certiorari or
move for reargument or rehearing shall have
expired; provided; however, that the
possibility that a motion under Rule 59 or
Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under
11
<PAGE> 16
the Bankruptcy Rules, may be filed with
respect to such order shall not cause such
order not to be a Final Order.
Governmental Unit has the meaning set forth in Section 101(27)
of the Bankruptcy Code.
Impaired Class means a Class that is impaired within the
meaning of Section 1124 of the Bankruptcy
Code.
Indenture means the Indenture, dated May 20, 1994,
among Waxman, as Issuer, and The Huntington
National Bank, as Trustee, pursuant to which
Waxman issued the Deferred Coupon Notes, as
amended by that certain First Supplemental
Indenture dated January 19, 1996 that
certain Second Supplemental Indenture dated
December 1, 1999 and by that certain Third
Supplemental Indenture dated February 22,
2000.
Indenture Trustee means the Huntington National Bank, its
successors or assigns serving in the
capacity of trustee under the Indenture.
Intercompany Claim means a Claim against the Debtor that is
held by any of the Subsidiaries.
Lien has the meaning set forth in Section 101(37)
of the Bankruptcy Code.
Loan and Security
Agreement means that certain Loan and Security
Agreement, dated as of June 17, 1999, as may
be amended from time to time, by and among
WAMI, WAMI Sales, Medal, Consumer Products,
as borrowers, and Waxman, Waxman USA and
TWI, as guarantors, and Congress.
Medal means Medal of Pennsylvania, Inc. (formerly
known as WOC Inc.), a Delaware corporation
and a wholly-owned subsidiary of Waxman USA.
Merger Consideration means the amount which the Barnett
Stock Purchaser has agreed to pay to acquire
all of the outstanding shares of Barnett
Common Stock owned by Waxman USA pursuant to
the Merger Purchase Agreement.
Merger
Purchase Agreement means the Agreement and Plan of Merger,
dated as of July 10, 2000 by and among the
Barnett Stock Purchaser and Barnett,
pursuant to
12
<PAGE> 17
which the Barnett Stock Purchaser has agreed
to acquire all of the outstanding shares of
Barnett Common Stock.
Ordinary Course
Professional means any attorney, accountant or other
professional (other than a Bankruptcy
Professional), employed by Waxman during the
Chapter 11 Case pursuant to an order of the
Bankruptcy Court that designates such
professional as an "Ordinary Course
Professional."
Person means any individual, corporation,
partnership, joint venture, association,
joint-stock company, trust, unincorporated
association or organization, Governmental
Unit or agency or political subdivision
thereof, and any successors or assigns of
any of the foregoing.
Petition Date means the date on which Waxman commenced the
Chapter 11 Case by filing a voluntary
petition for relief with the Bankruptcy
Court pursuant to the Bankruptcy Code.
Plan means this joint Chapter 11 plan of
reorganization, including, without
limitation, all exhibits, schedules,
supplements, and appendices hereto, either
in its present form or as the same may be
altered, amended or modified from time to
time.
Priority Claim means any and all Claims, other than an
Administrative Expense Claim or a Priority
Tax Claim, entitled to priority in right of
payment under Section 507(a) of the
Bankruptcy Code.
Priority Tax Claim means any Claim of a Governmental Unit of
the kind specified in Section 502(i) of the
Bankruptcy Code entitled to priority under
Section 507(a)(8) of the Bankruptcy Code.
Pro-Rata Share means a proportionate share, so that the
ratio of the consideration distributed on
account of an Allowed Claim or Equity
Interest in a Class to the amount of such
Allowed Claim or Equity Interest is the same
as the ratio of the amount of the
consideration distributed on account of all
Allowed Claims in such Class to the amount
of all Allowed Claims in such Class.
Recapitalization Agreement means the Agreement, dated December 9, 1999,
by and among Waxman, Waxman USA, the
Bondholders' Committee and each of the
Consenting Bondholders and all exhibits
thereto (including the Term Sheet)
concerning, inter alia, the restructuring
and/or satisfaction of the outstanding
indebtedness of Waxman, as modified
13
<PAGE> 18
by the Amendment, Consent and Waiver
Agreement entered into between the same
persons on July 9, 2000.
Released Parties means the Debtor, Debtor In Possession,
Reorganized Waxman, Waxman USA, the Waxmans,
the Bondholders' Committee, the Creditors'
Committee (if any is appointed), the
Indenture Trustee, the Consenting
Bondholders, Barnett and the Barnett Stock
Purchaser and in their capacities as such,
all of their respective current and former
affiliates, officers, directors, employees,
members, shareholders, agents, advisors,
attorneys, accountants, financial advisors,
and/or any Ordinary Course Professional.
Reorganized Waxman means Waxman and/or any successor thereto by
merger, consolidation or otherwise, on and
after the Effective Date.
Schedules means any schedules of assets and
liabilities, the list of holders of
interests and the statement of financial
affairs that may be filed by the Debtor
pursuant to Section 521 of the Bankruptcy
Code and Bankruptcy Rule 1007, as may be
supplemented or amended from time to time.
Secured Claim means any Allowed Claim, other than a
Deferred Coupon Note Claim, which is secured
by a Lien on Collateral, to the extent of
the value of such Collateral, as determined
in accordance with Section 506(a) of the
Bankruptcy Code, or, in the event that the
holder of such Claim holds a valid right of
setoff under Section 553 of the Bankruptcy
Code, to the extent of such valid setoff
right.
Senior Note Indebtedness means any and all amounts due and/or owing
under the Senior Notes and/or the Senior
Note Indenture, including: (i) $35,855,000
aggregate principal amount of the Senior
Notes; and (ii) all interest accrued but
unpaid under the Senior Notes during the
period of March 1, 2000 through the date on
which the Senior Notes are satisfied.
Senior Note Indenture means the Indenture, dated as of April 1,
1996, among Waxman USA, as Issuer, and
United States Trust Company of New York, as
Trustee, pursuant to which Waxman USA issued
the Senior Notes, as amended by that certain
First Supplemental Indenture dated December
1, 1999.
14
<PAGE> 19
Senior Notes means the 111/8% Senior Notes due 2001,
Series A and 111/8% Senior Notes due 2001,
Series B issued by Waxman USA pursuant to
the Senior Note Indenture.
Stock Option means an option to purchase shares of Common
Stock.
Subsidiaries means Waxman USA, TWI, Consumer Products,
CWI, Medal, and any other entity other than
Barnett that are owned, directly or
indirectly, in whole or in part, by Waxman.
Term Sheet means the Outline Of Principal Terms Of A
Restructuring And Joint Chapter 11 Plan Of
Reorganization annexed as Exhibit A to the
Recapitalization Agreement.
TWI means TWI International, Inc., a Delaware
corporation and a wholly-owned subsidiary
of Waxman USA.
Unsecured Claim means any Claim against Waxman that is not
an Administrative Expense Claim, Priority
Tax Claim, Priority Claim, Secured Claim,
Deferred Coupon Note Claim or Intercompany
Claim.
Voting Trust Agreement means the Voting Trust Agreement, dated July
10, 2000, among Waxman USA, Wilmar
Industries, Inc., BW Acquisition, Inc.,
American Stock Transfer & Trust Company, and
Barnett.
WAMI means Western American Manufacturing, Inc.
WAMI Sales means WAMI Sales, Inc.
Waxman means the Debtor, Waxman Industries, Inc., a
Delaware corporation.
Waxman USA means Waxman USA Inc., a Delaware
corporation and a wholly-owned subsidiary
of Waxman.
Waxmans means Mr. Armond Waxman, the President,
Treasurer and Co-Chief Executive Officer of
Waxman (both prior to and following the
Effective Date) and Mr. Melvin Waxman, the
Chairman of the Board of Directors of Waxman
and Co-Chief Executive Officer of Waxman
(both prior to and following the Effective
Date).
15
<PAGE> 20
1.2 RULES OF INTERPRETATION.
-----------------------
Wherever from the context it appears appropriate, each term stated in
either the singular or the plural shall include both the singular and the plural
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, feminine and neuter. 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. The rules of construction contained in Section 102
of the Bankruptcy Code shall apply to the construction of the Plan. A term that
is used, but not defined herein, but that is used in the Bankruptcy Code, shall
have the meaning ascribed to that term in the Bankruptcy Code. The headings in
the Plan are for convenience of reference only and shall not limit or otherwise
affect the provisions of the Plan.
ARTICLE II - TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS
AND PRIORITY TAX CLAIMS
2.1 ADMINISTRATIVE EXPENSE CLAIMS.
-----------------------------
(a) General.
Subject to the Bar Date provisions set forth below, unless
otherwise agreed to by Waxman and the holder of such claim, each holder of an
Allowed Administrative Expense Claim shall receive Cash equal to the unpaid
portion of such Allowed Administrative Expense Claim on the later of (a) the
Effective Date or as soon as practicable thereafter, (b) the date on which such
Claim becomes an Allowed Administrative Expense Claim, and (c) such other date
as is mutually agreed upon by the Debtor (or Reorganized Waxman) and the holder
of such Claim; PROVIDED, HOWEVER, that Administrative Expense Claims that
represent liabilities incurred by the Debtor in the ordinary course of its
business during the Chapter 11 Case shall, to the extent not paid on or before
the Effective Date, be paid by Reorganized Waxman in the ordinary course of its
business and in accordance with any terms and conditions of any agreements
relating thereto.
(b) Payment of Statutory Fees.
All fees payable pursuant to 28 U.S.C. ss. 1930 shall be paid
in Cash in the full amount of such Administrative Expense Claim when due.
(c) Bar Date for Bankruptcy Professionals' Administrative
Expense Claims.
(i) Bankruptcy Professionals. All Bankruptcy
Professionals requesting compensation or reimbursement of expenses pursuant to
Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code for services
rendered during the Chapter 11 Case (including, without
16
<PAGE> 21
limitation, any compensation requested by any Bankruptcy Professional or any
other entity for making a substantial contribution to the Chapter 11 Case),
shall file and serve on Reorganized Waxman, the Creditors' Committee (if one has
been appointed) and the United States Trustee for the District of Delaware an
application for final allowance of compensation and reimbursement of expenses no
later than forty five (45) days after the Effective Date. Objections to
timely-filed applications of Bankruptcy Professionals for compensation or
reimbursement of expenses must be filed and served on Reorganized Waxman and the
Bankruptcy Professional to whose application any objection is addressed no later
than seventy (70) days after the Effective Date. Any fees and expenses incurred
by Reorganized Waxman subsequent to the Confirmation Date for services rendered
by any Bankruptcy Professional or any Ordinary Course Professional may be paid
by Reorganized Waxman without notice to parties-in-interest or application to
the Bankruptcy Court.
(ii) Bondholders' Committee Expenses. Subject to the
preceding paragraph and to the terms of any agreements entered into between
Waxman and/or Waxman USA on the one hand, and the Bondholders' Committee and/or
any of its agents on the other hand, the reasonable unpaid fees and expenses
incurred by the Bondholders' Committee on behalf of the Consenting Bondholders
during the period of December 1, 1999 through the Effective Date, on account of
services rendered by Milbank, Tweed, Hadley & McCloy LLP and Houlihan, Lokey,
Howard & Zukin, its counsel and financial advisor, respectively, in connection
with the restructuring of the Deferred Coupon Notes, the Plan and Plan-related
documents and the Chapter 11 Case, shall constitute an Allowed Administrative
Expense Claim, provided, however, that the Bondholders' Committee shall not be
entitled to an Allowed Administrative Expense Claim for any fees and expenses
incurred following the occurrence of any termination event under Sections 7, 8
OR 9 of the Recapitalization Agreement (unless Waxman shall have agreed in
writing to treat such claim as an Allowed Administrative Expense Claim) and,
provided further, that any additional or other costs, fees and/or expenses
incurred by or on behalf of the Bondholders' Committee and/or the Consenting
Bondholders (and/or any of their agents or advisors), including the costs of
retaining any other advisors or agents, shall not constitute an Allowed
Administrative Expense Claim unless Waxman shall have agreed in writing to treat
such claim as an Allowed Administrative Expense Claim.
(iii) Ordinary Course Liabilities. Notwithstanding
paragraph (i) hereof, holders of Administrative Expense Claims based on
liabilities incurred in the ordinary course of the Debtor's business (including
any Ordinary Course Professional) shall not be required to file any request for
payment of such Claims or to file any proof of Claim. The Administrative Expense
Claims of such Persons, to the extent Allowed under the terms of the Plan and
not paid by the Debtor, shall be paid by Reorganized Waxman in the ordinary
course of its business according to the ordinary and customary business terms
and conditions of the particular transaction giving rise to such Administrative
Expense Claim without the need for any further action by the holders of such
Administrative Expense Claims and without prejudice to any rights, claims,
counterclaims, setoffs or other rights of the Debtor and/or Reorganized Waxman.
17
<PAGE> 22
(d) Assumed Contractual Employee Claims.
Holders of Claims arising under any employment contracts
approved by the Bankruptcy Court or assumed under the Plan shall not be required
to file any request for payment of such Claims and such Claims shall be treated
and/or paid in accordance with the terms of such contract.
2.2 PRIORITY TAX CLAIMS.
-------------------
(a) Except to the extent that a holder of an Allowed Priority
Tax Claim has been paid by the Debtor prior to the Effective Date or agrees to a
different treatment, each holder of an Allowed Priority Tax Claim shall, at the
election of Reorganized Waxman, EITHER (a) be paid in Cash in full on the later
of: (i) the Effective Date or the first practicable date thereafter, or (ii)
thirty (30) calendar days after entry of a Final Order allowing such Claim, OR
(b) with respect to a Claim of the kind specified in Section 507(a)(8) of the
Bankruptcy Code, receive on account of such Claim deferred Cash payments, over a
period not exceeding six (6) years after the date of assessment of such Claim,
of a value, as of the Effective Date, equal to the Allowed amount of such Claim.
To the extent that the holder of a Priority Tax Claim holds a lien to secure its
Claim under applicable state law, such Lien shall not be impaired by the Plan.
ARTICLE III - CLASSIFICATION OF CLAIMS AND INTERESTS
All Claims (other than Administrative Expense Claims and Priority Tax
Claims) and Equity Interests are classified for all purposes, including voting,
confirmation and distribution pursuant to the Plan, as set forth below:
1. Class 1 - Priority Claims
2. Class 2 - Secured Claims (except for the Deferred
Coupon Note Claims)
3. Class 3 - Deferred Coupon Note Claims
4. Class 4 - Unsecured Claims
5. Class 5 - Intercompany Claims
6. Class 6 - Class B Common Stock
7. Class 7 - Common Stock
8. Class 8 - Stock Options
18
<PAGE> 23
All of the foregoing Classes of Claims and Equity Interests, except for
Class 3, are unimpaired within the meaning of Section 1124 of the Bankruptcy
Code.
ARTICLE IV - TREATMENT OF CLAIMS AND EQUITY INTERESTS
The Allowed Claims against, and Allowed Equity Interests in, Waxman
shall be treated, and holders thereof shall receive, as follows:
4.1 CLASS 1 - PRIORITY CLAIMS.
-------------------------
(a) Impairment and voting.
Class 1 is unimpaired by the Plan. Each holder of an Allowed
Priority Claim in Class 1 is conclusively presumed to have accepted the Plan and
is not entitled to vote to accept or reject the Plan.
(b) Treatment.
To the extent not paid prior to the Effective Date, and except
to the extent that a holder of an Allowed Priority Claim agrees to a different
treatment, each Allowed Priority Claim shall either be paid in full or shall be
reinstated and rendered unimpaired in accordance with Section 1124 of the
Bankruptcy Code.
4.2 CLASS 2 - SECURED CLAIMS.
------------------------
(EXCEPT FOR DEFERRED COUPON NOTE CLAIMS)
(a) Impairment and Voting.
Class 2 is unimpaired by the Plan. Each holder of an Allowed
Secured Claim in Class 2 is conclusively presumed to have accepted the Plan and
is not entitled to vote to accept or reject the Plan.
(b) Treatment.
Except to the extent that a holder of an Allowed Secured Claim
in Class 2 agrees to a different treatment, and notwithstanding any contractual
provision or applicable non-bankruptcy law that entitles the holder of an
Allowed Secured Claim to demand or receive payment of such Allowed Secured Claim
prior to the stated maturity of such Allowed Secured Claim from and after the
occurrence of a default, each Allowed Secured Claim shall (i) receive full
payment of its Allowed Claim (including any interest to which it is entitled),
(ii) be reinstated or rendered unimpaired in accordance with Section 1124 of the
Bankruptcy Code, or (iii) have its Allowed Claim satisfied by having the
Collateral securing such Claim returned to it with payment of any interest
required to be paid under Section 506(b) of the Bankruptcy Code.
19
<PAGE> 24
Notwithstanding anything contained in this Plan (including,
without limitation, clause 4.2(c) below), with respect to Congress, upon
consummation of the Barnett Stock Sale, Waxman paid to Congress $10.05 million
from the Barnett Stock Proceeds on account of amounts due under the Congress
Credit Facility. On or before the Effective Date, Waxman will ratify and
reaffirm its obligations to Congress as a guarantor and a grantor of Liens
pursuant to the Congress Credit Facility, and will execute an agreement in form
and substance reasonably acceptable to Congress ratifying and reaffirming its
obligations and such Liens under the Congress Credit Facility.
(c) Reservation of Rights.
Notwithstanding anything contained in the Plan (including this
Section 4.2 other than the immediately preceding paragraph), the Debtor reserves
the right to: (i) reclassify or recharacterize any Secured Claim (other than
Congress's Lien pursuant to the Loan and Security Agreement), as a lease or as
is otherwise appropriate to the extent that such reclassification and/or
recharacterization is authorized under applicable law; (ii) claim that any
Secured Claims and the liabilities arising thereunder may be asserted solely
against one or more of the Subsidiaries and not against the Debtor; and (iii)
seek to reduce or disallow any Claim that constitutes compound interest,
penalties, default interest or any other similar amount to the extent allowed
under applicable law.
4.3 CLASS 3 - DEFERRED COUPON NOTE CLAIMS.
-------------------------------------
(a) Impairment and Voting.
Class 3 is impaired by the Plan. The holders of Allowed
Deferred Coupon Note Claims are entitled to vote to accept or reject the Plan.
The pre-petition Solicitation and voting complied with applicable law.
(b) Voting In Favor of the Plan
In accordance with the terms of the Recapitalization Agreement
and all applicable law, prior to the Petition Date, the Consenting Bondholders
who hold at least two-thirds in amount and at least a majority of the number of
Deferred Coupon Note Claims, have agreed to vote to accept the Plan provided
certain conditions are met.
(c) Treatment.
(i) Distributions on the Effective Date. Subject
to the terms of Article V of the Plan, on the Effective Date, each Deferred
Coupon Note Record Holder shall receive, in full satisfaction of its Allowed
Deferred Coupon Note Claim, its Pro-Rata Share of the Deferred Coupon Note
Payment Fund.
(ii) Post Effective Date Distributions. In the
event that an Asset Sale or Equity Sale is consummated before the first
anniversary of the Effective Date, upon termination and
20
<PAGE> 25
cancellation of the Indenture, the Deferred Coupon Note Record Holders shall be
deemed to have an Allowed Claim solely for an additional distribution and only
in the event of an Asset Sale or an Equity Sale as contemplated by and in
accordance with the terms, and subject to the conditions, of Section 5.4 hereof.
(d) Allocation of Principal and Interest.
In accordance with the provisions of the Indenture, all
distributions to record holders of Allowed Deferred Coupon Note Claims shall be
allocated first to the payment of accreted and/or accrued but unpaid interest
and other charges due under the Indenture and/or to each such Deferred Coupon
Note Record Holder, and then, to the extent any consideration paid to such
Deferred Coupon Note Record Holders exceeds such amount, to the original
principal amount of such Claim. Notwithstanding anything contained in the Plan
(including anything contained in this Section 4.3), the termination and
cancellation of the Indenture shall not affect or impair any of the rights or
benefits to which Waxman and/or Waxman USA is or may be entitled under, in
connection with, or as a result of, the Indenture. Upon termination and
cancellation of the Indenture, the Deferred Coupon Note Record Holders shall be
deemed to have an Allowed Claim for an additional distribution in the event of
an Asset Sale or an Equity Sale as contemplated by and in accordance with the
terms, and subject to the conditions, of Section 5.4 hereof.
(e) Release of Deferred Coupon Note Collateral.
In exchange for the consideration set forth herein and the
distributions already provided or to be provided to record holders of the
Deferred Coupon Notes under the Plan pursuant to Section 4.3(c)(i) hereunder, on
the Effective Date, (i) the Indenture and the Deferred Coupon Notes shall be
canceled and of no further force and effect, (ii) the Deferred Coupon Note
Collateral shall revest in Reorganized Waxman free and clear of any and all
Liens, encumbrances, Claims, and/or rights of the Bondholders' Committee, the
holders of the Deferred Coupon Notes, the Indenture Trustee and any other party,
(iii) in accordance with Sections 5.2 and 5.3 of the Plan, any and all Liens,
rights and Claims that the Bondholders' Committee, the holders of the Deferred
Coupon Notes, the Indenture Trustee and any other party may have with respect to
the Deferred Coupon Note Payment Fund shall terminate, and (iv) all payments
received hereunder by the Disbursing Agent, the Indenture Trustee and/or holders
of the Deferred Coupon Notes shall not be subject to revocation, recovery or
avoidance by any Person including Waxman or Reorganized Waxman.
(f) Notwithstanding anything to the contrary contained in the
Plan or in any other agreement or order, a holder of the Deferred Coupon Notes
shall not be entitled to receive any payments, directly or indirectly, if, and
to the extent that, such holder of a Deferred Coupon Note Claim has received, in
the aggregate, in excess of 100 percent of such holder's Allowed Deferred Coupon
Note Claim.
21
<PAGE> 26
4.4 CLASS 4 - UNSECURED CLAIMS.
--------------------------
(a) Impairment and Voting.
Class 4 is unimpaired by the Plan. Each holder of an Unsecured
Claim is conclusively presumed to have accepted the Plan and is not entitled to
vote to accept or reject the Plan.
(b) Treatment.
To the extent unpaid prior to the Effective Date and except to
the extent that a holder of an Allowed Unsecured Claim agrees to a different
treatment, on the Effective Date, each Allowed Unsecured Claim shall either be
paid in full (including any interest due and owing on account of such Claim) in
Cash or reinstated and rendered unimpaired in accordance with Section 1124 of
the Bankruptcy Code.
4.5 CLASS 5 - INTERCOMPANY CLAIMS.
-----------------------------
(a) Impairment and Voting.
Class 5 is unimpaired by the Plan. Each holder of an
Intercompany Claim is conclusively presumed to have accepted the Plan and is not
entitled to vote to accept or reject the Plan.
(b) Treatment.
To the extent unpaid prior to the Effective Date and except to
the extent that a holder of an Allowed Intercompany Claim agrees to a different
treatment, each Allowed Intercompany Claim shall be reinstated or rendered
unimpaired in accordance with Section 1124 of the Bankruptcy Code.
4.6 CLASS 6 - COMMON STOCK.
----------------------
(a) Impairment and Voting.
Class 6 is unimpaired by the Plan. Each holder of Class B
Common Stock is conclusively presumed to have accepted the Plan and is not
entitled to vote to accept or reject the Plan.
22
<PAGE> 27
(b) Treatment.
Except to the extent that a holder of Class B Common Stock
agrees to a different treatment, each share of Allowed Class B Common Stock
shall be unimpaired in accordance with Section 1124 of the Bankruptcy Code.
4.7 CLASS 7 - COMMON STOCK.
----------------------
(a) Impairment and Voting.
Class 7 is unimpaired by the Plan. Each holder of Common Stock
is conclusively presumed to have accepted the Plan and is not entitled to vote
to accept or reject the Plan.
(b) Treatment.
Except to the extent that a holder of Common Stock agrees to a
different treatment, each outstanding share of Allowed Common Stock shall be
unimpaired in accordance with Section 1124 of the Bankruptcy Code.
4.8 CLASS 8 - STOCK OPTIONS.
-----------------------
(a) Impairment and Voting.
Class 8 is unimpaired by the Plan. Each holder of a Stock
Option is conclusively presumed to have accepted the Plan and is not entitled to
vote to accept or reject the Plan.
(b) Treatment.
Except to the extent that a holder of a Stock Option agrees to
a different treatment, each Allowed Stock Option shall be unimpaired in
accordance with Section 1124 of the Bankruptcy Code.
23
<PAGE> 28
ARTICLE V - IMPLEMENTATION OF THE PLAN AND SPECIAL
RULES GOVERNING TREATMENT OF DEFERRED
COUPON NOTE CLAIMS
5.1 On the Effective Date, Waxman shall transfer and remit to the
Disbursing Agent, for the benefit of the Deferred Coupon Note Record Holders,
all of the funds in the Deferred Coupon Notes Payment Fund for immediate payment
to the Deferred Coupon Note Record Holders in accordance with the terms of the
Plan and the Indenture.
5.2 The payment by Waxman on the Effective Date of the Deferred Coupon
Note Payment Fund to the Disbursing Agent in accordance with the preceding
paragraph shall constitute full and complete payment and satisfaction of any and
all obligations of Waxman and/or Reorganized Waxman to the Deferred Coupon Note
Record Holders and/or to the Indenture Trustee and/or otherwise in connection
with the Deferred Coupon Note Claims, notwithstanding any future distribution
under Section 5.4 hereof and/or any right to receive such distribution. Upon the
payment of such amounts to the Disbursing Agent, any and all Claims, Liens,
security interests or other rights of holders of the Deferred Coupon Notes, the
Indenture Trustee, the Bondholders' Committee and/or any other Person arising
under, or in connection with, the Indenture and the Deferred Coupon Notes shall
immediately terminate and be discharged and the Deferred Coupon Note Collateral
shall immediately revest in Reorganized Waxman free and clear of any and all
Claims, Liens, security interests or other rights of the holders of the Deferred
Coupon Notes, the Indenture Trustee and any other party.
5.3 Upon receipt by the Disbursing Agent of the funds in accordance
with the preceding Sections 5.1 and 5.2, the Indenture Trustee shall, as soon as
practicable but in no event later than three Business Days after the Effective
Date, take all actions that are reasonable and appropriate to (i) release,
terminate and discharge any and all Liens and security interests on, or with
respect to, the Deferred Coupon Note Collateral, (ii) return all Deferred Coupon
Note Collateral to Waxman, and (iii) take such other actions as are appropriate
to terminate any Liens and security interests arising under the Indenture and/or
the Deferred Coupon Notes, including filing any necessary termination and other
statements and withdrawing any proofs of Claim filed with the Bankruptcy Court
with respect thereto.
5.4 In the event that Waxman consummates an Asset Sale or Equity Sale
at any time on or before the first anniversary of the Effective Date, and
provided the Indenture Trustee and record holders of the Deferred Coupon Notes
shall have fully complied with their duties and obligations under the preceding
Sections 5.2 and 5.3, each Deferred Coupon Note Record Holder shall receive its
Pro-Rata Share of an additional payment equal to the aggregate amount of fifty
(50) percent of either the Asset Sale Proceeds or the Equity Sale Proceeds (as
the case may be), remaining after payment in full to Congress within thirty (30)
days of the consummation of such Asset Sale or Equity Sale, provided, however,
(i) that notwithstanding anything contained in the Plan or in the
Recapitalization Agreement, Waxman shall not be required to distribute or share
any Asset Sale Proceeds or Equity Sale Proceeds (as the case may be) with the
Deferred Coupon Note Record
24
<PAGE> 29
Holders unless and until the aggregate amount of the Asset Sale Proceeds or
Equity Sale Proceeds (as the case may be for all Asset Sales or Equity Sales
consummated on or before the first anniversary of the Effective Date) shall
exceed $15 million, (ii) nothing contained in the Plan or in the
Recapitalization Agreement shall obligate Waxman, any of the Subsidiaries or the
Waxmans to pursue or consummate an Asset Sale or Equity Sale at any time or to
refrain from pursuing or consummating an Asset Sale or Equity Sale at any time,
and (iii) 100 percent of the Asset Sale Proceeds or Equity Sale Proceeds shall
be applied, first, to repay in full the Congress Credit Facility, and, second,
to the extent there are any remaining proceeds, to the Deferred Coupon Note
Record Holders in accordance with the provisions of the Plan. Notwithstanding
anything contained in the Plan and/or in the Recapitalization Agreement, any
obligation of Waxman to remit the Asset Sale Proceeds or Equity Sale Proceeds
(as the case may) in accordance with this provision shall entitle record holders
of the Deferred Coupon Notes solely and exclusively to a monetary satisfaction
and shall not (i) impair or affect in any way the finality, validity or
enforceability of any provisions of the Plan or the Confirmation Order or (ii)
entitle the record holders of the Deferred Coupon Notes or the Indenture Trustee
to the reinstatement of any claims, liens or rights released and/or terminated
(or required to be released and/or terminated) under the Plan, including
Sections 5.2 and 5.3 hereof.
5.5 Subject to Sections 4.3 and 5.4 above, if and to the extent that
any of the Debtor, the Debtor In Possession, the Bankruptcy Estate, Reorganized
Waxman or any party acting on behalf of any of those Persons (including the
Bondholders' Committee or Creditors' Committee) receives or recovers any funds,
assets or other property from the Debtor, a Subsidiary or any present or former
employee, officer, director, shareholder, agent, or affiliate of the Debtor or
any Subsidiary pursuant to any Cause of Action relating to Waxman and/or any of
the Subsidiaries, or if, as a result of any objection, motion, injunction or
other legal action taken in the Bankruptcy Court or in any other jurisdiction,
the aggregate amount of distributions payable to the Deferred Coupon Note Record
Holders exceeds an amount that is equivalent to the total amount that is on
deposit in the Deferred Coupon Note Payment Fund on the Effective Date, each
Consenting Bondholder shall promptly return and remit to Waxman such holder's
Pro-Rata Share of such additional payment or distribution and Waxman's right to
receive and/or recover any such excess payment shall constitute a valid and
Allowed set-off and recoupment right under Section 553 of the Bankruptcy Code
with respect thereto.
5.6 As of the Effective Date, the Plan and Confirmation Order shall
supersede the Recapitalization Agreement and any obligations and duties of any
of the parties arising thereunder. If and to the extent that the provisions of
the Recapitalization Agreement are inconsistent with the terms of the Plan or
the Confirmation Order, the terms of the Plan or Confirmation Order (as the case
may be) shall govern.
25
<PAGE> 30
5.7 Confirmation of the Plan by the Bankruptcy Court shall constitute
approval of the Indenture (including any and all amendments and supplements
thereto) effective as of the date on which the Indenture was executed.
ARTICLE VI - METHOD OF DISTRIBUTIONS UNDER THE PLAN
6.1 IN GENERAL.
----------
Subject to Bankruptcy Rule 9010, all distributions under the Plan shall
be made by the Disbursing Agent to the Deferred Coupon Note Record Holder of an
Allowed Deferred Coupon Note Claim and by Reorganized Waxman (or its designee)
to the holder of each Allowed Administrative Expense Claim and Allowed Claim in
the following manner:
(a) Distributions to Holders of Deferred Coupon Notes.
All distributions to the Deferred Coupon Note Record Holders
required under the Plan to be made on the Effective Date shall be made to the
Disbursing Agent from the Deferred Coupon Notes Payment Fund for the benefit of
the Deferred Coupon Note Record Holders. The distributions shall be deemed to
have been made once the funds in the Deferred Coupon Note Payment Fund have been
remitted to the Disbursing Agent. The Disbursing Agent shall be entitled to
receive reasonable compensation for its services in connection with the
distribution and reimbursement of its reasonable out-of-pocket expenses incurred
in connection with such services on terms acceptable to Reorganized Waxman.
(b) Distributions to Holders of Other Claims.
Subject to Section 6.5(b), all distributions on account of
Allowed Administrative Expense Claims and Allowed Claims (except Allowed
Deferred Coupon Note Claims) shall be made directly by Reorganized Waxman (or
its designee) to the holder of the Allowed Administrative Expense Claim and
Allowed Claim (as the case may be) as of the Distribution Record Date at any of
the following addresses: (a) the address set forth on the proof of Claim filed
by such holder (or at the last known address of such holder if no proof of Claim
is filed or if Waxman has not been notified of a change of address); (b) the
address set forth in any written notices of address changes delivered to
Reorganized Waxman after the date of any related proof of Claim; or (c) if no
proof of Claim has been filed and Reorganized Waxman has not received a written
notice of a change of address, at the address reflected in the list of Creditors
filed with the Bankruptcy Court or in the Schedules, if Schedules are filed.
26
<PAGE> 31
(c) Post-Effective Date Distributions.
Any subsequent distributions required to be made under the
Plan after the Effective Date to holders of any Claims, including the Deferred
Coupon Note Record Holders, shall be made by Reorganized Waxman (or its
designee) in accordance with the terms of the Plan.
6.2 DISTRIBUTIONS OF CASH.
---------------------
At the option of Reorganized Waxman, any payment or distribution of
Cash made by Reorganized Waxman pursuant to the Plan shall be made by check or
wire transfer.
6.3 TIMING OF DISTRIBUTIONS.
-----------------------
If any payment, distribution or other 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, and shall be deemed to have been completed timely.
6.4 UNCLAIMED DISTRIBUTIONS.
-----------------------
(a) Any distributions required to be made under the Plan to
record holders of the Deferred Coupon Note Record Holders that the Disbursing
Agent is unable to distribute to a Deferred Coupon Note Record Holder within two
(2) years of the Effective Date shall be transferred, returned and delivered by
the Disbursing Agent to Reorganized Waxman, free and clear of any and all Liens,
Claims and encumbrances of any nature whatsoever.
(b) If any distribution to a holder of an Administrative
Expense Claim or Claim (other than a Deferred Coupon Note Claim) is returned as
undeliverable, Reorganized Waxman shall use reasonable efforts to determine the
current identity and address of such holder, but no distribution to such holder
shall be made unless and until a determination has been made concerning the
then-current identity and address of such holder, at which time such
distribution shall be made to such holder without interest. If no proof of Claim
has been filed and the Schedules or list of Creditors fail to specify the
address of such holder of an Allowed Administrative Expense Claim or Allowed
Claim, the distributions in respect of such Allowed Administrative Expense Claim
or Allowed Claim shall be deemed unclaimed property under Section 347(b) of the
Bankruptcy Code. All unclaimed payments, other than unclaimed payments made to
the Deferred Coupon Note Record Holders, shall revert to Reorganized Waxman and
such Administrative Expense Claims or Claims shall be discharged and forever
barred.
27
<PAGE> 32
(c) Checks issued in respect of distributions under the Plan
shall be null and void if not negotiated within sixty (60) days after the date
of issuance. Requests for reissuance of any voided check may be made directly to
the Disbursing Agent or Reorganized Waxman, as the case may be, by the holder of
the Allowed Claim with respect to which such check was issued originally.
(d) Any payments to holders of Allowed Claims other than the
Deferred Coupon Note Claims that remain unclaimed for one year after the
Effective Date shall be retained by Reorganized Waxman and/or applied in
accordance with applicable state law or as otherwise previously agreed between
Waxman and the holder of such Claim.
6.5 DISTRIBUTIONS MADE ONLY TO RECORD HOLDERS.
-----------------------------------------
(a) Distributions to Deferred Coupon Note Record Holders.
As of the close of business on the Deferred Coupon Note Record
Date, the claims register for all Deferred Coupon Note Claims shall be closed
and there shall be no further changes as to the identity or addresses of any
Deferred Coupon Note Record Holders. The Debtor In Possession and Reorganized
Waxman shall have no obligation to recognize any transfer of any Deferred Coupon
Note Claims occurring after the Deferred Coupon Note Record Date and shall have
no liability with respect thereto so long as the distribution made to holders of
the Deferred Coupon Notes is made in a manner that is consistent with the terms
of this Plan. The Debtor In Possession and Reorganized Waxman shall be entitled
to recognize and deal for all purposes under the Plan solely with Deferred
Coupon Note Record Holders as of the close of business on the Deferred Coupon
Record Date.
(b) Distributions to Holders of Other Claims as of the
Distribution Record Date.
As of the close of business on the Distribution Record Date,
the Debtor In Possession shall be entitled to rely on its Schedules or other
records for purposes of determining the identities and addresses of holders of
all Allowed Administrative Expense Claims and Allowed Claims (other than the
Deferred Coupon Note Claims) and the Debtor In Possession shall not be required
to make any further changes in the record holders of any Claims. The Debtor In
Possession and Reorganized Waxman shall have no obligation to recognize any
transfer of any Claims occurring after the Distribution Record Date and shall be
entitled to recognize and deal for all purposes under the Plan only with those
Persons who were record holders of the Claims as of the close of business on the
Distribution Record Date.
28
<PAGE> 33
6.6 SURRENDER OF EXISTING SECURITIES AND AGREEMENTS.
-----------------------------------------------
(a) Each holder of a Deferred Coupon Note shall be required to
surrender such bond or similar instrument to the Disbursing Agent which shall
promptly turn over such bonds or similar instruments to Waxman. No distribution
hereunder shall be made to, or on behalf of, any such holder of the Deferred
Coupon Notes unless and until such bond or similar instrument has been received
by the Disbursing Agent, or the unavailability of such share, bond or similar
instrument shall have been established to the reasonable satisfaction of
Reorganized Waxman in accordance with the terms of the Indenture (or such
requirement shall have been waived in writing by Reorganized Waxman) at the
expense of such holder. Reorganized Waxman may require any holder that is unable
to surrender or cause to be surrendered any such bond or similar instrument to
deliver an affidavit of loss and indemnity and/or furnish a bond in form and
substance (including, without limitation, with respect to amount) reasonably
satisfactory to Reorganized Waxman at the expense of such holder.
(b) Any holder of a Deferred Coupon Note that fails within one
year after the Effective Date (a) if possible, to surrender or cause to be
surrendered such bond or instrument, (b) if requested, to execute and deliver an
affidavit of loss and indemnity reasonably satisfactory to Reorganized Waxman or
(c) if requested, to furnish a bond reasonably satisfactory to Reorganized
Waxman, shall be deemed to have forfeited all rights, Claims, Liens and Causes
of Action against the Debtor, Reorganized Waxman and the Subsidiaries in
connection therewith and shall not participate in any distribution hereunder.
(c) All holders of Allowed Secured Claims (Class 2) and
Unsecured Claims (Class 4) shall, to the extent applicable and except as set
forth in Section 4.2 herein, be required to surrender any instruments evidencing
such Claims and execute any required termination statements or other similar
documents or instruments before they may receive their distributions under the
Plan.
ARTICLE VII - PROCEDURES FOR THE TREATMENT OF DISPUTED CLAIMS
7.1 DISALLOWANCE OF IMPROPERLY FILED CLAIMS.
---------------------------------------
Subject to Section 502(j) of the Bankruptcy Code and Bankruptcy Rules
3008 and 9006, any Administrative Expense Claim or Claim for which the filing of
a proof of Claim or motion with the Bankruptcy Court is required under the terms
of the Bankruptcy Code, the Bankruptcy Rules, any order of the Bankruptcy Court
(including one providing a Bar Date) or the Plan shall be disallowed if and to
the extent that such proof of Claim (or other filing) is not timely and properly
made.
29
<PAGE> 34
7.2 PROSECUTION OF OBJECTIONS TO CLAIMS.
-----------------------------------
Unless otherwise ordered by the Bankruptcy Court after notice and a
hearing, the Debtor In Possession or Reorganized Waxman, as the case may be,
shall have the exclusive right to make and file objections to proofs of Claims
and (subject to Section 2.1(c)(i) of the Plan) to Administrative Expense Claims
(or to any amounts listed in the Schedules as disputed, contingent or
unliquidated) at any time on or before ninety (90) days after the later of (i)
the Effective Date or (ii) the date on which such Claim was filed with the
Bankruptcy Court unless no proof of Claim is required to be filed pursuant to
Bankruptcy Rule 3002, the Plan or any order of the Bankruptcy Court, provided,
however, that (x) this deadline may be extended by the Bankruptcy Court on
motion by Waxman and (y) neither the Debtor In Possession, Reorganized Waxman or
any other party may file an objection to any (1) Claim that was previously
expressly acknowledged pursuant to a written agreement entered into by Waxman on
or after the Petition Date; or (2) a Claim that was allowed by a Final Order.
7.3 NO DISTRIBUTIONS PENDING ALLOWANCE.
----------------------------------
Notwithstanding any other provision hereof, if a Claim or any portion
of a Claim is Disputed, no payment or distribution shall be made on account of
the Disputed portion of such Claim (or the entire Claim, if the entire Claim is
Disputed), unless and until such Disputed Claim becomes an Allowed Claim.
7.4 DISTRIBUTIONS AFTER ALLOWANCE.
-----------------------------
Payments and distributions to each holder of a Claim that is Disputed,
or that is not Allowed, to the extent that such Claim ultimately becomes
Allowed, shall be made in accordance with the provisions hereof governing the
Class of Claims in which such Claim is classified. As soon as practicable after
the date that the order or judgment of the Bankruptcy Court allowing any
Disputed Claim becomes a Final Order, Reorganized Waxman shall distribute to the
holder of such Claim any payment or property that would have been distributed to
such holder if the Claim had been Allowed as of the Effective Date (or such
other date on which such distribution would have been made), without any
interest on such payment or property.
ARTICLE VIII - EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 ASSUMPTION OR REJECTION OF
EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
----------------------------------------
Pursuant to Sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all
Executory Contracts and unexpired leases (including any equipment leases) that
exist between the Debtor and any Person shall be deemed assumed by Reorganized
Waxman as of the Effective Date, except for any Executory Contract or unexpired
lease (a) that has been assumed or rejected (or modified) pursuant to an order
of the Bankruptcy Court entered prior to the Confirmation Date, (b) as to which
a motion
30
<PAGE> 35
for approval of the rejection of such Executory Contract or unexpired lease has
been filed and served prior to the Confirmation Date or (c) that is set forth in
Schedule 8.1 hereto; provided, however, that the Debtor In Possession or
Reorganized Waxman reserves the right, on or prior to the Confirmation Date, to
amend Schedule 8.1 to delete any Executory Contract or unexpired lease therefrom
or add any Executory Contract or unexpired lease thereto, in which event such
Executory Contract(s) or unexpired lease(s) shall be deemed to be, respectively,
assumed or rejected. The Debtor In Possession or Reorganized Waxman shall
provide notice of any amendments to Schedule 8.1 to the parties to the Executory
Contracts and unexpired leases affected thereby prior to the Confirmation
Hearing. The listing of a document on Schedule 8.1 shall not constitute an
admission by the Debtor In Possession or Reorganized Waxman that such document
constitutes an Executory Contract or an unexpired lease or that the Debtor In
Possession or Reorganized Waxman has any liability thereunder.
8.2 APPROVAL OF ASSUMPTION OR REJECTION OF
EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
----------------------------------------
Entry of the Confirmation Order shall constitute (a) the approval,
pursuant to Sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the
assumption of all Executory Contracts and unexpired leases that are assumed
pursuant to Section 8.1 of the Plan, (b) the extension of time, pursuant to
Section 365(d)(4) of the Bankruptcy Code, within which the Debtor In Possession
may assume or reject any unexpired leases through the date of entry of the
Confirmation Order or any other order an order approving the assumption or
rejection of such unexpired leases, and (c) the approval, pursuant to Sections
365(a) and 1123(b)(2) the Bankruptcy Code, of the rejection of the Executory
Contracts and unexpired leases set forth in Schedule 8.1 that are rejected
pursuant to Section 8.1 of the Plan.
8.3 CURE OF DEFAULTS.
----------------
Except as may otherwise be agreed to by the parties, on the Effective
Date, Reorganized Waxman shall cure any and all undisputed defaults under any
Executory Contract or unexpired lease assumed pursuant to the Plan in accordance
with Section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within thirty (30) days of the entry
of a Final Order determining the amount, if any, of the Debtor In Possession's
or Reorganized Waxman's liability with respect thereto, or as may otherwise be
agreed to by the parties.
8.4 BAR DATE FOR FILING PROOFS OF CLAIM RELATING TO ANY
REJECTED EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
-------------------------------------------------
Claims arising out of the rejection of an Executory Contract or
unexpired lease pursuant to this Article VIII must be filed with the Bankruptcy
Court and served upon the attorneys for the Debtor In Possession (or Reorganized
Waxman) in accordance with Section 14.9 hereof no later than thirty (30) days
after service of the notice of entry of an order (which may be the Confirmation
Order) approving the rejection of such Executory Contract or unexpired lease.
Any Claims not filed
31
<PAGE> 36
within such time shall be forever barred from assertion against the Debtor, its
estate, Reorganized Waxman and/or its property or assets. Unless otherwise
ordered by the Bankruptcy Court, all Claims arising from the rejection of
Executory Contracts and unexpired leases shall be treated as Unsecured Claims
under the Plan and shall be subject to any objections, limitations and
reductions available under the Bankruptcy Code or other applicable law.
8.5 INSURANCE POLICIES.
------------------
Each of the Debtor's insurance policies and any agreements, documents
or instruments relating thereto shall be treated as Executory Contracts under
the Plan. Notwithstanding the foregoing, distributions under the Plan to any
holder of a Claim covered by any of such insurance policies and related
agreements, documents or instruments that are assumed hereunder, shall be in
accordance with the treatment provided under Article III of the Plan. Nothing
contained in this Section 8.5 shall constitute or be deemed a waiver of any
claim, right or Cause of Action that the Debtor or Debtor In Possession may hold
against the insurer under any policy of insurance, or against the holder of a
Claim covered by insurance policies.
8.6 INDEMNIFICATION OBLIGATIONS.
---------------------------
For purposes of the Plan, the obligations of the Debtor In Possession
(or Reorganized Waxman) to defend, indemnify, reimburse or limit the liability
of any current and former directors, officers or employees who were directors,
officers or employees, respectively, before, on or after the Petition Date
against any claims or obligations pursuant to the Debtor's certificate of
incorporation or by-laws, applicable state law or any specific agreement, or any
combination of the foregoing, shall survive confirmation of the Plan, remain
unaffected thereby, and not be discharged irrespective of whether
indemnification, defense, reimbursement or limitation is owed in connection with
an event occurring before, on or after the Petition Date.
8.7 COMPENSATION AND BENEFIT PROGRAMS.
---------------------------------
Except as provided in Section 8.1 of the Plan and unless otherwise
modified, terminated or rejected on or before the Effective Date, all
employment, consulting and severance practices and policies, and all
compensation and benefit plans, policies, and programs of the Debtor In
Possession applicable to its directors, officers, employees, consultants or
independent contractors, including, without limitation, all savings plan,
retirement plans, health care plans, severance benefit plans, incentive plans,
workers' compensation programs and life, disability and other insurance plans
shall be deemed to be Executory Contracts under the Plan and are hereby assumed
pursuant to Sections365(a) and 1123(b)(2) of the Bankruptcy Code.
32
<PAGE> 37
8.8 RETIREE BENEFITS.
----------------
Notwithstanding any other provisions of the Plan, any payments that are
due to any individual for the purpose of providing or reimbursing payments for
retired employees and their spouses and dependents for medical, surgical, or
hospital care benefits, or benefits in the event of sickness, accident,
disability, or death under any plan, fund, or program (through the purchase of
insurance or otherwise) maintained or established in whole or in part by the
Debtor In Possession prior to the Petition Date shall be continued for the
duration of the period the Debtor In Possession has obligated itself to provide
such benefits.
ARTICLE IX - RELEASES, WAIVERS AND EXCULPATION
9.1 Except as otherwise expressly stated in the Plan, on the Effective
Date, the Debtor, Reorganized Waxman (on its own behalf and as the
representative of the Bankruptcy Estate), the Bondholders' Committee, the
Creditors' Committee and each Deferred Coupon Note Record Holder, in
consideration of services rendered in the Chapter 11 Case and the distributions
provided for hereunder and for other good and valuable consideration, will waive
and release, and shall be deemed to have forever waived and released,
unconditionally, each and every one of the Released Parties from any and all
claims, obligations, suits, judgments, damages, rights, Causes of Action and
liabilities whatsoever (including, without limitation, those arising under the
Bankruptcy Code), whether known or unknown, foreseen or unforeseen, existing or
thereafter arising, in law, equity or otherwise, based in whole or in part on
any act, omission, transaction, event or other occurrence taking place before,
on or after the Petition Date up to the Effective Date, in any way relating to
the Debtor (before, on or after the Petition Date), the Debtor In Possession,
the financial condition of the Debtor and/or Debtor In Possession, the Barnett
Stock Sale, the Chapter 11 Case, the Plan, the Recapitalization Agreement, the
Deferred Coupon Notes, or the ownership, management and/or operation of the
Debtor.
9.2 (a) Except as otherwise expressly provided in the Plan, as of the
Effective Date, each holder of a Claim against, or Equity Interest in, the
Debtor and/or Reorganized Waxman, in consideration of the treatment provided
under the Plan, hereby forever waives and releases the Debtor, the Debtor In
Possession and all of the Released Parties from claims, obligations, rights,
Causes of Action and liabilities, in law, equity or otherwise held directly,
indirectly or derivatively by the Debtor, the Debtor In Possession (or any party
acting on its behalf or on behalf of the Bankruptcy Estate) or such holder of a
Claim or Equity Interest against any of the Released Parties, whether known or
unknown, existing or hereafter arising, based in whole or in part upon any act
or omission or other event occurring prior to the Petition Date or during the
course of the Chapter 11 Case, including through the Effective Date, in any way
relating to the Debtor (before, on or after the Petition Date), the Debtor In
Possession, the financial condition of the Debtor and/or Debtor In Possession,
the Barnett Stock Sale, the Chapter 11 Case, the Recapitalization Agreement, the
Plan, the Deferred Coupon Notes, or the ownership, management and/or operation
of the Debtor.
33
<PAGE> 38
(b) Except as otherwise expressly provided in the Plan, as of
the Effective Date, each holder of a Claim against, or Equity Interest in, the
Debtor and/or Reorganized Waxman, in consideration of the treatment provided
under the Plan, hereby forever waives and releases Congress from claims,
obligations, rights, Causes of Action and liabilities, in law, equity or
otherwise held directly, or derivatively by the Debtor, the Debtor in Possession
(or any party acting on its behalf or on behalf of the Bankruptcy Estate) or
such holder of a Claim or Equity Interest against Congress, whether known or
unknown, existing or hereafter arising, based in whole or in part on any act or
omission or other event occurring prior to the Petition Date.
9.3 Subject to Section 4.3 and Article V hereof, each of the Debtor,
the Debtor In Possession (for itself and for the Bankruptcy Estate), Reorganized
Waxman, the Subsidiaries, the Released Parties, the Bondholders' Committee, the
Creditors' Committee and each Consenting Bondholder hereby forever waives and
releases any and all Causes of Action including, but not limited to, Avoidance
Actions that it has or may have against each other in connection with, or
arising under, the financial condition of the Debtor and/or Debtor in
Possession, the Deferred Coupon Notes, the Indenture, the Recapitalization
Agreement, the Barnett Stock Sale, the Chapter 11 Case, the Plan, all documents
related to the Plan (including the Disclosure Statement) and all of the
representations, negotiations and transactions relating to all of the foregoing.
9.4 NO LIABILITY FOR SOLICITATION OR PARTICIPATION.
----------------------------------------------
(a) Pursuant to Section 1125(e) of the Bankruptcy Code, the
Confirmation Order shall provide that all of the Persons who have solicited
acceptances or rejections, of the Plan (including the Debtor, the Debtor In
Possession, Reorganized Waxman, the Bondholders' Committee, each of the
Consenting Bondholders and all of their respective officers, directors,
shareholders, attorneys, agents, advisers and employees and all of the other
Exculpated Persons) have acted in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, and are not liable on account of
such solicitation or participation, for violation of any applicable law, rule,
or regulation governing the solicitation of acceptances or rejections of the
Plan or the offer, issuance, sale or purchase of securities.
(b) None of the Exculpated Persons shall have or incur any
liability to any Person for any act taken or omission made in good faith in
connection with or related to negotiating, formulating, implementing, confirming
or consummating the Plan, the Disclosure Statement, the Recapitalization
Agreement or any contract, instrument, release or other agreement or document
created in connection with the Plan. The Exculpated Persons shall have no
liability to any holders of Claims or Equity Interests for actions taken or
omissions made under the Plan, in connection therewith or with respect thereto
in good faith, including, without limitation, failure to obtain confirmation of
the Plan or to satisfy any condition or conditions, or refusal to waive any
condition or conditions precedent to confirmation of the Plan or to the
occurrence of the Effective Date. Further, the Exculpated Persons shall not have
or incur any liability to any holder of a Claim or Equity Interest, or to any
party-in-interest herein or any other Person for any act or omission in
connection with or arising out of their administration of the Plan or the
payments, distributions or
34
<PAGE> 39
property to be distributed under the Plan, except for gross negligence or
willful misconduct as determined by a Final Order, and in all respects such
Persons will be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan. However, nothing contained
herein shall release any Exculpated Persons from its respective obligations
under the Plan.
9.5 BINDING EFFECT OF RELEASES.
--------------------------
(a) The Confirmation Order shall constitute a permanent
injunction and order to effectuate and enforce all the waivers and releases
granted in this Article IX of the Plan.
(b) On the Effective Date, each of the Released Parties and
each holder of a Claim and/or Equity Interest shall be deemed to have agreed to
each of the provisions of this Plan, including Article IX hereof, and shall be
fully bound thereby for all purposes.
ARTICLE X - GOVERNANCE AND MANAGEMENT OF REORGANIZED WAXMAN
10.1 GENERAL.
-------
On the Effective Date, the management, control and operation of
Reorganized Waxman shall become the responsibility of the Board of Directors of
Reorganized Waxman, who shall, thereafter, have the responsibility for the
management, control and operation of Reorganized Waxman.
10.2 DIRECTORS AND OFFICERS OF REORGANIZED WAXMAN.
--------------------------------------------
(a) Board of Directors. The board of directors of Waxman
immediately prior to the Effective Date shall serve as the Board of Directors of
Reorganized Waxman on and after the Effective Date. Each of the members of such
initial Board of Directors shall serve until the first annual meeting of
stockholders of Reorganized Waxman or his or her earlier resignation or removal
in accordance with the Certificate of Incorporation and By-Laws, as may be
amended from time to time.
(b) Officers. The officers of Waxman immediately prior to the
Effective Date shall serve as the initial officers of Reorganized Waxman on and
after the Effective Date. Such officers shall serve in accordance with any
applicable employment agreement with Reorganized Waxman, and applicable
nonbankruptcy law.
35
<PAGE> 40
10.3 EMPLOYEE RETENTION INCENTIVE PLAN.
---------------------------------
(a) This Plan and the Confirmation Order shall constitute the
authorization and approval of the Bankruptcy Court for the Employee Retention
Incentive Plan (the terms of which are summarized in Exhibit B to the Plan) and
all of the payments, awards and distributions provided for thereunder to the
extent that such authorization and approval has not been granted prior thereto.
(b) On the Effective Date, the Debtor and/or Reorganized
Waxman shall, and are hereby authorized to, make all distributions of cash
required under the Employee Retention Incentive Plan in accordance with the
terms thereof. Any and all such payments, awards and distributions (including
any payments made after the Petition Date) shall be final and irrevocable.
ARTICLE XI - CONDITIONS TO CONFIRMATION AND
EFFECTIVENESS OF THE PLAN
11.1 CONSUMMATION OF THE PLAN.
------------------------
The Effective Date of the Plan shall occur in accordance with the
provisions of this Article XI of the Plan.
11.2 CONDITIONS TO THE EFFECTIVE DATE OF THE PLAN.
--------------------------------------------
The Plan shall not become effective and the Effective Date shall not
occur unless and until each of the following conditions shall have been either
satisfied or waived pursuant to Section 11.3 of the Plan:
(a) The Confirmation Order, in form and substance reasonably
acceptable to the Debtor In Possession and the Bondholders' Committee, shall
have been signed and entered by the Bankruptcy Court, and no stay or injunction
shall be in effect with respect thereto;
(b) (i) The Barnett Stock Sale shall been consummated, (ii)
Waxman USA shall have used the proceeds from the Barnett Stock Sale to satisfy
the Senior Note Indebtedness, (iii) Waxman USA shall have established, and
transferred the Barnett Stock Proceeds into, the Deferred Coupon Note Payment
Fund, and (iv) Waxman USA shall have notified the Debtor In Possession that the
funds in the Deferred Coupon Note Payment Fund are available to be applied in
accordance with the terms of the Plan;
(c) The Confirmation Date shall have occurred on or before
January 31, 2001 or such other date agreed to between Waxman and the
Bondholders' Committee;
36
<PAGE> 41
(d) No material adverse change shall have occurred in the
ability of Waxman or Waxman USA to perform its obligations under the Plan;
(e) Neither the Debtor, the Debtor In Possession, Reorganized
Waxman or any party acting through, or on behalf of the Bankruptcy Estate or any
Creditor shall have commenced any (i) Avoidance Action against any Consenting
Bondholder with respect to the Indenture, the Senior Note Indenture, the Senior
Notes, the Deferred Coupon Notes or any payments received thereunder, (ii)
Avoidance Action or any other Cause of Action against any Exculpated Person or
Released Person with respect to the Plan, the Disclosure Statement, the
Recapitalization Agreement, the Barnett Stock, the Barnett Stock Sale, the
Chapter 11 Case, the Indenture, the Senior Note Indenture, the Senior Notes or
the Deferred Coupon Notes, or (iii) Avoidance Action against Congress with
respect to the $10.05 million payment received from the Barnett Stock Sale
Proceeds;
(f) All actions, documents and agreements necessary to
implement the Plan shall have been effected or executed;
(g) Congress has not withdrawn its consent pursuant to the
Congress Consent Letter;
(h) Accrued interest due and owing through June 1, 2000 shall
have been paid on account of the Deferred Coupon Notes on consummation of the
Barnett Stock Sale; and
(i) Waxman shall have executed an agreement in the form and
substance reasonably acceptable to Congress ratifying and reaffirming its
obligations (as a guarantor and a grantor of Liens) under the Congress Credit
Facility.
11.3 EFFECT OF FAILURE OF CONDITIONS.
-------------------------------
In the event that one or more of the conditions specified in Section
11.2 of the Plan have not occurred or been duly waived by the Debtor In
Possession and the Bondholders' Committee before sixty (60) days after the
Confirmation Date, upon notification submitted by the Debtor In Possession to
the Bankruptcy Court and the Bondholders' Committee, (a) the Confirmation Order
shall be vacated, (b) no distributions under the Plan shall be made, (c) the
Debtor, Debtor In Possession and all holders of Claims and Equity Interests
shall be restored to the status quo ante as of the day immediately preceding the
Confirmation Date as though the Confirmation Date never occurred and (d) the
Debtor In Possession's obligations with respect to all of the Claims and Equity
Interests (including the Deferred Coupon Note Claims) shall remain unchanged,
and nothing contained herein shall constitute or be deemed a waiver or release
of any Claims or Equity Interests by or against the Debtor In Possession or any
other person or to prejudice in any manner the rights of the Debtor In
Possession or any Person in any further proceedings involving the Debtor In
Possession.
37
<PAGE> 42
11.4 WAIVER OF CONDITIONS.
--------------------
Notwithstanding anything contained in Section 11.2 or 11.3 hereof, the
Debtor In Possession, together with the Bondholders' Committee, may waive, by a
writing signed by an authorized representative of each of the Debtor In
Possession and the Bondholders' Committee, and subsequently filed with the
Bankruptcy Court, one or more of the conditions precedent to effectiveness of
the Plan set forth in Section 11.2.
ARTICLE XII - EFFECT OF CONFIRMATION OF PLAN
12.1 TERM OF BANKRUPTCY INJUNCTION OR STAYS.
--------------------------------------
All injunctions or stays provided for in the Chapter 11 Case under
Section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
12.2 REVESTING OF ASSETS.
-------------------
As of the Effective Date, Reorganized Waxman shall be authorized to
operate its business, and may use, acquire and dispose of property and other
assets free of any restrictions imposed under the Bankruptcy Code. Except for
the Liens that Waxman granted in favor of Congress and as provided in the Plan
or the Confirmation Order, as of the Effective Date, all property of the Debtor
and Reorganized Waxman shall be free and clear of all Liens, claims,
encumbrances and interests of holders of Claims and Equity Interests, and all
such Liens, security interests, Claims and Equity Interests shall be
extinguished.
12.3 DISCHARGE OF DEBTOR.
-------------------
Upon confirmation, the Plan shall be binding upon and inure to the
benefit of the Debtor and its successors and assigns and the holders of Claims
and Equity Interests and their respective successors and assigns, whether or not
they voted to accept the Plan. Except as otherwise specifically provided by the
Plan, the rights afforded in the Plan and the treatment of all Claims (including
Deferred Coupon Note Claims) and Equity Interests under the Plan shall be in
exchange for and in complete satisfaction, discharge and release of all Claims
(including Deferred Coupon Note Claims) and Equity Interests of all and any
nature whatsoever, known or unknown, including any interest accrued on or
expenses incurred in connection with such Claims from and after the Petition
Date, against the Debtor, the Debtor In Possession, the Bankruptcy Estate, any
of their assets, properties or interests in property. Except as otherwise
provided herein, (a) on the Effective Date, all such Claims (including Deferred
Coupon Note Claims) against, and Equity Interests in, the Debtor shall be
satisfied, discharged and released in full by the consideration, if any,
provided for in the Plan, (b) all Persons shall be precluded from asserting
against the Debtor, Reorganized Waxman, their successors, or their assets or
properties any other or further Claims (including Deferred Coupon Note Claims)
or Equity Interests based upon any act or omission, transaction or
38
<PAGE> 43
other activity of any kind or nature that occurred prior to the Effective Date
and (c) the rights of any and all holders of the Deferred Coupon Notes with
respect to the Deferred Coupon Note Collateral shall be discharged and released.
12.4 PERMANENT INJUNCTION.
--------------------
Except for the Liens that Waxman granted in favor of Congress and the
Claims of Congress and as otherwise expressly provided in the Plan or the
Confirmation Order, all Persons and entities who have held, hold or may hold
Claims (including Deferred Coupon Note Claims) or Equity Interests in the Debtor
shall be permanently enjoined, on and after the Effective Date, from (a)
commencing or continuing in any manner any action or other proceeding of any
kind against Reorganized Waxman with respect to any such Claim or Equity
Interest, (b) the enforcement, attachment, collection or recovery by any manner
or means of any judgment, award, decree or order against Reorganized Waxman on
account of any such Claim or Equity Interest, (c) creating, perfecting or
enforcing any lien or encumbrance of any kind against Reorganized Waxman or
against the property or interests in property of Reorganized Waxman on account
of any such Claim (including the Deferred Coupon Note Claims) or Equity
Interest, and (d) asserting any right of setoff, subrogation or recoupment of
any kind against any obligation due from the Debtor or against any property or
interests in property of Reorganized Waxman with respect to such Claim
(including the Deferred Coupon Note Claims) or Equity Interest. Such injunction
shall also exist and continue for the benefit of all successors of the Debtor
(including, without limitation, Reorganized Waxman) and its respective
properties and interests in property.
12.5 Setoffs. The Debtor may, but shall not be required to, setoff
against any Claim and the payments or distributions to be made pursuant to the
Plan any claims, obligations, rights, causes of action and liabilities of any
nature that the Debtor may hold against the holder of any Allowed Claim;
provided, however that neither the failure to effect such a setoff nor the
allowance of any Claim hereunder shall constitute a waiver or release by the
Debtor of any of these Claims, obligations, rights, causes of action and
liabilities that the Debtor has or may have against the holder.
12.6 Section 346 Injunction. In accordance with Section 346 of the
Bankruptcy Code, for purposes of any state or local law imposing a tax, income
will not be realized by the Bankruptcy Estate, the Debtor or Reorganized Waxman
by reason of the forgiveness or discharge of indebtedness resulting from the
consummation of the Plan. As a result, each state or local taxing authority is
permanently enjoined and restrained, after the Confirmation Date, from
commencing, continuing, or taking any act to impose, collect or recover in any
manner any tax against the Debtor or the Reorganized Waxman arising by reason of
the forgiveness or discharge of indebtedness under this Plan.
39
<PAGE> 44
12.7 Compliance with Tax Requirements. In connection with this Plan,
the Debtor In Possession, Reorganized Waxman, holders of the Deferred Coupon
Notes and the Indenture Trustee shall comply with all applicable withholding and
reporting requirements imposed by federal, state, local and foreign taxing
authorities, and all distributions hereunder shall be subject to those
withholding and reporting requirements. Claimants may be required to provide
certain tax information as a condition to receiving distributions pursuant to
this Plan. Notwithstanding any other provision of this Plan, each Person
receiving a distribution pursuant to this Plan will have sole and exclusive
responsibility for the satisfaction and payment of any tax obligations imposed
by any Governmental Unit, including income, withholding and other tax
obligations, on account of that distribution.
12.8 Discharge of Indenture Trustee. Subsequent to the performance of
the Indenture Trustee or its agents of their duties and obligations under the
provisions of this Plan and the Confirmation Order, and under the terms of the
Indenture, the Indenture Trustee and its agents shall be relieved, discharged
and released from all obligations, claims, rights, demands and causes of action
associated with or arising from the Indenture. The Confirmation Order shall
enjoin from and after the Effective Date the prosecution, whether directly,
derivatively or otherwise, of any claim, debt, right, cause of action or
liability released or to be released pursuant to this section.
ARTICLE XIII - RETENTION OF JURISDICTION
13.1 The Bankruptcy Court shall have exclusive jurisdiction of all
matters arising out of, and related to, the Chapter 11 Case and the Plan
pursuant to, and for the purposes of, Sections 105(a) and 1142 of the Bankruptcy
Code for, among other things, the following purposes:
(a) To ensure that distributions to holders of Allowed Claims
are accomplished as provided herein;
(b) To hear and determine pending applications for the
assumption, assignment or rejection of Executory Contracts or unexpired leases,
if any, pending, and the allowance of Claims resulting therefrom;
(c) To hear and determine any timely objections to
Administrative Expense Claims, or to proofs of Claims filed, both before and
after the Confirmation Date, including without limitation, any objections to the
classification of any Claim, and to estimate, allow or disallow any Disputed
Claim, in whole or in part;
(d) To hear and determine all final applications for
compensation and reimbursement of expenses of any Bankruptcy Professional under
Sections 330 and 503(b) of the Bankruptcy Code;
40
<PAGE> 45
(e) 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;
(f) To issue such orders in aid of execution and consummation
of the Plan, to the extent authorized by Section 1142 of the Bankruptcy Code;
(g) To consider any amendments to or modifications of the
Plan, to cure any defect or omission, or reconcile any inconsistency in any
order of the Bankruptcy Court, including, without limitation, the Confirmation
Order;
(h) To hear and determine any and all adversary proceedings,
applications and contested matters;
(i) To hear and determine disputes arising in connection with
the interpretation, implementation or enforcement of the Plan and agreements
entered into in connection therewith;
(j) To recover all assets of the Debtor and property of the
Debtor's estate, wherever involved to the extent allowed under the Plan;
(k) To hear and determine matters concerning state, local and
federal taxes in accordance with Sections 346, 505 and 1146 of the Bankruptcy
Code;
(l) To hear any other matter not inconsistent with the
Bankruptcy Code; and
(m) To enter a final decree closing the Chapter 11 Case.
ARTICLE XIV - MISCELLANEOUS PROVISIONS
14.1 NON-IMPAIRMENT OF NON-WAXMAN CLAIMS.
-----------------------------------
Nothing contained in the Plan shall limit, modify or impair
any of the rights, claims or Liens of any Person or entity against Waxman USA or
any of the other Subsidiaries except to the extent that any such rights, claims
and Liens (i) may be asserted against Waxman or (ii) arise under, or secure,
indebtedness of Waxman, including, but not limited to, any equipment leases to
which any of the Subsidiaries is a party.
41
<PAGE> 46
14.2 EXEMPTION FROM TRANSFER TAXES.
-----------------------------
Pursuant to Section 1146(c) of the Bankruptcy Code, the issuance,
transfer or exchange of notes or equity securities under the Plan, the creation
of any mortgage, deed of trust or other security interest, the making or
assignment of any lease or sublease, or the making or delivery of any deed or
other instrument of transfer under, in furtherance of, or in connection with the
Plan, including, without limitation, any merger agreements or agreements of
consolidation, deeds, bills of sale or assignments executed in connection with
any of the transactions contemplated under the Plan shall not be subject to any
stamp, real estate transfer, mortgage recording or other similar tax.
14.3 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS.
-----------------------------------------------
The Debtor, Reorganized Waxman, the Bondholders' Committee, the
Creditors' Committee (if any is appointed) and any other party whose cooperation
is needed in connection with the Plan, are authorized to execute, deliver, file
or record such contracts, instruments, releases, indentures and other agreements
or documents and take such actions as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of the Plan.
14.4 TERMINATION OF CREDITORS'
COMMITTEE AND BONDHOLDERS' COMMITTEE.
------------------------------------
If a Creditors' Committee has been appointed in the Chapter 11 Case,
the appointment of the Creditors' Committee shall terminate on the Effective
Date and the Creditors' Committee shall not be entitled to seek reimbursement
for any fees or expenses incurred on or after the Effective Date. The
Bondholders' Committee and an official statutory bondholders' committee, if one
has been appointed in the Chapter 11 Case, shall terminate on the Effective Date
and shall not be entitled to seek reimbursement for any fees or expenses
incurred on or after the Effective Date.
14.5 AMENDMENT OR MODIFICATION OF THE PLAN.
-------------------------------------
Alterations, amendments or modifications of the Plan may be made by the
Debtor in accordance with the provisions of the Bankruptcy Code.
14.6 REVOCATION OR WITHDRAWAL OF THE PLAN.
------------------------------------
The Debtor reserves the right to revoke or withdraw the Plan prior to
the Confirmation Date. If the Debtor revokes or withdraws the Plan prior to the
Confirmation Date, then the Plan shall be deemed null and void. In such event,
nothing contained herein shall constitute or be deemed a waiver or release of
any claims by or against the Debtor or any other Person or to prejudice in any
manner the rights of the Debtor or any Person in any further proceedings
involving the Debtor.
42
<PAGE> 47
14.7 BINDING EFFECT.
--------------
Upon the Effective Date, the Plan shall be binding upon and inure to
the benefit of the Debtor and its successors and assigns (including, without
limitation, Reorganized Waxman) and the holders of Claims and Equity Interests
and their respective successors and assigns, whether or not they voted to accept
the Plan.
14.8 NO ADMISSION.
------------
Notwithstanding anything herein to the contrary, nothing contained in
the Plan shall be deemed as an admission by the Debtor or Debtor In Possession,
with respect to any matter set forth herein, including, without limitation,
liability on any claim or the propriety of any Claims classification.
14.9 NOTICES.
-------
All notices, requests and demands to or upon the Debtor or Reorganized
Waxman or the Bondholders' Committee, to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as follows:
[INTENTIONALLY LEFT BLANK]
43
<PAGE> 48
If to the Debtor, Debtor In Possession or Reorganized
Waxman to:
Mark W. Wester
Vice President - Finance and Chief Financial Officer
Waxman Industries, Inc.
24460 Aurora Road
Bedford Heights, OH 44146
Telephone: (440) 439-1830
Facsimile: (440) 439-8678
with copies to:
Scott M. Zimmerman, Esq.
Shalom Jacob, Esq.
Debra Kramer, Esq.
Swidler Berlin Shereff Friedman, LLP
405 Lexington Avenue
New York, NY 10174
Telephone: (212) 973-0111
Facsimile: (212) 891-9598
-and-
Richard H. Wyron, Esq.
Swidler Berlin Shereff Friedman, LLP
3000 K Street, NW
Suite 300
Washington, D.C. 20037
Telephone: (202) 424-7500
Facsimile: (202) 424-7645
If to the Bondholders' Committee to:
Mr. Kenneth Liang
Oaktree Capital Management, LLC
333 South Grand Avenue, 28th Floor
Los Angeles, CA 90071
Telephone: (213) 830-6300
Facsimile: (213) 830-6494
44
<PAGE> 49
with copies to:
Paul S. Aronzon, Esq.
David Zolkin, Esq.
Scott Gautier, Esq.
Milbank, Tweed, Hadley & McCloy LLP
601 South Figueroa Street - 30th Fl.
Los Angeles, CA 90017
Telephone: (213) 892-4000
Facsimile: (213) 629-5063
14.10 GOVERNING LAW.
-------------
Except to the extent the Bankruptcy Code, Bankruptcy Rules or other
federal law is applicable, or to the extent an exhibit to the Plan provides
otherwise, the rights and obligations arising under the Plan shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Ohio, without giving effect to the principles of conflicts of law of such
jurisdiction, and, where applicable, the General Corporation Law of the State of
Delaware.
14.11 PLAN SUPPLEMENT.
---------------
Any and all exhibits or schedules not filed with the Plan shall be
contained in a Plan supplement and filed with the Clerk of the Bankruptcy Court
at least 10 days prior to the Confirmation Hearing. Upon its filing with the
Bankruptcy Court, the Plan supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal court hours. Holders of Claims or
Equity Interests may obtain a copy of the Plan supplement upon written request
to the Debtor in accordance with Section 14.9 of the Plan.
14.12 HEADINGS.
--------
Headings are used in the Plan for convenience and reference only, and
shall not constitute a part of the Plan for any other purpose.
14.13 EXHIBITS AND SCHEDULES.
----------------------
All Exhibits and Schedules to the Plan, including the Plan supplement,
are incorporated into and are a part of, the Plan as if set forth in full
herein.
Dated: August 31, 2000
45
<PAGE> 50
WAXMAN INDUSTRIES, INC.,
a Delaware corporation
By: /S/Mark Wester
--------------
Name: Mark Wester
Title: Vice President-Finance
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
Attorneys for Waxman Industries, Inc.
By: /S/Scott M. Zimmerman
---------------------------
A Member of the Firm
Scott M. Zimmerman, Esq.
Shalom Jacob, Esq.
Debra Kramer, Esq.
405 Lexington Avenue
New York, New York 10174
Tel: (212) 973-0111
Fax: (212) 891-9598
Richard H. Wyron, Esq.
3000 K Street N.W., Suite 300
Washington, D.C. 20007
Tel: (202) 424-7500
Fax: (212) 424-7647
MILBANK, TWEED, HADLEY & McCLOY LLP
Attorneys for the Unofficial Bondholders' Committee
By: /S/ Paul S. Aronzon
---------------------------
A Member of the Firm
Paul S. Aronzon, Esq.
David Zolkin, Esq.
Scott Gautier, Esq.
601 South Figueroa Street, 30th Floor
Los Angeles, California 90017
Tel: (213) 892-4000
Fax: (213) 892-4777
[JOINT PLAN OF REORGANIZATION]
<PAGE> 51
MORGENS, WATERFALL, VINTIADIS & CO., INC.
acting on behalf of various investment advisory clients
By: /S/ Joann Mcniff
---------------------------
Joann McNiff
Its: Authorized Agent
10 East 50th Street, 26th Floor
New York, New York 10022
Tel: (212) 705-0540
Fax: (212) 838-5540
OAKTREE CAPITAL MANAGEMENT, LLC,
as agent and on behalf of certain funds and accounts
By: /S/ Bruce Karsh
---------------------------
Bruce Karsh
Its: President
By: /S/ Lowell W. Hill
---------------------------
Lowell W. Hill
Its: Senior Vice-President
33 South Ground Avenue, 28th Fl.
Los Angeles, California 90071
Tel: (213) 830-6300
Fax: (213) 830-8522
[JOINT PLAN OF REORGANIZATION]
<PAGE> 52
POST ADVISORY GROUP
By: /S/Carl Goldsmith
---------------------------
Carl Goldsmith
Its: Research Analyst
1800 Century Park East, Suite 820
Los Angeles, California 90067
Tel: (310) 407-0945
Fax: (310) 407-0951
VARDE PARTNERS, INC.
By: /S/ Marcia Page
---------------------------
Marcia Page
Its: Vice President
3600 West 80th Street, #425
Minneapolis, Minnesota 55431
Tel: (612) 893-1554
Fax: (612) 893-9613
[JOINT PLAN OF REORGANIZATION]
<PAGE> 53
SCHEDULE 8.1
EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
NONE
-i-
