Exhibit 99.4
------------
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ---------------------------------------X
:
In re : Chapter 11 Cases Nos.
:
AI REALTY MARKETING OF NEW YORK, :
INC., LASER ACQUISITION CORP., DDG I, : 01-40252 (AJG) through
INC., SUNBEAM CORPORATION AMERICAS : 01-40290 (AJG)
HOLDINGS, LTD., et al., :
-- -- :
:
Debtors. : (Jointly Administered)
:
- ---------------------------------------X
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
WEIL, GOTSHAL & MANGES LLP
Attorneys for the Debtors
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Dated: New York, New York
September 6, 2002
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND CONSTRUCTION OF TERMS......................................................1
1.1 Administrative Expense Claim...................................................................1
1.2 Adversary Proceeding...........................................................................1
1.3 Affiliate......................................................................................2
1.4 Affiliate Claim................................................................................2
1.5 Assumed Corporate Indemnities..................................................................2
1.6 Assumed Indemnification Claims.................................................................2
1.7 Bank Credit Agreement..........................................................................2
1.8 Banks..........................................................................................2
1.9 Bankruptcy Code................................................................................2
1.10 Bankruptcy Court...............................................................................2
1.11 Bankruptcy Rules...............................................................................2
1.12 Benefit Plans..................................................................................2
1.13 Business Day...................................................................................2
1.14 Cash...........................................................................................3
1.15 Causes of Action...............................................................................3
1.16 Chapter 11 Cases...............................................................................3
1.17 Claim..........................................................................................3
1.18 Class..........................................................................................3
1.19 Collateral.....................................................................................3
1.20 Commencement Date..............................................................................3
1.21 Confirmation Date..............................................................................3
1.22 Confirmation Hearing...........................................................................3
1.23 Confirmation Order.............................................................................3
1.24 Debtor Affiliate Claim.........................................................................3
1.25 Debtor Guarantors..............................................................................3
1.26 Debtors........................................................................................3
1.27 Debtors in Possession..........................................................................4
1.28 Disclosure Statement...........................................................................4
1.29 Effective Date.................................................................................4
1.30 Employee Options...............................................................................4
i
TABLE OF CONTENTS
(continued)
Page
1.31 ERISA..........................................................................................4
1.32 Entity.........................................................................................4
1.33 Equity Interest................................................................................4
1.34 Final Order....................................................................................4
1.35 GECC...........................................................................................4
1.36 General Unsecured Claim........................................................................4
1.37 Lien...........................................................................................4
1.38 Management Equity Plans........................................................................4
1.39 Morgan Stanley.................................................................................5
1.40 New Bank Guarantee and Security Agreement......................................................5
1.41 New Sunbeam Corporation Secured Debt...........................................................5
1.42 Newco..........................................................................................5
1.43 Newco Bank Equity..............................................................................5
1.44 Newco Class A Stock............................................................................5
1.45 Newco Class B Stock............................................................................5
1.46 Newco Stock....................................................................................5
1.47 Newco Notes....................................................................................5
1.48 Non-Debtor Affiliates..........................................................................5
1.49 Non-Debtor Affiliate Claim.....................................................................6
1.50 Other Priority Claim...........................................................................6
1.51 Other Secured Claim............................................................................6
1.52 PBGC...........................................................................................6
1.53 Pension Plans..................................................................................6
1.54 Person.........................................................................................6
1.55 Plan...........................................................................................6
1.56 Plan Supplement................................................................................6
1.57 Post-Petition Banks............................................................................6
1.58 Post-Petition Bank Credit Agreement............................................................6
1.59 Priority Tax Claim.............................................................................6
1.60 Pro Rata Share.................................................................................6
1.61 Receivables Securitization Program.............................................................7
ii
TABLE OF CONTENTS
(continued)
Page
1.62 Releasees......................................................................................7
1.63 Reorganized Debtor Guarantors..................................................................7
1.64 Reorganized Debtors............................................................................7
1.65 Reorganized Debtors By-laws....................................................................7
1.66 Reorganized Debtors Certificates of Incorporation..............................................7
1.67 Reorganized Sunbeam............................................................................7
1.68 Restructuring Transactions.....................................................................7
1.69 Schedules......................................................................................7
1.70 Secured Bank Claims............................................................................7
1.71 Secured Claim..................................................................................7
1.72 Selected Businesses............................................................................7
1.73 Sunbeam Affiliate Claim........................................................................8
1.74 Sunbeam Corporation Plan.......................................................................8
1.75 Sunbeam Corporation Plan Supplement............................................................8
1.76 Sunbeam Products...............................................................................8
1.77 TCCI...........................................................................................8
1.78 Transferors....................................................................................8
1.79 Working Capital Facility.......................................................................8
1.80 Working Capital Facility Documents.............................................................8
Article II TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS.........................8
2.1 Administrative Expense Claims..................................................................8
2.2 Professional Compensation and Reimbursement Claims.............................................9
2.3 Priority Tax Claims............................................................................9
Article III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS..............................................9
Article IV TREATMENT OF CLAIMS AND EQUITY INTERESTS...................................................9
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS...............................................................9
(a) Impairment and Voting.......................................................10
(b) Distributions...............................................................10
4.2 CLASS 2 -- OTHER SECURED CLAIMS...............................................................10
(a) Impairment and Voting.......................................................10
(b) Distributions/Reinstatement of Claims.......................................10
iii
TABLE OF CONTENTS
(continued)
Page
4.3 CLASS 3 - SECURED BANK CLAIMS.................................................................10
(a) Allowance...................................................................10
(b) Impairment and Voting.......................................................10
(c) Distributions...............................................................10
4.4 CLASS 4 -- GENERAL UNSECURED CLAIMS...........................................................10
(a) Impairment and Voting.......................................................10
(b) Distributions/Reinstatement of Claims.......................................11
CLASS 5 -- AFFILIATE CLAIMS.....................................................................................11
(c) Impairment and Voting.......................................................11
(d) Distributions/Reinstatement of Claims.......................................11
4.5 CLASS 6 -- EQUITY INTERESTS...................................................................11
(a) Impairment and Voting.......................................................11
(b) Distributions/Reinstatement.................................................11
Article V EXECUTORY CONTRACTS AND UNEXPIRED LEASES..................................................11
5.1 Assumption or Rejection of Executory Contracts and Unexpired Leases...........................11
(a) Executory Contracts and Unexpired Leases....................................11
(b) Schedules of Rejected Executory Contracts and Unexpired Leases;
Inclusiveness...............................................................11
(c) Insurance Policies..........................................................12
(d) Approval of Assumption, Assumption and Assignment or Rejection of
Executory Contracts and Unexpired Leases....................................12
(e) Cure of Defaults............................................................12
(f) Bar Date for Filing Proofs of Claim Relating to Executory Contracts and
Unexpired Leases Rejected Pursuant to the Plan..............................12
(g) Assumed Indemnification Obligations.........................................12
(h) Compensation and Benefit Programs...........................................13
5.2 Retiree Benefits..............................................................................13
Article VI IMPLEMENTATION OF THE PLAN................................................................13
6.1 General.......................................................................................13
6.2 Boards of Directors of Reorganized Debtors....................................................13
6.3 Officers of Reorganized Debtors...............................................................13
6.4 By-laws and Certificates of Incorporation.....................................................13
iv
TABLE OF CONTENTS
(continued)
Page
6.5 Cancellation of Certain Securities............................................................13
6.6 Management Equity Plans.......................................................................13
6.7 Restructuring Transactions....................................................................14
(i) Transaction #1:.....................................................14
(ii) Transaction #2:.....................................................14
6.8 Authorization and Terms of New Newco Notes and Equity.........................................14
Article VII EFFECT OF CONFIRMATION OF PLAN............................................................15
7.1 Term of Bankruptcy Injunction or Stays........................................................15
7.2 Revesting of Assets...........................................................................15
7.3 Claims Extinguished...........................................................................15
7.4 Discharge of Debtors..........................................................................15
7.5 Injunction....................................................................................15
7.6 Continuation of Pension Plans.................................................................16
Article VIII CONFIRMATION AND EFFECTIVENESS OF THE PLAN................................................16
8.1 Conditions Precedent to Confirmation..........................................................16
8.2 Conditions Precedent to Effectiveness.........................................................17
8.3 Effect of Failure of Conditions...............................................................17
8.4 Waiver of Conditions..........................................................................17
Article IX RETENTION OF JURISDICTION.................................................................17
9.1 Retention of Jurisdiction.....................................................................18
Article X MISCELLANEOUS PROVISIONS..................................................................19
10.1 Effectuating Documents and Further Transactions...............................................19
10.2 Corporate Action..............................................................................19
10.3 Exemption from Transfer Taxes.................................................................19
10.4 Releases of Releasees.........................................................................19
10.5 Limited Release by Releasees..................................................................20
10.6 Exculpation...................................................................................20
10.7 Post-Effective Date Fees and Expenses.........................................................20
10.8 Payment of Statutory Fees.....................................................................20
10.9 Amendment or Modification of the Plan.........................................................20
10.10 Severability..................................................................................21
v
TABLE OF CONTENTS
(continued)
Page
10.11 Revocation or Withdrawal of the Plan..........................................................21
10.12 Binding Effect................................................................................21
10.13 Notices.......................................................................................21
10.14 Governing Law.................................................................................22
10.15 Withholding and Reporting Requirements........................................................22
10.16 Plan Supplement...............................................................................22
10.17 Sections 1125 and 1126 of the Bankruptcy Code.................................................22
10.18 Allocation of Plan Distributions..............................................................22
10.19 Headings......................................................................................22
10.20 Exhibits/Schedules............................................................................22
10.21 Filing of Additional Documents................................................................23
vi
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- --------------------------------------------x
:
In re : Chapter 11 Case Nos.
:
AI REALTY MARKETING OF NEW YORK, INC., :
LASER ACQUISITION CORP., DDG I, INC., : 01-40252 (AJG) through
SUNBEAM AMERICAS HOLDINGS, LTD., et al., : 01-40290 (AJG)
-- -- :
:
Debtors. : Jointly Administered
:
- --------------------------------------------x
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
AI Realty Marketing of New York, Inc.; Laser Acquisition Corporation,
DDG I, Inc.; Sunbeam Americas Holdings, Ltd.; Beacon Exports, Inc.; BRK Brands,
Inc.; CC Outlet, Inc.; CMO, Inc.; Coleman Argentina, Inc.; Coleman International
Holdings, LLC; Coleman Powermate, Inc.; Coleman Puerto Rico, Inc.; Coleman
Venture Capital, Inc.; Coleman Worldwide Corp.; Family Gard, Inc.; First Alert,
Inc.; General Archery Industries, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.;
Kansas Acquisition Corp.; L.A. Services, Inc.; Nippon Coleman, Inc.; Packs &
Travel Corporation; Pearson Holdings, Inc.; PH III, Inc.; River View Corporation
of Barling, Inc.; SI II, Inc.; Sierra Corporation of Fort Smith, Inc.; Sunbeam
Health & Safety Company; Sunbeam Latin America, LLC; Sunbeam Products, Inc.;
Sunbeam Services, Inc.; Survival Gear, Inc.; Thalia Products Inc.; The Coleman
Company, Inc.; THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft
Equipment Company, propose the following joint plan of reorganization under
section 1121(a) of title 11 of the United States Code:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Definitions. As used herein, the following terms have the respective
meanings specified below:
1.1 Administrative Expense Claim means any right to payment
constituting a cost or expense of administration of the Chapter 11 Cases under
sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without
limitation, any actual and necessary costs and expenses of preserving the
estates of the Debtors, any actual and necessary costs and expenses of operating
the business of the Debtors, any indebtedness or obligations incurred or assumed
by the Debtors in Possession in connection with the conduct of their business,
including, without limitation, for the acquisition or lease of property or an
interest in property or the rendition of services, all compensation and
reimbursement of expenses allowed by the Bankruptcy Court under section 330 or
503 of the Bankruptcy Code and any fees or charges assessed against the estate
of the Debtors under section 1930 of chapter 123 of title 28 of the United
States Code.
1.2 Adversary Proceeding means the adversary proceeding commenced on
July 31, 2001, by the official committee of unsecured creditors in Sunbeam
Corporation's chapter 11 case, styled Official Committee of Unsecured Creditors
of Sunbeam Corporation v. Morgan Stanley & Co., Inc., et al., Adv. Pro. 01-02886
(AJG).
1.3 Affiliate means, as to (i) any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person and (ii) as to any of the Banks, any Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Bank, or its parent or related entity that participated in
the issuance of the Subordinated Notes (as defined in the Sunbeam Corporation
Plan) or the extensions of credit pursuant to the Bank Credit Agreement. For
purposes of this definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 20% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
1.4 Affiliate Claim means any Debtor Affiliate Claim, Non-Debtor
Affiliate Claim and Sunbeam Affiliate Claim.
1.5 Assumed Corporate Indemnities mean any obligation of the Debtors to
defend, indemnify, reimburse or limit the liability of their present and any
former officers, directors and/or employees who were officers, directors and/or
employees, respectively, on or after the Commencement Date, solely in their
capacity as officers, directors and/or employees, against any claims or
obligations pursuant to the Debtors' certificates of incorporation or by-laws,
applicable state law or specific agreement, or any combination of the foregoing.
1.6 Assumed Indemnification Claims mean all Claims, if any, as to which
the claimant asserts rights based only upon the Assumed Corporate Indemnities.
1.7 Bank Credit Agreement means that certain Senior Credit Agreement,
dated as of March 30, 1998, among Sunbeam Corporation, the Debtor Guarantors,
certain non-debtor guarantors and the Banks, and any and all of the documents,
instruments and agreements relating thereto, including, without limitation, all
guarantees and security documents, instruments and agreements executed and
delivered in connection with the Senior Credit Agreement, as same may have been
amended, supplemented, modified, extended, replaced, refinanced, renewed or
restated as of the Commencement Date.
1.8 Banks means Wachovia Bank, National Association (f/k/a First Union
National Bank), as Agent and lender, and Bank of America, N.A. and Morgan
Stanley Senior Funding, Inc., as lenders under the Bank Credit Agreement.
1.9 Bankruptcy Code means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Cases.
1.10 Bankruptcy Court means the United States District Court for the
Southern District of New York having jurisdiction over the Chapter 11 Cases and,
to the extent of any reference under section 157 of title 28 of the United
States Code, the unit of such District Court under section 151 of title 28 of
the United States Code.
1.11 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of title 28
of the United States Code, and any Local Rules of the Bankruptcy Court.
1.12 Benefit Plans means all savings, retirement, healthcare,
severance, performance-based cash incentive, retention, employee welfare
benefit, life insurance, disability and similar plans and agreements. A
schedule, in form reasonably acceptable to the Banks, listing the Benefit Plans
shall be provided to the Banks no later than 10 days prior to the hearing on
approval of the Disclosure Statement.
1.13 Business Day means any day other than a Saturday, Sunday or any
other day on which commercial banks in New York, New York are required or
authorized to close by law or executive order.
2
1.14 Cash means legal tender of the United States of America.
1.15 Causes of Action means, without limitation, any and all actions,
causes of action, liabilities, obligations, rights, suits, damages, judgments,
claims and demands whatsoever, whether known or unknown, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission or other event occurring prior to the Commencement Date or during the
course of the Chapter 11 Cases, including through the Effective Date.
1.16 Chapter 11 Cases means the cases under chapter 11 of the
Bankruptcy Code commenced by the Debtors in the Bankruptcy Court.
1.17 Claim has the meaning set forth in section 101 of the Bankruptcy
Code.
1.18 Class means a category of holders of Claims or Equity Interests as
set forth in Article III of the Plan.
1.19 Collateral means any property or interest in property of the
estates of the Debtors subject to a Lien to secure the payment or performance of
a Claim, which Lien is not subject to avoidance or otherwise invalid under the
Bankruptcy Code or applicable state law.
1.20 Commencement Date means February 6, 2001, the date on which the
Debtors commenced the Chapter 11 Cases.
1.21 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket.
1.22 Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan pursuant to section 1129 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
1.23 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.24 Debtor Affiliate Claim means any Claim, whether secured or
unsecured, of a Debtor against another Debtor.
1.25 Debtor Guarantors means, collectively, Beacon Exports, Inc.; BRK
Brands, Inc.; CC Outlet, Inc.; CMO, Inc.; Coleman Argentina, Inc.; Coleman
International Holdings, LLC; Coleman Powermate, Inc.; Coleman Puerto Rico, Inc.;
Coleman Venture Capital, Inc.; Coleman Worldwide Corp.; DDG I, Inc.; First
Alert, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.; Kansas Acquisition Corp.;
L.A. Services, Inc.; Laser Acquisition Corp.; Nippon Coleman, Inc.; Packs &
Travel Corporation; PH III, Inc.; SI II, Inc.; Sunbeam Americas Holdings, Ltd.;
Sunbeam Health & Safety Company; Sunbeam Latin America, LLC; Sunbeam Products,
Inc.; Sunbeam Services, Inc.; Survival Gear, Inc.; Thalia Products Inc.; The
Coleman Company, Inc.; THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft
Equipment Company.
1.26 Debtors means, collectively, AI Realty Marketing of New York,
Inc.; Laser Acquisition Corporation; DDG I, Inc.; Sunbeam Americas Holdings,
Ltd.; Beacon Exports, Inc.; BRK Brands, Inc.; CC Outlet, Inc.; CMO, Inc.;
Coleman Argentina, Inc.; Coleman International Holdings, LLC; Coleman Powermate,
Inc.; Coleman Puerto Rico, Inc.; Coleman Venture Capital, Inc.; Coleman
Worldwide Corp.; Family Gard, Inc.; First Alert, Inc.; General Archery
Industries, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.; Kansas Acquisition
Corp.; L.A. Services, Inc.; Nippon Coleman, Inc.; Packs & Travel Corporation;
Pearson Holdings, Inc.; PH III, Inc.; River View Corporation of Barling, Inc.;
SI II, Inc.; Sierra Corporation of Fort Smith, Inc.; Sunbeam Health & Safety
3
Company; Sunbeam Latin America, LLC; Sunbeam Products, Inc.; Sunbeam Services,
Inc.; Survival Gear, Inc.; Thalia Products Inc.; The Coleman Company, Inc.;
THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft Equipment Company.
1.27 Debtors in Possession means the Debtors in their capacity as
debtors in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a)
and 1108 of the Bankruptcy Code.
1.28 Disclosure Statement means the disclosure statement relating to
the Plan, including, without limitation, all exhibits and schedules thereto, as
approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code.
1.29 Effective Date means the first Business Day on which the
conditions specified in Section 8.1 of the Plan have been satisfied or waived.
1.30 Employee Options means the stock options and equivalent incentive
awards issued by Reorganized Sunbeam and the Reorganized Debtors pursuant to the
Management Equity Plans, which equity securities issued pursuant to the exercise
of such stock options or incentive awards shall be subject to certain transfer
restrictions to be agreed upon by the Banks and the Debtors.
1.31 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.32 Entity shall have the meaning set forth in section 101(15) of the
Bankruptcy Code.
1.33 Equity Interest means any share of common stock or other
instrument evidencing an ownership interest in any of the Debtors, whether or
not transferable, and any option, warrant or right, contractual or otherwise, to
acquire any such interest.
1.34 Final Order means an order of the Bankruptcy Court or any other
court of competent jurisdiction as to which the time to appeal, petition for
certiorari, or move for reargument or rehearing has expired and as to which no
appeal, petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or as to which any right to appeal, petition for
certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to the Debtors or, on and after the Effective Date, the
Reorganized Debtors, or, in the event that an appeal, writ of certiorari, or
reargument or rehearing thereof has been sought, such order of the Bankruptcy
Court or other court of competent jurisdiction shall have been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules or applicable state court rules of civil procedure, may be
filed with respect to such order shall not cause such order not to be a Final
Order.
1.35 GECC means General Electric Credit Corporation or an Affiliate of
GECC.
1.36 General Unsecured Claim means any Claim other than a Secured
Claim, Administrative Expense Claim, Priority Tax Claim, Other Priority Claim
and Affiliate Claim.
1.37 Lien has the meaning set forth in section 101 of the Bankruptcy
Code.
1.38 Management Equity Plans means the separate stock option or
equivalent incentive award plans to be established by certain of the Reorganized
Debtors and Reorganized Sunbeam for certain employees of the Reorganized Debtors
and the stock option or equivalent incentive award plans to be established by
Reorganized Sunbeam on the Effective Date, the principal terms of which are
4
described in the Disclosure Statement and which shall be in substantially the
form contained in the Sunbeam Corporation Plan Supplement.
1.39 Morgan Stanley means Morgan Stanley & Co., Incorporated and its
Affiliates.
1.40 New Bank Guarantee and Security Agreement means the guarantee of
the New Sunbeam Corporation Secured Debt and the security agreements relating to
such guarantee, and all related documents and instruments to be executed and
delivered by the Debtor Guarantors pursuant to Section 4.3 of the Plan.
1.41 New Sunbeam Corporation Secured Debt means the secured debt issued
to the Banks by Sunbeam Corporation pursuant to the Sunbeam Corporation Plan.
1.42 Newco means, at the Debtors' and the Banks' discretion, one or
more Delaware corporations or other entities to be formed on or before the
Effective Date in the event the Debtors and the Banks desire to implement the
alternative transactions in Section 6.7 herein.
1.43 Newco Bank Equity means either (a) in the event Transaction #1 of
Section 6.7 herein is implemented, the Newco Class B Stock or (b) in the event
Transaction #2 of Section 6.7 herein is implemented, the equity of Newco
received by the Banks pursuant thereto.
1.44 Newco Class A Stock means shares of Class A common stock of Newco
to be authorized upon the formation of Newco for issuance upon the Effective
Date.
1.45 Newco Class B Stock means shares of Class B common stock of Newco
to be authorized upon the formation of Newco for issuance upon the Effective
Date.
1.46 Newco Stock means, collectively, the Newco Class A Stock and the
Newco Class B Stock.
1.47 Newco Notes means notes in an aggregate amount determined by the
Debtors and the Banks, but not greater than approximately eighty percent (80%)
of the net value of the Selected Businesses transferred to Newco, to be issued
by Newco (or, at the direction of and on behalf of Newco, by one or more
subsidiaries of Newco) to the Transferors on the Effective Date.
1.48 Non-Debtor Affiliates means, collectively, Application Des Gaz,
S.A.S. (France); Australian Coleman, Inc.; Bafiges S.A.S. (France); BRK Brands
Europe Limited (England and Wales); Camping Gaz CS Spol S.R.O. (Czech Republic);
Camping Gaz GmbH (Austria); Camping Gaz Great Britain, L.T.D. (Great Britain);
Camping do Brasil (Brazil); Camping Gaz International Deutschland GmbH
(Germany); Camping Gaz Hellas (Greece); Camping Gaz International Portugal,
L.T.D. (Portugal); Camping Gaz Italie S.r.L. (Italy); Camping Gaz Poland
(Poland); Camping Gaz Senegal (Senegal); Camping Gaz Suisse A.G. (Switzerland);
CC Gaz Hungary (C. Gax Kft.); Coleman Argentina S.A. (Argentina); Coleman Asset
Diversification, Inc.; Coleman Asia Limited (Hong Kong); Coleman Benelux B.V.
(Netherlands); Coleman Brands Pty Limited (Australia); Coleman Brands Pty Ltd.;
Coleman do Brasil Ltda. (Brazil); Coleman Country Ltd.; Coleman Deutschland GmbH
(Germany); Coleman Europe BVBA (Belgium); Coleman International SARL (LLC)
(Switzerland); Coleman Japan Co., Ltd. (Japan); Coleman Latin America, LLC;
Coleman Life Styles KK (Japan); Coleman Mexico S.A. de C.V. (Mexico); Coleman
Powermate International, Inc.; Coleman SVB S.r.L (Italy); Coleman Taymar Limited
(England and Wales); Coleman UK Holdings Limited (England and Wales); Coleman UK
PLC (England and Wales); Electronica BRK de Mexico S.A. de C.V. (Mexico); Epigas
International Limited; Oster de Venezuela, S.A. (Venezuela); Productos Coleman,
S.A. (Spain); RRR Funding LLC; Servicios Sunbeam-Coleman De Mexico, S.S. de
C.V.; SI China Ventures, Ltd. (Hong Kong); Sunbeam Asset Diversification, Inc.;
Sunbeam Corporation (Canada) Limited (Ontario); Sunbeam Corporation Europe SARL
5
(France); Sunbeam Europe S.A.S.; Sunbeam Holdings S.A. de C.V. (Mexico); Sunbeam
International (Asia), Ltd.; Sunbeam Mexicana S.A. de C.V. (Mexico); Sunbeam
Oster de Acuna S.A. de C.V. (Mexico); Sunbeam Oster de Matarmoros S.A. de C.V.
(Mexico); Sunbeam Oster International (FSC), Inc. (Barbados); and Taymar Gas
Limited.
1.49 Non-Debtor Affiliate Claim means any Claim, whether secured or
unsecured, of a Non-Debtor Affiliate against a Debtor.
1.50 Other Priority Claim means any Claim, other than an Administrative
Expense Claim or a Priority Tax Claim, entitled to priority in right of payment
under section 507(a) of the Bankruptcy Code.
1.51 Other Secured Claim means any Secured Claim, other than Secured
Bank Claims and Affiliate Claims that are Secured Claims.
1.52 PBGC shall mean the Pension Benefit Guaranty Corporation, a
wholly-owned United States government corporation that administers the defined
benefit pension plan termination insurance program under Title IV of ERISA.
1.53 Pension Plans shall mean the following defined benefit pension
plans of the Debtors covered by Title IV of ERISA: Pension Plan for Hourly
Employees of Sunbeam-Oster Company, Inc. at the Portland, Tennessee Plant;
Pension Plan for Hourly Employees of Sunbeam-Oster Company, Inc. at the
Nacogdoches, Texas, Waynesboro, Georgia and Linton, Indiana Plants; Pension Plan
for Employees of Sunbeam-Oster-Company, Inc.; Sunbeam Oster-Company Inc.
Consolidated Retirement Plan; Thermco Systems, Inc. Employees' Pension Plan; The
New Coleman Company, Inc. Pension Plan for Weekly Salaried and Hourly Employees;
The New Coleman Company, Inc. Retirement Plan for Salaried Employees; BRK
Brands, Inc. Employees Retirement Plan and BRK Brands, Inc. Retirement Plan for
Union Employees.
1.54 Person shall have the meaning set forth in section 101(41) of the
Bankruptcy Code.
1.55 Plan means this chapter 11 plan of reorganization, including,
without limitation, the Plan Supplement and all exhibits, supplements,
appendices and schedules hereto, either in its present form or as the same may
be altered, amended or modified from time to time.
1.56 Plan Supplement means the forms of documents specified in Section
10.16 of the Plan.
1.57 Post-Petition Banks means, collectively, the agent and lenders
that are from time to time parties to the Post-Petition Bank Credit Agreement.
1.58 Post-Petition Bank Credit Agreement means that certain Revolving
Credit and Guarantee Agreement, dated as of February 6, 2001, among Sunbeam
Corporation, the subsidiaries of Sunbeam Corporation parties thereto, and the
agent and lenders from time to time parties thereto, and any and all of the
documents, instruments and agreements relating thereto, including, without
limitation, all guarantees and security documents, instruments and agreements
executed and delivered in connection with the Post-Petition Bank Credit
Agreement, as the same may have been amended, restated, supplemented or
otherwise modified from time to time.
1.59 Priority Tax Claim means any Claim of a governmental unit of the
kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.60 Pro Rata Share means a proportionate share, so that the ratio of
the consideration distributed on account of an Allowed Claim in a Class to the
amount of such Allowed Claim is the same as the ratio of the amount of the
6
consideration distributed on account of all Allowed Claims in such Class to the
amount of all Allowed Claims in such Class.
1.61 Receivables Securitization Program means the receivables financing
program with aggregate credit commitments to the Reorganized Debtors of up to
$200,000,000 to be provided by GECC or another receivables financing source,
acceptable to the Debtors and the Banks after the Effective Date.
1.62 Releasees means all present and former officers and directors of
the Debtors who were directors and/or officers, respectively, on or after the
Commencement Date, and any other Persons who serve or served as members of
management of the Debtors on or after the Commencement Date, all present and
former Banks and Post-Petition Banks (and their respective Affiliates and known
loan participants), Morgan Stanley all present and former officers and directors
and other Persons who serve or served as members of the management of any
present or former Bank and Post-Petition Bank (and their respective Affiliates
and known loan participants), Morgan Stanley and all post-Commencement Date
advisors, consultants or professionals of or to the Debtors, the Banks and the
Post-Petition Banks (and their respective Affiliates and known loan
participants) and Morgan Stanley.
1.63 Reorganized Debtor Guarantors means the Debtor Guarantors on and
after the Effective Date.
1.64 Reorganized Debtors means the Debtors, and any successor thereto
by merger, consolidation or otherwise (including, but not limited to, Newco), on
and after the Effective Date.
1.65 Reorganized Debtors By-laws means the amended and restated By-laws
of the Reorganized Debtors, which shall be in substantially the form contained
in the Plan Supplement.
1.66 Reorganized Debtors Certificates of Incorporation means the
amended and restated Certificates of Incorporation of the Reorganized Debtors,
which shall be in substantially the form contained in the Plan Supplement.
1.67 Reorganized Sunbeam means Sunbeam Corporation on and after the
effective date of the Sunbeam Corporation Plan. -
1.68 Restructuring Transactions means those transactions described in
Article VI of the Plan.
1.69 Schedules means the schedule of assets and liabilities, the list
of holders of Equity Interests and the statement of financial affairs filed by
the Debtors under section 521 of the Bankruptcy Code and Bankruptcy Rule 1007,
and all amendments and modifications thereto.
1.70 Secured Bank Claims means all Claims of the Banks against the
Debtors arising under or in connection with the Bank Credit Agreement,
including, without limitation, any Claims of the Banks that are converted to
postpetition administrative expense claims pursuant to any order of the
Bankruptcy Court approving the provision of adequate protection to holders of
Secured Bank Claims.
1.71 Secured Claim means any Claim, to the extent reflected in the
Schedules as a Secured Claim, which is secured by a Lien on Collateral to the
extent of the value of such Collateral, as determined in accordance with section
506(a) of the Bankruptcy Code, or, in the event that such Claim is subject to a
permissible setoff under section 553 of the Bankruptcy Code, to the extent of
such permissible setoff, including, without limitation, Secured Bank Claims and
Other Secured Claims.
1.72 Selected Businesses means all or substantially all of the assets,
subject to related liabilities (other than those discharged pursuant to the
Plan), of the Transferors.
7
1.73 Sunbeam Affiliate Claim means any Claim of Sunbeam Corporation,
whether secured or unsecured, against any Debtor.
1.74 Sunbeam Corporation Plan means the chapter 11 plan of
reorganization proposed by Sunbeam Corporation in its separately administered
chapter 11 case pending in the Bankruptcy Court.
1.75 Sunbeam Corporation Plan Supplement means the forms of documents
specified in Section 11.17 of the Sunbeam Corporation Plan.
1.76 Sunbeam Products means Sunbeam Products, Inc., as Debtor or Debtor
in Possession.
1.77 TCCI means The Coleman Company, Inc., as Debtor or Debtor in
Possession.
1.78 Transferors means Sunbeam Products, TCCI, Coleman Powermate, Inc.,
First Alert, Inc., Packs and Travel Corporation and/or any other Debtors as
shall be later determined.
1.79 Working Capital Facility means the revolving credit facility to be
established on the Effective Date with availability of approximately
$180,000,000 secured by a first lien on substantially all of the assets of
Reorganized Sunbeam Corporation and its domestic subsidiaries, including the
Reorganized Debtors, on terms and conditions satisfactory to the Debtors,
Sunbeam Corporation and the Banks.
1.80 Working Capital Facility Documents means that certain Working
Capital Facility loan agreement, by and among Reorganized Sunbeam, as borrower,
the Reorganized Debtors, as guarantors, and the Banks and/or other lenders
satisfactory to the Debtors and the Banks, the related collateral documents, the
guarantee and security agreement to be provided by Reorganized Sunbeam and the
Reorganized Debtors, and all ancillary agreements, documents, and instruments to
be issued or given in connection therewith.
Interpretation; Application of Definitions and Rules of Construction.
Wherever from the context it appears appropriate, each term stated in either the
singular or the plural shall include both the singular and the plural and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter. Unless otherwise specified, all section,
article, schedule or exhibit references in the Plan are to the respective
Section in, Article of, Schedule to, or Exhibit to, the Plan. The words
"herein," "hereof," "hereto," "hereunder" and other words of similar import
refer to the Plan as a whole and not to any particular section, subsection or
clause contained in the Plan. The rules of construction contained in section 102
of the Bankruptcy Code shall apply to the construction of the Plan. A term used
herein that is not defined herein, but that is used in the Bankruptcy Code,
shall have the meaning ascribed to that term in the Bankruptcy Code. The
headings in the Plan are for convenience of reference only and shall not limit
or otherwise affect the provisions of the Plan. In the event of any conflict
between the terms of the Plan and the Disclosure Statement in connection
therewith, the terms of the Plan shall govern.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
--------------------------------------
2.1 Administrative Expense Claims. Except to the extent that any entity
entitled to payment of any Administrative Expense Claim agrees to a less
favorable treatment, each holder of an Administrative Expense Claim shall
receive Cash in an amount equal to such Administrative Expense Claim on the
Effective Date or as soon thereafter as is practicable; provided, however, that
Administrative Expense Claims representing liabilities incurred in the ordinary
course of business by the Debtors in Possession or liabilities arising under
loans or advances to or other obligations incurred by the Debtors in Possession
8
shall be paid in full and performed by the applicable Reorganized Debtors in the
ordinary course of business in accordance with the terms and subject to the
conditions of any agreements governing, instruments evidencing or other
documents relating to such transactions.
2.2 Professional Compensation and Reimbursement Claims. All entities
seeking an award by the Bankruptcy Court of compensation for services rendered
or reimbursement of expenses incurred through and including the Effective Date
under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy
Code shall (a) file their respective final applications for allowances of
compensation for services rendered and reimbursement of expenses incurred
through the Effective Date by no later than the date that is 60 days after the
Effective Date, or such other date as may be fixed by the Bankruptcy Court and
(b) if granted such an award by the Bankruptcy Court, be paid in full in such
amounts as are allowed by the Bankruptcy Court (i) on the date of such
allowance, or as soon thereafter as is practicable or (ii) upon such other terms
as may be mutually agreed upon between such holder of an Administrative Expense
Claim and the Reorganized Debtors.
2.3 Priority Tax Claims. Except to the extent that a holder of a
Priority Tax Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of a Priority Tax Claim shall
receive, in full and complete settlement, satisfaction and discharge of its
Priority Tax Claim, at the option of the Reorganized Debtors, (a) Cash in an
amount equal to such Priority Tax Claim on the Effective Date or as soon
thereafter as is practicable or (b) equal annual Cash payments in an aggregate
amount equal to such Priority Tax Claim, together with interest at a fixed
annual rate equal to 8.0%, over a period through the sixth anniversary of the
date of assessment of such Priority Tax Claim, or upon such other terms
determined by the Bankruptcy Court to provide the holder of such Priority Tax
Claim deferred Cash payments having a value, as of the Effective Date, equal to
such Priority Tax Claim; provided, however, that the Debtors must obtain the
consent of the Banks in order to elect option (a).
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
---------------------------------------------
Claims, other than Administrative Expense Claims and Priority Tax
Claims, and Equity Interests, are classified for all purposes, including voting,
confirmation and distribution pursuant to the Plan, as follows:
Class Status
- ----- ------
Class 1 -- Other Priority Claims Unimpaired
Class 2 -- Other Secured Claims Unimpaired
Class 3 -- Secured Bank Claims Impaired
Class 4 -- General Unsecured Claims Unimpaired
Class 5 -- Affiliate Claims Impaired
Class 6 -- Equity Interests Unimpaired
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
----------------------------------------
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS.
---------------------------------
9
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each
holder of an Other Priority Claim is conclusively presumed to have accepted the
Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that a holder of an Other
Priority Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of an Other Priority Claim shall
receive, in full and complete settlement, satisfaction and discharge of its
Other Priority Claim, Cash in an amount equal to such Other Priority Claim on
the Effective Date or as soon thereafter as is practicable.
4.2 CLASS 2 -- OTHER SECURED CLAIMS.
-------------------------------
(a) Impairment and Voting. Class 2 is unimpaired by the Plan. Each
holder of an Other Secured Claim is conclusively presumed to have accepted the
Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent that a
holder of an Other Secured Claim has been paid by the Debtors prior to the
Effective Date or agrees to a different treatment, each holder of an Other
Secured Claim shall, in full and complete settlement, satisfaction and discharge
of its Other Secured Claim, at the sole option of the Reorganized Debtors, (i)
be reinstated and rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code, (ii) receive Cash in an amount equal to such Other Secured
Claim, including any interest on such Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the Effective Date or as
soon thereafter as is practicable or (iii) receive the Collateral securing its
Other Secured Claim and any interest on such Other Secured Claim required to be
paid pursuant to section 506(b) of the Bankruptcy Code, on the Effective Date or
as soon thereafter as is practicable; provided, however, that the Debtors must
obtain the consent of the Banks to elect option (ii).
4.3 CLASS 3 - SECURED BANK CLAIMS.
-----------------------------
(a) Allowance. The Secured Bank Claims shall be deemed Allowed Claims
in the aggregate amount of $1,602,489,994.
(b) Impairment and Voting. Class 3 is impaired by the Plan. Each holder
of an Allowed Secured Bank Claim is entitled to vote to accept or reject the
Plan.
(c) Distributions. On the Effective Date, each holder of an Allowed
Secured Bank Claim as of the Record Date shall receive in full and complete
settlement, satisfaction, release and discharge of its Allowed Secured Bank
Claim: (i) the guarantees and Liens granted pursuant to the New Bank Guarantee
and Security Agreement; (ii) in the event the Debtors determine to transfer all
or part of the Selected Businesses, directly or indirectly, to Newco in
accordance with Section 6.7 of the Plan, its pro rata share of the Newco Bank
Equity; and (iii) the releases set forth in Section 10.4 of the Plan. In
addition, each holder of an Allowed Secured Bank Claim shall be entitled to
retain all amounts paid to it or on its behalf as adequate protection or
otherwise, and the Reorganized Debtors will continue to pay the professional
fees of the holders of the Allowed Secured Bank Claims after the Confirmation
Date with respect to matters relating to the Plan or the Chapter 11 Cases in
accordance with the terms and conditions of the orders approving the
Post-Petition Bank Credit Agreement.
4.4 CLASS 4 -- GENERAL UNSECURED CLAIMS
-----------------------------------
(a) Impairment and Voting. Class 4 is unimpaired by the Plan. Each
holder of a General Unsecured Claim is conclusively presumed to have accepted
the Plan and is not entitled to vote to accept or reject the Plan.
10
(b) Distributions/Reinstatement of Claims. To the extent not paid prior
to the Effective Date and except to the extent that a holder of a General
Unsecured Claim agrees to a different treatment, each General Unsecured Claim
shall be reinstated and rendered unimpaired in accordance with section 1124 of
the Bankruptcy Code. In accordance with section 1124 of the Bankruptcy Code,
each holder of a General Unsecured Claim shall be entitled to interest on such
claim from the Commencement Date through the Effective Date payable at the
contract rate of interest or, if there is no stated contract rate, then at the
Federal Judgment Rate.
CLASS 5 -- AFFILIATE CLAIMS
(c) Impairment and Voting. Class 5 is impaired by the Plan. Each holder
of an Affiliate Claim is entitled to vote to accept or reject the Plan.
(d) Distributions/Reinstatement of Claims. On the Effective Date, all
Affiliate Claims shall be extinguished by either offset, the distribution or
contribution of such Affiliate Claims, or otherwise (as determined by the
Debtors and Sunbeam Corporation).
4.5 CLASS 6 -- EQUITY INTERESTS
---------------------------
(a) Impairment and Voting. Class 6 is unimpaired by the Plan. Each
holder of an Equity Interest is conclusively presumed to have accepted the Plan
and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement. The Equity Interests shall be
reinstated and rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code and shall remain outstanding on and after the Effective Date,
except as otherwise provided in the Plan.
ARTICLE V
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
----------------------------------------
5.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases.
(a) Executory Contracts and Unexpired Leases. Pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases that exist between the Debtors and any Person or Entity shall
be deemed assumed by the Debtors as of the Effective Date, except for any
executory contract or unexpired lease (i) that has been rejected pursuant to an
order of the Bankruptcy Court entered prior to the Confirmation Date, (ii) as to
which a motion for approval of the rejection of such executory contract or
unexpired lease has been filed and served prior to the Confirmation Date or
(iii) that is set forth in Schedule 5.1(a)(x) (executory contracts) or Schedule
5.1(a)(y) (unexpired leases), which Schedules shall be included in the Plan
Supplement; provided, however, that the Debtors reserve the right, on or prior
to the Confirmation Date, to amend Schedules 5.1(a)(x) or 5.1(a)(y) to delete
any executory contract or unexpired lease therefrom or add any executory
contract or unexpired lease thereto, in which event such executory contract(s)
or unexpired lease(s) shall be deemed to be, respectively, assumed by the
Debtors or rejected. The Debtors shall provide notice of any amendments to
Schedules 5.1(a)(x) or 5.1(a)(y) to the parties to the executory contracts and
unexpired leases affected thereby. The listing of a document on Schedules
5.1(a)(x) and 5.1(a)(y) shall not constitute an admission by the Debtors that
such document is an executory contract or an unexpired lease or that the Debtors
have any liability thereunder.
(b) Schedules of Rejected Executory Contracts and Unexpired Leases;
Inclusiveness. Each executory contract and unexpired lease listed or to be
listed on Schedules 5.1(a)(x) or 5.1(a)(y) that relates to the use or occupancy
of real property shall include (i) modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, without regard to whether such agreement, instrument or
11
other document is listed on Schedules 5.1(a)(x) or 5.1(a)(y) and (ii) executory
contracts or unexpired leases appurtenant to the premises listed on Schedules
5.1(a)(x) or 5.1(a)(y), including, without limitation, all easements, licenses,
permits, rights, privileges, immunities, options, rights of first refusal,
powers, uses, usufructs, reciprocal easement agreements, vault, tunnel or bridge
agreements or franchises, and any other interests in real estate or rights in
rem relating to such premises to the extent any of the foregoing are executory
contracts or unexpired leases, unless any of the foregoing agreements previously
has been assumed or assumed and assigned by the Debtors.
(c) Insurance Policies. All of the Debtors' insurance policies and any
agreements, documents or instruments relating thereto, are treated as executory
contracts under the Plan. Nothing contained in this Section 5.1(c) shall
constitute or be deemed a waiver of any Cause of Action that the Debtors may
hold against any entity, including, without limitation, the insurer under any of
the Debtors' policies of insurance.
(d) Approval of Assumption, Assumption and Assignment or Rejection of
Executory Contracts and Unexpired Leases. Entry of the Confirmation Order shall,
subject to and upon the occurrence of the Effective Date, constitute (i) the
approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of
the assumption of the executory contracts and unexpired leases assumed pursuant
to Section 5.1(a) hereof, (ii) the extension of time, pursuant to section
365(d)(4) of the Bankruptcy Code, within which the Debtors may assume, assume
and assign or reject the unexpired leases specified in Section 5.1(a) hereof
through the date of entry of an order approving the assumption, assumption and
assignment or rejection of such unexpired leases and (iii) the approval,
pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the
rejection of the executory contracts and unexpired leases rejected pursuant to
Section 5.1(a) hereof.
(e) Cure of Defaults. Except as may otherwise be agreed to by the
parties, within 30 days after the Effective Date, the Reorganized Debtors shall
cure any and all undisputed defaults under any executory contract or unexpired
lease assumed by the Debtors pursuant to Section 5.1(a) hereof, in accordance
with section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within 30 days of the entry of a
Final Order determining the amount, if any, of the Reorganized Debtors'
liability with respect thereto, or as may otherwise be agreed to by the parties.
(f) Bar Date for Filing Proofs of Claim Relating to Executory Contracts
and Unexpired Leases Rejected Pursuant to the Plan. Claims arising out of the
rejection of an executory contract or unexpired lease pursuant to Section 5.1 of
the Plan must be filed with the Bankruptcy Court and served upon the Debtors or,
on and after the Effective Date, the Reorganized Debtors, by no later than 30
days after the later of (i) notice of entry of an order approving the rejection
of such executory contract or unexpired lease, (ii) notice of entry of the
Confirmation Order and (iii) notice of an amendment to Schedule 5.1(a)(x) or
5.1(a)(y) relating to such executory contract or unexpired lease. All such
Claims not filed within such time will be forever barred from assertion against
the Debtors and their estates and the Reorganized Debtors and their property.
(g) Assumed Indemnification Obligations. Entry of the Confirmation
Order shall, subject to and upon the occurrence of the Effective Date,
constitute the approval, pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code, of the assumption of the Assumed Indemnification Claims. The
Assumed Indemnification Claims shall, in all respects, irrespective of whether
such claims arise under contracts or executory contracts, survive confirmation
of the Plan, remain unaffected thereby, and not be discharged irrespective of
whether indemnification, defense, reimbursement or limitation is owed in
connection with an event occurring before, on or after the Commencement Date.
12
(h) Compensation and Benefit Programs. Except as provided in Section
5.1(a) of the Plan, all Benefit Plans, all directors and officers liability and
other insurance and all workers compensation programs are treated as executory
contracts under the Plan and shall, on the Effective Date, be deemed assumed by
the Debtors in accordance with sections 365(a) and 1123(b)(2) of the Bankruptcy
Code.
5.2 Retiree Benefits. Payments, if any, due to any Person for the
purpose of providing or reimbursing payments for retired employees and their
spouses and dependents for medical, surgical, or hospital care benefits, or
benefits in the event of sickness, accident, disability, or death under any
plan, fund, or program (through the purchase of insurance or otherwise)
maintained or established in whole or in part by the Debtors prior to the
Commencement Date shall be continued for the duration of the period the Debtors
have obligated themselves to provide such benefits, subject to the Debtors'
right to amend or modify such benefit plans, funds or programs in accordance
with the terms thereof and applicable law.
ARTICLE VI
IMPLEMENTATION OF THE PLAN
--------------------------
6.1 General. On the Effective Date, the management, control and
operation of the Reorganized Debtors shall become the general responsibility of
the Boards of Directors of the Reorganized Debtors.
6.2 Boards of Directors of Reorganized Debtors. Subject to the terms of
the Securityholders Agreement as described in the Sunbeam Corporation Plan and
related Disclosure Statement, the members of the Boards of Directors of
Reorganized Sunbeam and each primary operating Reorganized Debtor shall be
identified at or prior to the Confirmation Hearing. The members of the Boards of
Directors of the remaining Reorganized Debtors immediately prior to the
Effective Date shall serve as the initial members of the Boards of Directors of
such Reorganized Debtors on and after the Effective Date. Each of the members of
such initial Boards of Directors shall serve in accordance with the applicable
Reorganized Debtors Certificates of Incorporation, applicable Reorganized
Debtors By-laws, or the Securityholders Agreement, as the same may be amended
from time to time. The initial Board of Directors of Newco shall consist of four
individuals (to be selected in a manner consistent with the allocation of Board
representation in the charters of Newco).
6.3 Officers of Reorganized Debtors. The officers of the Debtors
immediately prior to the Effective Date shall serve as the initial officers of
the Reorganized Debtors on and after the Effective Date. Such officers shall
serve in accordance with any employment agreement (that was not rejected
pursuant to section 365 of the Bankruptcy Code) with the Reorganized Debtors and
applicable law.
6.4 By-laws and Certificates of Incorporation. The Reorganized Debtors
By-laws and the Reorganized Debtors Certificates of Incorporation shall contain
provisions necessary (a) to prohibit the issuance of nonvoting equity securities
as required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such certificates of incorporation and by-laws as permitted by
applicable law and (b) to effectuate the provisions of the Plan, in each case
without any further action by the stockholders or directors of the Debtors, the
Debtors in Possession or the Reorganized Debtors.
6.5 Cancellation of Certain Securities. On the Effective Date, the
promissory notes and any and all other instruments or documents evidencing any
Secured Bank Claim shall be deemed cancelled without further act or action under
any applicable agreement, law, regulation, order or rule and the obligations of
the Debtors under the Bank Credit Agreement shall be discharged.
6.6 Management Equity Plans. On the Effective Date, and subject to the
separate affirmative vote in favor of the Sunbeam Corporation Plan by the
holders of Allowed Secured Bank Claims in Class 3, which holders will receive,
in the aggregate, 100% of the common shares of Reorganized Sunbeam to be issued
13
under the Sunbeam Corporation Plan, the Boards of Directors of Reorganized
Sunbeam and the Reorganized Debtors shall adopt the Management Equity Plans for
the Reorganized Debtors. Pursuant to the Management Equity Plans to be adopted
for the Reorganized Debtors an aggregate of approximately 4.25% of the
outstanding common shares of certain of the Reorganized Debtors on a fully
diluted basis may be available for issuance of Employee Options for certain
employees of the Reorganized Debtors, subject to the conditions of such
Management Equity Plan.
6.7 Restructuring Transactions. On or as of the Effective Date, the
distributions provided for under the Plan may be effectuated pursuant to the
Restructuring Transactions described in this Article VI, the documentation for
which shall be satisfactory to the Debtors and the Banks. On the Effective Date,
in the event the Debtors and the Banks determine that the Debtors shall transfer
all or part of any of the Selected Businesses to Newco, subject to the approval
of the Banks, one of the following two transactions shall occur in seriatim,
with respect to such Selected Business:
(i) Transaction #1:
o Formation and Capitalization of Newco. The
Transferors may, at the Debtors' and the Banks'
discretion, transfer (including, if so desired, by
license rather than a complete transfer) all or part
of the Selected Business to Newco, one or more newly
formed corporations, in exchange for the right to
receive the Newco Stock and the Newco Notes. The
Newco Stock and the Newco Notes will be allocated
among the Transferors based on the relative net value
of the assets transferred to Newco, as determined by
the Debtors.
o Newco Stock Issuance and Transfer. Newco shall issue
and transfer to the Transferors 100% of the Newco
Class A Stock and 100% of the Newco Notes and, on
behalf of and at the direction of the Transferors,
shall issue and transfer directly to the holders of
Secured Bank Claims 100% of the Newco Class B Stock.
(ii) Transaction #2:
o The Transferors may, at the Debtors' and the Banks'
discretion, transfer all or part of the Selected
Business to the Banks, who will immediately transfer
such Selected Businesses to Newco, in exchange for
all or substantially all of the equity interests in
Newco, or in lieu thereof, the Banks may assign their
right to acquire such Selected Business to Newco in
exchange for the equity interests in Newco, and Newco
shall acquire such Selected Business.
On or as of the Effective Date, within the sole and exclusive discretion of the
Debtors, the Debtors may, subject to the approval of the Banks, notwithstanding
any other transfers described in this Article VI, cause any or all of the
Debtors to be merged into one or more of the Debtors or dissolved, cause the
transfer of assets between or among the Debtors, or engage in any other
transaction in furtherance of the Plan. Any such transactions will be effective
as of the Effective Date pursuant to the Confirmation Order without any further
action by the stockholders or directors of any of the Debtors, the Debtors in
Possession or the Reorganized Debtors.
6.8 Authorization and Terms of New Newco Notes and Equity. The issuance
of the following securities by the Reorganized Debtors is hereby authorized
without further act or approval under applicable law, regulation, order or rule:
(i) the Newco Notes, and (ii) the Newco equity. In the case of Transaction #1,
both the Newco Class A Stock and the Newco Class B Stock will have identical
terms, with the exceptions that (x) the holder(s) of the Newco Class A Stock
will be entitled to elect three out of the four members of the Newco Board of
Directors and the holder(s) of the Newco Class B Stock will be entitled to elect
14
one out of the four Board members, and (y) the consent of the holders of the
Newco Class B Stock will be required to merge Newco with any corporation
affiliated with the Reorganized Debtors. In the case of Transaction #1, the
Newco Class A Stock interests will represent 95% of the equity value of Newco
and the Newco Class B Stock interests will represent 5% of the equity value of
Newco.
ARTICLE VII
EFFECT OF CONFIRMATION OF PLAN
------------------------------
7.1 Term of Bankruptcy Injunction or Stays. Unless otherwise provided,
all injunctions or stays provided for in the Chapter 11 Cases under section 105
or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
7.2 Revesting of Assets.
(a) On the Effective Date, except as otherwise provided for in the
Plan, the property of the estates of the Debtors shall vest in the Reorganized
Debtors.
(b) From and after the Effective Date, the Reorganized Debtors may
operate their businesses, and may use, acquire and dispose of property free of
any restrictions imposed under the Bankruptcy Code.
(c) As of the Effective Date, all property of the Reorganized Debtors
shall be free and clear of all liens, claims and interests of holders of Claims
and Equity Interests, except as otherwise provided in the Plan.
7.3 Claims Extinguished. As of the Effective Date, any and all
avoidance claims accruing to the Debtors and Debtors in Possession under
sections 502(d), 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code and
not then pending, shall be extinguished.
7.4 Discharge of Debtors. The rights afforded herein and the treatment
of all Claims and Equity Interests herein shall be in exchange for and in
complete satisfaction, discharge and release of Claims and Equity Interests of
any nature whatsoever, including any interest accrued on such Claims from and
after the Commencement Date, against the Debtors and the Debtors in Possession,
or any of their assets or properties. Except as otherwise provided herein, (a)
on the Effective Date, all such Claims against and Equity Interests in the
Debtors shall be satisfied, discharged and released in full and (b) all Persons
shall be precluded from asserting against the Reorganized Debtors, their
successors, or their assets or properties any other or further Claims or Equity
Interests based upon any act or omission, transaction or other activity of any
kind or nature that occurred prior to the Confirmation Date.
7.5 Injunction. Except as otherwise expressly provided in the Plan, the
Confirmation Order or a separate order of the Bankruptcy Court, all entities who
have held, hold or may hold Claims against or Equity Interests in the Debtors,
are permanently enjoined, on and after the Effective Date, from (a) commencing
or continuing in any manner any action or other proceeding of any kind with
respect to any such Claim or Equity Interest, (b) the enforcement, attachment,
collection or recovery by any manner or means of any judgment, award, decree or
order against the Debtors on account of any such Claim or Equity Interest, (c)
creating, perfecting or enforcing any encumbrance of any kind against the
Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest, (d) asserting any right of setoff,
subrogation or recoupment of any kind against any obligation due from the
Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest and (e) commencing or continuing in
any manner any action or other proceeding of any kind with respect to any claims
and Causes of Action which are extinguished, dismissed or released pursuant to
15
the Plan. Such injunction shall extend to successors of the Debtors, including,
without limitation, the Reorganized Debtors and their properties and interests
in property; provided, however, that nothing contained in this Section shall
enjoin, bar or otherwise impair commencement of direct personal claims against
any Person other than the Debtors.
7.6 Continuation of Pension Plans. Upon entry of the Confirmation
Order, subject to the occurrence of the Effective Date, Reorganized Sunbeam
and/or the Reorganized Debtors will continue the Pension Plans, subject to the
terms of such plans and applicable law, including ERISA.
ARTICLE VIII
CONFIRMATION AND EFFECTIVENESS OF THE PLAN
8.1 Conditions Precedent to Confirmation. The Plan shall not be
confirmed by the Bankruptcy Court unless and until the following conditions
shall have been satisfied or waived pursuant to Section 8.4 of the Plan:
(a) The Class of holders of Secured Bank Claims (Class 3) shall have
voted to accept the Plan by the requisite majorities provided in section 1126(c)
of the Bankruptcy Code;
(b) The class of secured Bank claims in the Sunbeam Corporation Plan
shall have voted to accept the Sunbeam Corporation Plan by the requisite
majorities provided in section 1126(c) of the Bankruptcy Code;
(c) All exhibits to the Plan and the Sunbeam Corporation Plan,
including those contained in the Plan Supplement and the Sunbeam Corporation
Plan Supplement, shall be in form and substance acceptable to the Debtors and
the Banks;
(d) No monetary default or event of default under the Post-Petition
Bank Credit Agreement shall have occurred and be continuing;
(e) No default or event of default under the postpetition receivables
program provided by GECC or the documents related thereto shall have occurred
and be continuing, the postpetition receivables program provided by GECC shall
be in full force and effect, and no material reduction in the availability under
the postpetition receivables program provided by GECC shall have occurred;
(f) No material adverse change on the business, assets, operations,
property, condition (financial or otherwise) of Sunbeam Corporation or any of
its subsidiaries (other than inactive subsidiaries) shall have occurred and be
continuing;
(g) No material unanticipated claims shall have been filed or asserted
in the Debtors' Chapter 11 Cases or the Sunbeam Corporation chapter 11 case;
(h) One or more financial institutions acceptable to the Debtors and
the Banks shall have agreed to provide the Working Capital Facility and the
Receivables Securitization Facility to Reorganized Sunbeam and the Reorganized
Debtors after the effectiveness of the Plan and the Sunbeam Corporation Plan on
terms acceptable to the Debtors, Sunbeam Corporation and the Banks; and
(i) the Confirmation Order shall provide for (i) the release of all
claims held by the Debtors against the Banks and their respective Affiliates
(including Morgan Stanley) and known loan participants and (ii) the dismissal of
the Adversary Proceeding with prejudice.
16
8.2 Conditions Precedent to Effectiveness. The Plan shall not become
effective unless and until the following conditions shall have been satisfied or
waived pursuant to Section 8.4 of the Plan:
(a) The Confirmation Order, in form and substance reasonably acceptable
to the Debtors and the Banks shall have become a Final Order;
(b) the order confirming the Sunbeam Corporation Plan, in form and
substance reasonably acceptable to the Debtors and the Banks shall have become a
Final Order;
(c) the Effective Date shall have occurred on or before December 31,
2002 or such later date as the Debtor and the Banks may agree;
(d) all actions, documents and agreements necessary to implement the
Plan in form and substance reasonably acceptable by the Debtors and the Banks
shall have been effected or executed;
(e) the Debtors shall have received all authorizations, consents,
regulatory approvals, rulings, letters, no-action letters, opinions or documents
that are determined by the Debtors to be necessary to implement the Plan;
(f) the Chief Executive Officer of Reorganized Sunbeam shall have made
an investment of not less than $3,000,000 in the equity of Reorganized Sunbeam;
and
(g) the Banks shall be reasonably satisfied with the senior management
of Reorganized Sunbeam and the Reorganized Debtors.
8.3 Effect of Failure of Conditions. In the event that one or more of
the conditions specified in Section 8.2 of the Plan have not occurred on or
before 60 days after the Confirmation Date (unless extended for up to 60
additional days by the Debtors and the Banks), (a) the Confirmation Order shall
be vacated, (b) no distributions under the Plan shall be made, (c) the Debtors
and all holders of Claims and Equity Interests shall be restored to the status
quo ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred and (d) the Debtors' obligations with respect
to Claims and Equity Interests shall remain unchanged and nothing contained
herein shall constitute or be deemed a waiver or release of any Claims or Equity
Interests by or against the Debtors or any other Person or Entity or to
prejudice in any manner the rights of the Debtors or any Person or Entity in any
further proceedings involving the Debtors.
8.4 Waiver of Conditions. The Debtors may waive, with the consent of
the Banks, by a writing signed by an authorized representative of the Debtors
and subsequently filed with the Bankruptcy Court, one or more of the conditions
precedent set forth in Sections 8.1 and 8.2 of the Plan (other than the
conditions set forth in Section 8.1(a), 8.1(b), 8.2(a) (except as to timing and
finality) and 8.2(b) (except as to timing and finality)).
ARTICLE IX
RETENTION OF JURISDICTION
-------------------------
9.1 Retention of Jurisdiction. The Bankruptcy Court shall have
exclusive jurisdiction of all matters arising out of, and related to, the
Chapter 11 Cases and the Plan pursuant to, and for the purposes of, sections
105(a) and 1142 of the Bankruptcy Code and for, among other things, the
following purposes:
(a) To hear and determine pending applications for the assumption or
rejection of executory contracts or unexpired leases, if any are pending, and
the allowance of cure amounts and Claims resulting therefrom;
17
(b) To hear and determine any and all adversary proceedings,
applications and contested matters;
(c) To hear and determine any objections to Administrative Expense
Claims or Claims;
(d) 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;
(e) To issue such orders in aid of execution and consummation of the
Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to or modifications of the Plan, to cure
any defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the Confirmation Order;
(g) To hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(h) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan;
(i) To recover all assets of the Debtors and property of the Debtors'
estates, wherever located;
(j) To hear and determine matters concerning state, local and federal
taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
(k) To hear any other matter not inconsistent with the Bankruptcy Code;
and
(l) To enter a final decree closing the Chapter 11 Cases.
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ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
10.1 Effectuating Documents and Further Transactions. The Debtors and
Reorganized Debtors are authorized to execute, deliver, file or record such
contracts, instruments, releases, indentures and other agreements or documents
and take such actions as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Plan and any securities issued
pursuant to the Plan.
10.2 Corporate Action. On the Effective Date, all matters provided for
under the Plan that would otherwise require approval of the stockholders or
directors of the Debtors or Reorganized Debtors, including, without limitation,
(a) the authorization to form Newco and to issue or cause to be issued the Newco
Notes and Newco equity, (b) the authorization and effectiveness of the New Bank
Guarantee and Security Agreement, Receivables Securitization Program, the
Management Equity Plans, and the Working Capital Facility Documents, (c) the
effectiveness of the Reorganized Debtors Certificates of Incorporation and
Reorganized Debtors By-laws, and (d) the election or appointment, as the case
may be, of directors and officers of the Reorganized Debtors pursuant to the
Plan, shall be deemed to have occurred and shall be in effect from and after the
Effective Date pursuant to the applicable general corporation law of the states
in which the Debtors and Reorganized Debtors are incorporated, without any
requirement of further action by the stockholders or directors of the Debtors or
Reorganized Debtors. On the Effective Date, or as soon thereafter as is
practicable, the Reorganized Debtors shall, if required, file their amended
certificates of incorporation with the Secretaries of State of the states in
which they are incorporated, to the extent required by the applicable general
corporation law of such states.
10.3 Exemption from Transfer Taxes. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of notes or issuance of debt
or equity securities under the Plan, the creation of any mortgage, deed of trust
or other security interest, the making or assignment of any lease or sublease,
or the making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale or
assignments executed in connection with any of the transactions contemplated
under the Plan, shall not be subject to any stamp, real estate transfer,
mortgage recording, sales or other similar tax. All sale transactions
consummated by the Debtors and approved by the Bankruptcy Court on and after the
Commencement Date through and including the Effective Date, including, without
limitation, the sales, if any, by the Debtors of owned property or assets
pursuant to section 363(b) of the Bankruptcy Code and the assumptions,
assignments and sales, if any, by the Debtors of unexpired leases of
non-residential real property pursuant to section 365(a) of the Bankruptcy Code,
shall be deemed to have been made under, in furtherance of, or in connection
with the Plan and, therefore, shall not be subject to any stamp, real estate
transfer, mortgage recording, sales or other similar tax.
10.4 Releases of Releasees. As of the Effective Date, the Debtors and
the Debtors in Possession and each holder of a Claim against or Equity Interest
in the Debtors or Debtors in Possession release all of the Releasees from any
and all Causes of Action held by, assertable on behalf of or derivative from the
Debtors or the Debtors in Possession or such holder, in any way relating to the
Debtors, the Debtors in Possession, the Chapter 11 Cases, the Plan, negotiations
regarding or concerning the Plan and the ownership, management and operation of
the Debtors; provided, however, that the foregoing shall not operate as a waiver
of or release from any Causes of Action arising out of any express contractual
obligation owing by any former director, officer or employee to the Debtors or
any reimbursement obligation of any former director, officer or employee with
respect to a loan or advance made by the Debtors to such former director,
officer or employee and is not a waiver of or release for any attorneys retained
in connection with these chapter 11 cases from claims by their respective
clients. Nothing in this section shall effect a release in favor of any person
19
other than the Debtors with respect to any debt owed to the United States
Government, any state, city or municipality for any liability of such person
arising under (i) the Internal Revenue Code, or any state, city or municipal tax
code, (ii) the environmental laws of the United States, any state, city or
municipality or (iii) any criminal laws of the United States, any state, city or
municipality.
10.5 Limited Release by Releasees. Except as otherwise provided under
the Plan, as of the Effective Date, each of the Releasees, in any capacity,
generally releases the Debtors and the Debtors in Possession, in each case in
any capacity, from any and all Causes of Action held by, assertable on behalf of
or derivative from such Releasee, in any way relating to the Debtors, the
Debtors in Possession, the Chapter 11 Cases, the Plan, negotiations regarding or
concerning the Plan and the ownership, management and operation of the Debtors.
10.6 Exculpation. None of the Debtors, the Reorganized Debtors, the
Banks and their respective Affiliates, known loan participants and Morgan
Stanley, the Post-Petition Banks and their respective Affiliates, known loan
participants and Morgan Stanley or GECC or any of their respective members,
officers, directors, employees, advisors, professionals or agents shall have or
incur any liability to any holder of a Claim or Equity Interest for any act or
omission in connection with, related to, or arising out of, the Chapter 11
Cases, negotiations regarding or concerning the Plan, the pursuit of
confirmation of the Plan, the consummation of the Plan or the administration of
the Plan or the property to be distributed under the Plan, except for willful
misconduct or gross negligence, and, in all respects, the Debtors, Reorganized
Debtors, the Banks and their respective Affiliates, known loan participants and
Morgan Stanley, the Post-Petition Banks and their respective Affiliates, known
loan participants and Morgan Stanley and GECC and each of their respective
members, officers, directors, employees, advisors, professionals and agents
shall be entitled to rely upon the advice of counsel with respect to their
duties and responsibilities under the Plan; provided that nothing in this
section shall effect a release of any person other than the Debtors with respect
to any debt owed to the United States Government, any state. city or
municipality for any liability of such person arising under (i) the Internal
Revenue Code, or any state, city or municipal tax code, (ii) the environmental
laws of the United States, any state, city or municipality or (iii) any criminal
laws of the United States, any state, city or municipality; and provided further
the Debtors' reorganization process and Plan in no way discharge, release, or
relieve the Debtors, Reorganized Debtors, any other members of the Debtors' or
Reorganized Debtors' controlled groups (as defined in 29 U.S.C. ss.
1301(a)(14)), or the Releasees, in any capacity, from any liability under Part
4, Subtitle B, Title I or under Title IV of ERISA with respect to the Benefit
Plans or Pension Plans. PBGC and the Pension Plans shall not be enjoined or
precluded from enforcing such liability, if any, as a result of the Plan's
provisions or confirmation.
10.7 Post-Effective Date Fees and Expenses. From and after the
Effective Date, the Reorganized Debtors shall, in the ordinary course of
business and without the necessity for any approval by the Bankruptcy Court, pay
the reasonable fees and expenses of professional persons thereafter incurred by
the Reorganized Debtors, including, without limitation, those fees and expenses
incurred in connection with the implementation and consummation of the Plan.
10.8 Payment of Statutory Fees. All fees payable pursuant to section
1930 of title 28 of the United States Code, as determined by the Bankruptcy
Court at the Confirmation Hearing, shall be paid on the Effective Date.
10.9 Amendment or Modification of the Plan. Alterations, amendments or
modifications of or to the Plan may be proposed in writing by the Debtors with
the consent of the Banks, provided that such consent shall not be unreasonably
withheld, at any time prior to the Confirmation Date, provided that the Plan, as
altered, amended or modified, satisfies the conditions of sections 1122 and 1123
of the Bankruptcy Code, and the Debtors shall have complied with section 1125 of
the Bankruptcy Code. Subject to obtaining the approval of the Banks, the Plan
20
may be altered, amended or modified by the Debtors at any time after the
Confirmation Date and before substantial consummation, provided that the Plan,
as altered, amended or modified, satisfies the requirements of sections 1122 and
1123 of the Bankruptcy Code and the Bankruptcy Court, after notice and a
hearing, confirms the Plan, as altered, amended or modified, under section 1129
of the Bankruptcy Code and the circumstances warrant such alterations,
amendments or modifications. A holder of a Claim that has accepted the Plan
shall be deemed to have accepted the Plan, as altered, amended or modified, if
the proposed alteration, amendment or modification does not materially and
adversely change the treatment of the Claim of such holder.
10.10 Severability. In the event that the Bankruptcy Court determines
that any provision in the Plan is invalid, void or unenforceable, such provision
shall be invalid, void or unenforceable with respect to the holder or holders of
such Claims or Equity Interests as to which the provision is determined to be
invalid, void or unenforceable. The invalidity, voidness or unenforceability of
any such provision shall in no way limit or affect the enforceability and
operative effect of any other provision of the Plan.
10.11 Revocation or Withdrawal of the Plan. Subject to obtaining the
approval of the Banks, the Debtors reserve the right to revoke or withdraw the
Plan prior to the Confirmation Date. If the Debtors revoke or withdraw the Plan
prior to the Confirmation Date, then the Plan shall be deemed null and void. In
such event, nothing contained herein shall constitute or be deemed a waiver or
release of any claims by or against the Debtors or any other Person or Entity or
to prejudice in any manner the rights of the Debtors or any Person or Entity in
any further proceedings involving the Debtors.
10.12 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Debtors, the holders of Claims and Equity Interests and their
respective successors and assigns, including, without limitation, the
Reorganized Debtors.
10.13 Notices. All notices, requests and demands to or upon the Debtors
or, on and after the Effective Date, the Reorganized Debtors, to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually delivered or, in the case
of notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
If to the Debtors or Reorganized Debtors:
Sunbeam Products, Inc.
2381 Executive Center Road
Boca Raton, Florida 33431
Attn: General Counsel
Telephone: (561) 912-4438
Facsimile: (561) 912-4612
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Lori R. Fife, Esq.
George A. Davis, Esq.
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
21
If to the Banks:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Peter V. Pantaleo, Esq.
Telephone: (212) 455-2000
Facsimile: (212) 455 2502
10.14 Governing Law. Except to the extent the Bankruptcy Code,
Bankruptcy Rules or other federal law is applicable, or to the extent an exhibit
to the Plan provides otherwise, or any contract, instrument or other agreement
or document entered into in connection with the Plan provides otherwise, the
rights and obligations arising under this Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
10.15 Withholding and Reporting Requirements. In connection with the
consummation of the Plan, the Debtors or Reorganized Debtors, as the case may
be, shall comply with all withholding and reporting requirements imposed by any
federal, state, local or foreign taxing authority and all distributions
hereunder shall be subject to any such withholding and reporting requirements.
10.16 Plan Supplement. The Reorganized Debtors Certificates of
Incorporation, the Reorganized Debtors By-laws, the New Bank Guarantee and
Security Agreement and Schedules 5.1(a)(x) and 5.1(a)(y) referred to in Section
5.1 of the Plan, shall be contained in the Plan Supplement and filed with the
Clerk of the Bankruptcy Court at least 10 days prior to the last day upon which
holders of Claims may vote to accept or reject the Plan. Upon its filing with
the Bankruptcy Court, the Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal court hours. Holders of Claims or
Equity Interests may obtain a copy of the Plan Supplement upon written request
to the Debtors in accordance with Section 10.13 of the Plan.
10.17 Sections 1125 and 1126 of the Bankruptcy Code. As of and subject
to the occurrence of the Confirmation Date, (i) the Debtors shall be deemed to
have solicited acceptances of the Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, including, without limitation
section 1125(a) of the Bankruptcy Code, and any applicable nonbankruptcy law,
rule or regulation governing the adequacy of disclosure in connection with such
solicitation and (ii) the Debtors, the Banks and each of their respective
affiliates, agents, directors, officers, employees, advisors and attorneys shall
be deemed to have participated in good faith and in compliance with the
applicable provisions of the Bankruptcy Code in the offer and issuance of any
securities under the Plan, and therefore are not, and on account of such offer,
issuance and solicitation will not be, liable at any time for any violation of
any applicable law, rule or regulation governing the solicitation of acceptances
or rejections of the Plan or the offer and issuance of any securities under the
Plan.
10.18 Allocation of Plan Distributions. All distributions in respect of
Claims will be allocated first to the portion of such Claims representing
interest (as determined for federal income tax purposes), second to the original
principal amount of such Claims (as determined for federal income tax purposes),
and any excess to the remaining portion of such Claims.
10.19 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose.
10.20 Exhibits/Schedules. All exhibits and schedules to the Plan,
including the Plan Supplement, are incorporated into and are a part of the Plan
as if set forth in full herein.
22
10.21 Filing of Additional Documents. On or before substantial
consummation of the Plan, the Debtors shall file with the Bankruptcy Court such
agreements and other documents as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of the Plan.
Dated: New York, New York
September 6, 2002
AI REALTY MARKETING OF NEW YORK, INC.
BEACON EXPORTS, INC.
BRK BRANDS, INC.
CC OUTLET, INC.
CMO, INC.
COLEMAN ARGENTINA, INC.
COLEMAN INTERNATIONAL HOLDINGS, LLC
COLEMAN POWERMATE, INC.
COLEMAN PUERTO RICO, INC.
COLEMAN VENTURE CAPITAL, INC.
COLEMAN WORLDWIDE CORP.
DDG I, INC.
FAMILY GARD, INC.
FIRST ALERT, INC.
GENERAL ARCHERY INDUSTRIES, INC.
GHI I, INC.
JGK, INC.
KAIMONA, INC.
KANSAS ACQUISITION CORP.
L.A. SERVICES, INC.
LASER ACQUISITION CORP.
NIPPON COLEMAN, INC.
PACKS & TRAVEL CORPORATION
PEARSON HOLDINGS, INCORPORATED
PH III, INC.
RIVER VIEW CORPORATION OF BARLING, INC.
SIERRA CORPORATION OF FORT SMITH, INC.
SI II, INC.
SUNBEAM AMERICAS HOLDINGS, LTD.
SUNBEAM HEALTH & SAFETY COMPANY
SUNBEAM LATIN AMERICA, LLC
SUNBEAM PRODUCTS, INC.
SUNBEAM SERVICES, INC.
SURVIVAL GEAR, INC.
THALIA PRODUCTS, INC.
THE COLEMAN COMPANY, INC.
THL-FA IP CORP.
VERO DUNES VENTURER, INC.
WOODCRAFT EQUIPMENT COMPANY
By: /s/ Steven R. Isko
--------------------------
Name: Steven R. Isko
Title: Senior Vice President
(Sunbeam Corporation)
23