EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
In re: CASE NO: 00-12731-BKC-RAM
CHS ELECTRONICS, INC., CHAPTER 11 PROCEEDING
Debtor.
________________________/
FOURTH AMENDED LIQUIDATING PLAN
OF REORGANIZATION OF CHS ELECTRONICS, INC.
CHS Electronics, Inc., as Debtor in possession and Debtor, hereby
submits its Fourth Amended Liquidating Plan of Reorganization under Chapter 11
of Title 11 of the United States Code.
Respectfully submitted,
Tew Cardenas Rebak Kellogg
Lehman DeMaria & Tague L.L.P.
Attorneys for the Debtor
201 South Biscayne Boulevard
Miami Center, Suite 2600
Miami, FL 33131-4336
Tel: (305) 536-1112
Fax: (305) 536-1116
By: /s/ LYNN MAYNARD GOLLIN
---------------------------------
THOMAS R. LEHMAN, P.A.
Fla. Bar. No. 351318
[email protected]
LYNN MAYNARD GOLLIN, ESQ.
Fla Bar No. 621668
[email protected]
CHS Electronics, Inc.,
By: /s/ [illegible]
---------------------------------
Acting Chief Financial Officer
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CASE NO: 00-12731-BKC-RAM
PLAN OF REORGANIZATION
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TABLE OF CONTENTS PAGE
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INTRODUCTION................................................................................................ 5
ARTICLE I - DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION
OF TIME.......................................................................... 6
A. Scope of Definitions
B. Defined Terms
ARTICLE II - TREATMENT OF ADMINISTRATIVE AND PRIORITY
TAX CLAIMS ......................................................................26
A. Administrative Claims
B. Treatment of Administrative Claims
2.1 - Time For Filing Administrative Claims and Professional Fee Claims
2.2 - Allowance of Administrative Claims
2.3 - Payment of Allowed Administrative Claims
2.4 - [This Section Intentionally Left Blank]
2.5 - Administrative Claims - Stay Bonus Claims
2.6 - Administrative Claims - Break-Up Fee or Topping Fee
ARTICLE III - CLASSIFICATION OF CLAIMS AND INTERESTS ..........................................28
ARTICLE IV - DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
IMPAIRED AND NOT IMPAIRED BY THE PLAN............................................29
ARTICLE V - TREATMENT OF CLAIMS AND INTERESTS ...............................................30
5.1 - Class 1-Priority Tax Claims
5.2 - Class 2-Other Priority Claims
5.3 - Class 3-Unsecured Claims Other than Guarantee Claims
5.4 - Class 4-Guarantee Claims
5.5 - Class 5-Secured Claims
5.6 - Class 6-Administrative Convenience Unsecured Claims
5.7 - Class 7-Subordinated Securities Claims
5.8 - Class 8-Old Common Stock Interestholders
ARTICLE VI - EXECUTORY CONTRACTS AND UNEXPIRED LEASES.........................................33
A. Assumption and Rejection of Designated Executory Contracts and Unexpired
Leases
6.1 - Procedure
6.2 - Cure Payments
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B. Claims for Rejection Damages
ARTICLE VII - PROCEDURE FOR RESOLVING AND MAKING
DISTRIBUTIONS IN RESPECT OF DISPUTED CLAIMS
CONTINGENT OR UNLIQUIDATED
CLAIMS...........................................................................35
7.1 - Objections to Claims
7.2 - No Distributions Pending Allowance
7.3 - Disputed Claims Reserve
7.4 - Distributions in Respect of Disputed Claims
7.5 - Reservation of Right
7.6 - Determination of Contingent or Unliquidated Claims
ARTICLE VIII- MEANS OF IMPLEMENTING THE PLAN...................................................37
8.1 - [This Section Intentionally Left Blank]
8.2 - Sale of Assets
8.3 - Funding of the Plan
8.4 - Record Date
8.5 - Liquidating Trust Interests
8.6 - Disposition of the Excepted Assets
8.7 - Establishing the Liquidating Trust
8.8 - Cancellation of Old Common Stock
8.9 - Preservation of Causes of Action
8.10 - Effectuating Documents; Further Transactions
8.11 - Transfer of Excepted Assets and Europa Cash Consideration
8.12 - Designation of Responsible Person Prior to the Effective Date
ARTICLE IX - EFFECT OF THE PLAN ON CLAIMS AND INTERESTS.......................................41
9.1 - Discharge
9.2 - No Waiver of Causes of Actions
9.3 - Satisfaction of Subordination Rights
9.4 - [This Section Intentionally Left Blank]
9.5 - Release by Holders of Claims and Interests
9.6 - [This Section Intentionally Left Blank]
9.7 - Compromise and Settlements
ARTICLE X - DISTRIBUTIONS UNDER THE PLAN.....................................................44
10.1- Disbursing Agent
10.2- Surrender of Claims
10.3- Withholding Taxes
10.4- Setoffs and Recoupments
10.5- Undeliverable Distributions
10.6- DeMinimis Distributions
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10.7- Fractional Interests
ARTICLE XI - ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES
OF CLAIMS OR EQUITY INTEREST HOLDERS AND
PROVISIONS TO INVOKE CRAM-DOWN PROVISION.........................................47
11.1- Voting Classes
11.2- Acceptance by Impaired Classes
11.3- Non-Consensual Confirmation (Cramdown)
11.4- Presumed Acceptances of Unimpaired Classes
11.5- Presumed Rejection by Certain Impaired Classes
ARTICLE XII - PROVISIONS FOR RETENTION OF JURISDICTION FOR
SUPERVISION OF THE PLAN..........................................................48
ARTICLE XIII- NOTICES AND MISCELLANEOUS PROVISIONS.............................................52
13.1- Notices
13.2- Binding Effect of the Plan
13.3- Amendments/Modification of Plan
13.4- Governing Law
13.5- Headings
13.6- Successors and Assigns
13.7- Time
13.8- Severability
13.9- Revocation
13.10- [This Section Intentionally Left Blank]
ARTICLE XIV - THE LIQUIDATING TRUST............................................................53
ARTICLE XV - CONCLUSION - CONDITIONS PRECEDENT................................................59
15.1- Conditions to Confirmation
15.2- Conditions to Effective Date
15.3- Waiver of Conditions to Confirmation or Consummation
Exhibits to Plan
Exhibit "A" The Letter Agreement dated March 17, 2000
Exhibit "B" The Liquidating Trust Agreement
Exhibit "C" List of Retained Actions
Exhibit "D" List of Assumed Contracts
Exhibit "E" The Second Amended and Restated Stock Purchase Agreement
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CASE NO: 00-12731-BKC-RAM
INTRODUCTION
CHS Electronics, Inc. ("CHSE" or "Debtor"), as debtor and
debtor-in-possession in the above-captioned chapter 11 reorganization case,
hereby proposes the following fourth amended liquidating plan of reorganization
for the resolution of the Debtor's outstanding creditor claims and equity
interests.
This Plan provides for the liquidation and the distribution of the
Debtor's Assets to Creditors in two ways. First, the Plan provides for the sale
of the Debtor's European Assets to a non-affiliated entity, Europa ITApS, a
Danish corporation, pursuant to the Stock Purchase Agreement, free and clear of
all liens, claims, encumbrances and interests. Subject to Court approval, some
or all of the European Assets may be sold to an entity other than Europa if a
higher and better offer for some or all of the European Assets is filed with the
Court and served by July 14, 2000, consistent with the Competing Transaction
Order. Second, the Excepted Assets shall be transferred to the Liquidating Trust
and the proceeds from the liquidation of the Excepted Assets shall be
distributed to Creditors.
The European Assets represent a very substantial portion of the
Debtor's total assets. In exchange for the transfer of the Debtor's European
Assets, the Debtor will receive $1 million in Cash, 35% of the fully diluted
Europa Common Stock and the Europa Senior Notes. All the foregoing consideration
transferred by Europa in exchange for the European Assets shall be distributed
to Creditors under this Plan, either directly by the Debtor or through the
Liquidating Trust. If another entity is approved by the Court to purchase all or
some of the European Assets, the consideration of such sale will be distributed
to Creditors under the Plan, either by the Debtor or through the Liquidating
Trust.
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This Plan provides for distributions to Claimholders (other than the
holders of Subordinated Securities Claims) who hold Claims as of the Record
Date. The holders of Subordinated Securities Claims, including Federal
Securities Litigation Claims, shall be limited to recovering from the proceeds
of the D & O Insurance, to the extent so entitled, and shall not otherwise
receive or retain any property under the Plan. There will not be a distribution
to Interestholders and their Interests shall be canceled. Under Section 1125(b)
of the Bankruptcy Code, a vote to accept or reject the Plan cannot be solicited
from a Claimholder or Interestholder until such time as the Disclosure Statement
has been approved by the Bankruptcy Court and distributed to Claimholders or
Interestholders. ALL CLAIMHOLDERS AND INTERESTHOLDERS ARE ENCOURAGED TO READ
THIS PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT
OR REJECT THIS PLAN.
The Debtor expressly reserves its right to alter, amend or modify this
Plan, one or more times, before its substantial consummation, subject to the
restrictions on modifications set forth in Section 1127 of the Bankruptcy Code
and Bankruptcy Rule 3019 and as otherwise set forth in the Plan.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME
A. Scope of Definitions: All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in Article I of this Plan. Any term
used in this Plan that is not defined herein, but is defined in the Bankruptcy
Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in
the Bankruptcy Code or the Bankruptcy Rules. Whenever the context requires, such
terms shall include the singular as well as the plural number.
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B. Defined Terms: The capitalized terms used in the Plan shall have the meanings
set forth in the numbered paragraphs of this Article.
1.01 "Administrative Claim" means a Claim for payment of costs or
expenses of the Case as specified in sections 503(b) and 507(a)(1) of the Code,
including without limitation: (i) the actual, necessary costs and expenses of
preserving the Debtor's estate and operating the businesses of the Debtor,
incurred and paid in the ordinary course of business by the Debtor after the
Petition Date; (ii) Claims under sections 330(a), 331 or 503 of the Code for
Professional Fee Claims, except, according to information provided by the
Debtor's management, those fees previously awarded and paid to professionals
retained in the Case; (iii) any Post-Petition taxes under Section 503(b)(1)(B)
and (C); (iv) fees and charges assessed against the Debtor's estate pursuant to
section 1930 of Title 28 of the United States Code ("United States Trustee
Fees"); (v) the Indenture Trustee Fee and the reasonable fees and expenses
described in Article II of the Plan; (vi) stay bonus claims; and (vii) any claim
arising from an award of a Topping Fee or Break-Up fee.
1.02 "Administrative Convenience Unsecured Claim" means a General
Unsecured Claim in a face amount of $1,000 or less and any Unsecured Claim
against the Debtor in excess of $1,000 that is reduced to $1,000 by election of
the holder thereof, as provided in writing on the Ballot; provided that for
purposes hereof, all such Unsecured Claims held by an entity or by any entity
and any Affiliate of an entity shall be aggregated, consolidated and treated as
one such Unsecured Claim; and provided further that, for purposes hereof, if all
or any part of an Unsecured Claim was or is assigned, the Unsecured Claims held
by all assignees of Unsecured Claims, shall be treated as one such Unsecured
Claim.
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1.03 "Affiliate"shall have the same meaning as set forth in Section
(101)(2) of the Bankruptcy Code.
1.04 "Allowed Administrative Convenience Unsecured Claim" shall mean an
Administrative Convenience Unsecured Claim to the extent it is an Allowed Claim.
1.05 "Allowed" when used with respect to a Claim (other than an
Administrative Claim, a Disputed Claim or a Claim which is not Allowed) shall
mean a Claim or that portion of a Claim: (i) which has been scheduled (other
than Claims set forth in the Debtor's Schedules as contingent, unliquidated or
disputed) or timely filed with the Court pursuant to Bankruptcy Rule 3003(e) as
to which no objection to the allowance thereof has been interposed by the Debtor
or Liquidating Trust or within any applicable period or limitation fixed by the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court; (ii) as to which
any objection to its allowance has been settled, waived or withdrawn or has been
denied by a Final Order; (iii) that has been allowed by a Final Order; (iv) as
to which the liability of the Debtor has been determined by a court of competent
jurisdiction other than the Bankruptcy Court; or (iv) that is specifically
designated in a liquidated amount in the Plan as an Allowed Claim. Unless
otherwise specified in the Plan, Allowed Claim shall not include interest on the
amount of such Claim from and after the Petition Date, but shall include accrued
but unpaid interest up to the Petition Date. "Allowed" when used with respect to
an Interest to the extent such Interest is listed on the transfer ledger
maintained by the Debtor as of the Confirmation Date, shall be an Interest that
is "Allowed" pursuant to the procedures set forth in Article V of the Plan.
1.06 "Allowed Administrative Claim" shall mean any Administrative Claim
that is Allowed pursuant to the procedure set forth in Article II of the Plan.
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1.07 "Allowed [Class Designation] Claim or Allowed [Class Designation]
Interest" shall mean an Allowed Claim or Interest in the Class specified.
1.08 "Allowed Interest" shall mean an Interest to the extent it is
allowed Interest.
1.09 "Allowed Other Priority Claims" shall mean an Other Priority Claim
to the extent it is an Allowed Claim.
1.10 "Allowed Secured Claim" shall mean an Allowed Claim secured by a
valid, perfected and enforceable lien, security interest or other charge against
or interest in Property in which the Debtor has an interest, or which is subject
to set-off under Section 553 of the Code, to the extent of the value (determined
in accordance with Section 506(a) of the Bankruptcy Code) of the interest of the
holder of such Allowed Claim in the Debtor's interest in such Property or to the
extent of the amount subject to such set-off, as the case may be.
1.11 "Allowed Unsecured Claim" shall mean an Unsecured Claim to the
extent it is an Allowed Claim, including all accrued but unpaid interest up to
the Petition Date.
1.12 "Assets" means all real and personal, tangible and intangible
property of the Debtor presently existing, or hereafter acquired, or created at
any time, wherever located, and by whomever held, together with the products and
proceeds thereof (including without limitation insurance proceeds).
1.13 "Ballot" shall mean the form or forms that will be distributed
with the Disclosure Statement to solicit acceptances of the Plan to holders of
Claims with Claims in Classes that are impaired under the Plan and entitled to
vote on the Plan.
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1.14 "Ballot Date" shall mean the date set by the Court by which all
Ballots must be received.
1.15 "Bankruptcy Code" means Title 11 of the United States Code, as in
effect from time to time, as applicable to the Chapter 11 Case.
1.16 "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time as applicable to the Chapter 11 Case,
including the Local Rules of the Court.
1.17 "Break-Up Event" shall mean the condition for payment of the
Break-Up Fee to Europa pursuant to the Court's June 13, 2000 Order Authorizing
Payment of Break-Up or Topping Fees to Europa ITAps.
1.18 "Break-Up Fee" shall mean the Break-Up Fee authorized to be paid
to Europa under the Court's June 13, 2000 Order Authorizing Payment of Break-Up
or Topping Fees to Europa ITAps. Payment of the Break-Up Fee is conditioned upon
the entry of an order by the Court authorizing and awarding payment of the
amount of the Break-Up Fee, after appropriate notice to parties in interest.
1.19 "Business Day" shall mean a day other than a Saturday or Sunday or
a "legal holiday" as that term is defined in Bankruptcy Rule 9006(a).
1.20 "Case" or "Chapter 11 Case" shall mean the CHS Electronics, Inc.,
Chapter 11 bankruptcy proceeding.
1.21 "Cash" shall mean Cash or cash equivalents, including, but not
limited to, checks, bank deposits or other similar items.
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1.22 "Causes of Action" means any and all actions, causes of action,
suits, accounts, controversies, agreements, promises, rights to legal remedies,
rights to equitable remedies, rights to payment and claims, whether known,
unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured and whether asserted or assertable directly or derivatively, in law,
equity or otherwise, which are or become property of the Estate pursuant to
Section 541 or Section 542 of the Bankruptcy Code or which become property of
the Liquidating Trust pursuant to the Plan.
1.23 "CHSE" or "CHS" shall mean CHS Electronics, Inc., Debtor.
1.24 "Claim" means a claim against the Debtor, whether or not asserted,
as defined in Section 101(5) of the Bankruptcy Code, including without
limitation, any right to payment from the Debtor, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, equitable, matured,
unmatured, contested, uncontested, legal, secured, or unsecured, or any right to
an equitable remedy for breach of performance if such breach gives right of
payment from the Debtor, whether such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, contested, secured, or
unsecured.
1.25 "Claims Bar Date" shall mean May 31, 2000, the deadline set by the
Court for filing any proofs of Claim that were required to be filed.
1.26 "Class" shall mean a group of Claims or Interests as classified
under Article III of the Plan.
1.27 "Collateral" shall mean any Property of the Debtor subject (i) to
a valid and enforceable lien or (ii) to the extent subject to set-off under
Section 553 of the Bankruptcy Code.
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1.28 "Competing Transaction Order" means the June 14, 2000 Order
Setting Conditions for Competing Proposals for the Acquisition of the Debtor's
European Assets.
1.29 "Confirmation Date" shall mean the date upon which the
Confirmation Order is entered by the Court.
1.30 "Confirmation Hearing" shall mean the hearing held by the Court to
consider confirmation of the Plan pursuant to Sections 1128 and 1129 of the
Bankruptcy Code and the applicable Bankruptcy Rule(s), as such hearing is
continued from time to time.
1.31 "Confirmation Order" shall mean the order entered by the Court
confirming the Plan.
1.32 "Court" shall mean the United States Bankruptcy Court for the
Southern District of Florida, Miami Division, in which Court the Case is
pending, and any Court having competent jurisdiction to hear appeals or
certiorari proceedings therefrom.
1.33 "Creditor" shall have the same meaning as set forth in Section
101(10) of the Bankruptcy Code.
1.34 "Creditors Committees" means the Official Committee of Creditors
Holding Unsecured Claims and the Official Committee of Noteholders appointed in
this case.
1.35 "Cure Payments" shall mean a payment related to curing defaults in
connection with assuming executory contracts and unexpired leases under Sections
365(b)(1)(A) and 365(b)(1)(B) of the Bankruptcy Code in accordance with the
procedures set forth in Article VI of the Plan.
1.36 "D&O Insurance" means any insurance coverage for CHSE and its
officers and directors, including, without limitation, insurance pursuant to
that certain Directors and Officers Corporate Liability Insurance Policies
Number P-SF000207 and related endorsements issued by
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Royal Insurance Company and that certain Directors and Officers Corporate
Liability Insurance Policy, Number DOC2799771-01 and related endorsement issued
by Zurich Insurance Company any proceeds thereof.
1.37 "Debentures" means the currently outstanding $40.5 million
aggregate principal amount of Floating Rate Convertible Debentures due 2003
issued by CHSE.
1.38 "Debentureholder" shall mean a holder of Debentures.
1.39 "Debt" shall have the same meaning as set forth in Section 101(12)
of the Bankruptcy Code.
1.40 [This Section Intentionally Left Blank]
1.41 "Deficiency Claim" shall mean a Claim equal to the amount, if any,
by which the total Allowed Claim of any Creditor exceeds the portion of such
Claim that is an Allowed Secured Claim; provided, however, if the Class of which
such Claim is a part makes the election provided for by Section 1111(b)(2) of
the Bankruptcy Code, there shall be no Deficiency Claim in respect of such
Claim.
1.42 "Disbursing Agent" shall mean the party designated by the Debtor,
after consultation with the Creditors' Committees, to serve as a disbursing
agent under Article X of the Plan.
1.43 "Disclosure Statement" shall mean CHS' Second Amended Disclosure
Statement in Support of Third Amended Liquidating Plan of Reorganization dated
June 28, 2000, and all exhibits annexed thereto or referenced therein, required
pursuant to Section 1125 of the Bankruptcy Code with respect to the Plan as may
be amended, modified or supplemented from time to time.
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1.44 "Disputed Claim" shall have the meaning contemplated by the
Bankruptcy Code and Bankruptcy Rules, and include a Claim (or portion thereof)
for which: (a) a proof of Claim is deemed filed under applicable law or order of
the Court; (b) an objection was or is deemed to be timely filed by the Debtor or
other party, and (c) such objection is not withdrawn or resolved by stipulation
with the Debtor.
1.45 "Disputed Claims Reserve" shall mean the reserve created pursuant
to Article VII of the Plan.
1.46 "Distribution" shall mean any distribution of property of the
Debtor's Estate or the Liquidating Trust, including without limitation, the
Europa Consideration and the proceeds of the Excepted Assets.
1.47 "Distribution Date" means with respect to a Claim, the Business
Day that is as soon as practicable on or after the later of (a) the Effective
Date or (b) the Business Day upon which the Claim becomes an Allowed Claim or an
Allowed Administrative Claim; and for other purposes the date the initial
Distributions are made to holders of Allowed Claims under the Plan.
1.48 "Drake" means Drake Point S.a.r.l., a company organized under the
laws of Luxembourg.
1.49 "Drake Agreement" means that certain Share Purchase Agreement
dated as of January 13, 2000 between Drake and Logistic, a copy being attached
as Exhibit E to the Stock Purchase Agreement.
1.50 "Effective Date" shall be the later of thirty (30) days after the
entry of the Confirmation Order or the date on which the Estate obtains
unconditional rights in the $1 million
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in Cash to be paid by Europa to the Liquidating Trust, Europa Senior Notes and
Europa Common Stock or other consideration paid by an entity or entities whose
higher and better bids for some or all of the European Assets is approved by the
Court. The Effective Date shall be no later than December 31, 2000 unless
extended by unanimous consent of the Debtor, the Post-Confirmation Creditors
Committee and Europa. If Europa is selected as highest and best offeror, and
there is no Closing pursuant to the Stock Purchase Agreement, the Plan will not
become effective and there will not be an Effective Date.
1.51 [This Section Intentionally Left Blank]
1.52 "Estate" shall have the same meaning as set forth in Section 541
of the Bankruptcy Code.
1.53 "Europa Consideration" shall mean the $1 million in Cash to be
paid by Europa to the Liquidating Trust, Europa Senior Notes and Europa Common
Stock and/or other consideration paid by an entity or entities whose higher and
better bids for some or all of the European Assets is approved by the Court,
that is distributed under the Plan to the holders of Allowed Claims.
1.54 "Excepted Assets" shall mean all Assets of the Debtor, other than
the European Assets sold to Europa or to any other entity or entities whose
purchase or transfer of some or all of the European Assets is a higher and
better offer approved by the Court. Excepted Assets include the D&O Insurance,
the Retained Actions, and any of the European Assets not sold or transferred to
Europa or any other entity.
1.55 "Europa" means Europa ITApS, a Danish corporation that is a
wholly-owned subsidiary of Plectrum Holdings, Limited, a Gibraltar company
controlled by Mark Keough, the
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former Chief Operating Officer of CHSE. As of the Petition Date, neither CHSE
nor any Affiliate of CHSE has an ownership interest in Plectrum Holdings,
Limited or Europa. The form of the organizational documents of Europa are an
Exhibit to the Disclosure Statement.
1.56 "Europa Common Stock" means the fully diluted common stock of
Europa.
1.57 "Europa Senior Notes" means $50 million in aggregate principal
amount of four- year promissory notes issued by Europa pursuant to the New
Indenture and delivered to the Debtor pursuant to the Plan in exchange for the
European Assets; provided, however, a portion of the Europa Thirty Month Notes
may be distributed to Drake consistent with the obligations under the Drake
Agreement and as provided in the Stock Purchase Agreement. The Europa Senior
Notes will mature four years after the first to occur of September 1, 2000 or
the Effective Date, and bear interest at the rate of 10% per annum payable in
Cash on March 1 and September 1 of each year, commencing March 1, 2001, until
maturity. Interest will commence to accrue on the Europa Senior Notes upon the
first to occur of September 1, 2000 or the Effective Date. The Europa Senior
Notes are mandatorily redeemable by Europa in $5 million increments (along with
accrued and unpaid interest to the date of redemption) at 24 months, 30 months,
36 months and 42 months after the first to occur of September 1, 2000 or the
Effective Date. The Europa Senior Notes shall be subject to the Registration
Rights Agreement. The Europa Senior Notes will be callable at any time at par
plus accrued interest.
1.58 [This Section Intentionally Left Blank]
1.59 "European Assets" means the issued and outstanding equity
securities of each of the companies named on Exhibits A and B of the Stock
Purchase Agreement, subject to the limitations
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and qualifications set forth in Exhibits A and B and Schedule 3.2 of the Stock
Purchase Agreement, and certain claims and rights in certain lawsuits described
in Exhibit C to the Stock Purchase Agreement.
1.60 "Face Amount" means (a) when used in reference to a Disputed Claim
or a Claim which is not an Allowed Claim, the full stated amount claimed by the
holder of a Claim in any proof of Claim timely filed with the Court or otherwise
deemed timely filed by any Final Order of the Court or other applicable
bankruptcy law, and (b) when used in reference to an Allowed Claim, the allowed
amount of such Claim.
1.61 "Federal Securities Litigation Claims" shall mean a claim asserted
by a plaintiff in the Federal Securities Suit.
1.62 "Federal Securities Suit" means the lawsuit captioned, In Re CHS
Electronics, Inc. Securities Litigation pending as Case No.
99-8186-Civ-Gold/Simonton, in the United States District Court for the Southern
District of Florida, Miami Division.
1.63 "Fee Application" shall mean an application under Section 330(a),
331 or 503 of the Bankruptcy Code for allowance of any Professional Fee Claim
and Claims for reimbursement of expenses by members of the Committees.
1.64 "Final Order" shall mean an order or judgment and with respect to
an order or judgment of the Bankruptcy Court that the order or judgment is
appealable of right to the United States District Court for the Southern
District of Florida pursuant to 28 U.S.C. ss. 158(a)(1), whether or not an
appeal can be timely taken, is taken, or is pending, unless the order is stayed
pending appeal, and whether or not a timely motion is filed under Bankruptcy
Rules 7052(b) or 9023, unless
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the order or judgment is stayed pending disposition of such motion; and shall
mean with respect to an order or judgment of the United States District Court
for the Southern District of Florida in respect to a matter as to which the
reference has been withdrawn pursuant to 28 U.S.C. ss. 157(d) that the order is
appealable of right to the United States Court of Appeals for the Eleventh
Circuit pursuant to 28 U.S.C. ss. 158(d) or 28 U.S.C. ss. 1291, whether or not
an appeal can be timely taken, is taken, or is pending, unless the order or
judgment is stayed pending appeal, and whether or not a timely motion is filed
under Bankruptcy Rules 7052(b) or 9023 or Rules 50, 52, 59 or 60 of the Federal
Rules of Civil Procedure, unless the order or judgment is stayed pending
disposition of such motion.
1.65 "Fixed Rate Notes" means the $200 million aggregate principal
amount of 9.875 percent fixed rate Senior Notes due 2005 issued by CHS and
outstanding under the Indenture.
1.66 "Guarantee Claim" shall mean claims arising from the Debtor's
guarantee of the obligations of any its Affiliates or subsidiaries to creditors
for loans advanced and/or goods and services supplied to the subsidiaries.
1.67 "Holder" shall have the meaning set forth in the attached Letter
Agreement.
1.68 "Holders" shall refer to all Noteholders, Debentureholders and
holders of Claims, including Guarantee Claims, who are parties to the Letter
Agreement.
1.69 "Indenture" shall mean the Indenture, dated as of April 9, 1998,
by and between, among others, CHS Electronics, Inc. and The Chase Manhattan
Bank, as Indenture Trustee, pursuant to which the Fixed Rate Notes were issued
and are outstanding.
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1.70 "Indenture Trustee" shall mean The Chase Manhattan Bank in its
capacity as indenture trustee under the Indenture, or any successor indenture
trustee appointed in accordance with the terms of the Indenture.
1.71 "Insider" shall have the meaning as defined in Section 101(31) of
the Bankruptcy Code.
1.72 "Insider Claims" shall mean all payments made or transfers to or
for the benefit of any officer or insider of the Debtor during the one year
period prior to the Petition Date.
1.73 "Interest" shall mean any right of a holder of Old Common Stock of
CHSE as of the Confirmation Date and arising from such holder's status as the
holder of an "equity security" within the meaning of Section 101(16) of the
Bankruptcy Code.
1.74 "Interestholder" shall mean the beneficial holders of Old Common
Stock of CHSE as of the Confirmation Date.
1.75 "Letter Agreement" means the Letter Agreement between CHSE,
Europa, and certain Noteholders, Debentureholders, and Holders of Claims, a copy
being attached hereto as Exhibit A.
1.76 "Lien" shall mean any mortgage, lien, charge, security interest,
encumbrance, or other security device of any kind affecting any Asset or
Property of the Debtor.
1.77 "Liquidating Trust" shall mean the Liquidating Trust Agreement
entered into pursuant to Article XIV of the Plan to retain and administer the
Excepted Assets in the form attached hereto as Exhibit "B". The Liquidating
Trustee shall be the representative of the Estate appointed to retain and
enforce any claim or interest of the Estate, including the Retained Actions.
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1.78 "Liquidating Trustee" shall mean the person selected by the Post
Confirmation Creditors' Committee to serve as the Liquidating Trustee of the
Liquidating Trust to manage and administer the Liquidating Trust.
1.79 "Logistic" means CHS Logistic Services, B.V., a company organized
under the laws of the Netherlands.
1.80 "New Indenture" shall mean the Indenture governing the Europa
Senior Notes substantially in the form attached as Exhibit "F" to the Stock
Purchase Agreement attached to the Plan as Exhibit "E".
1.81 "Noteholders" means the holders of the Fixed Rate Notes.
1.82 "Objection to Claims Deadline" shall mean the date by which the
Debtor or other party in interest shall file objections to Disputed Claims,
which date shall be on or before two (2) months after the Effective Date, unless
otherwise extended by Order of the Court.
1.83 "Old Common Stock" shall mean all of the shares of the common
stock of CHS, including any warrants and options to purchases such shares,
issued and outstanding as of the Confirmation Date.
1.84 "Order" shall mean a determination or judgment by the Court.
1.85 "Other Priority Claim" means a Claim entitled to priority pursuant
to Section 507(a) of the Bankruptcy Code other than a Priority Tax Claim or an
Administrative Claim.
1.86 "Petition Date" shall mean April 4, 2000, the date on which the
Debtor filed its voluntary petition for relief under Chapter 11 of the
Bankruptcy Code.
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1.87 "Plan" shall mean this Fourth Amended Liquidating Plan of
Reorganization, and all exhibits annexed hereto or referenced herein, as may be
amended, modified or supplemented from time to time.
1.88 "Post-Confirmation" shall mean the period commencing on the date
the Court enters the Confirmation Order and continuing thereafter until the case
is closed by the Order of the Court.
1.89 "Post-Confirmation Creditors Committee" means the Committee
consisting of three members: two members designated by the Trade Committee and
one member designated by the Noteholders Committee. The Post-Confirmation
Creditors' Committee shall perform the obligations of such Committee set forth
in Article XIV. Such Committees shall designate their representative(s) at least
ten (10) days before the Effective Date; provided, however, that as soon as two
(2) members are so appointed, the Post-Confirmation Creditors' Committee may
begin to exercise its powers and functions.
1.90 "Post-Petition" shall mean the period commencing on the Petition
Date and continuing thereafter until the Court enters the Confirmation Order.
1.91 "Pre-Petition" shall mean the period of time commencing prior to
the Petition Date and concluding on the Petition Date.
1.92 "Priority Claim" shall mean any Claim, if Allowed, entitled to
priority pursuant to Section 507(a) of the Bankruptcy Code, other than an
Administrative Claim.
1.93 "Priority Tax Claim" means a Claim entitled to priority pursuant
to Section 507(a)(8) of the Bankruptcy Code.
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1.94 "Professional Fee Claim" shall mean a Claim under Section 330(a),
331 or 503 of the Bankruptcy Code for compensation for professional services
rendered and reimbursement of expenses in the Case.
1.95 "Property" shall have the same meaning ascribed to it under
Section 541 of the Bankruptcy Code.
1.96 "Pro Rata" shall mean with reference to any Distribution on
account of any Allowed Claim or Allowed Interest in any Class, a Distribution
equal in amount to the ratio (expressed as a percentage) that the amount of such
Allowed Claim or Allowed Interest bears to the aggregate amount of all Allowed
and Disputed Claims or Interests of the same Class as determined by the
Disbursing Agent, Liquidating Trustee or the Court.
1.97 "Registration Rights Agreement" shall be the agreement of Europa
to register the Europa Senior Notes and the Europa Common Stock in the United
States (or major European market as to the Europa Common only) on the terms and
conditions set forth therein, substantially in the form attached as Exhibit I to
the Stock Purchase Agreement attached to the Plan as Exhibit E.
1.98 "Reinstated" or "Reinstatement" means (a) leaving unaltered the
legal, equitable and contractual rights to which a Claim entitles the holder of
the Claim so as to leave such Claim unimpaired in accordance with Section 1124
of the Bankruptcy Code, or (b) notwithstanding any contractual provision or
applicable law that entitles the holder of the Claim to demand or receive
accelerated payment of such Claim after the occurrence of a default (i) curing
any such default that occurred before or after the Petition Date, other than a
default of a kind specified in Section 365(b)(2) of the Bankruptcy Code; (ii)
reinstating the maturity of such Claim as such maturity
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existed before such default; (iii) compensating the holder of the Claim for any
damages incurred as a result of any reasonable reliance by such holder of the
Claim on such contractual provision or such applicable law; and (iv) not
otherwise altering the legal, equitable or contractual rights to which such
Claim entitles the holder of the Claim; provided, however, that any contractual
right that does not pertain to the payment when due of principal and interest on
the obligation on which such Claim is based, including, but not limited to,
financial covenant ratios, negative pledge covenants or restrictions on merger
or consolidation, and affirmative covenants regarding corporate existence.
prohibiting certain transactions or actions contemplated by the Plan, or
conditioning such transactions or actions on certain factors, shall not be
required to be reinstated in order to accomplish Reinstatement.
1.99 "Responsible Person" means the person selected as the Liquidating
Trustee by the Post-Confirmation Creditors Committee to perform its obligations
set forth in Section 8.12 of the Plan, until the Effective Date.
1.100 "Retained Actions" means all recovery rights, including, but not
limited to, Causes of Action and claims for relief on account and in respect of
the provisions of Sections 362, 510, 542, 544, 547, 548, 549, 550, and 553 of
the Code and existing under the state or federal law, whether known or unknown.
Notwithstanding anything to the contrary in the Plan or in the Disclosure
Statement, the provisions of the Disclosure Statement and the Plan which permit
the Debtor, the Creditors Committees, the Responsible Person, the
Post-Confirmation Creditors Committee or the Liquidating Trust to enter into
settlements and compromises for any potential litigation shall not have, and are
not intended to have, any res judicata effect with respect to any pre-petition
claims
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CASE NO: 00-12731-BKC-RAM
and causes of action that are not otherwise treated under the Plan and shall not
be deemed a bar to asserting such claims and causes of action, regardless of
whether or to what extent such claims and causes of action are specifically
described in the Plan or the Disclosure Statement relating hereto. The intent is
to preserve all possible claims, known or unknown, against potential defendants
and their parties. Furthermore, notwithstanding any provision or interpretation
to the contrary, nothing in the Plan or the Confirmation Order, including the
entry thereof, shall constitute or be deemed to constitute a release, waiver,
impediment, relinquishment or bar, in whole or in part, of or to any recovery
rights or any other claim, right or cause of action possessed by the Debtor
prior to the Effective Date. Retained Actions include (a) all claims, Causes of
Action, suits and proceedings, whether in law or in equity, whether known or
unknown, which the Debtor may hold against any entity, including, without
limitation, any Causes of Action brought Pre-Petition, and actions against any
Persons for failure to pay for products or services rendered by the Debtor, (b)
all claims, Causes of Action, suits and proceedings relating to enforcement of
the Debtor's intellectual property rights, (c) all claims or Causes of Action
seeking the recovery of the Debtor's accounts receivable or other receivables or
rights to payment created or arising in the ordinary course of the Debtor's
business, and (d) any right of the Estate to seek determination by the Court of
any tax, any fine or penalty relating to a tax, or any addition to a tax under
Section 505 of the Bankruptcy Code. Attached as Exhibit C to the Plan is a non
exclusive list and description of the Retained Actions known to the Debtor at
the time of the filing of the Plan.
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1.101 "Schedule of Assumed Contracts" shall mean the schedule of
executory contracts and unexpired leases to be assumed by the Debtor pursuant to
Article VI of the Plan, as reflected on Exhibit "D" to the Plan.
1.102 "Schedules" shall mean the schedules of Assets and Liabilities
and the Statement of Financial Affairs filed by the Debtor with the Court, as
required by Section 521 of the Bankruptcy Code and the Bankruptcy Rules.
1.103 "Secured Claim" shall mean a Claim that is considered secured
under Section 506(a) of the Bankruptcy Code by Property of the Debtor's Estate.
1.104 [This Section Intentionally Left Blank]
1.105 "Stay Bonus Claims" means the aggregate unpaid amount owing the
Debtor's employees pursuant to the terms of the Stay Bonus Order.
1.106 "Stay Bonus Order" means May 23, 2000 Order Authorizing Employee
Stay Bonus Plan and Related Relief as amended, entered by the Bankruptcy Court.
1.107 "Stock Purchase Agreement" means the Second Amended and Restated
Stock Purchase Agreement between Europa and the Debtor for sale of the European
Assets. A copy of the Second Amended and Restated Stock Purchase Agreement is
attached hereto as Exhibit E.
1.108 "Subordinated Securities Claims" means any Claim by an entity or
individual that asserts equitable or contractual rights of reimbursement,
contribution, rescission or indemnification arising from the purchase or sale,
or rescission thereof of Old Common Stock Interests and other Claims or Causes
of Actions by such entity or individual in connection therewith, including
Federal Securities Litigation Claims.
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1.109 "Topping Event" shall mean the condition for payment of the
Topping Fee to Europa pursuant to the Court's June 13, 2000 Order Authorizing
Payment of Break-Up or Topping Fees to Europa ITAps.
1.110 "Topping Fee" shall mean the Topping Fee authorized to be paid to
Europa under the June 13, 2000 Order Authorizing Payment of the Break-Up or
Topping Fees to Europa ITAps. Payment of the Topping Fee is conditioned upon the
entry of an order by the Court authorizing and awarding payment of the amount of
the Topping Fee, after appropriate notice to parties in interest.
1.111 "United States Trustee" shall have the same meaning ascribed to
it in 28 U.S.C.ss.581 et seq. and, as used in the Plan, refers to the Assistant
United States Trustee's Office located in the Southern District of Florida,
Miami, Florida.
1.112 "Unsecured Claim" shall mean any Claim against the Debtor that is
not an Administrative Claim, a Secured Claim or a Priority Claim, but including
without limitation, Claims arising from the rejection of an unexpired lease or
executory contract pursuant to Article VI of the Plan
ARTICLE II
TREATMENT OF ADMINISTRATIVE CLAIMS
A. Administrative Claims:
Pursuant to Section 1123(a)(1) of the Code, Administrative Claims are
not classified for purposes of voting or receiving Distributions under the Plan
and will be treated separately as set forth in Article II.
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B. Treatment of Administrative Claims
2.1 Time For Filing Administrative Claims and Professional Fee Claims.
Except for the United States Trustee, all holders of Administrative Claims,
including but not limited to Professional Fee Claims must file an application
for approval of such Claim with the Court and serve same upon the Debtor and
those parties specified in the Bankruptcy Rules prior to the Confirmation
Hearing. Professional Fee Claims must be in the form of a final Fee Application
and filed in accordance with the Bankruptcy Rules. At or after the Confirmation
Hearing, but prior to the Effective Date, professionals may submit supplemental
fee applications for approval by the Court. Unless otherwise Ordered by the
Court, the failure to file a Claim as provided herein will result in the
Administrative Claim being forever barred and discharged.
2.2 Allowance of Administrative Claims. An Administrative Claim other
than the United States Trustee's Claim will become an Allowed Administrative
Claim upon the entry of a Final Order allowing the Claim. The United States
Trustee's Claim shall be deemed to be Allowed Administrative Claim.
2.3 Payment of Allowed Administrative Claims. Ten days after the
Confirmation Date, the Debtor shall distribute to each holder of an Allowed
Administrative Claim, other than the Claim held by the United States Trustee,
the full amount of the Administrative Claim as of the Confirmation Hearing,
unless otherwise agreed to by the parties, or ordered by the Court. If there is
insufficient Cash to pay Administrative Claims in full on the Confirmation Date
and the holders of Administrative Claims have not consented to less than full
payment, the Plan cannot be confirmed. All amounts awarded pursuant to
supplemental applications of professionals after the
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Confirmation Hearing shall be paid no later than the Effective Date or ten days
after the entry of the Order awarding professional fees if after the Effective
Date.
2.4 [This Section Intentionally Left Blank]
2.5 Administrative Claims - Stay Bonus Claims. All amounts owed the
holders of Stay Bonus Claims shall be paid in accordance with the Stay Bonus
Order.
2.6 Administrative Claims - Break-Up Fee or Topping Fee. On the
occurrence of a Break-Up Event, the Break-Up Fee payable to Europa shall be an
Allowed Administrative Claim of Europa, payable as provided in Article 2.3. On
the occurrence of a Topping Event, the Topping Fee payable to Europa shall be
paid as an Allowed Administrative Claim of Europa, payable as provided under
Article 2.3. The Topping Fee shall be paid from the non-refundable deposit made
by the successful bidder for the European Assets.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 The Claims against the Debtor shall be classified as specified
below. Consistent with Section 1122 of the Bankruptcy Code, a Claim or Interest
is classified by the Debtor in the Plan in a particular Class only to the extent
the Claim or Interest is within the description of the Class and is classified
in a different Class to the extent the Claim or the Interest is within the
description of that different Class.
3.2 All Claims against the Debtor, and all Interests in the Debtor,
whether resulting in an Allowed Claim or not, shall be bound by the provisions
of the Plan and are hereby classified as follows:
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Class 1 Consists of all Priority Tax Claims
Class 2 Consists of all Other Priority Claims.
Class 3 Consists of all Unsecured Claims other than Guarantee
Claims.
Class 4 Consists of all Guarantee Claims
Class 5 Consists of all Secured Claims.
Class 6 Consists of all Administrative Convenience Unsecured
Claims and those holders of Unsecured Claims which
elect to be treated as Administrative Convenience
Unsecured Claims.
Class 7 Consists of all Subordinated Securities Claims.
Class 8 Consists of all Interestholders.
ARTICLE IV
DESIGNATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND NOT IMPAIRED BY THE PLAN
4.1 Unimpaired Classes of Claims: Classes 1, 2 and 5 are not impaired
under the Plan and are deemed to have voted in favor of and accepted the Plan.
4.2 The following Classes of Claims are impaired under the Plan:
Classes 3, 4, and 6.
4.3 Given the magnitude of claims in senior classes, the Debtor and the
Creditors Committees believe that there is no prospect of a Distribution to the
holders of Class 7 Claims, except to the extent of such holders interest, if
any, in the D&O Insurance. Accordingly, Class 7 is being presumed as having
rejected the Plan. Class 8 shall not receive a Distribution under the Plan. Each
of Class 7 and 8 is conclusively presumed to reject the Plan.
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ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
5.1 Class 1-Priority Tax Claims. With respect to each Allowed Priority
Tax Claim, at the sole option of the Debtor, a holder of an Allowed Priority Tax
Claim shall be entitled to receive on account of such Allowed Priority Tax
Claim, (a) equal Cash payments made on the last Business Day of every
three-month period following the Effective Date, over a period not exceeding six
(6) years after the assessment of the tax on which such Claim is based, totaling
the principal amount of such Claim plus simple interest on any outstanding
balance from the Effective Date calculated at the interest rate available on
ninety (90) day United States Treasury Securities on the Effective Date, (b)
such other treatment agreed to by the holder of an Allowed Priority Tax Claim
and the Debtor, provided such treatment is on more favorable terms to the
Debtor, as the case may be, than the treatment set forth in clause (a) hereof,
or (c) payment in full.
5.2 Class 2-Other Priority Claims. On the Effective Date, or as soon as
practicable thereafter, each holder of an Allowed Priority Claim shall receive,
in full satisfaction, settlement release, and discharge of and in exchange for
such Allowed Other Priority Claim, (a) Cash equal to the amount of such Allowed
Other Priority Claim, or (b) such other treatment as to which the Debtor and
such holder of an Allowed Other Priority Claim shall have agreed upon in
writing.
5.3 Class 3- Unsecured Claims Other than Guarantee Claims. Class 3
shall consist of the holders of all general Unsecured Claims other than
Guarantee Claims. The holders of Class 3 Claims and Class 4 Claims shall be
treated together for the purpose of pro rating Distributions to these Classes
under the Plan. On the Effective Date, or as soon thereafter as practicable,
each holder of a Class 3 or 4 Claim will receive, in full satisfaction,
settlement, release and discharge of and in
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exchange for each and every Class 3 and 4 Claim, its Pro Rata share of the
Europa Senior Notes and Europa Common Stock without prejudice to the rights of
any Class of claimants to assert claims against Affiliates, or other primary
obligor(s), of the Debtor. In addition, when practicable or after the Effective
Date, each holder of a Class 3 or 4 Claim shall receive its Pro Rata share of
any Cash recoveries from or in connection with the Excepted Assets prior to the
Effective Date, and the consideration paid the Debtor by any entity other than
Europa who purchases some or all of the European Assets subject to whatever
reserve the Liquidating Trustee may deem appropriate for the operation of the
Liquidating Trust. Each holder of a Class 3 Claim or Class 4 Claim is hereby
deemed to receive a beneficial interest in the Liquidating Trust and be entitled
to participate in subsequent Distributions therefrom. The consideration paid by
any entity or entities whose higher and better bids for some or all of the
European Assets shall be distributed, Pro Rata, on the Effective Date to each
holder of a Class 3 or Class 4 Claim. Claims, if any, between the corporations
constituting the European Assets and the Debtor shall be canceled and deemed
null and void on the Effective Date and receive no Distributions under the Plan.
Distributions to holders of Fixed Rate Notes shall be made by the Disbursing
Agent to the Indenture Trustee for the benefit of holders of Fixed Rate Notes.
The Indenture Trustee shall in turn be authorized and directed to make
distributions under the Plan and the Indenture to holders of the Fixed Rate
Notes who hold such Fixed Rate Notes as of the Record Date.
5.4 Class 4-Guarantee Claims. Class 4 shall consist of all unsecured
creditors holding Guarantee Claims. The treatment of Class 4 Claims is as set
forth in Section 5.3.
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5.5 Class 5-Secured Claims. For all purposes, including voting,
confirmation and Distribution under the Plan, the amount of any Allowed Secured
Claim will be determined based on the value of the Collateral securing such
Claim to the extent that such Collateral is part of the Excepted Assets to be
transferred by the Debtor to the Liquidating Trust. Any Claim that is secured by
an unavoidable Lien on Property of the Debtor that is to be surrendered by the
Debtor prior to the Effective Date shall be treated as a Class 3 Claim, pursuant
to this Article, but shall be reduced by the extent of the value of the
surrendered Collateral securing such Claim, as determined by the Court pursuant
to Section 506(a) of the Code. With respect to Property that is transferred to
the Liquidating Trust that is Collateral subject to an Allowed Secured Claim,
the legal, equitable and contractual rights of the holder of the Allowed Secured
Claim shall be Reinstated on the Effective Date and all payments required to be
made to effectuate Reinstatement shall be made by the Liquidating Trust. The
Debtor's failure to object to such Secured Claim in the Case shall be without
prejudice. The Liquidating Trust's right to contest or otherwise defend against
such Claim, in the appropriate forum, when and if such Claim is sought to be
enforced by a holder of an Allowed Secured Claim is hereby reserved.
Notwithstanding Section 1141(c) or any other provision of the Bankruptcy Code,
all Pre-Petition Date Liens on Property of the Debtor held by or on behalf of
the holders of Allowed Secured Claims with respect to such Claims shall survive
the Effective Date and continue in accordance with the contractual terms of the
underlying agreements with such holders of an Allowed Secured Claim until, as to
each such holder of an Allowed Secured Claim, the Allowed Claims of such holders
of Secured Claims are paid in full.
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5.6 Class 6-Administrative Convenience Unsecured Claims. The holders of
Allowed Administrative Convenience Unsecured Claims will receive payment in Cash
on the Effective Date or as soon thereafter as is practicable in an amount equal
to 100% of the Face Amount of such Allowed amount of such Claims, not to exceed
$1,000. Any holder of an Allowed Unsecured Claim (or Claims) in excess of $1,000
that desires treatment of such Claim (or Claims) as an Allowed Administrative
Convenience Unsecured Claim shall make an irrevocable election to reduce its
Claim (or aggregate Claims) to $1,000 in writing on the Ballot and return such
Ballot on or prior to the Ballot Date. Any election made after the Ballot Date
shall not be binding on the Debtor unless the Ballot Date deadline is expressly
waived in writing by the Debtor for the express benefit of any holder.
5.7 Class 7-Subordinated Securities Claims. The holders of Subordinated
Securities Claims, including Federal Securities Litigation Claims, shall be
limited to recovering from the proceeds of the D & O Insurance, to the extent so
entitled, and shall not otherwise receive or retain any property under the Plan.
5.8 Class 8-Old Common Stock Interestholders. Old Common Stock
Interestholders shall receive no Distributions under the Plan. All Old Common
Stock Interests shall be deemed to be canceled and extinguished on the Effective
Date.
ARTICLE VI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumption and Rejection of Designated Executory Contracts and Unexpired
Leases.
6.1 Procedure. On the Effective Date, the Debtor will assume and
transfer to the Liquidating Trust, the executory contracts and unexpired leases
on the Schedule of Assumed
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CASE NO: 00-12731-BKC-RAM
Contracts and Leases attached as Exhibit D to the Plan. Each executory contract
and unexpired lease of the Debtor (i) that has not been assumed or rejected
before the Confirmation Hearing with the approval of the Court and (ii) that is
not listed on the Schedule of Assumed Contracts (as it may be amended or
modified), shall be deemed rejected as of the date of the Confirmation Order.
The Court will determine whether to authorize the foregoing assumptions and
rejections at the Confirmation Hearing. The Debtor reserves the right to amend
the Schedule of Assumed Contracts either to (a) delete certain executory
contracts or unexpired leases listed therein and provide for their rejection or
(b) add additional executory contracts or unexpired leases, thus providing for
their assumption by the Debtor at any time prior to the Confirmation Hearing or
such later date as may be ordered by the Court. At or prior to the conclusion of
the Confirmation Hearing, the Debtor may identify any other executory contracts
or unexpired leases that it may assume or reject effective as of the Effective
Date. Any amendment to the Schedule of Assumed Contracts at or prior to the
conclusion of the Confirmation Hearing to delete an executory contract or
unexpired lease will be deemed and treated as a rejection of such contract or
lease pursuant to Sections 365(g) and 502(g) of the Bankruptcy Code.
6.2 Cure Payments. Any Cure Payments that may be required shall be made
by the Debtor on the Effective Date, in Cash, to each entity listed on the
Schedule of Assumed Contracts and Leases unless proof of transfer of the Claim
has been filed in accordance with the applicable Bankruptcy Rule.
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B. Claims for Rejection Damages
6.3 Claims created by the rejection of any executory contract or
unexpired lease must be served on the Debtor and filed with the Court not later
than thirty (30) days after the entry of an Order authorizing such rejection, or
if rejection is made through the terms of this Plan, and not by specific motion,
then not later than thirty (30) days after the entry of the Confirmation Order.
Any Claims not filed within such time will be forever barred from assertion
against the Debtor's Estate or the Liquidating Trust. Unless otherwise ordered
by the Court, all such Claims arising from the rejection of an executory
contract or unexpired lease will be treated as Class 3 Claims.
ARTICLE VII
PROCEDURE FOR RESOLVING AND MAKING
DISTRIBUTIONS IN RESPECT OF DISPUTED, CONTINGENT OR
UNLIQUIDATED CLAIMS
7.1 Objections to Claims. Objections to Claims must be filed and served
by the Objections to Claims Deadline. A Claim that is objected to prior to the
Confirmation Hearing shall not have the right to vote to accept or reject the
Plan until the objection is resolved, unless the Court enters an Order pursuant
to Bankruptcy Rule 3018(a) temporarily allowing such Claim for voting purposes
only. Objections to Claims may be filed by any Creditor or party in interest.
7.2 No Distributions Pending Allowance. Notwithstanding any other
provision of the Plan, no payment or Distribution shall be made with respect to
any Claim to the extent it is a Disputed Claim unless and until such Disputed
Claim becomes an Allowed Claim.
7.3 Disputed Claims Reserve: The Disbursing Agent will withhold
Distributions to holders of Disputed Claims in the amount of the Disputed Claim,
or such smaller amount ordered by the Court after notice and hearing, and shall
hold such withheld Distributions until, if ever, the
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CASE NO: 00-12731-BKC-RAM
Disputed Claims become Allowed Claims or the Disputed Claims Reserve is
transferred to the Liquidating Trust (the "Disputed Claims Reserve"). On the
Effective Date, the Disputed Claims Reserve will be transferred to and
administered by the Liquidating Trust. The voting and other rights of a holder
of Europa Senior Notes and Europa Common Stock may be exercised by the
Liquidating Trustee for Europa Senior Notes and Europa Common Stock remaining in
the Disputed Claims Reserve and transferred to the Liquidating Trustee, until
such property is distributed from the Disputed Claims Reserve to the holders of
Allowed Claims.
7.4 Distributions in Respect of Disputed Claims: Distributions to
holders of Disputed Claims to the extent that such Claims ultimately become
Allowed Claims, will be made from the Disputed Claims Reserve or the Liquidating
Trust, as the case may be, in accordance with the provisions of this Plan
governing the Class of Claims to which the respective Claim holder belongs.
7.5 Reservation of Right. All Claims, with the exception of Allowed
Claims, filed with the Court and all Claims listed in the Debtor's Schedules as
being disputed, contingent or unliquidated may be objected to, or the Schedules
amended to eliminate the Claim(s), and the Debtor reserves the right to do so
(if the Responsible Person has been selected, as provided in Section 8.12, the
Responsible Person shall substitute for the Debtor).
7.6 Determination of Contingent or Unliquidated Claims. The Debtor and
the Liquidating Trustee shall be responsible for the reconciliation of Claims
held by holders of contingent or unliquidated Claims, including those claimants
designated unliquidated and/or as contingent on the Schedules and any amendment
to the Schedules ("Contingent/Unliquidated Claims" or "Contingent/Unliquidated
Claimant") in the manner prescribed in the Liquidating Trust
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CASE NO: 00-12731-BKC-RAM
Agreement (if the Responsible Person has been selected, as provided in Section
8.12, the Responsible Person shall substitute for the Debtor).
ARTICLE VIII
MEANS OF IMPLEMENTING THE PLAN
8.1 [This Section Intentionally Left Blank]
8.2 Sale of Assets. The Plan provides for the sale of the European
Assets, which is a very substantial portion of the Debtor's assets, pursuant to
the Stock Purchase Agreement. Under the Plan, the European Assets shall be sold
to Europa and in exchange for such sale, Europa shall transfer to the
Liquidating Trust $1 million in Cash and transfer to the Debtor 35% of the fully
diluted Europa Common Stock and the Europa Senior Notes. Subject to Court
approval, some or all of the European Assets may be sold to an entity other than
Europa. Except for the $1 million in Cash and the consideration paid to Drake,
pursuant to the Drake Agreement, for the transfer of 28% of the stock of CHS
France SA, all of the consideration paid the Debtor for the sale of the European
Assets, shall be distributed, Pro Rata, to holders of Allowed Class 3 Claims and
Allowed Class 4 Claims. If Europa is selected as highest and best offeror, and
there is no Closing pursuant to the Stock Purchase Agreement, the Plan will not
become effective and there will not be an Effective Date.
8.3 Funding of the Plan. It is contemplated that the Estate will have
sufficient Cash available, including Cash recoveries from the Excepted Assets
prior to the Effective Date, to fund all payments required to be made on the
Effective Date. The Distributions that the Plan provides shall be made by the
Disbursing Agent to holders of Allowed Claims on the Effective Date of the Plan
or as soon thereafter as is practicable. Europa shall transfer the sum of $1
million in Cash,
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Europa Senior Notes and 35% of the fully diluted Europa Common Stock to the
Debtor no less than 10 days before the Effective Date of the Plan, to be held in
escrow until the Effective Date. Any entity whose higher and better bid for some
or all of the European Assets shall transfer its consideration for the purchase
of such assets to the Debtor ten days before the Effective Date to be held in
escrow until the Effective Date. On the Effective Date, the Debtor shall convey,
transfer, assign and deliver the European Assets or cause a wholly-owned foreign
entity or entities to convey, transfer, assign and deliver the European Assets
to Europa or other purchaser of some or all of the European Assets free and
clear of all liens and interests and the Europa Senior Notes and Europa Common
Stock and other consideration paid for the European Assets shall be released
from escrow and delivered to the Debtor free and clear of all liens and
interests, and be distributed by the Debtor pursuant to this Plan. On the
Effective Date, $1 million in Cash shall be transferred to the Liquidating Trust
to by administered by the Liquidating Trustee pursuant to the terms of the
Liquidating Trust. To the extent that any Cure Payments or Reinstatement
payments are required to be paid on the Effective Date, such payments shall be
made in Cash on the Distribution Date from Cash of the Debtor not subject to a
lien or security interest.
8.4 Record Date. Notwithstanding the provisions of Bankruptcy Rule
3018(a) (for purposes of voting), the record date for determining which holders
of Claims are entitled to receive Distributions under the Plan shall be the
Confirmation Date. As of the close of business on the Confirmation Date, the
Debtor shall be entitled to recognize and deal for all purposes of the Plan
(including Distributions) with only (1) those holders of Old Common Stock of
record stated as of such date and time in the transfer ledger (2) claimants
listed in the Schedules, as claims which are
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CASE NO: 00-12731-BKC-RAM
not contingent, disputed or unliquidated unless a notice of transfer of Claim
was filed, in accordance with Bankruptcy Rule 3001(e)(1) or 3001(e)(2) prior to
such date and (3) holders of Disputed Claims which become Allowed Claims
pursuant to an Order by the Court prior to the Confirmation Date.
8.5 Liquidating Trust Interests. On the Effective Date, the holders of
Allowed Unsecured Claims, including Allowed Guarantee Claims, shall be deemed to
have received on a Pro Rata share basis, beneficial interests in the Liquidating
Trust as provided in Article XIV and on such basis shall be entitled to
participate in subsequent Distributions if any, from the Liquidating Trust.
8.6 Disposition of the Excepted Assets. On the Effective Date, the
Disputed Claims Reserve and the Excepted Assets, less any Cash Distributions,
shall be absolutely and irrevocably granted, assigned and transferred to the
Liquidating Trust.
8.7 Establishing the Liquidating Trust. On the Effective Date, the
Liquidating Trust shall be established in accordance with Article XIV hereof,
and the issuance and allocation of the beneficial interests in the Liquidating
Trust shall be deemed to have been made as authorized herein.
8.8 Cancellation of Old Common Stock. On the Effective Date, the Old
Common Stock Interests shall be canceled, and all obligations evidenced thereby
discharged and fully satisfied by the confirmation of the Plan.
8.9 Preservation of Causes of Action.
8.9.1 In accordance with section 1123(b)(3) of the Bankruptcy
Code and except as otherwise provided in the Plan, Retained Actions shall be
preserved for the Estate and transferred to the Liquidating Trust. The Retained
Actions are retained and the Liquidating Trustee is hereby appointed the
representative of the Estate for the enforcement of the Retained Actions.
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CASE NO: 00-12731-BKC-RAM
8.9.2 As the Estate's representative under Section
1123(b)(3)(B) of the Bankruptcy Code, the Liquidating Trustee, subject to the
Liquidating Trust Agreement, shall determine whether to enforce or prosecute
Retained Actions.
8.10 Effectuating Documents; Further Transactions. The Acting Chief
Financial Officer or executive officer of the Debtor, or Responsible Person, as
the case may be, shall be authorized to execute, deliver, file or record such
contracts, instruments, releases, indentures and other agreements or documents,
and take such actions as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Plan.
8.11 Transfer of Excepted Assets and Europa Cash Consideration . Prior
to the Effective Date and subject to Section 8.12, the Debtor shall continue to
operate its business subject to all applicable requirements of the Bankruptcy
Code, the Bankruptcy Rules and where applicable, Orders entered by the Court.
Except as may be otherwise provided in the Plan or the Confirmation Order, title
to (i) the Excepted Assets and (ii) the $1 million in Cash to be paid by Europa
shall vest in the Liquidating Trust free and clear of all Claims and Interests
on the Effective Date. Thereafter, the Debtor shall cease its business.
8.12 Designation of Responsible Person Prior to Effective Date. Prior
to or in conjunction with the Confirmation Date, the Post-Confirmation Creditors
Committee, shall select, subject to Court approval, the person who will become
the Liquidating Trustee on the Effective Date. The person selected as the
Liquidating Trustee shall function as the Responsible Person under the Plan. The
Responsible Person shall be subject to oversight by the Post-Confirmation
Creditors Committee. The Responsible Person shall be the Estate's representative
under 11 U.S.C.
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CASE NO: 00-12731-BKC-RAM
ss.1123(b)(3)(B) to enforce, investigate and prosecute the Retained Actions in
the name of the Debtor until the Effective Date, when the Liquidating Trustee
shall be substituted for the Responsible Person. The Responsible Person may
also, in the name of the Debtor, investigate, negotiate and request approval for
the sale of Excepted Assets and file and prosecute Objections to Claims. The
Responsible Person shall be authorized, with the approval of the
Post-Confirmation Creditors Committee, to employ such professionals and other
persons as it may deem necessary to enable it to perform its functions and
fulfill its duties hereunder, and the costs of such employment and other
expenditures shall be paid from the Estate. Such attorneys, accountants or other
professionals, if any, shall be compensated and shall be reimbursed for their
reasonable and necessary out-of-pocket expenses upon application to the Court.
Notwithstanding the designation of the Responsible Person, the Debtor's existing
management will remain in control of the Debtor to the extent necessary to carry
out the Confirmation Order, the extent necessary to close the sale of the
European Assets and perform other duties required by a debtor in possession,
post-Confirmation. Any changes to the foregoing allocation of responsibilities
between the Debtor's management and the Responsible Person shall be subject to
Court Order.
ARTICLE IX
EFFECT OF THE PLAN ON CLAIMS AND INTERESTS
9.1 Discharge. As of the Effective Date, Europa and/or such other
entity approved by the Court, shall hold all Assets received pursuant to the
Plan, free and clear of all liabilities, liens, Claims and obligations or other
claims of any nature of the Debtor's Estate, except the liabilities, Claims,
obligations or interests created or preserved by the Plan. As of the Effective
Date, the
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CASE NO: 00-12731-BKC-RAM
Liquidating Trust shall hold all Assets received pursuant to the Plan, free and
clear of all liabilities, Liens, Claims and obligations or other claims of any
nature of the Debtor's Estate, except the liabilities, Claims, obligations or
interests created or preserved by the Plan, including any beneficial interest of
a Claimant in the Liquidating Trust. All legal or other proceedings and actions
seeking to establish or enforce liabilities, Claims, equity interests or
obligations of any nature against the Liquidating Trust and Europa for the
Property received by them with respect to debts and obligations, if any, of the
Debtor's Estate arising before the Effective Date shall be permanently stayed
and enjoined, except as otherwise specifically provided in the Plan.
9.2 No Waiver of Causes of Action. No provision of this Plan or the
acceptance of any Distributions hereunder shall compromise, settle or release
any Claims or Causes of Action belonging to the Debtor in respect of the Assets.
9.3 Satisfaction of Subordination Rights. All Claims against the Debtor
and all rights and Claims between or among holders of Claims relating in any
manner whatsoever to Claims against the Debtor, based upon any claimed
subordination rights (if any), shall be deemed satisfied by the Distributions
under the Plan to holders of Claims having such subordination rights, and such
subordination rights shall be deemed waived, released, discharged and terminated
as of the Effective Date. Distributions to the various Classes of Claims
hereunder shall not be subject to levy, garnishment, attachment or like legal
process by any holder of a Claim by reason of any claimed subordination rights
or otherwise, so that the holder of each Claim shall have received the benefit
of the Distributions in the manner set forth in the Plan.
9.4 [This Section Intentionally Left Blank]
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9.5 Release by Holders of Claims and Interests. Each Person or entity
who votes to accept the Plan or that accepts any Distribution on its Claim made
pursuant to the Plan shall, upon receipt of the Distribution to be made to such
releasing party under the Plan be presumed conclusively to have absolutely,
unconditionally, irrevocably and forever, released and discharged: Europa (but
excluding any claims arising from or in connection with Europa's obligations
under the Europa Senior Notes and Europa Common Stock distributed under the
Plan), and any entity whose purchase of some or all of the European Assets is
approved by the Court (excluding claims arising from such entity's obligations
with respect to the consideration paid by the entity), from any Claim, Interest,
or Cause of Action existing as of the Effective Date arising from, based on or
relating to, in whole or in part, the subject matter of, or the transaction or
event giving rise to, the Claim or Interest of such releasing party, and any
act, omission, occurrence or event in any manner related to such subject matter,
transaction or obligation, including any Claims made through the Debtor and
against the European Assets under alter ego Claims or Claims for piercing the
corporate veil.
9.6 [This Section Intentionally Left Blank]
9.7 Compromises and Settlements. Pursuant to Bankruptcy Rule 9019(a),
the Debtor may compromise and settle various Claims (a) against it and (b) that
it has against other Persons. The Debtor, or the Responsible Person, as the case
may be, expressly reserves the right (with Bankruptcy Court approval, following
appropriate notice and opportunity for a hearing) to compromise and settle
Claims against it and Claims that it may have against other Persons up to and
including the Effective Date. After the Effective Date, such right shall be
transferred to the Liquidating Trust.
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ARTICLE X
DISTRIBUTIONS UNDER THE PLAN
10.1 Disbursing Agent. On the Effective Date, after establishing the
Disputed Claims Reserve, the Disbursing Agent shall make Distributions of Cash,
Europa Common Stock and Europa Senior Notes and other consideration paid for the
European Assets pursuant to the Plan to the holders of Allowed Claims of Classes
3 and 4 (except for the $1 million in Cash to be paid by Europa which shall vest
in the Liquidating Trust).
10.2 Surrender of Claims. The holder of any instrument evidencing a
Claim shall surrender such instrument to the Disbursing Agent and the Disbursing
Agent shall distribute or shall cause to be distributed to the holder thereof
the appropriate Cash Distribution, Europa Common Stock and Europa Senior Notes,
or other consideration for the European Assets, as applicable hereunder. No
Property to be distributed hereunder shall be made to or on behalf of any such
holders unless and until (1) such instrument is received by the Disbursing Agent
or (2) such holder delivers to the Disbursing Agent an indemnity in form and
substance acceptable to the Disbursing Agent (and in the case of Noteholders,
the Indenture Trustee). Any holder that fails to surrender such instrument or to
deliver such indemnity to the Disbursing Agent within one year after the
Effective Date, shall be deemed to have forfeited all rights and Claims and
shall not participate in any Distributions of Property under the Plan and all
such Property shall be distributed to the other Holders in such Holder's class.
10.3 Withholding Taxes. The Disbursing Agent shall be entitled to
deduct any federal, state or local withholding taxes from any payments under the
Plan. As a condition to making a Distribution under the Plan, the Disbursing
Agent shall be entitled to require that the holder of any
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CASE NO: 00-12731-BKC-RAM
Allowed Claim provide such holder's taxpayer identification number and such
other certification as may be deemed necessary to comply with applicable tax
reporting and withholding laws.
10.4 Setoffs and Recoupments. By so instructing the Disbursing Agent,
the Debtor or Liquidating Trustee may, but shall not be required to, setoff
against or recoup from any Claim the payments to be made pursuant to the Plan in
respect of such Claim, any Claim of any nature whatsoever that the Debtor or
Liquidating Trust may have against the holder of a Claim, but neither the
failure to do so nor the Allowance of any Claim hereunder shall constitute a
waiver or release by the Debtor or Liquidating Trust of any such Claim or Causes
of Action the Debtor or Liquidating Trustee may have against such holder.
10.5 Undeliverable Distributions. If the Disbursing Agent is unable to
make Distributions to the holder of an Allowed Claim under the Plan for lack of
a current address for the holder or otherwise, after the passage of 180 days
from the Effective Date and after any additional effort to locate the holder
that the Disbursing Agent or Liquidating Trustee has attempted, the payment or
Distribution to the holder of such Claim(s) shall be transferred to the Disputed
Claims Reserve to be distributed as set forth in Article V, or the Liquidating
Trust if the Disputed Claims Reserve is transferred to the Liquidating Trust,
and the Claim shall be deemed satisfied to the same extent as if payment or
Distribution had been made to the holder of the Claim.
10.6 De Minimis Distributions. No Cash Distribution of less than ten
dollars ($10) shall be made by the Disbursing Agent to any holder of an Allowed
Claim unless a request therefor is made in writing to the Disbursing Agent.
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CASE NO: 00-12731-BKC-RAM
10.7 Fractional Interests. The calculation of the percentage
distribution of the Europa Senior Notes and Europa Common Stock to be made to
holders of Allowed Claims as provided in the Plan may mathematically entitle the
holder of such an Allowed Claim to a fractional interest in both of such
securities. Notwithstanding such entitlement, Europa Senior Notes to be issued
under the Plan shall be issued and distributed only in denominations of $1,000
and integral multiples thereof, and only whole shares of Europa Common Stock
shall be issued and distributed. For purposes of applying the following two
paragraphs, the holders of Allowed Claims under or evidenced by Fixed Rate Notes
shall, in the case of Fixed Rate Notes held in street name, mean the beneficial
holders thereof as of the Record Date.
10.7.1 Europa Senior Notes. All Europa Senior Notes that
otherwise would have been distributed under the Plan to a beneficial holder of
an Allowed Claim in denominations of less than $1,000 shall be aggregated into
Europa Senior Notes each having a denomination of $1,000 (the "Note Pool"). The
holders of Allowed Claims who would otherwise be entitled to receive a Europa
Senior Note in a denomination of less than $1,000 shall be ranked in descending
order from the highest fractional note amount to the lowest fractional note
amount, and a Europa Senior Note from the Note Pool shall be distributed to each
holder of an Allowed Claim in order of their ranking until the Note Pool is
exhausted. No consideration shall be paid in lieu of fractional Europa Senior
Notes to holders of Allowed Claims that receive nothing under the foregoing
procedure due to the exhaustion of the Note Pool.
10.7.2 [This Section Intentionally Left Blank]
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CASE NO: 00-12731-BKC-RAM
10.7.3 Europa Common Stock. The holders of Allowed Claims who
would otherwise be entitled to receive a fractional share of Europa Common Stock
of .5 or larger shall receive a whole share of Europa Common Stock. No
consideration shall be paid in lieu of fractional shares to holders of Allowed
Claims who would otherwise be entitled to receive a fractional share of less
than .5.
ARTICLE XI
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES OF
CLAIMS OR EQUITY INTEREST HOLDERS AND
PROVISIONS TO INVOKE CRAM-DOWN PROVISION
11.1 Voting Classes. Unless otherwise Ordered by the Court, each holder
of an Allowed Claim in Classes 3, 4, and 6 shall be entitled to vote to accept
or reject the Plan and shall be required to return its Ballot on or before the
Ballot Date. Any holder of a Disputed Claim shall not have the right to vote to
accept or reject the Plan until the Disputed Claim is resolved, unless the
holder of such Disputed Claim requests an Order from the Court pursuant to
applicable Bankruptcy Rules temporarily allowing such Disputed Claim for voting
purposes. Any Ballot received from any such holder of a Disputed Claim shall not
be considered in determining whether the Plan has been accepted by a particular
impaired Class of Claims.
11.2 Acceptance by Impaired Classes. An impaired Class of Claims shall
have accepted the Plan if (1) the holders (other than holders designated under
Section 1126(e) of the Bankruptcy Code) of at least two-thirds (2/3) in amount
of the Allowed Claims voting in such Class vote to accept the Plan; and (2) more
than one-half (1/2) in number of the holders (other than the holders designated
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CASE NO: 00-12731-BKC-RAM
under Section 1126(e) of the Code) of such Allowed Claims voting in such Class
vote to accept the Plan.
11.3 Non-Consensual Confirmation (Cramdown). The Debtor intends to
request that the Court confirm the Plan in accordance with Section 1129(b) of
the Code ("Cramdown provision") if any Class of Claims or Interests votes not to
accept or is deemed not to have accepted the Plan. For purposes of seeking
confirmation under the cramdown provision of the Code, should that alternative
means of confirmation prove to be necessary, the Debtor reserves the right to
modify or vary the terms of the Claims of the rejecting classes, so as to comply
with the requirements of 11 U.S.C. Section 1129(b).
11.4 Presumed Acceptances of Unimpaired Classes. Classes 1, 2 and 5 are
unimpaired under the Plan and, therefore, are conclusively presumed to have
accepted the Plan.
11.5 Presumed Rejection by Certain Impaired Classes. Given the
magnitude of claims in senior Classes, the Debtor and the Creditors Committees
believe that there is no prospect of a Distribution to the holders of Class 7
Claims, except to the extent of such holders' interest, if any, in the D&O
Insurance. Accordingly, Class 7 is being presumed as having rejected the Plan.
Class 8 shall not receive a Distribution under the Plan. Each of Class 7 and 8
is conclusively presumed to reject the Plan.
ARTICLE XII
PROVISIONS FOR RETENTION OF
JURISDICTION FOR SUPERVISION OF THE PLAN
12.1 The Court shall retain jurisdiction after the Confirmation Date
over all matters arising or related to the Case and the Plan for the following
purposes:
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CASE NO: 00-12731-BKC-RAM
12.1.1 to hear and determine objections to Claims filed by the
Debtor, the Liquidating Trustee or other parties in interest, including
objections to the classification, estimation, establishment of priority or
status of any Claim, and to allow or disallow any Disputed Claim, in whole or in
part, as contemplated in the Plan;
12.1.2 to resolve disputes over the ownership of a Claim;
12.1.3 to enter and implement such Orders as may be
appropriate in the event the Confirmation Order is for any reason stayed,
revoked, modified or vacated, provided, however, this provision shall not form a
jurisdictional basis for staying, revoking, modifying or vacating the
Confirmation Order;
12.1.4 to hear and determine all claims or Causes of Actions,
including any causes of action under applicable Sections of the Bankruptcy Code,
to recover the Debtor's Assets and Property, whether title is presently held in
the name of the Debtor or a third party;
12.1.5 to determine any and all pending fee claims of
professionals.
12.1.6 to make such Orders as are necessary or appropriate to
carry out the provisions of the Plan;
12.1.7 to make such other Orders or give such directions as
may be appropriate under Section 1142 of the Bankruptcy Code;
12.1.8 to determine any and all pending adversary proceedings,
contested matters, applications and unresolved motions and all actions commenced
by the Debtor or the Liquidating Trustee;
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CASE NO: 00-12731-BKC-RAM
12.1.9 to consider modifications of the Plan, if any, to cure
any defect or omission, or reconcile any inconsistency in any Order of the
Court, including, without limitation, the Confirmation Order;
12.1.10 to hear and determine all Claims arising from the
assumption or rejection of executory contracts and unexpired leases;
12.1.11 to hear and determine all controversies arising in
connection with the Plan and other matters provided for in the Confirmation
Order;
12.1.12 to enforce the releases and discharge provided in
Article IX of this Plan;
12.1.13 to enforce all Orders previously entered by the Court;
and
12.1.14 to enforce the provisions of the Plan relating to the
payments and Distributions to be made by the Debtor and the Liquidating Trust on
or after the Confirmation Date;
12.1.15 to hear and determine any tax, any fine or penalty
relating to a tax, or any addition to a tax under Section 505 of the Bankruptcy
Code; and
12.1.16 to hear and determine supplemental fee applications of
professionals after the Confirmation Hearing but on or before the Effective
Date.
12.2 Subsequent to the Confirmation Date, the Debtor and the
Responsible Person, as the case may be, are authorized and directed to cause to
be taken any action necessary or appropriate to carry out the provisions of this
Plan.
ARTICLE XIII
NOTICES AND MISCELLANEOUS PROVISIONS
13.1 Notices. All notices required to be made by third parties to the
Debtor in or under this Plan shall be in writing and shall be mailed by
registered or certified mail to the law offices of
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CASE NO: 00-12731-BKC-RAM
Tew Cardenas Rebak Kellogg Lehman DeMaria & Tague, L.L.P., Attn: Thomas R.
Lehman, P.A., Suite 2600, 201 South Biscayne Blvd., Miami, Florida 33131-4336.
All notices required to be made to the Creditors' Committees shall be mailed to:
<TABLE>
<CAPTION>
Trade Committee Noteholders Committee Noteholders Committee
--------------- --------------------- ---------------------
<S> <C> <C>
Paul Steven Singerman, Esq. Lawrence A. Larose, Esq. Timothy J. Norris, Esq.
Berger Davis & Singerman Cadwalader, Wickersham & Taft Buchanan Ingersoll P.C.
200 S. Biscayne Blvd. 100 Maiden Lane 100 S.E. Second St., Suite 2100
Suite 2950 New York, New York 10038 Miami, FL 33131
Miami, FL 33131
</TABLE>
13.2 Binding Effect of the Plan. The provisions of the Plan shall be
binding upon and inure to the benefit of the Debtor, the Liquidating Trust and
all holders of Claims and Interests and their respective successors and assigns.
13.3 Amendments/Modification of Plan. The Debtor reserves the right to
amend or modify the Plan in any manner necessary prior to the entry of the
Confirmation Order. After the entry of the Confirmation Order, the Debtor may:
(1) amend or modify the Plan and documents related thereto in accordance with,
and to the extent permitted by Section 1127(b) of the Bankruptcy Code and
Bankruptcy Rule 3019 or (2) 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. Pursuant to the terms of the Letter Agreement,
any amendment or modification to the Plan requires the consent of the Holders.
13.4 Governing Law. Except as mandated by the Bankruptcy Code or
Bankruptcy Rules as applicable, the rights and obligations arising under the
Plan shall be governed by, and construed and enforced in accordance with the
laws of the State of Florida; provided, however,
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CASE NO: 00-12731-BKC-RAM
the rights and obligations arising under the Europa Common Stock, Europa Senior
Notes, the Indenture and the Fixed Rate Notes (the "Instruments") shall be
governed by the laws of the State of New York. Europa and any Creditor receiving
a Distribution under the Plan shall thereby irrevocably consent to the
jurisdiction of the State and Federal Courts of the State of Delaware for the
determination of any Claims arising from or in connection with the Instruments.
13.5 Headings. Headings are used in the Plan for convenience and
reference only and shall not constitute a part of the Plan for any purpose.
13.6 Successors and Assigns. The Plan and all provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns.
13.7 Time. In computing any time periods described or allowed by the
Plan, the day of the act or event from which the designated period begins to run
shall not be included. The last day of the period so computed shall be included,
unless it is a Saturday, Sunday or a legal holiday, in which event, the period
will run until the next succeeding day which is not one of those aforementioned
days.
13.8 Severability. Should any provision of the Plan be determined to be
unenforceable after the Effective Date such determination shall in no way limit
or effect the enforceability and operative effect of any and all of the other
provisions of the Plan.
13.9 Revocation. The Debtor reserves the right to revoke and withdraw
the Plan prior to Confirmation. If the Debtor revokes and/or withdraws the Plan,
then the Plan shall be deemed null and void and nothing contained herein shall
be deemed to constitute a waiver or release of
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CASE NO: 00-12731-BKC-RAM
any Claims by or against the Debtor, or any other person or entity or to
prejudice in any manner the rights of such parties in any further proceedings
involving the Debtor.
13.10 [This Section Intentionally Left Blank]
ARTICLE XIV
THE LIQUIDATING TRUST
14.1 The Liquidating Trust will hold and liquidate the Liquidating
Trust's Assets for the benefit of the Creditors of the Debtor's Estate and for
payment of all Allowed Claims in accordance with the provisions of the Plan. The
Liquidating Trustee was not selected by the United States Trustee, will not be
supervised by the United States Trustee and is not bonded in favor of the United
States in an amount set by the United States Trustee.
14.1.1 [This Section Intentionally Left Blank]
14.1.2 The Liquidating Trust shall be directed by the Liquidating
Trustee, subject to the oversight of the Post-Confirmation Creditors' Committee
as otherwise set forth herein and in the Liquidating Trust Agreement, and the
Liquidating Trustee shall have full and complete authority to do and perform all
acts and execute all documents and make all payments and disbursements of funds
directed to be done, executed, performed, paid and disbursed by provisions of
the Plan.
14.1.3 Except as otherwise provided under the Plan, all of the Debtor's
right, title and interest in and to Excepted Assets and the $1 million in Cash
to be paid by Europa, as of the Effective Date of the Plan, shall vest in the
Liquidating Trust for administration, liquidation, and distribution in
accordance with the Plan. The Excepted Assets and the $1 million in Cash to be
paid by Europa transferred to the Liquidating Trust shall vest in the
Liquidating Trust free and
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CASE NO: 00-12731-BKC-RAM
clear of all Claims, Liens, interests and encumbrances, including holders of Old
Common Stock, except as otherwise provided under the Plan. Notwithstanding the
foregoing, to the extent that the conveyance or assignment of any of the
Debtor's Retained Actions to the Liquidating Trust would preclude or impair the
prosecution thereof by the Liquidating Trust, then the Liquidating Trust is
intended to and shall be deemed to be a "representative of the estate" approved
to retain and enforce such claims and Causes of Action, as contemplated by 11
U.S.C. ss.ss.1123(b)(3)(A) and (3)(B).
14.1.4 On the Effective Date, the Debtor will be deemed to have
assigned and transferred to the Liquidating Trust, for the benefit of the Estate
and its Creditors, the $1 million in Cash to be paid by Europa and all Excepted
Assets, including the Retained Actions. Pursuant to, among other authority,
ss.1123(b)(3)(B) of the Code, the Liquidating Trust shall have the full power,
authority and standing to prosecute, compromise or otherwise resolve Retained
Actions with all proceeds derived therefrom to become property of the
Liquidating Trust distributed in accordance with the Plan. The Liquidating Trust
shall not be subject to any counterclaims in respect of the recovery rights,
provided, however, that the recovery rights will be subject to any setoff rights
to the same extent as if the Debtor had pursued the recovery rights.
14.1.5 The Debtor shall execute and deliver documentation to the
Liquidating Trust (in a form reasonably acceptable to the Liquidating Trust and
its counsel) assigning and transferring title to the $1 million in Cash to be
paid by Europa and the Excepted Assets to the Liquidating Trust. The
Confirmation Order shall also contain appropriate language assigning and
transferring title to the $1 million in Cash to be paid by Europa and the
Excepted Assets to the
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CASE NO: 00-12731-BKC-RAM
Liquidating Trust and shall further provide that such assignment and transfer
shall be effective without further action by any party. The Excepted Assets
shall be comprised of any and all Property of the Debtor and shall include the
Retained Actions and all of the Assets. Thereafter, the Debtor shall not have
any further obligation to contribute any funds or assets to the Liquidating
Trust.
14.1.6 Any and all funds or assets in the Liquidating Trust (including
the Liquidating Trust's assets) shall be held for Distribution to the holders of
Allowed Unsecured Claims in accordance with the Plan. Once funds or assets are
deposited into the Liquidating Trust, they shall no longer be Property of the
Debtor or any other Person or Entity and neither the Debtor nor any other Person
or Entity shall have any claim to said funds or assets. The Confirmation Order
shall declare and provide that all funds or assets in the Liquidating Trust
(including the Liquidating Trust's assets) shall (a) be held in trust as set
forth above, (b) not be Property of the Estate in this or any subsequent
proceeding in which the Debtor or its successors or assigns may be a debtor
under the Bankruptcy Code, and (c) be protected from, and not be subject to, the
Claims of any Creditors of, or holders of Old Common Stock in, the Debtor.
14.1.7 On the Effective Date, the Debtor shall execute and deliver all
documents reasonably required by the Liquidating Trust, including the
endorsement of any instruments, all business records of the Debtor, and
authorizations to permit the Liquidating Trust to access all bank records, tax
returns, and other files and records of the Debtor. All business records of the
Debtor shall constitute the business records of the Liquidating Trust pursuant
to Federal Rule of Evidence 803(b) in any subsequent legal proceedings. After
the Effective Date, the Liquidating
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Trust shall control all of the Debtor's applicable legal privileges, including
control over the work product and attorney-client privilege, for matters arising
from or relating to transactions occurring, in whole or in part, prior to the
Effective Date.
14.1.8 The Liquidating Trust shall have all rights and powers of a
debtor in possession under ss.1107 of the Code and, in accordance with
ss.1123(b)(3)(B) of the Code, shall be designated and serve as the
representative of the Estate.
14.1.9 The Liquidating Trust shall be authorized, with the approval of
the Post- Confirmation Creditors' Committee, and subject to restrictions in the
Liquidating Trust to employ such professionals and other persons as it may deem
necessary to enable it to perform its functions and fulfill its duties
hereunder, and the costs of such employment and other expenditures shall be paid
from the property of the Liquidating Trust. The Post-Confirmation Creditors'
Committee shall have the right but not the obligation to employ professional and
other persons as it may deem necessary to enable it to perform its functions and
fulfill its duties hereunder, and the costs of such employment and other
expenditures shall be paid from the property of the Liquidating Trust. Such
attorneys, accountants or other professionals, if any, shall be compensated and
shall be reimbursed for their reasonable and necessary out-of-pocket expenses
from the Liquidating Trust, upon approval of such fees and expenses by the Post-
Petition Creditors' Committee. The Post-Petition Creditors' Committee shall have
ten (10) days from the submission of an invoice within which to object to the
invoice or to all or any portion of the compensation requested therein. Any
dispute in fees, expenses, engagement or other matters
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concerning professionals retained or sought to be retained by the Liquidating
Trust shall be decided by the Bankruptcy Court, after a hearing on notice.
14.1.10 The Liquidating Trust shall be specifically authorized to take
actions to maximize the value of the Debtor's stock in subsidiaries that is
included in the Excepted Assets transferred to the Liquidating Trust. The
Liquidating Trust shall be entitled to agree to a merger involving the Debtor's
stock or cause the subsidiaries' stock to be voted in favor of a merger. In the
event of a sale of some or all of the Debtors' stock or the Liquidating Trust's
receipt of proceeds from the sale of the subsidiaries' stock, the sale proceeds
shall become property of the Liquidating Trust. Nothing herein prevents the
Liquidating Trust from causing any of the entities in which it owns stock from
being dissolved in accordance with applicable law.
14.1.11 In addition to any duties set forth above, the Liquidating
Trust shall have the following duties:
14.1.11.i Resolve any pending objections to Unsecured Claims
and file or otherwise assert any objections necessary or appropriate to resolve
all Disputed Unsecured Claims and to resolve any Claims asserted against the
Liquidating Trust or the Liquidating Trust's Assets;
14.1.11.ii Make any required Distributions from the
Liquidating Trust to the holders of Allowed Claims in accordance with the terms
and provisions of the Plan, subject to Section 14.1.17;
14.1.11.iii Sell, distribute or otherwise liquidate any Assets
received from the Debtor;
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14.1.11.iv Pursue, investigate, prosecute, compromise and
otherwise resolve the Causes of Action, including the Retained Actions;
14.1.11.v Take actions to maximize the value of the Debtor's
Assets;
14.1.11.vi Pay all unpaid amounts owed holders of Allowed
Administrative Claims as of the Effective Date and in accordance with Section
2.3 of the Plan, prior to making any distributions to the holders of Allowed
Unsecured Claims.
14.1.11.vi Such other duties as may be set forth in the
Liquidating Trust.
14.1.11.vii In performing the duties described above, the
Liquidating Trust may act through legal counsel of its choice.
14.1.12 Notwithstanding anything to the contrary in the Plan or in the
Disclosure Statement, the provisions of the Disclosure Statement and the Plan
that permit the Debtor, the Creditor Committees or the Liquidating Trust to
enter into settlements and compromises of any potential litigation shall not
have, and are not intended to have, any res judicata effect with respect to any
Retained Actions and are not otherwise treated under the Plan and shall not be
deemed a bar to asserting such claims and Retained Actions, regardless of
whether or to what extent such claims and causes of action are specifically
described in the Plan or the Disclosure Statement relating hereto. The intent is
to preserve all possible claims, known or unknown, against all potential
defendants and their parties. The Liquidating Trust shall have the authority to
settle claims and litigation provided that all such settlements shall
nevertheless be subject to settlement standards imposed by Bankruptcy Rule 9019
and the standards set forth in In Re Justice Oaks II, Ltd., 898 F.2d 1544, 1549
(11th Cir. 1990), cert den., 498 U.S. 959, 1126 L.Ed.
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CASE NO: 00-12731-BKC-RAM
398, 111 S.Ct. 389 (1990). Furthermore, except for the waiver of claims provided
for in the Stock Purchase Agreement, notwithstanding any provision or
interpretation to the contrary, nothing in the Plan or the Confirmation Order,
including the entry thereof, shall constitute or be deemed to constitute a
release, waiver, impediment, relinquishment or bar, in whole or in part, of or
to any recovery rights or any other claim, right or cause of action possessed by
the Debtor prior to the Effective Date. In the event that the Court, or any
other court of competent jurisdiction, determines that the assignment of any
claim, right or cause of action, including without limitation, the recovery
rights, to the Liquidating Trust pursuant to this Plan is invalid or does not
grant to the Liquidating Trust the standing and all other right necessary to
pursue such claim, right or cause of action, then in such case the Liquidating
Trust shall be deemed appointed as the representative of the Estate for purposes
of enforcing and pursuing such claim, right or cause of action, including
without limitation, the recovery rights, and the proceeds thereof shall be
distributed in accordance with terms of the Plan.
ARTICLE XV
CONCLUSION
CONDITIONS PRECEDENT
15.1 Conditions to Confirmation. The following are conditions precedent
to confirmation of the Plan that may be satisfied or waived in accordance with
Section 14.3 of the Plan:
15.1.1 The Order Approving the Disclosure Statement and
Confirmation Order shall be in form and substance reasonably acceptable to the
Debtor, the Indenture Trustee, the
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Holders, and the Creditors Committees, but subject to the approval of Europa.
The Confirmation Order shall, among other things, provide that:
15.1.1.i the provisions of the Confirmation Order are
non-severable and mutually dependent;
15.1.1.ii the transfers of Property by the Debtor (A) to the
Liquidating Trust (1) are or shall be legal, valid, and effective transfers of
property, (2) vest or shall vest the Liquidating Trust with good title to such
property free and clear of all liens, charges, claims, encumbrances or
interests, except as expressly provided in the Plan or Confirmation Order, (3)
do not and shall not constitute avoidable transfers under the Bankruptcy Code or
under applicable non-bankruptcy law, and (4) do not and shall not subject the
Liquidating Trust to any liability by reason of such transfer under the
Bankruptcy Code or under applicable non-bankruptcy law, including, without
limitation, any laws affecting successor or transferee liability, and (B) to
holders of Claims under the Plan are for good consideration and value;
15.1.1.iii the transfers of Property by the Debtor (A) to
Europa (1) are or shall be legal, valid, and effective transfers of property,
(2) vest or shall vest Europa with good title to such property free and clear of
all liens, charges, claims, encumbrances or interests, except as expressly
provided in the Plan or Confirmation Order, (3) do not and shall not constitute
avoidable transfers under the Bankruptcy Code or under applicable non-bankruptcy
law, and (4) do not and shall not subject the Europa to any liability by reason
of such transfer under the Bankruptcy Code or under applicable non-bankruptcy
law, including, without
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limitation, any laws affecting successor or transferee liability, and (B) to
holders of Claims under the Plan are for good consideration and value;
15.1.1.iv the Bankruptcy Court shall have determined that
Europa Senior Notes and Europa Common Stock and any other securities issued
under the Plan in exchange for Claims against the Debtor are exempt from
registration under the Securities Act of 1933 pursuant to, and to the extent
provided by Section 1145 of the Bankruptcy Code (or such other exemption as may
be available under the Securities Act of 1933); provided, however, that the
Bankruptcy Court need not determine that subsequent transfers of the Europa
Common Stock by Creditors will be exempt under Section 1145 of the Bankruptcy
Code;
15.1.1.v any waiver of conditions to Confirmation and
effectiveness shall require the consent of the Holders; and
15.1.1.vi establish the Liquidating Trust and approve the
appointment of the Liquidating Trustee.
15.2 Conditions to Effective Date. The following are conditions
precedent to the occurrence of the Effective Date, each of which may be
satisfied or waived in accordance with Section 15.3 of the Plan:
15.2.1 The Bankruptcy Court shall have entered one or more
orders (which may include the Confirmation Order) authorizing the assumption of
leases and executory contracts by the Debtor as contemplated by Article VI
hereof, but only if the Debtor seeks assumption of any leases and executory
contracts; and
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15.2.2 The Confirmation Order shall have been entered by the
Bankruptcy Court and shall be a Final Order.
15.3 Waiver of Conditions to Confirmation or Consummation. The
conditions set forth in Articles 15.1 and 15.2 of the Plan may be waived by the
Debtor in its sole discretion without any notice to parties in interest or the
Bankruptcy Court and without a hearing provided that the consent of the Holders,
the Creditors Committees and the Indenture Trustee will be required in the event
of any waiver that materially and adversely affects the treatment, Distributions
or rights afforded to the holders of Claims in this Plan and the consent of
Europa will be required in the event any waiver materially and adversely affects
Europa. The failure to satisfy or waive any condition to the Confirmation Date
or the Effective Date may be asserted by the Debtor in its sole discretion
regardless of the circumstances giving rise to the failure of such condition to
be satisfied (including any action or inaction by the Debtor in their sole
discretion). The failure of the Debtor in its sole discretion to exercise any of
the foregoing rights shall not be deemed a waiver of any other rights, and each
such right shall be deemed an ongoing right, which may be asserted at any time.
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