UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM 8-A12G/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Anacomp, Inc.
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(Exact name of registrant as specified in its charter)
Indiana 35-1144230
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(State of incorporation or organization) (IRS Employer Identification No.)
11550 North Meridian Street
Carmel, Indiana 46032
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. |_|
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If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. |_|
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $.01 Per Share
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(Title of Class)
Warrants to Purchase Common Stock
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(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The following description summarizes certain information regarding the
common stock and warrants to purchase common stock to be issued by Anacomp, Inc.
(the "Company") pursuant to the Second Amended Joint Plan of Reorganization of
the Company and certain of its subsidiaries (the "Plan"). This information does
not purport to be complete and is subject in all respects to the applicable
provisions of the Company's Certificate of Incorporation (the "Certificate of
Incorporation") and Bylaws (the "Bylaws") and the Indiana Business Corporation
Law, as amended ("IBCL").
This registration statement relates to the issuance under the Plan of (a)
10,000,000 shares of common stock, par value $.01 per share (the "New Common
Stock"), to be issued to certain creditors of the Company on the effective date
under the Plan (the "Effective Date"), (b) 362,694 shares of New Common Stock to
be issued upon the exercise of 362,694 warrants to be issued to certain
creditors of the Company on the Effective Date (the "New Warrants") and (c) the
New Warrants. Each New Warrant will entitle the holder of the New Warrant to
purchase one share of New Common Stock at an exercise price of $12.23 per share
during the period commencing on the Effective Date and expiring five years
thereafter.
A. Background
The Company is a provider of micrographics systems, services and supplies,
with over 15,000 customers in over 65 countries. The existing common stock of
the Company, par value $.01 per share (the "Old Common Stock") (including Common
Stock Purchase Rights) is registered under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (commission file number
1-8328). The Company also has registered under Section 12(b) of the Exchange Act
its 13.875% Convertible Subordinated Debentures due January 15, 2000 (the
"13.875% Convertible Subordinated Debentures") and Common Share Warrants (the
"Old Warrants").
The Company has filed in a timely manner all reports required to be filed
under the Exchange Act during the preceding twelve months.
In 1996, the Company and four of its wholly-owned subsidiaries
(collectively, the "Debtors") became debtors-in-possession in proceedings under
Chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code") before
the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court"). The Debtors submitted the Plan and a disclosure statement (the
"Disclosure Statement") with respect thereto to the Bankruptcy Court on March
28, 1996. The Disclosure Statement was approved by the Bankruptcy Court on such
date pursuant to Section 1125(b) of the Bankruptcy Code, and was transmitted to
the creditors and preferred stockholders of the Company for solicitation of
ballots for acceptance or rejection of the Plan. Ballots were to be cast by May
8, 1996. The Plan was confirmed by the Bankruptcy Court on May 20, 1996 and it
is expected that the Effective Date under the Plan will be on or shortly after
May 30, 1996.
The Plan divides the claims against and interests in the Debtors into
eleven classes. Class 5 consists of the claims of holders of the Company's 15%
Senior Subordinated Notes due 2000 (the "15% Senior Subordinated Notes"); Class
6 consists of the claims of the holders of the Company's 9% Convertible
Subordinated Debentures due 1996 (the "9% Convertible Subordinated Debentures")
and 13.875% Convertible Subordinated Debentures; Class 8 is comprised of the
claims of holders of the Company's 8.25% Cumulative Convertible Redeemable
Exchangeable Preferred Stock (the "Old Preferred Stock"); and Class 9 consists
of the interests of shareholders of the Company. These four classes of claims
against and interests in the Debtors are the only claims or interest to be
resolved under the Plan with the issuance of equity securities, or securities
convertible into equity securities, of the Company.
B. Issuance of Securities under the Plan
On the Effective Date, the Company will be recapitalized such that it will
be authorized to issue 21,000,000 shares capital stock, 20,000,000 of which will
be common stock and 1,000,000 of which will be preferred stock.
Pursuant to Section 6.1.1 of the Plan, on the Effective Date the Company
will cancel all of the Company's shares of Old Common Stock, Common Stock
Purchase Rights, 13.875% Convertible Subordinated Debentures and Old Warrants
which were registered pursuant to Section 12(b) of the Exchange Act, as well as
the Company's other securities including its Preferred Stock and 9% Convertible
Subordinated Debentures. Simultaneously, the Company will issue its New Common
Stock and New Warrants pursuant to the Plan as follows:
(a) New Common Stock
(i) 9,250,000 shares of New Common Stock will be issued to
holders of Class 5 claims (the holders of the Company's 15% Senior
Subordinated Notes); and
(ii) 750,000 shares of New Common Stock will be issued to holders
of Class 6 claims (the holders of the Company's 9% Convertible
Subordinated Debentures and 13.875% Convertible Subordinated
Debentures).
(b) New Warrants
(i) warrants convertible into 259,068 shares of New Common Stock
will be issued to holders of Class 6 claims (the holders of the
Company's 9% Convertible Subordinated Debentures and 13.875%
Convertible Subordinated Debentures);
(ii) warrants convertible into 62,176 shares of New Common Stock
will be issued to holders of Class 8 claims (the holders of the
Company's Old Preferred Stock); and
(iii) warrants convertible into 41,450 shares of New Common Stock
will be issued to holders of Class 9 claims (the holders of the Old
Common Stock).
The Company has applied to the NASDAQ Stock Market, Inc. to list the New
Common Stock and the New Warrants on the NASDAQ National Market System following
the Effective Date.
C. Exemption from Registration under the Securities Act of 1933 (the
"Securities Act")
Section 1145 of the Bankruptcy Code provides generally that an offer or
sale, (a) pursuant to a plan of reorganization, (b) of a security issued by a
debtor, (c) in exchange for a claim against or an interest in the debtor, or
principally in such exchange and partially for cash or property, and (d) to an
entity that is not an underwriter, is exempt from the registration requirements
contained in Section 5 of the Securities Act. The offer or sale of securities in
a transaction complying with these requirements is deemed to be a "public
offering," so that such securities may be resold without registration under the
Securities Act and without any restrictions on resale.
Accordingly, (a) the issuance and resale of (i) the New Common Stock to
certain of the creditors of the Company, and (ii) the New Warrants to certain
other creditors and shareholders of the Company and (b) the issuance and resale
of the New Common Stock upon exercise of the New Warrants is expected to be
exempt from the registration requirements of the Securities Act because such
securities will have been issued in the manner provided for in Section 1145 of
the Bankruptcy Code.
D. New Common Stock
1. General. Each share of New Common Stock entitles the holder thereof to
one vote on all matters submitted to a vote of stockholders, including the
election of directors. There is no cumulative voting in the election of
directors; consequently, the holders of a majority of the outstanding shares of
New Common Stock can elect all of the directors then standing for election.
Holders of New Common Stock are entitled to receive ratably such dividends,
if any, as may be declared from time to time by the Board of Directors out of
funds legally available therefor. Holders of New Common Stock have no
conversion, redemption or preemptive rights to subscribe to any securities of
the Company. All outstanding shares of New Common Stock will be fully paid and
nonassessable. In the event of any liquidation, dissolution or winding-up of the
affairs of the Company, holders of New Common Stock will be entitled to share
ratably in the assets of the Company remaining after provision for payment of
liabilities to creditors and the preferences, if any, of holders of preferred
stock. The rights, preferences and privileges of holders of New Common Stock are
subject to the rights of the holders of any shares of preferred stock which the
Company may issue in the future.
2. Certain Certificate of Incorporation and Bylaw Provisions. The Company's
Certificate of Incorporation and Bylaws include provisions which are intended by
the Board of Directors to help assure fair and equitable treatment of the
Company's shareholders in the event that a person or group should seek to gain
control of the Company in the future. Such provisions, which are discussed
below, may make a takeover attempt or change in control more difficult, whether
by tender offer, proxy contest or otherwise. Accordingly, such provisions may be
viewed as disadvantageous to stockholders inasmuch as they might diminish the
likelihood that a potential acquirer would make an offer for the Company's stock
(perhaps at an attractive premium over the market price), impede a transaction
favorable to the interests of the stockholders, or increase the difficulty of
removing the incumbent Board of Directors and management, even if in a
particular case removal would be beneficial to the stockholders.
Preferred Stock. As described above, the Board of Directors is authorized
to provide for the issuance of shares of preferred stock, in one or more series,
and to fix by resolution and to the extent permitted by the IBCL, the terms and
conditions of such series. The Company believes that the availability of the
preferred stock issuable in series will provide it with increased flexibility in
structuring possible future financings and acquisitions and in meeting other
corporate needs which might arise. Although the Board of Directors has no
present intention to do so, it could issue a series of preferred stock that
could, depending on its terms, either impede or facilitate the completion of a
merger, tender offer or other takeover attempt.
Classified Board of Directors and Related Provisions. The Certificate of
Incorporation provides that the Board of Directors may be divided into two or
more classes of directors with the term of office of one class expiring each
year whenever the Company has nine or more directors. As a result, approximately
one-half or one-third, as the case may be, of the Company's Board of Directors
could be elected each year. The Company believes that a classified board of
directors could help to assure the continuity and stability of the Board of
Directors and the Company's business strategies and policies as determined by
the Board of Directors.
The classified board provision could have the effect of making the removal
of incumbent directors more time-consuming and difficult, therefore discouraging
a third party from making a tender offer or otherwise attempting to obtain
control of the Company, even through such an attempt might be beneficial to the
Company and its shareholders. Thus, the classified board provision could
increase the likelihood that incumbent directors will retain their positions.
No Stockholder Action by Written Consent. The Certificate of Incorporation
provides that stockholder action can be taken only at an annual or special
meeting of stockholders and cannot be taken by written consent in lieu of a
meeting.
Business Combinations. Chapter 43 of the IBCL prohibits a publicly held
Indiana corporation from engaging in a "business combination" with an
"interested stockholder" for a period of five years after the date of the
transaction in which the person becomes an interested stockholder, unless (i)
prior to such date either the business combination or the transaction which
resulted in the shareholder becoming an interested stockholder is approved by
the Board of Directors, (ii) the business combination was approved by the
affirmative vote of the majority of the of the outstanding voting stock which is
not beneficially owned by the interested stockholder, or (iii) the business
combination meets certain conditions set forth in Chapter 43 of the IBCL.
Although it is entitled to do so, the Company has not elected to opt out of
Chapter 43. A "business combination" includes, among other things, mergers,
asset sales and other transactions resulting in a financial benefit to the
stockholder. An "interested stockholder" is generally a person who, together
with affiliates and associates, owns (or, in the case of affiliates and
associates of the issuer, did own within the last five years) 10% or more of the
corporation's voting stock.
E. New Warrants
As described above, an aggregate of 362,694 New Warrants to purchase an
aggregate of 362,694 shares of New Common Stock are to be issued on the
Effective Date. Each New Warrant will entitle the holder of the New Warrant to
purchase one share of New Common Stock at an exercise price of $12.23 per share
during the period commencing on the Effective Date and expiring five years
thereafter. The number of shares of New Common Stock acquired upon exercise of a
New Warrant and/or the exercise price will be proportionately adjusted in the
event of certain capital transactions.
Item 2. Exhibits.
List below all exhibits filed as part of the registration statement:
1(a) Specimen Certificate of shares of New Common Stock
1(b) Specimen Warrant Certificate
2(a) Second Amended Joint Plan of Reorganization (the "Plan") (1)
2(b) Form of Certificate of Incorporation of the Company
2(c). Form of Bylaws of the Company
2(d) Order of the United States Bankruptcy Court for the District of
Delaware confirming the Company's Plan
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(1) Incorporated by reference to Exhibit (a)(2) to the Company's Schedule
14D-9, filed with the Securities and Exchange Commission on May 3, 1996
(File No. 1-8328).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: May 30, 1996
ANACOMP, INC.
By: /s/ Donald L. Viles
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Name: Donald L. Viles
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Title: Executive Vice President and CFO
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<PAGE>
EXHIBIT INDEX
Page
1(a). Specimen Certificate of shares of New Common Stock....................
1(b). Specimen Warrant Certificate
2(a). Second Amendment Joint Plan of Reorganization (the "Plan")1 ..........
2(b). Form of Certificate of Incorporation of the Company...................
2(c). Form of Bylaws of the Company.........................................
2(d). Order of the United States Bankruptcy Court for the District of
Delaware confirming the Company's Plan................................
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1 Incorporated by reference to Exhibit (a)(2) to the Company's Schedule
14D-9, filed with the Securities and Exchange Commission on May 3, 1996
(File No. 1-8328).
NUMBER SHARES
anacomp
COMMON STOCK CUSIP 032371 10 6
PAR VALUE $.01 SEE REVERSE FOR CERTAIN DEFINITIONS
ANACOMP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF INDIANA
This Certifies that
is the record holder of
FULLY PAID AND NON ASSESSABLE SHARES OF COMMON STOCK OF
ANACOMP, INC. transferable on the books of the Corporation by the holder hereof
in person or by duly authorized attorney upon surrender of this certificate
properly endorsed. This certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
its duly authorized officers.
Dated:
/s/ Lang Lowrey, III /s/ William C. Ater
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President and Chief Executive Officer Secretary
COUNTERSIGNED AND REGISTERED:
Chemical Mellon Shareholder Services, L.L.C.
(New York) TRANSER AGENT
AND REGISTRAR
<PAGE>
ANACOMP, INC.
A STATEMENT, IN FULL OF THE RELATIVE RIGHTS, INTERESTS, PREFERENCES AND
RESTRICTIONS OF THE CLASS OF SHARES REPRESENTED BY THIS CERTIFICATE WILL BE
FURNISHED BY THE CORPORATION TO ANY SHAREHOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE, SUCH REQUEST MAY BE MADE TO THE SECRETARY OF THE CORPORATION.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT ----- Custodian ------
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as
tenants in common Act ----------------
(State)
Additional abbreviations may also be used though not in the above list.
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE.
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- -------------------------------------------------------- Shares represented
by the within Certificates, and do hereby irrevocably constitute and appoint --
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Attorney to transfer the said shares on the books of the within-named
Corporation with full power of substitution in the premises.
Dated:--------------------
AFFIX MEDALLION SIGNATURE
GUARANTEE PRINT BELOW
----------------------------------------------------------------
----------------------------------------------------------------
ABOVE SIGNATURES TO THE ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
THE SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION SUCH AS A SECURITIES BROKER/DEALER, COMMERCIAL BANK,
TRUST COMPANY, SAVINGS ASSOCIATION OR A CREDIT UNION
PARTICIPATING IN A MEDALLION PROGRAM APPROVED BY THE SECURITIES
TRANSFER ASSOCIATION, INC.
AMERICAN BANKNOTE COMPANY PRODUCTION COORDINATOR AL DERMOVESIAN 215-830-2100
880 BLAIR MELL ROAD PROOF OF MAY 28, 1996
HORSHAM, PA 18644 ANACOMP
215-667-3450 H44278bk
SALESPERSON: P. SHEERIN 1-800-281-9198 Opr. is NEW
/home/seibert/inprogress/home11/anacomp44278 /net/banknote/home11/A
FORM OF WARRANT CERTIFICATE
WARRANT
ANACOMP, INC.
No._____________________________
Incorporated Under the Laws of the State of Indiana.
THIS CERTIFIES THAT, for value received, ___________________, the
registered holder hereof or registered assigns (the "Holder"), is entitled to
purchase from ANACOMP, INC., an Indiana corporation (the "Company"), at any time
commencing with the opening of business on the day of issuance by the Company of
this Certificate, and until the close of business on _______________, 2001 (the
"Expiration Date"), at the purchase price of $12.23 (subject to adjustment as
described below) per whole share (the "Current Warrant Price"),
[___________________] shares of Common Stock, par value $0.01 per share (the
"Common Stock"), of the Company. The number of shares purchasable upon exercise
of each Warrant and the Current Warrant Price per whole share shall be subject
to adjustment from time to time as set forth in the Warrant Agreement referred
to below.
The Warrants represented hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Subscription Form included
herein duly executed, which signature shall be guaranteed by a bank or trust
company having an office or correspondent in the United States or a broker or
dealer which is a member of a registered securities exchange or the National
Association of Securities Dealers, Inc., and simultaneous payment of the Current
Warrant Price multiplied by the number of Warrants being exercised at the
principal office of ____________________ (the "Warrant Agent") at
____________________. Payment of such price shall be made at the option of the
Holder hereof by certified or official bank check.
The Warrants represented hereby are of a duly authorized issue of Warrants
evidencing the right to purchase an aggregate of 362,694 shares of Common Stock
and are issued under and in accordance with a Warrant Agreement (the "Warrant
Agreement"), dated as of ____________________, 1996, between the Company and the
Warrant Agent and are subject to the terms and provisions contained in the
Warrant Agreement, to all of which the Holder of this Warrant Certificate by
acceptance hereof consents. A copy of the Warrant Agreement is available for
inspection at the principal office of the Company.
Upon any partial exercise of the Warrants represented hereby, there shall
be countersigned and issued to the Holder hereof a new Warrant Certificate in
respect of the shares of Common Stock as to which the Warrants represented
hereby shall not have been exercised. The Warrants represented hereby may be
exchanged at the office of the Warrant Agent by surrender of this Warrant
Certificate properly endorsed either separately or in combination with one or
more other Warrant Certificates for one or more new Warrant Certificates
representing Warrants entitling the Holder thereof to purchase the same
aggregate number of shares as were purchased on exercise of the Warrant or
Warrants exchanged. No fractional shares will be issued upon the exercise of
these Warrants. Subject to compliance with applicable securities laws, the
Warrants represented hereby are transferable at the office of the Warrant Agent,
in the manner and subject to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent and all
other persons dealing with this Warrant Certificate as the absolute owner hereof
for any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books, the Company may
treat the Holder hereof as the owner for all purposes.
The Warrants represented hereby do not entitle any Holder hereof to any of
the rights of a shareholder of the Company.
The Warrant represented hereby shall not be valid or obligatory for any
purpose until this Warrant Certificate shall have been countersigned by the
Warrant Agent.
Witness the facsimile seal of the Company and the facsimile signatures of
its duly authorized officers.
Dated: [___________________________]
Countersigned and Registered:
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as Warrant Agent
By:_________________________________
Authorized Signature
ANACOMP, INC.
By:_________________________________
Chairman of the Board and President
Attest:______________________________
Secretary
EXHIBIT 1
DRAFT 5/17/96
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ANACOMP, INC.
ARTICLE I
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Name
----
The name of the Corporation is Anacomp, Inc.
ARTICLE II
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Purposes and Powers
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Section 1. Purposes of the Corporation. The purposes for which the
Corporation is formed are to transact any or all lawful business permitted by
applicable law and for which corporations may now or hereafter be incorporated
under the Corporation Law.
Section 2. Powers of the Corporation. The Corporation shall have (a) all
powers now or hereafter authorized by or vested in corporations pursuant to the
provisions of the Corporation Law, (b) all powers now or hereafter vested in
corporations by common law or any other statute or act, and (c) all powers
authorized by or vested in the Corporation by the provisions of these Restated
Articles of Incorporation or by the provisions of its Bylaws as from time to
time in effect.
ARTICLE III
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Terms of Existence
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The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
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Registered Office and Agent
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The street address of the Corporation's registered office at the time of
adoption of these Amended and Restated Articles of Incorporation is 11550 North
Meridian Street, Carmel, Indiana 46032, and the name of its registered agent at
such office at the time of adoption of these Amended and Restated Articles of
Incorporation is William C. Ater.
<PAGE>
ARTICLE V
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Shares
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The total number of shares that the Corporation has authority to issue
shall be 21,000,000 shares consisting of 20,000,000 common shares (the "Common
Shares"), and 1,000,000 preferred shares (the "Preferred Shares"). The
Corporation's shares shall have a par value of one cent per share. The
Corporation shall have the power to issue fractional shares or scrip in the
manner and to the extent now or hereafter permitted by the laws of the State of
Indiana.
ARTICLE VI
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Terms of Shares
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Section 1. General Terms of All Shares. The Corporation shall have the
power to acquire (by purchase, redemption, or otherwise), hold, own, pledge,
sell, transfer, assign, reissue, cancel or otherwise dispose of the shares of
the Corporation in the manner and to the extent now or hereafter permitted by
the laws of the State of Indiana, including the power to purchase, redeem, or
otherwise acquire the Corporation's own shares, directly or indirectly and
without pro rata treatment of the owners of holders of any class or series of
shares, unless, after giving effect thereto, the Corporation would not be able
to pay its debts as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities and without
regard to any amounts that would be needed, if the Corporation were to be
dissolved at the time of the purchase, redemption, or other acquisition, to
satisfy the preferential rights upon dissolution of shareholders whose
preferential rights are superior to those of the holders of the shares of the
Corporation being purchased, redeemed, or otherwise acquired, unless otherwise
expressly provided with respect to a series of Preferred Shares in the
provisions of these Amended and Restated Articles of Incorporation adopted by
the Board of Directors pursuant to Section 3(a) of Article VI hereof describing
the terms of such series. Shares of the Corporation purchased, redeemed, or
otherwise acquired by it shall constitute authorized and issued but not
outstanding shares, unless the Board of Directors shall at any time adopt a
resolution providing that such shares constitute authorized but issued shares.
The Board of Directors of the Corporation may dispose of, issue, and sell
shares in accordance with, and in such amounts as may be permitted by, the laws
of the State of Indiana and the provisions of these Amended and Restated
Articles of Incorporation and for such consideration, at such price or prices,
at such time or times and upon such terms and conditions (including the
privilege of selectively repurchasing the same) as the Board of Directors of the
Corporation shall determine to be adequate, without the authorization or
approval by any shareholders of the Corporation. When disposed of, issued or
sold, such shares will be fully paid and non-assessable. Shares may be disposed
of, issued, and sold to such persons, firms, or corporations as the Board of
Directors may determine, without any preemptive or other right on the part of
the owners or holders of other shares of the Corporation of any class or kind to
acquire such shares by reason of their ownership of such other shares.
<PAGE>
The Corporation shall have the power to declare and pay dividends or other
distributions upon the issued and outstanding shares of the Corporation, subject
to the limitation that a dividend or other distribution may not be made if,
after giving it effect, the Corporation would not be able to pay its debts as
they become due in the usual course of business or the Corporation's total
assets would be less than its total liabilities and without regard to any
amounts that would be needed, if the Corporation were to be dissolved at the
time of the dividend or other distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
of the holders of shares receiving the dividend or other distribution, unless
otherwise expressly provided with respect to a series of Preferred Shares in the
provisions of these Amended and Restated Articles of Incorporation adopted by
the Board of Directors pursuant to Section 3(a) of this Article VI describing
the terms of such series. The Board of Directors may base a determination that a
distribution is not prohibited either on financial statements prepared on the
basis of accounting practices and principles that are reasonable in the
circumstances or on a fair valuation or other method that is reasonable in the
circumstances. The Corporation shall have the power to issue shares of one class
or series as a share dividend or other distribution in respect of that class or
series or one or more other classes or series without the approval of the
holders of either of those classes or series, except as may be otherwise
provided with respect to a series of Preferred Shares in the provisions of these
Amended and Restated Articles of Incorporation adopted by the Board of Directors
pursuant to Section 3(a) of this Article VI describing the terms of such series.
Section 2. Terms of Common Shares. The Common Shares shall be equal in
every respect insofar as their relationship to the Corporation is concerned, but
such equality of rights shall not imply equality of treatment as to redemption
or other acquisition of shares by the Corporation. Subject to the rights of the
holders of any issued and outstanding Preferred Shares under this Article VI,
the holders of Common Shares shall be entitled to share ratably in such
dividends or other distributions (other than purchases, redemptions, or other
acquisitions of Common Shares of the Corporation), if any, as are declared and
paid from time to time on the Common Shares at the discretion of the Board of
Directors. In the event of any liquidation, dissolution, or winding up of the
Corporation, either voluntary or involuntary, after payment shall have been made
to the holders of the Preferred Shares of the full amount to which they shall be
entitled under this Article VI, the holders of Common Shares shall be entitled,
to the exclusion of the holders of the Preferred Shares of any and all series,
to share, ratably according to the number of shares of Common Shares held by
them, in all remaining assets of the Corporation available for distribution to
its shareholders.
<PAGE>
Section 3. Terms of Preferred Shares.
(a) Preferred Shares may be issued from time to time in one or more series,
each such series to have such distinguishing designation and such preferences,
limitations, and relative voting and other rights as shall be set forth in these
Amended and Restated Articles of Incorporation. Subject to the requirements of
the Corporation Law and subject to all other provisions of these Amended and
Restated Articles of Incorporation, the Board of Directors of the Corporation
may create one or more series of Preferred Shares and shall determine the
preferences, limitations, and relative voting and other rights of one or more
series of Preferred Shares before the issuance of any shares of that series by
the adoption of an amendment to these Amended and Restated Articles of
Incorporation that specifies the terms of that series of Preferred Shares. All
shares of a series of Preferred Shares must have preferences, other shares of
the same series. No series of Preferred Shares need have preferences,
limitations, or relative voting or other rights identical with those of any
other series of Preferred Shares.
Before issuing any shares of a series of Preferred Shares, the Board of
Directors shall adopt an amendment to these Amended and Restated Articles of
Incorporation, which shall be effective without any shareholder approval or
other action, that fixes and sets forth the distinguishing designation of such
series; the number of shares that shall constitute such series, which number may
be increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by action of the Board of Directors; and the
preferences, limitations, and relative voting and other rights of the series.
Authority is hereby expressly vested in the Board of Directors, by such
amendment, to fix all of the preferences or rights, and any qualifications,
limitations, or restrictions of such preferences or rights, of such series to
the full extent permitted by the Corporation Law; provided, however, that no
such preferences, rights, qualifications, limitations, or restrictions shall be
in conflict with these Amended and Restated Articles of Incorporation or any
amendment thereof.
(b) Preferred Shares of any series that have been redeemed (whether through
the operation of a sinking fund or otherwise) or purchased by the Corporation,
or that, if convertible, have been converted into shares of the Corporation of
any other class or series, may be reissued as a part of such series or of any
other series of Preferred Shares, subject to such limitations (if any) as may be
fixed by the Board of Directors with respect to such series of Preferred Shares
in accordance with Section 3(a) of this Article VI.
ARTICLE VII
-----------
Voting Rights
-------------
Section 1. Common Shares. Except as otherwise provided by the Corporation
Law and subject to such shareholder disclosure and recognition procedures (which
may include sanctions for noncompliance therewith to the fullest extent
permitted by the Corporation Law) as the Corporation may by action of the Board
of Directors establish, the Common Shares have unlimited voting rights. At every
meeting of the shareholders of the Corporation every holder of Common Shares
shall be entitled to one (1) vote in person or by proxy for each Common Share
standing in such holder's name on the stock transfer records of the Corporation.
<PAGE>
Section 2. Preferred Shares. Except as required by the Corporation Law or
by the provisions of these Amended and Restated Articles of Incorporation
adopted by the Board of Directors pursuant to Section 3(a) of Article VI hereof
describing the terms of Preferred Shares or a series thereof, the holders of
Preferred Shares shall have no voting rights or powers. Preferred Shares shall,
when validity issued by the Corporation, entitle the record holder thereof to
vote as and on such matters, but only as and on such matters as the holders
thereof are entitled to vote under the Corporation Law or under the provisions
of these Amended and Restated Articles of Incorporation adopted by the Board of
Directors pursuant to Section 3(a) of Article VI hereof describing the terms of
Preferred Shares or a series thereof (which provisions may provide for special,
conditional, limited, or unlimited voting rights, including multiple or
fractional votes per share, or for no right to vote, except to the extent
required by the Corporation Law) and subject to such shareholder disclosure and
recognition procedures (which may include sanctions for noncompliance therewith
to the fullest extent permitted by the Corporation Law) as the Corporation may
by action of the Board of Directors establish.
Section 3. Non-voting Equity Securities. Notwithstanding anything to the
contrary set forth in this Article VII, the Corporation shall not issue any
non-voting equity securities; provided, however, that this provision, included
in these Amended and Restated Articles of Incorporation in compliance with
Section 1123(a)(6) of the United States Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code"), shall have no force and effect beyond that required by
Section 1123(a)(6) of the Bankruptcy Code and shall be effective only for so
long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to
the Corporation.
ARTICLE VIII
------------
Directors
---------
Section 1. Number. The Board of Directors at the time of adoption of these
Amended and Restated Articles of Incorporation is composed of seven (7) members.
The number of Directors shall be fixed by, or fixed in accordance with, the
Bylaws. The Bylaws may also provide for staggering the terms of the members of
the Board of Directors by dividing the total number of Directors into two (2) or
three (3) groups (with each group containing one-half (1/2) or one third (1/3)
of the total, as near as my be) whose terms of office expire at different times.
Section 2. Election of Directors by Holders of Preferred Shares. The
holders of one (1) or more series of Preferred Shares may be entitled to elect
all or a specified number of Directors, but only to the extent and subject to
limitations as may be set forth in the provisions of these Amended and Restated
Articles of Incorporation adopted by the Board of Directors pursuant to Section
3(a) of Article VI hereof describing the terms of the series of Preferred
Shares.
<PAGE>
Section 3. Vacancies. Vacancies occurring in the Board of Directors shall
be filled in the manner provided in the Bylaws or, if the Bylaws do not provide
for the filling of vacancies, in the manner provided by the Corporation Law.
Section 4. Removal of Directors. Any or all of the members of the Board of
Directors may be removed, for good cause, at a meeting of the shareholders
called expressly for that purpose, by the affirmative vote of the holders of a
majority of the outstanding shares then entitled to vote at an election of
Directors. However, a Director elected by the holders of a series of Preferred
Shares as authorized by Section 2 of Article VIII may be removed only by the
affirmative vote of the holders of a majority of the outstanding shares of that
series then entitled to vote at an election of Directors. Directors may be
removed by the shareholders only for good cause.
Section 5. Liability of Directors. A Director's responsibility to the
Corporation shall be limited to discharging his duties as a Director, including
his duties as a member of any committee of the Board of Directors upon which he
may serve, in good faith, with the care an ordinarily prudent person in a like
position would exercise under similar circumstances, and in a manner the
Director reasonably believes to be in the best interests of the Corporation, all
based on the facts then known to the Director.
In discharging his duties, a Director is entitled to rely on information,
opinions, reports, or statements, including financial statements and other
financial data, if prepared or presented by:
(a) One (1) or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the
matters presented;
(b) Legal counsel, public accountants, or other persons as to matters
the Director reasonably believes are within such person's
professional or expert competence; or
(c) A committee of the Board of which the Director is not a member if
the Director reasonably believes the Committee merits confidence;
but a Director is not acting in good faith if the Director has knowledge
concerning the matter in question that makes reliance otherwise permitted by
this Section 5 unwarranted. A Director may, in considering the best interests of
the Corporation, consider the effects of any action on shareholders, employees,
suppliers, and customers of the Corporation, and communities in which offices or
other facilities of the Corporation are located, and any other factors the
Director considers pertinent.
<PAGE>
Directors shall be immune from personal liability for any action taken as a
Director, or any failure to take any action, to the fullest extent permitted by
the applicable provisions of the Corporation Law from time to time in effect and
by general principles of corporate law.
Section 6. Nonmonetary Factors in Acquisition Proposals. In connection with
the exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders when evaluating a proposal by another person or
persons to acquire some material part or all of the business or properties of
the Corporation (whether by merger, consolidation, purchase of assets, stock
reclassification, or recapitalization, spin-off, liquidation, or otherwise) or
to acquire some material part or all of the stock of the Corporation (whether by
a tender or exchange offer or some other means), the Board of Directors of the
Corporation may, in addition to considering the adequacy of the consideration to
be paid in connection with any such transaction, consider all of the following
factors and any other factors that it deems relevant: (a) the social and
economic effects of the transaction on the Corporation and its subsidiaries and
their employees, customers, and creditors and the communities in which the
Corporation and its subsidiaries operate or are located; (b) the business and
financial condition and earnings prospects of the acquiring person or persons,
including, but not limited to, debt service and other existing or likely
financial obligations of the acquiring person or persons and their affiliates
and associates, and the possible effect of such conditions upon the Corporation
and its subsidiaries and the communities in which the Corporation and its
subsidiaries operate or are located; and (c) the competence, experience, and
integrity of the acquiring person or persons and its or their management and
affiliates and associates.
ARTICLE IX
----------
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
-------------------------------------
Section 1. Bylaws. The Board of Directors shall have the exclusive power to
make, alter, amend, or repeal, or to waive provisions of, the Bylaws of the
Corporation by the affirmative vote of a majority of the number of Directors
then in office at the time, except as provided by the Corporation Law. All
provisions for the regulation of the business and management of the affairs of
the Corporation not stated in these Amended and Restated Articles of
Incorporation shall be stated in the Bylaws. The Board of Directors may also
adopt Emergency Bylaws of the Corporation and shall have the exclusive power
(except as may otherwise be provided therein) to make, alter, amend, or repeal,
or to waive provisions of, the Emergency Bylaws by the affirmative vote of a
majority of the entire number of Directors at the time.
Section 2. Indemnification of Officers, Directors, and Other Eligible
Persons.
<PAGE>
(a) To the extent not inconsistent with applicable law, every Eligible
Person shall be indemnified by the Corporation against all Liability and
reasonable Expense that may be incurred by him in connection with or resulting
from any Claim:
(i) if such Eligible Person is Wholly Successful with respect to the
Claim, or
(ii) if not Wholly Successful, then if such Eligible Person is
determined, as provided in either Section 2(f) or (2(g), to have
acted in good faith, in what he reasonably believed to be in the
best interests of the Corporation or at least not opposed to its
best interests and, in addition, with respect to any criminal
Claim is determined to have had reasonable cause to believe that
his conduct was lawful or had no reasonable cause to believe that
his conduct was unlawful.
The termination of any Claim, by judgment, order, settlement (whether with or
without court approval), or conviction or upon a plea of guilty or of nolo
contendere, or its equivalent, shall not create a presumption that an Eligible
Person did not meet the standards of conduct set forth in clause (ii) of this
subsection
(a) The actions of an Eligible Person with respect to an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974 shall be
deemed to have been taken in what the Eligible Person reasonably believed to be
the best interests of the Corporation or at least not opposed to its best
interests if the Eligible Person reasonably believed he was acting in conformity
with the requirements of such Act or he reasonably believed his actions to be in
the interests of the participants in or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 2 shall include every pending,
threatened, or completed claim, action, suit, or proceeding and all appeals
thereof (whether brought by or in the right of this Corporation or any other
corporation or otherwise), civil, criminal, administrative, or investigative,
formal or informal, in which an Eligible Person may become involved, as a party
or otherwise: (i) by reason of his being or having been an Eligible Person, or
(ii) by reason of any action taken or not taken by him in his capacity as an
Eligible Person, whether or not he continued in such capacity at the time such
Liability or Expense shall have been incurred.
(c) The term "Eligible Person" as used in this Section 2 shall mean every
person (and the estate, heirs, and personal representative of such person) who
is or was a Director, officer, employee, or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee,
agent, or fiduciary of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other organization or entity,
whether for profit or not. An Eligible Person shall also be considered to have
been serving an employee benefit plan at the request of the Corporation if his
duties to the Corporation also imposed duties on, or otherwise involved services
by him to the plan or to participants in or beneficiaries of the plan.
<PAGE>
(d) The terms "Liability" and Expense" as used in this Section 2 shall
include, but shall not be limited to, counsel fees and disbursements and amounts
of judgments, fines, or penalties against (including excise taxes assessed with
respect to an employee benefit plan), and amounts paid in settlement by or on
behalf of, an Eligible Person.
(e) The term "Wholly Successful" as used in this Section 2 shall mean (i)
termination of any Claim against the Eligible Person in question without any
finding of liability or guilt against him, (ii) approval by a court, with
knowledge of the indemnity herein provided, of a settlement of any Claim, or
(iii) the expiration of a reasonable period of time after making or threatened
making of any Claim without the institution of the same, without any payment or
promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder (other than
one who has been Wholly Successful with respect to any Claim) shall be entitled
to indemnification (i) if special independent legal counsel, which may be
regular counsel of the Corporation or other disinterested person or persons (who
may be members of the Board of Directors), in either case selected by the Board
of Directors, whether or not a disinterested quorum exists (such counsel or
person or persons being hereinafter called the "Referee"), shall deliver to the
Corporation a written finding that such Eligible Person has met the standards of
conduct set forth in clause (ii) of Section 2(a), and (ii) if the Board of
Directors, acting upon such written finding, so determines. The Board of
Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine the
reasonableness of the Eligible Person's Expenses. The Eligible Person claiming
indemnification shall, if requested, appear before the Referee, answer questions
that the Referee deems relevant, and shall be given ample opportunity to present
to the Referee evidence upon which he relies for indemnification. The
Corporation shall, at the request of the Referee, make available facts,
opinions, or other evidence in any way relevant to the Referee's finding that
are within the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to Section 2(f)
is found not to be entitled thereto, or if the Board of Directors fails to
select a Referee under Section 2(f) within a reasonable amount of time following
a written request of an Eligible Person for the selection of a Referee, or if
the Referee or the Board of Directors fails to make a determination under
Section 2(f) within a reasonable amount of time following the selection of a
Referee, the Eligible Person may apply for indemnification with respect to a
Claim to a court of competent jurisdiction, including a court in which the Claim
is pending against the Eligible Person. On receipt of an application, the court,
after giving notice to the Corporation and giving the Corporation ample
opportunity to present to the court any information or evidence relating to the
claim for indemnification that the Corporation deems appropriate, may order
indemnification if it determines that the Eligible Person is entitled to
indemnification with respect to the Claim because such Eligible Person met the
standards of conduct set forth in clause (ii) of Section 2(a). If the court
determines that the Eligible Person is entitled to indemnification, the court
shall also determine the reasonableness of the Eligible Person's Expenses.
<PAGE>
(h) The right of indemnification provided in this Section 2 shall be in
addition to any rights to which any Eligible Person may otherwise be entitled.
Irrespective of the provisions of this Section 2, the Board of Directors may, at
any time and from time to time, (i) approve indemnification of any Eligible
Person to the full extent permitted by the provision of applicable law at the
time in effect, whether on account of past or future transactions, and (ii)
authorize the Corporation to purchase and maintain insurance on behalf of any
Eligible Person against any Liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability.
(i) Expenses incurred by an Eligible Person with respect to any Claim may
be advanced by the Corporation (by action of the Board of Directors, whether or
not a disinterest quorum exists) prior to the final disposition thereof upon
receipt of any undertaking by or on behalf of the recipient to repay such amount
unless he is determined to be entitled to indemnification.
(j) The provisions of this Section 2 shall be deemed to be a contract
between the Corporation and each Eligible Person, and an Eligible Person's
rights hereunder shall not be diminished or otherwise adversely affected by any
repeal, amendment, or modification of this Section 2 that occurs subsequent to
such person becoming an Eligible Person.
(k) The provisions of this Section 2 shall be applicable to Claims made or
commenced after the adoption hereof, whether arising from acts or omissions to
act occurring before or after the adoption hereof.
Section 3. Amendment or Repeal. Except as otherwise expressly provided for
in these Amended and Restated Articles of Incorporation, the Corporation shall
be deemed, for all purposes, to have reserved the right to amend, alter, change
or repeal any provision contained in these Amended and Restated Articles of
Incorporation to the extent and in the manner now or hereafter permitted or
prescribed by statute, and all rights herein conferred upon shareholders are
granted subject to such reservation.
RESTATED
BYLAWS
OF
ANACOMP, INC.
ARTICLE I
---------
Meetings of Shareholders
------------------------
Section 1.1 Annual Meetings. Annual meetings of the shareholders of the
Corporation shall be held at such hour and at such place within or without the
State of Indiana as shall be designated by the Board of Directors.
Section 1.2 Special Meetings. Special meetings of the shareholders of the
Corporation may be called at any time by the Board of Directors or the Chairman
of the Board. In calling such a special meeting of shareholders, the Board of
Directors or the Chairman of the Board, as the case may be, calling a special
meeting of shareholders shall set the date, time, and place of such meeting,
which may be held within or without the State of Indiana.
Section 1.3 Notices. A written notice, stating the date, time, and place of
any meeting of the shareholders, and in the case of a special meeting containing
a description of the purpose or purposes for which such meeting is called, shall
be delivered or mailed by the Secretary of the Corporation, to each shareholder
of record of the Corporation entitled to notice of or to vote at such meeting no
fewer than ten (10) nor more than sixty (60) days before the date of the
meeting, or as otherwise provided by the Indiana Business Corporation Law
("Corporation Law"). Notice of shareholders' meetings, if mailed, shall be
mailed, postage prepaid, to each shareholder at his address shown in the
Corporation's current record of shareholders. Only business within the purpose
or purposes described in the meeting notice may be conducted at a special
meeting of shareholders.
A shareholder or his proxy may at any time waive notice of any meeting of
shareholders if the waiver is in writing and is delivered to the Corporation for
inclusion in the minutes or filing with the Corporation's records. A
shareholder's attendance at a meeting, whether in person or by proxy, (a) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder or his proxy at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting, and (b) waives objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder or
his proxy objects to considering the matter when it is presented. Each
shareholder who has in the manner above provided waived notice or objection to
notice of the shareholders' meeting shall be conclusively presumed to have been
given due notice of such meeting, including the purpose or purposes thereof.
<PAGE>
If an annual or special shareholders' meeting is adjourned to a different
date, time or place, notice need not be given of the new date, time, or place if
the new date, time or place is announced at the meeting before adjournment,
unless a new record date is or must be established for the adjourned meeting.
The Board of Directors must fix a new record date if the meeting is adjourned to
a date more than one hundred twenty (120) days after the date fixed for the
original meeting.
Section 1.4. Voting. Except as otherwise provided by the Corporation Law or
the Corporation's Articles of Incorporation, each share of the capital stock of
any class of the Corporation that is outstanding at the record date and
represented in person or by proxy at the annual or special meeting shall entitle
the record holder thereof, or his proxy, to one (1) vote on each matter voted on
at the meeting.
Section 1.5. Quorum. Unless the Corporation's Articles of Incorporation or
the Corporation Law provide otherwise, at all meetings of shareholders a
majority of the votes entitled to be cast on a matter, represented in person or
by proxy, constitutes a quorum for action on the matter. Action may be taken at
a shareholders' meeting only on matters with respect to which a quorum exists;
provided, however, that any meeting of shareholders, including annual and
special meetings and any adjournments thereof, may be adjourned to a later date
although less than a quorum is present. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any meeting held pursuant to an adjournment of that
meeting unless a new record date is or must be set for that adjourned meeting.
Section 1.6. Vote Required to Take Action. If a quorum exists as to a
matter to be considered at a meeting of shareholders, action on such matter
(other than the election of Directors) is approved if the votes properly cast
favoring the action exceed the votes properly cast opposing the action, unless
the Corporation's Articles of Incorporation or the Corporation Law require a
greater number of affirmative votes. Directors shall be elected by a plurality
of the votes properly cast.
Section 1.7. Record Date. Only such persons shall be entitled to notice or
to vote, in person or by proxy, at any shareholders' meeting as shall appear as
shareholders upon the books of the Corporation as of such record date as the
Board of Directors shall determine, which date may not be earlier than the date
seventy (70) days immediately preceding the meeting unless otherwise permitted
by the Corporation Law. In the absence of such determination, the record date
shall be the fiftieth (50th) day immediately preceding the date of such meeting.
Unless otherwise provided by the Board of Directors, shareholders shall be
determined as of the close of business on the record date.
Section 1.8. Proxies. A shareholder may vote his shares either in person or
by proxy. A shareholder may appoint a proxy to vote or otherwise act for the
shareholder (including authorizing the proxy to receive, or to waive, notice of
any shareholders' meetings within the effective period of such proxy) by signing
an appointment form, either personally or by the shareholder's attorney-in-fact.
An appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes and is effective for eleven (11)
months unless a longer period is expressly provided in the appointment form. The
proxy's authority may be limited to a particular meeting or may be general and
authorize the proxy to represent the shareholder at a meeting of shareholders
held within the time provided in the appointment form. An appointment of a proxy
is revocable by the shareholder unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an interest. Subject
to the Corporation Law and to any express limitation on the proxy's authority
appearing on the face of the appointment form, the Corporation is entitled to
accept the proxy's vote or other action as that of the shareholder making the
appointment.
<PAGE>
ARTICLE II
----------
Directors
---------
Section 2.1. Number and Term. The business of the Corporation shall be
managed by a Board of Directors consisting of at least six Directors and no more
than twelve Directors. The exact number of Directors of the Corporation shall be
fixed by the Board of Directors within the range established by the preceding
sentence, and may be changed within that range from time to time by the Board of
Directors. Each Director shall be elected for a term of office to expire at the
annual meeting of shareholders next following his election. Despite the
expiration of a Director's term, the Director shall continue to serve until his
successor is elected and qualified or until the earlier of his death,
resignation, disqualification, or removal, or until there is a decrease in the
number of Directors. Any vacancy in the Board of Directors, from whatever cause
arising, including any increase in the size of the Board of Directors as fixed
by the Board of Directors, shall be filled by selection of a successor by a
majority vote of the remaining members of the Board of Directors (even if less
than a quorum); provided, however, that if such vacancy or vacancies leave the
Board of Directors with no members or if the remaining members of the Board are
unable to agree upon a successor or determine not to select a successor, such
vacancy may be filled by a vote of the shareholders at a special meeting called
for that purpose or at the next annual meeting of shareholders. The term of a
director elected or selected to fill a vacancy shall expire at the end of the
term for which such Director's predecessor was elected.
The Directors and each of them shall have no authority to bind the
Corporation except when acting as a Board or as a committee of the Board to the
extent permitted in Section 2.7 hereof.
Section. 2.2. Quorum and Vote Required to Take Action. At least one third
of the whole Board of Directors (the size of which shall be determined in
accordance with the latest action of the Board of Directors fixing the number of
Directors) shall be necessary to constitute a quorum for the transaction of any
business, except the filling of vacancies. If a quorum is present when a vote is
taken, the affirmative vote of a majority of the Directors present shall be the
act of the Board of Directors, unless the act of a greater number is required by
the Corporation Law, the Corporation's Articles of Incorporation, or these
Bylaws.
<PAGE>
Section 2.3. Annual and Regular Meetings. The Board of Directors shall meet
annually, without notice, on the same day as the annual meeting of the
shareholders, for the purpose of transacting such business as properly may come
before the meeting. Other regular meetings of the Board of Directors, in
addition to said meeting, may be held without notice of the date, time, place or
purpose of the meeting or on such dates, at such times, and at such places as
shall be fixed by resolution adopted by the Board of Directors or otherwise
communicated to the Directors. The Board of Directors may at any time alter the
date for the next regular meeting of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be called by any member of the Board of Directors upon not less than
twenty-four (24) hours' notice given to each Director of the date, time and
place of the meeting, which notice need not specify the purpose or purposes of
the special meeting. Such notice may be communicated in person (either in
writing or orally), by telephone, telegraph, teletype or other form of wire or
wireless communication or by mail, and shall be effective at the earlier of the
time of its receipt or, if mailed, five (5) days after its mailing. Notice of
any meeting of the Board may be waived in writing at any time if the waiver is
signed by the Director entitled to the notice and is filed with the minutes or
corporate records. A Director's attendance at or participation in a meeting
waives any required notice to the Director of the meeting, unless the Director
at the beginning of the meeting (or promptly upon the Director's arrival)
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 2.5. Written Consents. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if the
action is taken by all members of the Board. The action must be evidenced by one
(1) or more written consents describing the action taken, signed by each
Director, and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section 2.5 is effective
when the last Director signs the consent, unless the consent specifies a
different prior or subsequent effective date, in which case the action is
effective on or as of the specified date. A consent signed under this Section
2.5 has the effect of a meeting vote and may be described as such in any
document.
Section 2.6. Participation by Conference Telephone. The Board of Directors
may permit any or all Directors to participate in a regular or special meeting
by, or through the use of, any means of communication, such as conference
telephone, by which all Directors participating may simultaneously hear each
other during the meeting. A Director participating in a meting by such means
shall be deemed to be present in person at the meeting.
Section 2.7. Committees.
(a) The Board of Directors may create one (1) or more committees and
appoint members of the Board of Directors to serve on them, by resolution
of the Board of Directors adopted by a majority of all the Directors in
office when the resolution is adopted. Each committee may have one (1) or
more members, and all the members of a committee shall serve at the
pleasure of the Board of Directors.
<PAGE>
(b) To the extent specified by the Board of Directors in the resolutions
creating a committee, each committee may exercise all of the authority of
the Board of Directors; provided, however, that a committee may not:
(1) authorize dividends or other distributions as defined by the
Corporation Law, except a committee may authorize or approve a
reacquisition of shares if done according to a formula or method
prescribed by the Board of Directors;
(2) approve or propose to shareholders action that is required to be
approved by shareholders;
(3) fill vacancies on the Board of Directors or on any of its
committees;
(4) amend the Corporation's Articles of Incorporation;
(5) adopt, amend, repeal, or waive provision of these Bylaws, or
(6) approve a plan of merger not requiring shareholder approval.
(c) Except to the extent inconsistent with the resolutions creating a
committee, Section 2.1 through 2.6 of these Bylaws, which govern meetings,
action without meetings, notice and waiver of notice, quorum and voting
requirements, and telephone participation in meetings of the Board of
Directors, apply to the committee and its members as well.
ARTICLE III
-----------
Officers
--------
Section 3.1. Designation, Selection, and Terms. The officers of the
Corporation shall consist of the Chairman of the Board and the Secretary. The
Board of Directors may also elect a President, Vice Presidents, Assistant
Secretaries, Assistant Treasurers, and such other officers or assistant officers
as it may from time to time determine by resolution creating the office and
defining the duties thereof. In addition, the Chairman of the Board may, from
time to time, create and appoint such assistant officers as he deems desirable.
The officers of the Corporation shall be elected by the Board of Directors (or
appointed by the Chairman of the Board as provided above) and need not be
selected from among the members of the Board of Directors. Any two (2) or more
offices may be held by the same person. All officers shall serve at the pleasure
of the Board of Directors and, with respect to officers appointed by the
Chairman of the Board, also at the pleasure of such officer. The election or
appointment of an officer does not itself create contract rights.
<PAGE>
Section 3.2. Removal and Vacancies. The Board of Directors may remove any
officer at any time with or without cause. An officer appointed by the Chairman
of the Board may also be removed at any time, with or without cause, by such
officer. Vacancies in such offices, however occurring, may be filled by the
Board of Directors at any meeting of the Board of Directors (or by appointment
by the Chairman of the Board, to the extent provided in Section 3.1 of these
Bylaws).
Section 3.3. Chairman of the Board. The Chairman of the Board shall be
selected from among the members of the Board of Directors and may be the chief
executive officer of the Corporation. He shall preside at all meetings of the
shareholders and the Board of Directors at which he is present and shall perform
the duties and have the powers of the President in his absence or in the event
of the inability or refusal of the President to act. In addition, he shall have
and may exercise all the powers and duties that are incident to his office, that
are delegated to him from time to time by the Board, or that are defined in
these Bylaws.
Section 3.4. Secretary. The Secretary shall be the custodian of the books,
papers, and records of the Corporation and of its corporate seal, if any, and
shall be responsible for seeing that the Corporation maintains the records
required by the Corporation Law (other than accounting records) and that the
Corporation files with the Indiana Secretary of State the annual report required
by the Corporation Law. The Secretary shall be responsible for preparing minutes
of the meetings of the shareholders and of the Board of Directors and for
authenticating records of the Corporation, and he shall perform all of the other
duties usual in the office of the Secretary of a corporation.
ARTICLE IV
----------
Checks
------
All checks, drafts, or other orders for payment of money shall be signed in
the name of the Corporation by such officers or persons as shall be designated
from time to time by resolution adopted by the Board of Directors and included
in the minute book of the Corporation.
ARTICLE V
---------
Loans
-----
Such of the officers of the Corporation as shall be designated from time to
time by any resolution adopted by the Board of Directors and included in the
minute book of the Corporation shall have the power, with such limitations
thereon as may be fixed by the Board of Directors, to borrow money in the
Corporation's behalf, to establish credit, to discount bills and papers, to
pledge collateral, and to execute such notices, bonds, debentures, or other
evidences of indebtedness, and such mortgage, trust indentures, and other
instruments in connection therewith, as may be authorized from time to time by
such Board of Directors.
<PAGE>
ARTICLE VI
----------
Execution of Documents
----------------------
The Chairman of the Board, the President, or any officer designated by
either of them, may, in the Corporation's name, sign all deeds, leases,
contracts, or similar documents that may be authorized by the Board of Directors
unless otherwise directed by the Board of Directors or otherwise provided herein
or in the Corporation's Articles of Incorporation, or as otherwise required by
law.
ARTICLE VII
-----------
Stock
-----
Section 7.1. Execution. Certificates for shares of the capital stock of the
Corporation shall be signed (either manually or in facsimile) by two officers
designated from time to time by the Board of Directors and the seal of the
Corporation (or a facsimile thereof), if any, may be thereto affixed. The
Corporation may issue and deliver any such certificate notwithstanding that any
such officer who shall have signed, or whose facsimile signature shall have been
imprinted on, such certificate shall have ceased to be such officer.
Section 7.2. Contents. Each certificate shall state on its face the name of
the Corporation and that it is organized under the laws of the State of Indiana,
the name of the person to whom it is issued, and the number and class and the
designation of the series, if any, of shares the certificate represents, and,
whenever the Corporation is authorized to issue more than one class of shares or
different series within a class, each certificate issued after the effectiveness
of such authorization shall further state conspicuously on its front or back
that the Corporation will furnish the shareholder, upon his written request and
without charge, a summary of the designations, relative rights, preferences, and
limitations applicable to each class and series and the authority of the Board
of Directors to determine variations in rights, preferences and limitations for
future series.
Section 7.3. Transfers. Except as otherwise provided by law or by
resolution of the Board of Directors, transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
holder thereof in person or by duly authorized attorney, on payment of all taxes
thereon and surrender for cancellation of the certificate or certificates for
such shares (except as hereinafter provided in the case of loss, destruction, or
mutilation of certificates) properly endorsed by the holder thereof or
accompanied by the proper evidence of succession, assignment, or authority to
transfer and delivered to the Secretary or an Assistant Secretary.
Section 7.4. Stock Transfer Records. There shall be entered upon the stock
records of the Corporation the number of each certificate issued; the name and
address of the registered holder of such certificate; the number, kind, and
class or series of shares represented by such certificate; the date of issue;
whether the shares are originally issued or transferred; the registered holder
from whom transferred; and such other information as is commonly required to be
shown by such records. The stock records of the Corporation shall be kept at its
principal office, unless the Corporation appoints a transfer agent or registrar,
in which case the Corporation shall keep at its principal office a complete and
accurate shareholders' list giving the name and addresses of all shareholders
and the number and class of shares held by each. If a transfer agent is
appointed by the Corporation, shareholders shall give written notice of any
change in their addresses from time to time to the transfer agent.
<PAGE>
Section 7.5. Transfer Agents and Registrars. The Board of Directors may
appoint one or more transfer agents and one or more registrars and may require
each stock certificate to bear the signature of either or both.
Section 7.6. Loss, Destruction, or Mutilation of Certificates. The holder
of any of the capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, or mutilation of the certificate therefor,
and the Board of Directors may, in its discretion, cause to be issued to him a
new certificate or certificates of stock upon the surrender of the mutilated
certificate, or, in the case of loss or destruction, upon satisfactory proof of
such loss or destruction. The Board of Directors may, in its discretion, require
the holder of the lost or destroyed certificate or his legal representative to
give the Corporation a bond in such sum and in such form, and with such surety
or sureties as it may direct, to indemnify the Corporation, its transfer agents,
and its registrars, if any, against any claim that may be made against them or
any of them with respect to the capital stock represented by the certificate or
certificates alleged to have been lost or destroyed, but the Board of Directors
may, in its discretion, refuse to issue a new certificate or certificate, save
upon the order of a court having jurisdiction in such matters.
Section 7.7. Form of Certificates. The form of the certificate of shares of
the capital stock of the Corporation shall conform to the requirements of
Section 7.2 of these Bylaws and be in such printed form as shall from time to
time be approved by resolution of the Board of Directors.
ARTICLE VIII
------------
Seal
----
The corporate seal of the Corporation shall, if the Corporation elects to
have one, be in the form of a disc, with the name of the Corporation on the
periphery thereof and the word "SEAL" in the center. However, the use of a
corporate seal or an impression thereof is not required and does not affect the
validity of any instrument whatsoever.
ARTICLE IX
----------
Miscellaneous
-------------
Section 9.1. Corporation Law. The provision of the Corporation Law, as
amended, applicable to all matters relevant to, but not specifically covered by,
these Bylaws are hereby, by reference, incorporated in and made a part of these
Bylaws.
<PAGE>
Section 9.2. Fiscal Year. The fiscal year of the Corporation shall end on
the 30th of September of each year.
Section 9.3. Business Combination Chapter Applicable. The provisions of the
Business Combinations Chapter of the Corporation Law (Indiana Code 23-1-43) are
applicable to the Corporation. The provisions of the Control Shares Acquisition
Chapter of the Corporation Law (Indiana Code 23-1-42) are inapplicable to
"control share acquisitions" (as therein defined) of shares of the Corporation.
Section 9.4. Definition of Articles of Incorporation. The term "Articles of
Incorporation" as used in these Bylaws means the Articles of Incorporation of
the Corporation, as amended and restated from time to time.
Section 9.5. Amendments. These Bylaws may be rescinded, changed, or
amended, and provisions hereof may be waived, at any meeting of the Board of
Directors by the affirmative vote of a majority of the number of Directors then
in office at the time, except as otherwise required by the Corporation's
Articles of Incorporation or by the Corporation Law.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
KALVAR MICROFILM, INC., ) Case No. 96-15 (HSB)
ANACOMP, INC., ANACOMP )
INTERNATIONAL N.V., FLORIDA )
A A C CORPORATION and ) (Jointly Administered)
XIDEX DEVELOPMENT COMPANY, )
)
Debtors. )
ORDER CONFIRMING DEBTORS'
THIRD AMENDED JOINT PLAN OF REORGANIZATION
Kalvar Microfilm, Inc., Anacomp, Inc., Anacomp International N.V., Florida
A A C Corporation and Xidex Development Company, as debtors and
debtors-in-possession (collectively, the "Debtors"), having Filed* the Debtors'
Second Amended Joint Plan of Reorganization dated March 28, 1996 (the "Second
Amended Plan") in accordance with Section 1121 of the Bankruptcy Code; and the
Debtors having Filed their Disclosure Statement Pursuant to Section 1125 of the
Bankruptcy Code for the Second Amended Joint Plan of Reorganization of Anacomp,
Inc. and Certain of its Subsidiaries dated March 28, 1996 (as amended, the
"Disclosure Statement"); and a hearing having been held before this Court on
March 28, 1996 to consider the adequacy of the Disclosure Statement; and the
Court by Order dated March 28, 1996 having approved the Disclosure Statement
and, among other things, the procedures for the solicitation and tabulation of
votes to accept or reject the Second Amended Plan (the "Disclosure Statement
Order"); and the Disclosure Statement (with a copy of the Second Amended Plan
annexed thereto as Appendix I), the Disclosure Statement Order, a ballot or
master ballot and related materials (collectively, the "Solicitation Materials")
having been transmitted to all known holders of Claims and/or Interests entitled
to vote on the Second Amended Plan in accordance with the Disclosure Statement
Order; and a summary of the Second Amended Plan having been transmitted to each
Holder of a Claim and/or an Interest not entitled to vote on the Second Amended
Plan; and the solicitation of acceptances from Holders of Claims and/or
Interests having been made within the time and in the manner required by the
Disclosure Statement Order; and affidavits of publication having been Filed
evidencing that a summary of the Second Amended Plan was published in accordance
with the provisions of the Disclosure Statement Order; and that certain
affidavit of service having been Filed with respect to the mailing of the
Solicitation Materials to those Holders of Claims and/or Interests entitled to
vote on the Second Amended Plan; and objections to confirmation of the Second
Amended Plan having been Filed by (i) the United States of America (on behalf of
itself and the Internal Revenue Service), (ii) the United States of America (on
behalf of the United States Customs Service), (iii) the Office of the Attorney
General of the State of California (on behalf of the California Department of
Toxic Substances Control and the California Regional Water Control Board), (iv)
John Ziegler and Grace Dealership; (v) SKC America, Inc. (reservation of rights)
and (vi) four Holders of the Old Common Stock; and the Debtors having Filed on
May 17, 1996, their Memorandum of Law in Support of Confirmation of Debtors'
Plan of Reorganization (the "Confirmation Memorandum"); and the Debtors having
amended the Second Amended Plan and having Filed the Debtors' Third Amended
Joint Plan of Reorganization (together with any amendments that may be made at
the Confirmation Hearing, the "Plan"); and the Court having reviewed, among
other things, the Plan, the Second Amended Plan, the Disclosure Statement, the
affidavit Filed by the Debtors of Kathleen M. Logan of Logan & Company, Inc.
(the "Ballot Agent") certifying voting results and the mailing of certain of the
Solicitation Materials (the "Logan Affidavit"), the affidavit Filed by the
Debtors of Gerard J. Mucha of Morrow & Co., Inc. certifying the mailing of the
Solicitation Materials not mailed by the Ballot Agent (the "Mucha Affidavit"),
the affidavits Filed by the Debtors with respect to publication and mailing of
notices (the "Publication Affidavits"), the Confirmation Memorandum, and all
objections to confirmation of the Plan not previously withdrawn; and upon the
record of the Confirmation Hearing, the Court makes the following findings of
fact and conclusions of law:**
- --------
* Each term that is capitalized herein and not otherwise defined herein shall
have the meaning ascribed to such term in the Plan (as defined herein) and, if
such term is not defined in the Plan, the Disclosure Statement (as defined
herein).
** The following lettered paragraphs shall constitute this Court's findings of
fact and conclusions of law made at the Confirmation Hearing pursuant to
Bankruptcy Rule 7052, which is made applicable to this proceeding by Bankruptcy
Rule 9014. To the extent any finding of fact shall be determined to be a
conclusion of law, it shall be so deemed, and vice-versa.
2
<PAGE>
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. This Court has jurisdiction over the Debtors and the subject matter of
the Confirmation Hearing pursuant to 28 U.S.C. ss.ss. 157(b) and 1334(a). The
Confirmation Hearing is a core proceeding pursuant to 28 U.S.C. ss. 157(b)(1)
and (2)(L). Venue of the Chapter 11 Case in this district is proper pursuant to
28 U.S.C. ss.ss. 1408 and 1409.
B. In accordance with the Disclosure Statement Order and as evidenced by
the Logan Affidavit, the Mucha Affidavit and the Publication Affidavits, the
Debtors caused (1) the Solicitation Materials to have been distributed to all
known holders of Claims and/or Interests entitled to vote on the Second Amended
Plan, (2) a summary of the Second Amended Plan to have been distributed to each
Holder of a Claim and/or an Interest not entitled to vote on the Second Amended
Plan and (3) notice of the Confirmation Hearing and the deadline for voting on
Filing objections to the Second Amended Plan have been published in the United
States and in Europe. Such actions constitute due, sufficient and adequate
notice to all known Holders of Claims and Interests of the Plan, the
Confirmation Hearing and the deadlines for submitting votes on, and Filing
objections to the confirmation of, the Plan.
C. As evidenced by the Logan Affidavit, the procedures by which ballots for
voting on the Plan were received and tabulated by the Ballot Agent were fair,
properly conducted and in accordance with the Bankruptcy Code, the Bankruptcy
Rules, the local rules of this Court and the Disclosure Statement Order.
D. Section 1129(a)(1) of the Bankruptcy Code is satisfied because the Plan
complies with all the applicable provisions of the Bankruptcy Code, including
the provisions of Sections 1122 and 1123 of the Bankruptcy Code:
3
<PAGE>
(1) Sections 1122(a) and 1123(a)(1) of the Bankruptcy Code are
satisfied because the Plan properly designates separate Classes of
Claims and Interests, each of which contains only Claims or Interests
that are substantially similar to the other Claims or Interests within
that Class.
(2) Section 1123(a)(2) of the Bankruptcy Code is satisfied
because the Plan properly designates Classes of Claims and Interests
as impaired or unimpaired.
(3) Section 1123(a)(3) of the Bankruptcy Code is satisfied
because the Plan specifies the treatment of each Class of Claims and
Interests that is impaired under the Plan, to the extent that the
Claims or Interests within such Class are Allowed Claims or Allowed
Interests, respectively.
(4) Section 1123(a)(4) of the Bankruptcy Code is satisfied
because the Plan provides the same treatment for each Allowed Claim or
Allowed Interest within a particular Class or the Holder of a
particular Allowed Claim or Allowed Interest has agreed to a less
favorable treatment of such Claim or Interest.
(5) Section 1123(a)(5) of the Bankruptcy Code is satisfied
because the Plan provides adequate means for its implementation.
(6) Section 1123(a)(6) of the Bankruptcy Code is satisfied
because the Amended Anacomp Articles and the amended articles of
incorporation of Florida A A C prohibit the issuance of nonvoting
equity securities to the extent prohibited by that Section.
(7) Section 1123(a)(7) of the Bankruptcy Code is satisfied
because the Plan contains only provisions that are consistent with the
interests of Holders of Claims and Interests and with public policy
with respect to the manner of selection of Reorganized Anacomp's
officers and directors, and any successor to such officers and
directors.
E. Section 1129(a)(2) of the Bankruptcy Code is satisfied because the
Debtors have complied with all applicable provisions of the Bankruptcy Code.
F. Section 1129(a)(3) of the Bankruptcy Code is satisfied because the Plan
was proposed in good faith and not by any means forbidden by law.
G. Section 1129(a)(4) of the Bankruptcy Code is satisfied because, to the
extent required by that Section, any payment made or to be made by the Debtors
for services or for costs and expenses in, or in connection with, the Chapter 11
Cases, or in connection with the Plan and incident to the Chapter 11 Cases, has
been approved by, or is subject to the approval of, the Bankruptcy Court as
reasonable.
4
<PAGE>
H. Section 1129(a)(5) of the Bankruptcy Code is satisfied because the
Debtors have disclosed the identities and affiliations of all Persons proposed
to serve as a director or officer of Reorganized Anacomp and Reorganized Florida
A A C; and the appointment of such Persons to, or the continuance of such
Persons in, such offices is consistent with the interests of the Holders of
Claims and Interests and with public policy; and the Debtors have disclosed the
identity of any insider who will be employed or retained by Reorganized Anacomp
and Reorganized Florida A A C, and the nature of any compensation for such
insider. As provided at page 53 of the Disclosure Statement, the executive
officers of Anacomp immediately before confirmation of the Plan shall continue
to serve in their respective capacities at Reorganized Anacomp immediately after
confirmation of the Plan. The executive officers of Florida A A C immediately
before confirmation of the Plan shall continue to serve in their respective
capacities at Reorganized Florida A A C immediately after confirmation of the
Plan. That is, with respect to Reorganized Florida A A C, P. Lang Lowrey III
shall serve as president and chief executive officer, K. Gordon Fife shall serve
as vice president, Donald L. Viles shall serve as chief financial officer,
treasurer and vice president, William C. Ater shall serve as vice president and
secretary and Suzanne Bellamy shall serve as secretary. As provided at pages
54-56 of the Disclosure Statement, the board of directors of Reorganized Anacomp
shall be comprised of Talton R. Embry, Darius W. Gaskins, Jr., Jay P.
Gilbertson, Richard D. Jackson, P. Lang Lowrey III, George A. Poole, Jr. and
Lewis Solomon. The board of directors of Reorganized Florida A A C shall be
comprised of P. Lang Lowrey III, Donald L. Viles and William C. Ater.
I. Section 1129(a)(6) of the Bankruptcy Code is inapplicable because there
is no governmental regulatory commission with jurisdiction, after confirmation
of the Plan, over rates of any of the Debtors.
J. Section 1129(a)(7) of the Bankruptcy Code is satisfied because each
Holder of an impaired Claim or Interest either (i) has accepted the Plan or (ii)
will receive or retain under the Plan, on account of such Claim or Interest,
property of a value, as of the Effective Date, that is not less than the amount
that such Holder would so receive or retain if the Debtors were liquidated under
Chapter 7 of the Bankruptcy Code.
K. Section 1129(a)(8)(A) of the Bankruptcy Code is satisfied with respect
to Classes 2, 4, 5, and 6, Classes of Claims which are impaired by the Plan,
because such Classes have accepted the Plan pursuant to Section 1126(c) of the
Bankruptcy Code. Section 1129(a)(8)(B) of the Bankruptcy Code is satisfied with
respect to Classes 1, 3, 7 and 11, because such Classes are not impaired by the
Plan and are therefore conclusively deemed to have accepted the Plan under
Section 1126(f) of the Bankruptcy Code.
5
<PAGE>
L. Section 1129(a)(8) of the Bankruptcy Code has not been satisfied with
respect to Classes 9 and 10 because these Classes are deemed not to have
accepted the Plan pursuant to Section 1126(g) of the Bankruptcy Code. The Plan
provides that no Holder of an Interest that is junior to the Interests in
Classes 9 or 10 will receive or retain any property under the Plan on account of
such junior Interest. The Plan satisfies the requirements of Section 1129(b) of
the Bankruptcy Code and thus may be confirmed without compliance with Section
1129(a)(8) of the Bankruptcy Code with respect to Classes 9 and 10. That is, the
Plan (i) does not discriminate unfairly against these Classes and (ii) is fair
and equitable with respect to these Classes. Section 1129(a)(8) has not been
satisfied with respect to Class 12 because Class 12, as determined by the Court
at the Confirmation Hearing, is deemed not to have accepted the Plan. The Plan
provides that each Holder of a Claim in such Class will receive or retain, on
account of such Claim, property of a value, as of the Effective Date, equal to
the Allowed amount of such Claim. The Plan satisfies the requirements of Section
1129(b) of the Bankruptcy Code and thus may be confirmed without compliance with
Section 1129(a)(8) of the Bankruptcy Code with respect to Class 12. That is, the
Plan (a) does not discriminate unfairly against Class 12 and (b) is fair and
equitable with respect to this Class.
M. Section 1129(a)(9)(A) of the Bankruptcy Code is satisfied because the
Plan provides that (i) there are no Claims of a kind specified in Section
507(a)(2) of the Bankruptcy Code and (ii)(a) Administrative Claims arising from
liabilities incurred in the ordinary course of the Debtors' businesses shall be
assumed and paid by Reorganized Anacomp pursuant to the terms and conditions of
the particular transactions giving rise to such Administrative Claims and (b)
Administrative Claims of Professionals shall be paid by Reorganized Anacomp upon
submission of applications for compensation and reimbursement of expenses and
allowance of the amounts sought in such applications by the Bankruptcy Court.
N. Section 1129(a)(9)(B) of the Bankruptcy Code is satisfied because the
Plan provides that each Holder of an Allowed Priority Claim shall be entitled to
receive the Allowed amount of such Claim in full in Cash on the later of (i) the
Effective Date, (ii) the date that such Claim becomes an Allowed Priority Claim
and (iii) the date that such Claim would be paid in accordance with any terms
and conditions of any agreements or understandings relating thereto between any
Debtor and the Holder of such Claim.
O. Section 1129(a)(9)(C) of the Bankruptcy Code is satisfied because the
Plan provides that, unless otherwise agreed by the Holder of a Priority Tax
Claim and any Debtor or Reorganized Anacomp, each Holder of an Allowed Priority
Tax Claim shall receive, at such Debtor's or Reorganized Anacomp's option, as
the case may be, either (i) Cash, in the full amount of such Allowed Priority
Tax Claim, on the Effective Date or (ii) deferred payments of Cash in the full
amount of such Allowed Priority Tax Claim, payable in equal annual principal
installments beginning the first anniversary of the Effective Date and ending on
the earlier of the sixth anniversary of the Effective Date or the sixth
anniversary of the date of the assessment of such Claim, together with interest
(payable quarterly in arrears) on the unpaid balance of such Allowed Priority
Tax Claim at an annual rate equal to the Treasury Rate.
6
<PAGE>
P. Section 1129(a)(10) of the Bankruptcy Code is satisfied because at least
one Class of Claims that is impaired under the Plan has accepted the Plan,
determined without including any acceptance by an insider. Impaired Classes 2,
4, 5 and 6 have so accepted the Plan.
Q. Section 1129(a)(11) of the Bankruptcy Code is satisfied because
confirmation of the Plan is not likely to be followed by the need for further
financial reorganization or liquidation of the Debtors, Reorganized Anacomp or
Reorganized Florida A A C, except to the extent that the Plan provides for the
liquidation of Anacomp International and the merger of Anacomp, Kalvar and Xidex
into Reorganized Anacomp.
R. Section 1129(a)(12) of the Bankruptcy Code is satisfied because pursuant
to Section 10.2(a) of the Plan, all fees payable under 28 U.S.C.ss. 1930 shall
be paid on or before the Effective Date.
S. Section 1129(a)(13) of the Bankruptcy Code is satisfied because Section
6.4 of the Plan provides that Reorganized Anacomp and Reorganized Florida A A C
shall, to the extent and for the duration required by such Section, continue to
pay all retiree benefits (if any), as that term is defined in Section 1114 of
the Bankruptcy Code, maintained or established by the Debtors prior to the
Confirmation Date.
T. The Plan is the only plan of reorganization of the Debtors pending
before this Court or any other court.
U. The primary purpose of the Plan is not the avoidance of taxes or the
application of Section 5 of the Securities Act of 1933, as amended.
V. With respect to each executory contract and unexpired lease of the
Debtors that is being assumed by Reorganized Anacomp pursuant to Section 9.1 of
the Plan, either (i) there have been no defaults under such executory contract
or unexpired lease, other than defaults of the nature set forth in Section
365(b)(2) of the Bankruptcy Code or (ii) with respect to defaults other than
those specified in such Section, the Debtors (a) have cured, or provided
adequate assurance that Reorganized Anacomp will, cure, such defaults on or as
soon as practicable after the Effective Date, and (b) have compensated, or
provided adequate assurance that Reorganized Anacomp will compensate, on or as
soon as practicable after the Effective Date, parties to such executory
contracts or unexpired leases for any actual pecuniary loss resulting from such
default, and the reorganization of the Debtors pursuant to the Plan and this
Court's finding in Paragraph Q above provide adequate assurance of future
performance under the applicable executory contract or unexpired lease.
7
<PAGE>
W. The provisions of the Plan dealing with releases and injunctions,
specifically Sections 12.1, 12.2, and 12.3, are in the best interest of the
Debtors, Reorganized Anacomp, Reorganized Florida A A C and all of Holders of
Claims and Interests receiving a distribution pursuant to the Plan in that,
among other things, such provisions have reduced the expenses of Reorganized
Anacomp and Reorganized Florida A A C by allowing them to reduce the cost and
expense they would otherwise incur in connection with providing insurance
coverage to their officers and directors. All objections to such provisions have
been resolved and withdrawn.
X. The amendments to the Second Amended Plan contemplated by that certain
Stipulated Amendment to Debtors' Second Amended Joint Plan of Reorganization,
Filed by the Debtors on May 10, 1996 and the notice of technical modifications,
Filed by the Debtors on May 17, 1996, as amended or modified prior to the entry
of this Confirmation Order, complied in all respects with Section 1127(a) of the
Bankruptcy Code and, in accordance with Bankruptcy Rule 3019, do not adversely
change the treatment of the Claim of any Creditor or the Interest of any equity
security Holder who has not accepted in writing such amendments (collectively,
the "Carlisle and Other Amendments"). The notice of the Carlisle and Other
Amendments provided by the Debtors was due and adequate under the circumstances
of the Chapter 11 Cases and the Debtors are not required to conduct any further
solicitation with respect to the Plan. At the Confirmation Hearing, the Court
approved amendments of the Second Amended Plan to create a new Section 5.12(a),
with respect to new Class 12 (the "Class 12 Amendments"; together with the
Carlisle and Other Amendments, the "Plan Amendments"), as follows: "Class 12.
United States Customs Service Claims. Class 12 Claims are impaired. Each Holder
of an Allowed Class 12 Claim shall receive on account of such Allowed Claim
payment of the full amount of such Allowed Claim together with interest thereon
from the Effective Date to the date of payment thereof at the rate determined by
the Secretary of the Treasury pursuant to 19 U.S.C. Section 1505(c)." The Class
12 Amendments complied in all respects with Section 1127(a) of the Bankruptcy
Code and, in accordance with Bankruptcy Rule 3019, do not adversely change the
treatment of the Claim of any Creditor (including, without limitation, the
United States Customs Service) or the Interest of any equity security Holder who
has not accepted in writing such amendments. The notice of the Class 12
Amendments provided by the Debtors was due and adequate under the circumstances
of the Chapter 11 Cases and the Debtors are not required to conduct any further
solicitation with respect to the Plan.
Y. All of the conditions to confirmation of the Plan set forth in Section
10.1 of the Plan have occurred or have been duly waived.
Z. No Creditor of any of the Consolidated Debtors will be prejudiced by the
substantive consolidation of the Consolidated Debtors, the substantive
consolidation of the Consolidated Debtors will be administratively convenient
for the Consolidated Debtors, no Consolidated Debtor other than Anacomp has
substantial assets or liabilities, and no objections have been Filed with
respect to the substantive consolidation of the Consolidated Debtors provided in
the Plan.
8
<PAGE>
FINDING THAT THE PLAN IS CONFIRMABLE BASED UPON, AMONG OTHER THINGS, ALL OF
THE ABOVE-STATED FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND GOOD CAUSE
APPEARING THEREFOR, THE COURT HEREBY ORDERS THAT:
1. The Plan and each of its provisions is hereby confirmed pursuant to
Section 1129 of the Bankruptcy Code.
2. All objections and responses to, and statements and comments in response
to, the Plan and/or the Second Amended Plan, other than those withdrawn with
prejudice in their entirety prior to, or on the record at, the Confirmation
Hearing, are hereby expressly overruled. In particular, the objections of the
United States of America (on behalf of the United States Customs Service) to the
Plan and/or the Second Amended Plan are, in light of the Plan Amendments, hereby
expressly overruled as "moot" because they have been satisfied by such Plan
Amendments.
3. The Debtors, Reorganized Anacomp and Reorganized Florida A A C and their
respective directors, officers, agents and attorneys are hereby authorized,
empowered and directed, subject to the conditions set forth in the Plan and the
right to modify the Plan in accordance with Section 14.13(b) of the Plan, to
carry out the provisions of the Plan, and to enter into, execute, deliver, file
and/or perform the terms of the Plan Documents and any other agreements,
instruments and documents related thereto (collectively, together with the Plan
Documents, the "Plan-Related Documents"), and any amendments, supplements or
modifications to such Plan-Related Documents as may be necessary or appropriate,
and to take such other steps and perform such other acts as may be necessary or
appropriate to implement and effectuate the Plan, the Plan-Related Documents or
this Confirmation Order, and to satisfy all other conditions precedent to the
implementation and effectiveness of the Plan and to consummate the Plan.
4. The form, terms and provisions of the Plan Documents Filed on or before
the Confirmation Date are hereby approved. The Debtors are hereby authorized,
after the Filing of the Plan Documents and until the Plan shall have become
effective, to amend, supplement or modify the Plan Documents, with the consent
of the Creditors' Committee and the Collateral Agent, and thereafter, pursuant
to the terms of such Plan Documents.
5. On the Effective Date, except as otherwise provided in the Plan or in
this Confirmation Order, the Debtors shall be discharged from any and all Claims
that arose before the date of entry of this Confirmation Order to the fullest
extent provided by the Bankruptcy Code, including Sections 524 and 1141 thereof,
whether or not a proof of claim for such Claim was Filed or deemed Filed under
Section 501 of the Bankruptcy Code, whether or not such Claim is allowed
pursuant to Section 502 of the Bankruptcy Code, whether or not the Holder of
such Claim has accepted the Plan, and whether such Claim is known, unknown,
fixed, contingent, matured, unmatured, liquidated or unliquidated.
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<PAGE>
6. Subject to the provisions of the Plan, the Plan-Related Documents and
this Confirmation Order, Anacomp and Florida A A C will, as Reorganized Anacomp
and as Reorganized Florida A A C, respectively, continue to exist on and after
the Effective Date, as an Indiana corporation and a Florida corporation,
respectively, each having all of the powers of a corporation under applicable
law and without prejudice to any right of such Reorganized Anacomp or
Reorganized Florida A A C to alter or terminate its existence (whether by merger
or otherwise) as provided by, and in conformity with, applicable state law.
7. On the Effective Date, (a) any judgment at any time obtained, to the
extent that such judgment is a determination of the personal liability of any of
the Debtors with respect to any debt discharged by this Confirmation Order,
shall hereby become null and void and (b) the commencement or continuation of
any action, the employment of process, or any act, to collect, recover or offset
any debt discharged by this Confirmation Order as a personal liability of any of
the Debtors, Reorganized Anacomp or Reorganized Florida A A C, shall be and
hereby is forever enjoined and restrained.
8. The provisions of the Plan and this Confirmation Order shall be and
hereby are binding on, and enforceable by and against, the Debtors, Reorganized
Anacomp, Reorganized Florida A A C, each Creditor, each Holder of an Interest
and each other party in interest in the Chapter 11 Cases.
9. Except as otherwise expressly provided in the Plan or in any
Plan-Related Document, (a) on the Effective Date, title to all property of the
Consolidated Debtors' estates, as described in Section 541 of the Bankruptcy
Code, shall revest in Reorganized Anacomp, free and clear of all Claims,
Interests and Encumbrances of Creditors and equity security Holders arising on
or before the Effective Date, (b) on the Effective Date, title to all property
of the Florida A A C's estate, as described in Section 541 of the Bankruptcy
Code, shall revest in Reorganized Anacomp, free and clear of all Claims,
Interests and Encumbrances of Creditors and equity security Holders arising on
or before the Effective Date and (c) from and after the Effective Date,
Reorganized Anacomp and Reorganized Florida A A C may operate their respective
businesses free from any restrictions imposed by the Bankruptcy Code or by prior
orders of this Court.
10. On the Effective Date: (a) all assets, and all proceeds thereof, and
all liabilities of the Consolidated Debtors are hereby merged or treated as
though they were merged with and into the assets and liabilities of Reorganized
Anacomp; (b) all Consolidated Claims and Claims among the Consolidated Debtors
and the Merged Subsidiaries are hereby eliminated; (c) any obligation of any
Consolidated Debtor, and all guarantees thereof executed by one or more of the
Consolidated Debtors, and any Claims Filed or to be Filed in connection with any
such obligation and guarantee are hereby deemed one single Claim against
Reorganized Anacomp; (d) each and every Claim Filed in the individual Chapter 11
Case of any of the Consolidated Debtors is hereby deemed Filed against
Reorganized Anacomp; and (e) for purposes of determining the availability of the
right of set-off under Section 553 of the Bankruptcy Code, the Consolidated
Debtors shall be treated for purposes of the Plan as one Entity so that, subject
to the other provisions of Section 553 of the Bankruptcy Code, debts due to any
of the Consolidated Debtors may be setoff against the debts of any of the
Consolidated Debtors.
11. Pursuant to Section 1142(b) of the Bankruptcy Code, the intended
parties to the Plan-Related Documents, contemplated thereby or to be executed
pursuant to the Plan, subject to the satisfaction or due waiver of each of the
conditions precedent to each of such Plan-Related Documents and except as
otherwise contemplated by Section 10.2 of the Plan, are hereby directed to
execute and deliver the Plan-Related Documents and to take such other actions as
shall be necessary to permit the Plan to take effect and be consummated. The
Debtors shall have the right, to the fullest extent permitted under Section 1142
of the Bankruptcy Code, to apply to this Court for an order (a) modifying the
effect of any otherwise applicable non-bankruptcy law or (b) directing any
Entity to execute and deliver any instrument or to perform any other act
necessary to effectuate the Plan; provided, however, that (without the consent
of the affected party or parties) no such order shall modify or impair any
right, title, interest, privilege or remedy expressly provided or reserved for
under the Plan.
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<PAGE>
12. The Disbursing Agent with respect to distributions to be made to
Holders of the Old Credit Facilities Secured Claims and the Old Senior Notes
Secured Claims under the Plan shall be the Collateral Agent (or its designee,
Citicorp Data Distribution Inc.). The Disbursing Agent with respect to
distributions to Holder of Claims and/or Interests in Classes 5, 6, 8 and 9
under the Plan shall be IBJ Schroder Bank & Trust Company. The Disbursing Agent
with respect to all other distributions to be made under the Plan shall be
Reorganized Anacomp. The New Warrant Agent shall be Chemical Mellon Shareholder
Services, L.L.C. The New Senior Secured Notes Indenture Trustee shall be The
Bank of New York. The New Senior Subordinated Notes Indenture Trustee shall be
IBJ Schroder Bank & Trust Company. The Debtors, Reorganized Florida A A C and
Reorganized Anacomp are authorized to retain, without further order of this
Court, such Entities for such positions and to enter into such agreements as the
Debtors, Reorganized Anacomp or Reorganized Florida A A C, as the case may be,
may deem appropriate for such purposes.
13. The Distribution Record Date shall be 5:00 p.m., New York City time,
May 24, 1996. The Debtors are hereby authorized and directed to provide notice
of the Distribution Record Date by publication twice, with the last publication
to be on or before the Distribution Record Date, in each of The Wall Street
Journal (National Edition) and The New York Times (National Edition) and by
publication once in The Wall Street Journal (European Edition) not less than one
day before the Distribution Record Date.
14. On the Effective Date, the Disbursing Agents shall make the
distributions to Holders of Allowed Claims and Allowed Interests as provided in
Articles IV and V of the Plan, subject to the terms and conditions of Section
6.2 of the Plan. In furtherance thereof, with respect to the distributions that
are contemplated to be made under the Plan to Holders of Allowed Debt Security
Claims other than Holders of Allowed Old 9% Subordinated Debentures Claims, as
soon as practicable after the Distribution Record Date, Anacomp or, at Anacomp's
direction, the applicable Disbursing Agent, shall mail to each such Holder as of
the Distribution Record Date, a letter of transmittal and instructions for use
in effecting the surrender of such securities for purposes of Sections 6.2.6 and
6.2.10 of the Plan. With respect to distributions that are contemplated to be
made under the Plan to Holders of Allowed Old 9% Subordinated Debentures Claims,
as soon as practicable after the Confirmation Date, Anacomp shall (a) publish
notice of the availability of the distribution under the Plan in accordance with
Section 6.2.6 of the Plan and (b) furnish Cedel and Euroclear with letters of
transmittal and instructions for use in effecting the surrender of the Old 9%
Subordinated Debentures for purposes of Sections 6.2.6 and 6.2.10 of the Plan,
which Entities shall promptly upon receipt make such letters of transmittal and
instructions for use available to their respective customers holding Old 9%
Subordinated Debentures.
15. As provided in Article IX of the Plan, effective as of the Effective
Date, all executory contracts and unexpired leases of any of the Debtors that
exist between any of the Debtors and any Entity shall be deemed assumed, subject
to Section 9.3 of the Plan, by Reorganized Anacomp (with respect to executory
contracts and unexpired leases of any of the Consolidated Debtors) or
Reorganized Florida A A C (with respect to executory contracts of Florida A A
C), unless (a) rejected pursuant to an order entered on or prior to the
Effective Date, (b) a motion to reject any such executory contract or unexpired
lease is pending before the Bankruptcy Court on the Effective Date, or (c)
assumed pursuant to an order entered on or prior to the Effective Date.
16. Any Professional seeking an allowance of final compensation or
reimbursement of expenses for professional services rendered to the Debtors or
the Creditors' Committee or in relation to the Chapter 11 Case, pursuant to
Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code, shall File
an application for allowance of final compensation for services rendered through
and including the Confirmation Date and reimbursement of related expenses and
serve the same on Reorganized Anacomp and the Creditors' Committee, in
accordance with Section 14.16 of the Plan, and the United States Trustee, in
care of John D. McLaughlin, Esq., 601 Walnut Street, Curtis Center, Suite 950
West, Philadelphia, Pennsylvania 19106, on or before July 10, 1996. A hearing to
consider all such fee applications is hereby tentatively scheduled by the Court
for August 14, 1996. Unless otherwise ordered by the Court, objections to
applications of Professionals for compensation or reimbursement of expenses in
compliance with all applicable rules and Attachment A to this Confirmation
Order, must be Filed and served on Reorganized Anacomp and the Creditors'
Committee in accordance with Section 14.16 of the Plan and the Office of the
United States Trustee, in the manner provided above, and the Professionals to
whose fee application the objections are addressed, no later than July 24, 1996.
Charges for services rendered and expenses incurred by any Professional after
the Confirmation Date may be billed directly to Reorganized Anacomp and may be
paid by Reorganized Anacomp without any notice thereof or hearing thereon.
11
<PAGE>
17. Within ten Business Days after the Effective Date, Reorganized Anacomp
shall, in accordance with Bankruptcy Rules 2002(f)(7) and (i), mail to all known
Creditors, the Creditors' Committee and the Old Indenture Trustees a notice of
entry of this Confirmation Order substantially in the form annexed as Exhibit A
hereto. The foregoing notice shall constitute due and adequate notice of this
Confirmation Order within the meaning of such Bankruptcy Rules.
18. Any Claim filed by a Governmental Unit after the Confirmation Date
shall be filed with the Clerk of the Bankruptcy Court and served upon Anacomp
and/or Reorganized Anacomp in accordance with Section 14.16 of the Plan.
19. Notwithstanding anything contained in Section 502(a) of the Bankruptcy
Code or Section 5.7 of the Plan to the contrary, the Allowed amount of any
Unimpaired Excepted Claim, and the rights of the Holder of such Unimpaired
Excepted Claim, if any, to payment in respect thereof: (a) shall be determined
(i) in the manner in which the amount of such Claim and the rights of the Holder
of such Claim would have been resolved and/or adjudicated if the Chapter 11
Cases had not been commenced if the Holder thereof (a) shall not have Filed
proof of such Claim on or before the Limited Bar Date or (b) shall have Filed a
proof of such Claim on or before the Limited Bar Date and no objection to, or
request for estimation with respect to, such Claim shall have been Filed in
accordance with Section 8.4 of the Plan, or (ii) by the Bankruptcy Court, if the
Holder thereof shall have Filed a proof of such Claim on or before the Limited
Bar Date and an objection to, or request for estimation with respect to, such
Claim shall have been Filed in accordance with Section 8.4 of the Plan; (b)
except as otherwise provided in Sections 8.1(a)(ii) and 8.1.1 of the Plan or as
may have been disallowed pursuant to a Final Order of the Bankruptcy Court,
shall survive the Effective Date and consummation of the Plan as if the Chapter
11 Cases had not been commenced; and (c) shall not be discharged pursuant to
Section 1141 of the Bankruptcy Code. Neither the entry of this Confirmation
Order, the execution of any of the documents required or contemplated hereunder
or by the Plan, nor any other action or inaction by any of the Debtors,
Reorganized Anacomp, any Creditor or any other party in interest in the Chapter
11 Cases (including, without limitation, the failure of the Debtors, Reorganized
Anacomp and/or Reorganized Florida A A C to object to any proof of Claim in
accordance with Section 8.4 of the Plan) shall constitute a waiver, estoppel,
res judicata, release, relinquishment, abandonment or any other abrogation of
any objection, defense, offset or counterclaim with respect to any Unimpaired
Excepted Claim asserted against any of the Debtors.
20. Notwithstanding anything contained in Section 502(a) of the Bankruptcy
Code or Section 5.7 of the Plan to the contrary, the Allowed amount of any
Unimpaired Non-Excepted Claim, and the rights, if any, of the Holder of any such
Claim that shall have properly Filed a proof of Claim on or prior to the Limited
Bar Date, or any other date as determined by the Bankruptcy Court or as provided
in the Bankruptcy Code with respect to such Claim, to payment in respect
thereof: (a) shall be determined (i) in the manner in which the amount of such
Claim and the rights of the Holder of such Claim would have been resolved and/or
adjudicated if these Chapter 11 Cases had not been commenced if no objection to,
or request for estimation with respect to, such Claim shall have been Filed in
accordance with Section 8.4 of the Plan, or (ii) by the Bankruptcy Court, if an
objection to, or request for estimation with respect to, such Claim shall have
been Filed in accordance with Section 8.4 of the Plan; (b) except as otherwise
provided in Sections 8.2(a)(ii) and 8.2.1 or as may have been disallowed
pursuant to a Final Order of the Bankruptcy Court, shall survive the Effective
Date and consummation of the Plan as if the Chapter 11 Cases had not been
commenced; and (c) shall not be discharged pursuant to Section 1141 of the
Bankruptcy Code. Neither the entry of this Confirmation Order, the execution of
any of the documents required or contemplated hereunder or by the Plan, nor any
other action or inaction by any of the Debtors, Reorganized Anacomp, any
Creditor or any other party in interest in the Chapter 11 Cases (including,
without limitation, the failure of the Debtors, Reorganized Anacomp and/or
Reorganized Florida A A C to object to any proof of Claim in accordance with
Section 8.4 of the Plan) shall constitute a waiver, estoppel, res judicata,
release, relinquishment, abandonment or any other abrogation of any objection,
defense, offset or counterclaim with respect to any Unimpaired Non-Excepted
Claim asserted against any of the Debtors.
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<PAGE>
21. On the Effective Date, except as otherwise provided in the Plan, all
securities, instruments and agreements governing any Claims or Interests
impaired by the Plan, including, without limitation, that certain Rights
Agreement, by and between Anacomp and Manufacturers Hanover Trust Company, as
rights agent, dated as of February 4, 1990, the Anacomp Debentures Guarantee,
the Anacomp Guarantee, the Old Collateral Documents, the Old Securities, the Old
Credit Facilities, the Old Credit Facilities Note, the Old Indentures and any
security, instrument or agreement entered into in connection with any of the
foregoing, in each case, shall be deemed canceled, terminated and discharged,
and the obligations of any of the Debtors thereunder or in connection therewith
shall be discharged; provided, however, that except as otherwise provided in the
Plan, notes and other evidences of Claims shall, effective upon the Effective
Date, represent the right to participate, to the extent such Claims are Allowed,
in the distributions contemplated by the Plan.
22. The automatic stay in effect with respect to the Chapter 11 Cases
pursuant to Section 362(a) of the Bankruptcy Code shall continue to be in effect
until the Effective Date and at that time shall be dissolved and of no further
force or effect, subject to the injunctions provided herein, in the Plan and in
the Bankruptcy Code.
23. Except as otherwise provided in this Confirmation Order or Article XII
of the Plan, any Entity that has Filed a proof of Claim on or before the
Confirmation Date and each Governmental Unit which is the Holder of an
Unimpaired Non-Excepted Claim that has not Filed a proof of Claim on or before
the Confirmation Date, shall be, and hereby is, unless, with respect to a
particular Claim, this Paragraph 23 shall have been specifically waived in
writing by any of the Debtors, Reorganized Anacomp or Reorganized Florida A A C,
restrained and enjoined from commencing, continuing or taking any act to enforce
against, or obtain recovery from, any of the Debtors, any Domestic Subsidiary,
any Foreign Subsidiary, Reorganized Anacomp or Reorganized Florida A A C with
respect to such Claim until (i) if an objection or request for estimation to
such Claim shall have been timely Filed in accordance with Section 8.4 of the
Plan, the day after such Claim shall have become an Allowed Claim or (ii) if no
objection or request for estimation shall have been timely Filed in accordance
with Section 8.4 of the Plan, the day after the last date on which an objection
to, or a request for estimation of, such Claim may be Filed in accordance with
Section 8.4 of the Plan; provided, however, that the foregoing shall not
restrain or enjoin any Governmental Unit from commencing, continuing or taking
any act to enforce against, or obtain recovery from, any Domestic Subsidiary
(other than Reorganized Florida A A C) or any Foreign Subsidiary with respect to
such Claim.
24. Subsequent to the performance of the Old Indenture Trustees, or their
respective agents, of their duties and obligations under the provisions of the
Plan and the Confirmation Order, if any, and under the terms of such Old
Indentures, such Old Indenture Trustees and their agents shall be relieved,
discharged and released from all obligations, claims, rights, demands and causes
of action associated with or arising from such Old Indentures. 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 Paragraph 24 and Section 14.2 of the Plan is
hereby enjoined.
25. The Court shall retain jurisdiction over the Chapter 11 Cases and
related matters as and to the extent provided in Article XIII of the Plan and
shall, without in any way limiting the generality of the foregoing, retain
jurisdiction with respect to any motion pending, as of the Effective Date, to
assume or reject an executory contract or unexpired lease of any of the Debtors
and to hear and determine any objections to, or requests for estimation of, any
Claim Filed by any Governmental Unit Filed on or after the Confirmation Date.
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<PAGE>
26. The Plan-Related Documents shall constitute legal, valid, binding and
authorized obligations of the respective parties thereto, enforceable in
accordance with their terms (except as enforceability may be limited by any
bankruptcy or insolvency proceeding filed by any party thereto subsequent to the
date of the execution of such document), and, to the extent applicable, shall
create, as of the Effective Date, the security interests purported to be created
thereby. The security interests and liens granted to secure the New Senior
Secured Notes under the New Senior Secured Notes Security and Pledge Agreement
(and all documents, instruments and agreements related thereto and annexes,
exhibits and schedules appended thereto) shall constitute, as of the Effective
Date, legal, valid and duly perfected first-priority liens and security
interests in and to the collateral specified therein, subject only, where
applicable, to the pre-existing liens and security interests specified therein
or contemplated thereby. The intended parties to the New Senior Secured Notes
Security and Pledge Agreement are hereby authorized to take any such actions as
shall be necessary to carry out the intents and purposes of this Paragraph 26.
27. The New Senior Secured Notes and the New Senior Subordinated Notes,
when issued pursuant to the Plan, shall be deemed to be duly executed and
delivered, and shall constitute legal, valid, binding obligations of Reorganized
Anacomp, enforceable against Reorganized Anacomp (except as enforceability may
be limited by any bankruptcy or insolvency proceeding filed by Reorganized
Anacomp subsequent to the date of the execution of such document). The New
Common Stock, when issued pursuant to the Plan, shall be deemed to be validly
issued, fully paid and nonassessable. The New Common Warrants, when issued
pursuant to the Plan, shall be deemed to be validly issued. Pursuant to Section
1145 of the Bankruptcy Code, Section 5 of the Securities Act of 1933 and any
state or local laws requiring registration of the offer or sale of a security,
or registration or licensing of an issuer of, underwriter of, or broker or
dealer in, a security, do not apply to the issuance or, except with respect to
an Entity that is an "underwriter" as defined in subsection (b) of Section 1145
of the Bankruptcy Code, resale of the Plan Securities being distributed in
respect of Allowed Claims or Allowed Interests under the Plan. As provided in
Section 6.5(b) of the Plan, within 45 days after the Effective Date, or such
longer time as may be required to prepare the necessary financial statements,
Reorganized Anacomp shall file, at its expense, the Shelf Registration Statement
with respect to the New Senior Secured Notes, the New Senior Subordinated Notes
and the New Common Stock.
28. All actions contemplated by the Plan are hereby authorized and approved
in all respects (subject to the provisions of the Plan), including, without
limitation, all actions contemplated by Article VI of the Plan. All such
actions, and any other actions described in the Plan or this Confirmation Order
that would otherwise require the consent or approval of the directors or
shareholders of any of the Debtors, Reorganized Anacomp or Reorganized Florida A
A C shall be deemed to have been consented to or approved and shall be effective
under applicable state law and the Bankruptcy Code, without any requirement of
prior or further action by the shareholders or directors of any of the Debtors,
Reorganized Anacomp or Reorganized Florida A A C. The appropriate officers and
directors of the Debtors, Reorganized Anacomp and/or Reorganized Florida A A C
are authorized to execute and deliver and to perform the terms of the
agreements, documents and instruments contemplated by the Plan and the
Disclosure Statement in the name of and on behalf of the Debtors, Reorganized
Anacomp and/or Reorganized Florida A A C.
29. On or prior to the Effective Date, the Merged Subsidiaries shall be
deemed to have been merged into and become a part of Anacomp, which Entity shall
constitute Reorganized Anacomp, a duly organized Indiana corporation. Anacomp
and/or Reorganized Anacomp shall cause the appropriate certificates of merger to
be filed in the appropriate jurisdictions to reflect the mergers contemplated
hereby. As of the Effective Date, Anacomp International shall be liquidated and
Reorganized Anacomp shall take such action as is necessary under the laws of the
Netherlands Antilles, N.V. and other applicable law to dissolve Anacomp
International after the Effective Date.
14
<PAGE>
30. The board of directors of Reorganized Anacomp shall be deemed to have
been duly elected by the shareholders of Reorganized Anacomp and the following
individuals shall constitute such board of directors: P. Lang Lowrey III, Talton
R. Embry, Jay P. Gilbertson, Darius W. Gaskins, Jr., Richard D. Jackson, George
A. Poole, Jr. and Lewis Solomon. Such directors shall remain in office until
their successors are duly elected and qualified, or until their earlier
resignation, removal or death, subject to the applicable laws of the State of
Indiana. Except as otherwise provided in the Plan, the members of the board of
directors of Anacomp as of the Business Day immediately preceding the Effective
Date shall have no continuing obligations to any of the Debtors, Reorganized
Anacomp or Reorganized Florida A A C on and after the Effective Date. On the
Effective Date, the executive officers of Reorganized Anacomp shall be the same
individuals serving in the same capacities as of the Business Day immediately
preceding the Effective Date.
31. The board of directors of Reorganized Florida A A C shall be deemed to
have been duly elected by the shareholders of Reorganized Florida A A C and the
following individuals shall constitute such board of directors: P. Lang Lowrey
III, Donald L. Viles and William C. Ater. Such directors shall remain in office
until their successors are duly elected and qualified, or until their earlier
resignation, removal or death, subject to the applicable laws of the State of
Florida. On the Effective Date, the executive officers of Reorganized Florida A
A C shall be the same individuals serving in the same capacities as of the
Business Day immediately preceding the Effective Date.
32. Pursuant to Section 11.3 of the Plan, all obligations of the Debtors or
any Foreign Subsidiary or Domestic Subsidiary to indemnify or hold harmless
current or former officers or directors of any of the Debtors, or the Old
Indenture Trustees, and all Claims of such officers, directors or the Old
Indenture Trustees, under the by-laws of such Debtor, the Old Indentures or
other applicable law, corporate documents or agreements shall expressly survive
Confirmation of the Plan and be assumed by and be binding on and enforceable
against Reorganized Anacomp irrespective of whether indemnification is owed in
connection with an event occurring before, on or after the Petition Date.
33. Pursuant to Section 11.4 of the Plan, provided that the Plan shall have
become effective, all rights, actions or causes of action between or among
Holders of "senior indebtedness" (as defined in the Old Senior Subordinated
Notes Indenture) and Holders of Old Senior Subordinated Notes Claims based upon
any claimed right to contractual subordination shall be satisfied, terminated,
void and of no further force or effect as of the Effective Date so that,
notwithstanding any such rights, actions or causes of action, each Holder of Old
Senior Subordinated Notes Claims shall have the rights and benefits of the
distributions provided in the Plan.
34. Pursuant to Section 11.5 of the Plan, provided that the Plan shall have
become effective, all rights, actions or causes of action between or among
Holders of "senior indebtedness" (as defined in the Old 9% Subordinated
Debentures Indenture and the Old 13.875% Subordinated Debentures Indenture) and
Holders of Old Subordinated Debentures Claims based upon or in any way relating
to any claimed right to contractual subordination shall be satisfied,
terminated, void and of no further force or effect as of the Effective Date so
that, notwithstanding any such rights, actions or causes of action, each Holder
of Old Subordinated Debentures Claims shall have the rights and benefits of the
distributions provided in the Plan.
15
<PAGE>
35. Except as otherwise provided in the Plan, the appointment of each
official statutory committee appointed in the Chapter 11 Case shall terminate on
the Effective Date.
36. Pursuant to Section 1146(c) of the Bankruptcy Code, (a) the issuance,
transfer or exchange of any security under the Plan or any Plan-Related Document
or the making or delivery of any instrument of transfer pursuant to, in
implementation of, or as contemplated by the Plan, including 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
or any Plan-Related Document, or the revesting, transfer or sale of any real or
personal property of the Debtors pursuant to, in implementation of, or as
contemplated by the Plan or any Plan-Related Document, (b) the making, delivery,
creation, assignment, amendment or recording of any note or other obligation for
the payment of money or of any mortgage, deed of trust or other security
interest under, in furtherance of, or in connection with the Plan or any
Plan-Related Document, the issuance, renewal, modification or securing of
indebtedness by such means, and (c) the making, delivery or recording of any
deed or other instrument of transfer under, in furtherance of, or in connection
with, the Plan or any Plan-Related Document, including, without limitation, the
Confirmation Order, shall not be subject to any document recording tax, stamp
tax, conveyance fee or other similar tax, mortgage tax, real estate transfer
tax, mortgage recording tax or other similar tax or governmental assessment.
Consistent with the foregoing, each recorder of deeds or similar official for
any county, city or governmental unit in which any instrument hereunder is to be
recorded is hereby ordered and directed to accept such instrument, without
requiring the payment of any documentary stamp tax, deed stamps, stamp tax,
transfer tax, intangible tax or similar tax.
37. On the Effective Date, the provisions of Article XII of the Plan shall
be valid, binding and effective in all respects, and are hereby approved as
integral parts of the Plan as fair, equitable, reasonable and in the best
interests of the Debtors, the Estates, Creditors and all other parties in
interests in the Chapter 11 Cases, without the requirement of any further action
by any party in interest in the Chapter 11 Cases.
38. The failure to reference or discuss any particular provision of the
Plan in this Confirmation Order shall have no effect on the validity, binding
effect or enforceability of such provision and such provision shall have the
same validity, binding effect and enforceability as every other provision of the
Plan.
39. If any or all of the provisions of this Confirmation Order are
hereafter reversed, modified or vacated by subsequent order of this Court or any
other court, such reversal, modification or vacatur shall not affect the
validity of the acts or obligations incurred or undertaken under or in
connection with the Plan prior to the Debtors or Reorganized Anacomp's receipt
of written notice of any such order; nor shall such reversal, modification or
vacatur of this Confirmation Order affect the validity or enforceability of such
act or obligation. Notwithstanding any such reversal, modification or vacatur of
this Confirmation Order, any such act or obligation incurred or undertaken
pursuant to, and in reliance on, this Confirmation Order prior to the effective
date of such reversal, modification or vacatur shall be governed in all respects
by the provisions of this Confirmation Order and the Plan and all documents,
instruments and agreements related thereto or any amendments or modifications
thereto.
40. Pursuant to Sections 1123(a) and 1142(a) of the Bankruptcy Code, the
provisions of this Confirmation Order, the Plan and the Plan-Related Documents
shall apply and be enforceable notwithstanding any otherwise applicable
nonbankruptcy law.
41. The Plan shall be deemed to be substantially consummated on the
Effective Date.
42. This Confirmation Order is a Final Order and is subject to immediate
appeal.
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<PAGE>
43. In the event and to the extent that any provision of this Confirmation
Order is determined to be inconsistent with any provision of the Plan, such
provision of this Confirmation Order shall control and take precedence.
Dated: May __, 1996
Wilmington, Delaware
------------------------------------
UNITED STATES BANKRUPTCY JUDGE
17
[CADWALADER, WICKERSHAM & TAFT]
May 30, 1996
VIA EDGAR
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Anthony Barone, Esq.
Re: Anacomp, Inc.
Dear Mr. Barone:
On behalf of Anacomp, Inc. (the "Registrant"), we hereby request that the
Securities and Exchange Commission (the "Commission") take appropriate action to
declare the Registrant's Registration Statements on Form 8-A, as amended (file
no. 0-7641), and Form T-3, as amended (22-22227), effective at 9:30 a.m. noon,
Washington, D.C. time, on June 3, 1996, or as soon thereafter as practicable.
Thank you in advance for your cooperation.
Very truly yours,
/s/ Richard W. Knaub
Richard W. Knaub
RWK:bs
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
KALVAR MICROFILM, INC., ) Case No. 96-15 (HSB)
ANACOMP, INC., ANACOMP )
INTERNATIONAL N.V., FLORIDA )
A A C CORPORATION and ) (Jointly Administered)
XIDEX DEVELOPMENT COMPANY, )
)
Debtors. )
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
Dated: May 20, 1996
KALVAR MICROFILM, INC., ANACOMP, INC., ANACOMP INTERNATIONAL N.V., FLORIDA
A A C CORPORATION and XIDEX DEVELOPMENT COMPANY, Debtors and
Debtors-in-Possession (collectively, the "Debtors") in the above-captioned
Chapter 11 cases, propose the following Third Amended Joint Plan of
Reorganization (the "Plan") pursuant to Section 1121(a) of Title 11 of the
United States Code, as amended.
<PAGE>
TABLE OF CONTENTS
Page
I DEFINITIONS AND RULES OF CONSTRUCTION........................................
Administrative Claim.....................................................
Allowed..................................................................
Allowed Claim............................................................
Allowed Interest.........................................................
Amended Anacomp Articles.................................................
Amended Anacomp By-laws..................................................
Amended and Restated Master Agreement....................................
Anacomp..................................................................
Anacomp Debentures Guarantee.............................................
Anacomp Guarantee........................................................
Anacomp International....................................................
Bankruptcy Code..........................................................
Bankruptcy Court.........................................................
Bankruptcy Rules.........................................................
Business Day.............................................................
Carlisle Note............................................................
Carlisle Note Claim......................................................
Cash.....................................................................
Cash Collateral Amount...................................................
Cash Collateral Order....................................................
Cash Sweep Amount........................................................
Cedel....................................................................
Chapter 11...............................................................
Chapter 11 Cases.........................................................
Chapter 11 Schedules.....................................................
Citibank Agency Amount...................................................
Citibank Letter Agreement................................................
Claim....................................................................
Class....................................................................
Collateral Agent.........................................................
Confirmation.............................................................
Confirmation Date........................................................
Confirmation Hearing.....................................................
Confirmation Order.......................................................
Consolidated Claim.......................................................
Consolidated Debtors.....................................................
Consolidated Estates.....................................................
Credit Agreement.........................................................
Creditor.................................................................
Creditors' Committee.....................................................
Debt Security Claims.....................................................
Debtor or Debtors........................................................
Disbursing Agent.........................................................
Disclosure Statement.....................................................
Disputed Claim...........................................................
Disputed Interest........................................................
Distribution Record Date.................................................
Domestic Subsidiaries....................................................
Effective Date...........................................................
Employee Options.........................................................
Encumbrance..............................................................
Entity...................................................................
Estates..................................................................
Euroclear................................................................
File, Filed, or Filing...................................................
Final Order..............................................................
Florida A A C............................................................
Foreign Subsidiaries.....................................................
General Unsecured Claim..................................................
Holder...................................................................
Impaired Claim...........................................................
Indenture Trustee Charging Lien..........................................
Indenture Trustee Claim..................................................
Intercompany Claim.......................................................
Interest.................................................................
Kalvar...................................................................
Lending Parties..........................................................
Letter of Credit Cash Amount.............................................
Lien.....................................................................
Limited Bar Date.........................................................
Limited Bar Date Order...................................................
Merged Subsidiaries......................................................
Miscellaneous Secured Claim..............................................
Multicurrency Borrowers..................................................
Multicurrency Lenders....................................................
Multicurrency Revolver Loan Agreement....................................
New Carlisle Note........................................................
New Common Stock.........................................................
New Indenture Trustees...................................................
New LCs..................................................................
New Management Incentive Plan............................................
New Senior Secured Notes.................................................
New Senior Secured Notes Indenture.......................................
New Senior Secured Notes Indenture Trustee...............................
New Senior Secured Notes Security and Pledge Agreement...................
New Senior Subordinated Notes............................................
New Senior Subordinated Notes Indenture..................................
New Senior Subordinated Notes Indenture Trustee..........................
New Warrant Agent........................................................
New Warrant Agreement....................................................
New Warrants.............................................................
Old Collateral Documents.................................................
Old Common Stock.........................................................
Old Credit Facilities....................................................
Old Credit Facilities Note...............................................
Old Credit Facilities Secured Claim......................................
Old Indentures...........................................................
Old Indenture Trustees...................................................
Old 9% Subordinated Debentures...........................................
Old 9% Subordinated Debentures Claim.....................................
Old 9% Subordinated Debentures Indenture.................................
Old 9% Subordinated Debentures Indenture Trustee.........................
Old Preferred Stock......................................................
Old Security or Old Securities...........................................
Old Senior Notes.........................................................
Old Senior Notes Secured Claim...........................................
Old Senior Subordinated Notes............................................
Old Senior Subordinated Notes Claim......................................
Old Senior Subordinated Notes Indenture..................................
Old Senior Subordinated Notes Indenture Trustee..........................
Old Subordinated Debentures..............................................
Old Subordinated Debentures Claims.......................................
Old 13.875% Subordinated Debentures......................................
Old 13.875% Subordinated Debentures Claim................................
Old 13.875% Subordinated Debentures Indenture............................
Old 13.875% Subordinated Debentures Indenture Trustee....................
Old Transfer Agent.......................................................
Old Warrants.............................................................
Ordinary Course Professionals Order......................................
Petition Date............................................................
Plan.....................................................................
Plan Documents...........................................................
Plan Securities..........................................................
Pledged Foreign Subsidiaries.............................................
Post-Petition Trade Claim................................................
Premium Amount...........................................................
Priority Claim...........................................................
Priority Tax Claim.......................................................
Professional.............................................................
Pro Rata.................................................................
Registration Rights Agreement............................................
Rejection Claim..........................................................
Releasees................................................................
Reorganized Anacomp......................................................
Reorganized Florida A A C................................................
Revolving Loan Agreement.................................................
Secured Claim............................................................
Series B Note Purchase Agreement.........................................
Series B Purchasers......................................................
Shelf Registration Statement.............................................
Subsidiaries.............................................................
Term Loan Agreements.....................................................
Trade Claim..............................................................
Treasury Rate............................................................
Unimpaired Claim.........................................................
Unimpaired Excepted Claim................................................
Unimpaired Non-Excepted Claim............................................
Unofficial Senior Subordinated Committee.................................
Xidex....................................................................
Interpretation and Rules of Construction.................................
Other Terms..............................................................
Headings.................................................................
Incorporation of Exhibits................................................
II CLASSIFICATION OF CLAIMS AND INTERESTS......................................
2.1 Pre-Petition Claims and Equity Interests Classified.....................
2.2 Administrative Claims and Priority Tax Claims...........................
2.3 Claims Against and Interests in the Debtors.............................
III IDENTIFICATION OF IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS..........
3.1 Impaired Classes of Claims..............................................
3.2 Unimpaired Classes of Claims and Equity Interests.......................
3.3 Impairment Controversies................................................
IV TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS.........................
4.1 Fees of Professionals and Claims for Substantial
Contribution............................................................
4.2 Ordinary Course Liabilities.............................................
4.3 Priority Tax Claims.....................................................
V TREATMENT OF CLAIMS AND INTERESTS............................................
5.1 Class 1. Priority Claims................................................
5.2 Class 2. Old Credit Facilities Secured Claims and Old Senior
Notes Secured Claims........................19
5.3 Class 3. Miscellaneous Secured Claims..................................
5.4 Class 4. Carlisle Note Claim...........................................
5.5 Class 5. Old Senior Subordinated Notes Claims..........................
5.6 Class 6. Old Subordinated Debentures Claims............................
5.7 Class 7. General Unsecured Claims......................................
5.8 Class 8. Old Preferred Stock...........................................
5.9 Class 9. Old Common Stock..............................................
5.10 Class 10. Claims for Issuance of Old Common Stock.....................
5.11 Class 11. Intercompany Claims.........................................
5.12 Allocation Between Principal and Accrued Interest......................
5.12(a) Class 12. United States Custom Service Claims......................
VI MEANS FOR EXECUTION OF THE PLAN.............................................
6.1 General Corporate Matters...............................................
Cancellation of Old Securities, Instruments and Agreements Relating to
Impaired Claims and Interests............................................
Effectiveness of Securities, Instruments and Agreements..................
Corporate Action.........................................................
Management and Board of Directors........................................
Substantive Consolidation................................................
Extinguishment of Guarantees.............................................
Continued Corporate Existence and Vesting of Assets in Reorganized
Anacomp..................................................................
Continued Corporate Existence and Vesting of Assets in Reorganized
Florida A A C............................................................
6.2 Distributions...........................................................
Generally................................................................
Distributions to Holders of Allowed Old Credit Facilities Secured Claims.
Distributions to Holders of Allowed Debt Security Claims.................
Distributions to Holders of Other Claims and Interests...................
Compensation for Services Related to Distribution........................
Delivery of Distributions and Undeliverable or Unclaimed Distributions...
Distribution Record Date.................................................
Means of Cash Payments...................................................
Fractional Plan Securities...............................................
Surrender of Canceled Instruments or Securities..........................
Fees and Expenses of Senior Lenders......................................
Setoff...................................................................
6.3 Indenture Trustee Charging Liens........................................
6.4 Retiree Benefits........................................................
6.5 Exemptions from Securities Laws and Shelf Registration..................
VII ACCEPTANCE OR REJECTION OF THE PLAN........................................
7.1 Classes Entitled to Vote................................................
7.2 Class Acceptance Requirement............................................
7.3 Confirmation Notwithstanding a Rejection of Plan by an Impaired
Class...................................................................
VIII PROCEDURE FOR RESOLVING DISPUTED CLAIMS...................................
8.1 Unimpaired Excepted Claims Generally....................................
8.2 Unimpaired Non-Excepted Claims Generally................................
8.3 Rejection Claims........................................................
8.4 Disputed Claims.........................................................
8.5 Authority to Oppose Claims..............................................
8.6 Treatment of Disputed Claims and Disputed Interests.....................
IX EXECUTORY CONTRACTS.........................................................
9.1 General Treatment.......................................................
9.2 Bar to Rejection Damages................................................
9.3 Cure of Defaults for Executory Contracts and Unexpired Leases...........
X CONDITIONS TO CONFIRMATION AND THE OCCURRENCE OF THE EFFECTIVE DATE..........
10.1 Conditions to Confirmation.............................................
10.2 Conditions to the Occurrence of the Effective Date.....................
XI EFFECTS OF CONFIRMATION AND EFFECTIVENESS OF PLAN...........................
11.1 Discharge of Claims....................................................
11.2 Discharge of Debtors...................................................
11.3 Survival of Indemnification Claims and Obligations.....................
11.4 Termination of Claims of Contractual Subordination Against Holders
of Old Senior Subordinated Notes Claims................................
11.5 Termination of Claims of Contractual Subordination Against Holders
of Old Subordinated Debentures Claims..................................
XII RELEASES AND INJUNCTION....................................................
12.1 Releases...............................................................
12.2 No Liability for Solicitation or Participation.........................
12.3 Limitation of Liability................................................
12.4 General Injunction.....................................................
12.5 Section 346 Injunction.................................................
XIII RETENTION OF JURISDICTION.................................................
13.1 Scope of Jurisdiction..................................................
13.2 Failure of the Bankruptcy Court to Exercise Jurisdiction...............
XIV MISCELLANEOUS PROVISIONS...................................................
14.1 Compliance With Tax Requirements.......................................
14.2 Discharge of Old Indenture Trustees....................................
14.3 Post-Confirmation Date Fees and Expenses of Professionals..............
14.4 Vesting of Property of the Debtors.....................................
14.5 Causes of Action.......................................................
14.6 Assumption of Liabilities..............................................
14.7 Other Documents and Actions............................................
14.8 Section 1146 Exemption.................................................
14.9 Binding Effect.........................................................
14.10 Governing Law.........................................................
14.11 Filing of Additional Documents........................................
14.12 Dissolution of Creditors' Committee...................................
14.13 Amendments and Modifications..........................................
14.14 Revocation............................................................
14.15 Severability..........................................................
14.16 Notices...............................................................
14.17 De Minimis Distributions..............................................
14.18 Plan and Plan Documents Control.......................................
EXHIBITS
1 Form of Amended Anacomp Articles
2 Form of Amended Anacomp By-laws
3 Form of New Senior Secured Notes Indenture
4 Form of New Senior Secured Notes Security and Pledge Agreement
5 Form of New Senior Subordinated Notes Indenture
6 Form of New Warrant Agreement
7 Form of New Warrants
8 Form of Registration Rights Agreement
ANNEXES
A Summary of Terms of New Senior Secured Notes
B Summary of Terms of New Senior Subordinated Notes
C List of Merged Subsidiaries
<PAGE>
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
The following terms used in the Plan shall, unless the context
otherwise clearly requires, have the meanings specified below, and such meanings
shall be equally applicable to both the singular and plural forms of such terms.
1.1 "Administrative Claim" shall mean a Claim or expense allowed under
Section 503(b) of the Bankruptcy Code that is entitled to priority under Section
507(a)(1) of the Bankruptcy Code, including, without limitation, amounts
required to be paid in connection with any assumption of executory contracts and
unexpired leases and all Post-Petition Trade Claims.
1.2 "Allowed" shall mean with respect to any Claim or Interest, a Claim
or Interest as to which no objection to the allowance thereof, or motion to
estimate for purposes of allowance, shall have been Filed on or before any
applicable period of limitation that may be fixed by the Bankruptcy Code, the
Bankruptcy Rules and/or the Bankruptcy Court, or as to which any objection, or
any motion to estimate for purposes of allowance, shall have been so Filed, to
the extent allowed by a Final Order.
1.3 "Allowed Claim" shall mean a Claim, or a portion thereof, including
any guarantee by any Debtor of such right, if any, (i) that is deemed allowed
under the Plan, (ii) that has been scheduled by a Debtor as other than
contingent, disputed or unliquidated, (iii) proof of which has been timely filed
with the Bankruptcy Court and as to which the period of time in which to file
objections as fixed by the Bankruptcy Code, the Bankruptcy Rules, the Plan or an
order of the Bankruptcy Court, has expired with no such objection having been
filed, or (iv) that has been allowed by a Final Order of the Bankruptcy Court.
1.4 "Allowed Interest" shall mean an Interest (i) that is deemed
allowed under the Plan, (ii) that has been scheduled by a Debtor, (iii) proof of
which has been timely filed with the Bankruptcy Court and as to which the period
of time in which to file objections as fixed by the Bankruptcy Code, the
Bankruptcy Rules, the Plan or an order of the Bankruptcy Court, has expired with
no such objection having been filed, or (iv) that has been allowed by a Final
Order of the Bankruptcy Court.
1.5 "Amended Anacomp Articles" shall mean the amended and restated
articles of incorporation of Reorganized Anacomp to become effective on the
Effective Date, substantially in the form as which will be Filed as Exhibit 1 to
this Plan at or prior to the Confirmation Hearing.
1.6 "Amended Anacomp By-laws" shall mean the amended and restated
by-laws of Reorganized Anacomp to become effective on the Effective Date,
substantially in the form as which will be Filed as Exhibit 2 to this Plan at or
prior to the Confirmation Hearing.
1.7 "Amended and Restated Master Agreement" shall mean the agreement,
dated as of March 22, 1993, as amended, among Anacomp, the Multicurrency
Borrowers, the Lending Parties, the Multicurrency Lenders, the Series B
Purchasers, The First National Bank of Chicago, as Multicurrency Agent, and
Citibank, N.A. as Agent, Administrative Agent and Collateral Agent.
1.8 "Anacomp" shall mean Anacomp, Inc., an Indiana corporation, prior
to the Petition Date and as debtor and debtor-in-possession in the Chapter 11
Cases.
1.9 "Anacomp Debentures Guarantee" shall mean the guarantee by Anacomp,
dated as of January 1, 1981 and as amended, of the obligations of Anacomp
International, as issuer, of the Old 9% Subordinated Debentures.
1.10 "Anacomp Guarantee" shall mean the guarantee, dated as of March
22, 1993, by Anacomp of the obligations of Anacomp S.A., a French corporation,
Anacomp GmbH, a German corporation, Xidex GmbH, a German corporation, Anacomp
Italia SRL, an Italian corporation, Anacomp A.B., a Swedish corporation, Anacomp
Holdings Ltd., a United Kingdom corporation, Anacomp Ltd., a United Kingdom
corporation, and Xidex (U.K.) Ltd., a United Kingdom corporation, pursuant to
the Multicurrency Revolver Loan Agreement and the Amended and Restated Master
Agreement.
1.11 "Anacomp International" shall mean Anacomp International N.V., a
Netherlands Antilles corporation, prior to the Petition Date and as debtor and
debtor-in-possession in the Chapter 11 Cases.
1.12 "Bankruptcy Code" shall mean Title 11 of the United States Code,
as now in effect and as amendments hereinafter are applicable.
1.13 "Bankruptcy Court" shall mean the United States Bankruptcy Court
for the District of Delaware, or any other court of competent jurisdiction
exercising jurisdiction over the Chapter 11 Cases.
1.14 "Bankruptcy Rules" shall mean the Rules of Bankruptcy Procedure,
as amended and promulgated under Section 2075, Title 28, United States Code.
1.15 "Business Day" shall mean any day except a Saturday, Sunday, or
any other day on which commercial banks are authorized by law to close in the
State of New York.
1.16 "Carlisle Note" shall mean that certain 10% unsecured note due
1998, payable to Carlisle Companies Incorporated and issued by Anacomp in
connection with the acquisition of Graham Magnetics, Inc.
1.17 "Carlisle Note Claim" shall mean any Claim arising under, based
upon or otherwise related to the Carlisle Note, including, without limitation,
all Allowed Claims for principal, interest, fees, expenses, or other amounts
payable under or with respect to the Carlisle Note.
1.18 "Cash" shall mean cash or cash equivalents.
1.19 "Cash Collateral Amount" shall mean an amount of Cash, if any,
equal to all accrued and unpaid interest, as of the Effective Date, that is
payable to the Holders of the Old Credit Facilities Secured Claims and the
Holders of the Old Senior Notes Secured Claims pursuant to the terms of
Paragraph 4(d) of the Cash Collateral Order.
1.20 "Cash Collateral Order" shall mean that certain Final Order
Authorizing Use of Cash Collateral, which was signed by the Bankruptcy Court on
January 31, 1996, as amended from time to time.
1.21 "Cash Sweep Amount" shall mean an amount of Cash equal to $7.5
million.
1.22 "Cedel" shall mean Cedel S.A., a European securities clearinghouse
with an address at 67 Belgrande, Duchesee Charlotte, L-1010 Luxembourg.
1.23 "Chapter 11" shall mean Chapter 11 of the Bankruptcy Code.
1.24 "Chapter 11 Cases" shall mean these cases under Chapter 11 with
respect to the Debtors, pending or to be pending in the District of Delaware,
administered as In re Kalvar Microfilm Inc., Anacomp, Inc., Anacomp
International N.V., Florida A A C Corporation and Xidex Development Company,
Chapter 11 Case Nos. 96-15 (HSB) through 96-19 (HSB).
1.25 "Chapter 11 Schedules" shall mean the schedules of assets and
liabilities and the statements of financial affairs that may be filed by the
Debtors with the Bankruptcy Court, in the form filed or as may thereafter be
amended, modified or supplemented in accordance with the Bankruptcy Code, the
Bankruptcy Rules, and the Bankruptcy Court's local bankruptcy rules.
1.26 "Citibank Agency Amount" shall mean an amount of Cash equal to
$1,033,333.35 less any amounts paid to Citibank, N.A. pursuant to the Citibank
Letter Agreement between March 21, 1996 and the Effective Date.
1.27 "Citibank Letter Agreement" shall mean that certain Other Fees
Letter No. 2, dated as of September 1, 1990, between Anacomp and Citibank, N.A.
1.28 "Claim" shall mean (i) any right to payment from any Debtor
arising before the Confirmation Date, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (ii) any right
to an equitable remedy against any Debtor arising before the Confirmation Date
for breach of performance if such breach gives rise to a right of payment from
such Debtor, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured, and shall include any guarantee by any Debtor of such right, if
any.
1.29 "Class" shall mean a class of Claims or Interests as defined in
Article II of the Plan.
1.30 "Collateral Agent" shall mean Citibank, N.A., as collateral agent
under the Old Collateral Documents.
1.31 "Confirmation" shall mean the entry of the Confirmation Order by
the Bankruptcy Court pursuant to Section 1129 of the Bankruptcy Code.
1.32 "Confirmation Date" shall mean the date on which the Confirmation
Order is entered on the docket maintained in the Chapter 11 Cases by the Clerk
of the Bankruptcy Court.
1.33 "Confirmation Hearing" shall mean the hearing pursuant to which
the Bankruptcy Court signed the Confirmation Order.
1.34 "Confirmation Order" shall mean an order of the Bankruptcy Court
confirming the Plan pursuant to Section 1129 of the Bankruptcy Code.
1.35 "Consolidated Claim" shall mean any Claim of any Consolidated
Debtor against any other Consolidated Debtor.
1.36 "Consolidated Debtors" shall mean Kalvar, Anacomp and Xidex,
collectively.
1.37 "Consolidated Estates" shall mean the substantively consolidated
estates of Kalvar, Anacomp and Xidex.
1.38 "Credit Agreement" shall mean the agreement dated as of October
24, 1990 and as amended by and among Anacomp, the Lending Parties and the
Collateral Agent.
1.39 "Creditor" shall mean any Entity that is the Holder of any Claim
against the Debtors that arose on or before the Petition Date or any Claim
against the Debtors' Estates of a kind specified in Sections 502(g), 502(h), or
502(i) of the Bankruptcy Code.
1.40 "Creditors' Committee" shall mean the official committee of
unsecured creditors appointed in the Chapter 11 Cases by the United States
Trustee pursuant to Section 1102 of the Bankruptcy Code, as constituted by the
addition or removal of members from time to time.
1.41 "Debt Security Claims" shall mean the Old Senior Note Secured
Claims, the Old Senior Subordinated Note Claims and the Old Subordinated
Debentures Claims, collectively.
1.42 "Debtor" or "Debtors" shall mean Kalvar, Anacomp, Anacomp
International, Florida A A C and Xidex, individually or collectively, as the
context may require.
1.43 "Disbursing Agent" shall mean any Entity or Entities designated in
the Confirmation Order to make distributions required under the Plan, and may
include Reorganized Anacomp when acting in such capacity.
1.44 "Disclosure Statement" shall mean the Joint Disclosure Statement,
dated January 12, 1996, that was Filed by the Debtors and approved by the
Bankruptcy Court in connection with the Plan, as may be further amended,
modified, restated, or supplemented from time to time.
1.45 "Disputed Claim" shall mean any Claim, to the extent it has not
since become an Allowed Claim, (i) listed on the Chapter 11 Schedules as
unliquidated, disputed or contingent, or (ii) as to which the Debtors or any
other party in interest has interposed a timely objection or request for
estimation in accordance with the Bankruptcy Code and the Bankruptcy Rules,
which objection or request for estimation has not been withdrawn or determined
by a Final Order.
1.46 "Disputed Interest" shall mean an Interest in the Debtors to the
extent it has not become an Allowed Interest, (i) listed on the Chapter 11
Schedules as contingent, unliquidated or disputed, or (ii) as to which the
Debtors or any other party in interest has interposed a timely objection in
accordance with the Bankruptcy Code and the Bankruptcy Rules, which objection
has not been withdrawn or determined by Final Order.
1.47 "Distribution Record Date" shall mean the date specified in the
Confirmation Order as the Distribution Record Date with respect to each Class,
or, if no such date is specified, the Business Day immediately prior to the
Effective Date.
1.48 "Domestic Subsidiaries" shall mean Florida A A C, Computer
Services Corporation, a Michigan corporation, Kalvar, Applied Peripheral
Systems, Inc., a California corporation, Cadren Systems Corporation, a
California corporation, Data Management Labs, Inc., a California corporation,
Dysan International Sales Corporation, a California corporation, Dysan
International Sales Corporation II, a California corporation, Teksad
Corporation, a California corporation, U.S. Video Corporation, a California
corporation, Xidex, Xidex International Sales Corporation, a California
corporation, and Xidex Magnetics International Sales Corporation, a California
corporation in which (except for Computer Services Corporation) 99% or more of
the outstanding equity having ordinary voting power to elect a majority of the
board of directors or other managers of such Entity is owned directly or
indirectly by Anacomp or Reorganized Anacomp.
1.49 "Effective Date" shall mean a Business Day selected by the Debtors
that is the later of (i) a day that is not less than ten (10) nor more than
thirty (30) days after the Confirmation Date, and (ii) the first Business Day on
which all conditions to the occurrence of the Effective Date have been satisfied
or duly waived.
1.50 "Employee Options" shall mean stock options and warrants granted
to Anacomp employees pursuant to Anacomp's stock option plans.
1.51 "Encumbrance" shall mean any Lien, imperfection of title, option,
or restriction of any kind affecting any property of any Debtor.
1.52 "Entity" shall mean a person, a corporation, a partnership, an
association, a joint stock company, a joint venture, a limited liability
company, an estate, a trust, an unincorporated organization, a government or any
subdivision thereof or any other entity.
1.53 "Estates" shall mean the estates of Kalvar, Anacomp, Anacomp
International, Florida A A C and Xidex created by Section 541 of the Bankruptcy
Code upon the commencement of the Chapter 11 Cases.
1.54 "Euroclear" shall mean a European securities clearinghouse with
an address c/o Morgan Guaranty Trust Company of New York, Boulevard E. Jacqumain
151 B-1210 Brussels, Belgium.
1.55 "File," "Filed" or "Filing" shall mean file, filed or filing with
the Bankruptcy Court in the Chapter 11 Cases.
1.56 "Final Order" shall mean an order of the Bankruptcy Court or any
other court of competent jurisdiction (i) which is not subject to a stay of
effectiveness; (ii) as to which the time to appeal, petition for certiorari or
move for reargument; or rehearing has expired and as to which no timely appeal,
petition for certiorari or other proceedings for reargument or rehearing shall
then be pending; or (iii) if a timely appeal, writ of certiorari, reargument or
rehearing thereof has been sought, which shall have been affirmed by the highest
court to which such order was appealed, or certiorari shall have been denied or
reargument or rehearing shall have been denied or resulted in no modification of
such order, and the time to take any further appeal, petition for certiorari, or
move for modification of such order, 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 the Bankruptcy Rules or other rules governing procedure in cases before
the Bankruptcy Court, if not the Bankruptcy Court, may be Filed with respect to
such order shall not cause such order not to be a Final Order.
1.57 "Florida A A C" shall mean Florida A A C Corporation, a Florida
corporation, prior to the Petition Date and as debtor and debtor-in-possession
in the Chapter 11 Cases.
1.58 "Foreign Subsidiaries" shall mean Anacomp International, Anacomp
S.A., a French corporation, Xidex GmbH, a German corporation, Datamagnetics
GmbH, a German corporation, Anacomp Italia SRL, an Italian corporation, Anacomp
B.V., a Dutch corporation, Anacomp A.B., a Swedish corporation, Anacomp A/S, a
Danish corporation, Anacomp OY, a Finnish corporation, Anacomp A/S, a Norwegian
corporation, Anacomp GesmbH, an Austrian corporation, Anacomp Belgium S.A., a
Belgian corporation, Anacomp GmbH, a German corporation, Xidex Magnetics S.A., a
Swiss corporation, Xidex Corp. S.A., a Swiss corporation, Anacomp Holdings,
Ltd., a United Kingdom corporation, Anacomp Ltd., a United Kingdom corporation,
Xidex (U.K.) Ltd., a United Kingdom corporation, Anacomp Canada, Inc., a
Canadian corporation, Anacomp do Brasil Ltda., a Brazilian corporation, Anacomp
Japan Ltd., a Japanese corporation, Anacomp PTY Ltd., an Australian corporation,
and Xidex New Zealand Ltd., a New Zealand corporation.
1.59 "General Unsecured Claim" shall mean any Claim (including any
Trade Claim, Rejection Claim and Indenture Trustee Claim) that is not a
Consolidated Claim, Carlisle Note Claim, Old Subordinated Debentures Claim, Old
Senior Subordinated Notes Claim, Intercompany Claim, Administrative Claim,
Priority Claim, Old Credit Facilities Secured Claim, Old Senior Notes Secured
Claim or a Miscellaneous Secured Claim.
1.60 "Holder" shall mean an Entity which is the owner, legal and/or
beneficial, of the applicable Claim or Interest.
1.61 "Impaired Claim" shall mean a Claim identified in Section 3.1 of
the Plan as impaired under the Plan.
1.62 "Indenture Trustee Charging Lien" shall mean any Lien or other
priority in payment available to any of the Old Indenture Trustees pursuant to
any of the Old Indentures for payment of any fees, costs or disbursements
incurred by such Old Indenture Trustee, to the extent not otherwise paid
pursuant to the applicable terms of the Plan.
1.63 "Indenture Trustee Claim" shall mean a contractual Claim held by
any of the Old Indenture Trustees for compensation, reimbursement of costs or
disbursements (including without limitation the costs and expenses of its
attorneys, accountants and financial advisors), or indemnity arising from any of
the Old Indentures regardless of whether such fees and expenses are incurred
prior or subsequent to the Petition Date.
1.64 "Intercompany Claim" shall mean any Claim held by any Domestic
Subsidiary or Foreign Subsidiary, other than any of the Consolidated Debtors,
against any of the Debtors.
1.65 "Interest" shall mean an equity security in Anacomp within the
meaning of Section 101(16) of the Bankruptcy Code.
1.66 "Kalvar" shall mean Kalvar Microfilm, Inc., a Delaware corporation
and a wholly-owned subsidiary of Anacomp, prior to the Petition Date and as
debtor and debtor-in-possession in the Chapter 11 Cases.
1.67 "Lending Parties" shall mean Citibank, N.A., Internationale
Nederlanden (U.S.) Capital Corporation, Lehman Commercial Paper Inc., Pearl
Street L.P., and Bank Polska Kasa Opieki, S.A.
1.68 "Letter of Credit Cash Amount" shall mean an amount of Cash equal
to 105% of the amounts outstanding under undrawn letters of credit issued under
the Credit Agreement as of the Effective Date, to the extent not replaced by the
New LCs, plus all fees and expenses payable to the issuers of such letters of
credit.
1.69 "Lien" shall mean any conveyance in trust, assignment or pledge
of, mortgage or lien on, security interest in, or charge or encumbrance of any
kind against, any property of any Debtor.
1.70 "Limited Bar Date" shall mean February 23, 1996, the date
established by the Bankruptcy Court as the "Limited Bar Date" pursuant to the
Limited Bar Date Order.
1.71 "Limited Bar Date Order" shall mean the Order (1) Establishing
Procedures and Deadlines for Filing Proofs of Certain Claims and (2) Approving
Form and Manner of Notice, signed by the Bankruptcy Court on the Petition Date,
as amended or supplemented from time to time.
1.72 "Merged Subsidiaries" shall mean those Subsidiaries of Anacomp to
be merged into Anacomp which are listed on Annex C hereto.
1.73 "Miscellaneous Secured Claim" shall mean any Allowed Claim that is
a Secured Claim other than an Old Credit Facilities Secured Claim and an Old
Senior Notes Secured Claim.
1.74 "Multicurrency Borrowers" shall mean Anacomp, Anacomp S.A., a
French corporation, Anacomp GmbH, a German corporation, Xidex GmbH, a German
corporation, Anacomp Italia SRL, an Italian corporation, Anacomp A.B., a Swedish
corporation, Anacomp Holdings, Ltd., a United Kingdom corporation, Anacomp Ltd.,
a United Kingdom corporation, and Xidex (U.K.) Ltd., a United Kingdom
corporation.
1.75 "Multicurrency Lenders" shall mean Citibank, N.A. and Lehman
Commercial Paper Inc.
1.76 "Multicurrency Revolver Loan Agreement" shall mean that certain
revolving loan agreement, dated as of March 22, 1993 among the Multicurrency
Borrowers, the Multicurrency Lenders, and The First National Bank of Chicago, as
Multicurrency Agent.
1.77 "New Carlisle Note" shall mean an unsecured note to be issued by
Reorganized Anacomp to Carlisle Companies Incorporated, which note shall
provide, among other things, that: (a) Reorganized Anacomp shall pay $800,000 to
Carlisle Companies Incorporated within thirty days of the Effective Date; (b)
upon receipt of $800,000 from Reorganized Anacomp as provided in clause (a)
above, Carlisle Companies Incorporated shall promptly convey title to
Reorganized Anacomp, on a "where is, as is" basis, to that certain Catalytic
Incineration System (model number PTSRI-6000-GOH-65-18D4, serial number
16004-1576) and that certain calender (model Kleinewefers, 7 Roll, serial number
20/7 200472) located at 1715 4th Street, Graham, Texas 76450; (c) provided that
Carlisle Companies Incorporated shall have transferred title to Reorganized
Anacomp to the items referenced in clause (b) above in the manner provided in
clause (b) above, Reorganized Anacomp shall pay $400,000 to Carlisle Companies
Incorporated not later than October 30, 1996; (d) the payment of the amounts
specified in clause (a) above and clause (c) above (unless Carlisle Companies
Incorporated shall have failed to have transferred title to Reorganized Anacomp
to the items referenced in clause (b) above in the manner provided in clause (b)
above) shall be in full satisfaction and discharge of any amounts due or claimed
to be due in connection with the Carlisle Note or the New Carlisle Note; (e) in
the event that Reorganized Anacomp shall have failed to perform any of its
payment obligations under the New Carlisle Note within thirty days after the
date such obligations shall have become due, Carlisle Companies Incorporated
shall be entitled to enforce its rights and remedies in the manner provided in
the Carlisle Note; and (f) all payments under the New Carlisle Note shall be
made by wire transfer in immediately available funds to an account designated by
Carlisle Companies Incorporated.
1.78 "New Common Stock" shall mean, collectively, the twenty million
shares of authorized new common stock of Reorganized Anacomp, par value $.01 per
share, of which ten million shares are to be issued on the Effective Date
pursuant to the Plan.
1.79 "New Indenture Trustees" shall be as designated at the
Confirmation Hearing and have the meaning set forth in the Confirmation Order.
1.80 "New LCs" shall mean such new letters of credit as may be provided
by one or more financial institutions to Reorganized Anacomp on the Effective
Date, provided that the arrangement(s) pursuant to which such letters of credit
shall be issued shall be reasonably satisfactory to the Creditors' Committee (in
the event that Class 5 shall have accepted the Plan).
1.81 "New Management Incentive Plan" shall mean a stock option plan to
be implemented by Reorganized Anacomp providing for the issuance to management
and key employees of options to purchase up to 7.5% of the New Common Stock on a
fully diluted basis.
1.82 "New Senior Secured Notes" shall mean the Senior Secured Notes to
be issued by Reorganized Anacomp pursuant to the Plan under the New Senior
Secured Notes Indenture. The principal economic terms of the New Senior Secured
Notes are set forth on Annex A hereto.
1.83 "New Senior Secured Notes Indenture" shall mean the Indenture
between Reorganized Anacomp, as issuer, and the New Senior Secured Notes
Indenture Trustee, as trustee, which indenture relates to the New Senior Secured
Notes, substantially in the form which will be Filed as Exhibit 3 to the Plan at
or prior to the Confirmation Hearing.
1.84 "New Senior Secured Notes Indenture Trustee" shall be as
designated at the Confirmation Hearing and have the meaning set forth in the
Confirmation Order.
1.85 "New Senior Secured Notes Security and Pledge Agreement" shall
mean the security and pledge agreement pursuant to which certain collateral is
pledged to secure Reorganized Anacomp's obligations under the New Senior Secured
Notes, substantially in the form as which will be Filed as Exhibit 4 to the Plan
at or prior to the Confirmation Hearing.
1.86 "New Senior Subordinated Notes" shall mean the 13% Senior
Subordinated Notes due 2002 to be issued by Reorganized Anacomp pursuant to the
Plan under the New Senior Subordinated Notes Indenture. The principal economic
terms of the New Senior Subordinated Notes are set forth on Annex B to the Plan.
1.87 "New Senior Subordinated Notes Indenture" shall mean the Indenture
between Reorganized Anacomp, as issuer, and the New Senior Subordinated Notes
Indenture Trustee, as trustee, which indenture relates to the New Senior
Subordinated Notes, substantially in the form as which will be Filed as Exhibit
5 to the Plan at or prior to the Confirmation Hearing.
1.88 "New Senior Subordinated Notes Indenture Trustee" shall be as
designated at the Confirmation Hearing and have the meaning set forth in the
Confirmation Order.
1.89 "New Warrant Agent" shall be as designated at the Confirmation
Hearing and shall have the meaning set forth in the Confirmation Order.
1.90 "New Warrant Agreement" shall mean the Warrant Agreement between
Reorganized Anacomp, as issuer, and the New Warrant Agent, as agent, which
agreement relates to the New Warrants, substantially in the form as which will
be Filed as Exhibit 6 to the Plan at or prior to the Confirmation Hearing.
1.91 "New Warrants" shall mean the freely transferable rights issued
pursuant to the New Warrant Agreement to purchase shares of the New Common Stock
which shall expire five (5) years from the Effective Date, and which shall have
an exercise price of $12.23 per share, substantially in the form as which will
be Filed as Exhibit 7 to the Plan at or prior to the Confirmation Hearing.
1.92 "Old Collateral Documents" shall mean (i) the Company Security
Agreement, dated as of October 24, 1990, between Anacomp and the Collateral
Agent; (ii) the Subsidiary Security Agreement, dated as of October 24, 1990,
among Xidex Corporation, Stromberg Datagraphix International Corp., Sun-Flex
Company, Inc., Florida A A C, Electronic Data Preparation Corporation, Kalvar,
Xidex and the Collateral Agent; (iii) the Company Pledge Agreement, dated as of
October 24, 1990, between Anacomp and the Collateral Agent; (iv) the Subsidiary
Pledge Agreement, dated as of October 24, 1990, among Xidex Corporation,
Stromberg Datagraphix International Corp., Sun-Flex Company, Inc. and the
Collateral Agent; (v) the Company Intellectual Property Security Agreement,
dated as of October 24, 1990, between Anacomp and the Collateral Agent; and (vi)
the Subsidiary Intellectual Property Security Agreement dated as of October 24,
1990, among Xidex Corporation, Sun-Flex Company, Inc. and the Collateral Agent;
each as subsequently amended prior to the Petition Date.
1.93 "Old Common Stock" shall mean the common shares, par value $.01
per share, of Anacomp issued and outstanding, or held in treasury, immediately
prior to the Effective Date.
1.94 "Old Credit Facilities" shall mean the Credit Agreement, the
Multicurrency Revolver Loan Agreement, the Revolving Loan Agreement and the Term
Loan Agreements.
1.95 "Old Credit Facilities Note" shall mean a note or other evidence
of indebtedness issued pursuant to the Old Credit Facilities.
1.96 "Old Credit Facilities Secured Claim" shall mean any Claim related
to, based upon or arising under or in connection with the Old Credit Facilities
that is a Secured Claim against property of the Debtors, the Domestic
Subsidiaries and/or the Foreign Subsidiaries or any guarantee by any Debtor of
such Claim.
1.97 "Old Indentures" shall mean, collectively, the Old Senior
Subordinated Notes Indenture, the Old 13.875% Subordinated Debentures Indenture
and the Old 9% Subordinated Debentures Indenture.
1.98 "Old Indenture Trustees" shall mean IBJ Schroder Bank & Trust
Company, United States Trust Company of New York and State Street Bank and Trust
Company, as trustees or successor trustees, as the case may be, under the Old 9%
Subordinated Debentures Indenture, the Old 13.785% Subordinated Debentures
Indenture and the Old Senior Subordinated Notes Indenture, respectively.
1.99 "Old 9% Subordinated Debentures" shall mean the 9% Convertible
Subordinated Debentures due 1996, issued by Anacomp International pursuant to
the Old 9% Subordinated Debentures Indenture.
1.100 "Old 9% Subordinated Debentures Claim" shall mean any Claim of a
Holder of Old 9% Subordinated Debentures which, for purposes of the Plan, shall
be deemed to be an amount equal to the sum of (i) the face amount, as of the
Petition Date, of Old 9% Subordinated Debentures held by such Holder and (ii) an
amount equal to 100% of the accrued and unpaid interest at the non-default
contract rate under such Old 9% Subordinated Debentures through but not
including the Petition Date.
1.101 "Old 9% Subordinated Debentures Indenture" shall mean the
Indenture between Anacomp International, as issuer, Anacomp, as guarantor, and
Chase Manhattan Bank, N.A., as trustee, dated as of January 1, 1981, which
indenture relates to the Old 9% Subordinated Debentures.
1.102 "Old 9% Subordinated Debentures Indenture Trustee" shall mean IBJ
Schroder Bank & Trust Company, or its successor, as successor trustee under the
Old 9% Subordinated Debentures Indenture.
1.103 "Old Preferred Stock" shall mean the shares of 8.25% Cumulative
Convertible Redeemable Exchangeable Preferred Stock of Anacomp issued and
outstanding, or held in treasury immediately prior to the Effective Date,
including any and all accrued but unpaid dividends.
1.104 "Old Security" or "Old Securities" shall mean the Old Senior
Notes, the Old Senior Subordinated Notes, the Old Subordinated Debentures, the
Carlisle Note, the Old Common Stock, the Old Preferred Stock and the Old
Warrants, individually or collectively, as the context may require.
1.105 "Old Senior Notes" shall mean the 12.25% Series B Senior Notes
due 1997, issued by Anacomp pursuant to the Series B Senior Note Purchase
Agreement.
1.106 "Old Senior Notes Secured Claim" shall mean any Claim related to,
based upon or arising under or in connection with the Old Senior Notes, that is
a Secured Claim against property of the Debtors, the Domestic Subsidiaries
and/or the Foreign Subsidiaries or any guarantee by a Debtor of such Claim.
1.107 "Old Senior Subordinated Notes" shall mean the 15% Senior
Subordinated Notes due 2000, issued by Anacomp pursuant to the Old Senior
Subordinated Notes Indenture.
1.108 "Old Senior Subordinated Notes Claim" shall mean any Claim of a
Holder of Old Senior Subordinated Notes which, for purposes of the Plan, shall
be deemed to be an amount equal to the sum of (i) the face amount, as of the
Petition Date, of Old Senior Subordinated Notes held by such Holder, (ii) an
amount equal to 100% of the accrued and unpaid interest at the non-default
contract rate under such Old Senior Subordinated Notes through but not including
the Petition Date and (iii) an amount equal to 100% of the interest on such
accrued and unpaid interest at the non-default contract rate under such Old
Senior Subordinated Notes through but not including the Petition Date.
1.109 "Old Senior Subordinated Notes Indenture" shall mean the
Indenture between Anacomp, as issuer, and the Old Senior Subordinated Notes
Indenture Trustee, as trustee, dated as of October 24, 1990, as amended, which
indenture relates to the Old Senior Subordinated Notes.
1.110 "Old Senior Subordinated Notes Indenture Trustee" shall mean
State Street Bank and Trust Company, or its successor, as trustee under the Old
Senior Subordinated Notes Indenture.
1.111 "Old Subordinated Debentures" shall mean the Old 9% Subordinated
Debentures and the Old 13.875% Subordinated Debentures, collectively.
1.112 "Old Subordinated Debentures Claims" shall mean the Old 9%
Subordinated Debentures Claims and the Old 13.875% Subordinated Debentures
Claims, collectively.
1.113 "Old 13.875% Subordinated Debentures" shall mean the 13.875%
Convertible Subordinated Debentures due 2002, issued by Anacomp pursuant to the
Old 13.875% Subordinated Debentures Indenture.
1.114 "Old 13.875% Subordinated Debentures Claim" shall mean any Claim
of a Holder of Old 13.875% Subordinated Debentures which, for purposes of the
Plan, shall be deemed to be an amount equal to the sum of (i) the face amount,
as of the Petition Date, of Old 13.875% Subordinated Debentures held by such
Holder and (ii) an amount equal to 100% of the accrued and unpaid interest at
the non-default contract rate under such Old 13.875% Subordinated Debentures
through but not including the Petition Date.
1.115 "Old 13.875% Subordinated Debentures Indenture" shall mean the
Indenture between Anacomp, as issuer, and American Fletcher National Bank and
Trust Company, as trustee, dated as of January 15, 1982, which indenture relates
to the Old 13.875% Subordinated Debentures.
1.116 "Old 13.875% Subordinated Debentures Indenture Trustee" shall
mean United States Trust Company of New York, as successor trustee under the Old
13.875% Subordinated Debentures Indenture.
1.117 "Old Transfer Agent" shall mean Chemical Mellon Shareholder
Services, L.L.C., as registrar and transfer agent with respect to the Old Common
Stock and the Old Preferred Stock.
1.118 "Old Warrants" shall mean the freely transferable rights to
purchase shares of Old Common Stock.
1.119 "Ordinary Course Professionals Order" shall mean that certain
Nunc Pro Tunc Order Authorizing Debtors to Employ and Compensate Professionals
for Specific Services Rendered in the Ordinary Course of Business, which was
signed by the Bankruptcy Court on January 31, 1996, as amended from time to
time.
1.120 "Petition Date" shall mean January 5, 1996, which was the date on
which the Debtors filed their voluntary petitions for relief under Chapter 11.
1.121 "Plan" shall mean this Third Amended Joint Plan of Reorganization
proposed by the Debtors, as it may hereafter be amended or modified from time to
time.
1.122 "Plan Documents" shall mean those documents identified in
Exhibits 1 through 8 which will be Filed prior to the Confirmation Hearing.
1.123 "Plan Securities" shall mean the New Carlisle Note, the New
Common Stock, the New Senior Secured Notes, the New Senior Subordinated Notes
and the New Warrants.
1.124 "Pledged Foreign Subsidiaries"" shall mean Anacomp S.A., a French
corporation, Xidex GmbH, a German corporation, Anacomp Italia SRL, an Italian
corporation, Anacomp B.V., a Dutch corporation, Anacomp GesmbH, an Austrian
corporation, Anacomp Belgium S.A., a Belgian corporation, Xidex Magnetics S.A.,
a Swiss corporation, Xidex Corp. S.A., a Swiss corporation, Anacomp Holdings,
Ltd., a United Kingdom corporation, Anacomp Canada, Inc., a Canadian
corporation, Anacomp Japan Ltd., a Japanese corporation, Anacomp PTY Ltd., an
Australian corporation, and Xidex New Zealand Ltd., a New Zealand corporation.
1.125 "Post-Petition Trade Claim" shall mean an expense or obligation
incurred by any of the Debtors arising from or with respect to the sale and
delivery of goods or the rendition of services (except for fees and
disbursements of Professionals) to any of the Debtors after the Petition Date.
1.126 "Premium Amount" shall mean an amount of Cash equal to
$2,750,000.
1.127 "Priority Claim" shall mean any Allowed Claim, to the extent
entitled to priority under Section 507(a) of the Bankruptcy Code, other than an
Administrative Claim or a Priority Tax Claim, against any Debtor.
1.128 "Priority Tax Claim" shall mean the tax Claims of governmental
units to the extent such Claims are entitled to priority under Section 507(a)(8)
of the Bankruptcy Code.
1.129 "Professional" shall mean (i) any professional retained in the
Chapter 11 Cases pursuant to an order of the Bankruptcy Court in accordance with
Section 327 or 1103 of the Bankruptcy Code (other than the Ordinary Course
Professionals Order), (ii) any attorney or accountant seeking compensation or
reimbursement of expenses pursuant to Section 503(b) of the Bankruptcy Code,
(iii) any Entity whose fees and expenses are subject to approval by the
Bankruptcy Court as reasonable pursuant to Section 1129(a)(4) of the Bankruptcy
Code, and (iv) any attorney, accountant or financial advisor for any Old
Indenture Trustee.
1.130 "Pro Rata" shall mean, with respect to an amount of consideration
to be distributed to a Creditor holding an Allowed Claim or Holder of an Allowed
Interest of a particular Class on a particular date, a proportionate share, so
that the ratio of the consideration distributed on account of an Allowed Claim
or Allowed Interest in a Class to the amount of such Allowed Claim or Allowed
Interest is the same as the ratio of the aggregate amount of the consideration
distributed on account of all Allowed Claims or Allowed Interests in such Class
to the aggregate amount of all Allowed Claims or Allowed Interests in such
Class.
1.131 "Registration Rights Agreement" shall mean, collectively, one or
more registration rights agreement(s) with respect to the New Senior Secured
Notes, the New Senior Subordinated Notes and the New Common Stock substantially
in the form(s) as which will be Filed as Exhibit 8 to the Plan at or prior to
the Confirmation Hearing.
1.132 "Rejection Claim" shall mean the Claim, if any, of parties other
than any of the Debtors to executory contracts or unexpired leases with any of
the Debtors which are rejected or deemed rejected pursuant to a Final Order.
1.133 "Releasees" shall have the meaning set forth in Section 12.1 of
this Plan.
1.134 "Reorganized Anacomp" shall mean Anacomp from and after the
Effective Date.
1.135 "Reorganized Florida A A C" shall mean Florida A A C from and
after the Effective Date.
1.136 "Revolving Loan Agreement" shall mean the revolving loan
agreement, as memorialized in the Credit Agreement, dated as of October 24,
1990, and as amended, among Anacomp, the Lending Parties and the Collateral
Agent.
1.137 "Secured Claim" shall mean any Claim which is wholly or partially
secured by a valid Lien, which has been properly perfected as required by
applicable law on property of the Debtors to the extent of the value of the
interest of the Holder of such Claim in such property of the Debtors, or that is
subject to set-off under Section 553 of the Bankruptcy Code as determined by the
Bankruptcy Court pursuant to Section 506(a) of the Bankruptcy Code.
1.138 "Series B Note Purchase Agreement" shall mean the note purchase
agreement, dated as of October 24, 1990, and as amended, between Anacomp and the
Series B Purchasers relating to the issuance of the Old Senior Notes.
1.139 "Series B Purchasers" shall mean International Nederlanden (U.S.)
Capital Corporation, KS Capital Partners, Lehman Commercial Paper Inc., Morgens,
Waterfall Vintiades & Company, Inc., Murray Capital Management, Inc., Polly &
Co., Presidential Life Insurance Company, Pearl Street L.P., Salked & Co., and
Whippoorwill Associates, Inc.
1.140 "Shelf Registration Statement" shall mean, collectively, one or
more "shelf" registration statements filed by Reorganized Anacomp on any
appropriate form(s) pursuant to the Securities Act of 1933, as amended, and/or
any similar rule that may be adopted by the Securities and Exchange Commission,
in accordance with Section 6.5 hereof.
1.141 "Subsidiaries" shall mean the Domestic Subsidiaries and the
Foreign Subsidiaries, collectively.
1.142 "Term Loan Agreements" shall mean the term loan agreements, as
memorialized in the Credit Agreement, dated as of October 24, 1990, and as
amended, among Anacomp, the Lending Parties and the Collateral Agent.
1.143 "Trade Claim" shall mean any unsecured Claim arising from or with
respect to (i) the sale and delivery of goods or the rendition of services to
the Debtors prior to the Petition Date and (ii) all other obligations incurred
in the ordinary course of business by the Debtors in the conduct and operation
of their business prior to the Petition Date.
1.144 "Treasury Rate" shall mean the "underpayment rate" (as defined in
Section 6612(a)(2) of the Internal Revenue Code of 1986, as amended) on the
Business Day immediately preceding the Confirmation Date, which rate is the rate
of interest charged by the Internal Revenue Service on delinquent federal income
taxes.
1.145 "Unimpaired Claim" shall mean a Claim in a Class identified in
Section 3.2 of the Plan as unimpaired under the Plan.
1.146 "Unimpaired Excepted Claim" shall mean an Unimpaired Claim, other
than a Rejection Claim, with respect to which the Holder of such Claim is not
required to File a proof of Claim pursuant to the terms of the Limited Bar Date
Order.
1.147 "Unimpaired Non-Excepted Claim" shall mean an Unimpaired Claim,
other than a Rejection Claim, with respect to which the Holder of such Claim is
required to File a proof of Claim pursuant to the terms of the Limited Bar Date
Order.
1.148 "Unofficial Senior Subordinated Committee" shall mean an
unofficial committee of the Holders of the Old Senior Subordinated Notes.
1.149 "Xidex" shall mean Xidex Development Company, a California
corporation, prior to the Petition Date and as debtor and debtor-in-possession
in the Chapter 11 Cases.
Rules of Construction
1.150 Interpretation and Rules of Construction. Unless otherwise
specified, all section, article, schedule, annex and exhibit references in the
Plan are to the respective Section in, article of, annex to or schedule or
exhibit to, the Plan, as the same may be amended, waived, or modified from time
to time in accordance with the provisions hereof. The rules of construction
contained in Section 102 of the Bankruptcy Code shall apply to the construction
of the Plan (excluding the Plan Documents, unless made applicable thereto
pursuant to an express provision thereof).
1.151 Other Terms. The words "herein" "hereof," "hereto," "hereunder,"
and others of similar import refer to the Plan as a whole and not to any
particular section, subsection, or clause contained in the Plan. Each
capitalized term used herein that is not defined herein shall have the meaning
ascribed to that term, if any, in the Bankruptcy Code or the Bankruptcy Rules.
1.152 Headings. Headings are used in the Plan for convenience of
reference only and shall not constitute a part of the Plan for any other
purpose. Headings shall not limit or otherwise affect the provisions of the
Plan.
1.153 Incorporation of Exhibits. All exhibits referred to in this Plan
are deemed incorporated into, and made a part of this Plan, whether Filed
contemporaneously herewith or hereafter.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
2.1 Pre-Petition Claims and Equity Interests Classified. All Claims and
all Interests are classified as set forth in Article II, Section 2.3. hereof. A
Claim or Interest is classified in a particular Class only to the extent that
the Claim or Interest qualifies within the description of that Class, and is
classified in another Class or Classes to the extent that any remainder of the
Claim or Interest qualifies within the description of such other Class or
Classes. A Claim or Interest is classified in a particular Class only to the
extent that the Claim or Interest is an Allowed Claim or Allowed Interest in
that Class and has not been paid, released or otherwise satisfied before the
Effective Date. A Claim or Interest which is not an Allowed Claim or Interest is
not in any Class and, notwithstanding anything to the contrary contained in the
Plan, no distribution shall be made on account of any Claim or Interest which is
not an Allowed Claim or Allowed Interest. Holders of Claims or Interests shall
be entitled to vote in, and receive distributions from, a particular Class only
to the extent the Allowed Claim or Allowed Interest is within such Class.
2.2 Administrative Claims and Priority Tax Claims. As provided in
Section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority
Tax Claims against the Debtors shall not be classified for purposes of voting on
or receiving distributions under the Plan. All such Claims shall be treated
separately as unclassified Claims on the terms set forth in Article IV of the
Plan.
2.3 Claims Against and Interests in the Debtors. All Claims against,
and Interests in, any Debtor are classified as follows:
(a) Class 1 Claims. Class 1 consists of all Priority Claims.
(b) Class 2 Claims. Class 2 consists of all Old Credit
Facilities Secured Claims and all Old
Senior Notes Secured Claims.
(c) Class 3 Claims. Class 3 consists of all Miscellaneous Secured
Claims.
(d) Class 4 Claims. Class 4 consists of all Carlisle Note Claims.
(e) Class 5 Claims. Class 5 consists of all Old Senior
Subordinated Notes Claims.
(f) Class 6 Claims. Class 6 consists of all Old Subordinated
Debentures Claims.
(g) Class 7 Claims. Class 7 consists of all General Unsecured
Claims.
(h) Class 8 Interests. Class 8 consists of all Interests of Holders
of Old Preferred Stock.
(i) Class 9 Interests. Class 9 consists of all Interests of Holders
of Old Common Stock.
(j) Class 10 Claims for Issuance of Old Common Stock. Class
10 consists of all Employee Options and all other
options or rights to acquire Old Common Stock,
including, without limitation, all claims arising out
of the rejection of Employee Options and other options
to acquire Old Common Stock, to the extent they
constitute executory contracts, and any Claim that has
the same priority as the Old Common Stock pursuant to
Section 510(b) of the Bankruptcy Code, including,
without limitation, any Claim for the issuance of Old
Common Stock in connection with an acquisition or
otherwise.
(k) Class 11 Claims. Class 11 consists of all Intercompany Claims.
(l) Class 12 Claims. Class 12 consists of all Claims of the
United States Customs Service.
ARTICLE III
IDENTIFICATION OF IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS
3.1 Impaired Classes of Claims. With the exception of the Classes
specified in Section 3.2 of the Plan, all Classes of Claims and Interests are
impaired under the Plan.
3.2 Unimpaired Classes of Claims and Equity Interests. Class 1 Claims,
Class 3 Claims, Class 7 Claims and Class 11 Claims are not impaired under the
Plan.
3.3 Impairment Controversies. If a controversy arises as to whether any
Claim or Interest, or any Class of Claims or Class of Interests, is impaired
under the Plan, the Bankruptcy Court shall, after notice and a hearing, resolve
such controversy.
ARTICLE IV
TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS
4.1 Fees of Professionals and Claims for Substantial Contribution. All
Professionals retained by any Debtor and any other Entities (other than any
Professionals retained by any Old Indenture Trustee, which Professionals shall
be paid in accordance with Section 6.3 of the Plan) requesting compensation or
reimbursement of expenses pursuant to Sections 327, 328, 330, 331, or 503(b) of
the Bankruptcy Code for services rendered before the Confirmation Date
(including, without limitation, any compensation requested by any Professional
or any other Entity for making a substantial contribution in the Chapter 11
Cases) shall File and serve on Reorganized Anacomp, the Creditors' Committee and
the United States Trustee an application for final allowance of compensation and
reimbursement of expenses no later than forty-five (45) days after the
Confirmation Date. Objections to applications of Professionals for compensation
or reimbursement of expenses must be Filed and served on Reorganized Anacomp,
the United States Trustee, the Creditors' Committee and the Professionals to
whose fee application the objections are addressed as provided in the
Confirmation Order.
4.2 Ordinary Course Liabilities. Holders of Administrative Claims based
on liabilities incurred in the ordinary course of the Debtors' business shall
not be required to File any request for payment of such Claims. Such
Administrative Claims shall be assumed and paid by Reorganized Anacomp pursuant
to the terms and conditions of the particular transactions giving rise to such
Administrative Claims without any further action by the Holders of such Claims
or the need for Bankruptcy Court approval.
4.3 Priority Tax Claims. Unless otherwise agreed between the Holder of
a Priority Tax Claim and any Debtor or Reorganized Anacomp, in accordance with
Section 1129(a)(9)(C) of the Bankruptcy Code, each Holder of an Allowed Priority
Tax Claim shall receive, at such Debtor's or Reorganized Anacomp's option, as
the case may be, either (i) Cash, in the full amount of such Allowed Priority
Tax Claim, on the Effective Date or (ii) deferred payments of Cash in the full
amount of such Allowed Priority Tax Claim, payable in equal annual principal
installments beginning the first anniversary of the Effective Date and ending on
the earlier of the sixth anniversary of the Effective Date or the sixth
anniversary of the date of the assessment of such Claim, together with interest
(payable quarterly in arrears) on the unpaid balance of such Allowed Priority
Tax Claim at an annual rate equal to the Treasury Rate or such other rate as may
be set by the Bankruptcy Court at the Confirmation Hearing. The amount of any
Allowed Priority Tax Claim for which the time for filing a return, if required,
under applicable law or under any authorized extension thereof, has not expired
on or prior to the Effective Date, and the rights of the Holder of such Claim,
if any, to payment in respect thereof shall (i) be determined in the manner in
which the amount of such Claim and the rights of the Holder of such Claim would
have been resolved or adjudicated if the Chapter 11 Cases had not been
commenced, (ii) survive the Effective Date and consummation of the Plan as if
the Chapter 11 Cases had not been commenced, and (iii) not be discharged
pursuant to Section 1141 of the Bankruptcy Code.
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
5.1 Class 1. Priority Claims. Class 1 Claims are unimpaired. At
Reorganized Anacomp's option, each Holder of an Allowed Priority Claim shall be
entitled to receive, in full satisfaction of such Claim, the Allowed amount of
such Claim in full in Cash on the later of (i) the Effective Date, (ii) the date
that such Claim becomes an Allowed Priority Claim and (iii) the date that such
Claim would be paid in accordance with any terms and conditions of any
agreements or understandings relating thereto between any Debtor and the Holder
of such Claim. To the extent payment is not made on the Effective Date, the
Allowed Class 1 Claims shall include interest at the interest rate provided in
the agreement, if any, between the Creditor and any Debtor, or if no interest
rate is provided, at the Treasury Rate from the later of: (i) the Effective
Date; or (ii) the date on which payment was first due to the date of payment.
5.2 Class 2. Old Credit Facilities Secured Claims and Old Senior Notes
Secured Claims. Allowed Class 2 Claims are impaired. On the Effective Date, the
aggregate amount of the Claims in Class 2 will be deemed to be an Allowed Claim
of $122,804,648.
(a) On the Effective Date, each Holder of an Allowed Class 2 Claim, as
of the Distribution Record Date, shall receive, in full satisfaction of its
Allowed Class 2 Claim, its Pro Rata share of: (i) the Premium Amount, (ii) the
Cash Sweep Amount and (iii) the New Senior Secured Notes. The principal amount
of the New Senior Secured Notes shall be an amount equal to $120,054,648 minus
the Cash Sweep Amount. Except as otherwise provided in the New Senior Secured
Notes Security and Pledge Agreement, the Holders of Allowed Class 2 Claims shall
retain the Liens securing such Claims. The principal economic terms of the New
Senior Secured Notes are set forth on Annex A hereto.
(b) On the Effective Date, the theretofore unpaid fees, costs and
other expenses of the Holders of the Old Credit Facilities Secured Claims and
the Holders of the Old Senior Notes Secured Claims will be paid in accordance
with Section 6.2.11 hereof, and the Citibank Agency Amount will be paid to
Citibank, N.A.
(c) On the Effective Date, all then existing undrawn letters of credit
under the Old Credit Facilities shall be, at Reorganized Anacomp's option: (i)
Cash collateralized by the Letter of Credit Cash Amount or (ii) replaced by the
New LCs. Unless all undrawn letters of credit issued pursuant to the Credit
Agreement are replaced by the New LCs prior to the Effective Date, any and all
Claims relating to such letters of credit shall survive after the Effective
Date, shall not be discharged or released under this Plan or the Confirmation
Order and, other than the pledge by Reorganized Anacomp of the Letter of Credit
Cash Amount, shall be unaffected by the Plan.
(d) On the Effective Date, the Cash Collateral Amount shall be paid to
the Holders of the Allowed Class 2 Claims in the manner provided with respect to
the payment of interest in Paragraph 4(d) of the Cash Collateral Order.
5.3 Class 3. Miscellaneous Secured Claims. Class 3 Claims are
unimpaired. At Reorganized Anacomp's option, on the Effective Date, each Holder
of an Allowed Miscellaneous Secured Claim shall either (i) retain unaltered the
legal, equitable and contractual rights to which such Allowed Miscellaneous
Secured Claim entitles the Holder thereof or (ii) be treated in accordance with
Section 1124(2) of the Bankruptcy Code.
5.4 Class 4. Carlisle Note Claim. The Class 4 Claim is impaired. On the
Effective Date, the amount of the Claim in Class 4 will be deemed to be an
Allowed Claim of $2,615,760, and the Holder of the Allowed Class 4 Claim shall
receive, in full satisfaction of its Allowed Class 4 Claim, a New Carlisle Note.
5.5 Class 5. Old Senior Subordinated Notes Claims. Class 5 Claims are
impaired. On the Effective Date, the aggregate amount of the Claims in Class 5
will be deemed to be an Allowed Claim of $267,672,398, and each Holder of an
Allowed Class 5 Claim, as of the Distribution Record Date, shall receive, in
full satisfaction of its Allowed Class 5 Claim, its Pro Rata share of: (i) the
New Senior Subordinated Notes, (ii) nine million two hundred fifty thousand
(9,250,000) shares of the New Common Stock and (iii) any consideration payable
to the Holders of Allowed Class 5 Claims pursuant to Sections 5.6(b), 5.8(b)
and/or 5.9(b) of the Plan. The principal economic terms of the New Senior
Subordinated Notes are set forth on Annex B hereto.
5.6 Class 6. Old Subordinated Debentures Claims. Class 6 Claims are
impaired. On the Effective Date, the aggregate amount of the Claims in Class 6
will be deemed to be an Allowed Claim of $37,776,286.09, of which amount
$11,395,912.50 is the aggregate amount of the Allowed Old 9% Subordinated
Debentures Claims and $26,380,373.59 is the aggregate amount of the Allowed Old
13.875% Subordinated Debentures Claims.
(a) If Class 6 accepts the Plan, each Holder of an Allowed Class 6
Claim as of the Distribution Record Date shall receive on the Effective Date, in
full satisfaction of its Allowed Class 6 Claim, its Pro Rata share of: (i) seven
hundred fifty thousand (750,000) shares of the New Common Stock, (ii) two
hundred fifty-nine thousand sixty-eight (259,068) New Warrants and (iii) any
consideration payable to the Holders of Allowed Class 6 Claims pursuant to
Sections 5.8(b) and/or 5.9(b) of the Plan.
(b) If Class 6 rejects the Plan, the Holders of Old Subordinated
Debentures shall not receive or retain any property on account of their Old
Subordinated Debentures Claims, and all consideration payable to Class 6
pursuant to subparagraph (a) of this Section 5.6 shall be distributed instead
Pro Rata to the Holders of Allowed Class 5 Claims.
5.7 Class 7. General Unsecured Claims. Class 7 Claims are unimpaired.
To the extent any Allowed General Unsecured Claim (including, without
limitation, Trade Claims) has not been paid or satisfied by performance in full
prior to the Effective Date, Reorganized Anacomp (i) shall pay, on the Effective
Date, if such Allowed General Unsecured Claim is then matured, the Holder of
such Allowed General Unsecured Claim in full in Cash or shall satisfy such
Allowed General Unsecured Claim by performance when such payment or performance
is due, (ii) shall pay or satisfy such Allowed General Unsecured Claim by
performance, in accordance with its respective terms, if such Allowed General
Unsecured Claim is not matured prior to the Effective Date, (iii) shall pay or
satisfy such Allowed General Unsecured Claim as otherwise agreed by the Holder
of the Allowed General Unsecured Claim and Reorganized Anacomp, or (iv) provide
such other treatment as will render such Allowed General Unsecured Claim
unimpaired in accordance with Section 1124(2) of the Bankruptcy Code, provided
that Reorganized Anacomp shall pay any General Unsecured Claim which is subject
to approval by the Bankruptcy Court as reasonable pursuant to Section 1129(a)(4)
of the Bankruptcy Code upon entry of a Final Order of the Bankruptcy Court
allowing such General Unsecured Claim and approving such General Unsecured Claim
as reasonable.
5.8 Class 8. Old Preferred Stock. Class 8 Interests are impaired.
(a) If both Class 6 and Class 8 accept the Plan, each Holder of an
Allowed Class 8 Interest as of the Distribution Record Date shall receive on the
Effective Date, in full satisfaction of its Allowed Interest, its Pro Rata share
of sixty-two thousand one hundred seventy-six (62,176) New Warrants.
(b) If either Class 6 or Class 8 rejects the Plan, the Holders of
Class 8 Interests shall not receive or retain any property on account of their
Class 8 Interests, and all consideration payable to Class 8 pursuant to
subparagraph (a) of this Section 5.8 shall be distributed instead Pro Rata to
the Holders of Allowed Class 6 Claims if Class 6 has accepted the Plan, or Pro
Rata to the Holders of Allowed Class 5 Claims if Class 6 has rejected the Plan.
5.9 Class 9. Old Common Stock. Class 9 Interests are impaired.
(a) If both Class 6 and Class 8 accept the Plan, each Holder of an
Allowed Class 9 Interest as of the Distribution Record Date shall receive on the
Effective Date, in full satisfaction of its Allowed Interest, its Pro Rata share
of forty-one thousand four hundred fifty (41,450) New Warrants.
(b) If either Class 6 or Class 8 rejects the Plan, Holders of Class 9
Interests shall not receive or retain any property on account of their Class 9
Interests, and all consideration payable to Class 9 pursuant to subparagraph (a)
of this Section 5.9 shall be distributed instead Pro Rata to the Holders of
Allowed Class 6 Claims if Class 6 has accepted the Plan but Class 8 has rejected
the Plan, or Pro Rata to the Holders of Allowed Class 5 Claims if both Class 6
and Class 8 have rejected the Plan.
5.10 Class 10. Claims for Issuance of Old Common Stock. Class 10
Interests are impaired. The Holders of Class 10 Interests shall not receive or
retain any property under the Plan. All Employee Options and all other options
or rights to acquire the Old Common Stock shall be canceled, annulled and
extinguished on the Effective Date.
5.11 Class 11. Intercompany Claims. Class 11 Claims are unimpaired.
Except as provided in Section 6.1.5 hereof, at Reorganized Anacomp's option,
each Holder of an Allowed Class 11 Claim shall either (i) retain unaltered the
legal, equitable and contractual rights to which such Allowed Class 11 Claim
entitles the Holder thereof or (ii) be treated in accordance with Section
1124(2) of the Bankruptcy Code.
5.12 Allocation Between Principal and Accrued Interest. The aggregate
consideration paid to Holders in respect of their Allowed Claims shall be
treated under this Plan as allocated first to the principal amount of such
Allowed Claim to the extent thereof and, thereafter, to the interest accrued
thereon through the Effective Date; provided, however, that this Section 5.12
shall have no application to the Allowed Claims, if any, of the United States
Customs Service.
5.12(a) Class 12. United States Customs Service Claims. Class 12 Claims
are impaired. Each Holder of an Allowed Class 12 Claim shall receive on account
of such Allowed Claim payment of the full amount of such Allowed Claim together
with interest thereon from the Effective Date to the date of payment thereof at
the rate determined by the Secretary of the Treasury pursuant to 19 U.S.C.
Section 1505(c).
ARTICLE VI
MEANS FOR EXECUTION OF THE PLAN
6.1 General Corporate Matters. Reorganized Anacomp shall take such
action as is necessary under the laws of the State of Indiana, federal law and
other applicable law to effect the terms and provisions of the Plan. As of the
Effective Date, Anacomp International shall be liquidated and Reorganized
Anacomp shall take such action as is necessary under the laws of the Netherlands
Antilles, N.V. and other applicable law to dissolve Anacomp International after
the Effective Date. As of the Effective Date, Anacomp and the Merged
Subsidiaries shall be deemed to have been merged into and become a part of
Reorganized Anacomp. Reorganized Anacomp shall cause the appropriate
certificates of merger to be filed in the appropriate jurisdictions.
6.1.1 Cancellation of Old Securities, Instruments and Agreements
Relating to Impaired Claims and Interests. On the Effective Date, except as
otherwise provided in the Plan, all securities, instruments and agreements
governing any Claims and Interests impaired hereby shall be deemed canceled and
terminated, and the obligations of the Debtors relating to, arising under, in
respect of or in connection with such securities, instruments and agreements
shall be discharged; provided, however, that except as otherwise provided
herein, notes and other evidences of Claims and Interests shall, effective upon
the Effective Date, represent the right to participate, to the extent such
Claims and Interests are Allowed, in the distributions contemplated by the Plan.
6.1.2 Effectiveness of Securities, Instruments and Agreements. On the
Effective Date, all securities, instruments and agreements issued or entered
into pursuant to the Plan, including, without limitation, (i) the Plan
Securities, (ii) the New Senior Secured Notes Indenture, (iii) the New Senior
Subordinated Notes Indenture, (iv) the New Senior Secured Notes Security and
Pledge Agreement, (v) the New LCs, (vi) the New Warrant Agreement, (vii) the
Registration Rights Agreement and (viii) any security, instrument or agreement
issued or entered into in connection with any of the foregoing, shall become
effective and binding in accordance with their respective terms and conditions
upon the parties thereto and shall be deemed to become effective simultaneously.
After the Effective Date and upon approval by the board of directors of
Reorganized Anacomp, the New Management Incentive Plan shall become effective
and binding in accordance with its terms and conditions upon the parties
thereto, without any requirement of further action by stockholders of
Reorganized Anacomp.
6.1.3 Corporate Action. As of the Effective Date, Reorganized Anacomp
shall be deemed to have adopted the Amended Anacomp Articles and the Amended
Anacomp By-laws which shall thereupon become effective. The Amended Anacomp
Articles shall, among other things, contain appropriate provisions consistent
with the Plan and other Plan Documents (i) governing the authorization of the
New Common Stock, (ii) prohibiting the issuance of nonvoting equity securities
as required by Section 1123(a)(6) of the Bankruptcy Code, and (iii) implementing
such other matters as Reorganized Anacomp believes are necessary and appropriate
to effectuate the terms and conditions of the Plan. Except as otherwise
specifically provided in the Plan or in the Confirmation Order, the
implementation of the mergers contemplated hereby, the adoption of the Amended
Anacomp Articles and the Amended Anacomp By-laws, the selection of directors and
officers of Reorganized Anacomp, the distribution of Cash, the issuance and
distribution of the Plan Securities and the adoption, execution and delivery of
all contracts, instruments, indentures, modifications and other agreements
related to any of the foregoing, and other matters provided for under the Plan
involving corporate action to be taken by or required of Reorganized Anacomp
shall be deemed to have occurred and be effective on the Effective Date as
provided herein, and shall be authorized and approved in all respects without
any requirement of further action by stockholders, officers or directors of
Reorganized Anacomp. To the extent required by law, the board of directors of
Reorganized Anacomp shall take such action as may be necessary from time to time
to approve the issuance of the Plan Securities and such other action, if any, as
may be required to meet the requirements of the Plan or any of the Plan
Securities issued thereto.
6.1.4 Management and Board of Directors. The board of directors of
Reorganized Anacomp shall be comprised of the following individuals: P. Lang
Lowrey III, Talton R. Embry, Jay P. Gilbertson, Darius W. Gaskins, Jr., Richard
D. Jackson, George A. Poole, Jr. and Lewis Solomon. Except as otherwise provided
herein or in any Plan Document, the members of the existing board of directors
of Anacomp shall have no continuing obligations to any of the Debtors,
Reorganized Anacomp or Reorganized Florida A A C on and after the Effective
Date. On the Effective Date, the executive officers of Reorganized Anacomp shall
be the same individuals serving in the same capacities as of the Business Day
immediately preceding the Effective Date.
6.1.5 Substantive Consolidation. The Plan contemplates the substantive
consolidation of the Chapter 11 Cases of the Debtors into a single proceeding
with respect to confirmation, consummation and implementation of the Plan.
Pursuant to the Confirmation Order, on the Confirmation Date: (i) all assets,
and all proceeds thereof, and all liabilities of the Consolidated Debtors will
be merged or treated as though they were merged with and into the assets and
liabilities of Reorganized Anacomp; (ii) all Consolidated Claims and Claims
among the Consolidated Debtors and the Merged Subsidiaries will be eliminated;
(iii) any obligation of any Consolidated Debtor, and all guarantees thereof
executed by one or more of the Consolidated Debtors, and any Claims filed or to
be filed in connection with any such obligation and guarantee will be deemed one
Claim against Reorganized Anacomp; (iv) each and every Claim filed in the
individual Chapter 11 Case of any of the Consolidated Debtors will be deemed
filed against Reorganized Anacomp; and (v) for purposes of determining the
availability of the right of set-off under Section 553 of the Bankruptcy Code,
the Consolidated Debtors shall be treated for purposes of the Plan as one entity
so that, subject to the other provisions of Section 553 of the Bankruptcy Code,
debts due to any of the Consolidated Debtors may be setoff against the debts of
any of the Consolidated Debtors.
6.1.6 Extinguishment of Guarantees. Except as otherwise provided in the
Plan or in any Plan Document, on the Effective Date, (i) all Claims based upon
guarantees of collection, payment or performance made by any of the Debtors as
to the obligations of each other, including, without limitation, the Anacomp
Debentures Guarantee, and (ii) all Claims arising under the Anacomp Guarantee,
shall be discharged, released and of no further force and effect.
6.1.7 Continued Corporate Existence and Vesting of Assets in
Reorganized Anacomp. Anacomp shall continue to exist on and after the Effective
Date as Reorganized Anacomp, a duly organized Indiana corporation, with all the
rights and powers of a corporation under applicable law and without prejudice to
any right to alter or terminate such existence (whether by merger or otherwise)
under Indiana law, subject to the terms and provisions of this Plan and the
Confirmation Order. Except as otherwise provided in the Plan, on or after the
Effective Date, all property of the Consolidated Estates, and any property and
assets acquired by Anacomp or Reorganized Anacomp under any provisions of the
Plan, shall vest in Reorganized Anacomp, free and clear of any and all Claims,
Liens, charges and other Encumbrances. On and after the Effective Date,
Reorganized Anacomp may operate its business and may use, acquire and dispose of
property or assets and compromise or settle any claims against it without
supervision or approval by the Bankruptcy Court and free of any restrictions of
the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Plan or the Confirmation Order. Without limiting the foregoing,
Reorganized Anacomp may pay the charges that it incurs on or after the Effective
Date for Professional fees, disbursements, expenses or related support services
without application to the Bankruptcy Court.
6.1.8 Continued Corporate Existence and Vesting of Assets in
Reorganized Florida A A C. Florida A A C shall continue to exist on and after
the Effective Date as Reorganized Florida A A C with all the rights and powers
of a corporation under applicable law and without prejudice to any right to
alter or terminate such existence (whether by merger or otherwise) under Florida
law, subject to the terms and provisions of this Plan and the Confirmation
Order. On and after the Effective Date, Reorganized Florida A A C may operate
its business and may use, acquire and dispose of property or assets and
compromise or settle any claims against it without supervision or approval by
the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or
the Confirmation Order. Without limiting the foregoing, Reorganized Florida A A
C may pay the charges that it incurs on or after the Effective Date for
Professional fees, disbursements, expenses or related support services without
application to the Bankruptcy Court.
6.2 Distributions.
6.2.1 Generally. Except as otherwise provided in the Plan, any
distribution required by the Plan to be made on the Effective Date in respect of
a Claim or Interest that is Allowed as of the Effective Date will be deemed made
on the Effective Date if made on the Effective Date or as promptly thereafter as
practicable, but in any event no later than the later to occur of: (i) 45 days
after the Effective Date or (ii) the date on which such Claim or Interest
becomes Allowed and any other conditions to distribution with respect to such
Claim or Interest shall have been satisfied.
6.2.2 Distributions to Holders of Allowed Old Credit Facilities Secured
Claims. All distributions provided for in the Plan on account of Allowed Old
Credit Facilities Secured Claims will be made by the Disbursing Agent to the
Collateral Agent for further distribution to individual Holders of such Claims.
Within five days after the Distribution Record Date, The First National Bank of
Chicago, as agent under the Multicurrency Revolver Loan Agreement, shall provide
the information necessary to calculate such distribution with respect to the
Multicurrency Revolver Loan Agreement in writing to the Disbursing Agent, and
within eight days after the Distribution Record Date, the Collateral Agent shall
provide such information received from The First National Bank of Chicago,
together with the information necessary to calculate such distribution with
respect to the other Old Credit Facilities, in writing to the Disbursing Agent.
Notwithstanding any provision in the Plan to the contrary, the Old Credit
Facilities and the Old Collateral Documents will continue in effect to the
extent necessary to allow the Collateral Agent to receive and make distributions
pursuant to the Plan, and the Collateral Agent will remain entitled to any
limitation of liability, exculpation or indemnification provisions between or
among the Holders of Allowed Old Credit Facilities Secured Claims under the Old
Credit Facilities and the Old Collateral Documents.
6.2.3 Distributions to Holders of Allowed Debt Security Claims. All
distributions provided for in the Plan on account of Allowed Debt Security
Claims will be made, at the option of Reorganized Anacomp, to the respective Old
Indenture Trustees or the Disbursing Agent for further distribution to
individual Holders of Allowed Debt Security Claims. Any such distribution made
by an Old Indenture Trustee will be made pursuant to the applicable Old
Indenture or other disbursing agent agreement entered into by Reorganized
Anacomp and the applicable Old Indenture Trustee. Notwithstanding any provision
in the Plan to the contrary, the Old Indentures will continue in effect to the
extent necessary to allow the Old Indenture Trustees to receive and make
distributions pursuant to the Plan on account of Allowed Debt Security Claims.
Any actions taken by any Old Indenture Trustee on or after the Effective Date
that are not for this purpose will be null and void as against the Debtors and
Reorganized Anacomp, and Reorganized Anacomp will have no obligations to any Old
Indenture Trustee for any fees, costs or expenses incurred in connection with
any such actions.
6.2.4 Distributions to Holders of Other Claims and Interests. The
Disbursing Agent will make all distributions required under the Plan, except for
distributions made by the Collateral Agent or the Old Indenture Trustees. The
Disbursing Agent will serve without bond, and may employ or contract with other
Entities to assist in or make the distributions required by the Plan.
6.2.5 Compensation for Services Related to Distribution. In
consideration for providing services related to distributions pursuant to the
Plan, the Collateral Agent, the Old Indenture Trustees and the Disbursing Agent,
as the case may be, will receive from Reorganized Anacomp, without further
Bankruptcy Court approval, reasonable compensation for such services and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services. These payments will be made on terms agreed to with Reorganized
Anacomp, and will not be deducted from distributions to be made pursuant to the
Plan to Holders of Allowed Claims and Allowed Interests.
6.2.6 Delivery of Distributions and Undeliverable or Unclaimed
Distributions.
(a) Distributions to Holders of Allowed Claims and Holders of Allowed
Interests will be made as follows: (a) with respect to Allowed Old Credit
Facilities Secured Claims, by the Collateral Agent, (b) with respect to Allowed
Debt Security Claims other than Allowed Old 9% Subordinated Debentures Claims,
if made by an Old Indenture Trustee, in accordance with the applicable Old
Indenture and, if made by the Disbursing Agent, at the addresses supplied in the
letter of transmittal provided by or on behalf of the Holders of such Claims in
accordance with Section 6.2.10(b) hereof; (c) with respect to Old 9%
Subordinated Debentures Claims, Anacomp will publish notice of the availability
of the distribution under the Plan in the manner provided in Section 1105 of the
Old 9% Subordinated Debentures Indenture and distributions will be made by the
Disbursing Agent upon presentation of a letter of transmittal and original
certificate to Cedel, Euroclear or the Disbursing Agent, (d) with respect to all
other Allowed Claims, by the Disbursing Agent (i) at the addresses set forth on
the respective proofs of Claim Filed by Holders of such Claims; (ii) at the
addresses set forth in any written notices of address change delivered to the
Disbursing Agent after the Limited Bar Date; or (iii) at the addresses reflected
in the applicable Debtor's records if no proof of Claim has been Filed and the
Disbursing Agent has not received a written notice of a change of address, (e)
with respect to Allowed Class 8 Interests and Allowed Class 9 Interests, by the
Disbursing Agent (i) at the addresses supplied by the Old Transfer Agent, (ii)
at the addresses set forth on the respective proofs of Interests Filed by
Holders of such Interests; (iii) at the addresses set forth in any written
notices of address change delivered to the Disbursing Agent, or (iv) at the
addresses reflected in the applicable Debtor's records if no proof of Interest
has been Filed and the Disbursing Agent has not received a written notice of a
change of address.
(b) If any Allowed Claim Holder's or Allowed Interest Holder's
distribution is returned to the Disbursing Agent as undeliverable, no further
distributions will be made to such Holders unless and until the Disbursing Agent
is notified in writing of such Holder's then-current address. Undeliverable
distributions will remain in the possession of the Disbursing Agent until such
time as a distribution becomes deliverable. Undeliverable Cash (including
dividends or other distributions on account of undeliverable New Common Stock)
will be held in segregated bank accounts in the name of the Disbursing Agent for
the benefit of the potential claimants of such funds. Undeliverable Cash will be
invested by the Disbursing Agent in a manner consistent with Reorganized
Anacomp's investment and deposit guidelines. Undeliverable Plan Securities will
be held by the Disbursing Agent for the benefit of the potential claimants of
such securities.
(c) Pending the distribution of the New Common Stock, the Disbursing
Agent will cause all of the New Common Stock held by it in its capacity as
Disbursing Agent to be: (i) represented in person or by proxy at each meeting of
the stockholders of Reorganized Anacomp; and (ii) voted proportionately with the
votes cast by the other stockholders of Reorganized Anacomp, taken as a whole.
(d) Any Holder of an Allowed Claim or an Allowed Interest that does
not assert a claim pursuant to the Plan for an undeliverable distribution to be
made by the Disbursing Agent, the Collateral Agent or the Old Indenture
Trustees, as the case may be, within two years after the Effective Date will
have its claim for such undeliverable distribution discharged and will be
forever barred from asserting any such claim against the Debtors, Reorganized
Anacomp or their property. In such cases: (i) any Cash held for distribution on
account of such claims for undeliverable distributions (including Cash interest,
maturities, dividends and other distributions on undelivered Plan Securities, as
the case may be) shall be property of Reorganized Anacomp, free of any
restrictions thereon (except as otherwise provided in any Plan Document); (ii)
any New Senior Secured Notes and New Senior Subordinated Notes held for
distribution on account of such claims for distributions shall be canceled and
of no further force or effect; (iii) any New Common Stock held for distribution
on account of such claims for distributions shall either be canceled or held as
treasury shares as Reorganized Anacomp may determine is appropriate; and (iv)
any New Warrants held for distribution on account of such claims for
distributions shall be canceled.
(e) If an Old Indenture Trustee or the Disbursing Agent, as
applicable, determines that an individual Holder of an Allowed Debt Security
Claim is no longer entitled to a distribution pursuant to the applicable Old
Indenture, the Plan, the Confirmation Order or applicable foreign law with
respect to the Old 9% Subordinated Debentures Claims, such individual Holder's
claim for such distribution will be discharged, and such individual Holder will
be forever barred from asserting any such claim for a distribution against the
Debtors, Reorganized Anacomp or their respective property. In such cases: (i)
any Cash held for distribution on account of such claims for undeliverable
distributions (including Cash interest, maturities, dividends and other
distributions on undelivered Plan Securities, as the case may be) shall be
property of Reorganized Anacomp, free of any restrictions thereon (except as
otherwise provided in any Plan Document); (ii) any New Senior Subordinated Notes
held for distribution on account of such claims for distributions shall be
canceled and of no further force or effect; (iii) any New Common Stock held for
distribution on account of such claims for distributions shall either be
canceled or held as treasury shares as Reorganized Anacomp may determine is
appropriate; and (iv) any New Warrants held for distribution on account of such
claims for distributions shall be canceled.
6.2.7 Distribution Record Date.
(a) The Collateral Agent will have no obligation to recognize the
transfer of, or the sale of, any participation in any Allowed Old Credit
Facilities Secured Claim occurring after the close of business on the
Distribution Record Date, and will be entitled for all purposes herein to
recognize and distribute only to those Holders of Allowed Old Credit Facilities
Secured Claims who are Holders of such Claims, or participants therein, as
certified by such Holders in writing to the Collateral Agent by the close of
business on the Distribution Record Date.
(b) As of the close of business on the Distribution Record Date, the
respective transfer registers for the Old Securities (as applicable) will be
closed, and the Disbursing Agent, the Old Indenture Trustees and their
respective agents will have no obligation to recognize the transfer of any Old
Securities, any Old Common Stock or any Old Preferred Stock occurring after the
close of business on the Distribution Record Date and will be entitled for all
purposes herein to recognize and deal only with those Holders of record as of
the close of business on the Distribution Record Date.
6.2.8 Means of Cash Payments. Except as otherwise specified herein,
Cash payments made pursuant to the Plan will be in U.S. dollars by checks drawn
on a domestic bank selected by Reorganized Anacomp, or by wire transfer from a
domestic bank, at the option of Reorganized Anacomp.
6.2.9 Fractional Plan Securities.
(a) Notwithstanding any other provisions of the Plan, principal
amounts of the New Senior Secured Notes and the New Senior Subordinated Notes
will be initially issued only in denominations of $1,000 and integral multiples
thereof. When any distribution on account of an Allowed Claim would otherwise
result in the issuance of New Senior Secured Notes or New Senior Subordinated
Notes with an aggregate principal amount that is not an integral multiple of
$1,000, the actual distribution of such notes will be rounded to the next higher
or lower integral multiple of $1,000, as follows: (a) aggregate principal
amounts that exceed an integral multiple of $1,000 by $500 or more will be
rounded to the next higher integral multiple of $1,000 and (b) aggregate
principal amounts that exceed an integral multiple of $1,000 by less than $500
will be rounded to the next lower integral multiple of $1,000. If, as a result
of such rounding, the sum of such principal amounts differs from the aggregate
principal amount of such New Senior Secured Notes or New Senior Subordinated
Notes to be distributed pursuant to the Plan, as applicable, the aggregate
principal amount of the New Senior Secured Notes or the New Senior Subordinated
Notes will be adjusted upward or downward to provide for the distribution of the
applicable New Senior Secured Notes or New Senior Subordinated Notes in an
aggregate principal amount equal to such sum. No consideration will be provided
in lieu of principal amounts that are rounded down.
(b) Notwithstanding any other provision of the Plan, only whole
numbers of shares of New Common Stock and whole numbers of New Warrants will be
issued. When any distribution on account of an Allowed Claim or an Allowed
Interest would otherwise result in the issuance of a number of shares of New
Common Stock or a number of New Warrants that is not a whole number, the actual
distribution of shares of such stock or warrants will be rounded to the next
higher or lower whole number as follows: (i) fractions equal to or greater than
1/2 will be rounded to the next higher whole number and (ii) fractions less than
1/2 will be rounded to the next lower number. The total number of shares of New
Common Stock and New Warrants to be distributed to a Class of Claims or
Interests will be adjusted as necessary to account for the rounding provided for
herein. If, as a result of such rounding, the amount of shares of New Common
Stock or the amount of New Warrants to be distributed to a particular Class
differs from the aggregate number of shares of New Common Stock or New Warrants
to be distributed pursuant to the Plan to that Class, the aggregate number of
shares of New Common Stock or the amount of New Warrants specified with respect
to such Class will be adjusted upward or downward to provide for the
distribution of New Common Stock or New Warrants, as the case may be, in an
aggregate number of shares or New Warrants equal to such sum. No consideration
will be provided in lieu of fractional shares or warrants that are rounded down.
6.2.10 Surrender of Canceled Instruments or Securities.
(a) As a condition precedent to receiving any distribution pursuant to
the Plan on account of an Allowed Claim or an Allowed Interest evidenced by the
notes, instruments, securities or other documentation canceled pursuant to the
Plan, the Holder of such Claim or Interest will tender the applicable notes,
instruments, securities or other documentation evidencing such Claim or Interest
to the Collateral Agent, the Disbursing Agent, Cedel, Euroclear or one of the
Old Indenture Trustees, as applicable. Any Cash or Plan Securities to be
distributed pursuant to the Plan on account of any such Claim or Interest will,
pending such surrender, be treated as an undeliverable distribution pursuant to
Section 6.2.6 hereof.
(b) Except as provided in Section 6.2.10(c) hereof, each Holder of an
Allowed Claim or an Allowed Interest will tender such Old Security to the
Disbursing Agent, Cedel, Euroclear or one of the Old Indenture Trustees, as
applicable, together with a letter of transmittal to be provided to such Holders
by the Disbursing Agent, Cedel, Euroclear or the Old Indenture Trustees as
promptly as practicable following the Effective Date. The letter of transmittal
will include, among other provisions, customary provisions with respect to the
authority of the Holder of the applicable Old Security to act and the
authenticity of any signatures required thereon. All surrendered Old Securities
will be marked as canceled by the Disbursing Agent, Cedel, Euroclear or one of
the Old Indenture Trustees, as applicable, and delivered to Reorganized Anacomp.
(c) In addition to any requirements under the applicable Old
Indenture, any Holder of a Claim or Interest evidenced by an Old Security that
has been lost, stolen, mutilated or destroyed will, in lieu of surrendering such
Old Security, deliver to the Disbursing Agent or one of the Old Indenture
Trustee, as applicable: (i) evidence satisfactory to such Entity of such loss,
theft, mutilation or destruction and (ii) such security or indemnity as may be
required by such Entity to hold such Entity harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an Old
Security. Upon compliance with this Section 6.2.10(c) by a Holder of a Claim or
an Interest evidenced by an Old Security, such Holder will, for all purposes
under the Plan, be deemed to have surrendered an Old Security.
(d) Any Holder of an Old Security that fails to surrender or be deemed
to have surrendered such Old Security within two years after the Effective Date
will have its claim for a distribution pursuant to the Plan on account of such
Old Security discharged and will be forever barred from asserting any such claim
against the Debtors, Reorganized Anacomp or their respective property. In such
cases: (i) any Cash held for distribution on account of such claims for
undeliverable distributions (including Cash interest, maturities, dividends and
other distributions on undelivered Plan Securities, as the case may be) shall be
property of Reorganized Anacomp, free of any restrictions thereon (except as
otherwise provided in any Plan Document); (ii) any New Senior Secured Notes and
New Senior Subordinated Notes held for distribution on account of such claims
for distributions shall be canceled and of no further force or effect; (iii) any
New Common Stock held for distribution on account of such claims for
distributions shall either be canceled or held as treasury shares as Reorganized
Anacomp may determine is appropriate; and (iv) any New Warrants held for
distribution on account of such claims for distributions shall be canceled.
6.2.11 Fees and Expenses of Senior Lenders. On the Effective Date,
Reorganized Anacomp will reimburse in Cash, without prior Bankruptcy Court
approval, the Holders of the Old Senior Notes Secured Claims and the Holders of
the Old Credit Facilities Secured Claims, as part of their Secured Claims, for
certain reasonable legal and other professional fees, costs and other expenses
incurred by such Holders, to the extent not theretofore paid to or on behalf of
such Holders and upon submission, two Business Days prior to the Effective Date,
by each attorney, accountant and financial advisor retained by such Holders of
billing statements setting forth amounts equal to (a) all fees, costs and other
expenses incurred by such Entity from the Petition Date through the end of the
Business Day immediately preceding the date of such submission and (b) a good
faith estimate of the fees, costs and other expenses to be incurred thereafter
by such Entity through the Effective Date, to the Debtors and the Creditors'
Committee.
6.2.12 Setoff. Reorganized Anacomp may, but shall not be required to,
set off against any Allowed Claim and the distributions to be made pursuant to
the Plan on account of such Claim, claims of any nature that the Debtors or
Reorganized Anacomp may have against the Holder of such Allowed Claim; provided,
however, that neither the failure to effect such a setoff nor the allowance of
any Claim against the Debtors or Reorganized Anacomp shall constitute a waiver
or release by the Debtors or Reorganized Anacomp of any claim that the Debtors
or Reorganized Anacomp may possess against such Holder.
6.3 Indenture Trustee Charging Liens. In full satisfaction of Allowed
Claims secured by Indenture Trustee Charging Liens, the Old Indenture Trustees
will receive from Reorganized Anacomp Cash equal to the amount of such Claims,
and any Indenture Trustee Charging Liens will be released. Distributions
received by Holders of Allowed Claims pursuant to the Plan will not be reduced
on account of payment of Allowed Claims secured by Indenture Trustee Charging
Liens. Notwithstanding any other provisions of the Plan, upon: (a) submission of
appropriate documentation to Reorganized Anacomp and the Creditors' Committee
regarding fees and expenses incurred by an Old Indenture Trustee in connection
with the Chapter 11 Cases through the Effective Date that are secured by an Old
Indenture Trustee Charging Lien and (b) the failure of Reorganized Anacomp or
the Creditors' Committee to object on the grounds of reasonableness, as
determined under the terms of the applicable Old Indenture, to the payment of
such fees and expenses within 10 Business Days after receipt of such
documentation, such Old Indenture Trustee will be deemed to hold an Allowed
Claim for such fees and expenses, which Reorganized Anacomp will pay in Cash
within 30 days after the receipt of the documentation regarding the fees and
expenses of such Old Indenture Trustee, without further Bankruptcy Court
approval.
6.4 Retiree Benefits. On and after the Effective Date, to the extent
required by Section 1129(a)(13) of the Bankruptcy Code, Reorganized Anacomp
and/or Reorganized Florida A A C shall continue to pay all retiree benefits (if
any), as the term "retiree benefits" is defined in Section 1114(a) of the
Bankruptcy Code, maintained or established by the Debtors prior to the
Confirmation Date.
6.5 Exemptions from Securities Laws and Shelf Registration.
(a) The Confirmation Order shall provide that the offer and sale of
the Plan Securities are exempt from registration pursuant to Section 1145(a) of
the Bankruptcy Code and that the Plan Securities may be resold by the holders
thereof without restriction, except to the extent that any such holder that is
deemed to be an "underwriter," as defined in Section 1145(b)(1) of the
Bankruptcy Code with respect to the Plan Securities.
(b) Within 45 days after the Effective Date, or such longer time as
may be required to prepare the necessary financial statements, Reorganized
Anacomp shall file, at its expense, the Shelf Registration Statement.
Reorganized Anacomp shall use its best efforts to file the Shelf Registration
Statement as expeditiously as possible after the Effective Date and to have the
Shelf Registration Statement declared effective as soon as practicable after
such filing and to keep the Shelf Registration Statement continuously effective
until the third anniversary date of the effective date thereof, except as
otherwise provided in the Registration Rights Agreement. The New Senior Secured
Notes shall be included in the Shelf Registration Statement if Class 2 shall
have accepted the Plan and the New Senior Subordinated Notes shall be included
in the Shelf Registration Statement if Class 5 shall have accepted the Plan. The
New Common Stock shall be included in the Shelf Registration Statement. No
securities other than the New Common Stock, the New Senior Secured Notes and the
New Senior Subordinated Notes shall be included in the Shelf Registration
Statement unless the holders of a majority of the outstanding New Common Stock
consent to such inclusion. Reorganized Anacomp shall also, if necessary,
supplement or make amendments to the Shelf Registration Statement.
ARTICLE VII
ACCEPTANCE OR REJECTION OF THE PLAN
7.1 Classes Entitled to Vote. Each Holder of an Allowed Claim or
Allowed Interest in a Class of Claims against or Interests in any of the Debtors
which may be impaired under the Plan, including any Holder of a Class 2 Claim,
Class 4 Claim, Class 5 Claim, Class 6 Claim or a Class 8 Interest shall be
entitled to vote separately to accept or reject the Plan. Each Holder of a Claim
or Interest in a Class of Claims or Interests which is unimpaired under the
Plan, including Class 1, Class 3, Class 7 and Class 11, shall be presumed to
have accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code.
Classes 9 and 10 shall be presumed to have rejected the Plan pursuant to Section
1126(g) of the Bankruptcy Code.
7.2 Class Acceptance Requirement. An impaired Class of Claims shall
have accepted the Plan if (i) the Holders (other than any Holder designated
under Section 1126(e) of the Bankruptcy Code) of at least two-thirds in dollar
amount of the Allowed Claims actually voting in such Class have voted to accept
the Plan and (ii) the Holders (other than any Holder designated under Section
1126(e) of the Bankruptcy Code) of more than one-half in number of the Allowed
Claims actually voting in such Class have voted to accept the Plan. An impaired
Class of Interests shall have accepted the Plan if the Holders (other than any
Holder designated under Section 1126(e) of the Bankruptcy Code) of at least
two-thirds in amount of the Allowed Interests actually voting in such Class have
voted to accept the Plan.
7.3 Confirmation Notwithstanding a Rejection of Plan by an Impaired
Class. If any impaired Class or Classes of Claims or Interests shall not accept
the Plan, the Debtors request that the Bankruptcy Court confirm the Plan in
accordance with Section 1129(b) of the Bankruptcy Code. In addition, the Debtors
reserve the right to modify the Plan pursuant to the provisions of Section 14.13
of the Plan to provide treatment sufficient to assure that the Plan does not
discriminate unfairly, and is fair and equitable, with respect to the Class or
Classes not accepting the Plan, and, in particular, the treatment necessary to
meet the minimum requirements of Sections 1129(a) and (b) of the Bankruptcy Code
with respect to the rejecting Classes and any other Classes affected by such
modifications; provided, however, that the Debtors shall not modify the Plan to
(i) reduce the distributions to be made to any of Classes 4, 5, 6 or 7 or (ii)
increase the distributions to be made to any Class, without first having
obtained the consent of the Creditors' Committee.
ARTICLE VIII
PROCEDURE FOR RESOLVING DISPUTED CLAIMS
8.1 Unimpaired Excepted Claims Generally. The Allowed amount of any
Unimpaired Excepted Claim and the rights of the Holder of such Unimpaired
Excepted Claim, if any, to payment in respect thereof shall (a) be determined
(i) in the event that the Holder thereof (A) does not File proof of such Claim
on or before the Limited Bar Date or (B) Files a proof of such Claim on or
before the Limited Bar Date and no objection to, or request for estimation with
respect to, such Claim is Filed in accordance with Section 8.4 hereof, by any
court of competent jurisdiction other than the Bankruptcy Court in the manner in
which the amount of such Claim and the rights of the Holder of such Claim would
have been resolved and adjudicated if the Chapter 11 Cases had not been
commenced, or (ii) in the event that the Holder thereof Files a proof of such
Claim on or before the Limited Bar Date and an objection to, or request for
estimation with respect to, such Claim is Filed in accordance with Section 8.4
hereof, by the Bankruptcy Court, (b) except as otherwise provided in Section
8.1(a)(ii) hereof, survive the Effective Date and consummation of the Plan as if
the Chapter 11 Cases had not been commenced, and (c) not be discharged pursuant
to Section 1141 of the Bankruptcy Code. In order to carry out the foregoing
provisions of the Plan, the Debtors, Reorganized Anacomp and the Holders of
Unimpaired Excepted Claims shall have, among other rights and obligations, the
following rights and obligations:
8.1.1 Except to the extent that an objection to, or a request for
estimation with respect to, an Unimpaired Excepted Claim has been Filed in
accordance with Section 8.4 hereof, the Holder of such Claim shall be entitled,
after the last date on which an objection to such Claim may be Filed in
accordance with Section 8.4 hereof, to commence any action or proceeding against
Reorganized Anacomp, or to continue any action or proceeding against any of the
Debtors, to determine the amount of its Claim in any court of competent
jurisdiction.
8.1.2 The Debtors and Reorganized Anacomp, as the case may be, shall
not assert any defense based solely upon the facts that (i) no proof of such
Claim shall have been Filed on or before the Limited Bar Date, and/or (ii) such
Claim was listed by the Debtors in their Chapter 11 Schedules as unliquidated,
contingent or disputed.
8.1.3 The Debtors or Reorganized Anacomp, as the case may be, may at
any time before or after the Confirmation Date and before or after the Effective
Date, dispute, defend against or otherwise oppose, in accordance with
nonbankruptcy law, any such Unimpaired Excepted Claim (other than any such Claim
to the extent allowed by Final Order of the Bankruptcy Court or the Confirmation
Order) without taking any formal action either in or out of court (except as
otherwise required by nonbankruptcy law). Reorganized Anacomp shall retain, in
addition to all claims, rights and causes of action retained by Reorganized
Anacomp pursuant to Section 14.5 of the Plan, all defenses, at law or in equity,
to any and all such Unimpaired Excepted Claims (other than any such Claim to the
extent allowed by Final Order of the Bankruptcy Court or the Confirmation
Order), other than as provided in Section 8.1.2 hereof.
8.2 Unimpaired Non-Excepted Claims Generally. The Allowed amount of any
Unimpaired Non-Excepted Claim and the rights, if any, of the Holder of any such
Claim that has properly Filed a proof of Claim on or prior to the Limited Bar
Date, or any other date determined by the Bankruptcy Court with respect to such
Claim, to payment in respect thereof shall (a) be determined, (i) in the event
that no objection to, or request for estimation with respect to, such Claim is
Filed in accordance with Section 8.4 hereof, by any court of competent
jurisdiction other than the Bankruptcy Court in the manner in which the amount
of such Claim and the rights of the Holder of such Claim would have been
resolved and adjudicated if these Chapter 11 Cases had not been commenced or
(ii) in the event that an objection to, or request for estimation with respect
to, such Claim is Filed in accordance with Section 8.4 hereof, by the Bankruptcy
Court, (b) except as otherwise provided in Section 8.2(a)(ii) hereof, survive
the Effective Date and consummation of the Plan as if the Chapter 11 Cases had
not been commenced, and (c) not be discharged pursuant to Section 1141 of the
Bankruptcy Code. In order to carry out the foregoing provisions of the Plan, the
Debtors, Reorganized Anacomp and the Holders of Unimpaired Non-Excepted Claims
that have properly Filed a proof of Claim on or prior to the Limited Bar Date,
or any other date determined by the Bankruptcy Court with respect to such Claim,
shall have, among other rights and obligations, the following rights and
obligations:
8.2.1 Except to the extent that an objection to, or a request for
estimation with respect to, an Unimpaired Non-Excepted Claim has been filed in
accordance with Section 8.4 hereof, the Holder of such Claim shall be entitled,
after the last date on which an objection to such Claim may be Filed in
accordance with Section 8.4 hereof, to commence any action or proceeding against
Reorganized Anacomp, or to continue any action or proceeding against any of the
Debtors, to determine the amount of its Claim in any court of competent
jurisdiction.
8.2.2 The Debtors or Reorganized Anacomp, as the case may be, may at
any time before or after the Confirmation Date and before or after the Effective
Date, dispute, defend against or otherwise oppose, in accordance with
nonbankruptcy law, any such Unimpaired Non-Excepted Claim (other than any such
Claim to the extent allowed by Final Order of the Bankruptcy Court or the
Confirmation Order) without taking any formal action either in or out of court
(except as otherwise required by nonbankruptcy law). Reorganized Anacomp shall
retain, in addition to all claims, rights and causes of action retained by
Reorganized Anacomp pursuant to Section 14.5 of the Plan, all defenses, at law
or in equity, to any and all Unimpaired Non-Excepted Claims (other than any such
Claim to the extent allowed by Final Order of the Bankruptcy Court or the
Confirmation Order).
8.3 Rejection Claims. Any Rejection Claim not barred pursuant to the
provisions of Section 9.2 of the Plan shall be an Allowed Claim in the amount
set forth in the Filed proof of Claim evidencing such Claim unless an objection
is Filed to such Claim not later than sixty (60) days after the filing of such
proof of Claim or such later time ordered by the Bankruptcy Court without need
for notice and hearing. Upon the Filing of any such objection, the amount of the
Allowed Rejection Claim, if any, shall be determined by the Bankruptcy Court
unless it shall have sooner become an Allowed Claim.
8.4 Disputed Claims. The amount of any Impaired Claim which is a
Disputed Claim and the rights of the Holder of such Claim, if any, to payment in
respect thereof shall be determined by the Bankruptcy Court, unless it shall
have sooner become an Allowed Claim. Unless otherwise ordered by the Bankruptcy
Court, all objections to, or requests for estimation of, Claims (other than as
provided in Section 4.1 hereof) and Interests shall be Filed and served upon the
Holder of such Claim or Interest no later than sixty (60) days after the
Effective Date; provided, however, that, unless otherwise ordered by the
Bankruptcy Court, any of the Debtors, Reorganized Anacomp or Reorganized Florida
A A C shall be entitled to File an objection to, or request for estimation of,
any Claim Filed after the Limited Bar Date, including, without limitation, any
Claim Filed by a governmental unit pursuant to Section 502(b)(9) of the
Bankruptcy Code, on or prior to the later of (i) sixty (60) days after the
Effective Date and (ii) sixty (60) days after the service of such Claim on any
of the Debtors, Reorganized Anacomp or Reorganized Florida A A C.
8.5 Authority to Oppose Claims. On and after the Effective Date, except
as the Bankruptcy Court may otherwise order, Reorganized Anacomp and/or
Reorganized Florida A A C shall have the exclusive right to make, prosecute and
settle any objections to Claims or Interests.
8.6 Treatment of Disputed Claims and Disputed Interests.
Notwithstanding any other provisions of the Plan, no payments or distributions
shall be made on account of a Disputed Claim until such Claim or Interest
becomes an Allowed Claim or an Allowed Interest, as the case may be.
ARTICLE IX
EXECUTORY CONTRACTS
9.1 General Treatment. All executory contracts and unexpired leases of
the Debtors shall be assumed by Reorganized Anacomp as of the Effective Date,
unless (i) rejected pursuant to an order entered on or prior to the Effective
Date, or (ii) a motion to reject any such executory contract or unexpired lease
is pending before the Bankruptcy Court on the Effective Date, or (iii) assumed
pursuant to an order entered on or prior to the Effective Date.
9.2 Bar to Rejection Damages. If the rejection of an executory contract
or unexpired lease by the Debtors results in damages to the other party or
parties to such contract or lease, a Claim for such damages, if not previously
evidenced by a Filed proof of Claim or barred by a Final Order, shall be forever
barred and shall not be enforceable against the Debtors, Reorganized Anacomp or
Reorganized Florida A A C, or their properties or agents, successors, or
assigns, unless a proof of Claim relating thereto is filed with the Bankruptcy
Court within thirty (30) days after the later of (i) the entry of a Final Order
authorizing such rejection and (ii) the Effective Date, or within such shorter
period as may be ordered by the Bankruptcy Court.
9.3 Cure of Defaults for Executory Contracts and Unexpired Leases. Each
executory contract and unexpired lease to be assumed pursuant to the Plan shall
be reinstated and rendered unimpaired in accordance with Sections 1124(2) and
365(b)(1) of the Bankruptcy Code. In connection therewith, the Debtors shall
cure or provide adequate assurance that they will cure any monetary default
(other than of the kind specified in Section 365(b)(2) of the Bankruptcy Code),
by payment of the default amount in Cash on the Effective Date (or on such other
terms as the parties to such executory contract or unexpired lease may otherwise
agree), compensate, or provide adequate assurance that the Debtors will promptly
compensate parties other than the Debtors to such contract or lease for any
actual pecuniary loss to such parties resulting from such default, and provide
adequate assurance of future performance under such contract or lease. In the
event of a dispute regarding: (i) the amount of any cure payments, (ii) the
ability of Reorganized Anacomp or any of the assignees to provide "adequate
assurance of future performance" (within the meaning of Section 365 of the
Bankruptcy Code) under the contract or lease to be assumed, or (iii) any other
matter pertaining to assumption, the cure payments or performance required by
Section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a
Final Order resolving the dispute and approving the assumption.
ARTICLE X
CONDITIONS TO CONFIRMATION AND THE
OCCURRENCE OF THE EFFECTIVE DATE
10.1 Conditions to Confirmation. Confirmation of this Plan is
conditioned upon the occurrence of the following, or waiver of the following,
condition jointly by the Debtors, the Collateral Agent (if Class 2 shall have
accepted the Plan) and the Creditors' Committee (if Class 5 shall have accepted
the Plan): The provisions of the Plan and all exhibits thereto shall be
reasonably satisfactory to the Collateral Agent (if Class 2 shall have accepted
the Plan) and the Creditors' Committee (if Class 5 shall have accepted the
Plan).
10.2 Conditions to the Occurrence of the Effective Date. This Plan
shall not be consummated and the Effective Date shall not occur unless and until
each of the following conditions has been satisfied or waived jointly by the
Debtors, the Creditors' Committee (if Class 5 shall have accepted the Plan) and
the Collateral Agent (if Class 2 shall have accepted the Plan):
(a) All fees payable pursuant to Section 1930 of Title 28 of the
United States Code, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall have been paid;
(b) If the condition specified in Section 10.1 has been duly waived,
the provisions of the Plan and all exhibits thereto shall be reasonably
satisfactory to the Collateral Agent (if Class 2 shall have accepted the Plan)
and the Creditors' Committee (if Class 5 shall have accepted the Plan);
(c) The Confirmation Order shall have become a Final Order; and
(d) All actions and documents necessary to implement the provisions of
this Plan shall have been effected, executed or duly provided for in a manner
reasonably satisfactory to the Collateral Agent (if Class 2 shall have accepted
the Plan) and the Creditors' Committee (if Class 5 shall have accepted the
Plan).
ARTICLE XI
EFFECTS OF CONFIRMATION AND EFFECTIVENESS OF PLAN
11.1 Discharge of Claims. Except as otherwise provided herein or in the
Confirmation Order, on the Effective Date: (i) the rights afforded in the Plan
and the payments and distributions to be made hereunder shall discharge all
existing debts and Claims of any kind, nature, or description whatsoever against
the Debtors, any of their assets or properties or any property dealt with under
the Plan to the extent permitted by Section 1141 of the Bankruptcy Code; (ii)
all existing Claims against the Debtors shall be and shall be deemed to be
discharged; (iii) all obligations of the Debtors, directly or as guarantors,
under the Old Indentures, the Old Credit Facilities, the Old Securities and the
Old Collateral Documents shall be deemed released, discharged and satisfied; and
(iv) all Holders of Claims and Interests shall be precluded from asserting
against the Debtors, any of their assets or properties, or any property dealt
with under the Plan, any other or further Claim that arose prior to the
Confirmation Date, whether or not such Holder Filed a proof of Claim.
11.2 Discharge of Debtors. Except as otherwise provided herein, any
consideration distributed to Creditors under the Plan shall be in exchange for
and in complete satisfaction, discharge, and release of all Claims of any nature
whatsoever against the Debtors or any of their assets or properties; and, except
as otherwise provided herein, upon the Effective Date, the Debtors shall be
deemed discharged and released to the extent permitted by Section 1141 of the
Bankruptcy Code from any and all Claims, including demands and liabilities that
arose before the Confirmation Date, and all debts of the kinds specified in
Sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (i) a
proof of Claim based upon such debt is filed or deemed filed under Section 501
of the Bankruptcy Code; or (ii) the Holder of a Claim based upon such debt has
accepted the Plan. Except as provided herein and therein, the Confirmation Order
shall be a judicial determination of discharge of all liabilities of the
Debtors. As provided in Section 524 of the Bankruptcy Code, such discharge shall
void any judgment against the Debtors at any time obtained to the extent it
relates to a Claim discharged, and operates as an injunction against the
commencement or continued prosecution of any action against the Debtors,
Reorganized Anacomp, Reorganized Florida A A C or any of their respective
properties, to the extent it relates to a Claim discharged.
11.3 Survival of Indemnification Claims and Obligations.
Notwithstanding any other provision of this Plan, all obligations of the Debtors
or any Foreign Subsidiary or Domestic Subsidiary to indemnify or hold harmless
current or former officers or directors of any of the Debtors, or the Old
Indenture Trustees, and all Claims of such officers, directors or the Old
Indenture Trustees, under the by-laws of such Debtor, the Old Indentures or
other applicable law, corporate documents or agreements shall expressly survive
Confirmation of the Plan and be binding on and enforceable against Reorganized
Anacomp irrespective of whether indemnification is owed in connection with an
event occurring before, on or after the Petition Date.
11.4 Termination of Claims of Contractual Subordination Against Holders
of Old Senior Subordinated Notes Claims. Provided that (i) the Plan has been
accepted by Class 5 under Section 1126(c) of the Bankruptcy Code, (ii) the
Bankruptcy Court shall have entered the Confirmation Order and (iii) the
Effective Date shall have occurred, all rights, actions or causes of action
between or among Holders of "senior indebtedness" (as defined in the Old Senior
Subordinated Notes Indenture) and Holders of Old Senior Subordinated Notes
Claims based upon any claimed right to contractual subordination shall be
satisfied, terminated, void and of no further force or effect as of the
Effective Date so that, notwithstanding any such rights, actions or causes of
action, each Holder of Old Senior Subordinated Notes Claims shall have the
rights and benefits of the distributions provided in this Plan.
11.5 Termination of Claims of Contractual Subordination Against Holders
of Old Subordinated Debentures Claims. Provided that (i) the Plan has been
accepted by Class 6 under Section 1126(c) of the Bankruptcy Code, (ii) the
Bankruptcy Court shall have entered the Confirmation Order and (iii) the
Effective Date shall have occurred, all rights, actions or causes of action
between or among Holders of "senior indebtedness" (as defined in the Old 9%
Subordinated Debentures Indenture and the Old 13.875% Subordinated Debentures
Indenture) and Holders of Old Subordinated Debentures Claims based upon or in
any way relating to any claimed right to contractual subordination shall be
satisfied, terminated, void and of no further force or effect as of the
Effective Date so that, notwithstanding any such rights, actions or causes of
action, each Holder of Old Subordinated Debentures Claims shall have the rights
and benefits of the distributions provided in this Plan.
ARTICLE XII
RELEASES AND INJUNCTIONS
12.1 Releases. On the Effective Date, Reorganized Anacomp shall be
deemed to release unconditionally, and hereby is deemed to release
unconditionally on such date (i) each present or former officer, director,
shareholder, employee, consultant, attorney, accountant and other
representatives of the Debtors, the Domestic Subsidiaries and the Foreign
Subsidiaries, (ii) the Creditors' Committee and the Unofficial Senior
Subordinated Committee and, solely in their capacity as members or
representatives of the Creditors' Committee or the Unofficial Senior
Subordinated Committee, as applicable, each consultant, attorney, accountant or
other representative or member (and each of such member's respective officers,
directors, shareholders, employees, consultants, attorneys, accountants and
other representatives) of the Creditors' Committee or the Unofficial Senior
Subordinated Committee, as applicable, and (iii) the Holders of Old Senior Notes
Secured Claims and Old Credit Facilities Secured Claims and, solely in their
capacity as representatives of such Holders, each of such Holder's respective
officers, directors, shareholders, employees, consultants, attorneys,
accountants and other representatives (the Entities specified in clauses (i),
(ii) and (iii) are referred to collectively as the "Releasees"), from any and
all claims, obligations, suits, judgments, damages, rights, causes of action and
liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, based in whole or in
part upon any act or omission, transaction, event or other occurrence taking
place on or prior to the Effective Date in any way relating to the Chapter 11
Cases or the Plan, except that no Releasees shall be released from acts or
omissions which are the result of willful misconduct.
On the Effective Date, each Holder of a Claim shall be deemed to have
released unconditionally, and hereby is deemed to release unconditionally on
such date, the Releasees, from any and all rights, claims, causes of action,
obligations, suits, judgments, damages and liabilities whatsoever which any such
Holder may be entitled to assert, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, based in
whole or in part upon any act or omission, transaction, event or other
occurrence taking place on or before the Effective Date in any way relating to
Reorganized Anacomp, the Debtors, the Chapter 11 Cases or the Plan, except that
no Releasees shall be released from acts or omissions which are the result of
willful misconduct.
If and to the extent that the Bankruptcy Court concludes that the Plan
cannot be confirmed with any portion of the foregoing releases, then the Debtors
reserve the right to amend the Plan so as to give effect as much as possible to
the foregoing releases, or to delete them.
Notwithstanding anything contained in this Section 12.1 to the
contrary, this Section 12.1 shall not apply to, or be enforceable against, the
United States of America or the State of California, or any of their respective
agencies, boards, departments or subdivisions.
12.2 No Liability for Solicitation or Participation. As specified in
Section 1125(e) of the Bankruptcy Code, Entities who solicit acceptances or
rejections of the Plan and/or who participate in the offer, issuance, sale or
purchase of securities offered or sold under the Plan, in good faith and in
compliance with the applicable provisions of the Bankruptcy Code, 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 in
connection therewith.
12.3 Limitation of Liability. Neither the Debtors, Reorganized Anacomp,
Reorganized Florida A A C, nor any of their respective employees, officers,
directors, agents, or representatives, nor any Professionals employed by any of
them, nor any Creditors' Committee or the Unofficial Senior Subordinated
Committee, or any of their members, agents, representatives, or professional
advisors, shall have or incur any liability to any Entity for any act taken or
omission made in good faith in connection with or related to formulating,
implementing, confirming, or consummating the Plan, or any contract, instrument,
release, or other agreement or document created in connection with the Plan.
12.4 General Injunction. Except as provided herein or in the
Confirmation Order, from and after the Effective Date, all Entities who received
or are Holders of Plan Securities and all Holders of Claims against the Estates
are permanently restrained and enjoined after the Confirmation Date (i) from
commencing, continuing, or taking any act, to enforce against any of the
Debtors, Reorganized Anacomp or Reorganized Florida A A C, or any Foreign
Subsidiary or Domestic Subsidiary or any right, claim or cause of action arising
under or related to any Old Security or the Old Credit Facilities Note, (ii)
from enforcing, attaching, collecting or recovering by any manner or means, any
judgment, award, decree, or order against any Debtor, Reorganized Anacomp or
Reorganized Florida A A C, or any Foreign Subsidiary or Domestic Subsidiary or
any right, claim or cause of action arising under or related to any Old Security
or the Old Credit Facilities Note, (iii) from creating, perfecting or enforcing
any encumbrance of any kind against any Debtor, Reorganized Anacomp or
Reorganized Florida A A C, or any Foreign Subsidiary or Domestic Subsidiary or
any right, claim or cause of action arising under or related to any Old Security
or the Old Credit Facilities Note, (iv) from asserting any setoff, right of
subrogation, indemnification, contribution or recoupment of any kind against any
obligation due any Debtor, Reorganized Anacomp or Reorganized Florida A A C, or
any Foreign Subsidiary or Domestic Subsidiary, or any right, claim or cause of
action arising under or related to any Old Security or the Old Credit Facilities
Note and (v) from performing any act, in any manner, in any place whatsoever,
that does not conform to or comply with the provisions of the Plan and orders of
the Bankruptcy Court; provided, however, that each Holder of a Claim may, to the
extent permitted by and in accordance with the provisions of the Plan, commence
or continue any action or proceeding to determine the amount of its Claim in the
Bankruptcy Court or any other court of competent jurisdiction, and all Holders
of Claims shall be entitled to enforce their rights under the Plan and the Plan
Documents.
Notwithstanding anything contained in this Section 12.4 to the
contrary, subsections (i)-(iv) of this Section 12.4 shall not apply to, or be
enforceable against, the United States of America, or any of its agencies,
boards, departments or subdivisions.
12.5 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 Estates, the Debtors, Reorganized Anacomp or
Reorganized Florida A A C by reason of the forgiveness or discharge of
indebtedness resulting from the Chapter 11 Cases. 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 any Debtor, Reorganized Anacomp
or Reorganized Florida A A C arising by reason of the forgiveness or discharge
of indebtedness of any such Entity under the Plan.
ARTICLE XIII
RETENTION OF JURISDICTION
13.1 Scope of Jurisdiction. Pursuant to Sections 1334 and 157 of Title
28 of the United States Code, notwithstanding occurrence of the Effective Date
or substantial consummation of the Plan, the Bankruptcy Court shall retain and
have jurisdiction from and after the Confirmation Date of all matters arising
in, arising under, and related to the Chapter 11 Cases and the Plan pursuant to,
and for the purposes of, Sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
13.1.1 To hear and determine any and all adversary proceedings,
applications or contested matters pending on the Effective Date or brought after
the Effective Date;
13.1.2 To hear and determine any and all applications for substantial
contribution and for compensation and reimbursement of expenses Filed in
accordance with the Plan;
13.1.3 To hear and determine Rejection Claims, disputes arising from
the assumption and assignment of executory contracts and unexpired leases, and
Disputed Claims which are Impaired Claims or which are held by Holders of
Unimpaired Claims;
13.1.4 To hear and determine, pursuant to the provisions of Section 505
of the Bankruptcy Code, all issues related to the liability of a Debtor for any
tax incurred prior to the Effective Date;
13.1.5 To enforce the provisions of the Plan and to determine any and
all disputes arising under the Plan;
13.1.6 To enter and implement such orders as may be appropriate in the
event Confirmation is for any reason stayed, reversed, revoked, modified or
vacated;
13.1.7 To modify any provision of the Plan to the extent permitted by
the Bankruptcy Code and to correct any defect, cure any omission or reconcile
any inconsistency in the Plan or the Confirmation Order as may be necessary to
carry out the purposes and intent of the Plan;
13.1.8 To enter such orders as may be necessary or appropriate in
furtherance of consummation and implementation of the Plan;
13.1.9 To determine the allowance of Claims and Interests as provided
in the Plan; and
13.1.10 To enter an order closing the Chapter 11 Cases.
13.2 Failure of the Bankruptcy Court to Exercise Jurisdiction. If the
Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction
or is otherwise without jurisdiction over any matter arising in, arising under,
or related to the Chapter 11 Cases, this Article XIII shall have no effect upon
and shall not control, prohibit, or limit the exercise of jurisdiction by any
other court having jurisdiction with respect to such matter.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Compliance With Tax Requirements. In connection with the Plan, the
Debtors, Reorganized Anacomp, the Collateral Agent, the Disbursing Agent and the
Old Indenture Trustees 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 such
withholding and reporting requirements. Creditors may be required to provide
certain tax information as a condition to receipt of distributions pursuant to
the Plan. Notwithstanding any other provision of the Plan, each Entity receiving
a distribution pursuant to the 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 such distribution.
14.2 Discharge of Old Indenture Trustees. Subsequent to the performance
of the Old Indenture Trustees, or their respective agents, of their duties and
obligations under the provisions of the Plan and the Confirmation Order, if any,
and under the terms of such Old Indentures, such Old Indenture Trustees and
their agents shall be relieved, discharged and released from all obligations,
claims, rights, demands and causes of action associated with or arising from
such Old Indentures. 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 14.2.
14.3 Post-Confirmation Date Fees and Expenses of Professionals.
Reorganized Anacomp shall, in the ordinary course of business and without the
necessity for any approval by the Bankruptcy Court (except as may be required by
Section 1129(a)(4) of the Bankruptcy Code), pay the reasonable fees and
reasonable expenses of the Professionals related to implementation and
consummation of the Plan that are incurred after the Confirmation Date;
provided, however, that no such fees and expenses shall be paid except upon
receipt by Reorganized Anacomp of a detailed written invoice from the
Professional seeking compensation and expense reimbursement and provided,
further, however, that Reorganized Anacomp may, within ten (10) days after
receipt of an invoice for fees and expenses, request that the Bankruptcy Court
determine the reasonableness of such fees and expenses.
14.4 Vesting of Property of the Debtors. Except as otherwise provided
in the Plan (including any Plan Document) or any other indentures, instruments
or agreements to be executed and delivered pursuant to the Plan or the
Confirmation Order, upon the Effective Date, all property of the Consolidated
Estates, wherever situated, shall vest in Reorganized Anacomp and shall be
retained by Reorganized Anacomp or distributed to Creditors or Interest Holders
as provided in the Plan. On the Effective Date, all property of the Consolidated
Estates, whether retained by Reorganized Anacomp or distributed to Creditors or
Interest Holders, shall be free and clear of all Claims, Liens, Encumbrances and
Interests, except the Claims, Liens, Encumbrances and Interests of Creditors and
Holders of Interests expressly provided for in the Plan (including in any Plan
Document).
14.5 Causes of Action. Except as otherwise provided in the Plan, or in
any contract, instrument, release, or other agreement entered into in connection
with the Plan, in accordance with Section 1123(b) of the Bankruptcy Code,
Reorganized Anacomp shall retain and may enforce any claims, rights and causes
of action that any of the Consolidated Debtors or the Consolidated Estates may
hold against any entity including, without limitation, any claims, rights or
causes of action under Sections 544 through 550 of the Bankruptcy Code or any
similar provisions of state law, or any other statute or legal theory.
Reorganized Anacomp or any successor may pursue those rights of action, as
appropriate, in accordance with what is in the best interests of Reorganized
Anacomp or any successor holding such rights of action.
14.6 Assumption of Liabilities. The liability for and obligation to
make the distributions required under the Plan shall be assumed by Reorganized
Anacomp, which shall have the liability for, and obligation to make, all
distributions of Cash, Plan Securities or other instruments to be issued by
Anacomp, Reorganized Anacomp and Reorganized Florida A A C.
14.7 Other Documents and Actions. Without a further order of the
Bankruptcy Court, the Debtors and Reorganized Anacomp may execute such documents
and take such other action as is necessary to effectuate the transactions
provided for in the Plan. Each of the President, any Vice President, the Chief
Financial Officer, the Secretary and the Treasurer of each of the Debtors and of
Reorganized Anacomp is authorized in accordance with their authority under the
resolutions of the respective Boards of Directors of the Debtors or Reorganized
Anacomp, as the case may be, 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 and any notes or
securities issued pursuant to the Plan.
14.8 Section 1146 Exemption. Pursuant to Section 1146(c) of the
Bankruptcy Code, (i) the issuance, transfer or exchange of any security under
the Plan or the making or delivery of any instrument of transfer pursuant to, in
implementation of, or as contemplated by the Plan, including 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
or the revesting, transfer or sale of any real or personal property of the
Debtors pursuant to, in implementation of, or as contemplated by the Plan, (ii)
the making, delivery, creation, assignment, amendment or recording of any note
or other obligation for the payment of money or any mortgage, deed of trust or
other security interest under, in furtherance of, or in connection with the
Plan, the issuance, renewal, modification or securing of indebtedness by such
means, and (iii) the making, delivery or recording of any deed or other
instrument of transfer under, in furtherance of, or in connection with, the
Plan, including, without limitation, the Confirmation Order, shall not be
subject to any document recording tax, stamp tax, conveyance fee or other
similar tax, mortgage tax, real estate transfer tax, mortgage recording tax or
other similar tax or governmental assessment. Consistent with the foregoing,
each recorder of deeds or similar official for any county, city or governmental
unit in which any instrument hereunder is to be recorded shall, pursuant to the
Confirmation Order, be ordered and directed to accept such instrument, without
requiring the payment of any documentary stamp tax, deed stamps, stamp tax,
transfer tax, intangible tax or similar tax.
14.9 Binding Effect.
(a) From and after the Confirmation Date, the Plan shall be binding
upon and inure to the benefit of Reorganized Anacomp, Reorganized Florida A A C,
Holders of Claims, Holders of Interests, and their respective successors and
assigns.
(b) If the Plan is not confirmed, the Plan shall be deemed null and
void and notwithstanding anything herein or in the Disclosure Statement to the
contrary nothing contained herein or in the Disclosure Statement shall be deemed
(i) to constitute a waiver or release of any Claims by the Debtors or any other
Entity, (ii) to prejudice in any manner the rights of the Debtors or any other
Entity, (iii) to constitute any admission by any of the Debtors, or any other
Entity, or (iv) to constitute any admission or concession regarding any Claim or
Interest.
14.10 Governing Law. Unless an applicable rule of law or procedure is
supplied by federal law (including the Bankruptcy Code and the Bankruptcy
Rules), the internal laws of the State of New York (without reference to
conflict of laws principles) shall govern the construction and implementation of
the Plan and any agreements, documents, and instruments executed in connection
with the Plan or the Chapter 11 Cases, except as may otherwise be provided in
such agreements, documents, and instruments.
14.11 Filing of Additional Documents. On or before the conclusion of
the Confirmation Hearing, the Debtors shall File such agreements and other
documents as may be necessary or appropriate to effectuate and further evidence
the terms and conditions of the Plan.
14.12 Dissolution of Creditors' Committee. On the Effective Date,
except to the extent contemplated by Sections 4.1 and 6.3 hereof and except to
the extent necessary to take whatever actions that may be required to obtain
enforcement of Reorganized Anacomp's obligations under Section 6.5 hereof, the
Creditors' Committee shall dissolve and the members of the Creditors' Committee
shall be released and discharged from all further rights and duties arising from
or related to the Chapter 11 Cases. The Professionals retained by the Creditors'
Committee and the members thereof shall not be entitled to compensation or
reimbursement of expenses for any services rendered after the Effective Date,
except to the extent contemplated by this Section 14.12 and for services
rendered and expenses incurred in connection with any applications for allowance
of compensation and reimbursement of expenses pending on the Effective Date or
Filed after the Effective Date pursuant to the Plan.
14.13 Amendments and Modifications.
(a) The Debtors may, with the consent of the Creditors' Committee
(unless Class 5 shall have rejected the Plan) and the Collateral Agent (unless
Class 2 shall have rejected the Plan), and in accordance with Section 1127(a) of
the Bankruptcy Code and Bankruptcy Rule 3019, after hearing on notice to such
Entities as are entitled to such notice pursuant to Bankruptcy Rule 3019, amend
or modify the Plan prior to the entry of the Confirmation Order. No amendment of
or modification of Section 12.1 of the Plan shall require any resolicitation of
acceptances.
(b) After the entry of the Confirmation Order and prior to the
Effective Date, Anacomp may, with the consent of the Creditors' Committee (in
the event that Class 5 shall have accepted the Plan) and in accordance with
Section 1127(b) of the Bankruptcy Code, amend or modify this Plan, or remedy any
defect or omission or reconcile any inconsistency in the Plan in such manner as
may be necessary to carry out the purpose and intent of the Plan, and after the
Effective Date the parties to any Plan Document may amend or modify any such
Plan Document pursuant to the terms thereof without notice to any Entity not
entitled to receive notice under such Plan Document and without an order from
the Bankruptcy Court.
14.14 Revocation. The Debtors reserve the right to revoke and withdraw
the Plan prior to Confirmation. If the Debtors revoke or withdraw the Plan
pursuant to this Section 14.14, then the Plan shall be deemed null and void and,
in such event, the provisions of Section 14.9(b) shall apply.
14.15 Severability. Should any provision in the Plan be determined to
be unenforceable, with the consent of the Debtors or Reorganized Anacomp, as
applicable, such determination shall in no way limit or affect the
enforceability and operative effect of any other provisions of the Plan.
14.16 Notices. Any pleading, notice or other document required by the
Plan or the Confirmation Order to be served or delivered to the Debtors,
Reorganized Anacomp, Reorganized Florida A A C, the Creditors' Committee, the
Holders of the Old Credit Facilities Secured Claims or the Holders of the Old
Senior Notes Secured Claims, will be sent by overnight delivery service, courier
service or facsimile transmission to:
(a) ANACOMP, INC.
11550 North Meridian Street
Carmel, Indiana 46032
Attn: P. Lang Lowrey III
with copies to:
Barry J. Dichter
Michael J. Sage
CADWALADER, WICKERSHAM & TAFT
100 Maiden Lane
New York, New York 10038
(counsel to the Debtors, Reorganized Anacomp
and Reorganized Florida A A C)
(b) Daniel H. Golden
STROOCK & STROOCK & LAVAN
Seven Hanover Square
New York, New York 10004
(counsel to the Creditors' Committee)
(c) Marcia L. Goldstein
WEIL, GOTSHAL & MANGES 767 Fifth Avenue New York, New
York 10153
(counsel to the Holders of Old Credit Facilities
Secured Claims)
(d) Douglas R. Davis
MILBANK, TWEED, HADLEY & McCLOY
One Chase Manhattan Plaza
New York, New York 10005
(counsel to the Holders of Old Senior Notes
Secured Claims)
14.17 De Minimis Distributions. Notwithstanding any provision to the
contrary contained herein, no distribution of less than twenty-five dollars
($25) in Cash or less than five (5) shares of New Common Stock or five (5) New
Warrants shall be made to any Holder of an Allowed Claim or an Allowed Interest,
unless such Holder shall have requested such distribution in writing from
Reorganized Anacomp before the second anniversary of the Effective Date. Such
undistributed amount will be retained by Reorganized Anacomp, and in the case of
undistributed New Common Stock, held as treasury shares.
14.18 Plan and Plan Documents Control. In the event and to the extent
that any provision of the Disclosure Statement is inconsistent with any
provision of the Plan or any Plan Document, the applicable provision of the Plan
or the applicable Plan Document shall control and take precedence. In the event
and to the extent that any provision of the Plan is inconsistent with any
provision of any Plan Document, the applicable provision of the applicable Plan
Document shall control and take precedence.
Dated: May 20, 1996
Respectfully submitted,
KALVAR MICROFILM, INC.
By:
---------------------------
ANACOMP, INC.
By:
---------------------------
ANACOMP INTERNATIONAL N.V.
By:
---------------------------
FLORIDA A A C CORPORATION
By:
---------------------------
XIDEX DEVELOPMENT COMPANY
By:
---------------------------
CADWALADER, WICKERSHAM & TAFT
By:
---------------------------
Barry J. Dichter
Michael J. Sage
100 Maiden Lane
New York, New York 10038
(212) 504-6000
-- and --
YOUNG, CONAWAY, STARGATT & TAYLOR
By:
---------------------------
Laura Davis Jones (No. 2436)
11th Floor, Rodney Square North
P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6600
Co-Counsel for Debtors
and Debtors-in-Possession
Annex A
New Senior Secured Notes
Class 2
The principal economic terms of the New Senior Secured Notes are as
follows:
Principal Amount: Approximately $120 million less the Cash Sweep
Amount ($7.5 million).
Interest: 11.625% per annum, payable semi-annually on
September 30 and March 31, beginning on September
30, 1996.
Maturity: Three and one-half years after the Effective Date.
Mandatory Redemption: Year 1 $34.2 million
Year 2 $34.2 million
Year 3 $34.2 million
Maturity Balance
The amounts payable in each year shall be payable
on a pro rata basis in two equal installments,
beginning on September 30, 1996. The amount of the
first two (Year 1) installments shall, in each
case, be reduced by 37.5% of the Cash Sweep
Amount, if any, and the amount of the second two
(Year 2) installments shall, in each case, be
reduced by 12.5% of the Cash Sweep Amount, if any.
Collateral: First Lien on all of Reorganized Anacomp's
domestic account receivables, inventory, general
intangibles, plant, property and equipment; 100%
of the stock of Reorganized Anacomp's Domestic
Subsidiaries; 100% of the stock of the Pledged
Foreign Subsidiaries.
Optional Redemption: The New Senior Secured Notes are redeemable by
Reorganized Anacomp at any time prior to maturity
at 100% of principal amount plus accrued interest.
Asset Sales: Lien to be released on receipt by Reorganized
Anacomp of net sale proceeds.
Ranking: The New Senior Secured Notes shall be senior to
the New Senior Subordinated Notes and all future
Subordinated Indebtedness of Reorganized Anacomp.
Registration: Provided that Class 2 shall have accepted the
Plan, the New Senior Secured Notes shall be
registered pursuant to the Shelf Registration
Statement and freely tradable.
THE FOREGOING SUMMARY IS QUALIFIED IN ITS
ENTIRETY BY THE TERMS OF THE NEW SENIOR
SECURED NOTES INDENTURE, WHICH WILL BE
FILED ON OR BEFORE THE CONFIRMATION DATE.
<PAGE>
Annex B
New Senior Subordinated Notes
Class 5
The principal economic terms of the New Senior Subordinated Notes are
as follows:
Principal Amount: $160 million
Interest: 13.00% per annum, payable in cash semi-annually on
June 30 and December 31, provided, however, that
interest shall be payable on June 30, 1996 (in the
event that the Plan shall have become effective by
that date), December 31, 1996 and June 30, 1997 in
additional New Senior Subordinated Notes.
Maturity: On the sixth anniversary of the Effective Date.
Collateral: None.
Optional Redemption: The New Senior Subordinated Notes
shall be redeemable by Reorganized Anacomp at any
time prior to maturity at an initial redemption
price of 103% of principal amount plus accrued
interest, declining ratably to 101.5% in year 5
and 100% thereafter.
Mandatory Redemption: None. Any outstanding New Senior Subordinated
Notes issued in lieu of cash interest shall be
redeemed before April 30 in the year that is five
years after the Effective Date at the rate then
applicable to optional redemptions.
Ranking: The New Senior Subordinated Notes shall be senior
to all future Subordinated Indebtedness of
Reorganized Anacomp and will be subordinated to
the New Senior Secured Notes to the same extent as
the Old Senior Subordinated Notes were
subordinated to the Old Senior Secured Notes and
Old Credit Facilities.
Registration: Provided that Class 5 shall have accepted the
Plan, the New Senior Subordinated Notes shall be
registered pursuant to the Shelf Registration
Statement and freely tradable.
THE FOREGOING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE TERMS OF
THE NEW SENIOR SUBORDINATED NOTES INDENTURE AND THE NEW SENIOR
SECURED NOTES INDENTURE, WHICH WILL BE FILED ON OR BEFORE THE
CONFIRMATION DATE.
Annex C
List of Merged Subsidiaries
Applied Peripheral Systems, Inc.
Cadren Systems Corporation
Computer Services Corporation
Data Management Labs, Inc.
Dysan International Sales Corporation
Dysan International Sales Corporation II
Kalvar Microfilm, Inc.
Teksad Corporation
U.S. Video Corporation
Xidex Development Company
Xidex International Sales Corporation
Xidex Magnetics International Sales Corporation
